Bail, Prosecution Flashcards
s.7 BA2000: When is a defendant bailable as of right? (2)
- When charged with offence not punishable by imprisonment
- charged with offence <3yrs
unless:
- assault on child
- male assaults female
- Assault someone in Family Relationship
s 7 (4) When is a defendant not bailable as of right?
Not bailable of right if charged with offence punishable by imprisonment after previously convicted of offence punishable by imprisonment.
s.8 (1) BA2000: When considering if there is just cause for continued detention, what 4 ‘risks’ MUST the court take into account?
Whether defendant may:
- fail to appear
- interfere with witnesses/evidence
- offend while on bail
- Other matter making it ‘unjust’ to detain
BA2000 s.8: In considering if there is ‘just cause’ for continued detention under subsection (1), the court MAY take into account the following 8 things in s8 (2):
- Nature of offences
- Strength of evidence & probability of a conviction
- Seriousness and Severity of the punishment
- Character and past conduct
- History of offending whilst on bail
- Likely length of time before matter comes to court.
- Possible prejudice to the defence in preparation of the defence
- Other special matters
BA2000 s.8 (3A) Family Violence Offences, What is the courts primary considerations when considering bail?
Need to protect
- the victim
- any person in a family relationship with the Victim
BA2000 s.8 (3C) Breach PO, What is the courts primary considerations when considering bail?
The paramount decision is to protect every protected person on the PO
BA2000 s.8 (4A & 4B) what can and cant the court take into consideration regarding a defendants cooperation/assistance with authorities of any offence
Can’t take there cooperation into account when considering bail however their cooperation may be relevant to assessment of whether there is a risk that Defendant will fail to appear at Court etc.
S10 - Restriction on bail if defendant with previous conviction for specified offences charged with further specified offences applies to a defendant of what age?
Of or over the age of 17 years.
S10 - Give 4 examples of a SPECIFIED OFFENCES
S128B - Sexual Violation S132 - Sexual conduct with Child <12 S167 - Murder S171 - Manslaugther S188 - Wounding with Intent S234 - Agg Robbery S232 - Agg Burglary S 173 Att Murder S 191 Agg Wounding/Injury S 198A Uses FA against LEO S 198B Uses FA in comitting Crime S 208 & 209 Abduction & Kidnapping S 236 Assault W intent to Rob
S10 Defendant charged with specified offences- No defendant may be granted bail or allowed to go at large except by order of who?
- High Court Judge or a District Court Judge
A. What is the REVERSE BURDEN OF PROOF as it relates to s10 (4), (5), (6)?
B. s10 (5). What is the standard of proof for the defendant and what must he satisfy the court
C. s10(6) What primary considerations must court take into account in deciding to grant bail for S 10 offending.
A. Defendant can be subject to ‘REVERSE BURDEN OF PROOF” in bail decision where 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.
B. (5) Satisfies on Balance of probabilities. Won’t while on bail commit violence offence or danger safety of anyone.
C (6) Need to protect safety of public and Victims.
S12 1 (a) Restriction on Bail. Defendant 18+ charged with offence over 3yrs prison and at time on Bail for another 3 yr + offence and …..
at any time has previously received a sentence of imprisonment.
Only granted Bail by DC HC Judge
S12 1 (b) Restriction on Bail. Defendant 18+ charged with offence over 3yrs prison and previously received 14 + sentences of Prison ….
previously convicted of offence committed while on bail for 3yr + offence
Only granted Bail by DC HC Judge
S12 (5) - Further restriction on bail in certain cases, the defendant must satisfy the Judge on the balances of probabilities that he will not while on bail or at large commit what? (2)
- violence against or danger to the safety of anyone or
- burglary or any other serious property offence. (more than 7 years serious property offences)
S15 Granting Bail to Defendant under 18 yrs- What must the courts think when granting of bail to defendant who is 17 and 18 years of age? (2)
- appears to be 17 or 18 years of age and
- not previously been sentence to imprisonment
Must be bailed (unless exceptions exist ie specified offences etc)
S16 - Bail is only granted for drug dealing offences by order of who?
High Court Judge or District Court Judge
S21 when may Police grant Police Bail
When considers PRUDENT to do so subject exclusions S 10, 12 , 16.
S21 what considerations must police make considering Police bail for those charged with:
- Family Violence offences
- Breach of PO
- To protect victim and person in family relationship with Victim
- need to protect protected persons on the order.
S21 (4) who is entitled to be granted Police bail as of right
no one
S21A - Notice of Police bail - A Police employee who grants Police bail must ensure that notice of Police bail is completed and what? (3)
- Give notice to defendant
- Ensure defendant understands conditions of bail and
- Ensure defendant authenticates the notice.
S 21 A Police Bail. When must attendance at court be no later than
14 Days from date on notice
S21B If Police impose bail conditions when must court attendance be
- less than 7 days of date on notice
2. unless court is closed for more than 7 consecutive days after the date of arrest.
