Mindmap
PRIVILEGE AGAINST SELF-INCRIMINATION
Inhalt der Mindmap
PRIVILEGE AGAINST SELF-INCRIMINATION
Evidence of the Accused
- s 128(10) - DOES NOT APPLY to evidence given by the accused, being evidence that the accused - (a) did an ACT which is a fact in issue or (b) had a STATE OF MIND which is a fact in issue
- Accused may want to claim RIGHT TO SILENCE
- s 165 reliability warning?
- s 135 discretion to exclude?
- s 136 discretion to limit?
- s 136 Mandatory exclusion? (Criminal only)
- Accused can claim the privilege where evidence doesn't relate to s 128(10) (a) or (b)
- Note: High Court in Cornwell v The Queen held that evidence of doing a fact in issue might include circumstantial evidence
- s 128(10) - DOES NOT APPLY to evidence given by the accused, being evidence that the accused - (a) did an ACT which is a fact in issue or (b) had a STATE OF MIND which is a fact in issue
Evidence of a Witness
- Court to inform W of rights (s 132)
- CLAIM PRIVILEGE - object to giving evidence under s 128
- Court to determine whether there are 'reasonable grounds' for objection (s 128(2))
- The test for 'reasonable grounds' (Brebner v Perry)
- Must be a real and appreciable danger that the giving of evidence will expose the W to some crime
- For a bona fide purpose (i.e. not to protect TP)
- If satisfied as to reasonable grounds, court to inform W that W need not give evidence unless required under 128(4)
- s 128(4) - Court can require W to give evidence if
- evidence does not tend to prove W committed offence/liable to civil penalty under law of foreign country
- Interests of justice require W to give evidence
- 'Interests of justice' (R v Lodhi)
- Nature of proceedings
- Called by Prosecution or Defence?
- Importance of the evidence
- Nature of chances (likelihood of prosecution/imposition of penalty)
- 'Interests of justice' (R v Lodhi)
- Court must give certificate under s 128(5)
- s 128(7)(a) Evidence given by W and any info, document or thing obtained as a direct or indirect consequence of the person having given evidence cannot be used against the person
- s 128(4) - Court can require W to give evidence if
- The test for 'reasonable grounds' (Brebner v Perry)
- Court to determine whether there are 'reasonable grounds' for objection (s 128(2))
- WAIVE PRIVILEGE
- W can volunteer to give evidence under s 128(3)(b)(i)
- Court must give certificate under s 128(5)
- s 128(7)(a) Evidence given by W and any info, document or thing obtained as a direct or indirect consequence of the person having given evidence cannot be used against the person
- Court must give certificate under s 128(5)
- W can volunteer to give evidence under s 128(3)(b)(i)
- CLAIM PRIVILEGE - object to giving evidence under s 128
- Court to inform W of rights (s 132)
Informationen
- Beschreibung
- University Privilege Mindmap am PRIVILEGE AGAINST SELF-INCRIMINATION, erstellt von isobelemily am 09/10/2013.
- Erstellt von
- isobelemily
- Aufrufe
- 36
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