2. Custody, Bail, Prosecution Guidelines, TASER & Firearms Flashcards
What is s.7 of the Bail Act 2000?
Rules as to granting bail
(1) A defendant is bailable as of right who is charged with an offence that is not punishable by imprisonment.
(2) A defendant is bailable as of right who is charged with an offence for which the maximum punishment is less than 3 years’ imprisonment, unless the offence is one against section 194 of the Crimes Act 1961 (which relates to assault on a child, or by a male on a female) or against section 194A of the Crimes Act 1961 (which relates to assault on a person with whom the defendant is, or has been, in a family relationship).
(3) Repealed.
(4) Despite anything in this section, a defendant who is charged with an offence punishable by imprisonment is not bailable as of right if the defendant has been previously convicted of an offence punishable by death or imprisonment.
(5) Subject to sections 9 to 17, a defendant who is charged with an offence and is not bailable as of right must be released by a court on reasonable terms and conditions unless the court is satisfied that there is just cause for continued detention
What is s.8 of the Bail Act 2000?
Consideration of just cause for continued detention.
(1) In considering whether there is just cause for continued detention, the court must take into account—
(a) whether there is a … risk that—
(i) the defendant may fail to appear in court on the date to which the defendant has been remanded; or
(ii) the defendant may interfere with witnesses or evidence; or
(iii) the defendant may offend while on bail; and
(b) any matter that would make it unjust to detain the defendant.
(2) In considering whether there is just cause for continued detention under subsection (1), the court may take into account the following:
(a) the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind:
(b) the strength of the evidence and the probability of conviction or otherwise:
(c) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed:
(d) the character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant:
(e) whether the defendant has a history of offending while on bail, or breaching court orders, including orders imposing bail conditions:
(f) the likely length of time before the matter comes to hearing or trial:
(g) the possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody:
(h) any other special matter that is relevant in the particular circumstances.
(3) Repealed.
(3A) In deciding, in relation to a defendant charged with a family violence offence, whether or not to grant bail to the defendant or to allow the defendant to go at large, the court’s primary consideration is the need to protect—
(a) the victim of the alleged offence; and
(b) any particular person or people in a family relationship with the victim.
(3B) Subsection (3A) is subject to subsection (3C).
(3C) In deciding, in relation to a defendant charged with an offence against section 112 of the Family Violence Act 2018, whether or not to grant bail to the defendant or allow the defendant to go at large, the court’s paramount consideration is the need to protect every person who, in relation to the protection order, is a protected person
(4) When considering an application for bail, the court must take into account any views of a victim of an offence of a kind referred to in section 29 of the Victims’ Rights Act 2002, or of a parent or legal guardian of a victim of that kind, conveyed in accordance with section 30 of that Act.
(4A) When considering an application for bail, the court must not take into account the fact that the defendant has provided, or may provide, information relating to the investigation or prosecution of any offence, including any offence committed or alleged to have been committed by the defendant.
(4B) However, despite subsection (4A), the court may take into account the cooperation by the defendant with authorities in the investigation or prosecution of any offence if that cooperation is relevant to the court’s assessment of the risk that the defendant will fail to appear in court, interfere with witnesses or evidence, or offend while on bail.
(5) Repealed.
What is S.10?
Restriction on bail if defendant with previous conviction for specified offence charged with further specified offence.
(1) This section applies to a defendant of or over the age of 18 years who is charged with a specified offence (as defined in subsection (2)), and who has 1 or more previous convictions for a specified offence (whether those convictions were for the same specified offence or for different specified offences).
(1A) This section also applies to a defendant aged 17 years who is charged in the District Court or the High Court with a specified offence and who has 1 or more previous convictions for a specified offence (whether those convictions were for the same specified offence or for different specified offences).
(2) In this section, specified offence means any offence against any of the following provisions of the Crimes Act 1961:
(a) section 128B (sexual violation):
(b) section 132 (sexual conduct with child under 12):
(c) section 134 (sexual conduct with young person under 16):
(d) section 167 (murder):
(e) section 168 (murder):
(f) section 171 (manslaughter):
(g) section 173 (attempt to murder):
(h) section 188 (wounding with intent):
(i) section 189 (injuring with intent):
(j) section 191 (aggravated wounding or injury):
(k) section 198A (using any firearm against law enforcement officer, etc):
(l) section 198B (commission of crime with firearm):
(m) section 208 (abduction for purposes of marriage or sexual connection):
(n) section 209 (kidnapping):
(o) section 232 (aggravated burglary):
(p) section 234 (robbery):
(q) section 235 (aggravated robbery):
(r) section 236 (assault with intent to rob).]
