Chapter 2: Custody, Bail, Prosecution Guidelines

Question 1

Bail Act, Section 7 - what are the rules as to granting court bail? x4

…“as of right”

Answer 1

1. Offence, no imprisonment = bailable as of right.
2. Offence <3yrs prison = bailable as of right (excl. 194 C.A or 49 D.V.A)
3. Prev. offending punishable by imprisonment - not bailable as of right.
4. Not bailable as of right, must be released on conditions unless just cause for continued detention.

Question 2

Bail Act, Section 8 - Consideration of just cause for continued detention

court must take into account the risk that…. x4

also… a - k points that effect bail (addressed in OTB)

Answer 2

Court take into account risk that: (like 214)

i. Fail to appear
ii. Interfere with witnesses/evidence
iii. Offend while on bail, or..
iv. .. Any matter making it unjust to detain defendant.

ALSO -

a. Nature of offence
b. Strength evidence, probability of conviction
c. Seriousness of punishment
d. Character and past conduct (esp. criminal)
e. History of offending on bail, breaching conditions
f. Time till trial
g. Prejudice to defence if custody interferes with trial prep.
h. Any Special matter

i. Cough/admission
j. Cooperation of defendant
k. Sn 49 - breach PO, primary consideration is safety of victim.

Must take into account views of victim for s29 VRAct (or parent/guardian - PGC)

Question 3

Bail Act, Section 10:

Restriction on bail if Def. previous conviction specified offence - what are the 3 rules?

What are specified offences - egs.

If Sn10 satisfied, what happens re. bail x4?

Answer 3

• Defendant 17+ years
• Charged with specified offence
• 1+ previous convictions specified offence

eg…sex viol, conduct under 16, murder, manslaughter, wounding, ag injuring, inj with intent, offending with firearm, kidnapping/abd, robbery, agg burg.

• No bail except from HC or DC Judge
• Onus on Defendant to prove he should be released (REVERSE BURDEN OF PROOF)
• Def. satisfy on Balance of Probablilities (BOP) he will not commit offence involving violence or safety of person
• Judge decides, safety of public & safety victim.

Question 4

Bail Act, Section 12: Further restriction on bail in certain cases. (Takes into account offences and prison Hx)

What are the rules? first one x4 OR second one x4

If Sn12 satisfied, what happens re. bail IN COURT x4
(ie. what judge, defence onus…)

(scroll for answer)

Answer 4

• Defendant 17+ years, and
• Charged with offence under C.Act 3yrs +, and
• At time of offence was remanded at large or on bail for another offence 3yrs+, and
• previously imprisoned

OR

• Defendant 17+ years, and
• Charged with offence 3yrs+, and
• prev. received 14+ sentences of prison, and
• prev. convicted of offence 3yrs+ while remanded/bail.

1. No bail except from HC or DC Judge
2. Onus on Defendant to prove he should be released (REVERSE BURDEN OF PROOF)
3. Def. satisfy on Balance of Probablilities (BOP) he will not commit offence involving violence or safety of person, or burglary or serious property offence (7yrs+ prison - arson)
4. Judge decides, safety of public and safety victim.

Question 5

Bail Act 2000, Section 15: Granting bail to def. 17yrs old - rules x2

What about person under 17yrs?

Answer 5

• Defendant 17yrs
• No previous prison sentence
  then - Must release on bail or conditions

Person under 17yrs, Must release on bail or conditions if charged/convicted of offence in District or High Court.

Question 6

Bail Act, Section 16: bail for drug dealing offence?

Answer 6

HC or DC judge only can grant bail

Question 7

Bail Act, Section 21: Police Employee may grant “Police Bail” (x3)

Answer 7

• Police Employee grant Police Bail to Def. if considers “prudent to do so” charged with offence and arrested without warrant.
• Safety of victim is to be Paramount if bailing for Sn49 offence (BOPO)
• despite Sn7, No one can grant Police Bail “as of right”

Question 8

Bail Act, Section 21A: Notice of Police Bail - entails what?
x6 points

what must you do re. this notice? x3

Answer 8

Notice:

• Date
• Def full name and address
• Particulars of charge
• Conditions of Bail: Court date/time/place
• Any other information you would normally include on summons
• Date of court <14days from notice

