Friday, October 23, 2015

Hardcopy edition of Misuse of Drugs

My textbook Misuse of Drugs will be published by Thomson Reuters NZ Ltd on 11 December in a new hardcopy edition. Pre-orders may be made here.

Tuesday, October 13, 2015

Criminal Procedure in New Zealand, 2nd ed 2015

The second edition (hardcopy) of the criminal procedure text by Professor Finn and me will be available from 23 October, and may be pre-ordered now, from Thomson Reuters NZ. Electronic formats, updated quarterly, are also available by subscription.

Sunday, September 06, 2015

Life, and the meaning of Proust

“In Search of Lost Time” – what does that mean? It is the search for happiness, for the connection between past happiness and the state of being in the present which allows us to exist outside time and to enjoy the essence of things. It is the search for that which is common to the past and the present and which is more essential than both because it energises the desire to live.

“let a sound, a scent already heard and breathed in the past be heard and breathed anew, simultaneously in the present and in the past, real without being actual, ideal without being abstract, then instantly the permanent and characteristic essence hidden in things is freed and our true being which has for long seemed dead but was not so in other ways awakes and revives, thanks to this celestial nourishment.”

Although the book has strong themes of unequal love, of jealousy, hatred and disgust, of death and grief, there is also an irrepressible happiness. The point is that, although time will eventually drag us all down, it is only the extent to which our spirit has soared with the joy of life that really matters.

Saturday, September 05, 2015

Proust posting 3: On human nature

Contemplation of human nature calls to mind the relationship between what we think and what we do. Proust found human nature endlessly (yes) interesting. Here, among his observations, are my favourites:

A. Our place in society
Everyone has their place:
“ “Oriane,” (at once Mme. des Laumes looked with amused astonishment towards an invisible third, whom she seemed to call to witness that she had never authorised Mme. de Gallardon to use her Christian name).”

And we want to be superior:
“she never gets a chance of being a snob; she doesn’t know anyone.”

We mark our superiority politely:
“She treated each of them with that charming courtesy with which well-bred people treat their inferiors ...”

“... “But you are our equal, if not our superior,” the Guermantes seemed, in all their actions, to be saying; and they said it in the most courteous fashion imaginable, to be loved, admired, but not to be believed; that one should discern the fictitious character of this affability was what they called being well-bred; to suppose it to be genuine, a sign of ill-breeding. ...”

“... they are naturally polite to anybody, as beautiful women are glad to bestow a smile which they know to be so joyfully received. ...”

“... he was sufficiently persuaded of his own importance to be able to mix with the very humblest people.”

B. Our relationships
We get over people:
“Nothing can be more affectionate than this sort of correspondence between friends who do not wish to see one another any more.”

We disconnect mutually:
“... the fiction of a mutual incognito, on hearing her friend’s name from the manager she merely looked the other way, and pretended not to see Mme. de Villeparisis, who, realising that my grandmother did not want to be recognised, looked also into the void.”

We try to impress:
“ “In fact, it was drolatic,” put in M. de Guermantes, whose odd vocabulary enabled people in society to declare that he was no fool and literary people, at the same time, to regard him as a complete imbecile.”

Aggressively we try to deflect criticism:
“... people against whom certain things may be hinted like to shew that they are not afraid to mention them.”

Gaydar alert!
“There is a special kind of glance, apparently of recognition, which a young man never receives from certain women — nor from certain men — after the day on which they have made his acquaintance and have learned that he is the friend of people with whom they too are intimate.”

C. Our own natures
I’m nasty, but funny with it:
“... it’s often difficult not to be a little spiteful when one is so full of wit ...”

“... “Mme. Verdurin, why, I used to know her terribly well!” with an affectation of humility, like a great lady who tells you that she has taken the tram.”

Stress can reveal us as essentially silly:
“... an exclamation the silliness of which kept him from sleeping for at least a week afterwards. His remark was of no great interest, but I remembered it as a proof that sometimes in this life, under the stress of an exceptional emotion, people do say what is in their minds.”

Meaning can get lost when one has to be polite:
“... she answered as she did, in order not to seem to be unaware of what I meant, as in a conversation one assumes an understanding air when somebody talks of Fourrier or of Tobolsk without even knowing what these names mean. ...”

“... the sterile pleasure of a social contact which excludes all penetrating thought”

Our errors compound:
“... the ill-balanced mentality of early manhood (a period in which, even in the middle class, one appears ungrateful and behaves like a cad because, having forgotten for months to write to a benefactor after he has lost his wife, one then ceases to nod to him in the street so as to simplify matters),...”

We can have a self-perpetuating insecurity:
“But he was so anxious not to let it be seen that he was not sought after, that he dared not offer himself. ...”

“... “You don’t happen to know what you will be doing in the next few days, because I shall probably be somewhere in the neighbourhood of Balbec? Not that it makes the slightest difference, I just thought I would ask you.” This air deceived nobody, and the inverse signs whereby we express our sentiments by their opposites are so clearly legible that we ask ourselves how there can still be people who say, for instance: “I have so many invitations that I don’t know where to lay my head” to conceal the fact that they have been invited nowhere.”

