CL weak areas (SQE 2)

Question 1

What are the different adverse inference categories?

Answer 1

s34 - fact later relied on trial which would have been reasonable to mention it now
s36- failure to account for mark, object or substance
s37 - failure to account for presence at scene
s38 - no D can be convicted solely on a adverse inference

Question 2

What must be given for s34 adverse inference? What about s36 and 37?

Answer 2

s34 - must be cautioned

s36 and 37 - must be given a special warning - must be told:
-offence being investigated
-what they are being asked to account for
-this fact may be due to them taking part in commission of offence
-court may draw inference if fail or refuse to account for fact
-record is being made of interview and may be given in evidence if brought to trial

Question 3

Identification prodecure

If suspect has a unusual physical feature, what should be done?

With identification parades, what should be ensured regarding witnesses?

If there is a breach of Code D (regarding identification) what should be done?

Answer 3

Steps may be taken to conceal location or replicate feature on images of other people

Must not be able to communicate with each other, overhear - should be brought in one at a time

s78 app - court has discretion to exclude evidence

Question 4

What is dealt at first hearing with summary-only and either-way offences?

Indictable-only?

Answer 4

Plea, bail, representation and legal aid

Bail and legal aid then D is sent to CC to indicate plea

Question 5

What are the 2 main advantages of electing trial on indictment in CC?

What are 5 main advantages of MC trial?

Answer 5

Acquittal rate is higher
Separate tribunals of law and fact in CC (voir dire procedures allow judge to hear arguments to exclude evidence in absence of jury)

Less formal
Quicker
Do not require D to serve a defence statement
Less expensive
Mags have to give reasons for decisions whereas juries do not

Question 6

Give 10 common bail conditions and what they are

Answer 6

1. Residence at given address (live and sleep at specified address)
   2.Curfew
   3.Reporting to local police station at given times
   4.Surety (person providing will agree to forfeiting sum of money if D absconds (can’t be D providing surety)
   5.Security (D, or someone on behalf, putting up money or some other valuable item to be forfeited if abscond)
2. Restrictions on where D may go
3. Restrictions on who D may have contact with
4. Electric monitoring
5. Bail hostels (residence at bail hostel)
6. Surrender of passport

Question 7

What is the main (and usually hearing) in pre-CC trial (following being sent from MC)?
What does this consist of?

Answer 7

Plea and Trial Preparation Hearing (PTPH)
1. Plea
2. Sentence or trial preparation (standardised directions on special measures, bad character etc, defence statement must be served)

Question 8

What are the 6 key components of drafting a defence statement?

Answer 8

(1) set out nature of accused’s defence (what is charged with, fact denies this offence)
(2) Matters of fact which D takes issue with prosecution (e.g. not present at time)
(3) Why D takes issue (e.g. D was in bed at X address)
(4) Any points of law wishes to raise (e.g. s78)
(5) Details of alibi witnesses (e.g. mothers name, address, DoB)
(6) Signature of D, name of D, date

Question 9

What must be served to make an app for specific disclosure?
What must D explain in specific disclosure app?

Answer 9

Defence statement

Reasonable cause to believe:
-P has material
-And that it should be discloses

Question 10

App for dismissal

What is it?
When can they be made?
Test?

Answer 10

pre-trial app to have charges against D dismissed

Can only be made where:
(1) D is sent by MC for trial in CC;
(2) only after D served with evidence relating to offence; and
(3) only before D is arraigned

App made to CC judge
test: will dismiss if evidence would not be sufficient for D to be properly convicted

Question 11

What is test for submissions of no case to answer?

Where can app be made?

Answer 11

The p evidence, taken at its highest, is such that a jury could not properly convict

MC and CC

Question 12

Abuse of process applications

What is it?

What is test?

Examples?

Answer 12

Stay proceedings (dismiss)

(i) where it will be impossible to give accused a fair trial; and
(ii) where it offends court’s sense of justice and propriety to be asked to try the accused or will undermine public confidence in criminal justice system

e.g. D tricked or coerced into committing offence, police acted in a way to undermine public confidence, p manipulated or misused process

Question 13

where would a voir dire take place regarding s.78 app?

Who will evidence by heard by in CC?

Answer 13

If dispute of fact needs to be resolved

Just judge (no jury)

Question 14

Definition of confession?

Answer 14

Any statement which is wholly or partly adverse to the person who made it

Question 15

What does unreliable mean in regard to s76? Is the test objective or subjective?

Answer 15

cannot be relied upon as being the truth
Objective

Question 16

Under s76, if a confession is wholly or partly excluded, what 2 evidence does this not affect admissibility of?

Answer 16

Facts discovered as a result of confession (e.g. location of body)

Speech, writing or expression of accused (even if words have been excluded - can use it to show how express themselves in certain way)

Question 17

When should a Turnbull direction be given?

When considering whether to withdraw case from jury, what factors will judge consider regarding evidence?

