Category Archives: Criminal Law

Miranda v Arizona 384 US 436 | 13 June 1966

ON THIS DAY in 1966, the US Supreme Court delivered Miranda v Arizona 384 US 436 (1966).

http://supreme.justia.com/cases/federal/us/384/436/

The Court held that in order to protect the constitutional privilege against self incrimination under the 5th amendment of the US Constitution, an accused in custody must be informed of his or her right to remain silent; that anything he or she says may be used against him or her in court; and that he or she has the right to consult a lawyer who may present during any interrorgation.

The court held that the prosecution may not use statements of the accused whilst in custody unless the prosecution can show that they informed the accused of their right to silence and the right to a lawyer and that the accused understood this and voluntarily waved such rights in making such a statement.

Miranda warnings are typically phrased as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”

The rule in Miranda v Arizona is specific to the United States and does not apply in Australia. There is no 5th amendment privilege against self-incrimination, though the High Court of Australia has held that under the Australian common law, no inference may be drawn from an accused’s silence: Petty & Maiden v R [1991] HCA 34; (1991) 173 CLR 95 (5 September 1991).

http://www.austlii.edu.au/au/cases/cth/HCA/1991/34.html

See also: RPS v R [2000] HCA 3; 199 CLR 620; 168 ALR 729; 74 ALJR 449 (3 February 2000).

http://www.austlii.edu.au/au/cases/cth/HCA/2000/3.html

However, if an accused choses to answer some questions but not others, inferences may be drawn against the questions the accused did not answer.

In limited circumstances, some questions must be answered, such as in traffic matters. One must give their name and address if they are to receive bail.

The NSW Evidence Act 1995 when first enacted said that no adverse inference could be drawn from the exercise of the right to silence by the accused.  On 20 March 2013, the Act was amended so that the accused is cautioned with: “it may harm your defence if you fail to mention something now that you later rely on at trial”.

NSW law enforcement officers have traditionally given the following warning: “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”

Since the amendment of the Evidence Act, the NSW warning is: “You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?”

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Bunning v Cross [1978] HCA 22 | 14 June 1978

ON THIS DAY in 1978, the High Court of Australia delivered Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 (14 June 1978).

“Evidence – Illegally obtained – Statutory offence – Driving under influence of alcohol – Compulsory breath and blood tests – Grounds for requiring submission to test – Grounds not satisfied – Whether sample obtained illegally – Whether evidence admissible – Error in obtaining evidence not wilful – Discretion to exclude – Public policy – Road Traffic Act, 1974 (W.A.), ss. 63-68, 70, 71.”

http://www.austlii.edu.au/au/cases/cth/HCA/1978/22.html

A court has the discretion to admit or exclude evidence that is improperly or illegally obtained. In exercising its discretion, the court is to weigh up the competing public requirements of (a) bringing to criminal wrongdoing to conviction and (b) protecting all individuals from unfair and unlawful treatment.  The onus is on the accused to prove misconduct and justify the exclusion.

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Tail docking | 1 June 2004

ON THIS DAY in 2004, the Prevention of Cruelty to Animals Act 1979 was amended to make it an offence to dock the tail of a dog unless done by a registered veterinary surgeon and in the interests of the dogs welfare.

http://www.austlii.edu.au/au/legis/nsw/consol_act/poctaa1979360/

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Oscar Wilde | 25 May 1895

ON THIS DAY in 1895, Oscar Wilde was convicted of gross indecency and sentenced to two years hard labour.

http://www.oldbaileyonline.org/browse.jsp?id=def1-425-18950520&div=t18950520-425#highlight

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Lindsay v The Queen [2015] HCA 16

ON 6 MAY 2015, the High Court of Australia delivered Lindsay v The Queen [2015] HCA 16 (6 May 2015).

