CLP 2 - inferences

Question 1

What are the adverse inference legislative sections?

Answer 1

34 - fact not mentioned
35 - silent at trial
36 - failure to account for a mark, object or substance
37 - failure to account for presence as a scene
38 - can’t convict solely on inference

Question 2

s.34 inference - silence when questioned or charged - from what point does s.34 apply?

Answer 2

Only after arrest and caution - (basically at a police interview)

Question 3

s.34 inference- silence when questioned or charged - in what circumstances does s.34 apply?

Answer 3

• criminal proceedings must have started
• occurred after caution
• by an officer regarding the offence
• on or before charge
• defendant relies on a fact
• It must have been reasonable to have mentioned the fact at the time of questioning bearing in mind all the circumstances existing at the time.

Question 4

s.34 inference - silence when questioned or charged - It must have been reasonable to have mentioned the fact at the time of questioning bearing in mind all the circumstances existing at the time. Which case deals with ‘all the circumstances’?

Answer 4

R v Argent - should be widely interpreted

Question 5

s.36 inference - what is covered by s.36?

Answer 5

Suspect fails to account for an object, substance or mark found on them at the time of arrest.

Question 6

s.37 inference - what is covered by s.37

Answer 6

Suspect fails to account for their presence on arrest at a particular place at or about the time the offence was allegedly committed.

Question 7

What is needed before s.36 and/or s.37 inferences can apply?

Answer 7

Special warning

Question 8

S.34 What is detailed in a special warning?

Answer 8

• offence investigated;
• what fact they are being asked to account for;
• this fact may be due to them taking part in the commission of the offence;
  .
• a court may draw a proper inference if they fail or refuse to account for this fact; and
• a record is being made of the interview and it may be given in evidence if they are brought to trial.

Question 9

s.38 inference - can a person be convicted on inferences alone?

Answer 9

No

Question 10

When can’t inferences under s.34 s.36 & s.37 be made?

Answer 10

Suspect at a police station at the time of the failure and had not been allowed the OPPORTUNITY to consult a lawyer

Note: it’s OPPORTUNITY not whether they spoke to a lawyer.