REVISION Flashcards
What are the sentencing options for a criminal matter in accordance with the the Crimes (Sentencing procedure) act?
- S5 custodial sentence
- S6 home detention
- S7 intensive correction order - periodic detention
- S8 community service (up to 500 hrs)
(Bonds) S9: good behaviour w/conviction S10: good behaviour w/dismissal S11: deferral for rehab and programs etc S12: suspended sentence)
- S14 and S15 A fine
- S17A non association orders
What is ‘Probative Value’?
It is a measurement of relevance. It is a judgement of the degree of relevance. Something that has a high degree of evidentiary weight will have a high degree of Probative Value.
What is a ‘Prejudicial Effect’?
It means the improper effect the evidence may have on the jury.
Section 138 of the Evidence Act relates to the exclusion of evidence on what basis?
1) evidence that was obtained;
a) Improperly or in contravention of an Australian Law.
b) in consequence of an impropriety or contravention of an Australian Law
In regards to evidence subject to a S138 Evidence application to exclude, what 2 part process must the court consider in deciding whether to include or exclude the evidence?
Part 1: The party seeking to exclude the evidence argues that the evidence was improperly or illegally obtained.
If the court finds it improperly or illegally obtained; they consider Part 2
Part 2: The court must consider;
- Probative value of the evidence
- The importance of the evidence to the case
- The gravity of the impropriety or contravention
- Whether the impropriety or contravention was contrary to UN civil or political rights
- whether any other proceeding has or is likely to be taken regarding the impropriety or contravention
- the difficulty of obtaining the evidence without impropriety or contravention
What does the term, ‘No bill” mean?
A ‘no bill’ is formal notification by the Crown that it does not intend to proceed with specific charges because:
- Evidence is NOT SUFFICIENT to establish each element of the offence.
- No reasonable PROSPECT OF CONVICTION by a reasonable jury properly instructed as to the law.
- There are discretionary reasons it would not be in the PUBLIC INTEREST to continue with the proceedings.
What does the term ‘ex-officio’ indictment mean?
Where the DPP charge indictable offences for which there has been no committal, or initiates proceedings in the District court that have been discharged at Committal.
What is the ‘Tribunal of Fact’?
The Jury
What is the ‘tribunal of law’?
The judiciary
What does the term ‘indemnity’ mean?
Refers to an agreement NOT to prosecute. Granted by the Attorney General.
What is an ‘undertaking’?
It is a promise by the Crown not to use an answer, statement or disclosure as evidence in a proceeding against an individual. Granted by the Attorney General.
What is ‘Circumstantial evidence’?
Evidence which establishes a fact by inference or indirectly.
What is ‘Facts in issue’?
The facts in issue in a criminal hearing: Are the proofs of the offence
What is ‘Direct Evidence’?
Evidence that establishes a fact itself without reference to any other fact.
What is Relevant evidence? (S55 evidence act)?
Evidence is relevant if it directly or circumstantially can prove the likelihood as to the existence of one or more proofs of an offence.
What is ‘reliability?
Reliability: is a measure of accuracy: Evidence that is reliable is more likely to be associated with the truth.
What is ‘Fairness’?
Fairness incorporates preventing a miscarriage of justice and is concerned with maintaining the integrity of the hearing.
What is a ‘prejudicial effect’?
It means the improper effect the evidence may have on the jury.
What does the term ‘double jeopardy’ mean?
As a general principle of law nobody can be punished again for the same matter, it can be argued at all stages of the criminal judicial process; including - prosecution, conviction and punishment.
What is an ‘abuse of process’?
The court’s procedures have been invoked for an improper purpose, or have been unjustifiably oppressive to one of the parties, or have brought the administration of Justice into disrepute.
What is a ‘Voire dire’?
It is a hearing to determine the admissibility of evidence, or the competency of a witness or juror.
What is a ‘Committal Proceeding’?
It is an enquiry at the local court to establish whether the prosecution has a reasonable prospect of conviction on available evidence before an indictable matter is referred to the district or supreme courts for trial.
What is ‘Disclosure’? ( Re the ODPP)
Law Enforcement officers have a duty to disclose to the DPP all relevant information, documents or other things obtained during an investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.
