Criminal Lawyer

Sydney based Barrister

 

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DEALING WITH THE POLICE

 

 

Having Police knock on your door or stop you in your motor vehicle or in the street or somewhere else is a frightening and stressful experience for you.   It is not a frightening or stressful experience for the Police.   The Police therefore have a considerable psychological advantage over you and it is imperative that you do not panic.

 

Never try to run and never be abusive or confrontational with the Police.   You must comply with the directions of the Police if they arrest you.   Each Police Officer is usually required to make a written statement about the incident which will probably form part of the evidence which is given in Court.   If the Police do not arrest you, you are under no obligation to accompany them to a Police Station.   The Police have no power to detain a person unless that person has been lawfully arrested.   If it is not clear to you whether or not you are under arrest, play it safe and ask the Police “Am I under arrest?”

 

Police are not allowed to search your home or any other building that you lease or own and occupy unless they have a valid Search Warrant or you give them consent.   Do not be intimidated into giving consent or even inviting the Police inside.   Contact an experienced Criminal Lawyer.   Police can, however, enter the premises without a Warrant to arrest a person reasonable suspected of having committed a crime.   They can also enter the premises without a Warrant if they reasonably suspect that a breach of the peace or other offence is likely to take place.   They cannot, however, carry out a general search of the premises without a Search Warrant.

 

If Police do have a valid Search Warrant, you must allow Police to enter and search and you must do nothing to hinder or delay them.

 

Police have various powers to stop and search people and motor vehicles.   Do not resist, but do ask Police under which legislation they are doing so and write down what they reply, if possible.

 

Do always tell the Police your correct name, address and date of birth and provide the Police with proof of identity if they request it.   This enables the Police to check your identity and establish that there are no outstanding warrants for your arrest.   It may assist you to obtain Bail if you are arrested.

 

Otherwise, do not speak to the Police except to request a telephone call to a Criminal Lawyer and to say “I exercise my legal right to silence at this stage”, unless you have a medical condition and require urgent medication.

 

Remember that there is no such thing as an “off the record” conversation with a Police Officer.   Remember, too, that legally no adverse inference can be drawn against you for refusing to answer questions if you are alone with Police.   Very often the most dangerous witness against an accused person is the accused person himself or herself.

 

While investigating a crime, Police may question anyone.   However, except for a limited number of exceptions, there is no duty to answer.   Obvious exceptions relate to motor vehicle offences and accidents where, additionally, licences must be produced.   Legislation changes, so in any other case where a Police Officer insists that you must answer questions, ask that Police Officer under what Section of what Act of Parliament you are required to answer, and write it down or have him write it down for you.   Any illegality on the part of the Police will be dealt with later by a competent Criminal Lawyer.

 

Police are required to caution you as a suspect, before questioning you about a matter.   The traditional caution is along the following lines:  “You are not obliged to say or do anything unless you wish to, but whatever you say or do will be recorded and may be used in evidence.   Do you understand that?”   Your response to this form of caution should be “I exercise my legal right to silence”, followed by silence.   (There is an IMPORTANT but limited EXCEPTION to this Right to Silence which is discussed below under the sub-heading “The Right to Silence and the 2013 Limitation”).    

 

If the Police have not cautioned you before questioning, a competent and experienced Barrister will apply to the Judge, in the absence of the Jury, to have the questions and answers excluded from evidence in the Trial.

 

The Police may use every tactic you can imagine to get you to talk to them.   This is because your answers are additional evidence that they can use against you later.   They may try to intimidate you, or they may try to make you think that they are helping you.   You, as a suspect, have no friends among the Police.   You may say something that you think is harmless at the time, but turns out to hurt you later if it conflicts with some of the other evidence in your case.   Do not be intimidated.   Remain silent.

 

Keep in mind that the Police Officers/Detectives have no authority to promise you favourable treatment if you “cooperate” and answer their questions.   A typical example is:  “If you don’t cooperate and answer our questions properly, you will not get Bail”.   Investigating Police do not determine whether or not a person who has been charged with an offence should be granted Police Bail.   That determination is made by another Police Officer at the Station.   If you are charged with a serious offence, you are unlikely to be granted Police Bail.   If you are refused Police Bail, you must be brought before a Magistrate within a reasonable time.   Depending upon the time that you are charged, and also the day, you may be brought before a Magistrate in the Local Court the same day or perhaps the next day.   A night in Police custody is always preferable to endangering your defence at Trial, especially when you are unlikely to get Police Bail on a serious charge anyway.   You cannot “become lost in the system”.   The Police must bring you before a Magistrate in the Local Court, where there are Duty Solicitors to help you if you have not already arranged for an experienced Criminal Lawyer to be there.   The lawyer assisting you will advise you regarding a Bail Application before the Magistrate that day.