Give to defendant
Ensure he understands
Ensure he authenticates (Signs) notice of bail

Question 9

Bail Act, Section 21B: Conditions of Police Bail

What is the first and most important condition?
What are the ONLY circumstances where other Police Bail conditions can be added? re. court timings (x2)

Answer 9

1. First condition is that they must attend at court on a date/time/place.
2. ANY other conditions can only be imposed IF :
   - Court date is <7days away, or
   - Court will be closed for 7 days after arrest

NB - Can only put other circs on for police bail if one of above two things exist… “bail conditions” are really for the COURT to decide and issue.

Question 10

Bail Act 2000, Section 23
What happens re. bail for Breach of Protection Order offence (Sn49)?
(4 points)

Answer 10

1. If arrested and charged under 49 DV Act (arrest under 50), no bail by police employee for 24hrs after arrest.
2. If you can, bring to court asap.
3. No court within 24hrs - may be released on bail by Employee.
4. If charged with other offences in same incident, must not be released on bail by employee during that 24hrs.

Question 11

Bail Act, Section 35:

1. Defendant released on ANY bail may be arrested without warrant in what circumstances?
2. Lesser v Serious cases, what court? What must court then do?
3. Sn37: What can police do for BOB offending to assist with locating offender?

(scroll for answer)

Answer 11

1. Belief on reasonable Grounds that they
   - have/about to abscond to evade justice, or
   - have Contravened any condition of bail

If charges are “lower offences ie. Cat 1, 2, 3 offence” - and breach, brought to District COURT asap.
(not necessarily a judge)

If charges are “more serious i.e. re. Cat 4, 5 offence” brought to HC or DC Judge asap.

2. Reconsider question of bail. Defendant now not bailable as of right (except under 7(5) - just cause for continued detention).
3. Cops can still seek a warrant to arrest under Sn37. BOB warrant - then can enter with force.

Question 12

Bail Act, Section 37:
A warrant can be issued for BOB or absconder if what is satisfied? x4

What does this warrant mean police can do? x2
What do police HAVE to do on entry? x2

a) If released on bail by police or court for CAT 1-3 offence and breached, where must offender appear?
b) If released on bail by other than a) above, where must they appear?
c) Are they then Bailable as of Right?
d) What happens for offenders breaching bail for drug dealing offences?
(scroll for answer)

Answer 12

1. Warrant issued if satisfied by evidence on oath that:
   a. i. def. absconded/about to - to evade justice
   ii. contravened bail condition, or
   b. i. def doesn’t go to court
   ii. def doesn’t attend ANY other hearing if adjourned.

• Warrant directed to specific/any constable
• Enter by force if necessary if RGB def on premises
• Warrant/copy with them and produce on entry/if requested
• Produce ID if not in uniform

a) District Court.
b) HC or DC Judge
c) No
d) Can be arrested without warrant. Must appear before HC or DC Judge.

Question 13

What are the meanings of Judicial Officer or Registrar in the diff courts?

Answer 13

Judicial Officer or Registrar means:

• DC: JO or reg for District court matters,
• High Court, Court of Appeal or Supreme Court: reg or judge for HC, COA or SC MATTERS.

Question 14

Bail Act, Case Law - R v Bryant
“prudent” 21 bail act.

(scroll for deets)

Answer 14

Bryant is Prudent - PRUDE

Bryant masturbating in park. Arrested, interviewed, in cell. Another cop then interviewed him. Op to bail started. Next morning interviewed AGAIN re. other offences. Bryant was bailable by court as of right - judge, however, refused bail. Admission of statements challenged cos he should have been bailed as of right and therefore statements after bail time inadmissible.

• Police detention found to be lawful - “prudent to do so” is subjective… discretion exercised.

Separate bail regimes - Court and Police.

Discretion exists whether of not defendant is bailable as of right. “Prudence” requires consideration whether they are released (or not) BEFORE court. Must weigh risk of offending continuing.