DPP Act S15A - Disclosures by law enforcement officers.
In accordance with section 138 of the Evidence Act 1995 - discretionary exclusionary rule; the EXCLUSION (PART 1) of the evidence depends on what?
- it requires proof; that on the Balance of Probabilities, the party seeking inclusion of the evidence, has acted in contravention of an Australian law or acted in a manner that amounts to impropriety.
- If the court finds that there was no contravention or impropriety: the application will be dismissed.
- If the court finds that there was: then they move to PART 2 of the test (Re probative value)
In accordance with section 138 of the Evidence Act 1995 - discretionary exclusionary rule; the INCLUSION (PART 2) of the evidence, after a finding it was unlawfully or improperly obtained, depends on what?
- That on the Balance of Probabilities, the party seeking inclusion of the evidence, establishes that the desirability of admitting the evidence outweighs the undesirability and therefor should be admitted.
The court will assess one or more of the following;
- the probative value
- the importance in the proceeding
- the gravity of the impropriety or contravention
- whether the impropriety or contravention was contrary to UN civil or political rights
- whether any other proceeding has or is likely to be taken re the impropriety or contravention
- the difficulty of obtaining the evidence without impropriety or contravention
In accordance with section 187 of the criminal procedure act: Under what circumstances may a court order a brief or part brief - need not be served?
- Compelling reasons for no service
- Could not be reasonably served
- Not required by rules to serve
What are the 5 standards of proof?
- Reasonable suspicion
- Reasonable belief
- Prima facie
- Balance of probabilities
- Beyond a reasonable doubt
What are the ODPP guidelines for withdrawing matters?
- Is there admissible evidence supporting each element / proof of the offence - can it establish prima facie.
- Is there a reasonable prospect of conviction by a reasonable jury under appropriate instruction.
- Is it in the public interest to proceed.
(Seriousness, triviality, technical nature, obscurity of law, counter-productive, special circumstances, maintain public confidence)
Who can elect to have a Table 2 offence dealt with in the district court?
Only the Prosecution.
Who can elect to have a Table 1 offence dealt with in District Court?
The Prosecution and The defence.
What are the 6 general trial principals?
1) Prosecution obliged to call all material and credible witnesses .
2) The defence may argue in certain instances that where the prosecution has failed to call a witness this is because that witness was unfavorable to the prosecution (Jones V Dunkel inference).
3) We don’t or the defence for that matter ‘own’ witnesses. The defence may approach the prosecution witnesses either before the hearing day or at court.
4) Accused doesn’t need to get in the box. -Not getting in the box is not a an admission of guilt.
5) If we can establish an accused has lied in Court then we can ask the court to infer a guilty conscience.
6) The defence can introduce evidence going to good character of the accused, normally we cannot introduce evidence of bad character (some exceptions).
What are the four offence categories and how are they dealt with?
Summary - matters CAN only be dealt with summarily at Local Court by a Magistrate.
Table 2 indictable offences - the offence is dealt with summarily in local court unless elected by the PROSECUTION to be dealt with as a strictly indictable matter.
Table 1 Indictable offences - the offence is dealt summarily at local court unless elected by the prosecution of defence to be dealt with as a strictly indictable offence.
Strictly indictable offence - MUST be dealt with on indictment in the district or Supreme Court.
Why would the defence like a committal hearing?
- Can convince Magistrate not enough to go to trial
- Find out what witnesses will say about the issue.
- Cross examine key witnesses which could highlight weaknesses in case.
What is Hearsay in accordance with Section 59 of the Evidence Act?
59)(1) evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.
In order to call evidence under section 65 evidence act, ‘maker unavailable’, what must you prove?
And what effect does it have if accepted at court?
- The maker is unavailable.
- Comply with notification service requirements as per Section 67.
- Show all reasonable attempts to have the witness attend.
- The evidence must of been perceived first hand by this witness.
If accepted: Available witness can give evidence of their initial conversation with the unavailable person.
In order to call evidence under section 66 evidence act, ‘maker available’, what must you prove?
And what effect does it have at court?
- The maker is available.
- The maker will be called in the proceedings.
- Memory was fresh at the time of making.
- