Criminal Law Lecture 2 – Right to Silence, Career Strategies, Investigative Powers & Procedure LR

Acknowledgement of Country & Housekeeping

  • Lecturer opens by acknowledging the traditional owners of the land: Wadjuk Noongar people; respects paid to Elders past, present, emerging.
  • Reminder: this is a 1-hour lecture (not 2). Slides are dense; do not panic if everything is not covered.
  • Outline (flexible):
    • Matters Arising
    • Fundamental Principles (continuation)
    • Criminal Investigation
    • (If time) Criminal Procedure
    • Bail will be done next week in tutorials.

Matters Arising – Career & Professional Development

  • Keep a running list of any extra professional activity (societies, CLE/CPD events, student law societies, seminars, etc.).
    • Purpose: strengthens CV and demonstrates specialised interest (esp. for ODPP Level 1 LG recruitment which explicitly asks to show an interest in criminal law).
    • Example phrasing for CV: “Attended fortnightly CLE seminars on sentencing reform.”
  • Discussion board is active – continue using it.
  • Job ideas that give courtroom/justice-system exposure:
    • Court transcription work (excellent insight into hearing structure, who speaks when, procedure).
    • Judge’s Associate or Judge’s Usher (District & Supreme Courts).
      • Roles give day-to-day familiarity with both civil and criminal lists.
      • Suits students willing to study and work (part-time or strenuous full-time).
      • Makes graduates competitive on completion.
  • Technology feedback: lecturer trialled Kahoot vs Microsoft Forms for quizzes; currently sticking with Forms after more research.

Primer on Case & Legislation Citations (for LLB 100 students)

  • Example appellate citation: Adrian Trevor Moore v State of Western Australia (2023) WASCA — indicates a WA Supreme Court of Appeal decision.
    • Oral reference in court: “Your Honour, I rely on Moore v WA 2023 WASCA, paragraph 27 …” (never say “Weska”).
  • Prosecution appellate behaviour:
    • State can appeal sentences more readily than convictions; common ground = sentence too lenient.
    • Offender appeals usually argue manifestly excessive sentence or unsafe conviction.
  • Legislation citation format: Criminal Procedure Act 2004 (WA).
    • Jurisdiction suffixes: WA, QLD, VIC, CTH (Commonwealth).
  • Murdoch Legal Research Guide – good explainer + links to AustLII, legislation databases.

Evidential Burden – Theory & Practice

  • Evidential burden = prosecution must show prima facie case (all elements supported by evidence).
  • Practical workflow:
    1. Police consider elements & evidence before charging.
    2. If serious, brief goes to ODPP; ODPP repeats sufficiency/viability assessment.
    3. Further checkpoints: committal, trial directions, no-case submissions.
  • Ideally, trials should not collapse after State case; checks & balances should catch weak briefs.

Discrimination, Juries & “Peers”

  • Over-representation: First Nations people disproportionately appear as accused while juries/judges/counsel often white.
  • Jury representativeness concerns:
    • Challenges can be made during empanelment (gender, ethnicity balance).
    • Appellate ground is framed as “unsafe or unsatisfactory verdict”, not “racist jury”.
  • Recent reforms to broaden jury pool haven’t eliminated lack of representativeness.

AI-Generated Child Exploitation Material (CEM)

  • Discussion board post flagged new Commonwealth Bill; lecturer emphasises state relevance.
  • WA District Court has sentenced for possession of AI-generated CEM.
  • Sentencing focus: promotion of harmful attitudes & sexualisation of children, even without a physical victim.

Fundamental Principles – Recap

  • Rights-based focus: fairness to accused; liberty at stake ⇒ standard = beyond reasonable doubt.
  • Lecture paused last time at Right to Silence; resumed here.

Right to Silence – Foundations

  • Popular culture: U.S. Miranda vs WA statutory model.
    • Clip shown from 21 Jump Street (humorous mis-recital of Miranda).
  • WA caution embedded in Criminal Investigation Act 2006 (WA)\text{Criminal Investigation Act 2006 (WA)} – NOT common law.
    • Police must caution before interview.
  • Typical caution wording: “You are not obliged to say anything, but anything you do say may be used in evidence.”
  • Understanding tested: officers ask, e.g., “If I ask 10 questions how many must you answer?” – correct answer: none.
  • Suspect rights (Criminal Investigation Act):
    • Legal advice
    • Medical treatment
    • Interpreter if needed
    • Notification of arrest
    • Protection from mass media exposure
Practical Dimensions
  • Street encounters: must give correct legal name; otherwise still may refuse further answers.
  • Record of Interview (ROI):
    • Formal EROI may follow arrest.
    • Suspect may answer some, none, or selected questions (“no comment strategy”).
    • Declined interview ≠ adverse inference; statement-of-material-facts must say “declined”, not “refused”.

