Criminal Law Flashcards
Crime: How long right to legal advice can be delayed:
up to 36 hours if:
-arrested on indictable only or either way offense;
-approved by superintendent or higher; and
-reasonable grounds to think delay is ness.
Crime: How long right to phone call can be delayed:
up to 36 hours if:
-arrested on indictable only or either way offense;
-approved by inspector or higher; and
-reasonable grounds to think delay is ness.
Crime: How long can suspect be in custody before charge:
- 24 hrs for no reason
- additional 12 hours (36 hrs total) if approved by superintendent and arrested on indictable only or either way offense
- additional 36 hours (72 hrs total) if approved by Magistrates Ct
- additional 24 hours (96 hrs total) if approved again by Magistrates Ct
Crime: When a case is sent to Crown Court from Magistrates Court, how long until the suspect has his first hearing in Crown Court?
28 days
Crime: Usually, courts MAY exclude bad character evidence if it would have an adverse effect on the fairness of the proceedings, but when MUST courts exclude bad character evidence?
When the bad character evidence is being introduced based on (1) an important matter in issue between the prosecution and defense (for ex: if P is trying to show that D has the propensity to commit similar offenses or to lie) or (2) the defendant attacked another’s character.
Crime: What is the causation test?
Factual: but for
Legal: more than minimal; substantial and no intervening cause
Crime: What is the recklessness test?
Suspect forsees a risk (subjective) and that is an unreasonable risk to take under the circumstances known to the defendant (objective)
Crime: Besides, intent to kill, what other intent qualifies for murder?
Intent to cause grievous bodily harm.
Note that indirect intent also qualifies: aka, defendent knew death or GBH was a virtual certainty
Crime: Who has the burden of proof to reduce murder to voluntary manslaughter?
- Diminished responsibility: defendant must prove on balance of probabilities
- Loss of control: defendant raises and brings evidence of loss of control, then prosecution must prove no loss of control beyond reasonable doubt
Crime: What sort of harm qualifies for ABH?
More than minimal; like a bruise
Crime: What sort of harm qualifies for GBH (s18 and s20)?
- s.18 - grevious harm - must have intent to do GBH
- s.20 - grevious harm - no need to show intent to do GBH
For example, suspect tries to punch victim X really hard. If suspect misses, then assault. If suspect grazes victim X, then battery. If victim X just gets a bruise, then ABH. If victim X falls and breaks a bone but prosecution can’t prove that suspect GBH, then GBH s.20. If victim X falls and breaks a bone and prosecution can prove that suspect wanted GBH, then GBH s.18. If victim X falls and dies, then depending on intent of suspect, then murder or involuntary manslaughter (unlawful act murder).
Crime: What’s the thing about theft you always forget?
That dishonesty threshold is objective. Even if suspect didn’t mean to mislead or take something, if they don’t fix the other person’s mistake and return the item, that’s objectively dishonest and is theft.
Crime: Can Ct of Appeals change sentence handed down by Crown Ct?
Yes, but cannot exceed the sentence.
Crime: Who can NOT be part of a conspiracy?
- The victim of the conspiracy
- Minors
- Spouses
Crime: Indictable only offenses
Murder
Manslaughter
S18 GBH
Robbery
Burglary (in certain instances)
Aggravated criminal damage/arson
Crime: Summary only offenses
Assault & battery
Criminal damage under $5000
Crime: What is the value threshold of theft offenses that Magistrate’s court cannot decline jurisdiction?
$200.00
Crime: If identification procedure is not followed (for ex, the suspect is not able to have attorney or friend present), can witness identification be excluded from trial?
Yes, but it’s discretionary
Crime: Suspects generally have a right to bail, when do they not?
- when an exception to the right to bail applies and
- there is a real prospect of jail time being imposed if convicted
Crime: Exceptions to right to bail
- there are substantial grounds to believe that the D would fail to surrender, commit further of the same offenses while on bail, interfere w/ witnesses or obstruct justice, commit an offense that causes injury or fear of injury against an associated person
- D is charged w/ an indictible or either-way offense and they were on bail at the time of the offense
- custody is for their own protection
- there is insufficient info to make a decision on bail; or
- they have failed to surrender or breached bail conditions on the same proceedings
Crime: Generally Ds charged with murder don’t get bail unless what applies
there is no significant risk that D would commit an offence likely to cause physical or mental injury to another person
Crime: How many bail applications can one D get?
up to 2, unless there’s a change in facts/circumstances
Crime: In what instances will D be sent to Crown Court automatically even if charged with an either way offense?
- the D or co-D is charged with an indictable only offense alongside the either way offense.
- this is a serious or complex fraud cause or involves child witnesses who should be protected (there’s better protections in the Crown ct)
Crime: Goodyear indication
D requests an indication of sentence before entering a plea. If judge agrees and gives indication and D pleads guilty, then judge is bound by their indication.
Crime: When does plea and trial preparation hearing take place?
28 days after case was sent from Magistrates’ ct
Crime: When does prosecution have to complete disclosure?
within 50 days (or 70 days if D is on bail).
Crime: When does defense have to file defense case statement?
within 28 days of prosecution’s disclosure.
