Managing Suspects & Offenders

Question 1

Everyone charged with an offence has the right to….(rights of person)

Answer 1

A) The right to consult and instruct a lawyer

B) Informed promptly and in detail of the nature of the allegation

C) The right to adequate time and facilities to prepare a defence

D) Shall be released on reasonable terms and conditions unless there is just cause for continued detention.

E) shall have the right to legal assistance without cost if the interests of justice so require

F)shall have right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court.

G) jury trial for 2 year + offence

Question 2

When is evidence offered by the prosecution of a statement made by a defendant not admissible against that defendant?

Answer 2

Evidence Act 2006

S28 - The reliability rule

S29 - The oppression rule

S30 - The improperly obtained evidence rule

Question 3

Is evidence offered by the prosecution of a statement made by a co-defendant in a proceeding admissible?

Answer 3

No.

Question 4

What relevant matters must a judge take into account when excluding a defendants statement made to police? What matters would make the statement not able to be used?
s4(a)

Answer 4

• any relevant physical, mental or psychological conditions of the defendant
• any relevant, physical, mental, intellectual or disability characteristics of the defendant
• nature of questions by interviewer
• nature of any threat, promise or representation made to the defendant

Question 5

If a person has been told to remain silent by a lawyer, does this prohibit Police from asking further questions of that person?

Answer 5

No - there is no prohibition on further questioning by the Police after the right to silence has been asserted.

Question 6

What is a statement?

Answer 6

A statement is a spoken or written assertion of any matter or non verbal conduct that is intended as an assertion of any matter.

Question 7

What does oppression involve?

Evidence Act 2006 - s.29 The Oppression Rule.

Answer 7

Oppressive, violent, inhuman, or degrading conduct towards, or treatment of the defendant or another person;
OR
a threat of conduct or treatment of that kind.

Question 8

Section 16 - Freedom of peaceful assembly refers to what?

Answer 8

Everyone has the right to freedom of peaceful assembly.

Question 9

Sec 14 - What is Freedom of expression

Answer 9

Everyone has the right to freedom of expression including the freedom to seek, receive and impart information and opinions of any kind and in any form.

Question 10

Sec 21 - Right to be secure against unreasonable search or seizure.

Answer 10

Under s.21 everyone has the right to be secure against unreasonable search and seizure, whether of the person, property, or correspondence or otherwise.

Generally, a search or seizure will be reasonable if it is conducted under a statutory power and the public interest in administering criminal justice outweighs the individuals right to privacy.

Question 11

S29 - When must a judge exclude a statement influenced by oppression?

Answer 11

The judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.

Question 12

What is the threshold for demonstrations behavior to be an offence or breach of the peace?

Answer 12

The behavior must either substantially inhibit other people from enjoying their right to use the public amenity or cause greater offence to those affected can be expected to tolerate, to the extent that it is seriously disruptive of public order.

Question 13

S28 - When must a judge exclude an unreliable statement?

Answer 13

The judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.

Question 14

Is any person called upon by a constable to assist in execution process (Search warrant) or arrest, protected from criminal liability if use of force occurs?

Answer 14

Yes UNLESS the force used was intended or likely to cause death or GBH.

Question 15

Under s42 CA61 - Preventing breach of peace, what is stipulated in each of the 3 subsections?

Answer 15

Subsection 1 - Everyone who witnesses a breach of peace is justified in interfering to prevent it continuing and may detain the person committing it in order to handover into custody of Constable.
May use reasonable or proportionate force to prevent continuance or renewal.

Subsection 2- Every Constable who witnesses a breach of the peace and every person lawfully assisting him is justified in arresting anyone whom he finds committing it.

Subsection 3 - Every constable is justified in receiving into custody any persons given into his charge, as having been a party to a breach of the peace by one who has witnessed it or whom the Constable believes on reasonable probable grounds to have witnessed it.

Question 16

What is the defense to a charge of an Offensive weapon under subsection 4(b)?

Answer 16

If a person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offense involving bodily injury or the threat or fear of violence.

Question 17

What was held in Attorney General versus Reid in relation to arrest for breach of the peace?

Answer 17

The court held there is no power to arrest for an anticipated breach of the peace. The proper procedure where breaches are anticipated and the persons concern fail to desist is to arrest for obstruction.

Question 18

When is a person defined as being detained?

Answer 18

They are detained if

– there is physical deprivation of persons liberty, or
– there are statutory restraints on a persons movement, or
- They have a reasonable belief induced by police conduct and they’re not free to leave.

Question 19

What is the exception to giving rights immediately upon arrest or detainment? Provide 2 examples.

Answer 19

-Where an officers immediate safety is threatened.
- Where there is an ongoing and real danger that evidence will be lost

Question 20

The suspect is not obliged to have a lawyer present during the interview.
However the waiver of the right to lawyer in s24(c) must be established in an unequivocal (no doubt) manner.

What case law refers to this?

Answer 20

Police v Koehler

Question 21

What is the Chief Justice note on Police Questioning?

Answer 21

Any questions you put to a person in custody, or in respect of whom there is sufficient evidence to file a charge, must not amount to cross-examination.

Question 22

What are the 5 Practice notes of Police Questioning?
s30(6) Evidence Act 2006
Explain them.

Answer 22

Answer:
1) A Police member may ask question of anyone from which useful information can be obtained whether its a suspect or not
Must not suggest it is compulsory to answer.

2) When police has sufficient evidence to charge for an offence or whenever questioning a person in custody they must be cautioned before asked to make a statement.

3) Questions asked of a person in custody or in respect of whom there is sufficient evidence to the charge must not amount to cross examination

4) Whenever a person’s question about statements made by others or about other evidence the substance of the statements or the nature of the evidence must be fairly explained.

5) All statements should be recorded by video recording unless it is impractical unless a person applies to be recorded by video. If recorded by video the person must be given the opportunity to review the tape or if a written statement to correct errors or add anything further.

Written statements must be signed.

Question 23

Phillips v R what was found in relation to Questioning of offender?

Answer 23

The officer recorded the original statement in his note book but did not record any subsequent retraction or alternative story that the offender later gave him. This is a breach of Rule 5 of the Chief Justice Practice Notes of Police Questioning.

Question 24

In Robertson v R what was the result of the officer recording what the offender had blurted out in a partial admission to a sexual assault?

Answer 24

The court found that the officer had breached Rule 5 and Rule 2 by not having the offender view and sign his notebook and the offender was not re-cautioned prior to being spoken to about the allegations.