ON THIS DAY in 1984, the High Court of Australia delivered Chamberlain v R (No 2) (“Chamberlain case”) [1984] HCA 7; (1984) 153 CLR 521 (22 February 1984).
http://www.austlii.edu.au/au/cases/cth/HCA/1984/7.html
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Category Archives: Criminal Procedure
Neal v R
ON 24 SEPTEMBER 1982, the High Court of Australia delivered Neal v R [1982] HCA 55; (1982) 149 CLR 305 (24 September 1982).
http://www.austlii.edu.au/au/cases/cth/HCA/1982/55.html
The ethnic or other background of an offender may be a material fact to be taken into account in sentencing.
Kozul v R [1981] HCA 19
ON 5 MAY 1981, the High Court of Australia delivered Kozul v R [1981] HCA 19; (1981) 147 CLR 221 (5 May 1981).
http://www.austlii.edu.au/au/cases/cth/high_ct/147clr221.html
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Alexander v R [1981] HCA 17
ON 8 APRIL 1991, the High Court of Australia delivered Alexander v R [1981] HCA 17; (1981) 145 CLR 395 (8 April 1981).
http://www.austlii.edu.au/au/cases/cth/high_ct/145clr395.html
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McInnis v R [1979] HCA 65
ON THIS DAY in 1979, the High Court of Australia delivered McInnis v R [1979] HCA 65; (1979) 143 CLR 575 (19 December 1979) .
http://www.austlii.edu.au/au/cases/cth/HCA/1979/65.html
Sydney, Australia
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Bunning v Cross [1978] HCA 22
ON 14 JUNE 1978, the High Court of Australia delivered Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 (14 June 1978).
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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Driscoll v R [1977] HCA 43
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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Brutus v Cozens [1972] UKHL 6
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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Green v R [1971] HCA 55
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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Miranda v Arizona 384 US 436 (1966)
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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