MLL218 Criminal Procedure Exam Notes

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MLL218 Criminal Procedure Exam Notes

Topic 5 – Policing Questioning Chapter 7

Right to Silence

• Collective rights: R v Director of Serious Fraud Office (1903)

• Privilege of self-incrimination

o Exposure to risk of being charge o D can choose whether to give evidence

• Only protects testimonial evidence

• Presumption of innocence

• Evidence Act 2008 (Vic)

o Privilege of self-incrimination not an absolute right

o S 128A: Can decide not to produce incriminating document but court can make disclosure order

o S 128(1): Witness can object to giving evidence on ground of incrimination o S 128(2): Court determines whether claim is based on reasonable grounds

o S 128(3): If a claim is on reasonable grounds, the Court is not to require the witness to give evidence

o S 128(4): If Court is satisfied that the witness hasn’t committed an offence, and in the interest of justice, may require a witness to give evidence

o S 128(5): If witness voluntarily gives evidence or the Court compels witness, Court must grant certificate to witness preventing the use of that evidence against them in another proceeding

▪ Prevents evidence being used against the witness

• Immunity if you assert your right to silence: Smith v Director of Serious Fraud Office [1992]

o Right to stay silence cannot be used to prove guilt or cast doubt

o Pre-investigation/custody = Not compelled to answer any questions when interviewed by police officer (refuse police questions)

▪ Immunity from having any adverse inference drawn from a refusal to answer questions

o During investigation = In custody, right to silence/refuse to answer police questions

▪ Immunity to adverse inference being drawn from failure to answer questions

o At trial = Right to silence/cannot be compelled to give evidence

▪ Immunity from adverse inference from failure to answer questions or give evidence

MLL218 Criminal Procedure Exam Notes