 

Never consent to participating in an ERISP (Electronic Recording of Interview of Suspected Person) unless you have been specifically advised to do so by a competent and vastly experienced Criminal Lawyer.   ERISPs may be carried out in front of a video camera which films and records sound, or even by a hand held tape recorder.

 

You are also strongly advised neither to refuse, nor agree, to participate in an Identification Parade (“Line Up”) without having obtained legal advice from a competent and vastly experienced Criminal Lawyer.   (Please also see the webpage on this website under the tab “Dangers in Identification”).

 

Furthermore, if you are present when a Search Warrant is being executed, the search will be videotaped.   The camera will usually also record sound.   Never speak while the camera is recording.   Tell the Police beforehand that you do not consent to your voice being recorded.   Then remain silent.

 

Remember this:  In major Drug cases, Murder, and other serious investigations, Police usually obtain Warrants to intercept both mobile and landline phones and may have recorded many of your conversations over a period of months before they arrest you.   Police may also have had a Police Informer or an Undercover Police Officer speak with you whilst he or she is “wired for sound” (fitted with a listening device).   (Please also see the webpage on this website under the tab “Beware of the Dog”).

 

If you take part in an ERISP or allow your voice to be recorded in the presence of Police, the Police can listen to the ERISP or recording several times, and also the recordings of the intercepted phone conversations and/or covertly “wired” conversations several times, and then give “Voice Identification Evidence” in Court that one of the people speaking in the intercepted phone conversations or covertly “wired conversations” is you.   Do not allow the Police to record your voice.

 

Remember too:  Never write anything for the Police, and never sign any document except a Bail Undertaking for your release.   Handwriting experts can be called to give evidence against you in Court.

 

Remember this, and remember it well:  Only tell the Police your name, address and date of birth.   After that you only request a telephone call to a competent and vastly experienced Criminal Lawyer.   (There is an IMPORTANT but limited EXCEPTION to this Right to Silence which is discussed below under the sub-heading “The Right to Silence and the 2013 Limitation”).    

 

Subject to the exception just mentioned, the Crown Prosecutor should not lead evidence that that you exercised your Right to Silence when questioned by Police.   If that evidence does emerge during the Trial,

the Judge will direct the Jury to the effect that your silence cannot be used against you in any way at all because under our law all people, including an accused person, have a Right to Silence.

 

 

 

ALONE  IN  A  POLICE  STATION :  THE  HIGH  COURT’S

CONCERNS :

 

A very interesting case came before the High Court of Australia, our ultimate Appellate Court, before the introduction of electronic recordings of Police interviews in New South Wales:  McKINNEY -v- The QUEEN (1990-1991) 171 CLR 468.

 

The facts of the case were summarised by the majority of the High Court (Chief Justice Mason and Justices Deane, Gaudron & McHugh) in their joint judgment thus:

 

“ The prosecution case was that the premises were entered by three men, one of whom was armed.   The uncontested evidence was that an armed man demanded money from one of the occupants, and, a little later, another occupant was seriously injured when a single shot was fired from a gun.   The prosecution case was that the applicants and a co-accused (who was acquitted of all charges) were each guilty, on the basis of common purpose or joint enterprise, of breaking and entering, assault with intent to rob and assault occasioning grievous bodily harm.

 

The case against the applicants was substantially based on signed police records of interview.   Each of the applicants signed a record of interview in which he stated that he, and he alone, had entered the premises at Dharruk and accidentally discharged the gun.   The co-accused signed a record of interview in which he too confessed to having discharged the gun.  ...  The applicants and the co-accused were arrested in a dawn raid  ...  They were interviewed by different police officers  ...  The Applicants were directly linked to the events at Dharruk only by their records of interview.   Apart from the applicants’ signatures, there was no independent evidence corroborating the making of those records or confirming their contents.   The defence of each of the applicants were conducted on the basis that this his record of interview was fabricated by the interviewing police officers and that he had signed the fabricated document only because his will was overborne. ”

 

The Majority of the High Court (Chief Justice Mason and Justices Deane, Gaudron & McHugh) in their joint judgment said this:

 

