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“Jackpot:” the Hang-Up Holding Back the Residual Category of Abuse of Process*
“Jackpot:” the Hang-Up Holding back the Residual Category of Abuse of Process* JEFFERY COUSE ** ABSTRACT The abuse of process doctrine allows courts to stay criminal proceedings where state misconduct compromises trial fairness or causes ongoing prejudice to the integrity of the justice system (the “residual category”). The Supreme Court revisited the residual category in the 2014 case R v Babos. In Babos, the Supreme Court provided a three-stage test for determining whether an abuse of process in the residual category warrants a stay of proceedings. This article critically examines Babos and its progeny. Notwithstanding the Supreme Court’s insistence that the focus of the residual category is societal, all three stages of the test remain disconcertingly preoccupied with the circumstances of the individual accused. Courts’ reluctance to give undeserving accused the “jackpot” remedy of a stay has prevented the court from dissociating itself from state misconduct. Instead, courts have imposed remedies which inappropriately redress wrongs done to the accused. This paper suggests four ways for courts to better advance the societal aim of the residual category. First, a cumulative approach should be taken to multiple instances of state misconduct rather than an individualistic one. Second, courts ought to canvass creative remedies in considering whether an * This paper was written in a personal capacity and does not in any way reflect the views of the Ontario Superior Court of Justice or the Ministry of the Attorney General. ** Jeffery Couse graduated from the University of Toronto, Faculty of Law in 2016 and he was called to the Bar on June 26, 2017. -
Adrian Keane and Paul Mckeown, the Modern Law of Evidence, 12Th Edition Update: September 2019
Adrian Keane and Paul McKeown, The Modern Law of Evidence, 12th Edition Update: September 2019 Chapter 11: Hearsay in criminal cases Cases where a witness is unavailable Page 328 Section 116(1)(a) will also operate to prevent s 116 being used where there is an overwhelming probability that the witness would rely on the privilege against self- incrimination and would decline to give evidence in the terms of the statement. See R v Hayes [2018] 1 Cr App R 134 (10), CA at [58]-[59] Relevant person cannot be found even though such steps as are reasonably practicable to take to find him have been taken Page 330 Where the judge concludes that the requirements of s 116(2)(d) are met, the statement is admissible and it is an error of approach to then consider as the ‘next step’, admissibility under s 114(1)(d). The next step is to consider the question of fairness and the application of s 78 of the Police and Criminal Evidence Act 1984. See R v Kiziltan [2018] 4 WLR 43, CA at [16]. Business and other documents Section 117 Page 337 Where a statement contained in a document is an opinion, it does not meet the test for admissibility under s 117(1)(a), since oral evidence of opinion is inadmissible (unless it is an expert opinion): R v Hayes [2018] 1 Cr App R 134 (10), CA. Admissibility in the interests of justice Section 114(1)(d): inclusionary discretion Pages 340-341 Where the identity of a witness is not known, it may be possible to use s 114(1)(d) if the witness is untraceable and in the circumstances in which the statement was © Oxford University Press, 2019. -
Benchmark Publication
Friday, 11 November 2016 Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary The Queen, on the application of Denby Collins v The Secretary of State for Justice (UK - QBD) - criminal law - householder’s defence - householder restrained intruder in headlock who sustained serious injuries - whether householder entitled to rely upon householder’s defence - whether defence limited to ‘reasonable force’ - whether defence incompatible with right to life protection under human rights convention - defence limited to ‘reasonable force’ (WCL) Kelly v R (NSWCCA) - criminal law - sentence appeal - applicant with psychiatric issues and cognitive disorder pleaded guilty to 6 offences, including wounding causing grievous bodily harm (‘GBH’) - applicant represented himself on sentence and failed to adduce relevant, available psychiatric evidence - on appeal, arguing miscarriage because of incompetent representation - appeal allowed, resentenced R v Adams (No 5) (NSWSC) - criminal law - evidence - admissibility of representations contained in historical documents tendered on voir dire - 1983 murder - documents business records of police service - whether hearsay -
IE, Forensic Science
