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Law Notes Litigation 2 - Evidence Law Notes

Accused In Court Silence Notes

Updated Accused In Court Silence Notes

Litigation 2 - Evidence Law Notes

Litigation 2 - Evidence Law

Approximately 259 pages

These are comprehensive yet succinct notes. They set out the relevant legal principles, and material facts from a range of cases in order to demonstrate how those legal principles have been applied.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also an 'exam checklist', which you can use during revisions or exams to remind yourself of the key issues you have to address. I also use tables where p...

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1 The accused in court

1 The accused in court 1

The accused’s right to silence: s 17; s 20 2

(i) Opening the Defence case – s 159 CPA 2

(ii) Testimonial capacity – allowing the accused to testify (s 17) 2

(iii) If accused chooses to exercise right to silence the judges warnings, s 20, Azzopardi, Weissensteiner, and Jones v Dunkel see notes in directions pages 4

Policy notes 4

Appendix 6

S 17 6

S 20 6

The accused’s right to silence: s 17; s 20

(i) Opening the Defence case – s 159 CPA

Defence can give an opening statement after prosecution opening on matters disclosed in the prosecutor’s opening address in addition ‘to the matters to be raised by the accused person’: S 159 Criminal Procedure Act (NSW).

  • Scope: s 159 limits defence to informing jury of issues to be raised in the trial, and should not be lengthy or argumentative: R v MM .

  • Eg could be overstepping to discuss: onus and standard of proof, function of judges and jury, or to anticipate directions/warnings given by trial judge, urge jury on way to assess evidence: R v MM

  • Could be overstepping to emphasise how the matters are very old: R v MM

  • Rationale: (1) to inform jury of issues to be raised in trial. “Purpose of such an announcement in the early defence opening is to alert jury at early stage of trial as to nature of accused’s person defence. So issues in case narrowed and defined. (2) To avoid disadvantage to Crown which could arise if Crown opening were to be substantially separated from the Crown case: R v MM

(ii) Testimonial capacity – allowing the accused to testify (s 17)

Law

  1. No compulsion: on accused to testify in own trial.

  2. Accused person can testify, but is incompetent to testify as a prosecution witness in his or her own trial: s 17(2) EA. (only for criminal proceedings: s 17(1)).

  3. Associated defendant not compellable to give evidence for or against a fellow D (unless separately tried) but can if court is satisfied that AD knows right under s 17(3) (s 17(4)): An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant: s 17(3) EA

    • Is X an AD? An associated defendant is a person for whom a prosecution has been instituted but not finalized, for: (a) an offence that arose in relation to same events as those in relation to which offence for which D is being prosecuted arose; or (b) an offence that relates to or is connected with the offence for which the accuse is being prosecuted (EA Dictionary)

      • So two elements (1) charges not finalized and (2) offence or events are related to accused’s

    • If AD, then:

      • Not compellable to give evidence ‘both for or against a defendant in a criminal proceeding’: s 17(3) but can if court is satisfied that they are aware of lack of evidence: s 17(4).

      • Court should inform witness AD of s 17(3): If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3): s 17(4)

    • If not associated defendant,

Think about:

  • Is the other person (possible AD) competent? Compellable? An accomplice such that the evidence should be given close scrutiny: Grey?
3 Associated defendant

If associated D:

  • Not compellable to give evidence ‘both for or against a defendant in a criminal proceeding’: s 17(3) EA

  • Even though not compellable, still competent, so they can give evidence: but can if court is satisfied that they are aware of lack of evidence: s 17(4).

  • Interpretation for associated defendants who is also on trial: interpreted as only referring to situations where associated defendant who is also on trial is called to testify by another co-accused and not as a prosecution witness: EA Dictionary

EA Dictionary definition:

"associated defendant", in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for:

(a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose, or

(b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted.

17 Competence and compellability: defendants in criminal proceedings

(1) This section applies only in a criminal proceeding.

(2) A defendant is not competent to give evidence as a witness for the prosecution.

(3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless the associated defendant is being tried separately from the defendant.

(4) If a witness is an associated defendant who is being tried jointly with the defendant in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3).


(iii) If accused chooses to exercise right to silence the judges warnings, s 20, Azzopardi, Weissensteiner, and Jones v Dunkel see notes in directions pages

Policy notes

  • Introduction: 24.1-24.7

  • The accused’s right to silence: s 17, 24.71 [page 1282-1283 only]; 24.72-24.73; 24.75

  • The sometime obligation to explain: 24.76- 24.77

  • S 20: 24.78-.80 + SM [24.80A]

  • The rule in Jones v Dunkel: 24.83.

  • The accused’s right not to call evidence: 24.84- 24.85
General intro

  • Accused is generally “typically male, under 30, of low intelligence or education or both ,poor, addicted to or heavy user of alcohol or illegal drug” – temby QC. [1241].

Criminal trial and accused

  • Accused has pivotal role in case – ie sits in central position. But doesn’t mean that accused exercises authority or control in trial.

  • First way – accused’s opportunity to speak in trial to testify is as first witness called for defence. If speak out of turn, then cannot be ‘heard’ by the court.

  • Evidence...

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