Don Mathias: List of Publications

“The Application of Section 28 of the Misuse of Drugs Act 1971[UK] to Possession” [1980] Crim LR 689
This article argues that the elements of possession are the same for all incidents of possession, a view which seems to have prevailed. While the English law on drug possession remains obscure, in R v Lambert [2001] UKHL 37 (5 July 2001), there is some support, from Lord Hutton at para 183, and Lord Slynn at para 16 (although, possibly misinterpreting a Court of Appeal decision, McNamara) for the view that only the physical elements of possession must be proved before the accused has the burden of proving (now, of raising a reasonable doubt) that he did not know the thing was there. On reading this article in 2008 I can’t help calling to mind Clive James’s derogatory phrase to describe this style of writing: “the tenure-seeking stodge of an academic thesis” (The Meaning of Recognition – New Essays 2001-2005 (2005)), p 114. The interpretation of Lambert mentioned above is consistent with that in R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73 at para 28.

“The Sentencing of Drug Offenders” [1981] NZLJ 3
Sentencing decisions of the Court of Appeal from the 1970s are reviewed here, and principles which remain relevant thirty years later are identified. At the time this article was written there was little literature on sentencing, but the work of DA Thomas in England was influential.

“Similar Fact Evidence and Severance” [1986] NZLJ 42
It is argued here that propensity reasoning is not inappropriate in relation to similar fact evidence, contrary to current interpretations of the leading cases, and that the real issue is the probative value of the evidence and the avoidance of improper prejudice to the accused. This approach is the same as that subsequently endorsed by the House of Lords in DPP v P [1991] 3 WLR 161, and in the new Evidence Act 2006 [NZ] this sort of evidence is called propensity evidence.

“Offensive Weapons” [1986] NZLJ 70

“Signing the Police Officer’s Notebook” [1986] NZLJ 125
The issue of the admissibility, as a documentary exhibit, of a signed statement in a police officer’s notebook is sometimes still raised. This article was cited with approval by the High Court in R v Hamilton 5/9/03, Baragwanath J, HC Whangarei T030025.

“Sentence Discount for Pleas of Guilty” [1986] NZLJ 151

“Mens rea: Stare Decisis v Statutory Interpretation” [1987] NZLJ 112
An examination of how courts can be distracted by precedent into making distinctions that are not warranted by the policy of the legislation that governs a particular case. The mental elements of drug possession and the problems of impossible attempts are considered.

Book Review: Drug Users and the Law in Australia by T Carney, [1988] NZLJ 51

Book Review: Similar Fact Evidence by JRS Forbes, [1988] NZLJ 177

Book Review: Criminal Defences by D O’Connor and PA Fairall, [1988] NZLJ 343

Textbook: Misuse of Drugs (1988, Butterworths, Wellington)This text is part of my 1980 PhD thesis. It is currently available in electronic form, updated monthly, as part of Brookers’ Criminal Library on CD-Rom. Its rationalisation of the elements of drug possession, and of the other drug offences, has withstood the test of time. It was also the first criminal text to devote an entire chapter to the subject of abuse of process. That topic has become of central importance to the issue of evidence admissibility.

“Discretionary Exclusion of Evidence” [1990] NZLJ 25
This article rationalises the potentially confusing decisions on common law exclusion of evidence, presenting a spectrum model which continues to be useful. The Chief Justice found it helpful in R v Dally [1990] 2 NZLR 184; (1990) 5 CRNZ 687. The decision model proposed there is markedly similar to that used by the Court of Appeal in its explanation of the common law discretion in R v Williams [2007] NZCA 52, and it will continue to be relevant to the application of s 30 of the Evidence Act 2006.

“Guilt by Inference” [1991] NZLJ 43
For skillful readers, the article analyses reasoning when evidence of guilt is circumstantial. The central argument is that the inferred facts from which guilt is to be inferred must themselves be established beyond reasonable doubt. This is not to say that facts leading to the inference of the facts from which guilt is inferred must also be proved to that standard. The article is illustrated with cases where on appeal it has been held that there was insufficient evidence to support a conviction.

