When a trial involves multiple charges against one defendant, and they are of a similar nature, an issue may arise over when evidence relating to one or more of those charges can be used as contributing to proof of one or more other of the charges. If evidence about one offence is relevant to proof of another charge, that can be because it shows that the defendant has a propensity or a tendency to act in the way charged. I use the synonym [23] propensity out of habit: I have a tendency to say propensity when I could equally say tendency. Do the facts that allegedly show a propensity have to ..read more

Identifying the scope of an agreement is essential when considering the law of conspiracy. This is illustrated in DPP(Cth) v Kola [2024] HCA 14. The statutory context is important, particularly if it provides that where an offence has an element of absolute liability the conspiracy to commit that offence retains absolute liability as to that circumstance. [1] In Kola the charge was conspiracy to import a commercial quantity of cocaine. For the full offence, importation of a commercial quantity of cocaine, absolute liability applied to the amount of the drug. That is, it was not necessary to p ..read more

When a statutory exception is followed by a list of conditions, a court may have to decide whether the list is conjunctive or disjunctive. That is, must all the conditions be satisfied before the exception applies, or need only an individual condition be satisfied for the exception to apply? This problem split the Supreme Court of the United States 6-3 in Pulsifer v United States USSC 22-340 (15 March 2024). At issue was an exception to protection against imposition of a statutory minimum sentence. It was an issue that mattered “profoundly”, affecting the lives and liberty of thousands of in ..read more

Dealing with the risk that a jury was “poisoned” (so to speak) [1]) by misbehaviour was the topic considered in Campbell v R (No 2) (Jamaica) [2024] UKPC 6. The difficulty for the trial judge in this case was that at the closing stage of a lengthy and complex (and necessarily expensive) trial a concern was raised that attempts had been made by one juror to bribe others - the number was not clear - to acquit the defendants. Could this risk be avoided by judicial management? The Board held that the measures taken here had not been sufficient [44]-[45]. The defendants’ fundamental right to a fa ..read more

Is it right in principle to require, for the defence of duress, that the threat be accompanied by a demand that a particular offence be committed? And can the threat be implied from the circumstances, or must it be an express threat? The Australian common law was considered in The King v Anna Rowan (A Pseudonym) [2024] HCA 9. In a joint judgment Gageler CJ, Gordon, Jagot and Beech-Jones JJ held that Australian common law of duress does indeed require that the threat included a requirement or demand that the defendant commit the acts that constitute the offence charged [53]. Also, the threat ..read more

In judge-alone trials, the judge must give reasons for the verdict. This obligation creates difficulties for the judge, especially around adequately explaining reasons for assessments of the credibility and reliability of witnesses. There can be a tendency for judges to refer to their common sense and their experience of the ways of the world. This might lead to a departure from the evidence in the case. How should an appellate court determine whether the judge has reasoned lawfully? This was the central question in R v Kruk, 2024 SCC 7. The Court unanimously rejected a rule-based approach c ..read more

It is not unusual for legislation defining an offence to be changed, and a question may arise as to whether the change creates a new offence, or whether the original offence (the predecessor offence) was merely reformulated, refined or improved. This was the issue in Xerri v The King [2024] HCA 5, as stated by Gageler CJ and Jagot J at [14], and by Gordon, Steward and Gleeson JJ at [41]. If the change did not create a new offence but, inter alia, increased the maximum penalty, an offender would have the benefit of the lesser penalty if the offending occurred before the change (this rule is em ..read more

Acquittals are final, even if they might be based on flawed reasoning: McElrath v Georgia 22-721 USSC (21 February 2024). Authorities referred to in this case make the following points. An acquittal by a jury ends a defendant’s jeopardy. A jury’s verdict of acquittal cannot be reviewed and this is the most fundamental aspect of double jeopardy jurisprudence. An acquittal is a ruling that the prosecution’s proof is insufficient to establish criminal liability. A jury’s verdict of not guilty on the grounds of insanity is such a ruling. It does not matter if this verdict is accompanied by an app ..read more

If you agree with someone to commit an offence, how much do you need to know? You don’t need to know that the proposed course of conduct is unlawful, because ignorance of the law is no excuse. But you do need to know what conduct is proposed and you also need to have the state of mind required by the definition of the offence. Not all offences require knowledge or recklessness as to the existence of all the physical facts that have to be proved to establish liability. For example, an offence of supplying a controlled drug to a person who is under a specified age. Liability need not, depend ..read more

In a recent opinion piece published by Stuff, Damien Grant has raised questions about parliamentary sovereignty and the common law. He asks, “Does Parliament have the right to order a citizen be tortured?’ Here, “right” probably means the power to enact legislation that will be accepted as law. [1] Acceptance is everything. Parliament only has the power to make laws because our community accepts that it should. [2] This power has its origins in a recognition in common law that this is the best way we can devise of ordering our society - and that this is a political reality. The real conseq ..read more