LAWS1206 Lecture Notes - Lecture 5: Means Test, Indictable Offence, Deferral
Week 3 Wednesday
Right to silence – caution
Bail
Prosecutorial decisions and obligations
Fair trial legal representation, BRD
Committal
Disclosure
Pleas
Sentencing
Wednesday, 8 March 2017
16:06
Right to silence
Caution and summary of Pt 9 must be given: s 122(1) LE(PR)A
Person req to sign acknowledgement that information has been given: see s
122(3) LE(PR)A
S 123 communicate with someone (inc. lawyer): exception if custody
manager believes on reasonable grounds it was very urgent
See also ss 124 (communicate with consular official) and 128
(interpreter)
S 123 subject to an exception, in s 125(1) if custody manager believes
on reasonable grounds that doing so is likely result in:
(a) accomplice avoid arrest, or
(b) conceal, fabrication, destruction or loss of evidence or intimidate witness,
or
(c) hinder recovery of person or property concerned in the offence, or
(d) bodily injury being caused to any other person.
See s 125(2): ‘…investigation so urgent, having regard to the safety of other
persons’…
Custody records (COPS) to be maintained (see 131): a narrative of everything
that has taken place in the police
Custody manager is required to inform the accused before any questioning can start,
inform orally , provide facilities in order for the accused to do that
Non-Australian: required to inform their consular s124
CRIME Guidelines
Right to silence not an absolute right
General
You do not have any power to detain or arrest someone merely to question them.
All people have the Common Law right to silence, except where the law
requires them to provide information.
find more resources at oneclass.com
find more resources at oneclass.com
…
Once a suspect makes it clear that they will not answer anymore questions, as a
matter of fairness to them, put the details of the allegations to them (eg: In fairness
to you I am going to put the allegation to you. Do you understand that?). If the
suspect comments and answers the allegations you may continue to ask questions
until the suspect objects. However, once you put the allegation/s in full don’t
continue questioning suspects if they make it clear they are not prepared answer
your questions.
Modified caution in s 89A of the Evidence Act 1995 (NSW)
Starting position is s 89 of the Evidence Act 1995 (NSW)
89 Evidence of silence generally
(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a
party must not be drawn from evidence that the party or another person failed or
refused:
(a) to answer one or more questions, or
(b) to respond to a representation,
put or made to the party or other person by an investigating official who at that
time was performing functions in connection with the investigation of the
commission, or possible commission, of an offence.
(2) Evidence of that kind is not admissible if it can only be used to draw such an
inference.
Person not obliged to answer anything that is put to them by police
officials
The police have to make a case against them
We have seen this right protected at various point in the criminal process.
‘The burden of proving guilt beyond reasonable doubt rests on the prosecution
from first to last, and, even though the defendant remains silent after a prima facie
case has been launched against him, it may very well be that he ought to be
acquitted.’
May v O’Sullivan (1955) 92 CLR 654 (unanimous Dixon CJ, Webb, Fullagar,
Kitto and Taylor JJ)
89 Evidence of silence generally
(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a
party must not be drawn from evidence that the party or another person failed or
refused:
(a) to answer one or more questions, or
(b) to respond to a representation,
put or made to the party or other person by an investigating official who at that
time was performing functions in connection with the investigation of the
commission, or possible commission, of an offence.
(2) Evidence of that kind is not admissible if it can only be used to draw such an
inference.
find more resources at oneclass.com
find more resources at oneclass.com
89A Evidence of silence in criminal proceedings for serious indictable offences
…
(9) In this section:
official questioning of a defendant in relation to a serious indictable offence means
questions put to the defendant by an investigating official who at that time was
performing functions in connection with the investigation of the commission, or
possible commission, of the serious indictable offence.
special caution means a caution given to a person that is to the effect that:
(a) the person does not have to say or do anything, but it may harm the person’s
defence if the person does not mention when questioned something the person later
relies on in court, and
(b) anything the person does say or do may be used in evidence.
89A Evidence of silence in criminal proceedings for serious indictable offences
(1) In a criminal proceeding for a serious indictable offence, such unfavourable
inferences may be drawn as appear proper from evidence that, during official
questioning in relation to the offence, the defendant failed or refused to mention a fact:
(a) that the defendant could reasonably have been expected to mention in the
circumstances existing at the time, and
(b) that is relied on in his or her defence in that proceeding.
(2) Subsection (1) does not apply unless:
(a) a special caution was given to the defendant by an investigating official who,
at the time the caution was given, had reasonable cause to suspect that the
defendant had committed the serious indictable offence, and
(b) the special caution was given before the failure or refusal to mention the fact,
and
(c) the special caution was given in the presence of an Australian legal
practitioner who was acting for the defendant at that time, and
(d) the defendant had, before the failure or refusal to mention the fact, been
allowed a reasonable opportunity to consult with that Australian legal
practitioner, in the absence of the investigating official, about the general nature
and effect of special cautions.
…
(4) An investigating official must not give a special caution to a person being
questioned in relation to an offence unless satisfied that the offence is a serious
indictable offence.
By not saying anything, it may draw a negative inference, of why the
accused didn't say anything
Doesn’t apply to people who are under 18, or people with special disabilities
who don’t understand
(5) This section does not apply:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Caution and summary of pt 9 must be given: s 122(1) le(pr)a. Person req to sign acknowledgement that information has been given: see s. S 123 communicate with someone (inc. lawyer): exception if custody manager believes on reasonable grounds it was very urgent. See also ss 124 (communicate with consular official) and 128 (interpreter) on reasonable grounds that doing so is likely result in: See s 125(2): investigation so urgent, having regard to the safety of other persons" that has taken place in the police. Custody records (cops) to be maintained (see 131): a narrative of everything. Custody manager is required to inform the accused before any questioning can start, inform orally , provide facilities in order for the accused to do that. You do not have any power to detain or arrest someone merely to question them. All people have the common law right to silence, except where the law requires them to provide information.