University of Denver Criminal Law Review Volume 3 Issue 1 Article 3 January 2013 Admissibility Compared: The Reception of Incriminating Expert Evidence (I.E., Forensic Science) in Four Adversarial Jurisdictions Gary Edmond Simon Cole Emma Cunliffe Andrew Roberts Follow this and additional works at: https://digitalcommons.du.edu/crimlawrev Part of the Criminal Law Commons Recommended Citation Gary Edmond, et al., Admissibility Compared: The Reception of Incriminating Expert Evidence (I.E., Forensic Science) in Four Adversarial Jurisdictions, 3 U. Denv. Crim. L. Rev. 31 (2013) This Article is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in University of Denver Criminal Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],dig- [email protected]. Edmond et al.: Admissibility Compared: The Reception of Incriminating Expert Evi ADMISSIBILITY COMPARED: THE RECEPTION OF INCRIMINATING EXPERT EVIDENCE (I.E., FORENSIC SCIENCE) IN FOUR ADVERSARIAL JURISDICTIONS Gary Edmond,* Simon Cole,t Emma Cunliffe, and Andrew Roberts§ INTRODUCTION The single most important observation about judicial [gate-keeping] of forensic science is that most judges under most circumstances admit most forensic science. There is almost no expert testimony so threadbare that it will not be admitted if it comes to a criminal proceeding under the banner of forensic science. .. The applicable legal test offers little assurance. The maverick who is a field unto him- or herself has repeatedly been readily admitted under Frye, and the complete absence of foundational research has not prevented such admission in Daubert jurisdictions.' There is an epistemic crisis in many areas of forensic science. -
Lawyers' Committee for Civil Rights Under Law
LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW BRIEFING PAPER ON THE UNITED DEMOCRATIC FRONT TREASON TRIAL state y. Mawalal Ramgobin and 15 Others, The Supreme Court of South Africa (Natal Provincial Division) Pietermaritzburg, South Africa August 1985 Southern Africa project Lawyers' Committee for Civil Rights Under Law 1400 Eye Street, N.W. Suite 400 Washington, D.C. 20005 -. LA WYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW SUITE 400 • 1400 EYE STREET, NORTHWEST. WASHINGTON, D.C. 20005 • PHONE (202) 371-1212 CABLE ADDRESS: LAWCIV, WASHINGTON, D.C. BRIEFING PAPER ON THE UNITED DEMOCRATIC FRONT TREASON TRIAL State v. Mawalal Rarngobin and 15 Others, The Supreme Court of South Africa (Natal Provincial Division) Pietermaritzburg, South Africa August 1985 Prepared by the Southern Africa Project of the Lawyers' Committee for Civil Rights Under Law. ---------------------------------------------- TABLE OF CONTENTS Part I: Background to the Treason Trial 1 Section 1: The New Constitution and the Detention of Leading Members of the United Democratic Front..... 1 Section 2: Bail Denied 14 Section 3: The Charge of Treason.............................. 24 (A) The Indictment.......................................... 24 (B) Treason, Historically and in Law in South Africa 25 (i) The Situation Prior to 1961 25 (ii) 1961-1978 38 (iii) 1979-1985 ••.••••••••••0. .....•.................... .. 42 Part II: The United Democratic Front Treason Trial 52 Section 1: The Main Count - Treason........................... 52 Section 2: The Alternate Charges 59 (A) Terrorism Under the Internal Security Act of 1982 59 (B) Terrorism Under the Terrorism Act of 1967 65 (C) Furtherance of Objects of an Unlawful Organization 69 (D) Furtherance of the Objects of Communism 70 (E) Furtherance of the Objects of Communism and/or the ANC . -
Wrestling with Punishment: the Role of the BC Court of Appeal in the Law of Sentencing
Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 2009 Wrestling with Punishment: The Role of the BC Court of Appeal in the Law of Sentencing Benjamin Berger Osgoode Hall Law School of York University, [email protected] Gerry Ferguson Source Publication: British Columbia Studies Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works Part of the Courts Commons, Criminal Law Commons, and the Jurisprudence Commons This work is licensed under a Creative Commons Attribution-No Derivative Works 4.0 License. Repository Citation Berger, Benjamin and Ferguson, Gerry, "Wrestling with Punishment: The Role of the BC Court of Appeal in the Law of Sentencing" (2009). Articles & Book Chapters. 2555. https://digitalcommons.osgoode.yorku.ca/scholarly_works/2555 This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. WRESTLING WITH PUNISHMENT: The Role of the BC Court of Appeal in the Law of Sentencing Gerry Ferguson and Benjamin L. Berger1 INTRODUCTION entencing is often portrayed, in the media, as a postscript to the real stuff of criminal justice: the investigation and trial of Scrime. To be sure, if one is looking for drama, it is most readily found in the excitement of the investigative process or the stylized thrust and parry of the adversarial criminal trial. Yet, as is the case in so many areas of the law, it is the remedial dimension of the law – its “business end” – that discloses most about its nature. -
Gerard Doran
