Right to remain silent

dillinger
Posts: 1
Joined: Mon Jun 20, 2011 5:00 pm

Right to remain silent

Postby dillinger » Mon Jun 20, 2011 5:22 pm

Hi

I have read the website about your right to remain silent and it was very interesting information.

I have a question I was hoping someone could answer for me about this. When do Police or investigating official have to tell you you're rights to silence, eg "that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence."

I have done some research and found that it comes under 464 of the Crimes Act, but how come when the police question you for a traffic fine, say speeding don't they need to tell these "rights". Because under 464 it says you’re in custody if;

(1) For the purposes of this Subdivision a person is in custody if he or she is—

(c) in the company of an investigating official and is—
(i) being questioned; or
(ii) to be questioned; or
(iii) otherwise being investigated
— to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.


then under 464A Detention of person in custody it says;

(1) Every person taken into custody for an offence (whether committed in Victoria or elsewhere)
must be—

(3) Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating
official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.


So I can't figure out when they are meant to tell you these "rights", as it seems to me that they should every time they question you.

I also take it, if they don't tell you these rights then anything you say cannot be used in evidence, is this right.

oscar
Posts: 695
Joined: Thu Nov 10, 2011 7:00 am

Re: Right to remain silent

Postby oscar » Mon Jun 20, 2011 8:21 pm

a hot/warm topic...

how does the Crimes Act come into effect if an offence is committed under the Road Safety Act or one committed under the Road Safety Road Rules 2009 ?

nemo
Posts: 63
Joined: Sun Jan 11, 2009 3:42 pm
Location: Australia

Re: Right to remain silent

Postby nemo » Mon Jun 20, 2011 8:48 pm

Very good question.

When you're dealing with most traffic offences, police would have all the evidence they need without any of your admissions. Whatever you say can not help them, so they don't care if whatever you say cannot be given in evidence. However, your answer lies in your last sentence:

dillinger wrote:I also take it, if they don't tell you these rights then anything you say cannot be used in evidence, is this right.


Should you come up with a good reason for commiting the offence, having your statement admitted into evidence is in your interest, therefore you would not object to having it admitted, so no harm done by not informing you of your rights at the time!

:wink:

LEO
Posts: 311
Joined: Thu Dec 02, 2010 7:33 pm

Re: Right to remain silent

Postby LEO » Tue Jun 21, 2011 8:28 pm

Agree with Oscar, is has been a bit of a hot/warm topic
My understanding was similar to Nemo's in that you only needed to tell someone their rights, if the offence required proving Mens rea, which would generally require you to interview the person.

Whereas most traffic offences don't require an admission to prove the offence.

But it’s a good question, and I haven't got a definitive answer, maybe Hardy does?
Last edited by LEO on Tue Jun 21, 2011 10:45 pm, edited 1 time in total.

Comrade Ash
Posts: 499
Joined: Sat May 24, 2008 5:10 am

Re: Right to remain silent

Postby Comrade Ash » Tue Jun 21, 2011 10:35 pm

LEO wrote:But it’s a good question, and I haven't got a definitive answer, maybe Hardy does?


Hardy wouldn't be much of a lawyer if he had a definitive answer.

LEO
Posts: 311
Joined: Thu Dec 02, 2010 7:33 pm

Re: Right to remain silent

Postby LEO » Tue Jun 21, 2011 10:42 pm

I know Comrade Ash, but he spent so much time on his website telling people not to speak to or answer questions from the Police. So I would assume that he would have a opinion on this topic.

But alas he seems oddly quiet on this. :D

Hardy
Site Admin
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Location: Melbourne Victoria
Contact:

Re: Right to remain silent

Postby Hardy » Wed Jun 22, 2011 12:01 am

464A applies when the police have information that can "justify the arrest of that person in respect of that offence."
The police don't have a general power to arrest a person who is suspected of committing an offence against most of the road laws, e.g. Road Rule 20, for example.

Generally you need to be suspected of committing an indictable offence before the police are obliged to respect s.464A.
The police usually say they gave the 464A caution when they have reason to suspect a person of committing serious traffic offences, such as drive disqualified, driving under the influence, dangerous driving i.e. those punishable by imprisonment.

The power to arrest a motorist for a traffic offence pursuant to s.76 RSA applies only when the driver refuses to give their name and address. So if a driver who is suspected of committing a driving offence refuses to identify themselves, then the s.464A caution needs to be given. This creates the interesting catch 22 where the person is arrested because they failed to state their name and address and then immediately they're told they have the right to remain silent! :?

The power of arrest under s.458 Crimes Act is limited to the situations set out in that section, so does not provide a universal power of arrest for traffic matters. Offences against regulations are expressly excluded so that wipes out the majority of traffic offences. S.458 is very unlikely to assist someone to bring their traffic case within s.464A. S.459 provides a universal power of arrest for all suspected indictable offences. Very few driving offences are indictable offences.

This 464A question was fought and lost in a series of County Court appeals dealing with traffic matters in the mid 1990s. In particular, when the police get a positive result from a PBT and then begin to question the driver, they will say they did not have a power of arrest. Provided the person has stated their name and address then the police probably don't have any power of arrest at that point. Oddly though, once they get the EBT result they do give the s.464A caution. In many drink driving cases the police describe their observations of the driver - smelt of intoxicating liquor, staggering, eyes glazed, speech slurred, vomiting, admitted to drinking 3 bottles of red etc. In such cases the police often exercise their power to arrest the driver for being drunk in a public place. If that power is exercised, or exists but is not exercised, then it could be argued that the police should give the s.464A caution the moment they detect the driver might be sloshed. When police give a s.55(2) requirement to accompany, they already suspect the driver is over 0.05% so they could already have a power to arrest for being drunk in public and might be obliged to give a 464A caution. Same applies whenever they charge someone with a s.49(1)(a) offence. The police answer might be that their questioning was in respect of a potential drink driving offence only, which is not an offence for which they have a power of arrest, so they could not justify the arrest of the person for the matter which they were interviewing him about.

In many traffic cases, the statements made by the client to the police are of no consequence to the case - i.e. the police case does not hinge on the admissions made by the driver and if the prosecution case fails, it is usually despite the admissions made by the client. In some traffic cases, such as careless driving, the admissions made by the client can be critical to the prosecution case and it will probably be impossible to prevent them being admitted against the accused by using the s.464A argument. It might be possible to get such evidence excluded by relying on the magistrates general discretion to exclude evidence unfairly obtained. See Moore's case and http://www.austlii.edu.au/cgi-bin/sinod ... 06/29.html

No doubt some will disagree with aspects of what I've written, but until someone takes this issue to the Supreme Court this law will remain open to debate.


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