1. A review of Zhou Libo's drug-related gun-holding case
Case review
In the early hours of January 19, 2017 local time, Zhou Libo was stopped by US law enforcement officials in long Island Leitenton because he was driving a "snake walk," and a colt Mustang 380 caliber pistol and two bags of fast coca cocaine were found on the vehicle. Police then controlled driver Zhou Libo and co-pilot MIT researcher Tang Shuang. After the incident, Zhou Libo was charged with five counts, including:
1) the offence of illegal possession of arms at the second level;
(2) the offence of illegal possession of firearms;
(3) the crime of illegal possession of weapons at the fourth level;
(4) the crime of illegal possession of the goods charged at the seventh grade;
5) offences against New York State vehicle and traffic laws.
After nearly a year and a half of investigation and trial process, Zhou Libo held the tenth trial in New York, the United States, the United States New York state court decided to withdraw Zhou Libo case, the case will be final judgement on June 4.
Lawyer Zhou Libo said that since Zhou Libo's native language was not English, the legality of the police search was questioned, so the guns found from the vehicle could not be used as evidence in court.
At the same time, the U. S. police interception is legal, but the search is not legal, so the evidence found gun and drug can not be used as evidence in court. The police said the reason for intercepting the car was that they saw the driver on the phone.
But lawyers say phone records show that there was no record of the call on the phone at the time. Therefore, the judge asked the prosecution to decide whether to continue to appeal or withdraw the case, to continue the appeal will continue to proceed, no appeal will be withdrawn on June 4, Zhou Libo will also be found innocent.
The United States is a country with strict procedural requirements for police enforcement, while pursuing the presumption of innocence, so the burden of proof of the existence of criminal facts and the legality of evidence rests with the police. Therefore, if the police can not provide sufficient evidence, the police evidence process will be ruled illegal. Even if evidence is obtained, it is considered illegal and not accepted by the court. This is very demanding for the police in the law enforcement process.
Zhou Libo's case and Simpson's murder of his wife once again embody the principle of procedural justice in the judicial system of the United States. This principle is also embodied in two famous American legal systems:
The first is the procedural legality of obtaining evidence: evidence, as the most important factor in a case, must be fully procedural in the course of obtaining the evidence, if the police make a slight mistake in the process of obtaining the evidence. Then the evidence must be rejected. For example, in the famous Simpson murder case, countless "hard evidence" were rejected one by one because of the illegality of the collection process, which ultimately determined the outcome of the case.
The second is the well-known jury system: if a case involves a life or death verdict or more significant, the judge can introduce a jury, allowing a group of people who do not have professional law knowledge to vote to determine the final outcome of the case.
2. Australian legal system-"the fruit of poison trees cannot be eaten"
In Australian evidence law, the rule of presumption of evidence can be used in certain circumstances to prove the facts in dispute without resorting to additional grounds.
It can be a presumption of fact, or a presumption of law, even from previous procedures. In the presumption of law, it can be divided into rebuttable legal presumption and irrefutable legal presumption.
Presumption usually occurs when the suspect is unable to produce the corresponding evidence to refute, and the prosecution has the right to ask the court to presume the existence of the fact on the basis of the proven basic fact. There are many rules to reflect the evidence of criminal presumption in Australia. This paper focuses on the following law principles related to Zhou Libo's case:
1) presumption of fact
If the presumption of law is a kind of applicable rule of evidence under the premise of no contrary evidence, then the presumption of fact is more based on the judge's rational thinking of evidence selection criteria.
Therefore, unlike the presumption of law, the presumption of fact gives the judge the discretion to consider whether to further infer the basic facts of the proof to a greater extent. Whether or not the evidence is accepted after the presumption of fact, the jury's choice is very useful.
For example, a suspect was seen fleeing the crime scene at the time of the crime. From this fact, we can only infer that the suspect may be a criminal, not necessarily a criminal.
From the point of view of the rules of procedure, the defence should recommend that the suspect produce evidence to explain why he or she escaped from the crime scene at that point in time, or that the suspect produced evidence directly to prove that the fugitive from the crime scene had another person, He is not what the witness saw.
However, even if the facts presume that the suspect has not given evidence, the jury has the right to choose not to make obvious inferences.
