#8524 - Interrogation Of Suspects Right To Silence

9	H&J 254-256 SM 150-180
	Right to silence Right to silence: issue 1#: What should police say to accused to inform them of right to silence? Right to silence: Issue 2#: What if the person remains silent vs partially silent? What trial judge must do (Petty v Queen; Sanchez)

Right to silence

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

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

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 well although whether that is required depends on the circumstances) that there can be no inference drawn from failure to raise defence earlier. Exception: where appellant has given inconsistent evidence earlier (so s 89 doesn’t apply) trial judge could say that jury can take into account any inconsistency between matters that the appellant had told the customs officer and at trial. Example of misdirection: Glennon where the trial judge said that ‘in testing the veracity of the defence you are entitled to have regard to the fact that it was not revealed to the police and you are entitled to ask yourselves that surely the sensible thing to do was to tell the police s soon as possible. Such a test does not depend on drawing inferences from exercise by accused of right to silence but producing a story which if true he could have produce to police earlier but didn’t’. Requirements for trial judge: Advisable for trial judge to instruct jury when issue of accused’s silence is first raised in trial: Sanchez – and it is not necessary that the warning must be repeated in the summing up, but that may be desirable and prudent, but whether failure to do so involves apellable error will depend on circumstances: Sanchez . Note: factual accuracy of what trial judge saysdoesn’t mean that it wasn’t a misdirection: Sanchez 2. S 89 breached? Party is able to refuse to answer questions or respond to representations by investigating official at time of performing functions in connection with the investigation of the commission of an offence – and no adverse inference can be drawn from this evidence and used against the accused in any subsequent criminal proceedings against him or her: s 89(1) Exception for offences of not giving information: evidence can be used to prove that party failed/refused to answer question or respond to representation if that failure is a fact in issue in proceeding: s 89(3). Eg when asked for identification under s 10-11 LEPRA Meaning of ‘adverse inference: inference includes: (a) an inference of consciousness of guilt; or (b) an inference relevant to a party’s credibility: s 89(4). Consequence of s 89(1): If the only purpose of evidence is to draw the prohibited inference (of guilt or credibility attack) then evidence is inadmissible: s 89(2). Note: S 89 does not deal with denials to questions this is not silence. Requirements for trial judge: Advisable for trial judge to instruct jury when issue of accused’s silence is first raised in trial: Sanchez – and it is not necessary that the warning must be repeated in the summing up, but that may be desirable and prudent, but whether failure to do so involves apellable error will depend on circumstances: Sanchez Note: factual accuracy of what trial judge says doesn’t mean that it wasn’t a misdirection: Sanchez So note elements required for s 89(1) to apply: Must be a criminal proceeding Investigating official must have been performing functions in connection with the investigation of the commission or possible commission of an offence (this is broader than ‘in the course of official questioning’ as interpreted by Kelly – and covers questions made by officials performing any function, not simply questioning) Person refuses to respond to questions, or representations put by investigating official

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 well although whether that is required depends on the circumstances) that there can be no inference drawn from failure to raise defence earlier. Exception: where appellant has given inconsistent evidence earlier (so s 89 doesn’t apply) trial judge could say that jury can take into account any inconsistency between matters that the appellant had told the customs officer and at trial.
- Example of misdirection: Glennon where the trial judge said that ‘in testing the veracity of the defence you are entitled to have regard to the fact that it was not revealed to the police and you are entitled to ask yourselves that surely the sensible thing to do was to tell the police s soon as possible. Such a test does not depend on drawing inferences from exercise by accused of right to silence but producing a story which if true he could have produce to police earlier but didn’t’.
Requirements for trial judge: Advisable for trial judge to instruct jury when issue of accused’s silence is first raised in trial: Sanchez – and it is not necessary that the warning must be repeated in the summing up, but that may be desirable and prudent, but whether failure to do so involves apellable error will depend on circumstances: Sanchez .
- Note: factual accuracy of what trial judge saysdoesn’t mean that it wasn’t a misdirection: Sanchez

2. S 89 breached?

Party is able to refuse to answer questions or respond to representations by investigating official at time of performing functions in connection with the investigation of the commission of an offence – and no adverse inference can be drawn from this evidence and used against the accused in any subsequent criminal proceedings against him or her: s 89(1)

Exception for offences of not giving information: evidence can be used to prove that party failed/refused to answer question or respond to representation if that failure is a fact in issue in proceeding: s 89(3). Eg when asked for identification under s 10-11 LEPRA
Meaning of ‘adverse inference: inference includes: (a) an inference of consciousness of guilt; or (b) an inference relevant to a party’s credibility: s 89(4).
Consequence of s 89(1): If the only purpose of evidence is to draw the prohibited inference (of guilt or credibility attack) then evidence is inadmissible: s 89(2).
Note: S 89 does not deal with denials to questions this is not silence.
Requirements for trial judge: Advisable for trial judge to instruct jury when issue of accused’s silence is first raised in trial: Sanchez – and it is not necessary that the warning must be repeated in the summing up, but that may be desirable and prudent, but whether failure to do so involves apellable error will depend on circumstances: Sanchez
- Note: factual accuracy of what trial judge says doesn’t mean that it wasn’t a misdirection: Sanchez

So note elements required for s 89(1) to apply:

Must be a criminal proceeding
Investigating official must have been performing functions in connection with the investigation of the commission or possible commission of an offence (this is broader than ‘in the course of official questioning’ as interpreted by Kelly – and covers questions made by officials performing any function, not simply questioning)
Person refuses to respond to questions, or representations put by investigating official

Sanchez

Example and CB: in Sanchez

Facts: Sanchez convicted of importation of cocaine found in luggage. Replied yes to all questions like ‘are these your bags , and did you pack it yourself’. In Trial he said that he was given the bags by...

#8524 - Interrogation Of Suspects Right To Silence - Litigation - Criminal Procedure Rules

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