17: D's silence

Question 1

Do lies mean someone is guilty?

Answer 1

Lies – MAY indicate guilt

Question 2

When pros try to rely on lie to support evid guilt, NOT credibility,

What MAY/MUST be given?

Answer 2

3-fold Lucas direction MUST be given

Question 3

What is a three-fold Lucas direction?

Answer 3

1. Lie must be deliberate and relate to material issue.
2. No innocent motive for lie, reminding them people lie to conceal disgraceful behaviour;
3. Lie must be established by evidence other than of W

Question 4

A 3 fold Lucas direction does not need to be given where:

Answer 4

Direction need not be given when:

1. It is useless
2. D offers explanation for his + judge dealt with this explanation in summing-up.

Question 5

Where is there a need for a Lucas direction?

Answer 5

Need for direction arises where pros/judge envisages jury may say lie is evidence against D.

Question 6

Four Burge Situation = Lucas direction norm required where:

Answer 6

1. D relies on alibi;
2. Judge considers it desirable or necessary;
3. Pros seek to show something said, in relation to separate + distinct issue was a lie + rely on lie as evidence of guilt;
4. Judge reasonably envisages that real danger jury may do so.

Question 7

A Lucas direction should be tailed to case but:

Answer 7

• Lie must be admitted or proved beyond reasonable doubt; and
• Mere fact D lied = NOT evidence of guilt, so only if jury SURE D didn’t lie for innocent reasons can lie support pros

Question 8

What is D’s right to silence?

Answer 8

D’s right against self-incrimination. D NOT compellable witness + under no duty to assist police with inquiries. Adverse inferences MAY be drawn from D’s silence.

Question 9

What is s34?

Answer 9

Failure to reveal facts: s34 allows tribunal of fact to draw “such inferences as appear proper”.

OUT OF COURT SILENCE s34 – No special warning required for s34.

Question 10

OUT OF COURT SILENCE s34 –

”. S34 doesn’t apply simply because

Answer 10

D declined to answer question. It also applies where D discloses def, but fails to mention a fact he later relies on = then DISCRETION to give warning.

Failure to give proper direction NOT necessarily involve breach Art 6, nor render conviction unsafe.

Question 11

OUT OF COURT SILENCE s34

S34 doesn’t apply where D =

Answer 11

no attempt to put forward at trial a previously undisclosed fact. To give s34 direction where D put forward no more than bare denial = WRONG. If pros unable establish D failed mention fact – jury directed = draw no inference.

Question 12

OUT OF COURT SILENCE s34

Does a prepared statement apply?

Answer 12

Where D gives “prepared statement” = cannot be said he failed to mention facts.

Question 13

. Caution or Charge = inferences before suspect charged under s34, MAY or MAY NOT be drawn?

Answer 13

Caution or Charge = inferences before suspect charged under s34, MAY NOT be drawn except “on being Q. under CAUTION by constable”.

Question 14

OUT OF COURT SILENCE s34

Facts which should have been mentioned =

Can adverse inferences be drawn?

Answer 14

adverse inferences MAY be draw from fact subsequently relied on in def on if D could reasonably have been expected to mention.

’s reason for failing to disclose should be explored + explanation advanced in deciding what inferences should be drawn. Adverse inference = only appropriate where jury conclude silence can only sensibly be attributed to D’s having no answer.

Question 15

What is the position where

Legal advice to remain silent ​

Answer 15

Legal advice to remain silent DOESN’T preclude drawing of inferences.

Question 16

TEST for whether legal advice does or doesn’t preclude drawing of inference?

Answer 16

TEST: whether D remained silent “not because of that advice but because he had no or no satisfactory explanation to give”.

If D claims he followed legal advice, should consider age + maturity and complexity of facts.

Where jury “sure” he had no defence and hid behind legal advice = inference may be drawn.

