Hearings Week7 Flashcards
S.222 CPA- Issue of Subpoena:
(1) A registrar, if requested to do so by a party to proceedings, is, subject to and in accordance with the rules, to issue to the person named any of the following subpoenas:
(a) a subpoena to give evidence,
(b) a subpoena for production,
(c) a subpoena both to give evidence and for production.
- Police can issue a subpoena to a person but must follow the rules.
S.223 CPA- Time for service of Subpoena:
(1) A subpoena must be served within a reasonable time and at least 5 days before the last day on which it must be complied with.
(2) A registrar may, on application by the party concerned, permit a subpoena to be served later than the time permitted by subsection (1). The later time must be endorsed on the subpoena by the registrar.
(3) A subpoena may be served by delivering a copy of the subpoena to the person named or in any other manner prescribed by the rules (SEE BELOW)
REG 6.4 LCR- Service of Subpoenas:
Service of a subpoena may be effected:
• Legal practitioner (with their consent) for the person, by leaving it at the relevant legal
practitioner’s address for service or by sending it to that address by post, facsimile or email.
• Inmate of a correctional centre, by leaving it with the general manager of the correctional
centre or by sending it by post or facsimile or other electronic transmission.
- Post or facsimile to the person’s business address, or residential address.
- Electronic communication to the person’s business or personal email address, or
- Personal service or if they refuses to accept it the subpoena, it may be served by putting it down in the person’s presence and telling the person the nature of the notice.
- Facsimile to the person’s business or residential address.
If Posted deemed served after 4 working days.
S.229 CPA- Action if not comply with subpoena:
Person can be arrested if they do not turn up for court after being subpoenaed.
281B CPA- Sensitive evidence
Anything that contains or displays an image of a person (the protected person) is sensitive evidence if:
(a) The image is obscene or indecent, or
(b) Providing a copy of the image to another person without the protected person’s
consent would interfere with the protected person’s privacy, or
(c) The image was taken after the death of the protected person.
An audio recording of a person committing an offence against another person (the protected
person) is sensitive evidence if:
(a) The contents of the audio recording are obscene or indecent, or
(b) Providing a copy of the audio recording to another person without the protected person’s consent would interfere with the protected person’s privacy.
Does not include obscene or indecent language.
S. 281C CPA- Accused person not entitled to copy of sensitive evidence:
- Accused is not entitled to receive a copy of anything reasonably considered to be sensitive evidence.
Where sensitive evidence is contained in a brief of evidence that requires service, Section 281D(1) permits the prosecution to serve a sensitive evidence notice outlining the evidence and details relating to when the evidence can be examined pursuant to the conditions imposed upon the accused by the prosecution (e.g. under supervision). It is an offence for those who are given access to sensitive evidence, to copy the evidence, give the thing to another or remove the thing
from the prosecution.
Annulment of conviction/re-opening of proceedings:
Part 2 of the Crimes (Appeal and Review) Act 2001 allows this;
• If an offender is convicted in their absence, they can appeal directly to the Local Court or to
the Minister. If the application for annulment is successful, the original conviction is quashed and the matter effectively reset. At this point, the matter is treated as if it were a fresh charge and the accused can enter a plea of either guilty or not guilty.
• Application can be made to the local court within 2 years of conviction
• Application can be made to the Minister within 2 years of conviction, the minister must
agree that there is doubt that the defendant was guilty or the defendants liability for a penalty. The minister will refer it to court (Must do so within 2 years of receiving the application).
• The local court can also decide to annul a conviction on their own if the proceeding was
heard in the absence of the accused.
• Local court must notify all parties of annulment, the time and place.
The local court will grant the application of annulment if;
(a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or
(b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or
(c) that, having regard to the circumstances of the case, it is in the interests of justice to do so.
If annulment is successful;
(1) On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed.
(2) The annulment of a conviction for an offence that has been heard together with
another offence for which a conviction has been made does not prejudice the conviction for the other offence.
(3) If a fine is annulled, any amount paid towards the fine is repayable to the person by whom it was paid.
Awarding of Costs:
Definition “Professional costs”:
Costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.
S.214 CPA- Limit on award of professional costs to accused person against prosecutor acting in public capacity:
(1) Professional costs are not to be awarded in favour of an accused person in summary
proceedings unless the court is satisfied as to any one or more of the following: (IPA Beer)
(a) Initiated proceedings without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,
(b) Prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the
accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,
(c) Alleged offence investigation was conducted in an unreasonable or improper manner,
(d) Because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.
S.216 CPA- Costs on adjournment:
This section relates in circumstances where a brief of evidence (or an important part of a brief of evidence) is NOT served in accordance with the court’s directions which necessitates the prosecution seeking for the matter to be adjourned potentially can bring about a costs order awarded to the defence against the prosecution.
Offender does not turn up:
Must be able to prove you served CAN as per Rule 5.12 of local court rules.
If the accused does not appear on the first or any subsequent date, the Court does have the power to determine (i.e. finalise) the matter although the court still has a discretion to impose an adjournment if it sees fit to do so.
When the Court deals with matters ex-parte (ie in the absence of the accused) it can proceed to conviction upon the use of the CAN alone.
REG.25 LCR- Local Court not to impose certain penalties if offender is absent (HCI SIGN).
(1) The Local Court must not make any of the following orders with respect to an absent offender:
(a) Home detention order,
(b) Community service order,
(c) Intensive correction order,
(d) Sentence of imprisonment,
(e) Intervention program order,
(f) Good behaviour bond,
(g) Non-association order or place restriction order.
(2) At any time after it finds an absent offender guilty of an offence or convicts an absent offender for an offence, the Local Court:
(a) May issue a warrant for the offender’s arrest or
(b) may authorise an authorised officer to issue a warrant for the offender’s arrest, for the purpose of having the offender brought before the Local Court for conviction and sentencing, or for sentencing, as the case requires
