Criminal Law

 Crime 2 (Criminal Law 2)

 

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Criminal Law (Crime 2) : Parliaments to regulate speech

The parliament has the power for certain limitation to regulate speech

Australia allows freedom of speech that people express and share their thought and ideas in speaking and in writing unless they do not harm others, however, it does not accept any false allegation, damage other's reputation.[1] There is special law, 'Defamation Act'[2], to protect person's good reputation against false information. The libel actions have got a significant role in the matters of public affairs as being the regular arsenal of political combat in Australia. As indicated by the laws in Australia the power of parliament has got limitation regarding the speech in some specified places. According to the section 6 Summary Offences Act 2005, offensive behaviour must be prohibited in a public place, in general, 25 penalty units or 6 months imprisonment  is given to the offender.[3] This essay will review and discuss about the restrictions that the High Court and the Queensland Court have made on the power of parliament to modulate the speech and what extent the Queensland Parliament has responded regarding the speech after the Coleman decision has been implemented.

A ban has been imposed on the uttering of offensive language in the public places by the High Court of Australia, apart from its implied freedom of political communication. No person has the right to use offensive, horrifying or insulting words in the public places. Although, the parliament has the power to  regulate speech, the incivility or intimidation act is prohibited from the legitimate legislative end, as per the limitation of Queensland Court. The use of abusive language in a political discussion is restricted by the High Court as it is considered to be against civility. One of the significant case which deeply influences on the law related the public speech is Coleman case.[4]

Patrick Coleman handed out pamphlets in the Townsville on 26 March 2000 then was charged  with distributing material which contains allegation of corruption of police officers with insulting words that breach s7 of the Vagrants Gaming and Other Offences Act.[5]  He appealed the High Court to consider the scope of the implied constitutional freedom of political communication and the test to determine legislative invalidity of regulation that prohibits the freedom and examine issues of police powers of arrest.

 

Another representative case dealing with the implied freedom of political communication in the Australian Constitution is Lange v Australian Broadcasting Corporation.[6] The High Court developed and adopted two part test.

 

  1. Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? [7]
  2. If the law burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the representative government, and the procedure prescribed by s128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people. [8]

 

This Lange test has been accepted by courts in Australia since the authoritative approach in determining the validity of legislation and in interpreting the common law. The Lange case made the court  reconsider the reasoning of the decision in Theophanous v Herald & Weekly Times Ltd [9] and  Stephens v West Australian Newspapers [10]  because both of cases did not contain constitutional principles. . Other cases that apply Lange test are Monis v The Queen [11]; Muldoon v Melbourne City Council[12]; Attorney-General(SA) v Corporation of the City of Adelaide[13]; Corneloup v Adelaide City Council.[14]

 

In Muldoon, North J concluded  based on the first Lange test that  the provisions which prohibit ‘camping without permission were a burden on a form of non-verbal communication which the implied freedom protects in the same way that by-laws in Levy were a burden on communication for the purposes of the implied freedom.’ [15]  For the second test, North J  held that the object of the laws is found that the preservation, protection, and regulation of public gardens, was compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.  North J also added that there was obvious and compelling way to reconcile the purposes of the provisions with the need  for freedom of political communication.[16]

 


[1] The National Communications Branch of the Department of Immigration and Border Protection, Australian Citizenship Our Common Bond,  Department of Immigration and Border Protection <http://www.border.gov.au/Citizenship/Documents/our-common-bond-2014.pdf>.

[2] Defamation Act  2005 (QLD).

[3] Summary Offences Act 2005 (QLD) s6.

[4] Coleman v Power (2004) 220 CLR 1.

[5] Vagrants Gaming and Other Offences Act 1931 (QLD) s7.

[6] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

[7] Ibid 567.

[8] Ibid 567.

[9] Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.

[10] Stephens and Others v. West Australian Newspapers Limited (1994) 182 CLR 211.

[11] Monis v The Queen [2013] HCA 4.

[12] Muldoon v Melbourne City Council (2013) 217 FCR 450.

[13] Attorney-General(SA) v Corporation of the City of Adelaide (2013) 249 CLR 1.

[14] Corneloup v Adelaide City Council [2013] HCA 3.

[15] Muldoon v Melbourne City Council (2013) 217 FCR 450, 524.

[16] Ryan Goss, Ten Thousand Miles from Wall Street: Muldoon v. Melbourne City Council (4th October 2013) Oxford Human Right Hob < http://ohrh.law.ox.ac.uk/ten-thousand-miles-from-wall-street-muldoon-v-melbourne-city-council/>.


 

Crime 2 (Criminal Law 2) Questions and Answers

 

*Instruction was omitted due to the copyright issue. All answers were written by me and submited via Turnitin. Please use this for only reference or guideline purpose.

 

What issues as to the first conversation (When Barry was tackled)

 

Issue: Detective Deakin failed to cautions to the defendant and used aggressive methods of questioning.

