‘Victoria should adopt reforms enacted in England which allow the jury to draw a strong adverse inference from a suspect’s exercise of the right to silence when questioned by police and permit the trial judge to direct the jury accordingly.’ Critically discuss.
The right to silence is a fundamental right that should not be curtailed in Victoria. The right itself consists of a collection of a complex set of rights, which involve a variety of procedural rules, seen as stemming from the protection against self-incrimination. The right operates in two different circumstances, as both a primary and secondary right, in that it protects an accused when being interviewed by police and also incidentally when at trial. Reforms that allow the jury to draw a strong adverse inference from a suspect’s exercise of the right to silence when questioned by police and permit the trial judge to direct the jury accordingly, should not follow the lead of England, due to the significant differences in the rights and protections established in the legal systems. The right to silence has been a controversial one for sometime and in England and Wales under the Criminal Justice and Public Order Act 1994 the right has been inhibited. The issue is particularly prevalent in Australia currently, with New South Wales in the process of passing legislation to end or at least reduce the right to silence. To weigh the argument on reform in Victoria, firstly it is important to examine the history of the right and its significance in our legal system today. A comparison then must be drawn between Victoria and England, in the way in which the right to silence operates within the differing legal regimes. Finally to conclude, the arguments both for and against such reforms must be analysed.
The phrase ‘right to silence’ is in fact a network of concepts and practices, which operate under the general principal 'that, in the absence of some contrary rule of common law or legislation, all citizens are free to remain silent and to decline to provide the authorities with information.’ The rights are best defined by the House of Lords in R v Director of Serious Fraud Office; ex parte Smith. It is a notion based on the protection against self-incrimination and the presumption of innocence. This right is more than a privilege and is founded on the human right rationale of maintaining a fair trial, which plays an integral part in Australia’s legal system.
The creation of the right to silence can be seen as a result from the practices witnessed in the Star Chamber and High Commission dating back to the sixteenth century. Although Australia has no express constitutional protection for the right to silence, it has been principally preserved by statute and is largely considered by the courts as an important common law right. The right to silence has evolved from its common law inception to also include police questioning, as stated in Petty v The Queen and is expressed in Victoria by virtue of section 89 of the VIC Evidence Act 1995. From this section we can see that the right to silence is both a pre-trial right, which includes the right to remain silent during official questioning and extends to a right at trial, where in criminal proceedings ‘unfavorable inferences’ cannot be drawn from the exercise of the pre-trial right. Section 89 of the Act also establishes that silence includes both selective and complete silence. There are some exceptions to the general right which are, most notably, the right does not apply to corporations which was established in Environmental Protection Authority v Caltex Refining Company Pty Ltd and in cases which rely wholly on circumstantial evidence, as seen in Weissenstiner v The Queen.
In England and Wales the right to silence was first codified in the Judges’ Rules, 1912. Arguably, with the inception of the subsequent Criminal Evidence Act 1984 the rights of defendants were significantly increased. By virtue of the Act a criminal...
...Silence has the meaning: the state of being forgotten; oblivion. In the novel Silence by Shusaku Endo, that is type of silence that gave the book its title. The silence is created by God’s absence in Father Rodrigues’, the main character, life and experience in Japan. As Rodrigues lives in Japan in search of his former teacher, he goes through inner turmoil as he questions God’s decision to remain silent while His people are being tortured for keeping their faith in Him.
Silence by Shusaku Endo is a novel that tells the story of Father Rodrigues and his struggle to keep his faith in a country that wants him to abandon it. The title, Silence, correlates with Rodrigues frustrations with God in his silence when it comes to his followers getting punished for their faith, “What do I want to say? I myself do not quite understand. Only that today, when for the glory of God Mokichi and Ichizo moaned, suffered and died, I cannot bear the monotonous sound of the dark sea gnawing at the shore. Behind the depressing silence of this sea, the silence of God…the feeling that while men raise their voices in anguish God remains with folded arms, silent.” (page 61). The Father felt that God was not providing any reason as to why he wasn’t trying to stop the heinous actions that the Japanese were eliciting on the Christians. Endo evokes the feeling of...
...Silence by Shusaku Endo
The story of Silence is one that stirs up emotional torment within readers. Although it is not poetically sound at times and may seem choppy due to cross-cultural translation, Silence conveys a message like no other to its readers. Silence in short detail, tracks the missionary trek of Sebastião Rodrigues, an appointed Portuguese Jesuit, and his partner Francisco Garrpe as they embark to guide the Japanese Christians towards an ‘authentic Christian status’. All the meanwhile they attempt to dodge the ever hostile government whose aim is to weed out and eradicate anyone practicing or teaching Christianity by means of persecution. Rodrigues also attempts to locate Father Ferreira, his predecessor whose disappearance have generated wily rumors. The story goes through ebbs and flows of emotional suspense from beginning to end, never knowing whether or not Rodrigues will get captured that is until the climactic end. This essay will systematically analyze the author’s construction of the world within the text and its effectiveness.
The story of Silence is conveyed to me as a reader through a multitude of lenses. First and foremost, the author begins the narrative in first person through the eyes of Rodrigues; as the story progresses we shift into a journal entry method in which all the information we receive or gather as the reader is seen through the events Rodrigues experiences...
