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Accused In Court Silence Notes

Law Notes > Litigation 2 - Evidence Law Notes

This is an extract of our Accused In Court Silence document, which we sell as part of our Litigation 2 - Evidence Law Notes collection written by the top tier of University Of New South Wales students.

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1 The accused in court

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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 o 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 o 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) o If not associated defendant, Think about: 2 of 6 2 of 6

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