Thursday, 22 July 2010





Brain v The Queen







No, well, that’s hay my - - -



142: Yeah?




144: Or had he hung up?

No, no. He was still on the phone.



146: Yeah.

In a violent manner.






Coghlan AJA [at 17]:





AJA Coghlan [in 29]:




whodareswins said...

Ok I will bite - what odd results?

Jeremy Gans said...

Brain is a pre-UEL case. If it was a UEL case, then arguably the defence's keenness to get some of the 'no comment' responses included might be contrary to s89 as adverse to the prosecution. (That's one of the odd results of s89, whodareswins.) However, I guess the CoA's argument is that a purely contextual use isn't adverse to anyone, so s89 doesn't bar it. Dunno if that's right though. And wouldn't there have to be a limiting direction to stop adverse uses?

For a UEL case where a 'no comment' response was admitted, see Huggins v. R (Barbados) [2004] UKPC 7. (Barbados is a UEL jurisdiction, though it's s89 appears as s76 of its Evidence Act 1994.)The Court in that case held that the 'no comment' answers actually benefited the defence, because they showed how confident the defendant was that he was innocent (?). More so than Brain, that strikes me as 'an inference unfavourable to a party' (the prosecution.)

whodareswins, other weird effects of s89 are to bar defendants from calling evidence that the complainant, or the alleged real perpretrator, or an allegedly corrupt police officer, refused to answer questions about the alleged events put to them by an official.

Anonymous said...

Cannot make it tonight. Bon voyage 007!

Anonymouse said...

I heard he escaped and went out and did what he tries to do everynight ... TRY TO TAKE OVER THE WORLD!