ON THIS DAY in 1215, King James executed the Magna Carta at Runnymede. King James agreed to this document which limited the power of the Crown and granted the barons and citizens certain individual rights, freedoms, liberties and protections. The document laid the constitutional foundations for government under the rule of law.
http://bailii.austlii.edu.au/uk/legis/num_act/1215/magna__carta.html
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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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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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ON THIS DAY in 1959, the Commonwealth Migration Act 1958 commenced.
http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/
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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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ON THIS DAY in 2001, the High Court of Australia delivered Brodie v Singleton Shire Council ; Ghantous v Hawkesbury City Council[2001] HCA 29; (2001) 206 CLR 512.
http://www.austlii.edu.au/au/cases/cth/HCA/2001/29.html
“Negligence – Highways – Injuries to user of highway – Liability of highway authority – Whether immunity under the “highway rule” – Distinction between misfeasance and non-feasance.
Negligence – Duty of care – Statutory authority – Highway authority – Content of duty of care – Relevant considerations.
Negligence and nuisance – Whether nuisance in relation to public authorities subsumed by the law of negligence.
Highways – Negligence and nuisance – Immunity under “highway rule” – Misfeasance and non-feasance – Whether liability subsumed in general principles of negligence.
Precedent – Stare decisis – High Court – Departure from previous decisions – Relevant considerations.
Words and phrases – “highway rule” – “immunity”.
Local Government Act 1919 (NSW), ss 220-277B.”
The ruling abolished the common law immunity of highway authorities from liability for injury, loss or damage caused by their own non-feasance in Australia.
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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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ON 25 MAY 1966, the Privy Council delivered Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 (25 May 1966).
Negligence – reasonably forseeable
http://www.bailii.org/uk/cases/UKPC/1966/1.html
A person is negligent if they fail to prevent a real risk that is reasonably foreseeable. A real risk is one in the mind of a reasonable person “which he would not brush aside as far-fetched”. This does not depend on the actual risk of occurrence.
Sydney, Australia
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ON 25 MAY 1995, the Northern Territory Parliament passed the Rights of the Terminally Ill Act 1995.
http://www.austlii.edu.au/au/legis/nt/consol_act/rottia294
The Act, which took effect on 1 July 1996, legalised euthanasia in the Northern Territory until the Commonwealth Parliament subsequently enacted the Euthanasia Laws Act 1997.
Sydney, Australia
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ON THIS DAY in 1986, the High Court of Australia delivered Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).
http://www.austlii.edu.au/au/cases/cth/HCA/1986/20.html
“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”
Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.
On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.
A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.
The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.
An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.
Sydney, Australia
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