scholarly journals Unrewarded donors: The search for victims in the wake of Kapa

2021 ◽  
Author(s):  
◽  
Ayla Saroz
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Criminal Law ◽  
Critical Analysis ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Criminal Offending ◽  
Definition Of

<p>This paper provides a critical analysis of the sentence of reparation in New Zealand, as set out by s 32 of the Sentencing Act 2002. The scope of the sentence is examined with particular regard to the recent Supreme Court decision, which limited reparation so that only victims of offences can benefit from the sentence. The definition of “victim”, as determined by the Sentencing Act, is confined to direct victims of criminal offending. Thus, any indirect victim suffering harm or loss from criminal offending cannot benefit from reparation. This paper questions whether that limitation gives reparation an appropriate scope, or whether some extension should be made so that the sentence is not restricted in its application to only benefit direct victims. In so doing, this paper argues that the criminal law is the suitable domain to address such issues of compensation and therefore, an extension of the reparation sentence is required. Alternative ways of limiting reparation to address this compensation issue are outlined. Ultimately it is proposed that an additional provision should be included within the definition of “victim”, for the purpose of s 32, so that indirect victims can also benefit from a sentence of reparation.</p>

scholarly journals Unrewarded donors: The search for victims in the wake of Kapa

2021 ◽  
Author(s):  
◽  
Ayla Saroz
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Criminal Law ◽  
Critical Analysis ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Criminal Offending ◽  
Definition Of

<p>This paper provides a critical analysis of the sentence of reparation in New Zealand, as set out by s 32 of the Sentencing Act 2002. The scope of the sentence is examined with particular regard to the recent Supreme Court decision, which limited reparation so that only victims of offences can benefit from the sentence. The definition of “victim”, as determined by the Sentencing Act, is confined to direct victims of criminal offending. Thus, any indirect victim suffering harm or loss from criminal offending cannot benefit from reparation. This paper questions whether that limitation gives reparation an appropriate scope, or whether some extension should be made so that the sentence is not restricted in its application to only benefit direct victims. In so doing, this paper argues that the criminal law is the suitable domain to address such issues of compensation and therefore, an extension of the reparation sentence is required. Alternative ways of limiting reparation to address this compensation issue are outlined. Ultimately it is proposed that an additional provision should be included within the definition of “victim”, for the purpose of s 32, so that indirect victims can also benefit from a sentence of reparation.</p>

scholarly journals The Contractual Interpretation of Tipping J

2016 ◽  
Vol 47 (2) ◽  
pp. 227
Author(s):  
Matthew Barber
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
The Other ◽  
Court Decision ◽  
The Supreme Court ◽  
Comprehensive Examination ◽  
The Future ◽  
Lower Courts ◽  
The Way

In the Supreme Court decision of Vector Gas Ltd v Bay of Plenty Energy Ltd, Tipping J put forward an approach to contact interpretation that, while indebted to that of Lord Hoffmann, was expressed differently and promoted the use of evidence of prior negotiations. Despite not gaining the support of any of the other sitting judges, this approach was swiftly taken up in the lower courts and, until recently at least, seems to have been accepted as representing New Zealand law. This article attempts a comprehensive examination of Tipping J’s approach. It concludes that, while coherent in principle, the detail of the approach is flawed in a number of ways, especially the way in which evidence of subsequent conduct is assumed to work. The future of Tipping J’s approach is considered.

Taxes versus Fees: Lead Paint and LLCs

2007 ◽  
Vol 5 (1) ◽  
pp. 57-78 ◽  
Author(s):  
Kathleen K. Wright ◽  
Stewart S. Karlinsky
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Simple Majority ◽  
Broad Definition ◽  
Lead Paint ◽  
Definition Of

This paper discusses the rather blurred distinction between fees and taxes, particularly for states like California where enactment of a tax requires a two-thirds vote while fees can be enacted with a simple majority. We discuss the California Supreme Court decision in Sinclair Paint wherein the Court adopted a broad definition of a fee. Many taxpayers feared that this would open the flood gates for enactment of fee legislation both in California and nationwide. We examine recent legislative and judicial trends in enactment of fee legislation and court interpretations following Sinclair Paint. The data shows that the Legislature is actively pursuing all types of fee legislation as budget dollars do not stretch far enough to cover program expenditures. Courts are continuing the Sinclair Paint trend of broadly defining fees. The result seems to be an ever increasing fee burden on businesses and taxpayers.

scholarly journals Third Party Consent Searches Following the Search and Surveillance Act

