Chapter 2: Custody; Bail; Prosecution guidelines; Taser

Question 1

S32 Policing Act 2008

Answer 1

Identifying particulars of a person in custody

2) a Constable may take identifying particulars of a person in lawful custody -
detained for committing an offence -
and is at a police station / any other place used for police purposes

3) take identifying particulars in a manner that is reasonable in the circumstances / can use reasonable force

Question 2

What is the penalty for failing to provide identifying particulars?

Answer 2

S32 (4)

• a person - who after being cautioned - fails to comply commits an offence

Liable on conviction to

• imprisonment for a term not exceeding 6 months
• fine not exceeding $5000
• OR BOTH

Question 3

What are identifying particulars?

s32(5) and s33

Answer 3

• biographical details (name, address, DOB)
• photograph / visual image
• impressions of fingerprints / palm prints / footprints

Question 4

How long can a person be detained if found intoxicated?

S36 policing act 2008

Care & protection of intoxicated people

Answer 4

• Must be released as soon as the person ceases to be intoxicated.
• Must not be detained longer than 12 hours after the person is first detained
• Unless a health practitioner recommends that person is detained a further 12 hours ( for a period not exceeding 12 hours).

Question 5

Definition of intoxicated

Answer 5

Means observably affected by alcohol; other drugs or substances

to such a degree that speech, balance, coordination or behaviour is clearly impaired.

Question 6

Temporary shelter definition

Answer 6

Means a place (other than a place operated by police) that is capable of providing for the care and protection of an intoxicated person.

Question 7

In what circumstances can you detain an intoxicated person?

S36 (1) Policing Act 2008.

Answer 7

Finds a person intoxicated in a public place

Or intoxicated while trespassing on private property

• incapable of protecting them self from physical harm
• likely to cause physical harm to another
• likely to cause significant damage to property

And not reasonably practical to provide for the persons care & protection by

• taking the person home
• taking the person to a temporary shelter

Question 8

When must a health practitioner not recommend further detention?

S36(3)

Answer 8

Unless health practitioner is satisfied that

• person remains intoxicated and is incapable of protecting himself
• person does not have health needs that require medical attention
• not practical to provide for the persons continuing care & protection by:
  : taking them home / to a temp shelter

Question 9

S33 policing act 2008

Identifying particulars for Simmons

Answer 9

• detain person at any place
• in order to take identifying particulars
• ONLY for the time necessary to take particulars
• take particulars in a manner that is reasonable / use reasonable force
• fail to comply: imprisonment 6 months / $5000 or BOTH

Question 10

Public interest considerations

Answer 10

1) seriousness of offence
2) offence involved significant violence
3) grounds for believing the offence is likely to be repeated
4) relevant previous convictions
5) offence committed on bail
6) defendant ringleader / organiser
7) premeditated
8) carried out by a group
9) offence resulted in serious financial loss
10) defendant in a position of authority
11) offence against person serving public (dr, ambo)
12) defendant took advantage of perso with developmental delays
13) offence motivated by hostility (age, race, gender)
14) element of corruption

Question 11

Section 7 Bail Act 2000

Answer 11

defendant is bailable as of right IF:

1) charged with an offence not punishable by imprisonment.
2) max punishment: LESS than 3 yrs imprisonment (unless assault on a child / MAF)
3) UNLESS defendant has previously been convicted of an offence punishable by death or imprisonment

Question 12

S8(1) Bail Act 2000

Consideration of just cause for continued detention

Answer 12

Considering whether there is just cause for detention - court must consider:

1) risk defendant may fail to appear
2) defendant may interfere with witnesses or evidence
3) defendant may offend while on bail

Question 13

S8(2) Bail Act 2000

Consideration of just cause for continued detention

Answer 13

1) nature of offence
2) strength of evidence and probability of conviction
3) seriousness of punishment
4) character & past conduct or behaviour
5) history of offending while on bail
6) length of time before trial
7) any other special matter

Question 14

S8(4) Bail Act 2000

Answer 14

S29 Victims Rights Act 2002

When considering an application for bail - court must take into account any views of a victim

Question 15

S8(3A) Bail Act 2000

Answer 15

Defendant charged with a Family Violence offence

• court’s primary consideration is the need to protect:
• the victim AND
• person / people in a Family relationship with victim

Question 16

S3(C) Bail Act 2000

Answer 16

Breach of protection order

Courts paramount consideration:

• Need to protect every person - who is a protected person.

Question 17

S8(4A) Bail Act 2000

Answer 17

Court MUST NOT take into account

If the defendant has provided/may provide information

Relating to the investigation / prosecution

Including any offence committed by the defendant

• court may consider cooperation - if that cooperation is relevant to courts assessment of the risk the defendant may fail to appear / interfere with witnesses or evidence / offend while on bail.

Question 18

S10 Bail Act 2000

Answer 18

Restriction on bail if defendant with previous conviction for specified offence - charged with a further specified offence

• of or over the age of 18
• charged with a specified offence
• Who has 1 or more previous convictions for a specified offence
• same or different specified offence

Question 19

Under s10 Bail Act 2000, who can grant bail?

Answer 19

High court judge or District court judge

Question 20

S12(1)(a) and (b) Bail Act 2000

Further restrictions on bail

Answer 20

• defendant over age of 18
• charged with an offence - Max penalty 3yrs + imprisonment

And

• on bail for offence with max penalty 3yrs + imprisonment (at time of committing an offence)
  And
• previous imprisonment

OR

• 18 or older
• charged with offence 3yrs + imprisonment
  And
• 14 or more previous imprisonments
  And
• previous conviction for offence committed on bail (penalty 3yrs +).

Question 21

Who grants bail for drug dealing offences?

Answer 21

High court judge or district court judge

Question 22

S23 Bail Act 2000

Bail and breach of protection order

Answer 22

Arrest for breach of protection order must not be granted bail during the 24 hrs following arrest