Appeal from sexual assault conviction. Accused asserted his 10(b) rights upon arrest. Police caution then read, which ended in the wording: “Do you wish to say anything?” Accused made a statement in response, saying that he “did not think it was rape” because it was his common law partner.
Held: Appeal dismissed.
10(b) breach. Accused asserted his right to counsel, and he should not have been asked whether he wished to say anything. However, the breach was minor as the police were reading from a standard form, and not attempting to elicit information. “Even though the breach was of a minor nature … it should be stated that the final six words of this form of standard caution should no longer be used”. Statement not excluded. Veldhuis, JA dissented: “legalistic expressions such as ‘not obliged to say anything’ and ‘given in evidence’ may confuse some detainees … It may be time to update language borrowed from the 19th century”.
I. Runkle – Defence Counsel