“Criminal law – Murder – Defences – Provocation – Where male Caucasian deceased made sexual advances towards male Aboriginal appellant at appellant’s home in presence of appellant’s de facto wife and family – Where open to jury to find that appellant killed deceased having lost self-control following advances – Where provocation left to jury at trial and appellant convicted of murder – Where Court of Criminal Appeal (“CCA”) dismissed appeal against conviction because it concluded provocation should not have been left to jury as evidence, taken at highest, could not satisfy objective limb of provocation – Whether CCA erred in so concluding – Relevance of contemporary attitudes to sexual relations.

Criminal law – Appeal – Appeal against conviction – Application of proviso – CCA dismissed appeal by applying proviso to s 353(1) of Criminal Law Consolidation Act 1935 (SA) – Where CCA not invited to apply proviso by prosecution – Whether CCA erred in invoking and applying proviso of its own motion.

Words and phrases – “minimum powers of self-control”, “ordinary person”, “partial defence”.

Criminal Law Consolidation Act 1935 (SA), s 353(1).”

http://www.austlii.edu.au/au/cases/cth/HCA/2015/16.html

The High Court of Australia allowed an appeal against an decision of the South Australian Court of Criminal Appeal, quashing the appellant’s conviction for murder and ordering a retrial.

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Stay of proceedings – Inherent jurisdiction – Abuse of process – Medical practitioners – Complaints

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485 (29 April 1993).

Stay of proceedings – Inherent jurisdiction – Abuse of process – Medical practitioners – Complaints

http://www.austlii.edu.au/au/cases/cth/HCA/1993/77.html

The NSW Court of Appeal had granted a stay of proceedings concerning new complaints made against three medical practitioners regarding their treatment of patients at the Chelmsford Private Hospital in Sydney on the grounds that the new complaints raised issues overlapping with earlier complaints such that they were so unfairly and unjustly oppressive that they constituted an abuse of process.

The High Court affirmed the Court of Appeal’s decision, holding that the court has the inherent power or jurisdiction to stay proceedings as an abuse of process if the continuation of the proceedings would involve unacceptable injustice or unfairness.  The court also held that the grounds upon which such a stay is granted is not limited to matters where the proceedings are brought for an improper purpose or where there is no possibility of a fair hearing.

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Sydney, Australia

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Ridgeway v R [1995] HCA 66 | 19 April 1995

ON THIS DAY in 1995, the High Court of Australia delivered Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 (19 April 1995).

http://www.austlii.edu.au/au/cases/cth/HCA/1995/66.html

A conviction for drug importation was quashed after the High Court excluded certain evidence that was unlawfully obtained by the police in a controlled operation. However, the court did not go as far as stating that a defence of entrapment exists under Australian law if a person voluntarily and with the necessary intent commits an unlawful act induced by another.

The Commonwealth Parliament subsequently amended the Crimes Act to make controlled operations legal in order to protect such evidence from being ruled inadmissible.

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Statute of Frauds 1677 | 16 April 1677

ON 16 APRIL 1677, the English Parliament enacted the Statute of Frauds 1677.

This Act required certain dealings with real property, sale of goods, estates, trusts and marriage be reduced to writing and signed in order to avoid fraud or perjury.

The provisions of the Act have since been incorporated into many pieces of legislation around the common law world.

 

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Sydney, Australia

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Viro v R [1978] HCA 9 | 11 April 1978

ON THIS DAY in 1978, the High Court of Australia delivered Viro v R [1978] HCA 9; (1978) 141 CLR 88 (11 April 1978).

The High Court held that it is no longer bound by decisions of the Privy Council in the United Kingdom.  The court is “pre-eminently equipped to decide what is the law for Australia”.

http://www.austlii.edu.au/au/cases/cth/HCA/1978/9.html

 

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Sydney, Australia

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R v Crabbe [1985] HCA 22 | 26 March 1985

ON THIS DAY IN 1985, the High Court of Australia delivered R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 (26 March 1985).  Douglas Crabbe killed five people and injured many more when he drove a Mack truck into a bar at Uluru after being refused service of alcohol. He was tried for murder on the grounds of recklessness as opposed to intent.

“…a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results.”

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Sydney, Australia

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