Article

Awarded the MinterEllisonRuddWatts Writing Prize

The Potential Contribution of Neuroscience to the Criminal Justice System of New Zealand

By Sarah Murphy

Descriptions of “neurolaw”, the legal discipline governing the intersection of law and neuroscience, span a continuum from “contribut[ing] nothing more than new details” to ushering in “the greatest intellectual catastrophe in the history of our species”. This controversy is not unwarranted. The “technological wizardry” of modern neuroscience tracks the movement of fluids and electrical currents, revealing both structure and organic functioning, and is the closest humans have come to “mind reading”. This article analyses neuroscience’s potential contribution to the law of evidence.

Article

Virtue and Vindication: An Historical Analysis of Sexual Slander and a Woman’s Good Name

By Alice Krzanich

Reputation is a tricky thing. Intangible, made of words and capable of being twisted: all of these elements of a reputation impact upon a person’s good name. The loss of a good name can be startling. Shame and disgrace go hand in hand with failed business, lost friendships and other ruined prospects. For a long time in history, women were haunted by a particular brand of defamation that was pernicious in its effect. This was sexual slander, the verbal accusation that a woman had engaged in immoral or unchaste behaviour, such as adultery or premarital sex. For women of the 19th century, such slander was a cause of great stress and anxiety, a means by which very real damage could occur. Yet the law dictated that only those utterances that caused special damage — or actual material loss — were actionable. For women, often suffering intangible harm, this limitation effectively barred redress. Numerous common law jurisdictions in the 19th century consequently took steps to address this issue. The first part of this article adopts a comparative outlook in discussing these attempts. They show that legislation, as a form of legal change, had virtues that case law development lacked.

Article

Tax Treaties with Tax Havens: The Hidden Tax Break

By Kyle Rainsford

One of the founding principles of democratic government is that voters should be free to determine collectively the levels of taxation and spending. A necessary corollary of this principle is that voters should be informed of where the tax burden lies. New Zealand’s recently adopted double tax agreement (DTA) with Hong Kong flouts this principle, by introducing a selective, and hidden, tax break into the tax system. DTAs or, more colloquially, “tax treaties”, are designed to ameliorate the problem of double taxation. Double taxation occurs when the tax systems of two or more countries overlap and a person is subject to taxation in both jurisdictions. To prevent double taxation, DTAs set boundaries on these two tax systems to ensure that only one has the ability to impose tax.

Article

The Road to Nowhere: An Account of the Increase in New Zealand’s Rate of Incarceration between 1999 and 2009

By Stephen Parry

Imprisonment is central to the story of crime and punishment in the cultural imagination of 21st century New Zealand. While the presence and necessity of prisons are scarcely ever questioned, there is a notable hole in the narrative about what happens inside prisons and about what function prisons serve. A criminal is apprehended, convicted and upon being sentenced, vanishes. While as a society we are quite willing to deposit our “undesirables” out of view into the “abstract site” of the prison, the obvious problem is that “ … in all but a small number of cases at some point the offender must re-enter society”. Unfortunately, released prisoners are not reformed by the same magic that makes them disappear. Nor, indeed, are the systemic social issues that contributed to their imprisonment in the first place.

Article

Public Law Values in the House of Lords — In an Age of Counter-Terrorism

By Max Harris

This article examines the judicial reasoning of the United Kingdom House of Lords in cases touching on counter-terrorism issues that were decided between 2004 and 2009. Rather than “judging the judges” critically or bringing together the case law for the purpose of compiling empirical trends,’ the article uses these cases to explore the Law Lords’ approach to various issues of human rights in an age of counter-terrorism and to investigate deeper questions about the nature of judicial adjudication. It adapts a framework devised by David Feldman just over two decades ago, and seeks to identify, as Feldman did in 1990, some of the “public law values” lying beneath the Law Lords’ decisions. In what follows, the term “public law values” is understood to refer to certain entrenched philosophical convictions about aspects of public law held by the Law Lords consistently across the cases — convictions on which the Law Lords pivot throughout the course of their reasoning.

Article

The Statutory Duty of Care, Diligence and Skill Owed by Financial Advisers

By Andrew Durrant

In the 4 years between 2006 and 2010 over 60 finance companies collapsed in New Zealand. The investors in these companies suffered significant losses, in some cases as much as 90 per cent of the funds invested. To a certain extent, these losses can be attributed to the poor lending practices adopted by finance companies. However, it must be remembered that these companies were set up to facilitate high-risk lending. There is a legitimate market for such lending. It is merely a matter of which investors should provide the funding for this market.

