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Interrogation Of Suspects Right To Silence Notes

Law Notes > Litigation - Criminal Procedure Rules Notes

This is an extract of our Interrogation Of Suspects Right To Silence document, which we sell as part of our Litigation - Criminal Procedure Rules Notes collection written by the top tier of University Of New South Wales students.

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9a interrogation: right to silence?

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H&J 254-256 SM 150-180 Right to silence

1. Right to silence: issue 1#: What should police say to accused to inform them of right to silence?

2. Right to silence: Issue 2#: What if the person remains silent vs partially silent? What trial judge must do (Petty v Queen; Sanchez)

9a Interrogation of suspects: Rights to silence

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9a interrogation: right to silence?

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9a interrogation: right to silence?

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1# What should police say to accused to inform them of right to silence?
See s 139 discussion in s 138 notes. Police before interrogation are required to explicitly state that the suspect does not have to say anything and anything said could be used against the person in evidence. Requirement to caution when you are in custody:

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Definition of custody manager under s 3 LEPRA: the police officer having from time to time the responsibility for the care, control and safety of a person detained at a police station or other place of detention. Rule: As soon as practicable after a person who is detained under this Part (a "detained person") comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing under s 122(1) LEPRA: (a) 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: s 122(1)(a)LEPRA and (b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised officer and that the person, or the person's legal representative, may make representations to the authorised officer about the application: s 122(1)(b) LEPRA. (2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer: s 122(2) (3) After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given: s 122(3)

Effect of a lack of caution before someone is questioned:

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Cautioning of persons: 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: o (Under lawful arrest but no caution before questioning) (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: s 139(1). OR 9a interrogation: right to silence?

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