 

Police Responsibilities Code (QLD)[1] states that s24 (3) requires an officer to cease questioning a person who has confirmed a wish not to answer questions. Police officers have general liberty to question anyone including suspect but there are certain limitation and rules before police questioning. A suspect who is to be questioned by a police officer may be entitled to receive a number of preliminary items of advice or warning before questioning start.

 

Firstly, section 431 in the Police Powers and  Responsibilities Act ('PPRA') states that  a police office must, before a relevant person is questioned, caution the person in the way required under the responsibilities code. Secondly,  the Police Responsibilities Code ('PRC')  requires an officer to caution a suspect who has not been arrested that he or she need no accompany the office to a police station or can leave the station before questioning actually commences, that he or she is free to leave at any time. Lastly, section 418 in PPRA states before a police officer starts to question a relevant person for an indictable offence, the police officer must inform the person he or she may (a) telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning (b) telephone or speak to a lawyer of the persons choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning: Commissioner of Police v Barchard .[2]

 

In this case, Detective Deakin must have cautioned the defendant that he or she is not under arrest and is free to leave but he failed to do so but the defendant did not have the right of leaving the place at any time and call to the friends or lawyers.  Furthermore, Detective Deakin did not cease questioning even the defendant did not want to answer question and  aggressive methods of questioning can be problematic. The onus of proof is on the defendant. By considering all the fact that this conversation cannot be included as an evidence and used at a trial.

What issues as to the second conversation (in the police car)

 

Issue: The detective did not caution of the right to silence and persistently importuned the defendant to confess.

 

A police officer to caution a suspect about the right to silence and the potential consequences of speaking. There are two components in caution: (1) there is no obligation to say anything and (2) a warning that anything that is said may be given in evidence.  In this case, Detective Deakin failed to caution of the right to silence, the defendant answered his question which became negative evidence against the defendant. In Carr v The State of Western Australia,[3]  the High Court said that there is a principle of common law requiring a caution to be given or making a statement inadmissible if a caution was not given. Dixon J in McDermott[4] state that if his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence of pressure, it cannot be voluntary. In the police car, Detective Deakin, persistently importuned the defendant to induce him to confess which cannot be done under the common law right to remain silent. There is no legal requirement to answer police questions, to assist police investigation: Rice v Connolly [5] and no legal requirement to disclose defensive facts before trial: Petty v Maiden.[6]  Therefore, the second conversation cannot be included as the evidence at  a trial. The onus of proof arises on the prosecution.

 

What issues as to the third conversation (In the police station interview room)

 

Issue:  The confession was involuntary and is fabricated and the conversation was not recorded.

The section 10 in Criminal Law Amendment Act,  no confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority.  Section 415 PPR Act, a police officer who is questioning a relevant person must not obtain a confession by threat or promise. In this case, the defendant did not believe that he confessed, however,  even if he confessed it is difficult to say that it was the confession because it was induced by the promise of Detective Deakin. The onus is on the prosecution to establish voluntariness on the balance of probabilities: R v Thomas[7].

 

According to the section 436, the questioning must, if practicable, be electronically recorded: R v D;[8] McKinney v The Queen;[9] R v Smith.[10]  The subsection (4) state that if the confession or admission is electronically recorded, the confession or admission must be part of a recording of the questioning of the person and anything said by the person during questioning  of the person. Here, Detective Deakin failed to record the conversation during the questioning, submitted his note which was written only relying on his memory. To be admissible of his written document, he must comply the section 437 (3) and (4) in PPRA states that while questioning its relevant person, or as soon as reasonably practicable afterwards, a police officer must make a written record in English of the things said by or to the person during questioning, whether or not through an interpreter.  Also, as soon as practicable after making the record (a) it must read to the person in English and, if the person used another language during  the questioning, the language the person used  and (b) the person must be given a copy of the record.

 

Here, the microphone which was supposed to be recording the interview had failed the function, Detective Deakin could not transcribe the record. Six weeks later, he made the notes of conversation by relying on his memory, it is doubt that the information is accurate or not fabricated because the defendant said that they only talked about 100th Anniversary of ANZAC day in the police car. Moreover, detective Deakin did not read the written document to the defendant after making the record and also the defendant did not received a copy of the record. Therefore, the third conversation can be excluded and the  conversation cannot be used at the trial because it was not recorded. If it is overruled by the court, apply S 126 in Criminal code Act (QLD), S 7 (a) (i) in PPRA 2012 and S 170 (1) PPRA 2000 to protect the client.

 


[1] Police Responsibilities Code (QLD) 2000.

[2] Commissioner of Police v Barchard [2004] QDC 131.

[3] Carr v The State of Western Australia [2007] HCA 47, [2] [38].

[4]  McDermott v R (1948) 76 CLR 501, 511.

[5]  Rice v Connolly [1966] 2 QB 414.

[6]  Petty v Maiden [1991] 173 CLR 95.

[7]  R v Thomas (2006) 14 VR 475, 497.

[8]  R v D [2000] QCA 203.

[9]  McKinney v The Queen (1991) 171 CLR 468.

[10] R v Smith (2003) 138 A Crim R 172.

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