2) presumption of innocence in case law
The first and foremost meaning of presumption of innocence in the case law is that the evidence is to the extent of excluding reasonable doubt, which gives the prosecution the responsibility to prove the perpetrator's guilt. That is, if the prosecution raises a reasonable rebuttal and the prosecution is unable to consolidate the evidence to remove reasonable doubt, the prosecution will bear adverse consequences.
The type of legal presumption of the presumption of innocence has been in use in case law for a long time, It contains two aspects: the prosecution has the responsibility to prove the charges or not and defendant has no obligation to prove his guilt. The case of. Woolmington v DPPOI [2] {8} reveals the rebuttable essence of the presumption of innocence.
In fact, the presumption of innocence has a wider application, it also affects civil, administrative and other fields. In the broadest sense, the presumption of innocence requires that whoever accuses him or her should provide evidence to prove his intention. In other words, who advocates who gives evidence.
3) presumption of the fruit of poisonous trees
The rule of application of evidence of the fruit of the poison tree has been raised from case law to written rule. Article 10 of Queensland's Criminal Law Amendment Clause (1894) states that any evidence submitted by prosecutor through the use of the National authority for threat or commitment, The court will not accept it.
Any court of evidence obtained after such threat or commitment shall be deemed to have attracted the proceeds and shall not be admitted as evidence. If the prosecution wants the evidence to be supported, it will have to provide other proof to refute it.
The effect of the law is that once the defendant proves that the informant has made a threat or promise to him prior to the confession, the burden of proof will be transferred to the prosecutor where the prosecution proves that the evidence was obtained not by the inducement of the confession.
If the proof is weak, the evidence will not be admitted. In order to better protect the rights of defendants and prevent the erosion of private rights by national public power, the legal presumption that the consequences of poison trees are not evidence is strictly applied in Australia.
Taken together, the public power represented by the police can only be convicted and punished by evidence obtained under due process, which is the spirit of the rule of law in the Australian legal system.
Because public power has a natural tendency of wanton abuse, justice cannot be guaranteed if any citizen is at risk of being unjustly adjudicated without legal procedural requirements. If there is no demand for procedural justice, then the sins carried out in the name of justice are always grand and fearless.
Overall, if Zhou Libo was involved in a drug-armed case in Australia, it is likely that the police will also withdraw the case because of the illegality of the procedure of finding guns, drug from Zhou Libo's car.
3. How to communicate correctly with the Australian Police (excerpt from the Chinese Embassy in Australia)
It is the duty of the police to maintain public order, including stopping property damage or fighting. In Australia, in dealing with the police, it is necessary to maintain respect and politeness, but also to defend their rights and interests in a reasonable, well-founded, legal and legal manner. This paper systematically introduces the information about the questions, searches, detentions, arrests, custody, release, complaints and other aspects of the Australian police, so as to provide a reference for Chinese citizens to understand the power and rights of the Australian police. Please note that there are slight differences between states and different cases. Please visit the official website of the state police or contact a lawyer.
1) question (Being Questioned)
(1) the police can stop you in the street for questioning. Before questioning, the police usually take the initiative to explain the reasons and inform him of his name, officer's card number, rank, police station, etc. Asking questions doesn't mean you've committed a crime yourself.
(2) if the police ask basic questions, such as your name and address, or require the production of a photo document, they shall usually cooperate. If you refuse to provide, or give a false name, address, you may be liable to a fine, or to extend your detention (if in custody), or to have an impact on bail.
(3) you have the right to remain silent about questions, but at some point you must answer the police questions truthfully or you may break the law. If you are not sure if you can answer questions, contact your lawyer. Whether or not to be questioned does not affect any possible charges against you by the police.
(4) if you decide on your own or agree to be questioned after consulting a lawyer, please note that your dialogue with the police may be recorded and impossible to withdraw; remain calm, understand and answer questions correctly. Conversations with the police can be evidence of arrest or prosecution.
(5) after receiving an interview, the police may ask you to sign the interview record. Please note that before signing, read carefully and do not sign documents that have errors or your disapproval. If necessary, you can apply for an interpreter. You have the right to request a copy of the interview record or a backup recording.
(6) if you do not speak English, you may ask the police to provide an interpreter. If you are underage, police questioning should take place in the presence of your parents or guardians.
