Bill of Rights Flashcards
If a lawyer has told a suspect not to answer any further questions until they arrive, and Police agree and acknowledge this, can Police continue questioning them?
The suspect would need to say they have heard what the lawyer suggested, however they are going to waive this advice.
If a suspect receives advice to assert the right to silence, can Police keep asking questions?
No, Police would be undermining the value of the legal advice given
When should a person be put before the court?
At the next available court sitting.
They cannot be held while enquiries are conducted into separate offences
When is a statement made by a defendant not admissible?
x3 rules
The reliability rule
The oppression rule
The improperly obtained evidence rule
What types of matters are paramount when looking at the reliability rule?
physical, mental, or psychological conditions
along with the above disabilities
The nature of the questions put to the person
Are there any exceptions to the “Reliability Rule”
Yes
Prosecution offers the defendants statement only as evidence of whether the statement was made
To prove or disprove the physical, mental or psychological condition at the time the statement was made
What does oppression mean (Oppression rule)
Prolonged, cruel or unjust treatment
What perspective is the Oppression rule judged?
From the defendants perspective
Who decides if evidence is improperly obtained?
The Judge
The Judge will also decide if the evidence will be excluded
They will weigh up:
Rights breached
If it was deliberate or reckless
Seriousness of the offence
If the impropriety was necessary to avoid physical danger
Urgency in obtaining it
Practice Notes - if you have sufficient evidence to charge a person, what should you do?
Caution them (BORs)
Practice Notes - Can you ask questions of any person to assist with inquires?
Yes, however you must not suggest that the person has to answer
Practice Notes - When giving the BOR’s to a child, what must you do?
Ensure it is in a language and manner they can understand.
Plus any nominated person must also be advised of the childs rights.
Practice Notes - when questioning a person in custody, what must you not do?
Question in a way that amounts to cross-examination
Practice Notes - when questioning a person about someone else’s statement, what must you do?
Ensure the statement is fairly explained
Practice Note - what is the preferable way of taking a statement from a person in custody?
Video. Then audio tape or in writing.
Give the person an opportunity to see, listen or read the statement and to make any revisions.
