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Youth Competence On Trial
Sophie Klinger
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Fitness to stand trial is an important issue in the criminal process that is often overlooked in favour of debates about criminal responsibility and penalties. This article examines the issue of trial competency in juvenile defendants. It discusses the underlying rationales for fitness to stand trial, the current New Zealand test and whether the courts are likely to regard immaturity as a “mental impairment”. Specific areas of concern regarding juveniles’ competency are examined in relation to empirical research on young people’s legal abilities. Some recommendations are put forward for identifying young defendants’ incompetence and enhancing their participation in a criminal trial. The implications of the Young Offenders (Serious Crimes) Bill 2006 for young defendants’ fitness to stand trial are also briefly addressed. |
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Roman Law and European Culture
Reinhard Zimmermann
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The European legal tradition was characteristically shaped by the ius commune, which in turn was largely based on Roman law. This paper attempts to specify these intellectual connections. In addition, it examines the essential features of Roman law in classical antiquity, analyzes changes in the perception of Roman law, and explores the questions: How Roman is “contemporary” Roman law? How European is the “European” legal tradition?
Sentencing: Intuitive Synthesis or Structured Discretion?
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Sentencing: Intuitive Synthesis or Structured Discretion?
The Hon Justice Grant Hammond
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In view of the current proposal to develop a Sentencing Council in New Zealand, with a comprehensive scheme of guideline judgments, it is crucial to consider the rationales for moving toward a more structured scheme of sentencing. This article traces the shift away from treating sentencing as the singular domain of the trial judge, toward a distribution of power between the legislature, judiciary, and executive, and argues that the limiting of discretion in sentencing is a valuable way to eliminate inconsistencies and provide guidance to the judge in what is an extremely difficult, and visibly political, task. With reference to decisions emanating from Australia and Canada, the article highlights the tensions and difficulties surrounding the need for reasonable regularity and clear guidance, and the concern for individuated justice.
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Vexing the Establishment:
Jack Wiseman of Murrays Bay
Michael Taggart
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Jack Wiseman was an Auckland solicitor who had a long-running and bitter dispute with the (then) East Coast Bays Borough Council. Throughout the dispute, Wiseman made serious allegations against his opponents, for some of which they successfully sued in defamation for a large sum of money. He also attacked members of the judiciary, and petitioned Parliament for their suspension and ultimate removal from office. As a result of all this, Wiseman was imprisoned for three months for contempt of court, struck off the roll of barristers and solicitors, and was the first person declared a persistently vexatious litigant under the then newly enacted power to bar such litigants from court. The “Establishment” came down hard on Wiseman, and there are some questions about the appropriateness and legality of this response. This article will explore the background to this case and will attempt to answer those questions. |
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2007 Issues 
