ON 11 APRIL 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
Sydney, Australia
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ON 10 AUGUST 1977, the High Court of Australia delivered Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 (10 August 1977).
http://www.austlii.edu.au/au/cases/cth/HCA/1977/43.html
The court allowed an appeal of a murder conviction and ordered a retrial, holding that the irregularities in the admission of certain technically admissible evidence caused a miscarriage of justice.
Evidence of the discovery at the accused’s residence of a number of firearms and photographs which were not related to the alleged murder was held to be not probative and therefore inadmissible. The court held that the admission of such evidence could not be defended on “the principle of completeness” (at [533]).
Likewise, evidence of an unrelated incident concerning the use of a firearm was held to be inadmissible for the same reasons (at [535]).
An unsigned written record of interview that was not adopted by the accused (otherwise know as a “police verbal”) was held to be inadmissible, though it could be used to refresh the memories of the police officers who performed the interview(at [541]). The court acknowledged that unsigned records might be fabricated.
A court has a discretion to refuse to receive evidence that would otherwise be admissible on the grounds of unfairness, that is, when the evidence is highly prejudicial but of little value or weight (at [541]). This discretion is general and not limited to evidence of confessions.
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ON 19 JULY 1972, the House of Lords delivered Brutus v Cozens UKHL 6 (19 July 1972).
http://www.bailii.org/uk/cases/UKHL/1972/6.html
The accused interrupted a game of tennis during the 1971 Wimbledon tournament. He entered the court, blew a whistle and distributed leaflets protesting against South African apartheid. Several others carrying banners and placards also entered the court. The accused was forcibly removed. The incident lasted two or three minutes.
The accused was charged with using insulting behaviour where a breach of the peace was likely to occur. At first instance, the Magistrate dismissed the charge, finding that the behaviour was not insulting. On appeal, the Divisional Court held that the conduct could be insulting as a matter of law and remitted the matter back to the Magistrate. The accused then appealed to the House of Lords.
The House of Lords allowed the appeal, holding that the determination of what is insulting is a question of fact and that the Magistrate was not required to find that the accused’s conduct was insulting as a question of law. Accordingly, the Divisional Court’s decision was set aside in favour of the Magistrate’s decision dismissing the charge.
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ON 16 NOVEMBER 1971, the High Court of Australia delivered Green v R [1971] HCA 55; (1971) 126 CLR 28 (16 November 1971).
http://www.austlii.edu.au/au/cases/cth/high_ct/126clr28.html
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ON 28 OCTOBER 1971, Judge Levine of the NSW District Court delivered R v Wald.
It was ruled that an abortion performed by a medical practitioner is lawful in New South Wales if there is “any economic, social or medical ground or reason” for the practitioner to hold an honest and reasonable belief that a termination at any stage of the pregnancy was required to avoid “serious danger to the pregnant woman’s life or to her physical or mental health”.
Per Levine DCJ at 29:
“In my view it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health. It may be that an honest belief be held that the woman’s mental health was in serious danger at the very time she was interviewed by a doctor, or that her mental health, although not then in serious danger, could reasonably be expected to be seriously endangered at some time during the currency of pregnancy, if uninterrupted. In either case such a conscientious belief on reasonable grounds would have to be negatived before an offence under s 83 of the Act could be proved.”
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ON THIS DAY in 1967, Ronald Ryan became the last man to be legally executed in Australia.
ON 13 JUNE 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
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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ON 9 APRIL 1964, the High Court of Australia delivered Woon v R [1964] HCA 23; (1964) 109 CLR 529 (9 April 1964).
http://www.austlii.edu.au/au/cases/cth/high_ct/109clr529.html
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ON 9 FEBRUARY 1962, the High Court of Australia delivered Commissioner for Railways (NSW) v Young [1962] HCA 2; (1962) 106 CLR 535 (9 February 1962).
http://www.austlii.edu.au/au/cases/cth/high_ct/106clr535.html
Sydney, Australia
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ON 18 JULY 1955, the High Court of Australia delivered May v O’Sullivan [1955] HCA 38; (1955) 92 CLR 654 (18 July 1955).
http://www.austlii.edu.au/au/cases/cth/HCA/1955/38.html
This decision sets out a procedural rule concerning the prosecution’s burden and onus of proof in criminal proceedings. There are two limbs.
The first limb: At the close of the prosecution case, the defendant may make a submission, without calling evidence, that there is “there is no case to answer”. The question to be determined is whether or not the defendant ought to be lawfully convicted on the prosecution’s evidence alone.
The second limb: The question to be determined, as a question of fact, is whether or not on the whole of the evidence before it the court is satisfied of the defendant’s guilt beyond a reasonable doubt.
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