Question 15

Policing Act 2008, Section 32 - What can we do about obtaining information of people in custody? e.g. AO’s

1-5 points
scroll for answer

Answer 15

1. Enables police to obtain information to use now/in future, for lawful purpose.
2. Detained for committing offence and at police station or place used for police purposes (car)
3. Take ID in reasonable manner (nbk) and may only use reas. force.
4. Identifying Particulars - any or all of:
   
   • name add DOB
   • photo or visual image
   • fingerprints/palms, footprints
5. After being cautioned, fails to comply = offence, and, 6mo $5000.

Question 16

Policing Act, Section 32 - Identifying particulars for summons x3

Answer 16

2. Constable, GCS commit offence, intends to bring proceedings by summons, may detain, and
3. reasonable in circus, reasonable force
4. After being cautioned, fails to comply = offence, 6mo, $5000

Question 17

Policing Act, Section 36 - Care and Protection of Intoxicated persons - part 1. what are the conditions for detention in custody?

x 6 (+2) points

Answer 17

part 1. Detain in custody if:

• Intoxicated and PP, or
• intoxicated trespassing detain in custody if -
• BRG person incapable of protecting self from phys harm
• likely to cause phys harm to another
• likely to cause significant damage to property, and
• Satisfied not reasonably practicable to provide for Care and protection by:
• taking home or * taking to shelter

Question 18

Policing Act, Section 36 - Care and Protection of Intoxicated persons - part 2.
What happens to person detained? (timings)

3. What must health practitioner satisfy self of before further detention in custody? x3

Answer 18

2. Must be released ASAP ceases to be intoxicated.
   Must not be detained longer than 12hrs unless medical practitioner recommend further detention for max 12hrs.
   MAX 24HRS
3. Health practitioner satisfies self that:
   - person remains intoxicated and unable to protect self from harm
   - does not have health needs requiring medical attention
   - not practical to provide continuing C&P by - taking home, taking to temporary shelter

Question 19

Policing Act, Section 36 - Definition of “Intoxicated” and “Temporary Shelter”?

What does S31 say about this section in terms of taking and detaining a person?

Answer 19

Intoxicated: Observably affected by alcohol, other drugs, substances to degree that speech, balance, coordination, behaviour clearly impaired.

Temp Shelter: Place (other than place operated by police) capable of providing C&P of intoxicated person.

Section 31 applies to this section as if taking and detaining person in custody as if it were a power of arrest.

Question 20

Solicitor General’s Prosecution Guidelines - 5.1 & 5.2 - what are the two tests for prosecution?

Answer 20

Met if:

1. Evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction - The Evidential Test, and
2. Prosecution is required in the public interest - The Public Interest Test.

must be separately considered and satisfied 1 then 2.

Question 21

SG’s Prosecution Guidelines - What is definition of the Evidential Test. (i would learn verbatim) (7 parts)

start with “A reasonable…” (scroll)

Answer 21

conviction, id individual, evidence, satisfied BRD, criminal offence

• A reasonable prospect of conviction exists,
• Re an Identifiable person (natural or legal),
• Credible evidence, prosecution can adduce before a court,
• Upon which evidence an impartial Judge/Jury,
• Properly directed in accordance with the law,
• Reasonably expected to be Satisfied beyond reasonable doubt that,
• Individual who is prosecuted has committed a criminal offence.

Question 22

SG’s Prosecution Guidelines - What are the elements of the evidential test? x 6
(all falls out of the Evidential Test definition)

Answer 22

(take from verbatim definition) ICERBC (icerebecca)

1. Identifiable Individual
2. Credible Evidence
3. Evidence which prosecution can adduce
4. Reasonably be expected to be satisfied
5. Beyond reasonable doubt
6. Commission of a criminal offence

Question 23

SG’s Prosecution Guidelines - what does “Identifiable Individual” mean?

*What are two points to note around this issue?

Answer 23

“evidence sufficiently identifies that a particular person is responsible.”

• It could be clear the offence has been committed but difficulty in ID-ing person responsible.
• Can have joint liability…

Question 24

SG’s Prosecution Guidelines - what does “Credible Evidence” mean?

What are 3 egs. that the court addresses re. credible evidence (ie. witness…)?

Answer 24

“Evidence which is capable of belief”

• Credible witness, witness discredited?
• Assessment of the quality of the evidence?
• Credibility issues - prosecutors look at evidence to decide if reasonable prospect of conviction.

