Police questioning

Police questioning

1. the right to silence

   • pre trial
     • 464J: peserves right of s to refuse to answer qs and refuse to participate in crime re-enactments
   • arrest
   • trial
     • 1) right to silence recognised in that accused is not obliged to give evidence
     • 2) no adverse interference can be drawn by judge, prosecution from accused's failure to give evidence
     • 3) treatment of evidence of accused's previous refusal or failure to answer questions now goverened by s89 s 20 evidence act
   • charter of human rights
     • s25(2) a person charged with a criminal offence is entitled without discrimintation to the following minumum gaurentees
       • K) not to be compelled to testify against himself or herself or to confess guilt

2. in custody

   • within reasonable time 464a(1) (to work out reasonable time 464a(4)
     • released or bail hearing
     • informed of circumstances or change
     • if longer than reasonable time,anything said may not be admissable r v Hill
   • prior to questioning
     • 464a(3) caution: right to silence
       • PO should not ask why
       • PO cannot infer guilt due to not answering s89
     • 464C: right to communicate: family, lawyer
       • PO can deter if they believe on RB
         • communication would result in the escape of an accomplance or fabrication/destruction of evidence 464C(1)(c)
         • q is so improtant to others safety that it cannot be delayed 464C(1)(d)
         • if not told evidence may be affected : lawyer r v su friend/family:R v Frugniet
     • 464D: right to interpreto also evidence act 139(3)
       • if not done may affect evidence R v Mohammed
     • 464f: right to consular official
     • 464E minor: parent/gaurdian/3rd party
     • Failure to caution
       • crimes act
         • 464j(c) &(d) preserves general discretion to exclude evidence illegaly/improperly obtained
       • evidence act 139(1) :failure to caution arrested person mean improperly obtaine 138) governs exclusion of evidence

3. children/ young people

   • Charter of human rights
     • s25(3): A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child's rehab
   • Childrens, youth and families act
     • s346(2): child in custody must be realeased: unconditionally or on bail within reasonable time no later than 24 hours
   • crimes act
     • 464E: a) parent/gaurdian/3rd party must be present & they have to be given time to communicate with the person in private
       • 464E(2): exceptions, destruction, escape, evidence urgency

4. recording of questioning

   • anyone suspected needs to be recorded r v alexander
   • s464H(1) requires that evidence of a confession or admission will not be inadmissable unless audio recorded or audio visual and the recording is available to tender in evidence
   • taping
     • 464H(1(d)if admjssions made during q's are somewhere where taping is available then only questioins and answers recorded is available to be tendered
       • 464h1(e)where no taping available it must be taped later
     • 464h1(c)admissions made by s before recording not admissable unless recorded later
     • 464H(2) where exceptional circumstances and justify the receipt of evidence even if not recorded it may be admissable: R v Dupas
   • exclusion of records of oral questioning
     • 86 evidence act
       • 1) only applies in criminal proceedings and only if an oral admission was made by an accused to an investigating official in response to a question out or a representation made by an official
       • 2) a document prepared by or on behalf of the question, representation or response unless the accused has acknowledged that the doc is a true record of the q, representation or response
       • 3) The acknowledgement must be made by signing, initialling or otherwise marking the doc
   • different timing of interviews look to powerpoints