Caution And Rights Flashcards
What are the 4 practical applications of Caution and Rights?
- When you have arrested a person, you must give them a CAUTION AND RIGHTS.
- When you are questioning a person about an offence and have a reasonable belief the person has committed the offence but do not have an arrest power you must give them a CAUTION.
- When you are questioning a person about an offence and have a reasonable belief the person has committed the offence and you have an arrest power but have not arrested the person then you must provide them with a CAUTION AND RIGHTS.
- A caution and rights is not required where the suspect is undergoing a PBT or EBT or has been requested to give their name and address under Section 456AA Crimes Act 1958.
What is the First Section of Section 139 Evidence Act 2008?
For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if-
- The person was under arrest for an offence at the time AND
- The questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person AND
- Before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
What is the second section of Section 139 Evidence Act 2008?
For the purposes of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if-
- The questioning was conducted by an investigating official who did not have the power to arrest the person AND
- The statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence AND
- The investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
What happens to evidence if the Caution and Rights are not given?
Any evidence received from the statement or interview evidence becomes extremely difficult to admit as evidence if it has been obtained improperly.
What are SIQs?
Standard Indigenous Questions.
Who must be asked SIQs?
Section 464AAB mandates that every person taken into custody MUST be asked the Standard Indigenous Question.
What is the SIQ?
Are you of Aboriginal or Torres Strait Islander descent?
What is VALS?
Victorian Aboriginal Legal Service.
When must VALS be notified of an Aboriginal person in custody?
Within 1 hour or as soon as practicable. Applies to both when an Aboriginal is taken into custody and where the Attendance Module is not available, such as in the field.
What must be taken into account when cautioning children?
When cautioning a child, use simple language so that you can be sure the child understands. It may be necessary to ask the child to explain to you what the words mean, to ensure they understand the caution.
What are the Rights given to persons in custody before questioning?
Section 464C of the Crimes Act 1958 sets out certain rights, before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she-
- may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts AND
- may communicate with or attempt to communicate with a legal practitioner (whether the term legal practitioner or lawyer is used), and unless the investigating official believes on reasonable grounds that the communication would result in escape, fabrication or destruction of evidence or that it is so urgent with regard to safety of other people the investigating official must defer the questioning and investigation for a time that is reasonable.
What are the rights as spoken?
“I must also inform you of your rights:
You have the right to communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You have the right to communicate with or attempt to communicate with a legal practitioner.
If you are not a citizen or permanent resident of Australia, you have the right to communicate with or attempt to communicate with the consular office of the country of which you are a citizen.
Do you understand these rights?
Do you wish to exercise any of these rights before the interview proceeds?
What is your age and date of birth?
(For children “Have you been allowed to speak with your parent or guardian, or an independent person before the start of this interview?”)
Are you an Australian Citizen?
Are you a permanent resident in Australia?
Are you of Aboriginal or Torres Strait Islander descent?”
What is the formal caution as spoken?
You are going to be charged with …
You do not have to say or do anything unless you wish to do so but whatever you say or do may be recorded and given in evidence.
Do you understand this?
Do you wish to say anything in answer to the charge?
Do you wish to make a further statement in relation to the matter?
What is the Usual Caution?
I intend to interview you in relation to …(offence)…
Before continuing, I must inform you that you do not have to say or do anything but anything you say or do may be given in evidence. Do you understand that? (for children and mentally impaired persons) “Tell me in your own words what this means”
What are the requirements for persons under 18 years of age?
Section 464E(1) If a person in custody is under the age of 18 years, an investigating official MUST NOT, subject to sub-section (2), question or carry out an investigation under 464A(2) UNLESS:
- a parent or guardian of the person in custody or, if a parent or guardian is not available, an independent person is present AND
- before commencement of any questioning or investigation, the investigating official has allowed the person in custody to communicate with his or her parent or guardian or the independent person in circumstances in which as far as practicable the communication will not be overheard.
