Time to loosen the legal apron strings, Elisabeth McDonald

Principles of Criminal Law
A P Simester and Warren Brookbanks (ed)
ISBN 0 86472 281 8

Adams on Criminal Law
2nd student edition,
ISBN 0 86472 282 6

Simester and Brookbanks note in their preface to Principles of Criminal Law that New Zealand students have learned criminal law without recourse to a textbook on the subject for generations”. Their text, and the 2nd student edition of Adams on Criminal Law, aim to ensure that the next generations are better off – and so they will be, if only in terms of choice.

The Adams student edition follows the format of the loose-leaf publication which is primarily tailored to the legal profession. The Crimes Act 1961 is annotated section by section with notes on relevant case law. Where common law developments are important, for example in the area of classification of offences, a more substantial narrative is provided. The limitations of such a work for New Zealand students of criminal law, however, are immediately apparent.

New Zealand law schools offer a compulsory second-year course in criminal law which introduces students primarily to the principles of criminal liability. Any student who wished to consult a secondary source as a supplement to lectures or case law would need an exceptional understanding of the subject to be able to competently use the Adams student edition. For example, the relevance of mistake to an assessment of criminal liability is in relation to three different Crimes Act sections. The index does assist the reader in finding all the information, but it is the connection between the points of discussion and the conclusions from the various cases that I consider a second-year student would find hard to make or draw. Certainly Adams is of some assistance to a student who wishes to look up the case law on a particular section, but even then the discussion it provides tends to assume existing knowledge on the part of the reader.

The section on evidence law is more accessible in this regard because it relies more heavily on common law than statutory rules. It provides a readable and thoughtful introduction to the law of evidence and because of this should be the basis of a student evidence law publication as Well as one on criminal law. Less accessible to students because of its separate treatment is the discussion of severance in chapter 4. This chapter, although promisingly entitled “General Principles”, is merely 10 pages devoted to the seemingly unconnected principles of severance and corporate liability and is very firmly stuck on as an afterthought, again requiring work on the part of the reader to connect this discussion to the more fundamental principles of the criminal law.

There is also an important omission from Adams – an annotated presentation of the Summary Offences Act 1981. This Act is, in my experience, a valuable teaching tool and should be presented in a student publication of this lend to allow discussion of the range of conduct the criminal law seeks to regulate. A more conscientious effort by the publisher to produce a student publication, rather than an easy reproduction of parts of a larger one, would have resulted in the inclusion of other statutory material, for example, relevant portions of the Misuse of Drugs Act and the Summary Proceedings Act.

The student edition of Adams, despite the flaws stemming from its presentation – which, to be fair, I believe even the editors would acknowledge – is certainly a useful publication for those students who need regular access to merely an annotated Crimes Act as part of their course of study. It is an essential purchase for the student who wishes to pursue criminal law as an interest throughout the whole degree. For the average second-year law student, however, it is a reference source I would not recommend they buy.

A more recent option for law students who do want to purchase a text is Principles of Criminal Law. The title of this publication certainly sounds more like what a second-year student could helpfully refer to for clarification or extra reading. The authors’ statements in the preface are also promising:

Good law is made when rules and principles coincide, and the seductiveness of theory must always be tempered by case and statute. Whether we have achieved a successful balance is not for us to judge. That, at least, has been our aim.

I also consider that a university course (and text) should engage students’ minds with issues of theory as well as practice. The trick, as the authors admit, is getting the balance right. My view, however, is that the balance struck in Principles of Criminal Law is not the right one for New Zealand students of criminal law.

The first imbalance arises from the overemphasis on English case law. As the authors state, generations of New Zealand students have been without a local text and have had to rely on those written by English professors of law. The first New Zealand text should, therefore, firmly position itself as primarily a commentator of New Zealand jurisprudence. Although the New Zealand Court of Appeal does still rely on House of Lords decisions, we also now look almost as often to the Supreme Court of Canada and the High Court of Australia – a good thing in my view. The codification process undertaken separately in both England and New Zealand also contributes to regional variations which do not receive much comment from Simester or Brookbanks. The codification of offences (and defences) has rendered English common law less and less relevant. Rather than breaking from tradition, the authors regularly seek to convince the reader of the relevance and importance of the development of English law by reviewing the historical approach, citing cases from the 1600s or even earlier.