(7) the police may also ask you to come to the police station for questioning, but this requirement is not enforceable. You will not be forcibly taken to the police station until you are formally arrested. Whether or not to go to the interview, advise to contact a counselor, but the lawyer does not represent you for the interview.
2) search for (Being Searched)
(a) if a search warrant is held or your consent is obtained, the police may search the personal, property, home or vehicle. In some cases, the police can do a search without a warrant or your consent. You can ask why, but you need to cooperate, and you can ask counsel for advice.
(2) the police in charge of the search shall inform him of his name, rank, reason for the search, etc. A search doesn't mean you've committed a crime. Refusal to cooperate or obstruct a police search mission may be charged with violating the law and punishable by a fine or imprisonment.
(III) if the police have reasonable grounds to suspect that you may be carrying the following items, even if you have not been arrested, the police may search for: stolen or illegally acquired items; and tools that the prohibited drug (drug); may be used to commit crimes; Dangerous goods, such as knives, weapons, etc
(IV) the police may also search your vehicle if it is suspected that the vehicle may be used for a serious crime; if the vehicle is in possession of theft or illegal acquisition of goods; and if the vehicle is in possession of a prohibited drug, (drug);, possession of a criminal tool; Vehicles parked near schools and other public places may threaten public safety; there are suspects to be arrested by the police.
(5) if you are sniffed by an anti-drug dog in a public place that may hold drug, the police may search you. If the police enter the house on charges of domestic violence, they have the right to search and remove weapons, knives.
(6) during a personal search, the police may tap your dress from top to bottom, require you to take off your coat and shoes, check your clothes and articles, use electronic detection equipment, and so on. Except in exceptional circumstances, strip checks should normally be carried out at the police station and searched by other same-sex police officers. A strip check should protect your privacy.
(7) the following measures may be taken by the police to prevent possible mass public unrest: blocking areas, setting up roadblocks, checking documents, issuing reminders, searching persons or vehicles, detaining vehicles or mobile phones, declaring no-alcoholic zones and prohibiting alcohol trafficking, Disperse the crowd, etc The police can search people, objects and vehicles in the target area, even if they have nothing wrong with them.
3) arrest of (Being Arrested)
(1) the main objectives of the arrest by the police are: to stop illegal acts; to verify your identity; to ensure attendance at the court trial; to preserve or prevent falsification of evidence; to stop nuisance of witnesses; to protect the safety of the person or property of others; and to prevent escape; Control personnel for questioning, etc.
(2) arresting a policeman should tell you: you have been arrested, the reason for the arrest, his name and rank. If the police do not provide this information, and do not argue, you can also complain to the police afterwards. You can also ask and confirm, "am I under arrest?", "Why am I arrested?"
(C) Police officers may produce arrest warrants when they are arrested, but not all arrest warrants are required. Even if you are innocent, the police may arrest you for what they see as reasonable suspicion that you have committed a crime. With the advice, you still have a chance to defend yourself on court.
(4) it is illegal to resist the arrest of you or another person by the police. The police may use reasonable force such as handcuffs to arrest you. Trying to escape can be used as evidence that you are aware of the crime yourself. Violent revolt arrest, may be charged with assault on the police.
If you are not an Australian citizen, you should inform the police immediately. The police should allow you to contact the embassy or consulate general. After being arrested, the police can search you on the spot or at the police station.
4) complaint against (Complaining)
The law allows for the proper use of force or other necessary measures by the police in enforcing the law. If you consider the use of force by the police improperly (such as vandalism or injury to you) or any other abuse of power, try to record the identity of the police officer, the course of the incident, the taking of photographs of the damage to the property, and a medical examination. And get the contact details of the witness at the scene.
You can sue after the event by legal means, or you can file a complaint in the following ways. When complaining, please provide the name, rank, number, name of the police station, and the time, place and process of the incident. If you have an eyewitness, contact him or invite him to testify with him.
I. Direct to the local police station to meet the duty officer or the person in charge
II. Contact the Office of the Federal Ombudsman (Ombudsman's office): 1800 451,524
III. Minors under 18 years of age can contact the Youth legal Helpline (Legal Aid Youth Hotline): 1800 10 18 10