Pleading - self-incrimination and penalty privileges

In Anderson v Australian Securities and Investments Commission [2012] QCA 301 the Queensland Court of Appeal allowed an appeal from the decision of the primary judge (ASIC v Managed Investments Ltd No 3 [2012] QSC 74. The Court of Appeal was satisfied that the defendants’ non-compliance with the pleading rules in the Uniform Civil Procedure Rules 1999 (Qld) was justified by the claims to privilege against self-incrimination or exposure to a penalty.

Pleading for privilege : Denials and non-admissions under the UCPR

The decision in ASIC v Managed Investments Ltd No 3 [2012] QSC 74 provides practitioners with useful guidance on the relationship between the privileges against self-incrimination and exposure to a penalty, and the UCPR requirements for denials and non-admissions.

Intervenções corporais probatórias e direitos fundamentais: compatibilidade e limites

In this paper we will essentially consider the relations between the State punitive claim as well as the pursuit of material truth of facts on the one hand, and on the other hand, the admissibility of evidence collected on the body of the accused in criminal investigations. Aware of the multiple and different refractions that this matter involves, especially considering the potential interference of the principle nemo tenetur se ipsum accusare (or privilege against self-incrimination), this approach is illustrated by the critical appreciation of the ECHR decision in the case Bogumil vs. Portugal, trying to reach some propositions (necessarily poor) regarding the specifics of evidence-related body interventions in cases of arrest and detention.

L'accertamento dei reati di guida in stato di ebbrezza e alterazione da droghe

La tesi affronta le questioni processuali connesse alla verifica dei reati di guida in stato di ebbrezza e di alterazione da droghe. La ricerca si sviluppa in tre direzioni. La prima parte studia la disciplina tedesca. L’analisi parte dalle norme sostanziali che definiscono le fattispecie incriminatrici contemplate dall’ordinamento osservato; s’interessa, poi, degli equilibri tra gli strumenti di captazione della prova utili ai reati in discorso ed il principio nemo tenetur se detegere (l’ estensione del diritto di difesa tedesco copre anche le prove reali e non prevede obblighi di collaborazione all’alcoltest). Prosegue, infine, con l’esame delle metodologie di acquisizione della prova, dall’etilometro agli screening per le droghe, sino al prelievo ematico coattivo, indispensabile per l’accertamento penale. La seconda sezione esamina gli artt. 186 e 187 del codice della strada italiano, alla luce del principio di libertà personale e del diritto a non autoincriminarsi. Particolarmente delicati gli equilibri rispetto a quest’ultimo: l’obbligatorietà di un atto potenzialmente autoaccusatorio è evitabile solo a pena di una severa sanzione. Occorre definire se il diritto di difesa copra anche il mero facere o garantisca il solo silenzio. Se si ammette, infatti, che il nemo tenetur sia applicabile anche alle prove reali, la collaborazione obbligatoria imposta al conducente è scelta incompatibile con il diritto di difesa: la disciplina italiana presenta, dunque, profili d’illegittimità costituzionale. La terza parte riguarda le problematiche processuali poste dai controlli stradali che emergono dall’analisi della giurisprudenza. Si affrontano, così, le diverse vicende della formazione della prova: ci si interroga sull’istituto processuale cui ricondurre gli accertamenti, sulle garanzie di cui goda il guidatore durante e dopo l’espletamento dell’atto, sulle eventuali sanzioni processuali derivanti da una violazione delle predette garanzie. Si esaminano, infine, le regole di apprezzamento della prova che guidano il giudice nella delicata fase valutativa.