Contemporary Literature (#1)
Week 7 (Silence Essay)
The Meaning of the Title SilenceSilence, by Shusaku Endo, tells a significant and potent story of those who want to remain faithful to God, Christ our Lord, while facing great peril. The story brings home the fact that the freedom to believe and practice our faith is not an easy path for many, including the Japanese. The difficult path that some choose to take involves hiding, running and imprisonment while battling with faith and questions of why God is silent in all the trouble. While God’s silence presents one theme of the book, another type of silence also introduces itself in the story. The silence of the West in keeping Christianity for themselves and not expanding to the East, Japan, exemplifies another theme in the book. Representing themselves throughout the book, the two main themes, silence of God and silence of the West, relate to the title Silence.
The first theme of Silence comes from Rodrigues’, a character from the book, battling with God and questioning His silence amidst the turmoil of the tortured Christians. Endo uses pristine imagery of the surrounding environment, the vivid description of the senses and the psychological battles within the characters to demonstrate the pain that accompanies martyrdom of the Christians,...
...How Should China Establish The Privilege of Silence System in Criminal Proceedings?
1. The origin and the connotations of the Privilege of Silence.
"Miranda warning" originated from a case heard by the U.S. Supreme Court in 1966: an 18-year-old girl was kidnapped and raped, she identified that it was Miranda who did that. The police interrogated Miranda and used his confession as the hearing testimony. After Miranda was convicted he appealed to the Supreme Court on the grounds that the police did not inform him of the right to remain silent, and his confession was concocted under pressure. He said that if he had been told to have a privilege of silence, he would have not made up that confession. After considering all the arguments, the United States Supreme Court ruled the Miranda confession invalid. Because of this jurisprudence, when arresting or interrogating suspects, the police need to say the "Miranda warning" first. This is how the privilege of silence was born in the judicial system.
The Privilege of Silence contains the following connotations: First, the suspect has no obligation to say words which might be detrimental to his/her own, the prosecution agencies or the courts can not use inhuman or degrading methods to force him to say; Second, the suspect has the right to always keep silent during the interrogation, and the judge can not make the...
Everyone has heard the term Miranda Rights, whether that be when taking a law class, during the course of a television show, or perhaps through personal experience with their use, but what do these two words really mean, where did they come from and how to they apply to an individual's everyday life? The answers to this question are neither simple nor fully answered today, as challenges to Miranda Rights appear in courtrooms routinely. However, the basis for Miranda Rights can be traced back to a landmark case handed down from the Supreme Court of the United States in 1965 entitled Miranda v. Arizona. Ernesto Miranda was an immigrant from Mexico living in the Phoenix, Arizona area in 1963 when he was accused of kidnapping and raping an 18-year-old woman. The victim picked Miranda out of a lineup, and he was subsequently interrogated for two hours during which the police investigators failed to advise him of either his Fifth Amendment Right against self incrimination or his Sixth Amendment Right to request the assistance of an attorney. Over the course of this interrogation, Ernesto Miranda confessed and signed a written confession of his crimes. Included in his confession was acknowledgement that he had waived his right against self-incrimination. After his conviction based on his confession, Miranda's attorney appealed his sentence on the basis that...
...enterprise. Examples are men attendants in a men's lavatory, and women attendants in a women's lavatory.
Another type of discrimination that can occur in the workplace is harassment, sometimes called a hostile work environment. This exists when the employee feels threatened or belittled because of her minority classification. The employer may not take any tangible actions, but the employee still feels discriminated against because of her minority classification. The hostile work environment for harassment must be based on minority classification in order to be considered discrimination. An abusive work environment is not a hostile work environment unless the abuse results directly from the minority classification. From Title VII of The Civil Rights Act, it is unlawful to discriminate against any employee or applicant for employment because of his/her race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related. Equal employment opportunity cannot be denied because of marriage to or associations with an individual of a different race; membership in or association...
...Rights of Accused. Medina. 1
Rights of Accused
Dr. S.G. Harb
POL 110 – U.S. Government
Rights of Accused. Medina. 2
Criteria # 1
On Merriam-Webster Dictionary, Due Process is defined as a judicial requirement stating that enacted laws may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual. In all its complexity due process just simply means the rights of any citizen to certain procedural actions prior to the denial of their civil liberties. Due Process will only permit an accused person time to go through the court proceeding, hoping to prove his or her innocence and/or guilt. Due Process will also give the individuals who have been accused of a crime the right to a fair and public trial, the right to be at the trial, the right to an impartial jury, and the right to be heard. (Due Process . (2012). By Peter Strauss.). The Constitution has always requires that when governments dispossess people of life or liberty or their property, there must be minimal processes for appealing the government's decision. Not "fair", just reasonable and brief, and uniformly applied. Due Process use substantive to prevent legislatures from enacting laws that drew lines, with respect to an individual’s freedom that the Court considered arbitrary.
...Basic Notions of Copyright and Related Rights
By the International Bureau of WIPO
1. BASIC NOTIONS OF COPYRIGHT
Copyright legislation is part of the law “intellectual property”. This law protects the interests of creators by giving them property rights over their creations. It is there to stimulate creativity, make them available to the public and to ensure international trades protected by intellectual property right are harmonized (the law is recognized in most countries). The WIPO is the secretariat that protects the intellectual property law.
Intellectual property refers to all creations of the human mind.
The owner of the property may use it as he wishes. Nobody else can lawfully use his property without his authorization. There are three types of property:
Movable property. Consists of movable things (e.g. car, furniture in home). No one except the owner can use these items. This is referred to as “exclusive” (rights).
Immovable property/real property. Permanently fixed things, which cannot be lifted or moved (e.g. land, house).
Intellectual property. The creations of the human mind (e.g. drawing, theatre play).
2. “Intellectual" property
Intellectual property is divided into two branches:
Industrial property. This includes inventions (patents), trademarks, industrial designs and geographic indications.
Patent. An exclusive right granted for an...