Chapter 2: Custody; Bail; Prosecution guidelines; Taser Flashcards
S32 Policing Act 2008
Identifying particulars of a person in custody
2) a Constable may take identifying particulars of a person in lawful custody -
detained for committing an offence -
and is at a police station / any other place used for police purposes
3) take identifying particulars in a manner that is reasonable in the circumstances / can use reasonable force
What is the penalty for failing to provide identifying particulars?
S32 (4)
- a person - who after being cautioned - fails to comply commits an offence
Liable on conviction to
- imprisonment for a term not exceeding 6 months
- fine not exceeding $5000
- OR BOTH
What are identifying particulars?
s32(5) and s33
- biographical details (name, address, DOB)
- photograph / visual image
- impressions of fingerprints / palm prints / footprints
How long can a person be detained if found intoxicated?
S36 policing act 2008
Care & protection of intoxicated people
- Must be released as soon as the person ceases to be intoxicated.
- Must not be detained longer than 12 hours after the person is first detained
- Unless a health practitioner recommends that person is detained a further 12 hours ( for a period not exceeding 12 hours).
Definition of intoxicated
Means observably affected by alcohol; other drugs or substances
to such a degree that speech, balance, coordination or behaviour is clearly impaired.
Temporary shelter definition
Means a place (other than a place operated by police) that is capable of providing for the care and protection of an intoxicated person.
In what circumstances can you detain an intoxicated person?
S36 (1) Policing Act 2008.
Finds a person intoxicated in a public place
Or intoxicated while trespassing on private property
- incapable of protecting them self from physical harm
- likely to cause physical harm to another
- likely to cause significant damage to property
And not reasonably practical to provide for the persons care & protection by
- taking the person home
- taking the person to a temporary shelter
When must a health practitioner not recommend further detention?
S36(3)
Unless health practitioner is satisfied that
- person remains intoxicated and is incapable of protecting himself
- person does not have health needs that require medical attention
- not practical to provide for the persons continuing care & protection by:
: taking them home / to a temp shelter
S33 policing act 2008
Identifying particulars for Simmons
- detain person at any place
- in order to take identifying particulars
- ONLY for the time necessary to take particulars
- take particulars in a manner that is reasonable / use reasonable force
- fail to comply: imprisonment 6 months / $5000 or BOTH
Public interest considerations
1) seriousness of offence
2) offence involved significant violence
3) grounds for believing the offence is likely to be repeated
4) relevant previous convictions
5) offence committed on bail
6) defendant ringleader / organiser
7) premeditated
8) carried out by a group
9) offence resulted in serious financial loss
10) defendant in a position of authority
11) offence against person serving public (dr, ambo)
12) defendant took advantage of perso with developmental delays
13) offence motivated by hostility (age, race, gender)
14) element of corruption
Section 7 Bail Act 2000
defendant is bailable as of right IF:
1) charged with an offence not punishable by imprisonment.
2) max punishment: LESS than 3 yrs imprisonment (unless assault on a child / MAF)
3) UNLESS defendant has previously been convicted of an offence punishable by death or imprisonment
S8(1) Bail Act 2000
Consideration of just cause for continued detention
Considering whether there is just cause for detention - court must consider:
1) risk defendant may fail to appear
2) defendant may interfere with witnesses or evidence
3) defendant may offend while on bail
S8(2) Bail Act 2000
Consideration of just cause for continued detention
1) nature of offence
2) strength of evidence and probability of conviction
3) seriousness of punishment
4) character & past conduct or behaviour
5) history of offending while on bail
6) length of time before trial
7) any other special matter
S8(4) Bail Act 2000
S29 Victims Rights Act 2002
When considering an application for bail - court must take into account any views of a victim
S8(3A) Bail Act 2000
Defendant charged with a Family Violence offence
- court’s primary consideration is the need to protect:
- the victim AND
- person / people in a Family relationship with victim
S3(C) Bail Act 2000
Breach of protection order
Courts paramount consideration:
- Need to protect every person - who is a protected person.
S8(4A) Bail Act 2000
Court MUST NOT take into account
If the defendant has provided/may provide information
Relating to the investigation / prosecution
Including any offence committed by the defendant
- court may consider cooperation - if that cooperation is relevant to courts assessment of the risk the defendant may fail to appear / interfere with witnesses or evidence / offend while on bail.
S10 Bail Act 2000
Restriction on bail if defendant with previous conviction for specified offence - charged with a further specified offence
- of or over the age of 18
- charged with a specified offence
- Who has 1 or more previous convictions for a specified offence
- same or different specified offence
Under s10 Bail Act 2000, who can grant bail?
High court judge or District court judge
S12(1)(a) and (b) Bail Act 2000
Further restrictions on bail
- defendant over age of 18
- charged with an offence - Max penalty 3yrs + imprisonment
And
- on bail for offence with max penalty 3yrs + imprisonment (at time of committing an offence)
And - previous imprisonment
OR
- 18 or older
- charged with offence 3yrs + imprisonment
And - 14 or more previous imprisonments
And - previous conviction for offence committed on bail (penalty 3yrs +).
Who grants bail for drug dealing offences?
High court judge or district court judge
S23 Bail Act 2000
Bail and breach of protection order
Arrest for breach of protection order must not be granted bail during the 24 hrs following arrest
