The criteria for establishing perceived judicial bias have been summarised and applied in R v Edwards, 2024 SCC 15. This case is about whether the composition of courts martial in Canada infringes the s 11(d) Charter right to an independent and impartial tribunal. But of wider interest is the description of the attributes of the informed and reasonable person. The issue is whether such a person would perceive the tribunal as independent. At [84]-[85] it is observed that there is a strong presumption of judicial impartiality. The reasonable and informed person, according to the established j ..read more

  Let’s have a look at s 66(2) of the Crimes Act 1961 [NZ]. 66 Parties to offences (1) Every one is a party to and guilty of an offence who— (a) actually commits the offence; or (b) does or omits an act for the purpose of aiding any person to  commit the offence; or (c) abets any person in the commission of the offence; or (d) incites, counsels, or procures any person to commit the offence. (2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in ..read more

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