“ The contest established by a challenge to police evidence of confessional statements allegedly made by an accused whilst in police custody is not one that is evenly balanced.   A heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements, for, in the circumstances which invariably attend that evidence, a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end.   And, as is made clear in (the cases of) WRIGHT and CARR, the contest is one which may entail other forensic constraints or disadvantages.   Thus, the jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed, as indicated by Deane J. in (the case of) CARR, that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made while in police custody, the making of which is not reliably corroborated.   Within the context of this warning it will ordinarily be necessary to emphasise the need for careful scrutiny of the evidence and to direct attention to the fact that police witnesses are often practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth.   And, of course, the trial judge’s duty to ensure that the defence case is fairly and accurately put will require that, within the same context, attention be drawn to those matters which bring the reliability of the confessional evidence into question.   Equally, in the context of and as part of the warning, it will be proper for the trial judge to remind the jury, with appropriate comment, that persons who make confessions sometimes repudiate them. ”

 

Chief Justice Mason and Justices Deane, Gaudron & McHugh went on to say:

 

“ We add some brief comments of a general nature.   It should be apparent from the above and from what was said in the judgments of Deane J. and Gaudron J. in (the case of) CARR that the basis of a prima facie requirement that a warning be given in future cases involving an uncorroborated confessional statement allegedly made by an accused while involuntarily held in police custody without access to a lawyer or even an independent person who might confirm his account is not a suggestion that police evidence is inherently unreliable or that members of a police force should, as such, be put in some special category of unreliable witnesses.   The basis lies, as we have explained, in the special position of vulnerability of an accused to fabrication when he is involuntarily so held, in that his detention will have deprived him of the possibility of any corroboration of a denial of the making of all or part of an alleged confessional statement. ”

 

 

 

WHAT  THE  HIGH  COURT’S  CONCERNS  LED  TO :

 

As stated above, this case came before the High Court of Australia, our ultimate Appellate Court, before the introduction of electronic recordings of Police interviews in New South Wales.

 

The general rule of law is that Police interviews with suspects relating to serious criminal offences must be electronically recorded.   There are exceptions to this general rule.

 

Enabling a Jury to view and/or listen to an electronically recorded interview with an accused person at Trial is “a step in the right direction”.

 

The crucial question is, however, what happened before the Police turned on the video camera and/or audio recorder for the interviews?

 

That is why it is vitally important for you to heed the above warnings, subject to the limitation which is discussed immediately below.

 

 

 

THE  RIGHT  TO  SILENCE  AND  THE  2013  LIMITATION :

 

The NSW O’Farrell Government has introduced legislation, the Evidence Amendment (Evidence of Silence) Act 2013, which inserts a new Section, S.89A, in the Evidence Act 1995 NSW.   This legislation came into force on 1 September 2013.  It provides that in proceedings for a Serious Indictable Offence (which is defined in the Interpretation Act as any Indictable Offence carrying a maximum penalty of 5 years imprisonment or more) such unfavourable inferences may be drawn as appear proper from evidence that, during the official questioning in relation to the offence, the Defendant failed or refused to mention a fact which:

(a)  the Defendant  could reasonably have been expected to mention in the circumstances,   and

(b)  is relied upon in his or her defence.

 

This provision does NOT apply unless a “Special Caution” was given in the presence of a lawyer acting for the Defendant at the time, and the Defendant had been allowed a reasonable opportunity to consult with the lawyer about the general nature and effect of Special Cautions.

 

No special words are prescribed for the Special Caution, but it must be to the effect that the person does not have to say or do anything, but it may harm the person’s defence if he or she does not mention when questioned something later relied upon in Court, and that anything the person does say or do may be used in evidence.

 

The provision does not apply to a person under 18 years of age or to a person who is incapable of understanding the general nature and effect of the Special Caution, or if the evidence of the failure or refusal to mention the fact is the only evidence that the Defendant is guilty of the Serious Indictable Offence.

 

How the Courts construe Section 89A of the Evidence Act 1995 NSW remains to be seen over time.

 

You will have noted the words which have been underlined above.   These clearly indicate that it is NOT advisable for a person who is to be interviewed as a suspect about a Serious Criminal Offence to have a lawyer ATTEND the Police Station with him or her.

 

 

 

Section 89A is only the FIRST attack on the Right to Silence by the present NSW Government, it is unlikely to be the last.

 

 

 

SECTION  89  AND  THE  2013  INSERTED  SECTION  89A

OF  THE  EVIDENCE  ACT  1995  NSW :

 

Sections 89 (Evidence of Silence generally) and 89A of the Evidence Act 1995 NSW are reproduced below for your information.

 

89 Evidence of silence generally

(1) Subject to section 89A, in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused:

(a) to answer one or more questions, or

(b) to respond to a representation,

put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.

