LegalResearchFoundation

The evolution of victims' “rights” saw victims gain legitimate expectations of consideration and involvement in the criminal process. For sentencing, this has seen the advent and implementation of victim input regimes, which have made the process more complex with prosecutors progressively looked to by courts for assistance. This increased burden has led to criticisms of the appropriateness and functionality of the prosecutorial relationship with victims, and the regimes themselves. In juxtaposition, a growing body of evaluative research and literature has suggested that the regimes are of utility to courts and victims. This article explores this tension through an examination of the Crown Prosecutor's role in relation to victim impact statements in New Zealand. It argues that New Zealand's regime is consistent with international best practice and compatible with the prosecutorial role in common law jurisdictions. New Zealand has made progress in recognising, respecting and responding to victims' needs at sentencing through an “expressive” model of victim impact statement, regulated by the active and vigilant role of the Crown Prosecutor. When compared to similar regimes in Canada and England and Wales, New Zealand leads the way with its statutory foundation for victim input and its detailed coherent guideline documents, which regulate the prosecutorial role. Nonetheless, informed by a procedural justice perspective, the article argues improvements should be made to prosecutorial victims' service requirements, focusing on information accessibility and quality, and accountability. It advocates for a unitary guideline document that is ethically enlightened, of legal force, readily available to victims, and clear in its protocols, processes and information about victim impact statements.

This article considers the challenges posed by information communication technologies to existing concepts of fair trial by an impartial jury. It argues that it is necessary to recognise the existence of the new technologies and that they will be used by jurors. It suggests steps that may be taken and solutions that may be adopted to address such activity which maintain the integrity of the criminal jury trial. It addresess two major ways in which information use may potentially cause difficulties. These are “information in” — juror research which may result in information coming into the jury room, and which may be disclosed or made available to other jurors, and “information out” — communications emanating from sitting jurors about the trial, the state of deliberations and seeking external advice. The article challenges the assumption that juror research automatically results in a mistrial or is prejudicial to the trial process and offers some possible solutions to the problem. One is to consider juror education that goes beyond a judicial prohibition on “out-of-court” research. The other is to consider a nuanced and graduated response that may be applied when juror misconduct comes to light. The article concludes that while so challenged, the jury system can survive the encounter with new information technologies.

This article discusses the New Zealand government's goal of a smoke-free New Zealand by 2025 and critically evaluates existing tobacco control policies. It argues that the current approach, which focuses on expanding smoke-free environments and restricting advertising for tobacco products, is unable to achieve the government's goal. Instead, the article assesses different “endgame” strategies that could achieve a smoke-free New Zealand, primarily by granting regulatory recognition to smokeless tobacco products. Despite these products posing less risk to public health than traditional combustible tobacco, they are regulated far more strictly, and even banned from sale in New Zealand. We argue that New Zealand's regulatory priorities are in dire need of reassessment to protect New Zealanders against the curse of smoking-related illness and death.

This article examines the New Zealand constitution through the lens of legitimacy, a concept premised on a distinction between normative justification for constitutional authority and the mere fact of public power. Issues of constitutional legitimacy can be obscured in some accounts of the constitution, but these accounts tend to implicitly locate the source of legitimacy in historical precedent and, most importantly, representative democracy. These sources of legitimacy may be contrasted with constitutionalism, a theoretical perspective that promotes legitimacy through the existence of substantive limits on public power. Theories of constitutionalism remain underdeveloped in a New Zealand context, but it is argued that these theories remain instructive. In particular, the role of an independent judiciary in interpreting and applying constitutional fundamentals challenges the notion that representative democracy is an exclusive source of legitimacy.