2012 ◽  
Vol 43 (3) ◽  
pp. 447
Author(s):  
Sam McMullan
Keyword(s):  
United States ◽  
New Zealand ◽  
Property Rights ◽  
Supreme Court ◽  
Living Arrangements ◽  
Supreme Court Decision ◽  
The United States ◽  
Third Party ◽  
Court Decision ◽  
The Supreme Court

Many New Zealanders live in shared living arrangements. The result of this is that reasonable expectations of privacy are becoming more limited. State officials may conduct a lawful search where a person consents to such a search if that person has the authority to consent. Where people live in shared living arrangements, several people may have authority to consent to a search of the same property. This article explores the extent of a third party's power to consent to property searches where more than one person has authority to consent to a search under the Search and Surveillance Act 2012. It argues that the question of reasonable expectations of privacy should not be assessed by reference to property rights. It also considers the concept of "apparent" authority which has arisen in New Zealand from the Court of Appeal's decision in R v Bradley as well as the concept of a present and objecting occupant which has arisen in the United States in the Supreme Court decision of Georgia v Randolph.

scholarly journals ANÁLISE CRÍTICA DA DECISÃO DO SUPREMO TRIBUNAL FEDERAL NO JULGAMENTO DO RECURSO EXTRAORDINÁRIO 590415/SC: A QUESTÃO DA RENÚNCIA GENÉRICA A DIREITOS ORIUNDOS DA RELAÇÃO DE TRABALHO MEDIANTE ADESÃO A PLANO DE DEMISSÃO VOLUNTÁRIA -- CRITICAL ANALYSIS OF THE BRAZILIAN SUPREME COURT DECISION IN THE LEADING CASE 590415/SC: THE GENERAL WAIVER OF RIGHTS ARISING FROM THE EMPLOYMENT RELATIONSHIP IN THE PLAN PREVIOUSLY APPROVED BY THE COLLECTIVE BARGAINING

2016 ◽  
Vol 17 (1) ◽  
pp. 213-236
Author(s):  
Rodrigo Garcia Schwarz ◽  
Rogério Luiz Nery da Silva
Keyword(s):  
Collective Bargaining ◽  
Supreme Court ◽  
Critical Analysis ◽  
Supreme Court Decision ◽  
Employment Relationship ◽  
Court Decision

Resumo: Neste trabalho tem-se por escopo analisar a decisão proferida pelo Supremo Tribunal Federal no Recurso Extraordinário 590415/SC, que afirmou, com repercussão geral, em sentido contrário aos precedentes do Tribunal Superior do Trabalho, a tese de validade da renúncia genérica a direitos emergentes da relação de emprego mediante adesão do empregado a plano de demissão voluntária previamente aprovado por acordo coletivo de trabalho. Trata-se, com a identificação dos principais argumentos utilizados pelo Supremo Tribunal Federal na afirmação da tese, de problematizá-los à luz dos princípios e direitos fundamentais no trabalho, com especial ênfase para a questão da limitação da autonomia da vontade do empregado em razão da assimetria de poder entre os sujeitos da relação de emprego. Conclui-se que a decisão do Supremo Tribunal Federal constitui precedente flexibilizador desses princípios e direitos.Palavras-chave: Demissão voluntária. Princípios e direitos fundamentais. Relação de trabalho. Renúncia. Transação.  

scholarly journals Excluding Undeserving Claimants: New Zealand's Interpretation of Art 1F(c) Refugee Convention

2021 ◽  
Author(s):  
◽  
Abby Ward
Keyword(s):  
New Zealand ◽  
United Nations ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Refugee Status ◽  
Refugee Convention ◽  
Global Issues ◽  
The United Kingdom ◽  
The Face

<p>This paper reviews New Zealand judicial interpretation of the “acts contrary to the purposes and principles of the United Nations” as stated in art 1F(c) Refugee Convention, in the light of subsequent foreign jurisprudence. Article 1F excludes claimants from gaining refugee status under the Convention if there are “serious reasons for considering” they have committed a proscribed act. The ambiguous ambit of art 1F(c) had attracted little jurisprudence before the New Zealand authority’s 1995 decision in Refugee Appeal 2338/94. However, art 1F(c) jurisprudence has significantly increased in the face of new global issues such as terrorism, and an expanding United Nations mandate. This paper aims to aid future New Zealand courts in art 1F(c) cases, by assessing Refugee Appeal 2338/94 in light of the Canadian Supreme Court decision in Pushpanathan v Canada and the United Kingdom Supreme Court decision in Al Sirri and DD v Secretary of State for the Home Department.</p>

scholarly journals Les aléas de la fraude en droit criminel

2005 ◽  
Vol 27 (4) ◽  
pp. 813-851
Author(s):  
Pierre Rainville
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Criminal Code ◽  
Court Decision ◽  
Mens Rea ◽  
Criminal Offence ◽  
Territorial Jurisdiction ◽  
The Supreme Court ◽  
Definition Of ◽  
The Impact