We can try to wound with silence:
“M. de Charlus made no reply and looked as if he had not heard, which was one of his favourite forms of insolence.”

We like to be noticed:
“ “You are the talk of the Conservatoire,” she added, feeling that this was the argument that carried most weight; ...”

Our attacks are justified:
“People are not always very tolerant of the tears which they themselves have provoked.”

We must make an effort to be social:
“... said the Duchess, making an effort in order to speak of a matter which did not interest her.”

The children must get established:
“... the great receptions given by Mme. de Marsantes and Mme. de Forcheville, given year after year with an eye chiefly to the establishment, upon a brilliant footing, of their children, ...”

There are times when we must appear decent:
“... he assumed the modest air of one who is not asking for payment.”

Friday, September 04, 2015

Proust on how to write a great big book

Continuing from last time ... Twelve tips from the master:

1. All this writing and just one book?
“I explained to Albertine that the great men of letters have never created more than a single work ...”

2. The grind gets it done:
“it is not the desire to become famous but the habit of being laborious that enables us to produce a finished work ...”

3. The effort can even be tiring:
“Perhaps some of the greatest masterpieces were written yawning.”

4. Don’t admit to being unoriginal:
“In this book ... there is not a single event which is not fictitious, in which there is not a single personage “a clef”, where I have invented everything to suit the requirements of my presentation ...”

5. Just because I use the first person, doesn’t mean it’s me!
“As soon as she was able to speak she said: “My ——-” or “My dearest ——” followed by my Christian name, which, if we give the narrator the same name as the author of this book, would be ‘My Marcel,’ or ‘My dearest Marcel.’”

6. It’s really about YOU:
“every reader, as he reads, is the reader of himself.”

7. Obsessive writer, obsessive reader:
“the writer, in creating each character, would have to present it from conflicting standpoints so that his book should have solidity, he would have to prepare it with meticulous care, perpetually regrouping his forces as for an offensive, to bear it as a load, to accept it as the object of his life, to build it like a church, to follow it like a rĂ©gime, to overcome it like an obstacle, to win it like a friendship, to nourish it like a child, to create it like a world, mindful of those mysteries which probably only have their explanation in other worlds, the presentiment of which moves us most in life and in art.”

8. Don’t be preachy-preachy – or at least don’t admit to it:
“that vulgar temptation of an author to write intellectual works. A great indelicacy. A work in which there are theories is like an object upon which the price is marked.”

9. They won’t understand!
“I was soon able to show an outline of my project. No one understood it.”

10. Be your own favourite author:
“I read the article [that I had written] forcing myself to imagine that it was written by some one else. Then all my images, all my reflexions, all my epithets taken by themselves and without the memory of the check which they had given to my intentions, charmed me by their brilliance, their amplitude, their depth.”

11. Just reveal the great universal laws of human nature:
“It is the feeling for the general in the potential writer, which selects material suitable to a work of art because of its generality. He only pays attention to others, however dull and tiresome, because in repeating what their kind say like parrots, they are for that very reason prophetic birds, spokesmen of a psychological law. He recalls only what is general.”

12. And remember, for the publisher it’s all about the money:
“the impenetrable solidity of certain commercial houses, booksellers’ for example or printing presses, where the wretched author will never succeed, notwithstanding the diversity of the persons employed in them, in discovering whether he is being swindled or not.”

Tuesday, September 01, 2015

Marcel the joker

In search of lost laughs
I have just finished reading Proust’s “In search of lost time”, in the translation by CK Scott Moncrieff (vol 1-6) and Sydney Schiff (vol 7), Centaur Editions, available on Kindle.

Literary types argue over the merits of this translation, and it has been contended that it is better than the original French – a mischievous wit suggested that, if so, it should be translated back into French.

Proust could have fun:

... he began once more to cough and expectorate over me. “Don’t tire yourself by trying to speak,” I said to him with an air of kindly interest, which was feigned.

... he said of one of M. Verdurin’s footmen: “Isn’t he the Baron’s mistress?”

“... You must know far more than I do, M. de Charlus, about getting hold of sailors.”

... his stock of Latin quotations was extremely limited, albeit sufficient to astound his pupils.

... he had that detailed knowledge of Paris only to be found in people who seldom go there.

She looked like an exhausted swimmer far from shore who painfully manages to keep her head above the waves of time which were submerging her.

... the Duchesse de Guermantes’ cheeks which had remained remarkably unchanged though they now seemed compounded of nougat ...

His formerly brick-red skin had become gravely pale; silver hair, slight stoutness, Doge-like dignity and a chronic fatigue which gave him a constant longing for sleep, combined to produce a new and impressive majesty.

Somebody mentioned a name and I was stupefied to know it applied at one and the same time to my former blonde dance-partner and to the stout elderly lady who moved ponderously past me.

... the Princesse de Guermantes’ locks, when they were grey, had the brilliance of silvery silk round her protuberant brow but now having determined to become white seemed to be made of wool and stuffing and resembled soiled snow.

He declared that I had not changed by which I grasped that he did not think he had.