Gerard Doran Call to the Bar: 1993 "He is a very friendly advocate and clients love him. He is a very safe pair of hands." "Very persuasive and well organised." - Chambers & Partners, 2021 ‘He constantly impresses with his advocacy.’ – Legal 500 2020 CONTACT DETAILS "An outstanding junior counsel for heavyweight matters" – Legal 500 2019 Email: ‘He is brilliant in court; clients warm to him.’ – The Legal 500, 2018 [email protected] Gerard is an extremely popular and sought after senior junior who specialises in criminal Telephone: defence, regulatory and professional disciplinary work. As is suggested by his regular endorsements by leading legal directories, Gerard’s popularity and success in practice 0161 832 5701 stems both from his reputation of being a superb jury advocate and his client care skills PRACTICE AREAS which many consider to be second to none. Gerard is a down to earth people person who is able to get the most from his clients. His enthusiasm for their case is evident from the Business Crime & Financial Regulation first meeting and he is able to put the most anxious of clients at ease by his calm and unflustered, yet determined approach. Criminal law Inquests Following his call to the bar, in 1993, Gerard practiced at the London Bar before returning to the North West. During his years spent on the South Eastern Circuit, Gerard developed Professional Discipline a strong practice often regarded to be “beyond his call”. Regulatory In 2005, with a healthy practice and requests to represent those involved in the most MEMBERSHIPS serious cases, across the United Kingdom, Gerard decided to return to the North West of the country. -
Immigration Offences Legal Guidance
Immigration Offences legal guidance Annex: Table of Immigration Offences This table sets out the most commonly prosecuted immigration offences For statutory defences: see the Immigration Offences legal guidance False Documents • Identity Documents Act 2010 (IDA) came into force 21/1/2011. For offences prior to that date, the IDA 2006 applies. • Documentary offences will usually be prosecuted under the IDA rather than under the Forgery and Counterfeiting Act 1981 (FCA) or sections 24A or 26(1)(d) of the Immigration Act 1971 (IA): the IDA offences were introduced to combat the growing problem of identity fraud in organised crime and terrorism offences. • Sections 4, 5 and 6 can be prosecuted if a “relevant event” occurred in England or Wales: Criminal Justice Act 1993 Part 1. This applies whether or not the defendant was in England or Wales at any material time, and whether or not he was a British citizen at any such time. • s7 IDA defines what is meant by “identity document” in ss4-6 and includes an immigration document, a passport and a driving licence. Category Maximum Statutory Key Points Sentence Defence? Possession of false identity documents etc with improper intention - s4 Identity Documents Act 2010 Indictable 10 years’ S31 • The s4 offence is more serious than the s6 offence, requiring an improper only custody Immigration intention (using the document for identity fraud). In many cases it will be possible and Asylum to infer the intent from all the circumstances of the case. Act 1999 • In R v Goodings [2012] EWCA Crim 25856 the court emphasised the importance (IAA) of the prosecution selecting the correct charge to reflect the true gravity of the conduct and not accepting a G plea to the lesser s6 offence, which does not S45 Modern properly reflect the evidence. -
Criminality and the Canadian Anti-Combines Laws
(1965) 4 ALBERTA LAW REVIEW 67 CRIMINALITYAND THE CANADIAN ANTI-COMBINESLAWS BRUCE C. McDONALD* INTRODUCTION Considerable attention has been devoted, over the course of the last seventy-five years, to the selection of legal controls designed to secure such economic structure and behaviour as is deemed politically desirable in Canada. Increasing concentration of private wealth and industrial ization continuously make the matter more complex and yet more urgent. The Canadian Parliament long ago decided that corporations and businessmen can and sometimes do act in socially undesirable ways in regard to the structural and behavioural aspects of a competitive economy. 1 A difficult legal problem is the finding of the most appropriate remedy, or combination of remedies, in view of the various desired ob jectives. Laws are required, not only as an agreed statement of social objectives, but also as a means for ensuring those goals. The law furnishes a wide variety of forms of control, each designed to accomplish certain types of results and each having consequent limitations upon its capabilities. The control of combines and unfair trade practices in Canada has fallen to the criminal law exclusively. Combines law originated as criminal law for natural "social" reasons in 1889, but remains criminal for what may well be misconceived constitutional grounds. The object of this article is to examine the value of the criminal law as a regulatory tool for combines problems. The subject will be treated with a view to general criminal law concepts, followed by an analysis of the operation of leading criminal law principles in combines cases. -
Criminal Attempts 46 Chapter 7— Conspiracy 49 Chapter 8— Joint Enterprise 55 1
