Friday, 17 April 2009

Finding judicial consideration of legislation — Part 1

I think the most frequent research query we all have is, "Are there any cases on this statutory provision?"

In this series of posts, I cover several different ways of searching for cases that consider statutory provisions.

This week, I explain how to use Lexis Nexis AU.

This is electronically similar to looking through Bourke's Criminal Law Victoria, but for all legislative instruments covered by the LNAU database. (But we don't have every subscription LNAU holds, so some results you click on might return an error message saying something like "You don't subscribe to this.")

First, on the home page, select the legislation tab.

For these examples, I'm using the Confiscation Act 1997 ss 32 & 33. They deal with forfeiture of tainted property. I figure this is good an example as any other, because I have a case coming up soon involving these provisions, and I'm not familiar with any judgments that consider them.

Next, fill in as many or few of the search fields as you can or want. Generally, start as broad as you can, and narrow your search options until you get a manageable number of results. If your search terms are too narrow, you might miss relevant cases.

Then review your results. (In this example, the commentary and annotations we get are in fact in Bourke's Criminal Law Victoria.) Your mileage may vary. You might even get no results for some provisions!

For this search I found commentary about factors courts ought to consider when deciding a forfeiture application, including hardship. Pay-dirt! The commentary cites judgments that considered these provisions. Now I need to see if those judgments are relevant and still good law.

Some cases are hyperlinked, and you can jump straight to the full-text version of that judgment. (If you follow the hyperlink shown in this result, you'll get an error: we don't subscribe to the New South Wales Reports.)

Other cases are not hyperlinked. Usually, these are report-series Lexis Nexis doesn't publish — such as the Australian Criminal Reports or Commonwealth Law Reports.

If you want to check a non-hyperlinked case, you can highlight the citation and copy it (CTRL + C) and then paste it (CTRL + V) into the citation-field of the Quick Search template on the home page (or the search template under the cases tab).

In this screenshot, I copied-and-pasted the citation for Winand. That's this bit: (1994) 73 A Crim R 497.

That takes me to the CaseBase entry for Winand.

CaseBase is the Lexis Nexis case citator. A citator has two main functions:

  1. List citations for the case (the report series and page numbers where we find the judgment)
  2. Tell us if the case is still good law by recording its subsequent judicial consideration

If there are hyperlinks immediately under the case name, we can follow them to the full text of the judgment.

Further down the page is a list of cases that refer to Winand. Hyperlinks in those entries take us to the full text of those judgments, and the icon at the end of the row is a hyperlink that takes us to the CaseBase entry for that judgment.

In this example you can see Savvinos v DPP [1996] 2 VR 43 did not follow Winand. If I want to rely on Winand in court, I should look at Savvinos to find out why it didn't follow Winand and if that will affect my case.

It might be necessary to repeat this for several cases.

(Yes, that can be time consuming. But, I can assure you it is a lot quicker and easier than when the only way of doing it was to go through hardcopy services!)

Next week, I'll show you how to use FirstPoint to check for any other cases.

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