Crim lit Flashcards
What is the sentencing procedure after the defendant has been found guilty after a trial?
Prosecutor will:
1. read any victim impact statement to the court
2. refer the court to the defendant’s previous conviction(s)
3. ask for ancillary orders (eg: prosecution’s cost or compensation to the victim)
Defence will:
Make a plea in mitigation: then the prosecution will provide specific details of the previous conviction
A plea and trial preparation hearing takes place how many days after the case was sent from the Magistrates’ Court?
28 days
How many days does the prosecution have to give disclosure?
50 days
70 days if the defendant is out on bail
Can access to legal advice be delayed?
Yes, by 36 hours (same time limit for suspect’s right to inform someone of arrest)
Delay in accessing legal advice is permitted only when:
(1) the suspect is arrested on an indictable only or either way offence,
(2) a police officer of the rank of superintendent or above has authorised the delay in writing, and
(3) the officer has reasonable grounds to believe that exercise of the right will lead to interference with evidence, interference with others, alerting other suspects, or hindering the recovery of property related to the offence.
When should a formal identification process be carried out?
An identification procedure must be held when:
(1) a witness has identified or purported to identify a suspect;
(2) a witness expresses an ability to identify a suspect; or
(3) there is a reasonable chance of a witness being able to identify a suspect.
A defendant is standing trial in the Crown Court on a charge of burglary. A witness has identified the defendant’s car at the scene of the crime.
What is the judge’s duty in relation to the warning they must give to the jury?
The judge should not give any direction in relation to the identification of the car.
Turnbull warnings relate to the identification of people, not objects or cars
When is a preliminary hearing held in Crown Court?
When an indictable only matter is sent to the Crown Court, a preliminary hearing will take place within 14 days of being sent if:
(1) the trial is likely to last more than four weeks,
(2) there are case management problems to address,
(3) an early trial date is needed,
(4) one of the defendants is under 18, or
(5) there is likely to be an early guilty plea.
When can a Court refuse bail?
Defendants have a general right to bail. The court can refuse bail and remand a defendant into custody if it finds:
(1) there is an exception to the right to bail, (substantial grounds)
and
(2) there is a real prospect of a custodial sentence being imposed if convicted
What kind of offences does the CC deal with?
Crown Courts deal with:
(1) indictable only offences;
(2) either way offences when the Magistrates’ Court has declined jurisdiction or when the defendant has elected Crown Court trial;
(3) either way or summary offences which are related to another offence being heard by the Crown Court, if it is punishable by imprisonment and/or disqualification from driving; and
(4) appeals against conviction and sentence from the Magistrates’ Court.
ABH and criminal damage are both either way offences.
What kind of evidence is prosecution obligated to disclose?
All evidence that supports defence or undermines prosecution’s case
What are the main advantages of trial in the Magistrates’ Court over CC?
court’s limited sentencing powers (no more than 12 months’ imprisonment for a single either way offence),
the relative speed and low cost of conducting a trial (which may mean a lower contribution towards costs if convicted),
and less stringent disclosure requirements on the defence (there is no obligation to serve a defence case statement).
What are the exceptions to the compellability of a defendant’s spouse/civil partner by the prosecution?
the offence involves assault, injury, or threat of injury to them or a child under 16; a sexual offence on a child under 16; or attempting, conspiring, aiding, or abetting those offences
What is the test for exclusion of evidence?
The evidence may (discretion) be excluded if it will have an adverse effect on the fairness of the proceedings
What kind of good character evidences can be taken into account?
Defendant’s propensity to commit an offence (person less likely to commit offence)
AND
credibility (more likely credible when asserting innocence)
If the defendant proceeds on the appeal from Magistrate’s Court to the Crown Court, could the sentencing outcome be worse for the defendant?
Yes, the Crown Court could increase the sentence imposed,
but it is restricted to the Magistrates’ Court sentencing powers (12 months for either way and summary offences)
When is a prelim hearing held in CC?
- if trial will last more than 4 weeks
- case mgmt probs to address
- early trial date is needed
- one of the def is under 18
- likely to be early guilty plea
When must the pros serve its evidence and notice to adduce bad character evi in Mag Court?
within 28 days
Under the Magistrates’ Court standard directions for trial of a summary trial case, after receiving the prosecution’s evidence and any notice of intent to adduce bad character evidence, how long does the defence have to serve its defence statement?
within 28 days after pros evi
When must def notify the pros witnesses required to attend trial and indicate intention to object to bad character evi in MC?
within 7 days of pros evi
When must def give notice of intention to adduce hearsay evi and or bad character evi of pros witnesses and st of def witnesses who will not be called in MC?
within 14 days after pros evi
When must points of law be raised at a MC trial?