An example is found in the chapter on intoxication. This 22-page chapter contains only 10 pages which are of real relevance to the New Zealand situation. Academics and some practitioners may be interested in the development of the distinction between offences of basic and specific intent but it plays little – if any – part in New Zealand criminal law and is certainly not of much significance to second-year law students.

The authors also devote over three pages to a discussion of “Involuntary intoxication – a new excuse?” in which they focus almost exclusively on the decision of the English Court of Appeal. They then conclude: “We do not believe that involuntary intoxication should be endorsed in New Zealand as an exculpatory defence which in some fictional sense negates mens rea … ” This was, interestingly, the view of the House of Lords, which the authors mention only in passing – going on to say that it would still be open to the New Zealand Court of Appeal to prefer the view of the lower court. This kind of discussion should be, if anything, the subject of a case note or article, not part of a student text. Although it may be of use to refer students to the House of Lords’ decision on a point yet to be considered in New Zealand, the lengthy discussion on the contrary view of the Court of Appeal is simply unnecessary in this context. Similar criticism of emphasis can be made of the discussion on attempts, conspiracy, insanity, necessity and theft.

The imbalance from the perspective of theory arises from the noticeable absence of references to other academic writing. The vast majority of citations to anything other than case law are to the authors’ own previous work (including that of Gerald Orchard, also a contributor). The exceptions to this rule are the few references to academic writing from other jurisdictions. Given the amount of quality commentary produced by academics and practitioners within New Zealand, it seems an omission of some significance to not even present, let alone respond to, alternative views.

One debate of particular significance to me is the relevance of feminist theory to the critique of criminal law. To date, much of the New Zealand writing in this area has focused on battered woman’s syndrome (BWS) or domestic abuse as a basis for relying on particular defences. To be fair to the authors, BWS is mentioned in the text. It is not, however, discussed in a very useful way, except with regard to the defence of provocation. In the context of a discussion of compulsion and self-defence, there are two separate (brief) sections devoted to the topic. Both reflect an inadequate understanding of the debate and misrepresent the arguments made by those writing in the area (none of whom is cited). Rather than respond to the arguments by analysing the relevance of abuse to each element of the defence, the sections are clearly added on as editorial afterthoughts and do not provide students (who do have an interest in the issues) with sufficient material.

The courts’ approach to BWS here and overseas also provides an extremely valuable teaching tool as it allows consideration of the rationale of criminal defences (something the authors profess to be interested in). The limited discussion this text provides effectively prevents this tool from being available to students. The authors instead dismissively conclude that any anomalies in the area are a matter for legislative reform and are seemingly not worthy of further critical attention. The proposed defence of excusable self-protection (more commonly referred to in the literature as self-presentation) suggested by the authors is also not referenced back to the women’s groups in England, Australia or New Zealand who were the first to propose it.

There are also other topics of importance to New Zealand students of criminal law which do not receive enough attention. Most importantly, when the authors discuss theories of criminal responsibility, they often fail to discuss issues arising in the New Zealand context, in particular the tradition of Maori justice. For example, in the chapter on actus reus the authors make the point that there is “no doctrine of collective responsibility in our criminal law”.

They go on to give examples of other possible approaches:

At one time, it was the practice in Greece to hold the entire city punishable for the crimes of its leaders. Similarly, the Chinese doctrine of liah-tsua would result in a whole family or village being punished for the wrongdoing of one of its members.

The examples from China and ancient Greece are no doubt fascinating to some, but they do not help educate New Zealand law students in the cultural heritage of the tangata whenua.

In terms of structure, Principles of Criminal Law also disappoints. There are insufficient cross-references to other parts of the text (explicable, given how the writing of the book was divided up, but not excusable). The treatment of mistake in the section on defences is also misleading. In some chapters the content of the book is virtually identical to the authors’ previous writing in the area (for example, Simester’s Criminal Law Journal article on intention). Such cutting and pasting also adds to the disjointed and often confusing nature of the text which should have been much more rigorously edited.

In my view it is very disappointing that such a timely and worthwhile project undertaken by three well-qualified criminal lawyers fails to provide what it aimed to provide: an accessible, quality criminal law text for New Zealand law students. Instead they have produced an unnecessarily lengthier collection of their own previous articles, chapters and case notes which constantly and consistently displays their own preference for (mostly) English jurisprudence and academic comment. The authors have not made a real attempt to provide a criminal law text for New Zealand which will remain of relevance into the next century. As a consequence, New Zealand criminal law students still do not have access to such a publication.

Elisabeth McDonald is a senior lecturer in law at Victoria University of Wellington.

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