El derecho a no autoincriminación y la autorización para la obtención de evidencia a partir del cuerpo del procesado

El privilegio contra la auto incriminación es una garantía constitucional que protege a todo procesado de ser compelido a declarar en contra de sí mismo en una causa penal; la mencionada garantía hace necesario realizar un análisis en torno a los límites y alcances de dicho privilegio de cara a la posibilidad de que judicialmente se dé la autorización, previa solicitud motivada de la policía judicial o de la Fiscalía General de la Nación, de obtener muestras para cotejo que involucren al imputado aun cuando éste se niegue a dar su consentimiento para ello. Las posiciones respecto a los límites y alcances que pueda tener éste privilegio no son pacíficas y van desde considerar que únicamente aplica para el caso del testimonio del acusado o coacusado hasta afirmar que, además del testimonio o declaración, comprende la prohibición absoluta de usar el cuerpo humano como medio de obtención de evidencia probatoria que pueda llegar a desvirtuar la presunción de inocencia y causar que sea el mismo procesado quien se incrimine. Es por lo anterior que nuestra Corte Constitucional fincó su posición en considerar que el privilegio comprende únicamente la prohibición de obligar al procesado a declarar en su contra; dejando por fuera de su órbita de protección la posibilidad de suplir la voluntad del indiciado, imputado o acusado con una orden judicial dada por el Juez de Control de Garantías para la toma de muestras con fines de cotejo aun cuando dicha evidencia tienda a incriminarlo. El privilegio contra la auto incriminación es una garantía constitucional que protege a todo procesado de ser compelido a declarar en contra de sí mismo en una causa penal; la mencionada garantía hace necesario realizar un análisis en torno a los límites y alcances de dicho privilegio de cara a la posibilidad de que judicialmente se dé la autorización, previa solicitud motivada de la policía judicial o de la Fiscalía General de la Nación, de obtener muestras para cotejo que involucren al imputado aun cuando éste se niegue a dar su consentimiento para ello. Las posiciones respecto a los límites y alcances que pueda tener éste privilegio no son pacíficas y van desde considerar que únicamente aplica para el caso del testimonio del acusado o coacusado hasta afirmar que, además del testimonio o declaración, comprende la prohibición absoluta de usar el cuerpo humano como medio de obtención de evidencia probatoria que pueda llegar a desvirtuar la presunción de inocencia y causar que sea el mismo procesado quien se incrimine. Es por lo anterior que nuestra Corte Constitucional fincó su posición en considerar que el privilegio comprende únicamente la prohibición de obligar al procesado a declarar en su contra; dejando por fuera de su órbita de protección la posibilidad de suplir la voluntad del indiciado, imputado o acusado con una orden judicial dada por el Juez de Control de Garantías para la toma de muestras con fines de cotejo aun cuando dicha evidencia tienda a incriminarlo.