Question 25

SG’s Prosecution Guidelines - “Evidence which prosecution can adduce”, mean?

“Available” eg?
“Excluded” eg?

Answer 25

“Evidence which is available and legally admissible”

Evidence can be admitted or excluded by court,

• Available: hearsay, dead person etc
• Excluded: due to the way it was obtained, ie. by unlawful search.

Question 26

SG’s Prosecution Guidelines - what does “Could reasonably be expected to be satisfied” mean in respect of whether to charge…?

What should prosecutor/police be mindful of? x2

Answer 26

“Objectively reasonable prospect of conviction on the evidence…”

• Matter of judgement for prosecutor whether reas. prospect.
• Police should anticipate and evaluate likely defences

Question 27

SG’s Prosecution Guidelines - Beyond Reasonable Doubt, mean?

Answer 27

“Capable of reaching the high standard of proof required”

Have to be SURE…

Question 28

SG’s Prosecution Guidelines - Commission of criminal offence, mean?

Answer 28

Analysis of law to ID what offence(s) committed and consider evidence against the ingredients.

Question 29

SG’s Prosecution Guidelines - What is the Public Interest Test - how applied? x 3

When there is contravention of Criminal Law, what does the Public Interest test usually require? What is an example of offence that may NOT be prosecuted under PI test.

What also can be considered if PI test says “don’t prosecute”?

Answer 29

• Only when Satisfied Evidential Test, THEN can consider PI test. - Not a rule that all Evidential Test cases MUST be prosecuted.
• Discretion as to whether a prosecution is required in the public interest.

Public interest requires prosecution when contravention of criminal law - BUT… Consider all cases individually.
(i.e. child driveway runovers… etc)

Consider appropriateness of diversionary option. (i.e. youth)

Question 30

SG’s Prosecution Guidelines - What did Sir Hartley Shawcross (AG of UK) say about discretion?

Answer 30

“it has never been the rule in this country… that suspected criminal offences must automatically be subject of prosecution”

Question 31

SG’s Prosecution Guidelines -

What are the public interest considerations FOR PROSECUTIONS? x18!!
scroll down for answer

Answer 31

1. Seriousness of offence
2. Serious or significant violence
3. Likely to be continued/repeated
4. Previous convictions / diversions / warnings
5. Bail - offence committed while on bail / sentence / order
6. Prevalent - offence is widespread
7. Ringleader
8. Premeditated
9. Group
10. Organised crime
11. Victim is in fear, suffered personal attack or disturbance, vulnerable etc…
12. Risk of harm serious, created by offender
13. Financial loss serious
14. Position of authority or trust, offence is abuse of that position
15. Public servant - offence against them - Dr, police etc.
16. Advantage - def. took advantage of age difference.
17. Motivated by hostility towards race, ethnicity, sex, orientation etc - hate crime.
18. Element of corruption.

Question 32

SG’s Prosecution Guidelines - What are the public interest considerations AGAINST PROSECUTIONS? x13!!
(scroll for answer)

Answer 32

1. Small or nominal penalty.
2. Minor harm or loss - error of judgement or genuine mistake.
3. Not serious, unlikely to be repeated.
4. Undue delay - Long passage of time between arrest and trial, unless:
   
   • Offence serious
   • delay caused by defendant
   • offence only recently come to light - hist. sex
   • complex therefore lengthy investigation
5. Detrimental effect on victim / witness (prosecution)
6. Elderly defendant
7. Young defendant
8. Previous convictions - NONE
9. MENTAL or physical health impaired - at offence or trial.
10. Rectified harm caused - victim accepts defendant has done. i.e. $
11. Civil action can better recover proceeds of crime
12. Information made public could disproportionately harm sources of information, international relations, national security - ie. terrorists, sex offenders .etc
13. Proper alternatives to prosecution are available (early resolution with counselling etc. )

cost too…

Question 33

SG’s Prosecution Guidelines - If there is no original prosecution, then can we prosecute later… ? x2 points

Answer 33

• Does not preclude any prosecution if new information and additional evidence is available.
• Review of original decision is required.