Practicals - Legislation

Question 1

Consideration of just cause for continued detention Risks courts must take into account…

Answer 1

s8(1) BA2000 The court must take into account -

a) whether there is a risk that:

i) the defendant may fail to appear in court OR
ii) the defendant may interfere with witnesses or evidence OR
iii) the defendant may offend while on bail

b) any matter that would make it unjust to detain the defendant.

Question 2

8 things the courts may take into account when considering bail…

Answer 2

s8(2) Bail Act 2000 The Court may take into account -

1. Any other special matter relevant in the particular circumstances
2. Character and past conduct of the defendant, in particular proven criminal behaviour
3. Nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind
4. Seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed
5. Strength of evidence and the probability of conviction or otherwise
6. The likely length of time before the matter comes to hearing/trial
7. The possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody
8. Whether the defendant has a history of offending while on bail, or breaching court orders, including court-imposed bail conditions

Question 3

What must be satisfied for a warrant to remove a child or young person is issued?

Answer 3

s40 CYPFS89 Warrant to remove child if RGTB that the CYP is…

• suffering or likely to suffer ill-treatment, serious neglect, abuse, serious deprivation or serious harm; OR
• is so seriously disturbed as to cause harm to themselves or any other person, or serious damage to property

Question 4

What are the powers under a s40 CYPFA89 warrant?

Answer 4

Authorised by warrant to search for any child or young person may—

• Enter and search, by force if necessary
• Remove or detain, by force if necessary, the CYP and place the CYP in the custody of the [chief executive]; OR
• Where the CYP is in a hospital, direct the Medical Superintendent of that hospital to keep that CYP in that hospital.

Question 5

CYP Search WOW - Powers

Answer 5

s42 CYPFA89 RGTB that it is critically necessary to protect a CYP from injury or death may, without warrant,—

• Enter and search, by force if necessary
• Remove or detain, by force if necessary, the CYP and place the CYP in the custody of the [chief executive]

Question 6

CYP Search WOW - Obligations

Answer 6

42(2) On first entering any premise, and if requested, at any subsequent time, produce evidence of identity and disclose that those powers are being exercised under this section.

42(3) Within 3 days forward to the Commissioner of Police a report on the exercise of the power and the circumstances.

Question 7

Arrest of child or young person without warrant - what must be satisfied?

Answer 7

s214 CYPFA89 Be satisfied, on reasonable grounds,— that it is necessary to arrest that CYP without warrant for the purpose of:

• Ensuring the appearance of the CYP at Court OR
• Preventing that CYP from committing further offences OR
• Preventing interference with any witnesses or evidence AND
• Summons would not achieve that purpose.

Also… K9 for category 3 or 4 offences AND arrest is required in public interest.

Question 8

What are obligations under s214 CYPFA 89?

Answer 8

Within 3 days notify the Commissioner of the arrest and circumstances surrounding the arrest.

Question 9

What are a CYPs rights to be informed before questioning?

Answer 9

s215 CYPFA89 If Power of arrest exists:

• That the CYP may be arrested if, by refusing to give his or her name and address for a summons AND
• CYP is not obliged to accompany Police to any place for the purpose of being questioned, AND
• If the CYP consents to do so, that he or she may withdraw that consent at any time; AND
• That the CYP is under no obligation to make or give any statement; AND
• That if the CYP consents to make or give a statement, that consent may be withdrawn at any time; AND
• That any statement made or given may be used in evidence in any proceedings; AND
• That the child or young person is entitled to consult with, and make or give any statement in the presence of, a barrister or solicitor and any nominated person

s218 Explanation given in a manner and in language that is appropriate to the age and level of understanding

Question 10

Who can be nominated and who may be refused as a NP?

Answer 10

s214 CYPFA89

The CYP may nominate:

• A parent or guardian of the CYP
• An adult member of the family
• Any other adult selected by the CYP
• If the CYP refuses or fails to nominate any person, any adult (not Police) nominated by Police.

Not allowed if:

• RGTB that the NP would attempt, or would be likely to attempt, to pervert the course of justice
• Cannot be located with reasonable diligence, or will not be available within a period of time that is reasonable

Question 11

List the standard information that must be fully disclosed?