(3) No defendant to whom this section applies may be granted bail or allowed to go at large except by order of a High Court Judge or a District Court Judge.
(4) No defendant to whom this section applies may be granted bail or allowed to go at large unless the defendant satisfies the Judge that bail or remand at large should be granted.
(5) In particular (but without limiting any other matters in respect of which the defendant must satisfy the Judge under subsection (4)), the defendant must satisfy the Judge on the balance of probabilities that the defendant will not, while on bail or at large, commit any offence involving violence against, or danger to the safety of, any other person.
(6) In deciding whether or not to grant bail to a defendant to whom this section applies or allow the defendant to go at large, the need to protect the safety of the public and, where appropriate, the need to protect the safety of the victim or victims of the alleged offending, are primary considerations.
The Bail Act was amended in 2013 to make it what?
More difficult for those accused of serious offences to be granted bail. As shown above, the number of situations has risen where a defendant will be subject to a reverse burden of proof in bail decisions, whereby the defendant has to prove that he or she should be released on bail, rather than the prosecutor proving that the defendant should not be released on bail.
What is s.12 of the Bail Act?
Further restriction on bail in certain cases.
(1) This section applies to a defendant if—
(a) the defendant is of or over the age of 18 years and—
(i) is charged with an offence under the Crimes Act 1961 that carries a maximum sentence of 3 or more years’ imprisonment; and
(ii) at the time of the alleged commission of the offence was remanded at large or on bail awaiting trial for another offence under the Crimes Act 1961 that carries a maximum sentence of 3 or more years’ imprisonment; and
(iii) has at any time previously received a sentence of imprisonment (within the meaning of that term in section 4(1) of the Sentencing Act 2002); or
(b) the defendant is of or over the age of 18 years and—
(i) is charged with an offence that carries a maximum sentence of 3 or more years’ imprisonment; and
(ii) has previously received 14 or more sentences of imprisonment (within the meaning of that term in section 4(1) of the Sentencing Act 2002); and
(iii) has previously been convicted of an offence that was committed while the defendant was remanded at large or on bail and that carries a maximum sentence of 3 or more years’ imprisonment (whether or not the conviction resulted in any of the [sentences of imprisonment] referred to in subparagraph (ii)).
(2) For the purposes of subsection (1), a sentence of imprisonment is counted whether or not it was served concurrently with any other 1 or more sentences.
(3) No defendant to whom this section applies may be granted bail or allowed to go at large except by order of a High Court Judge or a District Court Judge.
(4) No defendant to whom this section applies may be granted bail or allowed to go at large unless the defendant satisfies the Judge that bail or remand at large should be granted.
(5) In particular (but without limiting any other matters in respect of which the defendant must satisfy the Judge under subsection (4)), the defendant must satisfy the Judge on the balance of probabilities that the defendant will not, while on bail or at large, commit—
(a) any offence involving violence against, or danger to the safety of, any other person; or
(b) burglary or any other serious property offence.
(6) For the purposes of subsection (5), serious property offence means an offence against Part 10 of the Crimes Act 1961 punishable by imprisonment for a term of more than 7 years.
(7) In deciding whether or not to grant bail to a defendant to whom this section applies or allow the defendant to go at large, the need to protect the safety of the public and, where appropriate, the need to protect the safety of the victim or victims of the alleged offending, are primary considerations.
(8) For the purposes of this section, a reference in this section to a sentence of imprisonment includes a sentence of corrective training imposed under the Criminal Justice Act 1985 or any former Act.]
What is s.15 of the Bail Act?
Granting of bail to defendant who is 18 years of age or younger.
(1) A court that remands a defendant at any stage of the proceedings for the offence with which the defendant is charged, including for sentence, must release the defendant on bail or otherwise subject to such conditions as it thinks fit if—
(a) the defendant appears to the court to be 18 years of age; and
(b) the defendant has not previously been sentenced to imprisonment.
(2) Subsection (1) is subject to—
(a) sections 7 (except subsection (5)), 9 to 12, and 16 [to 17A] of this Act; and
(b) section 175 of the Criminal Procedure Act 2011,—
but no other enactment.