A intervenção dos orgãos de polícia criminal em sede de julgamento

Currently, Portugal assumes itself as a democratic rule of substantive law State, sustained by a legal system seeking the right balance between the guarantee of fundamental rights and freedoms constitutional foreseen in Portugal’s Fundamental Law and criminal persecution. The architecture of the penal code lies with, roughly speaking, a accusatory basic structure, “deliberately attached to one of the most remarkable achievements of the civilizational democratic progress, and by obedience to the constitutional commandment”, in balance with the official investigation principle, valid both for the purpose of prosecution and trial. Regarding the principle of non self-incrimination - nemo tenetur se ipsum accusare, briefly defined as the defendant’s right of not being obliged to contribute to the self-incrimination, it should be stressed that there isn’t an explicit consecration in the Portuguese Constitution, being commonly accepted in an implicit constitutional prediction and deriving from other constitutional rights and principles, first and foremost, the meaning and scope of the concept of democratic rule of Law State, embedded in the Fundamental Law, and in the guidelines of the constitutional principles of human person dignity, freedom of action and the presumption of innocence. In any case, about the (in) applicability of the principle of the prohibition of self-incrimination to the Criminal Police Bodies in the trial hearing in Court, and sharing an idea of Guedes Valente, the truth is that the exercise of criminal action must tread a transparent path and non-compliant with methods to obtain evidence that violate the law, the public order or in violation of democratic principles and loyalty (Guedes Valente, 2013, p. 484). Within the framework of the penal process relating to the trial, which is assumed as the true phase of the process, the witness represents a relevant figure for the administration of criminal justice, for the testimonial proof is, in the idea of Othmar Jauernig, the worst proof of evidence, but also being the most frequent (Jauernig, 1998, p. 289). As coadjutant of the Public Prosecutor and, in specific cases, the investigating judge, the Criminal Police Bodies are invested with high responsibility, being "the arms and eyes of Judicial Authorities in pursuing the criminal investigation..." which has as ultimate goal the fulfillment of the Law pursuing the defense of society" (Guedes Valente, 2013, p. 485). It is in this context and as a witness that, throughout operational career, the Criminal Police Bodies are required to be at the trial hearing and clarify the Court with its view about the facts relating to occurrences of criminal context, thus contributing very significantly and, in some cases, decisively for the proper administration of the portuguese criminal justice. With regards to the intervention of Criminal Police Bodies in the trial hearing in Court, it’s important that they pay attention to a set of standards concerning the preparation of the testimony, the very provision of the testimony and, also, to its conclusion. Be emphasized that these guidelines may become crucial for the quality of the police testimony at the trial hearing, thus leading to an improvement of the enforcement of justice system. In this vein, while preparing the testimony, the Criminal Police Bodies must present itself in court with proper clothing, to read before and carefully the case files, to debate the facts being judged with other Criminal Police Bodies and prepare potential questions. Later, while giving his testimony during the trial, the Criminal Police Bodies must, summing up, to take the oath in a convincing manner, to feel comfortable, to start well by convincingly answering the first question, keep an attitude of serenity, to adopt an attitude of collaboration, to avoid the reading of documents, to demonstrate deference and seriousness before the judicial operators, to use simple and objective language, to adopt a fluent speech, to use nonverbal language correctly, to avoid spontaneity responding only to what is asked, to report only the truth, to avoid hesitations and contradictions, to be impartial and to maintain eye contact with the judge. Finally, at the conclusion of the testimony, the Criminal Police Bodies should rise in a smooth manner, avoiding to show relief, resentment or satisfaction, leaving a credible and professional image and, without much formality, requesting the judge permission to leave the courtroom. As final note, it’s important to stress that "The intervention of the Police Criminal Bodies in the trial hearing in Court” encloses itself on a theme of crucial importance not only for members of the Police and Security Forces, who must welcome this subject with the utmost seriousness and professionalism, but also for the proper administration of the criminal justice system in Portugal.

O direito fundamental contra a autoincriminação: a análise a partir de uma teoria do Processo Penal Constitucional

The right against self-incrimination is a fundamental right that works in the criminal prosecution, and therefore deserves a study supported by the general theory of criminal procedure. The right has a vague origin, and despite the various historical accounts only arises when there is a criminal procedure structured that aims to limit the State´s duty-power to punish. The only system of criminal procedure experienced that reconciles with seal self-incrimination is the accusatory model. The inquisitorial model is based on the construction of a truth and obtaining the confession at any cost, and is therefore incompatible with the right in study. The consecration of the right arises with the importance that fundamental rights have come to occupy in the Democratic Constitutional States. In the Brazilian experience before 1988 was only possible to recognize that self-incrimination represented a procedural burden for accused persons. Despite thorough debate in the Constituent Assembly, the right remains consecrated in a textual formula that´s closer to the implementation made by the Supreme Court of the United States, known as "Miranda warnings", than the text of the Fifth Amendment to the U.S. Constitution that established originally the right against self-incrimination with a constitutional status. However, the imprecise text does not prevent the consecration of the principle as a fundamental right in Brazilian law. The right against self-incrimination is a right that should be observed in the Criminal Procedure and relates to several of his canons, such as the the presumption of not guilty, the accusatory model, the distribution of the burden of proof, and especially the right of defense. Because it a fundamental right, the prohibition of self-incrimination deserves a proper study to her constitutional nature. For the definition of protected persons is important to build a material concept of accused, which is different of the formal concept over who is denounced on the prosecution. In the objective area of protection, there are two objects of protection of the norm: the instinct of self-preservation of the subject and the ability to self-determination. Configuring essentially a evidence rule in criminal procedure, the analysis of the case should be based on standards set previously to indicate respect for the right. These standard include the right to information of the accused, the right to counsel and respect the voluntary participation. The study of violations cases, concentrated on the element of voluntariness, starting from the definition of what is or is not a coercion violative of self-determination. The right faces new challenges that deserve attention, especially the fight against terrorism and organized crime that force the development of tools, resources and technologies about proves, methods increasingly invasive and hidden, and allow the use of information not only for criminal prosecution, but also for the establishment of an intelligence strategy in the development of national and public security