Answer 11

s13 CDA08 Must disclose as soon as practicable after a not guilty plea the following:

• a copy of any statement made by a prosecution witness
• a copy of any brief of evidence that has been prepared in relation to a prosecution witness
• the name and details (if allowed) of people gave relevant information and whom the prosecutor does not intend to call as a witness
• any written account of the interview, whether signed or unsigned, and any other record of the interview
• any statement made to the prosecutor by the person
• any convictions of a prosecution witness that may affect the credibility of that witness
• a list of all exhibits that the prosecutor proposes to have introduced as evidence as part of the case for the prosecution
• a list of all relevant exhibits in the possession of the prosecutor that the prosecutor does not propose to have introduced as evidence
• a copy of any information supplied to the prosecutor in connection with expert witness or witnesses; and
• a copy of any relevant information supplied to the prosecutor by a person or persons whom the prosecutor considered calling to give evidence as an expert witness or witnesses, but elected not to do so.

Question 12

Define - Hearsay Evidence - Hostile Witness - Statement

Answer 12

s4 EA06

Hearsay statement means a statement that— (a) was made by a person other than a witness; and (b) is offered in evidence at the proceeding to prove the truth of its contents

Hostile, in relation to a witness, means that the witness— (a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or (b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or (c) refuses to answer questions or deliberately withholds evidence

Statement means— (a) a spoken or written assertion by a person of any matter; or (b) non-verbal conduct of a person that is intended by that person as an assertion of any matter

Question 13

Fundamental principle that relevant evidence admissible

Answer 13

(1) All relevant evidence is admissible in a proceeding except evidence that is—

(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

Question 14

General exclusion rule?

Answer 14

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—

(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.

Question 15

Previous consistent statements rule?

Answer 15

(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
b) the statement provides the court with information that the witness is unable to recall.

Question 16

Rules of evidence of sexual experience of complainants in sexual cases?

Answer 16

• No evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
• No evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
• The Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.

Question 17

What are the good reasons for not following a formal ID procedure?

Answer 17

s45(4) EA06

• Refusal of person to be identified to take part in procedure (i.e. refuses line-up or photograph to be taken)
• Singular appearance of person to be identified (that cannot be disguised)
• Substantial change in person’s appearance after offence and before practical to conduct procedure
• No officer involved could reasonably anticipate identity of defendant to be issue at trial
• If person has already been identified as alleged to have committed the offence
• If person has already been identified as result of chance meeting between person who identified and person alleged to have committed the offence

Question 18

Corroboration of evidence?

Answer 18

(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of—

(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).

Question 19

Search and Surveillance Act 2012 s15 - Entry without warrant to find and avoid loss of evidential material relating to certain offences

Answer 19

s15: an enforcement officer can enter and search a premises without a warrant if he has RGTS an offence punishable by 14yrs imprisonment or more has been committed and RGTB that evidential material relating to that offence is within the premises and is likely to be CADD if entry is delayed

Question 20

Search and Surveillance Act 2012 s16 - Searching people in public place without warrant for evidential material relating to certain offences

Answer 20

s16: an enforcement officer can stop and search a person in a public place if he has RGTS an offence punishable by 14yrs imprisonment or more has been committed and RGTB that the person is in possession of evidential material in relation to an offence punishable by 14yrs imprisonment

Question 21

Search and Surveillance Act 2012 s17 - Warrantless entry and search of vehicle for evidential material relating to certain offences

Answer 21

s17: an enforcement officer can enter and search a vehicle in a public place if he has RGTS an offence punishable by 14yrs imprisonment or more has been committed and RGTB that the vehicle contains evidential material in relation to an offence punishable by 14yrs imprisonment

Question 22

Search and Surveillance Act 2012 s45 - Restrictions on some trespass surveillance and use of interception device

Answer 22

s45: nothing authorises any enforcement officer to undertake any trespass surveillance or use an interception device, except in order to obtain evidential material in relation to an offence punishable by a term of imprisonment of 7 years or more, or against section 44, 45, 50, 51, 54, 55 of the Arms Act 1983

Can not undertake trespass surveillance or use intercept device unless serious offence.

