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Em Study > Chapter 2: Custody; Bail; Prosecution guidelines; Taser > Flashcards

Chapter 2: Custody; Bail; Prosecution guidelines; Taser Flashcards

1
Q

S32 Policing Act 2008

A

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

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2
Q

What is the penalty for failing to provide identifying particulars?

A

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
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3
Q

What are identifying particulars?

s32(5) and s33

A
  • biographical details (name, address, DOB)
  • photograph / visual image
  • impressions of fingerprints / palm prints / footprints
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4
Q

How long can a person be detained if found intoxicated?

S36 policing act 2008

Care & protection of intoxicated people

A
  • 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).
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5
Q

Definition of intoxicated

A

Means observably affected by alcohol; other drugs or substances

to such a degree that speech, balance, coordination or behaviour is clearly impaired.

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6
Q

Temporary shelter definition

A

Means a place (other than a place operated by police) that is capable of providing for the care and protection of an intoxicated person.

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7
Q

In what circumstances can you detain an intoxicated person?

S36 (1) Policing Act 2008.

A

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
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8
Q

When must a health practitioner not recommend further detention?

S36(3)

A

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
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9
Q

S33 policing act 2008

Identifying particulars for Simmons

A
  • 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
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10
Q

Public interest considerations

A

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

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11
Q

Section 7 Bail Act 2000

A

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

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12
Q

S8(1) Bail Act 2000

Consideration of just cause for continued detention

A

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

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13
Q

S8(2) Bail Act 2000

Consideration of just cause for continued detention

A

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

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14
Q

S8(4) Bail Act 2000

A

S29 Victims Rights Act 2002

When considering an application for bail - court must take into account any views of a victim

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15
Q

S8(3A) Bail Act 2000

A

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
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16
Q

S3(C) Bail Act 2000

A

Breach of protection order

Courts paramount consideration:

  • Need to protect every person - who is a protected person.
17
Q

S8(4A) Bail Act 2000

A

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.
18
Q

S10 Bail Act 2000

A

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
19
Q

Under s10 Bail Act 2000, who can grant bail?

A

High court judge or District court judge

20
Q

S12(1)(a) and (b) Bail Act 2000

Further restrictions on bail

A
  • 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 +).
21
Q

Who grants bail for drug dealing offences?

A

High court judge or district court judge

22
Q

S23 Bail Act 2000

Bail and breach of protection order

A

Arrest for breach of protection order must not be granted bail during the 24 hrs following arrest

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