Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

scholarly journals Liability for Manslaughter by Omission: Don't Let the Baby Drown!

2010 ◽  
Vol 74 (2) ◽  
pp. 163-179 ◽  
Author(s):  
Catherine Elliott
Keyword(s):  
Common Law ◽  
Moral Values ◽  
The Other ◽  
Duty Of Care ◽  
Trial Judge ◽  
House Of Lords ◽  
The Common ◽  
The Law

By removing the common law rules on a duty to act from liability for manslaughter by omission, the law would more accurately reflect the intention of the House of Lords in R v Adomako (1995). The current duplicitous requirement of both a duty to act and a duty of care appears to be confusing both the trial judge and the jury. The causing of a harm by an omission does not automatically mean the conduct was less morally reprehensible than where harm is caused by an act and this reform would therefore potentially bring the law more closely into line with society's moral values. The law would be rendered clearer and simpler and injustices would be avoided due to the other requirements of the Law Commission's proposed offence of killing by gross carelessness, including causation and gross carelessness. Through this reform justice could at last be offered should a stranger choose to walk by a drowning baby.

scholarly journals Property Rights of Husband and Wife: A Brief Survey

1969 ◽  
pp. 39
Author(s):  
Suraj Khetarpal
Keyword(s):  
Property Rights ◽  
Common Law ◽  
Palm Tree ◽  
Judicial Discretion ◽  
The Future ◽  
The Common ◽  
The Law ◽  
Husband And Wife

Under the Common Law a wife on marriage endowed her husband with all her worldly goods, and she also renounced all rights of ownership of any property she then, or in the future, might possess. The author examines the legislative departures from this position in England, Canada, Singapore and India. After establishing that the courts will apply "palm tree justice" where no definite intention as to the manner of ownership of property is ascertainable, the author concludes that this uncertainty in scope of judicial discretion should be removed as far as possible from the law.

1. Introduction to Equity

2019 ◽  
pp. 3-22
Author(s):  
Paul S Davies ◽  
Graham Virgo
Keyword(s):  
Property Rights ◽  
Common Law ◽  
Corporate Law ◽  
The Body ◽  
Judicial Discretion ◽  
Fair Result ◽  
Personal Rights ◽  
The Common ◽  
The Law ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the concept of Equity and defines it as the body of law that has been made and developed by judges in the Chancery courts to modify the rigid application of the common law. It is grounded on rules, principles, and doctrines that are strictly interpreted, but their application and the remedies awarded can be tempered by the exercise of judicial discretion to ensure a just and fair result. It plays an important role in many contemporary aspects of the law, including commercial and corporate law. A distinction between property rights and personal rights lie at the heart of Equity, and there exists no substantive fusion between Common Law and Equity as bodies of rules — even if their administration has been conjoined into a single procedural system. The chapter also discusses a variety of equitable maxims that are useful generalizations of complex law.

The Indian Evidence Act and Recent Formulations of the Exclusionary Discretion in Singapore: Not Quite Different Rivers into the Same Sea

2018 ◽  
Vol 15 (1) ◽  
Author(s):  
Siyuan Chen ◽  
Eunice Chua
Keyword(s):  
Common Law ◽  
Judicial Discretion ◽  
Relevant Evidence ◽  
General Power ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Discretionary Powers

Abstract Sir James Fitzjames Stephen’s Indian Evidence Act of 1872 continues to govern the law of evidence in almost a dozen common law jurisdictions today. But the fundamental features of the IEA would undoubtedly be considered anomalous when viewed against modern notions of relevance and admissibility, foremost of which are the fact that the statute represents an attempt to codify relevance exhaustively in an inclusionary, rather than exclusionary way, and the judicial discretion to exclude relevant evidence finds no obvious expression in any of its provisions. The IEA has thus had a strained relationship with the common law, especially since judicial powers assume much greater importance in the latter realm. Recent legislative and jurisprudential developments in Singapore (a jurisdiction which has adopted the IEA) have attempted to minimise the applicability of the statute’s relevancy provisions and confer greater discretionary powers on the courts to exclude evidence. The result is that there are now at least five formulations of the court’s general power to exclude evidence, and this article considers if these formulations cohere inter se, and whether any of them can co-exist harmoniously with the IEA’s admissibility paradigm, given that its raison d’être has always been to simplify the admissibility process through exhaustive codification.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

scholarly journals Transparency in corporate governance: Extent of directors duty to declare interest in company’s transactions

2015 ◽  
Vol 11 (1) ◽  
pp. 137-148 ◽  
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Corporate Governance ◽  
United Kingdom ◽  
Comparative Analysis ◽  
Common Law ◽  
Men And Women ◽  
Legal Personality ◽  
The Common ◽  
The Law ◽  
Important Position

The realization that the directors occupy important position in corporate governance, and as business men and women, cannot be prevented from having dealings with the company, demand a close scrutiny of corporate transactions in which they are directly or indirectly involved or have an interest to ensure that such interest is not placed above their duty to the company. One of the ways in which the law strives to achieve this balance is by imposing a duty on the director to disclose to the board any interest he has in company’s transactions. This requirement which was previously governed by the common law and the company’s articles, is presently increasingly finding a place in companies statutes in different jurisdictions. The paper examines, through a comparative analysis, the provisions on the duty of the director to disclose interest in company’s transactions in South Africa and United Kingdom with the aim of discovering the extent to which the statute in both jurisdictions upholds the common law prescriptions. The paper argues that the need for transparency in corporate governance and the preservation of the distinct legal personality of the company demand that the duty to disclose interest should be upheld even in those cases of companies run by a sole director.

Dangerous things and the Non-Natural User of Land

1929 ◽  
Vol 3 (3) ◽  
pp. 376-397
Author(s):  
W. T. S. Stallybrass
Keyword(s):  
Common Law ◽  
True Nature ◽  
Moral Qualities ◽  
The Common ◽  
Per Se ◽  
The Law

It is perhaps true that one of the most important moral qualities of a man, especially an undergraduate, is a knowledge of where to ‘draw the line’; it is certainly true that one of the most essential parts of a lawyer's equipment is the capacity for drawing distinctions correctly. The whole framework of the law is based upon distinctions, and the drawing of false distinctions is as disastrous as is the failure to draw those that are based upon sound reasoning. It is the object of this article to consider, very tentatively, two distinctions which have been introduced into the common law relating to injury done to others by the property of the defendant: in the first place, the distinction between those things which are dangerous per se and those things which are dangerous sub modo, and in the second place, the distinction between the natural and the non-natural user of land. I shall then endeavour to consider the relation of these two problems to each other. But there will be no attempt to state the nature or extent of the liability that arises; for example, I shall not consider the true nature of the rule in Rylands v. Fletcher or the extent of the duty owed by him who deals with dangerous chattels, though some light may incidentally be thrown upon such matters.

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