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Inferences from the defendant’s silence and other conduct - Coggle Diagram

- - - - THE FOUR BURGE SITUATIONS A Lucas Direction is usually required in 4 circumstances which may overlap:
        
        Where the defence relies on an alibi
        
        2.Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case and amongst that other evidence draws attention to the lies told or allegedly told by the defendant
        3.Where the prosecution seek to show that something said either in or out of court in relation to a separate or distinct issue was a lie and to rely on that lie as evidence of guilt in the relation to the charge which is sought to be proved
        4.Where although the prosecution have not adopted the approach the judge reasonably envisages that there is a real danger that the jury may do so
        
        The directions given should be tailored to the circumstances of the case
        First the lie must be admitted or proved beyond all reasonable doubt
        Secondly, the mere fact that the accused lied is not in itself evidence of guilt since defendants may lie for innocent reasons
        So only if the jury are sure that the accused did not lie for an innocent reason can the lie support the prosecution case
        
        A Lucas direction is not required simply because the jury may reject the evidence of the accused about a central issue of an case
- - - - CIRCUMSTANCES RELEVANT TO THE EXPLANATION OF FAILURE The factors and circumstances that should be taken into account and that can indicate a range of factors are the accused's age, experience, mental capacity, health, sobriety, tiredness and personality A restrictive approach is not appropriate
        
        There are many circumstances where it may be reasonable to expect individuals to put forward a case in relation to DNA not because they are expected to analyse the science or the detailed material on which scientific conclusions were based but because they would be aware of facts pointing out an alternative explanation
- - - - Matters relevant to whether direction is given and if so in what terms should be discussed fully between counsel and the judge and the judge has to give sufficient and correct instructions which is particular the case if the defence is weak
- - - - WAIVER OF PRIVILEGE AND STATEMENTS If an accused who wishes to explain the reasons for silence following legal advice may find it hard to do so without waiving privilege
        While no waiver is involved in a bare assertion that advice had been given to remain silent little weight is likely to attach to such assertion unless the reasons for it are before the court
        For example, a waiver was allowed where the D called evidence in his defence against him
        D was held to have been properly cross examined about the extent to which he had disclosed to the solicitor the facts that formed the basis for his defence
        
        Where the waiver takes place the accused may be questioned about disclosures to the solicitor even where it is accepted that legal advice was given solely on the basis of the case as disclosed by the investigator
        The position is different where the accused merely responds to an allegation of recent fabrication by stating that the defence was communicated to the solicitor, in that case the adviser stands in the same position as any other person to whom the defence was revealed and no waiver is involved
- - - - SECTION 37 Where a person is arrested by a constable is found at a place or about the time the offence for which he was arrested is alleged to have been committed AND
        The constable investigating the offence reasonably believes that the presence of the person at the place and at the time may be attributable to his participation in the commission of the offence and
        The constable informs the person that they so believes and requests them to account for that presence and the person fails or refuses to do so
        Then if in any proceedings against the person for the offence, evidence of those matters a judge in deciding whether to grant an application made by the accused
        Will determine whether there is a case to answer AND
        The court or jury in determining whether the accused is guilty of the offence charged may draw such inferences from the failure or refusal as appear as proper
        
        BASIS FOR INFERENCE Neither s36 or s37 of the CJPO 1994 permits inferences to be drawn UNLESS 4 conditions are satisfies:
        
        The accused is arrested
        
        A constable reasonably believes that the object, substance, mark or the presence of the accused at the relevant place may be attributable to the accused's participation in a crime
        
        3.The constable informs the accused of his belief and requests an explanation of the matter in question
        4.The constable tells the suspect in ordinary language the effect of a failure or refusal to comply with the request
        
        Only proper inferences may be drawn s.34 The jury must be satisfied that accused has failed to account for the relevant matter and that any explanation advanced by the accused should be rejected as implausible before an inference can be said to be proper
        The strength of the inference increases with the suspicious nature of the circumstances, for example if the accused is arrested when in possession of a car with explosive devices in full view on the back seat and failure to give an account is more suggestive of guilt than in the case of refusal to amount for a dirty mark following a fight
        In some cases a strong inference is proper
- - - - FAILURE TO REVEAL FACTS Section 34 permits the tribunal to draw inferences as appear proper rom the accused's failure to reveal specific facts provided that the various conditions set out are made out and any questions of fact arising are resolved against th accused
        The provision apply where there is a particular fact that is advanced by the defence which is suspicious by reason of not being put forward at an early opportunity
        S34 does not apply simply because the accused ha declined to answer questions
        
        S 34 also applies where the accused discloses the nature of the defence but fails to mention a particular fact that is relied upon at trial
        In such case there is a discretion whether to deploy s34
        For example where the D immediatedly disclosed his defence of self defence but neglected to mention that he believed that the V was armed with a hammer.
        The Judge did not give s 34 direction and it was approved
        It would be wise to avoid a s3 direction where D had said enough in a interview to set up the line of reasoning on which the defence was based although some points of detail were missing
- - - - Inconsistencies between the prepared statement and the defence at trial do not necessarily amount to reliance on unmentioned facts the judge must be particularly careful to pinpoint any fact that might properly be the subject of a s 34 direction
        Alternatively, the jury might in appropriate circumstances be direct ed to regard differences between the prepared statement and the accused's evidence as constituting a previous lie rather than as the foundation for a direction under s34