(2A) A court that remands a defendant at any stage of the proceedings for the offence with which the defendant is charged, including for sentence, must release the defendant on bail or otherwise subject to such conditions as it thinks fit if—
(a) the defendant is 17 years old; and
(b) the defendant is charged with, or convicted of, any offence in the District Court or the High Court; and
(c) The defendant has not previously been sentenced to imprisonment.
(2B) Subsection (2A) is subject to –
(a) sections 7 (except subsection (5)), 9 to 12, and 16 to 17A; and
(b) section 175 of the Criminal Procedure Act 2011.
(3) Subject to sections 171(1) and 172(1) of the Criminal Procedure Act 2011 and to the Oranga Tamariki Act 1989, this section applies in respect of a defendant who is under the age of 17 years and who is charged with or convicted of any offence in the District Court or the High Court.
What is s16 of the bail act?
Judge only may grant bail for drug dealing offence
A defendant who is charged with or convicted of a drug dealing offence may be granted bail by order of a High Court Judge or District Court Judge but not otherwise.
What is s.21 of the bail act?
Section 21 – Police employee may grant bail
(1) Any Police employee may, if he or she considers it prudent to do so, grant bail (Police bail) to a defendant who is charged with an offence and has been arrested without a warrant.
(2) Subsection (1) does not apply in any case to which any of section 9, 9A, 10, 12, 16, or 17A applies.
(2A) In determining whether it is prudent to grant Police bail to a defendant charged with a family violence offence, the Police employee must make the primary consideration to need to protect—
(a) the victim of the alleged offence; and
(b) any particular person or people in a family relationship with the victim
(2B) Subsection (2A) is subject to subsection (3)
(3) In determining whether it is prudent to grant Police bail to a defendant charged with an offence against section 112 of the Family Violence Act 2018, the Police employee must make the paramount consideration the need to protect every person who, in relation to the protection order, is a protected person.
(4) Despite section 7, no person is entitled to be granted Police bail under this section as of right.
What is s21A of the bail act?
Notice of Police Bail
(1) A Police employee who grants Police bail must ensure that a notice of Police bail is completed in accordance with subsection (2).
(2) A notice of Police bail must—
(a) state —
(i) the defendant’s full name and address; and
(ii) the particulars of the charge; and
(iii) the conditions of bail, including the time, date, and place for attendance by the defendant before a court; and
(iv) any other information required by rules made under section 386 of the Criminal Procedure Act 2011 to accompany a summons to a defendant issued under that Act; and
(b) be dated.
(3) A Police employee who grants Police bail must—
(a) give the notice of Police bail to the defendant; and
(b) ensure that the defendant understands the conditions of bail; and
(c) ensure that the defendant authenticates the notice.
(4) The date for attendance by the defendant before a court must not be later than 14 days from the date of the notice.
What is s 21B of the bail act?
Section 21B – Condition of Police bail
(1) It is a condition of every grant of Police bail that the defendant must attend personally before a court at the time, date, and place specified in the notice of bail.
(2) A Police employee who grants Police bail may impose, in addition to the condition imposed by subsection (1), any condition of the bail that might be imposed by a judicial officer under section 30(2) or (4).
(3) However, subsection (2) applies only if—
(a) the time stated in the notice of Police bail for the appearance by the defendant before a court is less than 7 days from the date of that notice; or
(b) the court that the defendant must attend will be closed for more than 7 consecutive days after the date of the defendant’s arrest.
What is s 22 of the bail act?
Section 22 – Conditions of Police bail granted to defendant charged with family violence offence
A police employee who grants Police bail to a defendant changed with a family violence offence may impose as a condition of the bail (in addition to the condition or conditions imposed under section 21B) any condition that the employee considers reasonably necessary to protect—
(a) the victim of the alleged offence; and
(b) any particular person residing, or in a family relationship, with the victim.
What is s.23 of the bail act?
Bail and breach of protection order
(1) If a person is arrested under section 113 of the Family Violence Act 2018 and charged with an offence against section 112 of that Act, the person must not be released on bail by a Police employee under section 21 during the 24 hours immediately following the arrest.
(2) Nothing in subsection (1) limits or affects the obligation of the police to bring a person who is charged with an offence before a court as soon as possible.
(3) If a person to whom subsection (1) applies is not brought before a court during the 24 hours immediately following the arrest, the person may, at the expiry of that period, be released on bail by a Police employee under section 21.
(4) If a person to whom subsection (1) applies has also been charged with 1 or more other offences arising out of the same incident, the person must not be released on bail by a Police employee under section 21 in respect of any of those offences during the 24 hours immediately following the arrest for an offence against section 112 of the Family Violence Act 2018.
