Article

The Veracity of Witnesses in Civil and Criminal Proceedings: Section 37 of the Evidence Act 2006

By Peter Marshall

Assessments of veracity are fundamentally important to the determination of legal proceedings. The common law trial is oral in nature, with evidence predominantly adduced through the testimony of witnesses who verbally recount their recollection of facts or depose to the authenticity of relevant Documents. Most evidence is imbued with an undoubtedly human quality. “Human evidence”, Lord Pearce noted, “shares the frailties of those who give it”. Since fact-finding involves decision-making on the basis of probabilities rather than certainties, anything that affects the likelihood that a witness is telling the truth affects the probability of the existence of the testimonial facts asserted.’ In criminal trials especially, verdicts are often based on which witnesses are believed. An evaluation of the veracity of witnesses is a critical component in the trier of fact’s process of assessing and weighing the evidence. This article examines the separate and distinct body of law governing the impeachment of the veracity of witnesses, other than the accused, in criminal and civil trials.

Article

A Fine Balance? Delegation, Standards of Review, and Subsidiary in WTO Dispute Settlement

By Matthew Windsor

The need for global governance in the absence of global government is a fundamental reason for sovereign states to delegate authority to supranational regulatory institutions. However, the aphorisms that “[a]ll politics is local” and “all economics is international”‘ highlight a perennial tension in multilateral trade governance under the auspices of the World Trade Organization (“WTO”). An effective mediating principle that balances domestic regulatory preferences with trade liberalization imperatives would increase the legitimacy of the WTO and its accountability to Member States. The central thesis of this article is that the introduction of a subsidiarity standard of review principle would have these legitimacy and accountability effects. It would recognize the need for deference in some situations to Member State interpretations of WTO law, within a larger paradigm of co-operation. Although it has been discussed at a theoretical level in the WTO context, there has been remarkably little consideration of subsidiarity in relation to WTO dispute settlement and standards of review.

Article

From Nuremberg to The Hague: The Civilizing Mission of International Criminal Law

By Claire Nielsen

Civilization. A term so readily and evocatively invoked by the Chief Prosecutors at the unprecedented trials of individuals under international law before the Nuremberg and Tokyo Tribunals after World War II. What is meant, though, by “civilization”? Why did the Chief Prosecutors assume that the prosecution of individuals for international crimes vindicated and affirmed civilization? Who falls within the ambit of the term? Who is excluded? The aim of this article is to explore the significance of civilization in international criminal law. It suggests that international criminal law, and its animating concept of individual responsibility for international crimes at international law, is imperialistic.

Article

Awarded the MinterEllisonRuddWatts Writing Prize

Deal Protection in Takeovers: A New Zealand Perspective

By James Donovan

Companies seeking to make an acquisition, whether by takeover, amalgamation, or scheme of arrangement, have an understandable interest in increasing the likelihood of their proposal’s success. There are a number of alternative methods to achieve this, including increasing the offer price or entering into arrangements with major shareholders to ensure their support. In this article, the focus is upon methods of protecting a proposal involving contractual undertakings negotiated with the target company’s board of directors. Such undertakings have been a common feature of the market for corporate control in the United States since the 1980s, but only in recent times have they become popular in New Zealand. This article will discuss the challenges these deal protection devices raise and how the law in New Zealand might rise to meet these challenges.

Article

The Five Phases of Company Taxation in New Zealand: 1840-2008

By Annie Cho

This article traces the history of the company income tax in New Zealand from 1840, through its various phases of development, to the modern form of the tax in 2008. A consideration of the taxation of companies also involves consideration of the tax treatment of their shareholders, because, although the company is at law a separate person, it is inextricably linked with its shareholders in an economic sense. As Oliver and Plunket have observed, “a company is not an economic entity in its own right, it is merely a vehicle through which individuals make their investments”. This article, therefore, focuses on the inter-relationship between the tax treatment of companies and their shareholders and also explores the economic, social, and political reasons for particular changes in company taxation.

Article

Less Than Legal Force? An Examination of the Legal Control of Police Use of Force in New Zealand

By Lisa Wansbrough

The power to use force is both one of the most important and one of the most problematic aspects of the police’s role. While few would question the necessity of such a power in contemporary policing, the police use of force is often the subject of controversy and intense scrutiny by human rights groups, the media, and the public at large. This is hardly surprising given the extraordinary nature of this power and the “numerous ethical, procedural and legal dilemmas”‘ that it creates. One of the greatest dilemmas posed by the power to use force is the problem of how to ensure effective legal control and accountability over its use. It is a fundamental principle of our legal system that the actions of agents of the government should be carefully prescribed by law.

Case Notes

Tax Secrecy: The Westpac Case

Westpac Banking Corporation Limited v Commissioners of Inland Revenue [2008] NZSC 24

By Sej Vather

The issue before the Supreme Court in Westpac was whether secret information relating to one taxpayer could be used by the Commissioner of Inland Revenue in litigation against another taxpayer. The Commissioner, in previous investigations, had obtained confidential tax documents from Westpac and ANZ National, and now sought to use those documents in litigation against an unrelated taxpayer, the Bank of New Zealand.

The Relevance of Privacy Concerns to a Charge of Disorderly Behaviour

Brooker v Police [2007] NZSC 30

By Simon Elliot

In Brooker v Police, the Supreme Court considered the relevance of privacy concerns to a charge of disorderly behaviour pursuant to section 4(1)(a) of the Summary Offences Act 1981. The case involved protest action — an exercise of the right to freedom of expression protected by section 14 of the New Zealand Bill of Rights Act 1990. Each Justice rendered a separate judgment. The decision of the Court will be discussed with particular emphasis on the consideration of privacy concerns. It is argued that there are certain unsatisfactory elements in the decision and that the divergence between judgments leaves the law in an undesirable state of uncertainty

Putting the Heat on Public Authorities: The Supreme Court Mandates a Shot at Accountability

Couch v Attorney-General [2008] NZSC 45

By Donna-Maree Cross

The High Court and Court of Appeal have traditionally been reluctant to find a cause of action in negligence where the defendant is a public authority, where the case is of omission as opposed to commission, and where the immediate wrongdoer is a third party. In April 2007, the Supreme Court first considered, on a strike out basis, a case that involved all three of these elements: Couch v Attorney-General. In June 2008, it unanimously found that Susan Couch’s negligence claim against the Probation Service for injuries she suffered at the hands of William Bell should not be struck out: the Supreme Court was not prepared to rebuff the asserted cause of action without appropriate testing. Beyond this conclusion, however, the Supreme Court was divided: the majority of Blanchard, Tipping, and McGrath JJ separated from Elias CJ and Anderson J as to the approach to be taken in ascertaining whether a duty of care can arise in these circumstances.

Legislation Note

The Copyright (New Technologies) Amendment Act 2008 and New Zealand’s Notice-Takedown Regime

By Tom Hallett-Hook

Book Reviews

Rediscovering the Law of Negligence – Allan Beever

By Sean Kinsler

New Zealand Family Law in the 21st Century – Brinsley D Inglis QC

By Berry Zondag