Brain v The Queen [2010] VSCA 172: cutting and pasting the interview

Section 89 of the Evidence Act prevents evidence of silence being used to infer guilt. If evidence can only serve that purpose it is not admissible.(As Jeremy Gans commented on my related post last year, this includes silence by any person, not just the accused, in response to an investigating official. It's possible to think …

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Implied waiver of the right to silence

Interesting times over in the land of the free and home of the brave, as the US Supreme Court has held in a 5-4 decision that the right to silence must be unambiguously (and probably expressly) asserted.The full text of Berghuis v Thompkins 560 US (including the dissenting judgment) can be found here.In the US, …

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Selective answering

Section 89 of the Evidence Act 2008 is sure to generate some fresh discussion about whether selective answering can be a valid source of inferences about an accused's consciousness of guilt.The prohibition on the selective answering of an accused in response to police questioning being used to infer a consciousness of guilt - or at least …

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Caution under the new Evidence Act

A familiar debate amongst summary-jurisdiction-practitioners is if an accused is entitled to a caution against self-incrimination before being questioned about a summary offence. While there's always been a judicial discretion to exclude evidence unfairly obtained, there's only an actual statutory requirement for the police to give a caution for a summary offence in very limited …

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