Answer 17

When the case against the accused depends wholly or substantially on the correctness of visual identification evidence

ADVOKATE
Amount of time under observation
Distance
Visibility
Obstruction
Known or seen before
Any reason to remember (had witness had special reason to remember accused)
Time lapse
Error or material discrepancy

Question 18

Give 6 types of special measures

Answer 18

Screens (so can’t be seen)
Live TV link
Evidence in private
Questioning through an intermediary
Video recording of evidence in chief
Pre-recording cross-examination and re-examination

Question 19

Regarding vulnerable defendants, what can be done regarding special measures?

Answer 19

Can be made to give evidence via live link if

Under 18 - accused’s ability to participate effectively in giving evidence as witness is compromised by level of intellectual ability or social functioning

18 or over - unable to participate in giving oral evidence due to mental disorder or significant impairment of intelligence and social function

Question 20

What does competent mean with giving evidence?

Are children and persons with disorder or disability competent and compellable?

Deaf or speech impaired?

Answer 20

Competent = permitted to give evidence

Yes as long as can (1) understand questions and (2) give comprehensible answers
If competent, then compellable

Yeas as long as understand solemnity of taking oath or affirmation

Question 21

What are the 2 main forms of privilege? What are they?

Answer 21

Against self-incrimination
-court will upheld witnesses right(other than D) to refuse to answer Qs or disclose docs which may make them liable to incriminate themselves

Legal professional privilege:
-litigation privilege (same as DR)
-advice (same as DR)

Question 22

What is generally not allowed to be admitted into evidence and what does it classify as? When would it be allowed?

Answer 22

Police witness statement - hearsay
Admissible if witness if box departs materially from statement, either by contradicting or adding something which was not there originally - statement can be produced to witness to challenge discrepancy

Question 23

What is the slip rule in MC?

2 examples of use?

CC?

Answer 23

Mags can vary a sentence or set aside a conviction if it in the interests of justice to do so

Legal adviser provided wrong legal advice
D did not attend trial (later find out because of emergency hospital admission)

Same

Question 24

When should an AA be present with juvenile?

Answer 24

1) being read their rights
2) being strip searched or subject to intimate search
3) interviewed
4) attending identification procedure
5) being charged

Question 25

When can a youth caution be given?

Answer 25

For an offence that is not indictable only (in case of adult)

Satisfied sufficient evidence to charge youth
Youth admits offence to police
Police do not consider youth should be prosecuted

Question 26

What is a dangerous offender for a youth?

Answer 26

Specified offence and
appears if found guilty, criteria for an imposition of a sentence of extended detention would be met

Extended detention =
-significant risk of harm to public from youth committing further specified offences, and
-offence warrants sentence of at least 4 years

Question 27

What is the procedure if a youth is charged alone?

Where would youth have to be sent to CC?

Can a youth elect trial in CC?

Answer 27

First hearing in YC (instead of MC if jointly charged)
Asked to enter a plea
-G = court will endeavour to pass sentence same day (may need to adjourn for prep of a pre-sentence report)
-NG = parties asked to complete case management form + directions made for future management of case

Must be sent to CC if:
-homicide
-certain firearms offences
-grave crime (and sentence in excess of two years detention should be available)
-dangerous offender
-IOJ to sent youth who is jointly charged with adult

NO - only up to court

Question 28

What is a grave crime for youth?

Such as?

Answer 28

A crime which would carry 14 years or more imprisonment for an adult

rape, manslaughter, murder, residential burglary, s18, arson, robbery, aggravated burglary, aggravated arson, aggravated criminal damage

Question 29

What factors will court consider when deciding whether youth should receive a sentence in excess of 2 yrs? When would this take place ?

Answer 29

-Sentencing guidelines for offence
-Factors in Sentencing Children and Young People: Definitive Guideline
-Representations from p and def about appropriate venue and info about circumstances of youth

If the youth has been charged with a grave crime, or jointly charged with a adult for either-way or indictable only offence

Question 30

What happens with an either-way offence at first hearing if D pleads guilty?

NG?

Answer 30

Guilty: consider whether sentencing powers are sufficient
If yes = sentence immediately or adjourn for prep of a pre-sentence report (must obtain a pre-sentence report when passing custodial or community sentence unless it considers it unnecessary to do so)
If no = commit to CC

NG: move onto allocation
Must take into account allocation guideline - EW offences should be tried summarily unless:
-court’s sentencing powers would be insufficient, or
-reasons on unusual legal, procedural or factual complexity
Consider submissions of parties:
P:
-open with facts
-outline D’s offending history (if any)
-makes submissions as to where trial should be held (nature + seriousness of offence, including aggravating and mitigating factors)
Defence:
-make submissions as to venue (whether they agree with p, or submissions as to where they disagree)

Question 31

What is required for appeal from CC to CofA?

