Whiteboard for the 22 May 2008
Recent cases
Criminal law
Appeal against conviction on charge of sexual violation – whether juror misconduct - submission trial Judge wrongly dismissed a complaint that a juror had comforted complainant at the conclusion of her evidence – evidence that court-taker made remark to complainant that she "did really well" and this was falsely attributed to a jury member – submission Judge erred when making inquiry of juror because inquiry should have been conducted formally and on oath - whether evidence of improper juror pressure, in that letter, ostensibly written by juror, expressed doubts about verdict and stipulated author had only agreed to verdict in response to pressure from other jurors
HELD (inter alia): it would have been inappropriate for Judge to conduct a formal inquiry, on oath, into alleged comments made by juror to complainant – integrity of jury system relied on honesty and goodwill of those members of the community who were ready, willing and able to answer their summonses to serve – there was a real risk of juror alienation and dissatisfaction, which was contrary to interests of justice, if such inquiries were conducted formally and on oath – nature of inquiry conducted by Judge was thorough, transparent and appropriate – Judge was also satisfied that very brief contact between court-taker and complainant was innocuous – Judge’s omission to interview official in presence of accused and counsel did not vitiate or diminish determinative effect of his conclusion - Court-taker’s brief words of comfort, out of sight of jury, did not approach the type of egregious behaviour which caused CA to intervene in R v Burney [1989] 1 NZLR 732
Juror who had ostensibly written letter had not sworn an affidavit – on the assumption letter was authentic, the sequence apparently leading to its provision started with juror approaching trial counsel after verdict, expressing misgivings about verdict – counsel referred juror to appellant’s partner, who encouraged juror to write to Judge – counsel delivered letter to Court staff, but no further steps were taken, other than adoption of its contents to establish discrete ground of appeal – this process was wrong in every respect – proper approach was: - (1) immediately on being approached by juror, trial counsel should have advised juror to express her concerns in a letter to trial Judge – Counsel should not have discussed any issue of concern with juror or directed her to anybody other than trial Judge, and certainly not appellant’s partner – whilst not intending this result, counsel might have been guilty of a contempt of Court: A-G v Scotcher [2005] 1 WLR 1867; - (2) if registry had forwarded letter to trial Judge, he would have then determined what further steps were necessary, – in this case, with knowledge of the initial contact by juror, counsel should have made appropriate inquiries of registry and, if necessary trial Judge, to ascertain what steps had been taken; - (3) on learning Judge had taken no steps (presumably because registry did not forward it to him), counsel should have filed an application to CA seeking directions and leave to adduce evidence from juror – under no circumstances should counsel have participated in submitting material provided by a juror without the leave of CA or Crown’s agreement – notwithstanding failure to follow correct procedure submission treated as an application to allow letter to be regarded as evidence of exceptional circumstances which justified hearing evidence from juror – letter did not approach necessary threshold – at best it was evidence of a change of juror’s heart, or of her misgivings about verdict – further there were doubts about letter’s authenticity and independence
All grounds of appeal failed – appeal dismissed
R v Tainui (CA 653-07, 6 May 2008)
From the Telegraph
Law practitioners
The claimant was a solicitor who was seeking unpaid fees from the defendant client. The solicitor had done work for the defendant in relation to both private matters and matters for companies in which the defendant was involved, and through which the defendant gave instructions to the solicitor. The fees amounted to ₤150,000 of which ₤91,000 had been paid. The defendant claimed he had paid the solicitor for all the fees he owed and that he was only liable for the private work carried out, and not the commercial work. The issue was whether the defendant was liable for the unpaid fees of ₤59,000 in relation to both the private and commercial matters. The defendant’s evidence was honest and he assisted the court, whereas the solicitor’s evidence was held to be troubling. The solicitor’s argument that the defendant had accepted liability for both the private and company work was not plausible as it was not the type of agreement that a person in the defendants position would have agreed to. People who instruct lawyers to do work for a company do not normally accept personal liability for the fees. There was no written agreement which was surprising as the claimant was a lawyer. The solicitors claim failed.
