Consideration of just cause for continued detention Risks courts must take into account…
s8(1) BA2000 The court must take into account -
a) whether there is a risk that:
i) the defendant may fail to appear in court OR
ii) the defendant may interfere with witnesses or evidence OR
iii) the defendant may offend while on bail
b) any matter that would make it unjust to detain the defendant.
8 things the courts may take into account when considering bail…
s8(2) Bail Act 2000 The Court may take into account -
- Any other special matter relevant in the particular circumstances
- Character and past conduct of the defendant, in particular proven criminal behaviour
- Nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind
- Seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed
- Strength of evidence and the probability of conviction or otherwise
- The likely length of time before the matter comes to hearing/trial
- The possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody
- Whether the defendant has a history of offending while on bail, or breaching court orders, including court-imposed bail conditions
What must be satisfied for a warrant to remove a child or young person is issued?
s40 CYPFS89 Warrant to remove child if RGTB that the CYP is…
- suffering or likely to suffer ill-treatment, serious neglect, abuse, serious deprivation or serious harm; OR
- is so seriously disturbed as to cause harm to themselves or any other person, or serious damage to property
What are the powers under a s40 CYPFA89 warrant?
Authorised by warrant to search for any child or young person may—
- Enter and search, by force if necessary
- Remove or detain, by force if necessary, the CYP and place the CYP in the custody of the [chief executive]; OR
- Where the CYP is in a hospital, direct the Medical Superintendent of that hospital to keep that CYP in that hospital.
CYP Search WOW - Powers
s42 CYPFA89 RGTB that it is critically necessary to protect a CYP from injury or death may, without warrant,—
- Enter and search, by force if necessary
- Remove or detain, by force if necessary, the CYP and place the CYP in the custody of the [chief executive]
CYP Search WOW - Obligations
42(2) On first entering any premise, and if requested, at any subsequent time, produce evidence of identity and disclose that those powers are being exercised under this section.
42(3) Within 3 days forward to the Commissioner of Police a report on the exercise of the power and the circumstances.
Arrest of child or young person without warrant - what must be satisfied?
s214 CYPFA89 Be satisfied, on reasonable grounds,— that it is necessary to arrest that CYP without warrant for the purpose of:
- Ensuring the appearance of the CYP at Court OR
- Preventing that CYP from committing further offences OR
- Preventing interference with any witnesses or evidence AND
- Summons would not achieve that purpose.
Also… K9 for category 3 or 4 offences AND arrest is required in public interest.
What are obligations under s214 CYPFA 89?
Within 3 days notify the Commissioner of the arrest and circumstances surrounding the arrest.
What are a CYPs rights to be informed before questioning?
s215 CYPFA89 If Power of arrest exists:
- That the CYP may be arrested if, by refusing to give his or her name and address for a summons AND
- CYP is not obliged to accompany Police to any place for the purpose of being questioned, AND
- If the CYP consents to do so, that he or she may withdraw that consent at any time; AND
- That the CYP is under no obligation to make or give any statement; AND
- That if the CYP consents to make or give a statement, that consent may be withdrawn at any time; AND
- That any statement made or given may be used in evidence in any proceedings; AND
- That the child or young person is entitled to consult with, and make or give any statement in the presence of, a barrister or solicitor and any nominated person
s218 Explanation given in a manner and in language that is appropriate to the age and level of understanding
Who can be nominated and who may be refused as a NP?
s214 CYPFA89
The CYP may nominate:
- A parent or guardian of the CYP
- An adult member of the family
- Any other adult selected by the CYP
- If the CYP refuses or fails to nominate any person, any adult (not Police) nominated by Police.
Not allowed if:
- RGTB that the NP would attempt, or would be likely to attempt, to pervert the course of justice
- Cannot be located with reasonable diligence, or will not be available within a period of time that is reasonable
List the standard information that must be fully disclosed?
s13 CDA08 Must disclose as soon as practicable after a not guilty plea the following:
- a copy of any statement made by a prosecution witness
- a copy of any brief of evidence that has been prepared in relation to a prosecution witness
- the name and details (if allowed) of people gave relevant information and whom the prosecutor does not intend to call as a witness
- any written account of the interview, whether signed or unsigned, and any other record of the interview
- any statement made to the prosecutor by the person
- any convictions of a prosecution witness that may affect the credibility of that witness
- a list of all exhibits that the prosecutor proposes to have introduced as evidence as part of the case for the prosecution
- a list of all relevant exhibits in the possession of the prosecutor that the prosecutor does not propose to have introduced as evidence
- a copy of any information supplied to the prosecutor in connection with expert witness or witnesses; and
- a copy of any relevant information supplied to the prosecutor by a person or persons whom the prosecutor considered calling to give evidence as an expert witness or witnesses, but elected not to do so.
