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Law Notes Litigation - Criminal Procedure Rules Notes

Interrogation Of Suspects Right To Silence Notes

Updated Interrogation Of Suspects Right To Silence Notes

Litigation - Criminal Procedure Rules Notes

Litigation - Criminal Procedure Rules

Approximately 238 pages

These notes aim to set out the relevant legal principles, and material facts from cases in order to demonstrate how those legal principles have been applied. Because of how heavily statute-focused this topic is, in some places I've extracted the relevant statute in the text or in a 'comment'.

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 'checklists', which you can use during revisions or ex...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation - Criminal Procedure Rules Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

9

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

Table of Contents

9a Interrogation of suspects: Rights to silence 1

1# What should police say to accused to inform them of right to silence? 1

2#: If accused remains silent vs partially silent? What trial judge must do 3

Appendix: CB Sanchez 5

Appendix: s 89 Evidence Act 6

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:

  • 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:

  • 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:

    • (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

    • Questioning conducted when no power to arrest, investigating officer then forms belief person had committed an offence and then the person makes a statement, but no caution prior to the statement: (a) the questioning was conducted by an investigating official who did not have the power to arrest the person, and (b) the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person has committed an offence, and (c) the investigating official did not, before the statement was made or the act was done, 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.

  • Being under ‘arrest’ for purposes of s 139(1) – under s 139(5) A reference in subsection (1) to a person who is under arrest includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:

(a) the official believes that there is sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning, or

(b) the official would not allow the person to leave if the person wished to do so, or

(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.

  • Example – in Stojakovic – accused at house with cop, official would not have let accused leave if he had wanted to, and gave him reasonable grounds to think that he was under an obligation to go with him: so arrest: Stojakovic

2#: If accused remains silent vs partially silent? What trial judge must do

Situation If the accused remains silent / partially silent on matters, what law protects this?
Law

Person has both a common law right to silence ( petty v Queen; Glennon; Sanchez) and a right to silence under s 89 EA.

1. Common law right to silence breached? (broader than s 89 EA)

  • In Sanchez there was contravention of the CL right, but no contravention of s 89 EA.

    • In Sanchez the appellant when asked whether bags containing cocaine were his, he said that they were his and he was fully aware of its contents. However at trial the appellant gave evidence the bags were acquaintances’. Crown said that he didn’t give this information when he was asked at customs. As he responded there was no occasion for the operation of s 89 EA

    • However under CL, the right to silence means that no inference can be drawn that because the defendant did not give evidence about a defence as soon as possible that this defence isn’t credible. (Exception: where inconsistent information is given earlier and then at trial): Sanchez

  • Consequence of CL right to silence in circumstances of late defences/inconsistent evidence: At CL – trial judge should give direction at time when evidence is raised (and possibly later as...

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