Lygoe v Isley [2008] EWHC 831
Health practitioners
The defendant doctor had been charged with serious misconduct for issuing prescriptions in large quantities. The defendant was found not guilty of serious professional misconduct but the allegations were found to be proved and an order for interim conditional registration was made. The claimant then made an interim suspension order after looking at further complaints. There were two issues in this case. First, whether the interim suspension order on the basis that it was in the public interest was a drastic step which should only be applied in rare cases. Secondly, whether the interim suspension order should be terminated and not extended. It was held that the interim suspension order was proportionate and necessary for the protection of the public. Over prescribing controlled drugs was a serious abuse of a doctor’s position. The interim suspension order was appropriate and should be extended.
General Medical Council v Sathananthan [2008] EWHC 872 (Admin)
Notices & notes
Budget 2008
The core Budget documents are available on the Treasury web site. Most of these documents are tabled in Parliament by the Minister of Finance on Budget day.
2008 Dame Silvia Cartwright Lecture
The Auckland Women Lawyers' Association in conjunction with the Law Foundation invites you to a function to hear Imrana Jalal, lawyer and noted human rights expert, speak about her vision and passion for family law and human rights issues, and hear her experiences of working in and shaping family law and improving human rights for the Pacific.
Judge for yourself - concert
Auckland District Law Society and Atwaters Musicworks presents Judge for Yourself a concert showcasing the musical talents of ADLS members on Sunday 29 June 2008 at The Maidment Theatre, Auckland University, 2.00 pm.
Fulbright award applications due
Fulbright New Zealand Senior Scholar Awards are for academics, artists or professionals with distinction to lecture and/or conduct research in the US. Applications are encouraged from any discipline of New Zealand studies and this could include some aspects of New Zealand law.
Introduction to Dispute Resolution: 5 day programme
11 - 15 June 2008, Auckland
This programme is intended for people who have some qualifications, or experience that is relevant to the practice of Dispute Resolution and who would like to enhance their knowledge and to enter the AMINZ pathway to credentialing. The programme will cover the syllabus requirements for Associate membership of AMINZ, which focus on advice on and participation in ADR processes.
Animal Law Talk: An Indian perspective
A public lecture by leading animal advocate Raj Panjwani, hosted by the Faculty of Law and the Animal Rights Legal Advocacy Network (ARLAN).
Tuesday 3 June 2008 7pm - 8.15pm at The University of Auckland, Faculty of Law, Stone lecture Theatre, 17 Eden Crescent.
"The Law and Every Body "
Listen to VUW Law Faculty's PhD graduate Cordelia Thomas speak on Radio NZ's Nine to Noon programme about publicity surrounding "body-snatching" and its current legal context. She is a senior legal advisor for the bioethics council and has recenty completed a PHD on the collection, retention and use of human body parts.
Patent Law Reform - Getting it right to support and Drive Innovation
The New Zealand Centre of International and Economic Law's conference will be held on Thursday 29 May & Friday 30 May 2008 in Wellington.
The keynote speakers are Rochelle Dreyfuss, Pauline Newman Professor of Law, New York University and Daniel J Gervais, University Research Chair in Intellectual Property and Osler Professor of Law, University of Ottawa.
Youth Court information resources improved
Courts Minister, Rick Barker has launched a set of new information resources, developed to ensure that all people who interact with Youth Court are aware of the court process and what to expect.
Government fund to speed up finance company prosecutions
The government has agreed to allow criminal prosecutions against finance companies that have misled investors to be funded from the Securities Commission’s Litigation Fund.
Simpler business reporting on the cards
The government has given the green light to the implementation of Standard Business Reporting (SRB) which could significantly streamline firms’ reporting obligations to government, potentially saving businesses millions of dollars. Under the system, businesses will have to file financial and other business information for government only once, in a form that will then be distributed to relevant government agencies.
The threat from within: what to do when your data walks out the door
Anthony Drake, Senior Associate at Bell Gully discusses how staff turnover is teaming up with technology to present businesses and organisations with a growing threat of cyber theft.
UK law centres struggle
Time may be running out for the pioneering law centres movement, born 40 years ago at the high point of 1960s idealism. Jon Robins reports on the sector's struggle for survival in the UK.