Article

The Anglicisation of English Law

By Gillian Gillies

Paradoxically, “[t]he very Englishness of English law ... may be attributed to the strange fact that mediaeval ... lawyers spoke French in court” (footnotes omitted). So observes Maitland in his “Introduction” to the Year Books. The use of French as the language of English law actually increased as its use as a vernacular language in England diminished. In fact, French remained a legal language long after it had disappeared completely from everyday life in England. Isolated within the closed profession of the law, the French of English law was thereby able to develop specialised meanings and become its own technical dialect, known as Law French. Even as late as the 17th century, the English lawyer and Law French continued to be thought by some to be coincident: “one will not stand without the other”. This article seeks to examine the process of official Anglicisation of the English Law, with particular focus on the statutes for the eradication of Law French.

Article

International Law of the Sea: Applying the Doctrine of Hot Pursuit in the 21st Century

By Randall Walker

The doctrine of maritime hot pursuit, codified in art 111 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), recognises that a vessel, if it has committed a violation of the laws of a foreign state while in that state’s sovereign or territorial waters, may be pursued onto the high seas and seized. The essential thesis of this article is that the doctrine of hot pursuit is increasingly being left behind by technological advancements, as well as by the shifting priorities and policy interests that underpin the modern law of the sea. As such, without a liberal and purposive judicial interpretation, art 111 is likely to prohibit, rather than promote, more effective law enforcement procedures.

Article

Protection or Prosecution for Omar Al Bashir? The Changing State of Immunity in International Criminal Law

By Jessica Needham

On 4 March 2009, the International Criminal Court (ICC) made its most far-reaching and controversial decision since its establishment in 2002, when it issued the first of two arrest warrants for the current President of the State of Sudan, Omar Hassan Ahmad Al Bashir (Al Bashir). Al Bashir has allegedly committed war crimes, crimes against humanity and genocide during an internal conflict in the western region of Sudan, Darfur between March 2003 and July 2008 . The ICC has widely circulated the arrest warrants with requests for cooperation to authorities in Sudan, all states parties to the Rome Statute of the International Criminal Court (Rome Statute) and all member states of the United Nations Security Council (Security Council).

Case Notes

Avoidance: Penny v Commissioner of Inland Revenue

By Christopher Jenkins

It was once observed by Diplock LJ that “[t]here are few greater stimuli to human ingenuity than the prospect of avoiding fiscal liability”. Tax avoidance is as much about simplicity as ingenuity. The rule against avoidance is known as the general anti-avoidance rule (GAAR). It simply states that “[a] tax avoidance arrangement is void as against the Commissioner for income tax purposes”, and, in a roundabout way, defines avoidance as avoidance. Unsurprisingly, there has been much litigation over what is avoidance, and what is not. Diplock LJ had in mind the ingenuity of taxpayers. In Penny v Commissioner of Inland Revenue, the ingenuity came not from the taxpayers, but from the judges. The straightforward structures adopted by the taxpayers were “entirely lawful and unremarkable” in the eyes of the Supreme Court. And yet the Court concluded that the use of those structures constituted avoidance. This note explains how the Court reasoned from one side of the GAAR to the other, and analyses the implications of its decision.

Perlustration in the Pathless Woods: Hamed v R

By Samuel Beswick

When retreating to a secluded forest one expects to escape the intrusions of modern society. At the same time, there is an acceptance that one’s activities, not hidden behind walls or beneath covers, may still be observed by passersby. But what are the implications when one’s activities are targeted and captured by unmanned surveillance cameras covertly installed by law enforcement officers?

R v Steigrad

By Bradley Aburn

In R v Steigrad, the Court of Appeal examined the liability of directors, under s 58 of the Securities Act 1978 (the Act) for issuing a prospectus that subsequently became untrue due to a change in circumstances. The Court decided that the underlying purpose of the Act, which is investor protection, was best served by extending liability under s 58 to include subsequently false statements, subject to the common law defence of “no fault”. The case is relevant for all company directors who are involved in issuing securities to the public. Such directors should be on notice that their obligation to their investors to provide accurate information is a continuing obligation.

Morse v Police

By Justin Harder

In Morse v Police, the Supreme Court re-examined the tension between freedom of speech and the offence in s 4(1)(a) of the Summary Offences Act 1981. In Morse, the Supreme Court was required to determine when flag burning as a means of expressive behaviour could properly be criminalised as “behaving in an offensive manner”. The five separate judgments were unanimous on three points: that the offence requires an objectively sufficient disruption of public order; that the trial miscarried; and that no retrial should be ordered. What remains unsettled is how a “sufficient disruption of public order” is to be determined.

Legislation Notes

The Copyright (Infringing File Sharing Amendment Act) 2011: A Fair and Effective Regime?

By Patricia Ieong

Third-Party Violence Against Children: The Crimes Amendment Act (No 3) 2011

By Nicole E Copeland

Book Review

A Simple Nullity? The Wi Parata Case in New Zealand Law and History – David V Williams

By Olivia de Pont