“Fairness and the Criminal Standard of Proof” [1991] NZLJ 159
This article is the first of a series by me which challenges the appropriateness of the newly-formulated prima facie exclusion rule. That rule was designed to deal with breaches of the Bill of Rights as a special category, whereas my argument was that such breaches are able to be dealt with under the established common law method (described in the spectrum model, above). Eventually, in 2002, the Court of Appeal abolished the prima facie exclusion rule by a majority of 6 – 1 in R v Shaheed [2002] 2 NZLR 377; (2002) 19 CRNZ 165.

“Guilty Knowledge About Drugs” [1991] NZLJ 280

Book Review: Narcotic Offences by Fiori Rinaldi and Peter Gillies, [1991] NZLJ 376

Book Review: Crime and Deviance by Greg Newbold, [1992] NZLJ 280

“From Goodwin to Good Law” [1993] NZLJ 10
This article argues that the admissibility of improperly obtained evidence can be determined the same way, whether or not the impropriety involves a breach of the Bill of Rights. The spectrum model which applies to the common law exclusion of improperly obtained evidence can accommodate breaches of the Bill of Rights. Under the Evidence Act 2006, s 30, this is the approach that has been adopted.

Contributions to Adams on Criminal Law (3rd ed, Robertson, 1992, Brooker & Friend Ltd, Wellington)

“Excusing Breaches of Rights” [1994] NZLJ 133
Again the prima facie exclusion rule is criticised for its inappropriate standards of proof, and it is argued that the ordinary common law rules can deal with breaches of the Bill of Rights. It is also suggested that serious breaches of rights may give rise to issues of abuse of process. In Mohammed v The State [1999] 2 AC 111 the Privy Council held that it must be proved beyond reasonable doubt there was no breach of the Bill of Rights if the prosecution is to avoid the challenge to admissibility. However, the Evidence Act 2006 s 30 requires proof on the balance of probabilities that the evidence in question was improperly obtained.

“Identification of accused who are under a disability” Seminar Paper in “Fitness to Plead: Under Disability in the 90’s” Legal Research Foundation, March 1995
This seminar paper outlines a method by which defence counsel can approach the problem of representing clients who are thought to be under mental disability. It remains current.

“Police Questioning: a Criticism of the Law Commission’s Proposals” (1995) Lawtalk 430, 9
An attack on the proposed introduction of police powers to detain people, without arresting them, for questioning. These proposals were subsequently dropped.

“Lies Directions” [1995] NZLJ 307
An analysis of the situations in which it is appropriate for a judge to warn the jury on the use they may make of a lie told by the accused. This article was cited in the High Court of Australia by Kirby J in R v Zoneff (2000) 112 A Crim R 114.

“Hearsay: The Pre-concert Exception” [1996] NZLJ 391

“The Bill of Rights & the Common Law” [1997] NZLJ 46
A brief consideration of the implications of R v Grayson [1977] 1 NZLR 399 (CA), making the point that whereas the question of whether there has been a breach of the Bill of Rights is a matter of rights jurisprudence, the subsequent question of the admissibility of evidence is a matter of applying ordinary common law principles. A flexible approach is preferred to the rule-based one.

Book Review: “Garrow and Casey’s Principles of the Law of Evidence” (Eighth Edition, 1996) [1997] NZLJ 184

“Unfairly observed rights” [1998] NZLJ 21
This article emphasises the need for the fairness of admitting evidence to be established beyond reasonable doubt. There have been confusing dicta on this point, some suggestions being that fairness is not a matter amenable to a standard of proof. My argument is that fairness is a fundamental matter, like the need for confessions to be voluntary (which must be established beyond reasonable doubt). Subsequently, the Privy Council held that trial fairness is an absolute requirement and is not a matter that can be subjected to balancing against other interests, and that a reasonable doubt about fairness cannot be tolerated: Mohammed v The State [1999] 2 AC 111.

“Evaluating rights” [1998] NZLJ 105
An explanation of how my “spectrum” model for comparing cases on discretionary exclusion of evidence can be applied in conjunction with the “balancing of competing values” approach taken in Grayson’s case. The basic point is that the balancing of interests, applied in determining the reasonableness of searches, can be applied more generally to determine the admissibility of evidence wrongfully obtained. This step was subsequently taken in R v Shaheed [2002] 2 NZLR 377 (CA), and is now enacted in the Evidence Act 2006, s 30.