Answer 31

Leave is required to appeal:
-Appellants from CC need to convince a single judge that appeal is arguable
-Then proceeds to oral hearing before 2 judge court (sentence appeals) or 3 judge court (conviction appeals)
-If leave refused before single judge - may renew app for leave orally before relevant panel

Question 32

What is procedure for appeal from CC to CofA?

9 stages!

Answer 32

(1) time limits
Notice of Appeal (Form NG) must be served on Registrar of CofA within 28 days of conviction (if conviction appeal) or 28 days of sentence (if sentence appeal)
-Time limit can be extended (court’s discretion)

(2) Advising on appeal
Counsel draft advice as to whether appeal likely successful - should only draft grounds which are reasonable, have real prospect of success and they are prepared to argue before court
Advice and grounds sent to D for approval (form NG)

(3) certificate of trial judge
-unusual circumstances where trial judge certifies ‘fit for approval’ - leave not required if so

(4) Transcripts
-Transcripts from trial can be ordered by Registrar if required to resolve appeal

(5) perfecting grounds
-When transcripts received - sent to counsel. Have 14 days to perfect grounds (will be made in fresh doc). Should inform appellant’s solicitor’s if no longer arguable

(6) respondent’s notice
-Registrar may direct prosecution serve a response to assist single judge in Form RN

(7) consideration of leave to appeal
-Consideration of leave to appeal (single judge on papers alone - decided whether to grant wholly or in part, refuse, or refer to full of CofA without granting leave)

(8) renewal
-If leave refused by single judge - can renew app (serve within 10 business days) - will be heard at an oral hearing before full court or 2 (sen) to 3 (con) judges

(9) Referral to full court
-Registrar can refer case direct to full court if there is an unlawful sentence which must be amended, or a novel point of law

Question 33

Powers on appeal in CofA?

Answer 33

Any order as long as taken as a whole, appellant is not more severely dealt with as in court below

Question 34

When should D appeal from MC to CC?
MC to HC by case stated?
JR?

Answer 34

Error of fact or mixed fact and law

Error of law or acted in excess of jurisdiction

Unfairness, bias or procedural irregularity

Question 35

CC: re-hearing (from MC)

Permission?
Who can appeal?
Procedure?
-notice of appeal
-hearing
-bail
-abandonment
-Powers on appeal
-Costs

Answer 35

Automatic right - no leave required (if pleaded guilty - against sentence, if pleaded not guilty - against conviction or sentence)

Prosecution cannot appeal (only by case stated or JR)

Procedure:
-Notice of appeal must be lodged within 15 business days of sentence (whether appeal is against conviction or sentence)
-Notice of appeal served on MC and P, specifies:
–decision appellant wishes to appeal
–summarise issues
–state whether MC been asked to reconsider decision
–List parties whom appeal notice been served

Hearing:
-Proceed same way as original trial (not limited to evidence that was called during trial)
-Heard by CC judge and 2 lay magistrates

Bail:
-No right to bail pending appeal
-Can apply to MC and then apply to CC

Abandonment:
-IF wish to abandon - give notice in writing to MC, CC and P
-If appellant fails to attend (abandoned if not represented)

Powers on appeal:
-Make any order which the court thinks just (as long as they only exercise power available to MC) - so sentence could be increased (sentence is ‘at large’ on appeal)

Costs
-Unsuccessful may be required to pay P costs
-Abandoned costs can be ordered (usually only if abandon appeal within 24 hrs of appeal)

Question 36

Appeal by way of case stated

Procedure?
Who is it heard by?
Who can appeal?
Where can you appeal after if you appeal to HC?
Powers on appeal?
Appeal from HC?

Answer 36

Procedure:
-Applies to MC to state a case to HC(take the form of a question(s) about decisions of law which D asserts were wrongly decided) - final case stated will be agreed by all parties + will include summary of evidence heard at trial, legal arguments and details of decision
-Must apply 21 days from date of decision sought to be appealed (unless sentence is adjourned after conviction - date is date of sentence even if a conviction appeal)

Heard by 2-3 HC judges - based on legal submissions of parties (no evidence is heard)

Appeal: both P + D

Can’t appeal to CC for re-hearing (but if apply to CC first, can then apply to HC after)

Powers on appeal = reverse, affirm or amend MC decision, remit case with opinion (or any order it sees fit)

Appeal from HC = direct to Supreme Court

Question 37

What are the sentencing guidelines?

Rule?

Where one not available?

Answer 37

Guidelines for use in MC and CC - available for most significant offences

Rule = Every court MUST follow any sentencing guidelines unless the court is satisfied it would be contrary to the interests of justice to do so

Not available =
-Refer to General guideline
-Judges in CC may also refer to CofA judgments

Question 38

What can be ordered if appellant loses?

Answer 38

To pay other sides costs (like in DR)

Question 39

When is a JR appeal brought from MC to HC?

Who can apply?

When should app be lodged?

Answer 39

Unfairness, bias, procedural irregularity

Prosecution and defence

Promptly and no later than 3 months after grounds arose