Article

Incorporated Law Firms: The Practical and Ethical Considerations

By Brendan Wright

Approximately every twenty-five years, New Zealand’s Parliament passes legislation that seeks to regulate the legal profession in this country. This process represents an opportunity to modernise fundamental elements of the profession and address the challenges posed by modern-day legal practice. To this end, the Lawyers and Conveyancers Act 2006 has brought in a number of highly significant changes that will alter the way in which law is practised in New Zealand. This article addresses just one of these changes.

Article

Awarded the MinterEllisonRuddWatts Writing Prize

Sex, Drugs and Consent: A Recommendation for Rape Law Reform in Light of Issues Raised by Drug Rape

By Marika Eastwick-Field

Rape is a terrible crime. For many of us, the word “rape” evokes a strong visceral reaction. Because of the recognition of its inherently invasive and destructive nature, rape has come to be utilized during war as a systematic and deliberate policy to lower the morale and resistance of the enemy side. The fact that both the United Nations and The Hague have declared this use of rape as being so contrary to human rights that it qualifies as a war crime highlights the horrific nature of sexual violation. Unfortunately, even in times of peace, incidents of rape are frequent and widespread. The circumstances in which rape occurs are consequently diverse. At one end of the scale is the stereotypical “stranger rape” scenario in which violent force is used to procure sexual intercourse, often from a randomly selected victim. Although this is the scenario that instils the greatest fear in the hearts of protective parents and solitary female joggers, stranger rape is in fact one of the rarest forms of rape.’ It is also legally uncomplicated and represents the small percentage of “easy cases”. It is the situations that lie at the other end of the scale that cause the most controversy and difficulty in the law.

Article

Double Taxation Agreements: New Zealand’s Approach to Treaty Shopping

By Louisa Boyd

This article examines New Zealand’s approach to treaty shopping. New Zealand is a member of the Organisation for Economic and Co-operative Development (OECD). New Zealand’s tax treaties, like almost all tax treaties, are based on the OECD Model Tax Convention on Income and on Capital (“Model Convention”). Tax treaties provide tax benefits to residents of the contracting states, such as reduced rates of withholding tax. Non-resident taxpayers that fall outside the scope of a treaty obtain the treaty benefits by treaty shopping, that is, by creating and utilizing other entities, conduits, in a treaty state to carry out the commercial activities in the other contracting state. This article discusses the concept of treaty shopping and explains why the OECD considers it harmful. This article also discusses the OECD’s response to treaty shopping and outlines the countermeasures that have been taken in New Zealand’s tax treaties.

Article

Designing Human Rights Legislation: ‘Dialogue’, the Commonwealth Model and the Roles of Parliaments and Courts

By Sara Jackson

New “hybrid” models of bills of rights have emerged with the explicit aim of providing effective protection for fundamental rights within the paradigm of parliamentary sovereignty. This article examines whether the new model provides a better, or at least equally appropriate, balance between human rights and democratic concerns.

Article

An Analysis of Preventative Detention for Serious Offenders

By Peter Marshall

This article acknowledges that preventive detention is, in extreme cases, morally justified. Without focusing on the reform of any particular sentencing regime, it argues for stricter limits on the imposition and management of preventive detention, depending on the jurisdiction. Identified and discussed are the practical, moral and legal concerns that must always remain in the forefront of judicial and political thought on preventative detention.

Article

Documentary Credits: The Autonomy Principle and the Fraud Exception

By Felicity Monteiro

The essential thesis of the article is that the fraud exception to the autonomy principle should be based on an implied term in the contract between the applicant and the issuing bank. According to this conceptualization, the letter of credit is a mandate for the bank to make payment. The bank has no mandate to pay, however, when there is clear evidence of fraud on the documents. This approach to letters of credit was introduced by Rix J in Czarnikow Rionda Sugar Co v Standard Chartered Bank London Ltd. The approach is bolstered by the domestic banking law which supports a contractual approach and a duty of care owed by the bank to withhold payment when it has clear notice of fraud. It is hoped that New Zealand will adopt this approach.

Case Notes

The Co-conspirators Exception to the Hearsay Rule in New Zealand

R v Qui [2007] NZSC 51

By Sean Kinsler

The co-conspirators exception to the hearsay rule was nearly lost to the new Evidence Act 2006, but Parliament's Justice and Electoral Committee saw it, and saw that it was good. The Supreme Court's decision in R v Qui clarifies the operation of the rule at common law, which is now preserved in a new section 12A of the Code. Qui also ends the Crossan case’s gloss on section 330(1) of the Crimes Act 1961, and the arcane pleading of duplicity in the framing of counts should now function as Parliament intended. This note examines the co-conspirators exception to the hearsay rule, before some concluding remarks on the other grounds of appeal — the adequacy of the trial judge’s jury directions and the rule against duplicity.

Putting it to the Jury: Has R v Coutts Imposed Too Great a Burden?

R v Coutts [2006] 4 All ER 353

By Blair Keown

When a trial judge sums up to a jury, he walks a tightrope between specificity and generality. A summing up which explores the peripheral at the expense of identifying the real issues for determination is prone to appellate court criticism for wasting the precious commodity of juror attention. Yet an overly-focussed summing up risks taking issues away from the jury and intruding into the exclusive domain of the fact finder. In R v Coutts the House of Lords has removed some of the guesswork from this dichotomy by articulating a general requirement for trial judges to put lesser alternative offences to a jury where there is a sufficient evidential basis for so doing. In holding that this requirement extends to all but trivial alternative offences and applies notwithstanding the objections of counsel, their Lordships have given cause to consider whether in giving clarity with one hand, they have imposed an additional burden on trial judges with the other.

Applying the Bill of Rights in the New Zealand Context

Hansen v R [2007] NZSC 7

By Meredith Webb

In Hansen v R, the Supreme Court has answered some of the outstanding questions relating to the use of the New Zealand Bill of Rights Act 1990 (Bill of Rights) in relation to other enactments. The consideration of the Bill of Rights operation has also demonstrated some reasonably strong differences in perspective within the Court. In doing so it has also raised issues for future discussion.

The Trinity Scheme: Accent Management v CIR [2007] NZCA 230

By Shane McGregor

This case raised the predicament that is the hallmark of tax avoidance cases in New Zealand: namely, which part of the Income Tax Act 2004 takes priority, the general anti-avoidance provisions or the specific tax rules?

Legislation Note

Evidence in Criminal Law: Codification and Reform in the Evidence Act 2006

By Peter Williams

Book Review

Medical Law in New Zealand – Skegg and Patterson (eds)

By Claire Allen