Chapter 2 - Custody, Bail, Prosecution Guidelines and Taser Flashcards
Bail Act - s7 Rules to granting bail
defendant is bailable by right when charged with an offence not punishable by imprisonment.
Defendant bailable by right when the offence penalty is less than 3 years imprisonment. Unless FV assault, child or m v f.
Not bailable as of right if previously convicted of an offence with an imprisonment/death sentence.
Subject to s9-17 defendant must be released on reasonable bail unless the court is satisfied that there is just cause for continued detention.
Bail Act s8 - consideration of just cause for continued detention
The court must take into account:
WEEP.
Other facts for consideration: nature of offence strength of evidence seriousness of likely punishment character/past conduct previous history on bail
Paramount consideration is the safety of the victim/their family.
Take into account the victim’s views on bail.
Bail Act s10 - Charged with specified offence and has also been charged previously.
Charged with a specified offence and has previously been charged with a specified offence.
Can only be granted bail by the judge.
Bail Act s12 - Further restriction on bail
Charged with an offence with 3yr sentence and at the time was remanded at large/on bail for another 3yr offence. And has previously been sentenced to imprisonment.
OR
Charged with a 3yr offence and has previously received at least 14 sentences of imprisonment.
Can only be granted bail by a judge.
Bail Act - s15 - Granting bail to defendant 18yrs or younger
If the defendant is aged 18yrs or younger and has not previously been sentenced to imprisonment they must be released on bail.
subject to s7, 9 -12.
Bail Act s16 - Bail for related drug offences
Only a judge may issue bail for a defendant charged/convicted with drug dealing.
Bail Act s21 - Police employee may grant bail
Where a defendant has been arrested and charged, and bail is not opposed. Any police employee may grant police bail.
Primary consideration is the need to protect the victim of any offending and their family. Paramount consideration when the victim is a protected person with a PO.
Despite s7 - no one is entitled to be granted police bail by right.
Bail Act s21A - Notice of police bail
Notice must state: Defendants name, address details of the charge conditions of bail - including time/date/place of court hearing. Dated
Ensure the defendant understands the conditions of bail and authenticates the notice.
Date of court must be no later than 14 days from the date of notice.
Bail Act s21B - Condition of police bail
A condition of every police bail notice is the defendant’s first appearance.
Police may impose other conditions. Only applies if the defendant appears within 7 days. Unless the court they would attend is closed for more than 7 consecutive days after the date of their arrest.
Bail Act s22 - Bail granted re FV offences
Police may impose any condition considered to be necessary to protect the victim/any person residing with them/family of the victim.
Bail Act s23 - Bail and Breach of PO
Arrested for breach of PO. MUST not be released on bail within initial 24 hours after arrest.
Can be held in custody to appear in court asap or released on bail under s21 after 24 hours.
If the person arrested has been charged with other offences arising out of the same incident as the PO breach must not be released on bail for those offences with in the initial 24 hours after arrest.
Bail Act s35 - Defendant on bail arrested in certain circumstances
Where a defendant has absconded for the purpose of evading justice; or
The defendant has contravened/failed to comply with any conditions of bail they can be arrested with out warrant.
After arrest - cannot be bailed as of right.
Can seek a warrant for arrest for the above.
Bail Act s37 - Issue of warrants for breaching/absconding
If the defendant absconds/about to for the purpose of evading police or;
Has failed to comply/breached a condition of bail or;
Fails to appear as specified on the bail document.
A warrant will be issued.
Same conditions of s8 S&S apply.
Policing Act s32 - Identifying particulars of person in custody
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
- At a police station
- At any other place being used for police purposes
Must take them in a reasonable manner and only use reasonable force if necessary.
An offence, for someone who after being cautioned, fails/refuses to comply with a constable exercising powers under this section.
ID- name, address, DOB, photo/visual image, finger prints/palm prints/ foot prints.
Place includes land, building, premises or vehicle.
Policing Act s33 - Identifying particulars for summons
A constable who has GCTS a person committing an offence and intends to bring proceedings against that person by way of summons may detain that person at any place -
- take their identifying particulars and keep them detained for the period necessary to obtain those details.
Must take them in a reasonable manner and only use reasonable force if necessary.
An offence, for someone who after being cautioned, fails/refuses to comply with a constable exercising powers under this section.
Policing Act s36 - care and protection of intoxicated people
A constable who finds a person intoxicated in a pp or trespassing may detain that person if they have RGTB the person is -
- Incapable of protecting themselves from physical harm
- Likely to cause harm to another person
- Likely to cause significant damage to any property.
AND
The constable is satisfied it is not reasonably practicable to provide for the persons care and protection by-
- returning them to their own residence or;
- a temporary shelter
Must be released once no longer intoxicated.
Must not be detained for longer than 12 hours unless a health practitioner satisfies themselves of the same conditions above.
Can be detained for a further period not exceeding 12 hours.
Evidential test
- A reasonable prospect of conviction exists - ID can be proven and credible evidence exists which the prosecution can adduce before the court.
Public interest test
Once there is sufficient evidence - the public interest test applies.
Considerations:
- seriousness of the offence/significant violence
- grounds to believe it would be repeated
- previous convictions
- offence committed while on bail
- prevalent
- ringleader
- carried out by a group
- premeditated
- organised crime
- victim/family have been put in fear/suffered persona; attack/damage. Vulnerable victims
- serious risk of harm
- financial loss
- offence against a public servant
- advantage taken in developmental ages
- discrimination/corruption
Considerations against:
- small penalty
- loss/harm is minor
- offence is not serious
- long passage of time between an offence/trial date
- prosecution likely to have detrimental effect of well-being of victim/witness
- defendant is youth/elderly/no previous convictions
- defendant at the time was suffering from significant MH
- victim accepts that the defendant has rectified any loss
- where recovery of proceeds can be more effectively pursued civilly
- Info possibly made public could harm sources of info/international relations or national security.
- Alternatives to prosecution exist.
Taser - notify supervisor
Whenever shown or used - operator must notify their supervisor as soon as practicable. In rural cases, notify the nearest duty supervisor.
Supervisor actions after operational use
Consult the operator - is attendance necessary? facetime?
Ensure after care
Ensure scene exam is completed
- preserved/photographed
- evidence recovered - CIT/wires/probes/cartiridges
Ensure a doctor examines the subject or where not available - ambo
- info recorded on medical exam form pol42
Ensure operator updates the register
Ensure operator submits a TOR
Ensure the operator uploads the footage and shares with their supervisor.
Review the footage.
Supervisor actions after an operational taser show
Ensure TOR submitted.
Ensure register completed.
Ensure footage is uploaded.
Debrief.
Taser disclosure
Disclosure is the responsibility of the OC. Consult with PPS and CJSU.
Taser request OIA
Forward the request to the national manager Response and Ops at PNHQ.
