Te Wharenga - New Zealand Criminal Law Review
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POLICE V B [2017] NZHC 526, [2017] 3 NZLR 203
Full text linkPolice v Iyer was the first case where judicial consideration was given to the provisions of s 22 of the Harmful Digital Communications Act 2015 (HDCA, or the Act) — which creates the offence of causing harm by posting a digital communication
Debra Wilson “Case Note: R v Wilson [2015] NZSC 189; R v Kumar [2015] NZSC 124” [2016] NZCLR 44
No full textI. INTRODUCTION
In 2015 the Supreme Court heard three cases involving legal issues relating to undercover police operations. Two will be discussed below; the decision in the third has not been released at the time of writing
Debra Wilson “Case Note: Specific Directions On Motivations To Lie: Clarke V The Queen” [2016] NZCLR 78
No full textI. INTRODUCTION
It is common in cases involving complaints of sexual offending for the prosecution to ask the defendant if there is any reason he or she can think of to explain why the complainant might have lied, particularly since such a complaint would potentially result in a long, traumatic investigation and trial process. This can be considered a “natural question”1 to ask and one which reflects the “commonsense” reality that a jury “would inevitably be asking” whether the complainant had a motive to lie.2 Despite the naturalness of this question, however, it can become problematic from a legal perspective if the manner in which the prosecution phrases the inquiry unintentionally leads the jury to think that the burden of proof has shifted from the Crown to the accused. In this situation the Judge will be required to specifically correct this misunderstanding during summing up. The point at which a specific direction becomes necessary has occupied the attention of the Court of Appeal in multiple cases in 2015 and 2016, and was most recently considered by the Supreme Court in an application for leave to appeal in Clarke v The Queen
Warren Brookbanks “The Defence Of Withdrawal – A Unitary Or Bifurcated Construct?” [2016] NZCLR 62
No full textRecent judicial commentary in New Zealand and in England has sought to define the parameters of the common law defence of withdrawal. While the approach of the courts has been towards the view that withdrawal is a unitary construct applicable to the two principal modes of parties liability, the thrust of this article is to suggest that there may be two discrete forms of the withdrawal defence, making withdrawal a bifurcated concept. It is argued that it is possible to discern a substantive withdrawal defence, operating in a temporal space close to the commission of the intended offence, and more directly concerned with the conditions of culpability, and a pre-emptive withdrawal defence, operating in the very early stages of a criminal
enterprise, and focussing more on actus reus elements of complicity, in particular causation. The article examines the implications of this binary model of withdrawaland questions whether the possibility of a second withdrawal defence should now berecognised by the common law
Editorial [2016] NZCLR 3
No full textoai:nzclr.ojs.aut.ac.nz:article/10Welcome to the first edition of Te Wharenga - The New Zealand Criminal Law Review
Nessa Lynch “Case Note: The Sentencing Of The Vulnerable: P v R” [2016] NZCLR 103
No full textI. INTRODUCTION
New Zealand has a lauded youth jurisdiction, which has recognised expertise in accountability and reintegration for children and young persons who offend, both in minor and more serious cases.1 In recent years, youth justice practitioners and professionals have become more cognisant of the relevance of the science of brain development both in terms of age appropriateness, and where children and young persons have neuro-disabilities (such as foetal alcohol spectrum disorder, traumatic brain injury or learning difficulties).2 Nonetheless, New Zealand law holds that where a child or young person is accused of homicide, he or she will be tried, and sentenced, in the adult jurisdiction with the adult sentencing regime.3 Such cases inevitably involve the juxtaposition of serious crime with extreme vulnerability
Robin Palmer “Case Note: Counter-intuitive sexual abuse evidence, Emotive language and Inadvertently-elicited potentially prejudicial evidence: Kohai v R [2015] NZSC 36 and DH v R [2015] NZSC 35” [2016] NZCLR 48
No full textI. INTRODUCTION
The two Supreme Court appeals, Kohai v R1 and DH v R,2 focused primarily on various aspects of so-called ‘counter-intuitive’ expert sexual abuse evidence.3 The overall objective of expert counter-intuitive sexual abuse evidence is to provide the fact-finder with a comprehensive conceptual framework in terms of which evidence of sexual abuse must be understood. This purpose was explained in the 1999 Law Commission report on the Reform of the Law of Evidence:4...
Warren Brookbanks “Case Note: Unpacking The Elements Of Infanticide – A Canadian Approach: R v Borowiec” [2016] NZ CLR 92
No full textI. INTRODUCTION
The law of infanticide has been described as “a particularly dark corner of the criminal law”.1 This description relates not so much to the nefarious character of the offence as to the hidden nature of the doctrine, which is seldom litigated. The recent decision of the Supreme Court of Canada in R v Borowiec2 provides a useful window into the law governing infanticide which, in the common law jurisdictions in which it exists, provides both a discrete offence and a partial defence to women who kill their infant children while suffering from the effects of childbirth. The decision provides a valuable account of the origins and legislative purpose of the infanticide doctrine as it has developed within Canadian law which has close parallels to infanticide as it has emerged within New Zealand criminal law
Jeremy Finn “Case Note: ASG v Hayne – A Case of Publish And Not Be Damned” [2016] NZCLR 86
No full textI. INTRODUCTION
The decision in ASG v Hayne1 has significant implications for persons seeking permanent name suppression. This appears to have been the first time the Court of Appeal has been called upon to consider the meaning of “publication” under section 200 of the Criminal Procedure Act 2011. Unfortunately the decision raises at least as many questions as it answers. Some of these difficulties may reflect the fact that the case came before the Court of Appeal on appeal from the Employment Court, rather than from a criminal proceeding