Bail and Analysis of evidence Flashcards
Section 16 Bail Act
Judge only may grant bail for dealing offence
Section 17A Restrictions on bail if charged with serious Class A drug offence:
Applies if over 18 or 17 if charged in District or High Court
Judge must satisfy that bail should be granted.
Balance of probabilities that defendant will not commit drug offences
Section 3 Drug dealing offence means…
Any offence against Section 6 or 12C of Misuse of Drugs Act in relation to Class A or B
Section 30 set out the types of special conditions that a judge can impose on the defendant. These include what?
- Electronic monitoring
- Conditions to make it likely the defendant will appear in court (passport)
- Any condition the judge considers necessary
4 steps for bail application for drug offences:
- Application made to Judge by defendants counsel
- O/C should have forwarded instructions regarding bail to the prosecutor giving position if bail is granted
- If bail is opposed, OTB
- The Judge will then remand the defendant for a case review hearing date.
What is the advantage of using a certificate of analysis instead of calling oral evidence?
The analysts is not required to give oral evidence and therefore cannot be cross-examined which saves time and money
For the evidence in the certificate to be admissible, certain procedures must be strictly followed. These procedures must ensure that:
- the chain of evidence is unbroken
- the material to be analysed is not tampered with or contaminated
- the defence is aware of the analysis and the results and is given reasonable time to prepare a defence
Two methods of delivering a drug exhibit to ESR so that certificate evidence can be used:
- In person to the analyst who is to issue the certificate or to a person authorised by the analyst to receive it
- By registered post or courier in sealed package to employee who has been authorised by the analyst in charge of lab
What must be on the drug package that is being delivered for testing:
- Describe the packaging to prove chain of custody by sealing and labelling it with file reference
- Quote the registered article number and other details of mail
- Produce the receipt of delivery to ESR
What must you cross reference if delivering exhibit in person to ESR?
- Name of the person who signed the certificate ‘upon receipt’
- Receipt signature on the POL 143
- Evidence of the Police member who delivered the drug to ESR
What must you ensure when handing over drugs to ESR?
- Record name of person receiving it
- Ensure they work in an approved lab and is authorised by the analyst to receive it
- the package was sealed
Explain whether a defendant can accept or reject a certificate of evidence:
Section 31(3)(a) allows the defendant to accept or reject the certificate as the form in which the analytical evidence will be given.
Doesn’t concern the suitability but concerns the opportunity for the evidence to be cross examined
When must defence be advised of the certificate of evidence? When does defence have to respond?
Defence must be given a copy of the analyst’s certificate and written notice that the analyst will not be called at least
7 days before the hearing
If they wish not to accept defence must reply in writing 3 days before the hearing
Method of service for copy of certificate and the written notice that the analyst will not be called:
- Can be delivered to a member of the defendants family or to their solicitor
- Must be dated at least seven clear days before the hearing
- Must be proved to have been served either by oral evidence or a Constables endorsement
When is a analyst certificate of evidence admissible?
- served on defendant within 7days and provided a copy of the certificate
- defendant does not give notice for analyst to be called, at least 3 days before hearing
- the court does not request oral evidence
Explain what happens if you have errors in your statement regarding the service of the certificate of evidence from analyst
If your statement about the certificate and notice having been served is incorrect in form but not in substance, you can make a submission under S379 of the Criminal Procedure Act that the statement not be invalidated.
Explain ‘expert evidence’ in drug dealing prosecutions:
Consider whether expert evidence would add value to your case.
Section 25(1) of the Evidence Act allows opinion of an expert in ascertaining any fact that is of consequence to the determination
