5.2 Managing Offenders - Evidence Act & Practice Notes Flashcards
Under the Evidence Act 2006, when is a statement not admissable?
Evidence offered by the prosecution of a statement made by a defendant is not admissible against that defendant if it is excluded under s 28, s 29 or s 30.
These sections are:
- the reliability rule (s 28)
- the oppression rule (s 29), and
- the improperly obtained evidence rule (s 30)
When must a judge exclude a statement?
Once a breach of section 23(1)(b) has been established, the trial judge acts rightly in ruling out a consequent admission unless there are circumstances in the particular case satisfying him or her that it is fair and right to allow the admission into evidence.”
What does oppression mean in a legal sense?
(a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or
(b) a threat of conduct or treatment of that kind.
Oppression is to be judged from the perspective of the defendant. The state of mind of the alleged oppressor is irrelevant in the sense that he or she could be unaware that their behaviour is oppressive.
Explain the two tests a judge must apply to ascertain improperly obtained evidence?
- Determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and;
- Takes proper account of the need for an effective and credible system of justice.
How should I record a statement?
Where a person in custody or in respect of whom there is sufficient evidence to charge makes a statement, that statement should preferably be recorded on video or DVD. If not, the statement must be recorded permanently on audiotape or in writing. The person making the statement must be given the opportunity to review the tape or written statement or to have the written statement read over, and must be given the opportunity to make corrections and or add anything further.
Where the statement is recorded in writing the person must be asked if they wish to confirm the record as correct by signing it
What must Police not suggest when speaking to people?
Police may ask questions of any person to assist with inquiries. However, Police must not suggest that the person must answer.
When I have enough evidence to charge someone what must I do.
You must caution them:
- You have been arrested/detained for (give reason)
OR - I am speaking to you about (give reason)
- You have the right to remain silent.
- You do not have to make any statement.
- Anything you say will be recorded and may be given in evidence in court.
- You have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions.
- Police have a list of lawyers you may speak to for free.
What are the recent changes around a child and young person?
We emphasise to children and young people that they can elect to have both a lawyer and a nominated person present if they wish. This change has been made because the current Rights Caution card has led some children and young persons to conclude that they may have a lawyer or a nominated
person.
What else should I consider when dealing with a child or young person?
it is not enough to just read out the Rights Caution card – an officer should explain each right to the child or young person and, ideally, have them explain back to the officer in their own words what each particular right means.
Note in particular that the child or young person must understand what assistance a lawyer will provide and be clear about the mechanics of instructing a lawyer.
What words might I use to explain this?
“I have explained to you your right to a lawyer who will help you for free. Do you wish us to call a lawyer to come and see you?”
When I question a suspect about statements made by others, what might I consider?
When a suspect is questioned about statements made by others, the substance of the allegation must be put to the suspect.
It will not be sufficient, for example, to refer to general evidence (such as “we have witnesses who will identify you at the scene, what do you say to that”); instead the substance of that part of the
statement should be put (for example, the description of the suspect that the
person has given).
Police must not deceive suspects by trickery or by misrepresenting the truth.
Phillips v R – Voluntary statements inadmissible if not recorded ‘fairly’ in accordance with the Practice Note on Police Questioning. It involved a suspect telling Police he drove to a place he was arrested for fighting.
The High Court held that although the unfair conduct was unrelated to the voluntary admissions, the recording of P’s alleged statement was unfair. Failing to take full, accurate notes, that P had the opportunity to review created the situation that rule 5 is designed to avoid. From the outset of the analysis, the Court emphasised the importance of complying with rule 5 and outlined that failure to do so would weigh heavily in favour of excluding evidence.