Privacy Law Reform Resources
The Privacy Commissioner periodically reviews New Zealand’s Privacy Act with a view to offering recommendations for improvements. Occasionally other bodies, such as the Law Commission, also review aspects of privacy law. The Privacy Commissioner's website provides links so that you can access resources on the Privacy Commissioner’s and Law Commission’s reviews. They will also add information about bills before Parliament as these become available.
Central government: Results of the 2006/07 audits
The Auditor-General has presented his report "Central government: Results of the 2006/07 audits" to Parliament.
Final sitting for His Honour Judge McElrea
There will be a special sitting to mark the retirement of His Honour Judge McElrea.
Courtroom No. 7, Auckland District Court on Thursday 29 May 2008 at 4:00 pm.
All practitioners welcome.
Service for Norman Shieff
A memorial service will be held for the late Norman Shieff at Chancery Chambers on Sunday, June 1, 2008, 3:00pm - 5:00pm. All practitioners and members of the judiciary are invited to attend.
In 1989, Mr Shieff, who died last month aged 87, was instrumental in negotiating for ADLS the purchase of the landmark building which the society now occupies. One of the meeting rooms in Chancery Chambers is named 36
Mr Shieff in recognition of his significant contribution to ADLS.
For catering purposes, please advise of your intention to attend the memorial service to Eileen Yee.
President's breakfast
The President of the Auckland District Law Society invites members to hear from leading regulators and policy influencers of New Zealand. The breakfast sessions are aimed at delivering up to the minute legal and business information to lawyers practising in a range of disciplines.
Dates & speakers:
Wednesday 4 June - Bob Russell, CEO and Commissioner, Inland Revenue.
Employment Law Bar Dinner
The Employment Committee invites you to the Employment Law Bar Dinner at the Northern Club, 19 Princes St.
Thursday 12 June 2008
6:30pm pre-dinner drinks and 7:30pm dinner.
Hon Justice Anderson retirement dinner
Auckland District Law Society and the New Zealand Bar Association are holding a dinner in honour of Hon Justice Anderson's retirement from the Supreme Court.
Friday 13 June 2008, at the Northern Club, Princes St, Auckland.
7:00pm for 7:45pm Dinner.
RAMs Boardroom Bash
Kensington Swan invites Recently Admitted Members (RAMs) to a Boardroom Bash on Wednesday 25 June 2008.
Drink & refreshments form 5:30pm until 8:00pm at 18 Viaduct Harbour Ave, Auckland.
Given the overwhelming response and success of RAMs events, numbers will be strictly limited. Please RSVP no later than Friday 20 June to Eileen Yee.
1st New Zealand Bar Association International Conference
The 2008 New Zealand Bar Association Annual Conference will be held in Sydney this year, the weekend of Friday 15 and Saturday 16 August 2008. The Bar Association plans an exciting programme with input from the New South Wales Bar Association. The theme of the conference is A Global Approach to Law – Life as a Barrister in the 21st century.
Twenty years on from the Cartwright Report
Key figures involved in the cervical cancer inquiry will speak at a forthcoming conference marking the twentieth anniversary of the Cartwright Report. The one-day conference, "Twenty years after the Cartwright Report: What have we learned?", will be hosted by the Faculty of Law at The University of Auckland and held at the Hyatt Regency on 29 August.
In the news
McKenzie-Minifie, Martha. "College appeals for right to expel student". New Zealand Herald, 20 May 2008, page A1 discusses J suing by his litigation guardian v Bovaird & Anor [2007] NZAR 660
Internet sites
FORA.tv
Want to know more about the vast political changes that have occurred in southeastern Europe over the last century? How about the challenge of Jerusalem or about doping and the future of cycling? The FORA.tv site is distinguished by its thought-provoking content. The site provides access to hundreds of delightful talks, conversations, conferences, debates, and more than a few stimulating arguments. Along the top of the site's homepage, visitors are presented with a selection of their latest materials. These are always current and intriguing, and the number of visual elements that the site incorporates makes it both easy to use and navigate. First-time visitors to the site can take a look through the "Popular Programs" section, and then maybe they might want to look over the FORA.tv blog.
This Whiteboard update was provided by the ADLS Library & Research Centre
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