(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section:

"inference" includes:

(a) an inference of consciousness of guilt, or

(b) an inference relevant to a party’s credibility.

 

89A Evidence of silence in criminal proceedings for serious indictable offences

(1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact:

(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and

(b) that is relied on in his or her defence in that proceeding.

(2) Subsection (1) does not apply unless:

(a) a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and

(b) the special caution was given before the failure or refusal to mention the fact, and

(c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and

(d) the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions.

(3) It is not necessary that a particular form of words be used in giving a special caution.

(4) An investigating official must not give a special caution to a person being questioned in relation to an offence unless satisfied that the offence is a serious indictable offence.

(5) This section does not apply:

(a) to a defendant who, at the time of the official questioning, is under 18 years of age or is incapable of understanding the general nature and effect of a special caution, or

(b) if evidence of the failure or refusal to mention the fact is the only evidence that the defendant is guilty of the serious indictable offence.

(6) The provisions of this section are in addition to any other provisions relating to a person being cautioned before being investigated for an offence that the person does not have to say or do anything. The special caution may be given after or in conjunction with that caution.

(7) Nothing in this section precludes the drawing of any inference from evidence of silence that could properly be drawn apart from this section.

(8) The giving of a special caution in accordance with this section in relation to a serious indictable offence does not of itself make evidence obtained after the giving of the special caution inadmissible in proceedings for any other offence (whether or not a serious indictable offence).

(9) In this section:

"official questioning" of a defendant in relation to a serious indictable offence means questions put to the defendant by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of the serious indictable offence.

"special caution" means a caution given to a person that is to the effect that:

(a) the person does not have to say or do anything, but it may harm the person’s defence if the person does not mention when questioned something the person later relies on in court, and

(b) anything the person does say or do may be used in evidence.

 

 

WHY  THIS  GOVERNMENT’S  ATTACK  ON  THE  RIGHT  TO  SILENCE ?

 

Common Law and Statute Law (Acts of Parliament) can be changed by Parliament enacting further Statutes unless they are “ultra vires” (beyond its powers).

 

Australia has no Constitutional protection for the Right to Silence but the High Court of Australia, our ultimate Appellate Court, has stressed that the Right to Silence is fundamental to a fair Trial.

 

In PETTY AND MAIDEN -v- THE QUEEN (1991) 173 CLR 95, the majority of the High Court (Chief Justice Mason and Justices Deane, Toohey & McHugh) in their joint judgment stated:

“ A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless.

That incident of the right of silence means that, in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial judge or the Crown Prosecutor, that an accused's exercise of the right of silence may provide a basis for inferring a consciousness of guilt. Thus, to take an example, the Crown should not lead evidence that, when charged, the accused made no reply. Nor should it be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable. ”

In that same High Court case, Justice Gaudron said:

“ Although ordinary experience allows that an inference may be drawn to the effect that an explanation is false simply because it was not given when an earlier opportunity arose, that reasoning process has no place in a criminal trial.  It is fundamental to our system of criminal justice that it is for the prosecution to establish guilt beyond reasonable doubt.  The corollary of that - and it is equally fundamental - is that, insanity and statutory exceptions apart, it is never for an accused person to prove his innocence.  See Woolmington v. The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462. Therein lies an important aspect of the right to silence, which right also encompasses the privilege against incrimination. ”

In the above quoted passage, Justice Gaudron refers to WOOLMINGTON -v- THE DIRECTOR OF PUBLIC PROSECUTIONS.   In that case in the House of Lords, Viscount Sankey, Lord Chancellor, said these famous words:

 

“ Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.  If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case, and the prisoner is entitled to an acquittal.  No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. ”

 

In the High Court case  HAMMOND -v- THE COMMONWEALTH (1982) 152 CLR 188, Justice Brennan described the Right to Silence as “a freedom so treasured by tradition and so central to the judicial administration of criminal justice”.

 

In the High Court case RPS -v- R (2000) 199 CLR 620,

Justice McHugh said:

 

“ The ‘right to silence’ derives from the privilege against self-incrimination.  That privilege is one of the bulwarks of liberty.  History, and not only the history of totalitarian societies, shows that all too frequently those who have a right to obtain an answer soon believe that they have a right to the answer that they believe should be forthcoming.  Because they hold that belief, often they do not hesitate to use physical and psychological means to obtain the answer they want.  The privilege against

self-incrimination helps to avoid this socially undesirable consequence. ”

 

The NSW O’Farrell Government has disregarded this sound wisdom which has been strongly expressed by several of our greatest legal minds.

 

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Criminal Lawyer

Sydney based Barrister