What is s.35 of the bail act?
Defendant on bail may be arrested without warrant in certain circumstances
(1) Any constable may arrest without warrant a defendant who has been released on bail by a court or Registrar or Police employee if the constable believes on reasonable grounds that—
(a) the defendant has absconded or is about to abscond for the purpose of evading justice; or
(b) the defendant has contravened or failed to comply with any condition of bail.
(2) A defendant who is arrested under subsection (1) must,—
(a) if released on bail by the District Court, a Registrar, or a Police employee in relation to a category 1, 2, or 3 offence, be brought before the District Court as soon as possible, unless the Solicitor-General has assumed responsibility for the proceedings in accordance with section 187 of the Criminal Procedure Act 2011; or
(b) if released on bail in any circumstances to which paragraph (a) does not apply, be brought before a High Court Judge or a District Court Judge as soon as possible.
(3) In any such case, the judicial officer, on being satisfied that the defendant had absconded or was about to abscond or has contravened or failed to comply with any condition of bail, must reconsider the question of bail.
(4) After a defendant has been arrested under subsection (1), the defendant cannot be bailed as of right and is bailable only under section 7(5).
(5) This section does not apply if section 36 applies.
(6) Nothing in this section prevents a constable from seeking a warrant to arrest a defendant under section 37.
(7) Sections 215 to 232 of the Oranga Tamariki Act 1989 apply to a defendant aged 17 years who—
(a) has been charged with, or convicted of, any offence (except a drug dealing offence) in the District Court or the High Court; and
(b) has been released on bail for the offence, or the alleged offence, by a court, a Registrar, or a Police employee; and
(c) is arrested without warrant under subsection (1).
What is s.37 of the bail act?
Issue of warrant to arrest defendant absconding or breaching bail condition or who fails to answer bail.
(1) A judicial officer or Registrar may issue a warrant for the arrest of a defendant if—
(a) the judicial officer or Registrar is satisfied by evidence on oath that—
(i) the defendant has absconded or is about to abscond for the purpose of evading justice; or
(ii) the defendant has contravened or failed to comply with any condition of bail; or
(b) the defendant—
(i) does not attend personally at the time and place specified in the notice of bail or, as the case may be, the bail bond; or
(ii) does not attend personally at any time or place to which during the course of the proceedings the hearing has been adjourned.
(2) A warrant to arrest a defendant under this section must be directed to a constable by name or generally to every constable.
(3) The warrant may be executed by any constable.
(4) For the purpose of executing a warrant issued under this section, the constable executing it may at any time enter on to any premises, by force if necessary, if the constable has reasonable grounds to believe that the defendant against whom it is issued is on those premises.
(5) The constable executing the warrant—
(a) must have the warrant, or a copy of it, with him or her; and
(b) must produce it, or a copy of it, on initial entry and, if requested, at any subsequent time; and
(c) if he or she is not in uniform, produce evidence that he or she is a constable.
(6) If a defendant is arrested under a warrant issued under this section,—
(a) section 35(2) to (4) apply as if the defendant had been arrested under section 35(1); and
(b) in the case of a person who is charged with or convicted of a drug dealing offence and who has been released on bail in relation to that offence, section 36(2) to (6) apply as if the defendant had been arrested under section 36(1).
(7) In this section, judicial officer or Registrar means, in relation to proceedings for the offence with which the defendant is charged,—
(a) for proceedings in the District Court, a judicial officer or Registrar of the District Court:
(b) for proceedings in the High Court, a Judge or Registrar of the High Court:
(c) for proceedings in the Court of Appeal or the Supreme Court, a Judge or Registrar of the High Court.
What does the case R v Bryant [2001] 2 NZLR 319 (CA) “prudent”; s51 SPA, s21 Bail Act tell us?
Bryant challenged the admission of the statements taken on 27 September and on the following morning. As Bryant was bailable as of right, the argument was that the Police should not have detained him as they did until taking him to court the next morning, and that because of that resulting unlawful detention the two statements obtained in breach of his rights should be held inadmissible.
Held
s51 Summary Proceedings Act 1957 (repealed, now s21 Bail Act 2000) confers the authority while not derogating from the duty to bring the defendant before the court; Police are to consider whether a defendant can be safely released until he or she becomes the responsibility of the court; the two bail regimes operate in tandem but are separate and apply at different points in time; application to appeal granted but appeal dismissed.