Question 23

Search and Surveillance Act 2012 s46 - Activities for which surveillance device warrant required

Answer 23

s46: an enforcement officer must obtain a surveillance device warrant if he/she wishes to:

• Use an interception device to intercept private communication; or
• Use a tracking device, except where the tracking device is used solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with; and the installation does not involve trespass to land or goods; or
• Observe private activity in the curtilage of private premises and record that observation with a visual surveillance device, and the duration of the observation for the purpose of a single investigation or connected series of investigations exceeds 3 hours in any 24 hour period, or 8 hours in total

Question 24

Search and Surveillance Act 2012 s47 - Some activities that do not require warrant under this subpart

Answer 24

s47: an enforcement officer does not require a warrant if they are lawfully in private premises and recording what they see or hear there without the use of a surveillance device. A covert recording of voluntary oral communication can be made between 2 or more persons with the consent of at least 1 of them.

Question 25

s117 Search and Surveillance Act 2012

Answer 25

s117: if application for a search warrant has been made or is about to be made and the search warrant has not been granted or refused, an enforcement officer present at the place or vehicle may enter and secure the place, vehicle or other thing and secure any item/s found at that place if he has reasonable grounds to believe evidential material is likely to be concealed, altered, destroyed, damaged, or removed before the search warrant has been refused or granted and is available for execution, and for no longer than six hours

Question 26

Search and Surveillance Act 2012 123 - Seizure of items in plain view

Answer 26

s123: an enforcement officer who is executing a search warrant, or is lawfully in any place or vehicle, or is conducting a lawful search of a person may seize any item/s if the officer has RGTB he/she could have seized the item/s under any search warrant or under any other search power exercisable under this Act or any other enactment.

Question 27

Search and Surveillance Act 2012 Definitions

• Surveillance device
• Visual surveillance device
• Interception device
• Tracking device

Answer 27

• Surveillance device: any one or more of the following – interception device, tracking device, visual surveillance device
• Visual surveillance device: any device capable of being used to observe, or observe and record a private activity; does not include objects used for the correction of subnormal vision to no better than normal vision
• Interception device: any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment or other device used or capable of being used to intercept or record a private communication; but does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing
• Tracking device: a device that may be used to help ascertain the location of a thing or person, or whether a thing has been opened, tampered with, or in some other way dealt with

Question 28

Define specified offence - s29 VRA02

Answer 28

1. An offence of a sexual nature
2. An offence of serious assault that does not come within paragraph a)
3. An offence that has resulted in serious injury to, or death of a person, or in a person becoming incapable
4. An offence of another kind that has led to the victim having ongoing fears, on reasonable grounds, for their safety or security.

Question 29

Victim’s views about release on bail of accused or offender - VRA02 s30

Answer 29

Victim’s views on bail (s30): applies if person is victim of specified offence and the person accused of the offence applies to a court for release on bail. If this section applies the prosecutor must make all reasonable efforts to ascertain the victim’s views about the accused or their release on bail, and inform the court of those views.

Question 30

Police to give victims of specified offences information about right to ask for notice and to appoint representative - VRA02 s31

Answer 30

VNR (s31): victims of specified offences have a right to be informed and to request their placement, or that of a representative, on the Victim Notification Register.

Question 31

Police to give Secretary information about victims of specified offences - VRA02 s32

Answer 31

Secretary of Justice to be informed (s32): as soon as practicable after it is determined a victim is the victim of a specified offence, Commissioner of Police must give the Secretary the name and address of the victim and any representative.

Question 32

s87 EA06 - Victims Address

Answer 32

In any proceeding the precise particulars of a victim’s address may not, without the judge’s permission, be the subject of any question, included in any evidence given, included in any statement or remark.

Question 33

s88 EA06 - complainants occupation

Answer 33

In a sexual case, except with the permission of the judge, no question may be put or evidence given concerning the complainant’s occupation, and no statement or remark made concerning the same.

Question 34

Persons allowed to be present if oral evidence is taken from complainant in case of a sexual nature.

Answer 34

PAJAMAPAD

• Prosecutor
• Any lawyer engaged in the proceedings
• Judge
• Any officer of the Court
• Member of media as defined in s198(2) (Criminal Procedure Act 2011)
• Any person whose presence is requested by the complainant
• Police employee O/C
• Any person expressly permitted by the Judge to be present
• Defendant (and custodian)

Question 35

What is the formal procedure for obtaining visual identification evidence?

Answer 35

s45(3) EA06

• Undertaken as soon as practicable after offence is reported
• Person to be identified compared to 7 others similar in appearance
• No indication to be given to the person as to who is to be identified
• Person is informed that person to be identified may or may not be present