Q + A Flashcards
Can you arrest a person for the purpose of gathering information?
No.
What is the meaning of the term “arbitrary detention” as explained in R v. Goodwin?
When words or conduct of an officer cause a person to believe that he or she is not free to go (any person).
Who does S24 of the BOR Act (A person shall be released on reasonable terms and conditions unless there is just cause for detention) apply to?
A person charged with an offence and processed accordingly.
When is a person “in custody”?
When words of arrest and physical touch clearly signal the person is not free.
Do Police have a power to detain suspects for questioning without arrest/lawful detention?
No.
During an interview where the person has not been arrested or detained, but agreed to the interview, can they refuse a video or audio record? (S22 BOR Act)
Yes.
During an interview where the person has not been arrested or detained, but agreed to the interview, if they change their mind about answering your questions mid-interview, should they be read their rights again? (S22 BOR Act)
Yes.
During an interview where the person has not been arrested or detained, but agreed to the interview, do they necessarily need to be cautioned at the start? (S22 BOR Act)
No.
Should you avoid interviewing persons you have arrested on the grounds that they need to appear before a court ASAP?
No.
What is it called when a person is detained for questioning without understanding they are free to leave?
Arbitrary detention.
What type of detention is it when a person is detained under an enactment, and exercises their right to silence?
Lawful detention.
What is it called when a person in lawful authority uses that authority to restrict the movement of another?
Arrest.
What is “representation” as an interviewer behaviour?
When an interviewer promises a favor in return for a requested action.
What is the definition of “oppression” under S29 of the Evidence Act?
Threats, degrading treatment or violence to the defendant or any other person.
Would an interviewer not ensuring that a suspect really understands his rights during interview be an example of evidence that has been improperly obtained?
Yes.
Is a “statement” limited to a written or verbal assertion only?
No.
What grounds would a victim of familial offending have to have a video interview played in Court as their evidence-in-chief?
Nature of the offending, relationship between complainant and defendant, trauma suffered.
Would ignoring a suspect’s request for a lawyer and continuing to interview them without one be an example of an interview record that has been improperly obtained?
Yes.
When must a judge exclude a statement on the basis of it’s reliability?
When he or she is satisfied on the balance of probabilities that the circumstances in which the statement was given adversely affected it’s reliability.
What is the standard of proof required for a judge to exclude a defendant’s statement on the basis that it was affected by oppression?
Beyond reasonable doubt.
What are two considerations that a judge may make when deciding whether evidence was improperly obtained?
Whether the impropriety was necessary to avoid physical danger to the Police or others.
The importance of any right breached and the seriousness of it.
When deciding whether to accept an application for a witness to give evidence in an alternative way, should the judge consider the promotion of the complainant’s recovery from the offence?
Yes.
Are applications for giving evidence in an alternative way limited to family of offenders, or victims of certain offences only?
No.
Do characteristics of a suspect not present at the time of interview have to be considered when deciding whether an interview with them is admissible?
Yes.
Is evidence obtained unfairly or unlawfully considered improperly obtained?
Yes.
Are statements made by the Defendant admissible against them as hearsay evidence?
Yes.
What grounds might a witness have to have their video interview played as evidence-in-chief when they have no relationship to the victim or the offender?
If the event has traumatised them, or if they are otherwise unavailable at the time the case goes to trial.
Would a suspect interview be potentially considered unreliable if the suspect is tired and clearly unwell but not offered an interview break?
Yes.
What is the standard of proof required for a judge to exclude a defendant’s statement on the grounds that it was improperly obtained?
Balance of probabilities.
Is a statement made by a defendant admissible as evidence against a co-defendant in the same proceedings?
No.
Would promising a defendant a certain court outcome be likely to render their statement unreliable?
Yes.
Would a statement made by a defendant who was affected by drugs or alcohol at the time of their interview be likely to be ruled unreliable.
Yes.
Would a statement made by a defendant who was confused by an interviewer’s manner of questioning be likely to be considered unreliable?
Yes.
Is the number or questions an interviewer asks the defendant something a judge will take into consideration when deciding whether or not to exclude a statement?
No.
Is the condition of the defendant at the time a statement was made something a judge will take into consideration when deciding whether or not to exclude a statement?
Yes.
Are defendant’s disabilities something a judge will take into consideration when deciding whether or not to exclude a statement?
Yes.
Who is generally considered the most appropriate person to be an NP for a CYP?
An adult family member.
What should you do when a CYP nominates a person who may be inconvenient to bring in as an NP?
Make enquiries regarding their availability.
Can someone who is likely to pervert the course of justice be a NP, if they are nominated by the CYP?
No.
If you are dealing with a CYP who appears not to understand their rights, what should you do?
Give them the rights caution with reasonable diligence to gain their understanding.
What should you do when a CYP nominates someone as their NP who is also a witness to the offence?
Conduct the witness interview first and see if the person is a suitable NP.