Book Review: Principles of Criminal Law by AP Simester and Warren Brookbanks, Brooker’s Wellington (1998): (1998) 18 NZULR 301.

“Criminal Equity” [2000] NZLJ 427
What can the courts do when legislation requires trials to be conducted unfairly? My suggestion is that, since the courts cannot rule legislation invalid, a stay of proceedings is necessary to prevent an abuse of process. Courts of justice cannot act unjustly.

“Yields of indoor cannabis crops” [2002] NZLJ 135
A scientist’s evidence was that there are no published studies on the estimation of yields of cannabis crops. Since yields are an important consideration in sentencing, and since police estimates of yields were often disputed by accused persons, some investigation was needed. I was able to obtain an opinion from a scientist, and this article sets out the matters of fact that are needed for proper estimates of crop yield.

“Criminal fairness in the House of Lords” [2002] NZLJ 435
This article considers developments in international human rights law insofar as they apply to criminal trials and have been incorporated into the common law by the House of Lords.Topics covered are: the standard of proof on the defence when a statute provides that an element of the offence shall be presumed to exist until the contrary is proved (discussing a House of Lords case in which submissions on standard of proof were accepted although they were the same as submissions I had made to the NZ CA in 1991 and which had been rejected), the reaction of the courts to statutes apparently requiring an unfair course to be adopted (here an exception was read into the legislation notwithstanding that the statute was absolute in its terms), and the application of the remedy of a stay of proceedings in cases of entrapment.

“The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings” in Robertson (ed) “Essays on Criminal Law: A Tribute to Professor Gerald Orchard” (2004, Brookers, Wellington, ISBN 086472 476 4) Order a copy
In this essay an analysis is presented of the methods of decision where the court has to decide between excluding evidence and staying the proceedings, and between warning the jury of the dangers inherent in the use of particular evidence and staying the proceedings. In the first type of decision a balancing of competing values will be undertaken, while in the second the court will give primacy to the need to ensure that the trial is fair to the accused. A pre-publication version of this essay is available here.

“Public interest immunity and fairness to the accused” [2004] NZLJ 301
The significance of a House of Lords decision is highlighted. It makes it clear that the requirement of fairness to the accused cannot be compromised by balancing against other interests. This primacy of fairness to the accused is also a theme in the essay listed above.

“Shaheed balancing: three propositions” [2004] NZLJ 475
Explanations by judges of how they apply the balancing process in determining the admissibility of evidence under Shaheed can be confusing. Three errors are often found: failure to specify what factors support exclusion of the evidence, double counting of factors by placing them on each side of the balance, and omission of reference to precedents when assessing the seriousness of the detected offending.

“Probative value, illegitimate prejudice and the accused’s right to a fair trial” (2005) 29 Crim LJ 8.
The so-called balancing of probative value against illegitimate prejudice in determining the admissibility of evidence is illogical and potentially dangerous. It can lead to an undervaluing of the accused’s right to a fair trial. In this article the difficulties are reviewed and it is suggested that the real issues are relevance and the avoidance of unfairness to the accused. An updated version of this article is available here.

“The Development of the Law Relating to Drug Offences in New Zealand” Symposium Paper, presented at the Drug Trials Symposium, Auckland District Law Society, April 2005.
This Paper consists of three parts. Part I reviews the development of the law relating to drug offences. Part II discusses how the elements of possession may be used as a guide to the elements of the major drug offences. Part III discusses topics of recent interest: cultivation crop yields, the presumption of purpose of supply, liability for supply by returning a drug to its owner, and the approach of the Privy Council to s 6(2A)(c) of the Misuse of Drugs Act 1975.