Crime: If a case wholly or substantially relies on witness ID evidence, then the judge will determine whether the D should be acquitted based on the Turnbull guidelines. What are those?
ADVOKATE
Amount of time witness saw
Distance from suspect
Visibility at the time
Obstructions in the way
Known - suspect was known to witness
Any other reason to remember the suspect
Time between event and ID procedure
Errors in the witness’s statements over time
Crime: What is a Turnbull warning
If case relies on witness IDs of suspect, then judge must give a caution that mistaken witnesses can be convincing, the jury should consider all the circumstances and point out particular weaknesses with the ID evidence based on ADVOKATE
Crime: Who must prove that a D’s confession was coerced?
The prosecution; prosecution has to prove that there was no coercion beyond a reasonable doubt. Defense just has to raise the issue. If prosecution cannot prove beyond reasonable doubt that confession was not coerced, then confession MUST be excluded.
Crime: What is Voir dire
Ruling by judge without jury. Used for example to determine admissibility of a confession.
Crime: In what circumstances MUST evidence offered by the prosecution be excluded and when MAY evidence be excluded?
MUST: evidence is based on D’s mistake or coercion
MAY: when considering all the circumstances, the evidence would have an adverse effect on the fairness of the proceeding. Pretty high bar.
Crime: Deadline for prosecutor to serve notice that they want to introduce bad character evidence
10 business days
Crime: When MUST a judge give good character direction?
no prior convictions and no other bad character evidence that the prosecutor relies on.
Crime: Is a co-defendant compellable and competent?
For prosecution: Only if co-D has pleaded guilty or charges are dropped, then must testify
For defense: may testify, but doesn’t have to
Crime: Is a spouse compellable and competent?
For prosecution: may testify but doesn’t have to unless case involves assault or injury to child or spouse
For defense: MUST testify
Crime: Is a defendant compellable and competent?
For prosecution: NO
For defense: May testify, but doesn’t have to
Crime: What are aggravating factors that MUST be taken into account?
Previous convictions
Whether offense was commited while on bail
Racial or religious aggravation
Hostility based on sexual orientation, transgender identity or disability
Crime: What happens if a suspect breaches any parole conditions?
They are automatically returned to jail.
Crime: What is the maximum period that a jail sentence can be suspended?
2 years
Crime: Newton Hearing
Where D wants to plead guilty but wants to argue that certain facts are wrong. There is a Newton Hearing where witnesses are presented to decide the facts. If the D wins the Newton Hearing, they get to keep the 1/3rd discount for pleading guilty early. If D loses the Newton Hearing, they lose the 1/3rd discount for pleading guilty early.
For ex: I want to plead guilty to theft and battery, but I didn’t actually threaten the victim with a gun, it was just a fake gun. Hearing is held to determine whether I had a fake or real gun. If I win, then I get to keep my discount for pleading guilty. If I lose, then I lose my discount.
Crime: What crimes MUST be sent to crown court even if the D is a minor?
What crimes MAY be sent to crown court even if the D is a minor?
Youth is charged with murder, attempted murder or manslaughter. Or youth is jointly charged with an adult who is sent to crown ct for trial.
A ‘grave crime’ – such as robbery & rape. Youth ct needs to decide if their limited sentencing powers are adequate (basically, if the youth would probably be jailed for more than 2 years)
Crime: When a referral order MUST, MAY or CANNOT be made:
MUST: D pleads guilty to jailable offenses and has not been convicted of a jailable offense before
MAY: D pleads guilty to some but not all offenses, or D has previously received a referral order
CANNOT: D pleads not guilty and is convicted at trial (in that case a youth rehab order or detention and training order is more appropriate)
Crime: Age limit for detention and training order
Noone under 12 can go to juvi. Youths aged 12-14 can go to juvi only if they’ve been convicted on 3+ occasions for an jailable offense. Youths aged 15-17 can go to juvi if justified.
Crime: When is an omission a criminal act
When D had a duty to act and the D breached that duty by failing to act
For ex: under a statute (obligation to stop at scene of crime), special relationship (like parent-child), duty imposed by contract (police officer), D created a dangerous situation and is aware of having done so
Crime: In murder (and other result crimes), you need to look at whether D caused the result, what does that mean?
- But for test,
- D’s actions are more than minimal and
- no break in the chain of causation
Crime: What could cause a break in the chain of causation?
1. thin skull rule
2. medical treatment
3. third party’s actions
4. victim’s own acts
5. D’s act if a new act
6. natural event
- no
- only if so bad that the original injury is overshadowed
- only if free, deliberate and informed (third party tries to stop the bleeding from the gunshot wound, but accidentally causes them to bleed out; not a break)
- only if so daft as to be unforeseeable
- maybe
- yes if a reasonable person couldn’t have foreseen it
Crime: What are the specific intent crimes?
Attempt
Encouragement and assistance
Murder
Wounding or Causing GBH with intent (s18)
Theft
Robbery
Burglary
Fraud by False Representation
Crime: Mens rea for attempt
Intent to complete the crime attempted
Crime: Mens rea of Encouragement and Assistance
Intent that the crime encouraged or assisted would be committed