L4 - Criminal Procedure Flashcards
How do you commence a proceeding?
Under the criminal procedure of 2009 section 6:
– A criminal proceeding is commenced
A) by filing a charge sheet containing a charge with a registrar of the magistrates court; or
B) if the accused is arrested without a warrant and is released on bail, by filing a charge sheet containing a charge with a bail justice; or
C) if a summons is issued under section 14 at the time the charge sheet is signed
What are the requirements for a charge sheet?
A charge sheet must
– Be in writing; and
– Be signed by the informant personally; and
– Comply with schedule 1
Bonus case law:
– Fox V DPP (2022) VSCA 32.
What does schedule 1 refer to?
Schedule one refers to charges on charge sheet or indictment.
Clause 1 statement of offence
Clause 2 statement of particulars
Define statement of offence.
A charge must
– State the offence the accused is alleged to have committed; and
– Contain the particulars in a clearance with clause 2 that are necessary to give reasonable information as to the nature of the charge .
Define statement of particulars
– Subject to subclause (two), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.
– If a rule of law or a statute limits of particulars that are required to be given in a charge, nothing in this requires any more particulars than those required.
What is duplicity in law?
Where a single count alleges multiple offences.
What is duplicity in fact?
Where a single count refers to multiple incidents or transactions.
What are the time limits for filing a charge sheet?
For summary offences – section 7 (1)
Must be commenced within 12 months unless:
– Otherwise provided by another act; or
– Both the accused and the DPP consent.
Examples of other acts:
Summary drug offences – three years (section 45 drugs, poison and controlled substances act)
Disturbed religious worship – three months (section 21(2) summary offences act).
Indictable offences – section 7(2)
No time limit (unless provided by this or another act)
How do time limits for filing a charge sheet change when it comes to children?
Summary offence – must be commenced within six months after the date on which the offence is alleged to a being committed except where -
A) The court extends the time for commencement of the proceeding under section 344C; or
B) the child, after receiving legal advice, gives written consent and a police officer of or above the rank of Sgt consents to the proceeding being commenced after the expiry of that period.
What does section 8 of the criminal procedure act of 2009 deal with?
Deals with an order for the amendment of a charge sheet.
Does section 9 of the criminal procedure act 2009 deal with?
Section 9 deals with the errors etc. In a charge sheet.
What is a proper venue?
A) subject to paragraphs (ca), (dc) and (e), in relation to a criminal proceeding or a class of criminal proceeding. Means the mention court has been nominated by the chief magistrate under section 5A for the proceeding but in the absence of any such nomination is the mention court that is nearest to –
I) the place where the offence is alleged to have been committed; or
II) place of residence of the accused; and
B) subject to paragraphs (ca) and (e), in relation to a civil proceeding,
What is Section 14 of the Criminal Procedure Act?
Refers to a member of the police force or a public official being able to, after signing a charge sheet containing a charge issue a summons to answer to that charge.
What are the time constraints of Section 14 of the Criminal Procedure Act?
The police officer or public official must file the charge sheet and summons with the appropriate registrar within seven days after signing the charge sheet.
If this has not been complied with the court may strike out the charge.
What does IOTS stand for?
Indictable offences triable summarily.
Referred to in schedule 2.
What are the sentencing limits for the magistrates court?
Sentencing act 1991 – section 113
If convicted by the Magistrates’ court in a summary hearing of an indictable offence under section 28 (1) of the CPA the maximum term of imprisonment to which the court may sentence the offender is two years.
What does section 113B of the sentencing act 1991 refer to?
Must not impose on any person in respect of several offences cumulative sentences of imprisonment to take effect in succession for a term exceeding in the whole five years unless that term is expressly provided by an act.
What does joinder refer to?
Refers to the process where multiple charges are combined into a single case against an accused, or charges for the same offending against more than one accused being heard together.
What does severance refer to?
Severance is the court exercising its discretion to hear these charges separately. This discretion can be used where a trial for an accused is likely to be prejudiced, or there is some other reason it is desirable to do so.
Where is joinder and severance of charges referred to?
In the criminal procedure act of 2009
– Part 3.3, division one – joint or separate hearing of charges.
– Schedule one, clauses 5 and 6.
What is an exception to the rules of duplicity?
Course of conduct rule where multiple acts are treated as one offence because they’ve been committed so close in time and space they can be viewed as a single activity.
also rolled up charges, but can only happen when accused PG as they waive prohibition on duplicity.