Correlates of female sexual functioning : adult attachment and differentiation of self

Introduction Female sexual functioning is affected by a range of factors including motivation, psychological well-being, and relationship issues. In understanding female sexual dysfunction (FSD), there has been a tendency to privilege diagnostic and medical over relationship issues. Aim To investigate the association between women’s experience of intimacy in close relationships - operationalized in terms of attachment and degree of differentiation of self - and FSD. Methods Two hundred and thirty sexually active Australian women responded to an invitation to complete a set of validated scales to assess potential correlates of sexual functioning. Main Outcome Measures The Female Sexuality Function Index, the Experiences in Close Relationships Scale, the Differentiation of Self Inventory, as well as a set of study-specific questions were subject to hierarchical multiple regression analyses Results Relational variables of attachment avoidance and to a lesser degree, attachment anxiety were associated with FSD. Participants with lower levels of differentiation of self were more likely to report sexual difficulties. The inability to maintain a sense of self in the presence of intimate others was the strongest predictors of sexual problems. A history of sexual abuse in adulthood and higher levels of psychological distress were also associated with sexual difficulties. Conclusions The findings provide support for a relational understanding of female sexual functioning. Attachment avoidance, attachment anxiety, and degree of differentiation of self are shown to be associated with sexual difficulties. The findings support the need to focus on relational and psychological factors in women’s experience of sex.

Beyond the National Resource Privilege: towards an International Court of the Environment

The national resource privilege, which holds that states are allowed to control all the natural resources found in their territory, is a cornerstone of international politics. Supporters of the national resource privilege claim that without the privilege states would fail to be sovereign and self-determining entities which provide for the needs of their citizens. However, as this paper shows the case is not as simple as that. In fact, control over resources must be carefully unpacked. Doing so shows that states do not require full control over all resources found in their territory in order to be sovereign. Moreover, sovereignty and self-determination come with a set of responsibilities and duties attached. Based on these observations the paper will sketch the contours of an alternative resource governance scheme built around the idea of an International Court of the Environment.

Whose Voice Is Present?: An Examination of Power and Privilege in Service-Learning in Ontario Universities

This research paper examines themes of power and privilege that occur within service-learning as described by 3 Ontario universities on their service-learning websites. Due to size and time restrictions, this paper was able to examine only 3 Ontario universities: Brock, Wilfrid Laurier, and Lakehead. The purpose of this study is geared towards service-learning practitioners in order for the universities and students to become more self-aware of their immense place of privilege within the service-learning context. Qualitative narrative analysis research methods were employed in this purposeful sample to examine how each university’s story of service-learning reflected themes of power and privilege. The research found that each university posed a unique narrative of service-learning representing various stakeholders’ voices and presence in different ways on their website. Brock largely focuses on faculty and student voices. Laurier intentionally attempts to include all three stakeholder voices, although still favours students and the university as an audience over the community. Lakehead’s unique program includes a plethora of voices and intends much of their information for the community members, students, and the university. The implications of this research demonstrate that universities have a large amount of power and privilege, which is carried through to the students within the service-learning partnership.

Pensamos que somos historia porque sabemos que somos historia: context, self and self-construction in women's testimonial writing from revolutionary Cuba

This article presents a group of women-authored testimonial texts published between 1959–1989 in revolutionary Cuba. Despite the recent scholarly debates within Latin American Cultural Studies regarding Latin American testimonio, these texts have received little or no critical or theoretical attention within or outside Cuba. The article therefore starts by situating them within the specific context of revolutionary culture, especially with reference to questions of gender, genre and publication. Having established that the texts as a whole privilege the collective revolutionary context and revolutionary experience over gendered or generic aspects, the seven texts are then grouped under a more specific contextual category, as narratives of voluntary work (participation and observation), in order to provide a clearer structure for their description and analysis. Each of the texts is then described within its sub-group, and the article ends by indicating how such texts challenge testimonio paradigms by positing a relational notion of subjectivity.