Waiver of privilege + statement = D who wishes to give account of reasons for silence following legal advice may find it hard to do so without waiving privilege. No waiver for bare assertion that he was advised to remain silent, but little weight will be attached unless reasons.

Question 17

Direction as to permissible inference = Where D could reasonably have been expected to mention fact

what happens?:

Answer 17

permissible to draw “such inferences from failure as appear proper” for determination of guilt. Possible inference:

1. Facts invented after interview;
2. D unwilling to expose his account to scrutiny;
3. D didn’t want to lie or incriminate himself

Where s34 relied, a judicial direction MUST be given.

Question 18

THREE STAGE TEST WHEN APPLYING S34 =

Answer 18

1. Had D relied in his defence a fact that he couldn’t reasonably have been expected to mention
2. The explanation
3. If explanation not reasonable, if inference to be drawn he is guilty.

Question 19

If judge thinks s34 might apply, what should happen?

Answer 19

If judge thinks s34 might apply, matter should be raised in time to be subject of evidence not speculation. A direction MAY be called for when more than 1 D.

If D failed to mention relevant fact (attracting s34 direction), it is desirable to give direction not to draw inference against D2.

Question 20

Relationship with Lucas Direction on lies:

Answer 20

Direction MAY be called in relation to something said by D which pros claim conceals a fact later relied on + constitutes lie. Then may have both s34 direction + Lucas direction. Usually unhelpful to give both; judge should select.

Question 21

FAILURE TO ACCOUNT FOR OBJECTS, SUBSTANCES, MARKS + PRESENCE S36 + 37 = Neither s36 nor s37 permits inference be drawn unless 4 conditions satisfied:

Answer 21

1. D arrested;
2. Constable (not necessarily arresting officer) reasonably believes object, substance, mark or presence of D may be attributable to D’s participation in crime (s36 offence ‘specified by constable; in s37 offence he was arrested);
3. Constable informs D of belief + requests explanation;
4. Constable tells suspect in ordinary language -) effect of failure or refusal to comply with request

Question 22

Four conditions may be satisfied when person

Answer 22

confronted with incriminating circumstances before taken to police station for interview.

Question 23

What is unique about s36 and s37?

Answer 23

Under s36 and s37, a special warning should be put to D.

Question 24

For s36/37 what MUST the jury be satisfied of?:

Answer 24

Jury MUST be satisfied D failed to “account” + explanation advanced = rejected as implausible before inference can be proper. Strength inference increases with suspicion.

Question 25

What is s36 concerned with?

Answer 25

S36 concerned with state suspect @ time of arrest.

Question 26

What does neither s36 or s37 permit?

Answer 26

Neither s36 nor s37 permits drawing inferences in respect of location of D at times other than arrest.

Question 27

When does s37 only apply?

Answer 27

S37 applies only when @ location of crime “at or about the time of commission”.

Inference drawn MAY form part of case to answer or contribute -) guilty verdict = neither outcome may be based “solely” upon inference.

Question 28

NO CONVICTION: WHOLLY/MAINLY ON SILENCE = Person MUST

what?

Answer 28

not have proceedings transferred to CC or be convicted solely on inference from failure/refusal to answer.

Question 29

KEY ELEMENTS

s36 and s37

Answer 29

1. Reminder D was cautioned + said nothing
2. –
   
   1. Identification of facts not mentioned, but now relied on;
   2. Any reasons got failure to mention facts; and
   3. Conclusions which might be drawn
3. Instruction to consider if pros case called for answer at time;
4. Instruction to draw adverse conclusion if “fair + proper” to do so + not convict D wholly or mainly on strength of it

Question 30

Does s35 apply to failure to testify?

What must the court do in this case?

Answer 30

S35 inferences from failure to testify are permissive. Court MUST make D aware he can give evidence + consequence if not = MANDATORY even where D not there, judge MUST make direction. Pre-trial process requires at PTPH = D understands right to give evidence. Counsel MUST recover D’s decision not to give evidence + sign it to indicate it was voluntary.

