CLP 3 - inferences Flashcards
Is a solicitor’s role passive
No
What are the adverse inference legislative sections?
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
s.34 inference - silence when questioned or charged - from what point does s.34 apply?
Only after arrest and caution - (basically at a police interview)
s.34 inference- silence when questioned or charged - in what circumstances does s.34 apply?
- 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.
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’?
R v Argent - should be widely interpreted
s.36 inference - what is covered by s.36?
Suspect fails to account for an object, substance or mark found on them at the time of arrest.
s.37 inference - what is covered by s.37
Suspect fails to account for their presence on arrest at a particular place at or about the time the offence was allegedly committed.
What is needed before s.36 and/or s.37 inferences can apply?
Special warning
S.34 What is detailed in a special warning?
- 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.
s.38 inference - can a person be convicted on inferences alone?
No
When can’t inferences under s.34 s.36 & s.37 be made?
Suspect at a police station at the time of the failure and had not been allowed the OPPORTUNITY to consult a lawyer
Note: its OPPORTUNITY not whether they spoke to a lawyer.
When MUST an ID procedure be held?
Unless known to the eye witness;
- An offence has been witnessed and an eye-witness:
- has identified a suspect or purported to have identified them; or
- is available who expresses an ability to identify the suspect; or
- has a reasonable chance of being able to identify the suspect.
- The suspect disputes being the person the eye-witness claims to have seen.
Is a Turnbull direction required in every case involving visual ID?
No ONLY required where case depends wholly or substantially on visual ID evidence
What are the Turnbull considerations when considering whether visual identification evidence is of good quality?
- Length of time witness observed
- whether the view was clear
- distance, lighting and weather conditions
- whether the suspect was already known to the witness
- time between observation and identification to police
- discrepancies between witness description and suspect appearance
- whether there are significant discrepancies in the defence
What Turnbull direction should a judge to the jury give if visual identification is of good quality, or poor quality but supported by other evidence
- convincing witnesses can be mistaken
- need to examine circumstances in which identification was made
ONLY required where case depends wholly or substantially on visual ID evidence
