criminal litigation

Question 1

Which police ranking can Custody Officer (C.O.)?

Answer 1

Sergeant

Question 2

Inspector can:
(POLICE RANKING)

Answer 2

• can delay rights to be incommunicado (but must allow when the risk goes/fades away)
• can conduct the custody review
• can be a c.o.

Question 3

When will ‘Review of detention’ take place?

Answer 3

First review not more than 6 hours after authorisation of detention THEN every 9 hours.
Relevant time = authorisation of detention

Question 4

Superintendent can:
(POLICE RANKING)

Answer 4

• confirm up to 36 of detention (+12h) (indictable offence)
  (can only delay AFTER 2nd review of detention (6+9+9) and BEFORE 24h is up)
  ( Relevant time = arrival at the station )
• delay right to consult a solicitor (indictable offence)
• can remove a solicitor from the interview

Question 5

If detention time limit should be extended over 36h since the relevant time, then:

Answer 5

must apply to Magistrates Court to obtain a ‘warrant of further detention’.
24+12+36+24 = 96

Question 6

First hearings when D° is on bail:

Answer 6

• 14 days if a guilty plea is expected in MC
• 182 days if indictable in CC

Question 7

PTPH takes place

Answer 7

Generally 28 days after allocation/sending to CC.

Question 8

Can VIPER be conducted without D°’s consent?

Answer 8

NO but if D does not consent, adverse inferences can be drawn.

Question 9

When should identification ‘ID’ procedure be conducted by the police?

Answer 9

if identification is in dispute/is an issue.
Police has obligation to conduct ID procedures arises when:
- suspect is known to police
- offence is eye witnessed
- suspect diputes being the person seen by eye-witness
=> it would be a breach of CODE D (and later evidence can be excluded s78)

Question 10

Covert procedure can be used when

Answer 10

as a last resort, if all procedures are considered & refused.

Question 11

When should the prosecution serve IDPC?

Answer 11

Max the beginning of the day of the first hearing.

Question 12

When does PTPH take place?

Answer 12

If case sent to CC or must be tried in the CC, usually after 28 days of being sent to CC.

Question 13

When should defence statement be served?

Answer 13

In CC = mandatory, within 28 days of P complying with the initial disclosure duty

In MC = voluntary, within 10 days of P complying with the initial disclosure duty

Question 14

Csq of not serving a defence statement

Answer 14

Only possible in MC not to serve.
If they do NOT serve, the defence CANNOT apply for ‘specific disclosure’ [s8 application].

Question 15

When can the D change their plea from NG to G?

Answer 15

ANYTIME BEFORE JURY RETURNS THEIR VERDICT

Question 16

When can the D change their plea from G to NG?

Answer 16

Anytime before sentencing BUT D must ask court for ‘leave’ (judge has discretion)

Question 17

Until when the duty to retain material by Prosecution lasts?

Answer 17

• D’s acquittal; or
• D’s conviction [non-custod]
• 6 months from the release from custody

Question 18

What needs to be filed for case prep management [CMC]?

Answer 18

• in MC, the PET form
• in CC, PTPH form

Question 19

Special applications for P’s disclosure duty

Answer 19

• specific disclosure (particular item) [when demanded, P must reply within 10 days in writing]
• TP disclosure (if TP refuses, issue summons)
• public interest immunity (ie. there is a risk of serious prejudice to an important public interest)

Question 20

When should notice of intention be served to call a defence witness?

Answer 20

• within 28 days in CC
• within 10 days in the MC

Question 21

When should evidence be served by P in the CC?

Answer 21

• 50 days if D is in custody
• 70 days if D is on bail

Question 22

When do confessions are admitted?

Answer 22

• if partly adverse to their case
• if fully confessed

Question 23

Skeleton arguments by defence - time limits

Answer 23

MC: min 10 days before trial & prosecution replied within 5 days

CC: prior to trial or at the time of, before the opening speech of P.

Question 24

At what stage exclusion of confession can be initiated

Answer 24

in MC: s76 application is a preliminary issue
but s78 applications can be heard at a later stage.

in CC a voir dire will be required both for s76 and s78 applications

Question 25

when does voir dire become a requirement?

Answer 25

only required if a factual matter relating to the substance of legal argument requires resolution. If background facts are agreed, no voir dire will take place.

Question 26

When should TURNBULL direction be given by the judge to the jury?

Answer 26

the case rests wholly or substantially on the ID evidence and; 1-judge assessed the quality of the ID evidence using ADVOKATE and decided it is of good quality. OR 2- decided it was poor quality but there are supporting evidences

Question 27

When can D's spouse become a compellable witness?

Answer 27

1- is competent 2- compellable by P only if # domestic violence # child abuse, sex offence, attempts to against child under 16 y.o.

Question 28

Loss of control limitations

Answer 28

* considered desire for revenge (planned/premeditated) * excuse to use violence (not enough that D started it to qualify as an excuse) * sexual infidelity exceptions to SI: o was in the background, not the true or sole trigger (jury to have whole story) o there hasn’t been SI, someone lied/made it up to taunt D o SI has not taken place yet * attempted murder

Question 29

BoP for loss of control and diminished responsibility

Answer 29

The prosecution proves beyond reasonable doubt when loss of control once the issue is raised BUT for diminished responsibility it is the defence which proves on balance of probabilities that the partial defence applies.

Question 30

Diminished responsibility & intoxication If the D was intoxicated at the time of the killing, the jury should then ask themselves:

Answer 30

has the defendant satisfied you that, despite the drink, (1) he was suffering from mental abnormality; and (2) his mental abnormality substantially impaired his mental responsibility for his fatal acts?' Alcohol dependency syndrome (ADS) If the defendant’s AMF arises from the ‘ADS’: * D must have an AMF- at the time of the killing due to ADS. Factors to be considered include the extent and severity of the ADS. * AMF must arise from a recognised medical condition- the ADS. * AMF must have substantially impaired the defendant's ability to do one of the things in s 2(1A). * AMF must provide an explanation for D’s conduct, even if it is not the only cause, s 2(1B).