Right to remain silent

[Outlaw Yogi]

A few years ago the Qld commissioner of police wanted the Qld criminal code altered to remove a suspect's right to remain silent, so failing to tell interogators what they want to know would lead to 'witholding evidence' charges, and wanted police to be given the right to break and enter premises in search of evidence.

He got his way on break and enter, Qld police can legally break into premises, search it and not inform relevant stakeholders for 3 years under secret warrant provions.

Last night I spotted this article, indicating our Fed investigators have been able to suspend the right to remain silent.

More consequences if I answer CCC: bikie

AAP and BELLE TAYLOR, The West Australian December 13, 2010, 12:31 pm

* Update, 3.50pm: Finks motorcycle gang members and associates have been found guilty of contempt for refusing to answer questions about a vicious brawl at the Perth Motorplex, but have been given an opportunity to reconsider their position.

Senior Fink Stephen Wallace, Tristan Allbeury, Stephen Silvestro, Neil McCormack and Troy Smith were summonsed on 40 allegations of contempt, ranging from refusing to be sworn in to give evidence to insulting Len Roberts-Smith, QC, head of the Corruption and Crime Commission (CCC).

Silvestro was in hospital and did not appear with the others in the Perth District Court on Monday.

A warrant for his arrest has been issued.

All five men had appeared before the CCC in November over a clash with rival gang the Coffin Cheaters at a Harley Davidson drag race event on October 3.

In court on Monday, a video was shown of the men refusing to give evidence during the CCC hearing.

When Wallace was asked repeatedly at the CCC hearing if he wanted to take an oath or an affirmation, he replied: “I don’t understand.”

Mr Roberts-Smith explained that Wallace had to take the oath or the affirmation to tell the truth.

“I don’t know what the Bible is, mate,” Wallace replied, slouching in his chair. “I have nothing more to say.”

Wallace told the commissioner his lawyer had told him that he did not have to participate.

“I’m telling you that you are obliged to participate,” Mr Roberts-Smith said.

After several minutes Wallace finally took the affirmation but refused to answer any questions, replying with “no comment” to every question posed to him.

Smith and Silvestro both remained silent and would not even take the oath, slouching and swivelling in their chairs, and folding their arms in defiance.

A DVD of Mr McCormack’s evidence to the commission showed him telling the commission he would "not answer any more questions so I might as well stop now."

When warned there would be consequences to not answering the CCC questions he replied: "I can see more consequences if I answer, I don’t see youse going to anyone’ funeral".

A visibly agitated Allbeury told the lawyer asking questions and the commissioner to “get f*****” and “f*** off” more than a dozen times.

Chief Justice Wayne Martin found that the men had “failed to answer questions” that were important to the CCC’s investigation.

He said Allbeury’s foul language was also insulting to the commissioner.

“It was an abusive, derogatory and contemptive response,” he said.

However, he said the men should be given the opportunity to reconsider their position and give evidence to the CCC.

The decision prompted Wallace to shout in the court, “I don’t need to reconsider.”
Chief Justice Martin ignored the outburst and ordered all the men to be detained in custody until January 21 when they will be sentenced if they do not cooperate with the CCC.

[boxy]

I thought the right to remain silent only applied to not incriminating yourself (or a husband/wife, perhaps).

[freediver]

Not incriminating yourself is for the courtroom - pleading the fifth. No idea if it applies in Australia. I think the local cops have to inform you of your right to remain silent, just like in the US.

[Outlaw Yogi]

My understanding is if someone doesn't want to speak, they don't have to, except for name, DOB and address to avoid 'refusing to give particulars' charge. If someone doesn't want to make a statement or be interviewed they are perfectly within their rights to not participate in court or a police station, and if they want, they can get a lawyer. In court in particular if the accused hasn't had an opportunity to seek legal counsel they can reserve their defense.

[Super Nova]

Wikipedia provides this definition for Australia.

Australia
Within Australia, the right to silence derives from common law. The uniform position amongst the states is that neither the judge nor the jury is permitted to draw any adverse inference about the defendant's culpability, where he/she does not answer police questions. While this is the common law position, it is buttressed by various legislative provisions within the states. For instance s.464J of the Crimes Act 1958 (Vic) and s.89 of the Evidence Act 1995 (NSW).