II CRIMINAL BENCH BOOK © Judicial Education Institute of Trinidad and Tobago, 2015 All rights reserved. Except for use in review, no part of this publication may be reproduced or transmitted in any form or by any means, electronic or me- chanical, including photocopy, recording, any information storage or retrieval system, or on the internet, without permission in writing from the publishers. Design and Artwork: Paria Publishing Company Limited Typeset in Scala Printed by The Office Authority ISBN 978-976-8255-20-4 (printed book) ISBN 978-976-8255-21-1 (e-book) 2015 SUPREME COURT OF JUDICATURE OF TRINIDAD AND TOBAGO CRIMINAL BENCH BOOK III THE BOARD OF THE JUDICIAL EDUCATION INSTITUTE OF TRINIDAD AND TOBAGO (2015) The Honourable The Chief Justice, Mr Justice Ivor Archie, ORTT— President The Honourable Mr Justice Peter Jamadar, JA— Chairman Justice Roger Hamel-Smith (Ret.)— Programme Director The Honourable Mme Justice Alice Yorke-Soo Hon, JA The Honourable Mme Justice Charmaine Pemberton The Honourable Mme Justice Carla Brown-Antoine The Honourable Mme Justice Andrea Smart Chief Magistrate Her Worship Mrs Marcia Ayers-Caesar Her Worship Magistrate Ms Avason Quinlan Ms Jade Rodriguez— Registrar of the High Court Ms Michelle Austin— Court Executive Administrator Ms Carol Ford-Nunes— Director of Court Library Services Mr Kent Jardine— Judicial Educator Mrs Samantha Forde— Coordinator, JEITT THE BENCH BOOK COMMITTEE The Honourable Mme Justice Alice Yorke-Soo Hon, JA— Chairperson The Honourable Mr Justice Mark Mohammed, JA— Co-Chairperson Ms -
Abolishing Australia's Judicially Enacted Sui Generis Doctrine Of
Abolishing Australia’s Judicially Enacted Sui generis Doctrine of Extended Joint Enterprise * Victoria B. Wang Abstract In this paper it is argued that the decision in Miller v The Queen [2016] HCA 30 is not supported by the common law precedents in Australia nor the historical English precedents. It is argued that the change of normative position theory invoked by the majority judges is just stated as a rule rather than as a positive justification, which is an assertion that has never been developed into a plausible theory. Moreover, the policy considerations cannot work as convincing justifications for extended joint enterprise liability. It is submitted that assisting/encouraging is normatively different from and less harmful and dangerous than perpetration; and that making an assister/encourager fully liable for the target crime goes against principles of fair labelling and proportionate punishment. It is further submitted that the unfairness and injustice in complicity liability is doubled in the context of extended joint enterprise showing the urgency of abolition of it in Australia. I Introduction Arguably, a doctrine of ‘extended joint enterprise’ was enacted by judicial fiat in Australia in 1995.1 It appears the judges deciding McAuliffe v The Queen were * Lecturer, School of Law, University of Surrey, United Kingdom. 1 McAuliffe v The Queen [1995] 183 CLR 108. The majority judges in Miller v The Queen [2016] HCA 30, para 2 acknowledge its doctrinal foundations cannot be traced beyond the 1980s when they state, ‘These criticisms were invoked in support of an application to re-open and overrule McAuliffe in Clayton v The Queen (2006). -
Lynette Mcclement Crime
Lynette McClement Crime Lynette initially studied in South Africa before undertaking degrees in Law and a Masters in Law at Birmingham University. With a varied and extensive criminal practice, predominantly defence, Lynette also prosecutes, a Grade 3 Prosecutor, she is on the Attorney General’s prosecuting list and a member of the CPS Rape panel. She has experience in dealing with cases as both a prosecutor and defender across the full range of criminal offending. Year of Call: 2002 Instructed in serious crime cases including murder and attempt murder; Clerks offences of violence - including gang related violence; large-scale drug conspiracies; firearm offences and child cruelty. Senior Practice Manager Sexual offences including allegations of rape, historic abuse, grooming Andrew Trotter offences and familial offences. Practice Director Versatile and intuitive, with an excellent working familiarity with many Tony McDaid aspects of psychiatric and psychological evidence, she is renowned for her client care skills and ability to relate to people from all walks of life. Contact a Clerk Lynette is regularly counsel of choice in cases where the Defendant is Tel: +44 (0) 845 210 5555 known to be challenging or vulnerable due to her experience and ability Fax: +44 (0) 121 606 1501 to develop a rapport and communicate with the client. [email protected] Lynette is one of the few barristers with experience in applications for Habeas Corpus. Accredited under the Public Access Procedure. NOTABLE CASES R –v- F Represented defendant charged with riot during the Barton Arms incident where firearms were used R –v- Phillips Represented defendant charged with the theft of over £700k from cash machines R –v- I Defendant charged with assault who was arrested after fleeing the country.