One of the coroner’s roles is to determine cause of death. They have the legislative authority to what?
To determine the need for a post-mortem to assist them determine cause of death.
What is s43 Coroners Act 2006 ?
Restriction on release if no post-mortem directed
(1) A coroner who decides not to direct a pathologist to perform a post-mortem of a body under section 31 must not authorise its release under section 42 earlier than 24 hours after notifying a constable of the decision.
(2) Subsection (1) does not apply if a constable of the level of position of senior sergeant or above agrees to the coroner authorising the release of the body within the 24-hour period referred to in that subsection.
By the time the coroner sends a request to Police (usually to the DCC) under s43(2) called a COR 30, the Pol 47 and Police documentation will have explicitly outlined that there are no suspicious circumstances or potential crimes identified or being investigated by Police.
Whether Police sign a COR 30 principally involves this consideration: Are Police satisfied a post-mortem is not required because there are no potential crime concerns.
It is not a question of whether the police think cause of death can’t be ascertained in the absence of a post-mortem as that is an issue for the coroner.
If Police wish to refuse to sign a COR 30 there needs to be an evidential basis to support this refusal. This would in effect amount to evidence that the coroner has not previously been provided with.
Who is responsible for identifying the body?
The coroner cannot release the body until satisfied with the identification of the deceased. You are responsible for obtaining sufficient evidence of identification. Visual identification is usually sufficient. However, the rule of thumb is that if the person does not look in death like they did in life, visual identification is not appropriate. Then non-visual identification methods are required.
Q. What is the Hierarchy of identification ?
- Visual ID - If visually identifiable and there is an appropriate person to complete. At the time of identification, consider attaching a photograph of the deceased to the Statement of Identification to illustrate the appearance of the deceased.
- Fingerprints
- Odontology
- Comparison ID Process
- DNA
What is a Nonvisual ID?
When visual identification cannot be established consult with your District DVI team who are trained in comparison identification procedures. Keep the Duty Coroner informed of steps you are taking to identify the deceased. Do this through NIIO.
Police staff may be approached by media for comment in the aftermath of a sudden death(s).
Media interest around the circumstances of death in some cases may be high (and persistent). It is important for police to recognise what?
A. the restrictions on discussing matters that are before a coroner. It is the coroner’s role to determine circumstances of death and it is therefore not appropriate for Police to make premature comment.
You should:
• seek advice from the Police Media Team
• consult with the Responsible Coroner in cases when Police wish to make comment in relation to an active coronial investigation.
What is s.32 of the Policing Act?
Identifying particulars of person in custody
(1) The purpose of this section is to enable the Police to obtain information that may be used now or in the future by the Police for any lawful purpose.
(2) For the purpose of this section, a constable may take the identifying particulars of a person who is in the lawful custody of the Police if that person is detained for committing an offence and is—
(a) at a Police station; or
(b) at any other place being used for Police purposes.
(3) A constable—
(a) must take the person’s identifying particulars in a manner that is reasonable in the circumstances; and
(b) may only use reasonable force that may be necessary to secure the person’s identifying particulars.
(4) A person who, after being cautioned, fails to comply with a direction of a constable exercising his or her powers under this section—
(a) commits an offence; and
(b) is liable on conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both.
(5) In this section and section 33,—
identifying particulars means, in relation to a person, any or all of the following:
(a) the person’s biographical details (for example, the person’s name, address, and date of birth): (b) the person’s photograph or visual image:
(c) impressions of the person’s fingerprints, palm-prints, or footprints
place includes any land, building, premises, or vehicle.
What is s.33 of the Policing Act?
(1) The purpose of this section is to enable the Police to obtain information that may be used now or in the future by the Police for any lawful purpose.
(2) For the purpose of this section, a constable who has good cause to suspect a person of committing an offence and who intends to bring proceedings against the person in respect of that offence by way of summons, may detain that person at any place—
(a) in order to take the person’s identifying particulars; and
(b) only for the period necessary to take the person’s identifying particulars.
(3) A constable—
(a) must take the person’s identifying particulars in a manner that is reasonable in the circumstances; and
(b) may only use reasonable force that may be necessary to secure the person’s identifying particulars.
(4) A person who, after being cautioned, fails to comply with a direction of a constable exercising his or her powers under this section—
(a) commits an offence; and
(b) is liable on conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both.
What is Section 36 of the Policing Act?
