Caution Flashcards
if a suspect is not cautioned prior to questioning; is the evidence obtained excluded in court.
Give example
1) No - does not necessarily mean that the admissions will be excluded, court has discretion to exclude evidence of admissions if caution not given .
- Exclusion of the admission will be determined on how the rule was infringed.
McDermott V The King (1948)
The members failed to comply with the judges rules of giving caution to crook it does not render the admissions made inadmissible.
What is the basis of the common law caution
Legal Perspective
1) admissions should be made voluntarily
- otherwise it will not be admitted into evidence
Police Perspective
2) purpose is not to protect the crook from self incrimination but
- compulsion to incriminate himself
ie due to the interrogation of the PO crook now wanting to say that he did the murder when he actually did not
Crook Perspective
3)Because he is in police custody he wrongly thinks that he is required to answer because if he doesn’t then it will be far worse for him
When should the caution be given
When the investigating official has formed the belief that there sufficient information to est that the person has committed the offence
When are admissions excluded
- > when police fail to caution
- >evidence improperly obtained
What is the opposite to McDermott V The King (1948)
1) R V Li (1993)
- held that failure to caution rendered an interview inadmissible.
HOWEVER
-the only difference being in this case was the accused was already in custody therefore entitled to caution.
Where as MCDERMOTT was not held in custody
-and the issue was not whether Li was held in custody the issue was whether Li understood the caution.
when a person is cautioned against s49(1) RSA
is the caution the same
No.
PO must not tell the offender that he does not have “to do anything”
The caution should be “you do not have to say anything, however if a requirement is made for 1)blood or
2) breath sample and
3) to accompany me for the purposes of this,
than you required to do that. do you understand?
If you refuse than you maybe charged under the RSA for refusal”
When a person is in custody for 49(1) RSA are they able to communicate FRL
No nor do they have a right to an interpreter
