Legal Flashcards
What are 3 police powers?
- The power to search property and a person
- The power to arrest
- The power to question
4 rules associated with carrying out a lawful arrest in Queensland
- Words – ‘you are under arrest’
- Touching the person to indicate control
- Indication reason for the arrest
- Police officer produces identification
what are indictable offences
Indictable offences:
- Indictable offences are criminal offences where the accused has the right to be tried before a jury in a higher court.
- They are more serious than summary offences
- Indictable offences attract more serious penalties
- Examples of an indictable offence include murder, manslaughter and drug trafficking
- Indictable offences are usually heard in the higher courts (e.g., Supreme Court)
what are non-indictable offences
Non-indictable offences:
- Non-indictable offences are less serious offences
- They usually attract less serious penalties (e.g., a fine)
- They are usually dealt with in the lower courts including the Magistrates Court
- These are minor in nature
- An example of a non-indictable offence is stealing
Processes for indictable offence in a criminal trial
- Mention (first hearing)
- Mention (second and further hearing)
- Committal call over
- Committal hearing
- Registry committals
- Full hand up committal without cross-examination
- A committal hearing
- Trial
Processes for non- indictable offence in a criminal trial
- Person commits alleged offence
- Police determine charge
- Police arrest person
- Person charged with offence (police arrange court appearance at earliest date)
- Person bailed to appear or remains in custody
- First court mention (magistrate grants or refuses bail, matter adjourned)
- A person seeks legal advice. Provides instructions (guilty or not guilty)
- Second court mention (person pleads guilty and is sentenced. Person pleads no guilty to minor offence. Allocated court date for call over or trial. A person foreshadows plea of not guilty to an indictable offence. Allocated court date for call over)
- Person tried for summary offence before a magistrate or process with committal process to go to district/supreme court
Describe the reasons that an accused may choose to have their case heard summarily.
- Likely delay if hearing proceeds to a higher court
- Increased legal costs for higher court
- No conviction for an indictable offence is recorded if heard in the Magistrates Court
- Penalty usually cannot be in excess of 3 years in jail
What is bail
- Bail is a written promise (or ‘undertaking’) to return to court
- You can apply for bail if you’re a defendant and you want to be released
What is the law regulating whether bail should be granted
- Is the accused likely to fail to appear in court or surrender into custody?
- Is the accused a danger to the safety or welfare of the public?
- Is the accused likely to interfere with witnesses or otherwise obstruct the course of justice?
Purpose of bail
The purpose of bail is to ensure that the accused re-appears in court either to face charges or be sentenced
Types of bail
- Watchhouse Bail. If you are arrested and charged with an offence, the Police may grant you watchhouse bail.
- Court bail. If the police refuse to grant you watchhouse bail, you may apply to the court to grant you bail
- Bail enlargements
Conditions of bail
- they promise to show up to their court date on time
- they are not a danger to themselves
- they are not danger to the community
- they wont interfear with witnesses
What are committal hearings?
- A Preliminary hearing where the prosecutor presents evidence against the accused to show that a prima facie (‘on the face of it’) case does exist.
- A hearing designed to test whether the evidence against the accused is strong enough for the matter to proceed before a judge and jury in the District or Supreme Court.
Advantages of a committal hearing
- The charges may be dismissed.
- A ‘no bill’ application may be accepted.
- Evidence may be uncovered at the committal hearing.
- Weaknesses may be discovered.
- Police get a chance to fix their case.
- Witnesses are ready for your cross-examination.
disadvantages of a committal hearing
- The Police gets a chance to fix its case.
- Witnesses are already prepared for your cross-examination during the trial.
- New evidence may be uncovered at the committal.
Key functions of juries in criminal trials
The role of the jury in both criminal and civil trials is to determine questions of fact and to apply the law, as stated by the judge, to those facts to reach a verdict. In criminal trials, the jury’s role is to determine guilt or otherwise.
Key roles of juries in criminal trials
- Jury is a fact-finding body (arbiter of fact)
- Must listen to all the evidence presented by both parties
- Consider the evidence
- Reach a decision based on the evidence
- There are 12 jurors for a criminal trial.
strength of jury trials
- Public Participation and Civic Responsibility
- Impartiality and Fairness
- Protection Against State Power
- Credibility and Public Confidence
- Diverse Perspectives
weakness of jury trials
- Lack of Legal Expertise
- Potential Biases and Media Influence
- Inconsistency and Unpredictability
- Expensive and takes up time
- Emotional Decision-Making and Stress
- Confidentiality Concerns
Fair trial rights/attributes associated with committal hearings include
- the right for an accused to avoid being put on a trial where a magistrate determines that there is insufficient evidence*
- the opportunity for an accused to know the case against them
- the opportunity to hear the sworn evidence of any witness required to testify at the committal hearing
- the opportunity to cross-examine a witness.
Admissibility of Evidence
The admission of evidence is governed by rules. One important rule is that evidence is not admissible unless it is relevant to an issue.
Inadmissible of evidence
Evidence that cannot be used in court is called ‘inadmissible evidence’.
Direct evidence
- the making of a statement (orally, in writing)
- lawyers from both parties seek to precent the best evidence available for the guidance of the court
- direct evidence can be used in a criminal trial (etc, assault. Direct evidence would be the testimony of a witness who actually saw the accused punch and kick the other person)
indirect evidence
- the evidence of fact which makes it probable then any other material
- the evidence is indirect, meaning the judge or jury must make an interference that another fact is true
- indirect evidence can be used in a criminal trial (etc, assault. the accused expressing a desire to ‘sort out’ the victim an hour before the incident. Further circumstantial evidence may be given by someone who saw the accused person leave a hotel room at the same time as the victim, only minutes before the incident took place)