Care and protection of intoxicated people
(1) A constable who finds a person intoxicated in a public place, or intoxicated while trespassing on private property, may detain and take the person into custody if—
(a) the constable reasonably believes that the person is—
(i) incapable of protecting himself or herself from physical harm; or
(ii) likely to cause physical harm to another person; or
(iii) likely to cause significant damage to any property; and
(b) the constable is satisfied it is not reasonably practicable to provide for the person’s care and protection by—
(i) taking the person to his or her place of residence; or
(ii) taking the person to a temporary shelter.
(2) A person detained under subsection (1)—
(a) must be released as soon as the person ceases to be intoxicated:
(b) must not be detained longer than 12 hours after the person is first detained, unless a health practitioner recommends that the person be further detained for a period not exceeding 12 hours.
(3) A health practitioner must not recommend the further detention of a person detained under subsection (1) unless the health practitioner satisfies himself or herself that—
(a) the person remains intoxicated and is incapable of protecting himself or herself from physical harm; and
(b) the person does not have health needs that may require medical attention; and
(c) it is not reasonably practicable to provide for the person’s continuing care and protection by—
(i) taking the person to his or her place of residence; or
(ii) taking the person to a temporary shelter.
(4) In this section,—
intoxicated means observably affected by alcohol, other drugs, or substances to such a degree that speech, balance, co-ordination, or behaviour is clearly impaired
temporary shelter means a place (other than a place operated by the Police) that is capable of providing for the care and protection of an intoxicated person.
(5) Section 31 of the Crimes Act 1961 applies in respect of the power to detain and take a person into custody under this section as if the power were a power of arrest.
Discuss the The test for prosecution 5.1 and 5.2
Prosecutions ought to be initiated or continued only where the prosecutor is satisfied that the Test for Prosecution is met. The Test for Prosecution is met if:
• The evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test; and
• Prosecution is required in the public interest – the Public Interest Test.
Each aspect of the test must be separately considered and satisfied before a decision to prosecute can be taken. The Evidential Test must be satisfied before the Public Interest Test is considered. The prosecutor must analyse and evaluate all of the evidence and information in a thorough and critical manner
What is the evidential test 5.3 & 5.4?
A reasonable prospect of conviction exists if, in relation to an identifiable person (whether natural or legal), there is credible evidence which the prosecution can adduce before a court and upon which evidence an impartial jury (or Judge), properly directed in accordance with the law, could reasonably be expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has committed a criminal offence.
It is necessary that each element of this definition be fully examined when considering the evidential test in each particular case.
What is an identifiable individual?
There will often be cases where it is clear that an offence has been committed but there is difficulty identifying who has committed it. A prosecution can only take place where the evidence sufficiently identifies that a particular person is responsible. Where no such person can be identified, and the case cannot be presented as joint liability there can be no prosecution.
What is credible evidence?
This means evidence which is capable of belief. It may be necessary to question a witness before coming to a decision as to whether the evidence of that witness could be accepted as credible. It may be that a witness is plainly at risk of being so discredited that no Court could safely rely on his/her evidence. In such a case it may be concluded that there is, having regard to all the evidence, no reasonable prospect of obtaining a conviction. If, however, it is judged that a Court in all the circumstances of the case could reasonably rely on the evidence of a witness, notwithstanding any particular difficulties, then such evidence is credible and should be taken into account.
Prosecutors may be required to make an assessment of the quality of the evidence. Where there are substantial concerns as to the creditability of essential evidence, criminal proceedings may not be appropriate as the evidential test may not be capable of being met.
Where there are credibility issues, prosecutors must look closely at the evidence when deciding if there is a reasonable prospect of conviction.
What is evidence that a prosecution can adduce?
Only evidence which is or reliably will be available, and legally admissible, can be taken into account in reaching a decision to prosecute.
Prosecutors should seek to anticipate even without pre-trial matters being raised whether it is likely that evidence will be admitted or excluded by the Court. For example, is it foreseeable that the evidence will be excluded because of the way it was obtained? If so, prosecutors must consider whether there is sufficient other evidence for a reasonable prospect of conviction.
What does Could reasonably be expected to be satisfied mean?
What is required by the evidential test is that there is an objectively reasonable prospect of a conviction on the evidence. The apparent cogency and creditability of evidence is not a mathematical science, but rather a matter of judgment for the prosecutor. In forming his or her judgment the prosecutor shall endeavour to anticipate and evaluate likely defences
What does beyond reasonable doubt mean?
The evidence available to the prosecutor must be capable of reaching the high standard of proof required by the criminal law.