21 days before trial
When is certificate of readiness served in an MC trial?
7 bs days days before trial
When does a plea and trial prep hearing take place in CC?
28 days after case is sent from MC
What is a Goodyear indication?
an indication of sentence in CC
An indication before entering a plea of the sentence the court is likely to impose
How long does the proc have for disclosure?
50 days
70 if def is out on bail
When must def file disclosure?
14 days after pros disclosure
What are the admissible categories of hearsay evi?
- by statute (witness unavail, bs docs, expert evi, previous consistent or inconsistent evi etc)
- by rule of law (confessions by def, st made contemporaneous to offence, res gastae)
- agreement of all parties
- interest of justice (probative value, other evi, imp to case as a whole, circumstances, reliability, likely prejudice etc)
What are the admissible categories of multiple hearsay evi?
- business doc
- inconsistent statement
- consistent statement
- all parties agree
- value of evi is so high that it is in the interest of justice
On what basis can the def challenge confession statements?
- mistake
- untruth (oppression or things said or done render the confession unreliable)
if these found then court MUST exclude evi - affects the fairness of the proceedings
(court MAY exclude evi; discretionary)
On what basis can a court exclude confessional statements?
if it appears that considering all the circumstances, that admission of the evi would have an adverse effect on the fairness of the proceedings
Court has DISCRETION here
breaches need to be significant and substantial and have rendered the evi unreliable
What are the grounds for admitting character evi?
7 gateways:
1. all party agreement
2. evi adduced by def
3. imp explnatory evi
4. relevant to an imp matter in issue b/w pros and def
5. matter in issue b/w co-defs
6. correct false impression by def
7. def attacked another’s character
What is the procedure for introducing a bad character evi?
Pros to provide notice
MC: within 20 days of entry of not guilty plea
CC: within 10 days of entry of not guilty plea
When does the court have discretion to exclude bad character evi?
ONLY in 2 gateways:
1. an imp matter in issue b/w pros and def
2. def attacked another’s character
AND
it appears to the court that it will have an adverse effect on the fairness of the proceedings
Court has DISCRETION here
breaches need to be significant and substantial and have rendered the evi unreliable
What is a good character direction?
If def has no previous convictions then they are entitled to have the judge give a good character direction to the jury. It has 2 parts:
- propensity direction
- credibility direction
What kind of a witness is a defendant?
NOT competent or compellable for pros
Competent but NOT compellable for defence
(jury/bench may draw adverse inference from no evi by defendant)
What kind of a witness is the def’s spouse or civil partner?
For pros or co def: competent but NOT compellable (unless assault, injury or threat of injury to them or a child under 16, a sexual off on a child under 16 or attempting, conspiring, aiding or abetting those crimes)
For def: competent and compellable (unless jointly charged)
What kind of a witness is a co-defendant?
Pros: NOT competent and compellable
Def: competent but NOT compellable
How much a sentence reduction does a def receive for pleading guilty at the earliest opportunity?
1/3
(earliest is first court hearing)
What is the max duration of suspended sentences?
MC: 6 months
CC: 2 years (max) (14 days-2 years)
Suspended sent not available if multiple consecutive sentences are given at the same time and total more than the max available
What happens when a sentence of license is breached?
def is sent into custody for the remainder of the period
What happens when a suspended custodial sentence is breached?
Court may:
1. activate custodial sent
2. activate reduced term
3. amend requirements of the sent
4. extend the period of suspension
What happens when a community sentence is breached?
- order can be amended or more terms added
- revocation of order
- immediate custody sentence (in this case; the community sentence is revoked)
What is a Newton hearing?
A Newton hearing occurs when the defendant has pleaded guilty to the offence, but on the basis of a different version of facts from that of the prosecution and the Court has concluded that the factual differences would make a material difference to the sentence imposed
(both sides agree on culpability and disagree on facts)
If pros wins then guilty plea credit is lost
if def wins then guilty plea credit is retained
How long does a def have to appeal a MC sentence?
15 working days (by written notice)
MC cant deny appeal and the appeal is ONLY against sentence (unless case stated)
What appellate rights does a prosecution have?
From MC to CC: no appeal
From MC to HC (divisional court): legal pts/juris (21 days)
From CC to CoA: appeal on ONLY rulings made by the judge
On what grounds can an appeal to the CoA from CC be made?
1.wrong in law
2. wrong in principle
3. manifestly excessive
When can a Youth Court decline jurisdiction?
- max sentence is insufficient (sentence powers are similar to adult court)
AND - a sentence of long-term detention will be appropriate
MUST conclude a real prospect of custodial sentence of substantially more than 2 years
Who all are entitled to free legal advice?
