Part 3.3 - Summary Hearing Divs 7-10 - Division 7 – Closing addresses; Division 8 – Determination of charge; Division 9 – Criminal record; Division 10 – Non-appearance of party Flashcards
S73 – P’s closing address
73(1)(a) After close of all evidence and (b) before CA of A under s 74, if any,
MC may grant leave, if appropriate, to P to address court for purpose of summing up evidence.
(2) MC can limit length.
S74 – A’s closing address
74(1)(a) After close of all evidence and (b) after CA of P under s 73, if any,
MC may grant leave, if appropriate, to A to address court for purpose of summing up evidence.
(2) MC can limit length.
S75 - Supplementry address by P
(1) If, in the CA of the A under s 74, A asserts facts which are not supported by any evidence that is before the MC, the court may grant leave to the P to make a supplementary address to the court
(2) Confined to replying to unsubstantiated assertion
(3) MC may limit length of supp. address
76 Option of finding of attempt
In summary hearing under s 29(1) of a charge for an indictable offence, if the MC finds the accused NG of the offence charged, may find A guilty of having attempted to commit offence charged.
S77 Crim Record
77(1) Re each previous conviction, CR must contain
(a) date of the PC (b) Court where PC took place (c) place of sitting (d) offence committed (e) sentence imposed
(2) If OR. Sentences taken into account when a sentence imposed re: a PC, CR may contain a statement to that effect and the offences taken into account, including the number of offences.
(2A) Re each Infringement conviction, must contain
(a) date on which infring. notice took effect as conviction
(b) offence specified in the notice
(c) amount specified in notice as penalty
(d) any other resulting penalty (eg, cancellation, disqual period)
(3) CR inadmissible as evidence against person to whom it relates unless CR is signed by
(a) popo (b) Crown Prosecutor (c) member of staff of OPP who is LP (d) if commenced by informant (i) LP for informant, (ii) public official
S78 - Proof of previous convictions and infringement convictions by criminal record
78(1) – if person found guilty at SH, pros may give MC CR
(2) court must ask person whether admits priors in CR
(3) if person admits to PC or IC, may sentence accordingly
(4) if does not admit, P may lead evidence to prove priors
(5) LP may, on behalf of person, admit prior set out in CR
Non-appearance of informant 79
If informant non-appear on hearing date, MC can (a) dismiss charge or (b) adjourn on any terms considers appropriate.
Non-appearance of accused charged with summary offence 80
Summary offences
(1) If A does not appear in answer to summons, MC may:
● (a) If served by ord-service, order it be served personally
● (b) Issue warrant to arrest the A
● (c) Proceed to hear and determine charge in absence of A.
● (d) Adjourn on any terms considered appropriate
(2) If A Fails to attend in answer to bail, MC may:
● (a) Hear and determine charge in absence
● (b) Adjourn on “ “
w/o prej. to consequences of failure to comply w. bail undertaking
(3) Court can dispense with any requirement imposed by this part if hearing or determining charge under (1)(c) or (2)(a).
Non-appearance of accused charged with IO 81 (can issue warrant)
If an A does not appear in answer to a summons to answer to a charge for IO which was served in accordance with this Act, the MC may issue a warrant to arrest the A.
Non-appearance of corp-accused charged with IO 82 (can determine summary/IOTS charge in absence)
“” “”, MC may hear and determine charge summarily in their absence if (a) court satisfied charge and return date brought to A’s notice; (b) court considers charge OK to be IOTS
even though A had not consented to summary hearing.
(2) Court can dispense with any requirement imposed by this part if hearing or determining charge under (1)
(3) If the MC finds a corporate accused guilty in its absence, the court must cause written notice of any sentence imposed by it to be served on the accused.
Admissibility of evidence in absence of accused where full brief served s83
(1)(a)-(b) If hearing in absence of A and the informant served the FB as they were meant to, following are admissible as if their contents were a record of evidence given orally:
● (c) Any statement a copy of which has been served in FB
● (d) Any ex/doc referred to in a statement which is admiss.
(2) But MC can rule inadmiss any part of the statement or doc etc.
(3) CR only admissible for purposes of sentencing, even if served in FB
(4) Does not limit MC power to hear / determine on basis of sworn or affirmed evidence of informant if FB not yet served.
Admissibility of evidence in absence of accused where PB served s84
(1)(a)-(b)-(c) If in hearing in absence of the accused and prelim brief was served as it was meant to be, 14 days before hearing, and MC considers that the matters in the PB disclose the offence charged, unless MC orders otherwise ((4) can rule any part inadmissible), the following are admissible in evidence despite the rule against hearsay:
● (d) Informant’s statement in the prelim brief
● (e) Any exhibit referred to in the informant’s statement.
(2) w/o limiting any MC power, if it considers matters set out in prelim brief do not disclose offence charged, can require informant to provide additional evidence.
(3) Additional evidence is inadmissible unless —
● (a) in the form of s 38 complying written statements; and
● (b) A copy of each statement has been served on A at least 14 days before MC considers additional evidence.
(5) CR when served in PB, only admissible for sentencing
(6) Does not limit MC power to hear / determine on basis of sworn or affirmed evidence of informant if prelim brief not yet served.
S85 - Non-app of Accsd - Infringmnts Act 2006
S85 - Non-app of Accsd - Infringmnts Act 2006
Proof of criminal record in absence of accused s86
(1)(a) If A is charged with a summ.off,; (b) allgd that A has PCs or ICs, there may be served on the A copy of their CR.
(2)(a)-(b) If MC finds A guilty in absentia and is satisfied the crim record was served on the accused 14 days before the hearings,
crim record is admissible only for the purposes of sentencing – it is evidence that (c) accused has the PCs and ICs set out in the CR and (d) is evidence of the particulars set out in the CR
Limitations on sentencing in absence of accused s87 (no prison, max 20PU fine, 50PU in aggregate, max rest/comp $2000, if wants more, must adjourn/issue warrant)
(1) Can’t make custodial order in absence of the A if finds A guilty.
(2) If MC finds accused guilty in their absence on basis of PB
(a) the court must not make an order under Part 3B of the Sentencing Act 1991 for a fine exceeding 20 penalty units and the total sum must not exceed in the aggregate 50 penalty units
(b) restitution/compo can’t exceed $2000
(3) If want to impose prohibited sentence, or order requiring A’s consent, (a) adjourn to enable A to attend or be brought before court to answer charge and (b) can issue warrant for arrest
