*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are still using Legal Online, the links can be found in the LOLA PDF at the bottom of this post.
The latest issue of the Criminal Law Journal (Volume 37 Part 5) contains the following material:
- Restricting core procedural rights in the courts – Matthew Groves
Local and international public opinion polls suggest that Australia is a low-risk country in terms of corruption. This article challenges this reputation contending that the relative invisibility of corruption in Australia is the result of low levels of enforcement of existing laws, and the political failure to implement a co-ordinated national strategy against corruption. As a result, Australia has become increasingly vulnerable to corrupt overseas politicians seeking a safe haven for their illicit assets. These enforcement vulnerabilities extend also to cases of foreign bribery perpetrated offshore by Australian corporations, employees and agents. Enforcement of foreign bribery offences in Australia, unlike the equivalent United Kingdom offences, is hampered by provide an overly broad defence which excuses “facilitation payments” that otherwise would constitute acts of bribery. The conclusion is that an urgent review of the effectiveness and scope of anti-corruption laws is needed, combined with a much stronger political and law enforcement commitment to tackle corruption at home and abroad.
Combating drug-related crime is a key focus of proceeds of crime legislation in Australia. Despite this clear focus only three Australian jurisdictions have introduced confiscation provisions levelled specifically at those involved in drug-related crimes: New South Wales, Western Australia, and the Northern Territory. Queensland and South Australia currently have Bills before Parliament aimed at introducing specific drug-related confiscation provisions into their confiscation of proceeds of crime regimes. In New South Wales, drug-trafficker property confiscations operate in virtually the same way as other criminal property confiscations. In Western Australia and the Northern Territory, however, the drug-trafficker confiscation provisions are distinct from the other criminal property confiscation provisions and are particularly harsh. This article examines their operation; in particular, the potential impact of the provisions on the property rights of defendants and innocent third parties is analysed and critiqued. It is argued that the drug-trafficker confiscation schemes in both jurisdictions impact unjustifiably and inequitably on property rights and, in doing so, go far beyond achieving the stated objectives of the legislation.
Recent developments in Canadian criminal law – Gerry Ferguson and Benjamin L Berger
This year’s review begins by looking at two pressing issues in the Canadian law of sentencing: mandatory minimum sentences and the over-incarceration of Aboriginal offenders. Turning to developments in the substantive law, the article examines the Supreme Court of Canada’s recent jurisprudence on the test for causation, looks at the current approach to defining the “ordinary person” for the purposes of the defence of provocation, and canvasses Canada’s new provisions governing self-defence. Procedural and evidentiary topics considered in this article include the definition of hearsay and the status of “implied hearsay”, developments in the law of informer privilege, and the Supreme Court’s recent judgments on the jury selection process and the practice of juror vetting.
- Tasmania v Martin (No 2): Voluntariness and causation for criminal offending associated with treatment of Parkinson’s disease – Dr Francesca Bartlett, Wayne Hall and Dr Adrian Carter