Challenges of multimedia self-presentation : taking, and mistaking, the show on the road

One privilege enjoyed by new-media authors is the opportunity to realize representations of Self that are rich textual worlds in themselves and also to engage the wider world, with a voice, a smile, imagery, and sound. Still, closer investigation of multimedia composition practices reveals levels of complexity with which the verbal virtuoso is unconcerned. This article argues that while technology-afforded multimedia tools make it comparatively easy to author a vivid text, it is a multiplicatively more complicated matter to vividly realize and publicize an authorial intention. Based on analysis of the digital story creation process of a youth named “Steven,” the authors attempt to demonstrate the operation of two forces upon which the successful multimodal realization of the author's intention may hinge: “fixity” and “fluidity.” The authors show how, within the process of digital self-representation, these forces can intersect to influence multimodal meaning making, and an author's life, in consequential ways.

"I tell ya who needs educatin’”: non-Indigenous cultural self-awareness and prisoner education.

Glen says, “current education is colonial; it ain’t ours. I tell ya who needs educatin’, wadjellas”. Glen is a Noongar man who, along with several other Aboriginal adults living in Western Australia, teaches me in a PhD research project about prisoner education from their perspective. His words pose a question for wadjellas like myself who are raised, taught and work in a white neo-colonial society. We have been raised in, taught in and work in a colonial system. As non-Aboriginal people we have unearned privileges which are often invisible and unacknowledged. How then to address the outcomes of this in a way that might lead to working co-operatively alongside Aboriginal people? What kind of ‘educatin’ could teach us about our own unacknowledged privilege and the disadvantage this can lead to for others? Is the standard cross-cultural awareness training enough?This paper shares some of the teachings of Glen and other participants in this research. It expresses the view that, ultimately, the usually unacknowledged legacy of colonisation and associated issue of denied Aboriginal sovereignty lies at the heart of much of the disadvantage experienced by Aboriginal people today when considering education and the prison system. Addressing gaps in non-Indigenous cultural self-awareness by learning from Aboriginal people is an important factor in improving their experiences of education.

Fluids and barriers of the CNS establish immune privilege by confining immune surveillance to a two-walled castle moat surrounding the CNS castle

Neuronal activity within the central nervous system (CNS) strictly depends on homeostasis and therefore does not tolerate uncontrolled entry of blood components. It has been generally believed that under normal conditions, the endothelial blood-brain barrier (BBB) and the epithelial blood-cerebrospinal fluid barrier (BCSFB) prevent immune cell entry into the CNS. This view has recently changed when it was realized that activated T cells are able to breach the BBB and the BCSFB to perform immune surveillance of the CNS. Here we propose that the immune privilege of the CNS is established by the specific morphological architecture of its borders resembling that of a medieval castle. The BBB and the BCSFB serve as the outer walls of the castle, which can be breached by activated immune cells serving as messengers for outside dangers. Having crossed the BBB or the BCSFB they reach the castle moat, namely the cerebrospinal fluid (CSF)-drained leptomeningeal and perivascular spaces of the CNS. Next to the CNS parenchyma, the castle moat is bordered by a second wall, the glia limitans, composed of astrocytic foot processes and a parenchymal basement membrane. Inside the castle, that is the CNS parenchyma proper, the royal family of sensitive neurons resides with their servants, the glial cells. Within the CSF-drained castle moat, macrophages serve as guards collecting all the information from within the castle, which they can present to the immune-surveying T cells. If in their communication with the castle moat macrophages, T cells recognize their specific antigen and see that the royal family is in danger, they will become activated and by opening doors in the outer wall of the castle allow the entry of additional immune cells into the castle moat. From there, immune cells may breach the inner castle wall with the aim to defend the castle inhabitants by eliminating the invading enemy. If the immune response by unknown mechanisms turns against self, that is the castle inhabitants, this may allow for continuous entry of immune cells into the castle and lead to the death of the castle inhabitants, and finally members of the royal family, the neurons. This review will summarize the molecular traffic signals known to allow immune cells to breach the outer and inner walls of the CNS castle moat and will highlight the importance of the CSF-drained castle moat in maintaining immune surveillance and in mounting immune responses in the CNS.

Power, privilege and HIV prevalence: examination of sexual HIV-risk factors in MSM and transgender women who engage in transactional sex

Thesis (Master's)--University of Washington, 2016-06