“The Accused’s Right to a Fair Trial: Absolute or Limitable?” [2005] New Zealand Law Review 217.
There have been conflicting dicta on whether there can be occasions when the accused must be satisfied with a trial that is less than absolutely fair, for example because of prevailing public interests (such as in cases of public interest immunity from disclosure of the identity of a witness or of an informer) or prevailing interests of the victim (for example where the victim refuses to undergo a medical examination at the request of the defence). There are also conflicts on whether loss of a reasonable chance of an acquittal is necessary before an error at trial can be said to have caused unfairness to the accused. This article suggests that the better view is that the accused’s right to a fair trial is absolute, in the sense that it cannot be compromised by being balanced against other rights, but in times of national emergency some derogation from absolute fairness may be necessary, as is recognised in international law. It is also suggested that a trial may be unfair without the accused having lost a reasonable chance of acquittal. Since this article was written, the Privy Council demonstrated by a split decision in Howse v R [2005] UKPC 31 (19 July 2005) how difficult it is to determine whether a trial was fair to the accused. The Supreme Court subsequently, on 23 August 2006, accepted that the right to a fair trial is absolute, and that breach of this right necessarily amounts to a substantial miscarriage of justice: Condon v R [2006] NZSC 62.

“The Hearsay Rule and its Application” Seminar Paper in Evidence in Practice Skills Accelerator 2005, Langham Hotel Auckland, 14 October 2005, copyright LexisNexis NZ Ltd.
This paper includes a survey of the ways of stating the law in the major texts, consideration of proposals for reform in the Evidence Bill, and suggestions on dealing with hearsay issues in practice.

“Discipline under the new Act” [2006] NZLJ 128
Comments on the changes to the procedures for the disciplining of law practitioners introduced by the Lawyers and Conveyancers Act 2006.

“Proof, fairness and the proviso” [2006] NZLJ 156
Consideration of approaches to deciding whether criminal appeals against conviction should be allowed. Two of these focus on the sufficiency of proof of the accused’s guilt, and it is argued here that a third is an overriding consideration: whether the trial had been fair. Limitations on the appellate court’s role are also suggested, it being argued that it is inappropriate on appeal to indulge in an elaborate analysis of the evidence when that amounts to depriving the appellant of a trial by jury. By happy coincidence my criticisms in this article of the Court of Appeal’s approach to the David Bain case were followed, the next month, June 2006, by the Privy Council granting Mr Bain leave to appeal. And, on 23 August 2006 the Supreme Court held that the right to a fair trial is absolute, and that breach of this necessarily amounts to a substantial miscarriage of justice: Condon v R [2006] NZSC 62. On 10 May 2007 the Privy Council quashed Mr Bain’s convictions and ordered a retrial.

“A little unfairness goes a long way” [2006] NZLJ 210
A brief consideration of Moloney v New Zealand in which the Australian Federal Court refused to extradite to New Zealand two alleged sex offenders, holding that, by comparison with Australian law, New Zealand law would not guarantee them fair trials. My point here is that it is necessary to decide what a “fair trial” means, and then to enquire whether the law provides a means of securing fairness. This article was published in July 2006, and subsequently, on 5 October 2006, a 5-judge bench of the Full Court of the Australian Federal Court overturned Moloney for substantially the same reasons.

(With Grant Illingworth QC) “The admissibility of hearsay statements and opinion evidence.” Seminar paper in New Zealand Law Society intensive “Evidence Act 2006” June 2007, presented at Dunedin, Christchurch, Wellington, Auckland and Hamilton. Copyright NZLS. Available here.

“Fair trials and conviction appeals” NZLawyer extra Edition 18, 4 February 2011.

In this paper I argue that the criterion for deciding appeals against conviction should be whether the trial was fair, and that a fair trial is one where the law is properly applied to facts that have been determined impartially. Many of the cases discussed in this paper have been the subject of comment on my “Criminal Law Developments in Leading Appellate Courts” website. The original article has been archived at ,and follow the links to NZLawyer Extra, and the entry for Issue 18. An updated version of this paper is available on my website .

(with Professor Jeremy Finn and Ron Mansfield) Criminal Procedure in New Zealand (Thomson Reuters, Wellington, 2013). Textbook on the Criminal Procedure Act 2011 and wider aspects of criminal procedure, available in hard-copy, ebook, and electronic subscription formats.

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