It has also been upheld by the High Court in the case of Petty v R (1991) 173 CLR 95. However, where a defendant answers some police questions, but not others, an inference may sometimes be drawn about the questions he refused to answer. (See Coldrey, below.)

The current caution used in New South Wales is:

“ 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? ”

Where a defendant refuses to speak to the police, but then speaks to an undercover member of the police, that evidence is likely to be excluded so as to ensure that the police do not avoid their limitations. However, if a defendant speaks to a person who is not a member of the police and who is fitted with a listening device, that evidence would be admitted.

Australian research indicates that very few suspects actually refuse to speak. Stevenson's research (see below for citation) indicates that only 4% of suspects who are subsequently charged and tried in the District Court of New South Wales in Sydney remain silent during interviews. The Victorian DPP found that 7-9% of suspects refused to answer police questions.

A number of states have conducted Enquiries into the adoption of the English changes set out in the Criminal Justice and Public Order Act 1994.[31][32][33] All states have rejected such change. As the NSW Report said:

“ It is reasonable that innocent persons faced with a serious accusation might wish to consider their situations carefully before making any disclosure, especially where the circumstances appear suspicious but it cannot be assumed that they are rational and articulate. In many cases, suspects may be emotional, perhaps panicked, inarticulate, unintelligent, easily influenced, confused or frightened or a combination of these. They may be unable to do themselves justice. Such persons may be well advised to hold their peace, at least at an early stage. They may, of course, have something to hide, but that something may simply be shameful and not a crime, or it may implicate others for whom they feel responsible. The supposition that only a guilty person has a reason for not speaking freely to investigating police is an unreasonable assumption. ”

It is also important to note that anything said to an Australian police member should be corroborated, especially by way of video or audio tape. If it is not so corroborated it will be admitted only under exceptional circumstances, S.464H (2)(a) of the Crimes Act 1958 (Vic), and where the circumstances, on the balance of probabilities, justify the reception of the evidence, S.464H (2)(b) of the Crimes Act 1958 (Vic). While initially the police were insulted by this ruling most have now come to find it useful as a way of proving that they did not invent a false, verbal confession, never made by an accused (a practice called "verballing" an accused).

[Outlaw Yogi]

Different topic per se, but law & judiciary related, and probably not worthy of its own thread to non ALF fans (mods might judge differently), at this stage anyway.

Anyway .. I'm in disagreement that a court can arbitrarily order someone (in this case a minor) to destroy material because it might/can tarnish the public image of celebrities.

AFL scandal girl ordered to destroy photos
http://au.sports.yahoo.com/news/article/-/8561310/

The teenager at the centre of the St Kilda nude photo scandal has been ordered by a Federal Court to destroy any photos of AFL players that she had intended to post online.

The court also requested that the girl place digital copies of the photos onto a USB stick to be held by the court until it can determine whether the photos had come into her possession legally.

The Federal Court hearing follows concerns from Victoria's Child Safety Commissioner Bernie Geary about the treatment of a the 17-year-old girl.

The girl, who cannot be named, is being sued by St Kilda Football Club and one of its players for publishing the lewd photos of players Nick Riewoldt, Nick Dal Santo and Zac Dawson online.

[Outlaw Yogi]

Ignore last post. Just found topic relevant thread elsewhere.

[Ned Kelly]

What you bush lawyers have failed to notice is that these blokes were refusing to answer, not questions put to them by Coppers at the Local Cop Shop, rather, questions put to them at a Commission of Inquiry which normally has the same powers of a Royal Commission where there is no right to refuse.

However, that is balanced up because there will also be a provision which says that nothing you say to a Commission may be used in any other proceedings taken against you.

So, they can force you to blurt, but they can do nothing with the information other than make some esoteric Report usually of only political usefulness.

[J.W. Frogen]

So, you have an obligation to tell the truth but nothing you say can be held against you.

The exact opposite of marriage.

[boxy]

What you bush lawyers have failed to notice is that these blokes were refusing to answer, not questions put to them by Coppers at the Local Cop Shop, rather, questions put to them at a Commission of Inquiry which normally has the same powers of a Royal Commission where there is no right to refuse.

However, that is balanced up because there will also be a provision which says that nothing you say to a Commission may be used in any other proceedings taken against you.

So, they can force you to blurt, but they can do nothing with the information other than make some esoteric Report usually of only political usefulness.

What happens when they ask you where you buried the bodies, Aussie? Arn't the coppers alowed to go digging?