Even though section 338 Cr.C. appears in Part VIII of the Criminal Code entitled « Fraudulent transactions relating to Contracts and Trade », the criminal offence of fraud is of a much broader scope. The liberal interpretation received from the courts has transformed this crime into one of the widest and sometimes most unpredictable offences. The author first discusses Canada's territorial jurisdiction over international fraud in the light of the recent Libman case. He then proceeds to examine the impact of the Supreme Court decision in Vezina v. R. on the « deprivation » requirement in the definition of fraud. This text also concentrates on the objective-subjective mens rea dilemna and on a comparison of the constitutive elements of fraud, theft and false pretences. The author finally concludes that sections 320 and 338 Cr.C call out for immediate reform.

scholarly journals The functions and failings of the Abortion Supervisory Committee: A Critique of the New Zealand Supreme Court Decision in Right to Life New Zealand Inc v The Abortion Supervisory Committee

2021 ◽  
Author(s):  
◽  
Emma Jane Smith
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Right To Life ◽  
The Supreme Court ◽  
Majority Judgment ◽  
The Law ◽  
Minority View

<p>In 2012 the Supreme Court of New Zealand ruled on Right to Life New Zealand Inc v The Abortion Supervisory Committee. The case was brought by way of application for judicial review, with Right to Life New Zealand Inc arguing that the Supervisory Committee had made an error of law in interpreting its functions under the Contraception, Sterilisation, and Abortion Act 1977. A majority of the Court held that the Supervisory Committee does not have the power to review decisions made by certifying consultants in individual cases. However, both the text and the purpose of the Act support the minority view, that the Supervisory Committee must seek information about individual cases in order to fulfil its functions under the Act. It appears that the majority judgment was motivated by policy concerns due to an arguable change in Parliamentary intent since 1977. The majority should have acknowledged the policy values that guided its decision or accorded with the minority view rather than straining the statutory wording. Either of those actions would have better prompted Parliament to reform the law to reflect modern circumstances.</p>

scholarly journals Responsible publication of criminal accusations in New Zealand – the case for change

2021 ◽  
Author(s):  
◽  
William Steel
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Supreme Court Decision ◽  
Current Approach ◽  
Court Decision ◽  
Uk Supreme Court ◽  
The Right ◽  
Criminal Conduct ◽  
Court Of Appeal

<p>In 2000, a full Court of Appeal in Vickery v McLean excluded all generally published allegations of criminal conduct from the protection of Lange qualified privilege. Highlighting difficulties with the Court of Appeal’s reasoning, this paper argues that New Zealand’s current approach represents an unjustifiable limitation on the right to freedom of expression and is out of line with comparable jurisdictions. It suggests that adopting the principle from the recent UK Supreme Court decision in Flood v Times Newspapers Ltd, within the existing Lange framework, strikes a more appropriate balance between freedom of expression and the right to reputation. Doing so would allow Lange privilege to protect unproven, but verified, allegations of criminal impropriety whilst adequately safeguarding reputations and guarding against fears of trial by media.</p>

scholarly journals The Impact of Vaillancourt v. the Queen on Canadian Criminal Law

1969 ◽  
pp. 443
Author(s):  
Isabel Grant
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Supreme Court Decision ◽  
Criminal Code ◽  
Court Decision ◽  
Mens Rea ◽  
Objective Standard ◽  
The Impact

The 1987 Supreme Court decision of Vaillancourt Struck down s. 213(d) of the Criminal Code, finding that the constructive murder provision violated ss. 7and 11(d) of the Charter. This paper looks at how the courts have since applied Vaillancourt to other sections of the Criminal Code, particularly the remaining murder provisions. The analysis is based largely on a consequence-circumstance distinction, where legally consequences involve the harm caused by the accused and the circumstances refer to conditions that must be shown to exist before there can be a conviction. However, because murder is a unique crime with a "special stigma" attached to it, courts will not allow an objective standard of mens rea to form the basis of a murder conviction.

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