Right to Silence in Court

  • Jury directions safeguard: jury told not to draw adverse inference from silence.
  • Election procedure: After State closes, judge asks defence whether accused will:
    1. Give evidence
    2. Call witnesses
    3. Call no evidence.
  • Liberato direction (approved in Anderson NSW CCA; cited in WA):
    1. If jury believes accused’s evidence ⇒ acquit.
    2. If jury has reasonable doubt accepting accused ⇒ acquit.
    3. If jury rejects accused’s evidence ⇒ put it aside and still ask whether State proved guilt beyond reasonable doubt.
  • Contemporary illustration: national interest in “mushroom poisoning” trial and commentary on accused testimony.
Tran v The State of Western Australia (2024 WASCA)
  • Facts: appellant drove Melbourne→Perth with >\text{trafficable quantity} meth hidden under transmission; claimed he believed it was illegal cash.
  • Exercised right to silence at trial; attempted on appeal to present true story.
  • Court: forensic choices bind accused. Appeal ≠ chance to re-run trial. (Only avenue: incompetence of counsel argument leading to retrial.)

Recap Quiz – Key Takeaways

  1. Statute governing rights of arrested suspect = Criminal Investigation Act.
  2. Participation in EROI is optional.
  3. Prosecution bears burden to prove elements beyond reasonable doubt (not balance of probabilities).
    • Caveat: Some statutory exceptions reverse/modify burden.
  4. Judicial officer titles: Judges (District), Justices (Supreme), Magistrates, Registrars – different courts, all judicial officers.
    • Correct forms of address in person: “Judge”, “Justice”, “Magistrate”.

Investigative Powers & Key Statutes

  • Criminal Investigation Act 2006 (WA): general powers of arrest, search, seizure, caution.
  • Criminal Investigation (Identifying People) Act 2002 (WA): obtaining identifying particulars:
    • Fingerprints, palm/foot/ear prints
    • Identifying photographs (tattoos, unique genitals)
    • Hair samples
    • DNA (with strict chain-of-custody rules).
  • Road Traffic Act 1974 (WA): breath, blood testing; vehicle stop/search powers.
  • Misuse of Drugs Act 1981 (WA): drug offences, trafficable quantities, Part 4A search warrants (e.g., smell of cannabis justifies MD search of vehicle).
Exceeding Power – Consequences
  • Illegally obtained evidence ⇒ admissibility challenges (directions hearing).
    • Example: warrantless house search without statutory conditions.
  • Prosecutorial screening: weak evidence excluded ⇒ reassessment of prospects; possible discontinuance.
  • Unrecorded confession: may still be admissible if statutory exceptions satisfied & judge exercises discretion.

Criminal Procedure Sources

  • Criminal Procedure Act 2004 (WA): filing timeframe of indictments, committal procedure, trial logistics.
  • Criminal Investigation Act also contains procedural elements.
  • Court-issued Practice Directions & Circulars (vary by Magistrates, District, Supreme Courts) dictate forms, filing deadlines, remote-appearance protocols.

Offence Classifications & Jurisdiction

  • Summary Offences → Magistrates Court only.
  • Indictable Offences (termed “crime” in statute) → District or Supreme Court on indictment.
  • Either-Way offences ("summary or indictable")
    • Example: Stealing s 378s\,378 Criminal Code.
    • Section s 426s\,426 sets summary penalties; indictable penalties higher.
  • Section 5 Criminal Procedure Act: State may apply to move either-way offence to indictment if seriousness or case-joiner warrants.
  • Practical effect: sentencing maxima much lower in summary jurisdiction due to Magistrate imprisonment cap.

Legislative Navigation Example – Stealing

  • Offence provision: Criminal Code s 378\text{Criminal Code }s\,378 – declares stealing is a crime.
  • Indictable penalty given in same section.
  • Summary alternative: s 426s\,426 (must be read with s 378s\,378) – lower max; shows typical legislative cross-reference complexity.

Administrative & Practical Tips Shared

  • Always trace legislative cross-references before court appearance; do it before you are on your feet.
  • Maintain professionalism when emailing lecturers – feedback welcomed (e.g., Kahoot suggestion).
  • When meeting judicial officers socially or on campus, safe salutations: “Judge”, “Justice”, “Magistrate”.

Looking Ahead

  • Next lecture: “Lifecycle of a Criminal Charge” – end-to-end pathway comparing summary vs indictment.
  • Tutorials next week: Bail.
  • Encourage ongoing questions via email or discussion board – anonymity preserved in class summaries.

These notes collate every substantive point, example, legislative reference, and practical insight raised in the lecture, providing a full standalone study resource.