ALL suspects are entitled to free telephone legal advice (unless they choose to pay)
BUT DSCC decides if in person advice is needed
When does a Court have discretion to exclude evidence?
When it would have an unfair effect on the proceedings
Breaches that may lead to evidence excluded for unfairness include illegal searches, improperly obtained identification evidence, and improperly conducted covert surveillance
(evidence may be accepted by Court as it is discretionary and NOT mandatory to exclude this evidence)
What elements are included in the caution that should be administered at the outset of the interview?
The caution sets out the three fundamental facts relating to interviews:
the suspect has the right to silence,
exercising that right may result in an adverse inference being drawn at trial,
and the interview is recorded in order for it to be used as evidence
“You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”.
When can adverse inferences be drawn?
- fact upon charge (lack of explanation of fact-triggered on putting forward explanation on charge)
- Evi at trial
- Object, substance or mark (found on def at time of arrest)
- Presence at scene
To impose a custodial sentence, what must the court find?
The offence is so serious that neither a community order nor a fine can be justified
What are the tests for a legal representation order?
- Means test
- Interest of justice test (seriousness and nature of offence)
Can a sol ask leading qs in examination in chief?
Yes
ONLY on background and agreed matters.
It is not generally permissible to ask leading questions during examination-in-chief. However, on background matters (like the defendant’s address) and agreed issues, it is permissible to ask leading questions. An advocate can settle a witness into giving evidence by starting them with some of these agreed issues before moving into contentious areas.
How many bail applications can a def make to a court?
A court must consider bail at each hearing, but a defendant may make only one further bail application based on the same facts and submissions (so two applications in total to court and 1 to police)
EXCEPTION: a defendant may make an additional request for bail if there is a change of circumstance (for example, new evidence that weakens the prosecution case or a new bail address)
When can referral orders for youth offenders be made?
Court MUST make ref order: guilty plea to imprisonable offences and no conviction for imprisonable offences before (unless bench intends to impose custodial sent or absolute discharge)
MAY: guilty plea to some but not all offences or def has previously received ref order
CANNOT: pleads NOT GUILTY to ALL offences and is convicted after trial
Ref orders are avail to def b/w 10-17 years
What is the age threshold for detention and training order?
A detention and training order is the custodial sentence available to the Youth Court.
12-14: ONLY for persistent youth offenders (A persistent young offender is a defendant who has been sentenced on three occasions for an offence punishable by imprisonment)
15-17: seriousness + custodial sent likely
CANNOT be imposed on def aged 10-11
What is the max duration for which a def can be kept in police custody?
96 hours (4 days)
(relevant time is when the suspect arrives at the police station or when the suspect attends voluntarily then it is the time of arrest)
the suspect may be held for no longer than an additional 36 hours if a warrant for further detention is obtained from the Magistrates’ Court and an additional 24 hours if a second application is made and granted
When is there a presumption against granting release on bail?
In murder/rape cases
defendants generally have a right to bail, the presumption is reversed for defendants charged with murder-the presumption is against release instead of in favour of release
In such cases only CC can grant bail (not MC)
Bail application must be made to CC within 48 hours of appearing before MC
In which court is a bail application on charges of murder heard?
before a CC judge ONLY
Can CoA increase a sentence by CC?
No
The Court of Appeal can quash any sentence imposed by the Crown Court and impose any sentence it deems appropriate. However, the Court of Appeal cannot exceed the sentence imposed by the Crown Court on an appeal against sentence by the defendant
A defendant is standing trial in the Crown Court on a charge of actual bodily harm (‘ABH’) against her partner. The defendant has a history of domestic violence convictions. As a result, the prosecution seek to adduce her relevant previous convictions. The defence have made a counter application that the evidence should be excluded.
How will the court decide whether to grant the defence application to exclude the previous convictions?
When evidence is sought to be adduced under the bad character evidence gateways of ‘an important matter in issue between the prosecution and defence’ or ‘the defendant attacked another’s character’, the court MUST not admit the evidence if: (
1) the defence make an application to exclude it, and
(2) it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.
The gateway of ‘an important matter in issue between the prosecution and defence’ permits admission of bad character evidence on the basis of propensity to commit similar types of offences.
How long can a right to inform someone of arrest be delayed?
36 hours
The suspect is arrested an either way or indictable only offence.
A police officer of the rank of inspector or higher (note difference with legal advice delay where Supri or above approves) approves the delay.
There are reasonable grounds to believe exercise of the right will lead to interference with evidence, interference with others, alerting other suspects, or hindering the recovery of property related to the offence.
