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CRIM > bail > Flashcards

bail Flashcards

1
Q

exam structure - BAIL

A
  1. s4 bail act - there is a general right to bail.
  2. para 1A - relevant?
  3. There are substantial grounds to believe (relevant exceptions sch.1, part.1, para2)
  • failure to surrender
  • commit offence while on bail
  • interfere with witness
  1. Is para 2A relevant?
  2. Bail conditions appropriate?
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2
Q

FTS - nature and seriousness

A
  • consider likely sentence? custody?
  • if long imprisonable sentence - P argue D will abscond
  • e.g. burglary at night with ransaking? serious?
  • group attack? premeditated? serious injury to a person?

(D may have to concede seriousness - but could say D has attended trial for similar offence and served the sentence, or say D wants to clear his name)

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3
Q

FTS - character/antexedents

A
  • previous convictions? specifically for FTS?
  • drug user?
  • rehab completed?
  • argue CHANGED MAN
  • community ties?
  • if no permanent address/not know how long he’s been in the country = not tied
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4
Q

FTS - D’s record

A

has he fulfilled obligations before?

If yes, what is his explanation?

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5
Q

FTS - strength of evidence

A

D will argue evidence not strong enough anyway

  • P’s case is weak
  • confession weak?
  • strong defence?
  • only circumstantial evidence
  • no forensic evidence
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6
Q

CWOB - details

A

esp:

  • convictions for offences commited on bail
  • when were those convictions?
  • changed man?
  • gang member?
  • drugs?
  • crime funds addiction?
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7
Q

IWW

A

esp:

  • P: D knows where witness/victim works?
  • D: just impose bail conditions to prevent collusion/IWW
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8
Q

bail conditions - appropriate for FTS

A
  • report to police station
  • tagging + curfew
  • residence at home address
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9
Q

bail conditions - appropriate for CFOB

A
  • not to go to certain areas
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10
Q

bail conditions - appropriate to IWW

A
  • do not contact witnesses directly or indirectly

- require D to live somewhere away from the area

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11
Q

bail conditions - general

A
  • residence at specified address
  • report to local police station on reg. basis
  • exclusion from certain area
  • non-contact
  • curfews and tagging
  • bail hostels
  • surrender of passport
  • sureties (from 3P only)
  • deposit (3P or D)
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12
Q

consequence of breach

A

D may be arrested without warrant and bail being withdrawn (NB. NOT criminal offence though unless D FTS at appointed date, time and place)

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13
Q

‘FTS’ - an offence

A

this is an offence
- if summarily convicted of this offence, offender is liable to imprisonment of up to 3m and/or an unlimited fine
- if dealt with in CC, treated as if he had been guilty of a criminal contempt of
court and is liable to up to 12 months’ imprisonment and/or an unlimited fine.

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14
Q

“substantial grounds”

A

not enough for magistrates to have subjective perception of one or more of these 3 risks

  • must be SUBSTANTIAL GROUNDS
  • Q of fact
  • reps made by both sides (but neither calls witnesses/produces evidence usually)
  • Mags can ask questions in this process (inquisitorial role)
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15
Q

allocation - when appropriate?

A

for E/W offences

  • if plea before venue = no plea/not guilty
  • mags decide whether it should be dealt with at MC or CC
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16
Q

allocation - exam structure

A
  1. PBV (s.17A MCA)
  2. s.19 MCA
  3. Allocation guidelines (explain test)
  4. Sentencing guidelines
  5. MC or CC?
17
Q

if ALLOCATION RESULT = s.20 decision (retain)

A

court must explain to D that

  • summary trial is more suitable
  • D can consent to be tried summarily or jury if he wishes in CC

D can ask for indication of sentence
D must then decide on MC or CC

18
Q

indication of sentence

A

tells D if he will be imposed a custodial or non-custodial sentence if he chose MC and plead guilty (court doesn’t have to do this)

after indication - ask D if he wants to change his plea

if D changes plea to guilty:
- MC proceeds to sentence if indicated non-custodial, this binds subsequent bench that sentences D

if D maintains not-guilty:

  • D can then consent to trial in MC (case is adjourned) or elect to be tried by jury (case transferred to CC)
  • indication given will not bind later courts
19
Q

advantages to summary trial

A
  • less expensive
  • less time consuming (MC trials list for hearing more quickly than trials at CC and trial will be quicker)
  • less severe sentences (MC limited to max of 6m imprisonment for 1 offence and 12 months if 2 or more E/W)
20
Q

disadvantages to summary trial

A
  • MC hear all evidence even if successfully excluded (no voir dire)
  • higher conviction rate (MC tend to be more case hardened and may have tried D in past)
21
Q

advantages of CC

A
  • higher acquittal rate (jury might be more sympathetic to D)
  • voir dire procedure (judge hears arguments to exclude evidence in absence of jury)
22
Q

disadvantages of CC

A
  • higher powers of punishment (CC can impose sentences up to statutory max)
  • higher costs (might be liable to pay both prosecution and defence costs if convicted)
  • slower (longer for case to come to trial and more formal procedures)
23
Q

after D pleads not guilty to summary only charge (or MC accepts jurisdiction and D consents)

A

P and D proceed immediatly to case management hearing (to ensure case is ready for trial at appointed date)

  • hearing involves completing case progression form
  • Qs include: contact details, witnesses, estimated length of trial, any hearsay, special arrangements
24
Q

stnadard directions

A

must be complied with unless MC directs otherwise
- concern issues pertaining to bad character evidence, hearsay, special measures to protect witnesses, disclosure, exprts

Case progression officer monitors directions

CPS and defence advocate must indicate a nominated person in their offices to be responsible for complying with directions on case progression form

25
Q

CC trial

A

similar case management

  • main case management hearing in CC is called plea and trial preparation hearing (PTPH)
  • takes place usually 28 days after case sent to CC from MC
  • at PTPH, D formally required to enter plea in the indictment
  • if plea not guilty, judge makes directions re: preparation for subsequent trial

CRIM (7 decks)

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