Right to Silence, Police Questioning & Admissions

Question 1

s 20

Answer 1

Comment on failure to give evidence

(1) This section applies only in a criminal proceeding for an indictable offence.

(2) The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

Question 2

s 59

Answer 2

The hearsay rule—exclusion of hearsay evidence

Question 3

s 60

Answer 3

Exception: evidence relevant for a non-hearsay purpose

(3) However, this section does not apply in a criminal proceeding to evidence of an admission.

Question 4

s 81

Answer 4

Hearsay and opinion rules: exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation—
(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and
(b) to which it is reasonably necessary to refer in order to understand the admission.

Question 5

s 82

Answer 5

Exclusion of evidence of admissions that is not first-hand

Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless—
(a) it is given by a person who saw, heard or otherwise perceived the admission being made, or
(b) it is a document in which the admission is made.

Question 6

s 84

Answer 6

Exclusion of admissions influenced by violence and certain other conduct

(was the admission voluntary)

Question 7

s 85

Answer 7

Criminal proceedings: reliability of admissions by defendants

Was the admission reliable?

“in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence….”

“circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.”

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and
(b) if the admission was made in response to questioning—
(i) the nature of the questions and the manner in which they were put, and
(ii) the nature of any threat, promise or other inducement made to the person questioned.

Question 8

s 86

Answer 8

Exclusion of records of oral questioning

(1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.

(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.

(3) The acknowledgement must be made by signing, initialling or otherwise marking the document.

(4) In this section—
document does not include—
(a) a sound recording, or a transcript of a sound recording, or
(b) a recording of visual images and sounds, or a transcript of the sounds so recorded.

Question 9

s 89

Answer 9

Evidence of silence generally can’t be used to draw inferences adverse to the defendant in criminal proceedings. (right to silence)

Question 10

s 89A

Answer 10

Evidence of silence in criminal proceedings for serious indictable offences

(1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact—
(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and
(b) that is relied on in his or her defence in that proceeding.

This section does not apply unless a special caution has been given in the presence of an Australian legal practitioner who was acting for the defendant at that time and they had reasonable opportunity to privately consult.

Question 11

s 90

Answer 11

Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Question 12

s 128

Answer 12

Privilege in respect of self-incrimination in other proceedings

(don’t need to know in detail)

Question 13

s 128

Answer 13

Privilege in respect of self-incrimination in other proceedings

(don’t need to know in detail)

Question 14

s 139

Answer 14

Cautioning of persons

(1) 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—

(a) the person was under arrest for an offence at the time, and

(b) 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

(c) 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.

Question 15

Criminal Procedure Act 1986 (NSW)
s 281

Answer 15

Admissions by suspects made in the course of official questioning, and that relates to an indictable offence, must be tape recorded unless there is a reasonable excuse.

The hearsay rule and the opinion rule do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).

Question 16

GBF v The Queen

Answer 16

S 20 of the EA would probably be interpreted in accordance with this case.

The impugned statement encouraged a line of reasoning by the jury that was inconsistent with the right to silence and principle of innocence until proven guilty beyond reasonable doubt by the prosecution.

There can be no expectation that the accused will give evidence. (at [23])

Question 17

R v Ye Zhang

Answer 17

The police conduct was oppressive →section 84 requires that the evidence of the admission shall not be admitted.

The promises and inducements were not seen to have affected the truthfulness of the admission. → s 85 was not fulfilled.

Court exercised the s 90 discretion to exclude the evidence of the admission because it was unfair to the accused.

There was no impropriety by the detectives to enliven the operation of s 138 (discretion to exclude improperly obtained evidence) because failing to make an electronic recording goes to the admissibility of the evidence not the proper conduct of an interview.

Question 18

Em v The Queen

Answer 18

S 90 → majority found it not unfair because the only unfairness comes from his silly idea about the law. → hard to figure out what unfairness is now.