S22 what conditions can Police place on bail in family violence offences
any conditions necessary to protect victim or person in family relationship with victim.
S23 - Can a person arrested for Breach PO get Police Bail?
No not by Police under S21 during the 24 hours following the arrest. Although the obligation to get charged person to court still exists
S35 - A defendant on bail may be arrested W/out Warrant in certain circumstances when? (2)
- defendant has absconded or is about to to evade justice or
- defendant has contravened or failed to comply with any bail conditions.
(note: S35(4) if defendant is K9 for above, he cannot be bailed as of right)
S37 - Who can issue a WTA absconding or BOB or fails to answer bail?
A Judicial Officer or Registrar.
S37 (5) What must constable executing Arrest Warrant have/do (3)
- Have copy of warrant
- Produce ID on initial entry and if requested
- If not in uniform produce evidence is a constable
What was detailed in R v Bryant (Prudent to Consider Bail)
Charged with Indecent Acts. Statements obtained from him while in custody. Went to court next day. Was bailable as of right and admissibility of statements challenged. S21 says Police bail when prudent to do so. requires Constable to determine whether he can be released safely until defendant becomes the responsibility of the court.
Police Act S32 - Identifying particulars of person in custody. A constable may take their particulars if person in lawful custody is detained for committing an offence. Where can this happen? (2 places)
What if person fails to comply?
At a police station or at any other place being used for Police purposes. Place includes any land, building, premises or vehicle.
Commits offence if fails to comply, reasonable force to secure identifying particulars
S33 - Identifying particulars for summons a constable who has good cause to suspect a person of committing an offence and intends to bring proceedings against them by way of summons may detain that person at any place in order to what? (2)
- take their identifying particular
- and only for the period necessary to take the person identifying particulars.
Commits offence if fails to comply, reasonable force to secure identifying particulars
S 32 (5) Policing Act. What are identifying particulars? (3)
Persons:
- Biographical details - name address dob,
- Photograph of visual image
- Finger prints, palm-prints and foot print
Note: Place includes any land building, premises or vehicle.
S36 - A constable who finds a person intoxicated in a public place or while trespassing may detain and take a person into custody if they reasonable believe that the person is what?
- Incapable of protecting himself from physical harm
- Likely to cause physical harm to himself/others
- Likely to cause property damage.
S36 Intoxicated people. If reasonably practicable, where can he be taken
place of residence, temporary shelter
Note if not reasonably practicable to provide for care here , then ok to place in custody.
S36 A person detained under S36(1) intoxicated must be released when?
Soon as person ceases to be intoxicated
Must not be detained longer than 12 hours unless recommended by Health practitioner.
s36 Intoxicated
observably affected by drugs, alcohol or substances to degree balance, speech, coordination, behaviour impaired
s36 Temporary shelter
place for care and protection of intoxicated person, not operated by Police
When is the prosecutor satisfied that the Test for Prosecution is met? (2)
The Evidential Test
and
The Public Interest Test.
Explain what the Evidential Test is:
Evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction.
Explain what the Public Interest Test is:
The presumption that public interest requires a prosecution eg: serious nature of the case
Which TEST must be satisfied first?
The Evidential Test
What are the 6 elements that satisfy the conditions of the Evidential Test?
- Identifiable Individual
- Credible Evidence (capable of belief)
- Evidence which the prosecution can adduce (available and legally admissible)
- Could reasonable be expected to be satisfied (reasonable prospect of conviction)
- Beyond reasonable doubt (high standard of proof)
- Commission of a Criminal Offence. (evidence against each ingredients)
What are some considerations for prosecution in the public interest test (18)
- Seriousness of offence
- serious significant violence
- likely to be continued/repeated
- relevant previous convictions/warnings
- Committed while on bail
- Offence is prevalent
- Ringleader
- premeditated
- Carried out by Group
- Organised Crime
- victim in fear. Vulnerable
- Serious risk of harm
- serious financial loss.
- position of authority, trust
- public servant
- took advantage of victim developmental age
- race/sexual orientation/religion/political motivated hate crime etc
- Corruption
What are some instances against prosecution in public interest (13)
- likely minimal sentence
- genuine mistake minimal loss or harm
- not serious or unlikely to be repeated.
- long passage of time unless:
serious offence
delay caused by defendant
offence recently came to light
complex lengthy investigation - prosecution have detrimental effect on Vicitm/witness
- Elderly defendant
- young defendant
- no previous convicitons
- defendants significant mental or physically ill health at time of offence or trial
- victim accepts defendant has rectified loss or harm
11.recovery would be more effective by civil action - informaiton made public would harm sources, national security etc
13.proper alternatives to prosecution exists (ie disciplinary proceedings)
What is also a relevant factor in determining the overall assessment of public interest
Cost
Once evidential test is met (or otherwise) and weighed up against public interest prosecutor determines there is no public interest in progressing the matter a decision of no prosecution is made. Does this preclude further further prosecution if other information comes to hand
No but it is anticipated this to be rare