Define - Hearsay Evidence - Hostile Witness - Statement
s4 EA06
Hearsay statement means a statement that— (a) was made by a person other than a witness; and (b) is offered in evidence at the proceeding to prove the truth of its contents
Hostile, in relation to a witness, means that the witness— (a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or (b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or (c) refuses to answer questions or deliberately withholds evidence
Statement means— (a) a spoken or written assertion by a person of any matter; or (b) non-verbal conduct of a person that is intended by that person as an assertion of any matter
Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
General exclusion rule?
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.
Previous consistent statements rule?
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
b) the statement provides the court with information that the witness is unable to recall.
Rules of evidence of sexual experience of complainants in sexual cases?
- No evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
- No evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
- The Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
What are the good reasons for not following a formal ID procedure?
s45(4) EA06
- Refusal of person to be identified to take part in procedure (i.e. refuses line-up or photograph to be taken)
- Singular appearance of person to be identified (that cannot be disguised)
- Substantial change in person’s appearance after offence and before practical to conduct procedure
- No officer involved could reasonably anticipate identity of defendant to be issue at trial
- If person has already been identified as alleged to have committed the offence
- If person has already been identified as result of chance meeting between person who identified and person alleged to have committed the offence
Corroboration of evidence?
(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of—
(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).
Search and Surveillance Act 2012 s15 - Entry without warrant to find and avoid loss of evidential material relating to certain offences
s15: an enforcement officer can enter and search a premises without a warrant if he has RGTS an offence punishable by 14yrs imprisonment or more has been committed and RGTB that evidential material relating to that offence is within the premises and is likely to be CADD if entry is delayed
Search and Surveillance Act 2012 s16 - Searching people in public place without warrant for evidential material relating to certain offences
s16: an enforcement officer can stop and search a person in a public place if he has RGTS an offence punishable by 14yrs imprisonment or more has been committed and RGTB that the person is in possession of evidential material in relation to an offence punishable by 14yrs imprisonment
Search and Surveillance Act 2012 s17 - Warrantless entry and search of vehicle for evidential material relating to certain offences
s17: an enforcement officer can enter and search a vehicle in a public place if he has RGTS an offence punishable by 14yrs imprisonment or more has been committed and RGTB that the vehicle contains evidential material in relation to an offence punishable by 14yrs imprisonment
Search and Surveillance Act 2012 s45 - Restrictions on some trespass surveillance and use of interception device
s45: nothing authorises any enforcement officer to undertake any trespass surveillance or use an interception device, except in order to obtain evidential material in relation to an offence punishable by a term of imprisonment of 7 years or more, or against section 44, 45, 50, 51, 54, 55 of the Arms Act 1983
Can not undertake trespass surveillance or use intercept device unless serious offence.
Search and Surveillance Act 2012 s46 - Activities for which surveillance device warrant required
s46: an enforcement officer must obtain a surveillance device warrant if he/she wishes to:
- Use an interception device to intercept private communication; or
- Use a tracking device, except where the tracking device is used solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with; and the installation does not involve trespass to land or goods; or
- Observe private activity in the curtilage of private premises and record that observation with a visual surveillance device, and the duration of the observation for the purpose of a single investigation or connected series of investigations exceeds 3 hours in any 24 hour period, or 8 hours in total
Search and Surveillance Act 2012 s47 - Some activities that do not require warrant under this subpart
s47: an enforcement officer does not require a warrant if they are lawfully in private premises and recording what they see or hear there without the use of a surveillance device. A covert recording of voluntary oral communication can be made between 2 or more persons with the consent of at least 1 of them.
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Criminal Liabilities57
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Others13
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Practicals - Legislation35
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Drug Offences18
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Firearms Offences15
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Homicide23
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Association Offences28
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Robbery, Burglary, Receiving30
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Serious Assaults / Neglect10
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Sexual Offences22
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Abduction / Kidnapping15
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Arson12
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Deception17
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Common Case laws, definitions12
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Practicals - Lists33
