Pre Trial Procedures Flashcards
Bail, bail justice
Bail is the release of an accused person from legal custody on the understanding that he or she will appear at their hearing or trial. Bail may be granted at various stages of the criminal process – at the time of arrest, during the trial and while awaiting sentencing or an appeal.
Bail can be granted by a senior police officer, a bail justice or a court. A bail justice works in a voluntary capacity and is a person who has been appointed to deal with bail applications. They are required to undergo training, abide by a code of conduct and apply for reappointment every five years.
Applying for bail when remanded in custody, bail justice
When a person has been arrested and charged with a serious criminal offence, the police can release the person on bail until the case goes to court or the person can be refused bail and remanded in custody. A remanded person has the right to make a bail application to a court – usually the Magistrates’ Court. A bail justice determines bail applications outside normal court hours. The bail justice will attend the police station and make a decision. If the bail justice determines the person does not meet the criteria for bail, then the person remains in police custody but must be taken before the next available court sitting.
Why bail is usually granted, when bail is refused
Bail is usually granted because people should always be treated as innocent until proven guilty. The police and the courts are therefore reluctant to retain a person in custody unless absolutely necessary. According to S4 of the Bail Act 1977 (Vic.), as amended by the Criminal Procedure Act 2009 (Vic.), bail may be refused where the accused is:
• charged with murder or treason (although bail is given in some exceptional circumstances)
• charged with drug trafficking under the Drugs, Poisons and Controlled Substances Act 1981 (Vic.) or
the Customs Act 1901 (Cth) (unless there are exceptional circumstances or the amount of the drug
is less than the prescribed amount)
• already in custody for another crime
• considered to pose an unacceptable risk to society or is likely to:
– abscond
– commit an offence while on bail
– endanger the safety or welfare of members of the public
– interfere with witnesses or otherwise obstruct the course of justice in relation to themselves
or to others.
In addition, a court will refuse bail if the accused is charged with the following crimes, unless the accused can show a reason why their detention in custody is not justified:
• an indictable offence that is alleged to have been committed while he or she was at large awaiting
trial for another indictable offence
• a stalking or family violence offence and the accused has been convicted of a similar offence in
the previous 10 years, or the court is satisfied that the accused used or threatened to use violence
against the victim in the current case
• aggravated burglary, or another indictable offence in which it is alleged that the accused used a
firearm, offensive weapon or explosive
• arson causing death
• drug offences.
Surety
Most accused are granted bail and released on their own undertaking (a promise to appear in court when required). Alternatively the accused may be released if a surety (a family member or friend) promises to pay a sum of money if the accused fails to attend court.
Conditions of bail, examples, it is an offence to
Conditions may be attached when bail is granted, whether a surety has promised to pay a sum of money or on the undertaking of the accused. Bail conditions are tailored to suit the accused and may require him or her to make a deposit of money, live at a particular address, report to a police station on a regular basis, stay away from a victim or witnesses, abstain from alcohol or drug use, surrender his or her passport, comply with a curfew and/or attend support services.
It is a further offence (punishable by a fine of 30 penalty units or three months’ imprisonment) for a person on bail to commit an indictable offence or to contravene a bail condition without reasonable excuse, other than those conditions that require attendance and participation in bail support services. An arrest warrant is issued if the person does not appear for their court date.
Remand, purpose, what happens if bail is refused or a conviction
Remand is the holding of a suspect in custody until the case comes to trial, or until bail is granted. The purpose of remand is to protect the community from someone who may reoffend and to ensure that the suspect appears in court for trial.If bail is refused, or the person cannot meet the requirements of bail, the person will be held in custody until the case is ready for trial. If the person is convicted and imprisoned at their trial, then the time spent in remand will count towards the sentence served.
Committal proceeding
A committal proceeding is used for indictable offences that will go to trial in the County Court or Supreme Court. It may involve different types of hearings in the Magistrates’ Court, which determine whether a case is ready for trial.
5 hearings that may be held in a committal proceeding
Filing hearing Compulsory examination hearing Committal mention hearing Committal hearing Special mention hearing
Fling hearing
A filing hearing is the first step in a committal proceeding for any indictable
offence that must go to trial or cases where the accused or magistrate prefers to have the matter determined in a superior court. At this hearing the Magistrates’ Court fixes a date for a committal mention hearing, fixes a time for the service of a hand-up brief and makes any other determination in relation to the progress of the case.
Compulsory examination hearing
The prosecution can request a special hearing to compel reluctant witnesses to provide evidence. The witnesses’ oral evidence is recorded by way of an examination-in-chief and is not cross-examined at this time. This step assists the prosecution to provide all witness statements to the accused in the hand-up brief.
Four things considered at a committal mention hearing
– the accused has taken reasonable steps to obtain legal representation
– witnesses will give oral evidence
– the case should be heard summarily
– other orders or directions are required.
Case directions notice, committal case conference
Before the committal mention hearing, the parties are required to discuss the case and prepare a joint case directions notice which outlines the outcome of the discussions. In addition, the court may direct the parties to appear at a committal case conference where informal discussions are held with a magistrate in an attempt to resolve issues and eliminate lengthy delays.
Accused plea at committal mention hearing
As a result of these discussions, the accused may decide to plead guilty at the committal mention hearing. The magistrate will then conduct the committal hearing and the early guilty plea will become a consideration in sentencing at the trial. If the accused pleads not guilty, the magistrate will fix a date for a committal hearing and determine any objections to the disclosure of material.
Committal hearing
The committal hearing relies heavily on the material contained in the hand-up-brief, which is served on the accused before the hearing. However, if leave has been granted for witnesses to be cross-examined, selected witnesses will attend court to give oral evidence. The prosecution and the accused’s counsel present evidence, make their submissions in written form and question the witnesses. The witnesses are examined-in-chief, cross-examined and re-examined. Following this, the court determines whether the police evidence is of sufficient weight to support a conviction by a jury at trial. If it is decided that the evidence is of sufficient weight, a prima facie case exists to send the accused to trial. The accused will either be held on remand or released on bail until the date of trial. If the court finds the evidence will not support a conviction at trial, the accused is released subject to the discovery of additional evidence.
