Category Archives: Criminal Procedure

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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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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McKinney v R [1991] HCA 6 | 22 March 1991

ON THIS DAY IN 1991, the High Court of Australia delivered McKinney v R [1991] HCA 6; (1991) 171 CLR 468 (22 March 1991).

http://www.austlii.edu.au/au/cases/cth/HCA/1991/6.html

A trial judge must warn a jury of the dangers of convicting the accused on the basis of their alleged admissions whilst in custody.

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McKinney v R [1991] HCA 6 | 22 MARCH 1991

ON THIS DAY IN 1991, the High Court of Australia delivered McKinney v R [1991] HCA 6; (1991) 171 CLR 468 (22 March 1991).

http://www.austlii.edu.au/au/cases/cth/HCA/1991/6.html

A trial judge must warn a jury of the dangers of convicting the accused on the basis of their alleged admissions whilst in custody.

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Section 10 Crimes (Sentencing Procedure) Act 1998

ON THIS DAY IN 1929, section 10 of the NSW Crimes (Sentencing Procedure) Act 1999 (formerly known as section 556A of the Crimes Act 1900) was added to the Crimes Act 1900 through the passage of the Crimes (Amendment) Act 1929 No 2.

http://www.austlii.edu.au/au/legis/nsw/num_act/ca1929n2189

As at 12 March 2015, s10 provides:

Dismissal of charges and conditional discharge of offender
10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
(a) an order directing that the relevant charge be dismissed,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond.
(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.
(2B) Subsection (1) (c) is subject to Part 8C.
(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.
(4) An order under this section has the same effect as a conviction:
(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and
(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and
(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.
(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

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Longman v R [1989] HCA 60 | 6 December 1999

ON 6 DECEMBER 1989, the High Court of Australia delivered Longman v R [1989] HCA 60; (1989) 168 CLR 79 (6 December 1989).

http://www.austlii.edu.au/au/cases/cth/high_ct/168clr79.html

Complaints of unlawfully and indecently dealing with or assaulting three girls under the age of 14 years were made against Longman (the appellant) at a time over 20 years after the alleged offences. At trial, the jury were told to consider the “relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence”.

The High Court held that what the jury was told was not sufficient.

Per Brennan, Dawson and Toohey JJ at [30]:

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”

The High Court ordered a retrial because the absence of a warning made the conviction “unsafe and unsatisfactory”.

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Sydney, Australia

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Crampton v R [2000] HCA 60 | 23 November 2000

ON 23 NOVEMBER 2000, the High Court of Australia delivered Crampton v R [2000] HCA 60; 206 CLR 161; 176 ALR 369; 75 ALJR 133 (23 November 2000).

http://www.austlii.edu.au/au/cases/cth/HCA/2000/60.html

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Sydney, Australia

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Guildford Four released | 19 October 1989

ON 19 OCTOBER 1989, the Guildford Four were released from prison after their conviction was quashed by the Court of Appeal.

http://news.bbc.co.uk/onthisday/hi/dates/stories/october/19/newsid_2490000/2490039.stm

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