... for three years she had been taking cocaine and other drugs. Her eyes deeply and darkly rimmed were haggard, her mouth had a strange twitch.

“You took me for my mother,” Gilberte had said and it was true. For that matter it was a compliment to the daughter.

For this American woman, dinner-parties and social functions were a sort of Berlitz school. She repeated names she heard without any knowledge of their significance.

So people said: “You’ve forgotten. So and so is dead,” as they might have said: “He’s decorated, he’s a member of the Academy,” or — which came to the same thing as it prevented his coming to parties — “he has gone to spend the winter in the south ” ...

Hearing that Mme d’Arpajon was really dead, the old maid cast an alarmed glance at her mother fearing that the news of the death of one of her contemporaries might be a shock to her; she imagined in anticipation people alluding to her own mother’s death by explaining that “she died as the result of a shock through the death of Mme d’Arpajon.” But on the contrary, her mother’s expression was that of having won a competition against formidable rivals whenever anyone of her own age passed away.

Monday, July 06, 2015

Messing with LCN DNA

The delights of Bayesian probability reasoning are sufficient to draw from me another case comment!

Our Court of Appeal, in Manoharan v R [2015] NZCA 237 (11 June 2015), has said that a likelihood ratio of 20 is “not strong” [52].

This was an LCN DNA analysis and obviously compared to the usual DNA results of likelihood ratios in the many millions, 20 is not high. But in the context of a case it can be, as can be seen from the results of applying Bayes’ Theorem (this was a single-issue case involving independent items of evidence).

I should emphasise that the single-issue nature of this case ("who did it?", an actus reus issue) simplifies the use of Bayes' theorem. Where several elements of the offence charged are in issue, the theorem must be applied to each separately, and only evidence relevant to that issue is used in each application. This prevents, for example, a huge scientific LR on the issue of identity from swamping the issue of intention. For each issue the "probability of guilt" means the probability that that issue is proved to the standard required for guilt to be established.

The likelihood ratio used by the scientists in declaring a match is not necessarily the same as the likelihood ratio for the match evidence used by the fact-finder in the trial. This is because the defence may have an innocent explanation for the match which brings the denominator of the likelihood ratio (the probability of getting the match on the assumption that the defendant is innocent) close to the value of the numerator. Then, the probative value of the test result for the prosecutor would be very reduced or even extinguished.

The scientific LR of 20 to 1 in favour of a match is used to calculate the numerator of the LR at trial: the probability of getting the evidence of a match on the assumption that the defendant is guilty. Often a scientific LR for DNA is in the millions, resulting in a trial LR numerator of approximately 1. But here the numerator will be much less: a ratio of 20 to 1 is a probability in favour of 20/21 = 0.95.

We can compare what the probability of guilt would have been if the scientific LR had been in the millions and the trial LR numerator approximately 1, with what the probability of guilt would be under the revised scientific LR and corresponding new trial LR, for priors (that is, the ratio of probability of guilt to probability of innocence, based on all the other evidence in the case, for this single-issue case) of various levels. (For multi-issue cases the priors will be assessed separately for each issue.)

Fortunately this comes down to a simple relationship: the new probability of guilt is 0.95 times the old probability of guilt. The assumption is that with an LR in the millions, the probability of guilt is 1, whereas with a reduced LR of 20 the probability of guilt is 0.95, the priors being the same in each alternative.

This means that the scientific match evidence isn't as probative as it was when the scientific LR was in the millions, but the reduction is fairly small - although it could make the difference between proof beyond reasonable doubt and acquittal:
  • If the old probability of guilt, on all the evidence at trial, had been 0.95, the reduced scientific LR decreases the final new probability of guilt to 0.90.
  • If the old probability of guilt was higher, say 0.98, the reduced scientific LR reduces that to 0.93.
  • And, if the old probability of guilt was 0.90, the reduced scientific LR decreases that to 0.86.
Another perspective on the size of a LR of 20 is obtained from considering a case where the evidence is not given, compared to one where it is.
  • If, without the evidence, the probability of guilt is 0.90, then with the evidence that probability increases to 0.99.
  • If, without the evidence, the probability of guilt is 0.60, then with the evidence that probability increases to 0.96.
  • And, if, without the evidence, the probability of guilt is 0.30, then with the evidence that probability increases to 0.89.
These latter 3 examples show that evidence with LR = 20 can have strong probative value, and the first 3 examples show that this value is less than it can be when the LR is much higher.

Which perspective was appropriate in this case? The Court was anxious to remove what it called the CSI effect (the jury might wrongly assume that a DNA match was conclusive evidence of guilt), and this is supported by the first perspective. The danger was that the second, and more relevant, perspective would be overlooked.

Perhaps the Court under-emphasised the strength of the DNA evidence in this case. It approved defence counsel’s submission that the jury should have been told that in New Zealand it was likely that there are 200,000 people who would have the same profile. The fallacy is to include people who had no opportunity to commit the crime.

Update: on 28 October 2015 the Supreme Court refused leave to appeal: Manoharan v R [2015] NZSC 156. The Court could see no basis to indicate that the Court of Appeal had been wrong when it had held that there had been no miscarriage of justice.