Question 31

What are

proper” inferences?

Answer 31

D’s whose ‘physical or mental condition make it undesirable’ for them to give evidence are EXCLUDED + whose guilt isn’t in issue.

D MUST answer all proper questions or risk drawing inferences + judge may remind him of duty. S35 direction only appropriate where C has personal knowledge. Legal rep had burden of explaining option to testify + consequences failing.

Question 32

Procedure for D’s silence?

Answer 32

Court MUST make D aware he can give evid + consequences @ PTPH – MANDATORY even if D absconded, Judge MUST make direction. Counsel should record decision of D + sign it + indicate made voluntarily.

Question 33

Proper’ inferences of guilt under s35:

Answer 33

under s35, proper inferences come as a result of failure of D to give evid or refusal without good cause. D whose “physical/mental condition make it undesirable” = excluded + whose guilt is not in issue.

Question 34

What does:

D with physical or mental limitations

mean?

Answer 34

Where D’s condition = undesirable to give evid, no inference should be drawn.

Assumption that desirable for D to testify, so if can be said to be undesirable = will be rare.

S35(1)(b) requires D’s physical/mental condition to be such if giving evid = “significantly adverse effect on him”.

Question 35

Is loss of memory a justification for s35 inferences of guilty?

Answer 35

Loss of memory = NOT justification for not testifying. Voir dire MAY be required, Judge under NO obligation to initiate procedure if def don’t seek. Adverse inference drawn under s35(3) = D “is guilty of offence charged”.

Question 36

S35 doesn’t play until:

Answer 36

after pros evid, so presupposes case established against D. No conviction solely form s35, pros MUST establish a case before question of D testifying is raised. Judge MUST make clear -) jury must be convinced for existence of case before drawing adverse inference. For a judge to advise jury against drawing inference = requires “some evidential basis/exceptional factors” making it fair.

Question 37

s35 Inference cannot be drawn unless

Answer 37

jury decide silence can “Only sensibly be attributed to D having no answer/ none that would stand up in cross-examination.

1. NOT valid argument = D fears if testify pros will adduce bad chara.
2. No inference where pros case = weak. No inference if pros case of = “little evidential value”.

If facts call for explanation or within D’s knowledge = strong inference.

Question 38

s34 doesnt apply if:

Answer 38

1. person questioning is not a police officer/authorised investigator
2. questioning or accusation doesnt take place under caution
3. accused does not rely on fact in his defence
4. questioning did not concern whether or by whom an offence has been committed;
5. failure to mention the fact now relief upon was not unreasonable

If s34 does not apply, the common law rules on inferences from silence may apply.

Question 39

s36

describe the statute

Answer 39

1. where -
   
   1. person arrested by constable, and there is -
      
      1. on his person; or
      2. in or on his clothing or footwear
      3. otherwise in his possession
      4. in any place at time of arrest, any object, substance or marker, or mark on object;
   2. that or another constable… reasonably believes may be attributable to participation of offence; and
   3. constable informs him and requests him to account; and
   4. person fails or refuses to

Question 40

For s36 what must the peson be told?

Answer 40

Suspect must have been told of reasons for suspicion and of the effect of failing to comply with this section.

The officer doesnt need to specifu the precise offence.

Question 41

What is s37

statute

Answer 41

Failure to account for presence at scene of crime

1. Where -
   
   1. person arrested by constable at a place or about time of offence
   2. that or other contable reasonably beluieve presence may be attributatble to offence; and
   3. constable informs person and requests him to account
   4. person fails or refuses

Question 42

For s34 when is the accused required to disclose facts of his defence?

Answer 42

1. Upon being qestioned, but only if:
   
   1. cautioned; and
   2. he has not yet been charged with offence
2. upon being charged, at which point he is cautioned again,

Question 43

What is an important element for s34?

Answer 43

Inference may only be drawn if accused:

1. relis on fact in his defence; and
2. he did not mention fact when questione under caution or charged.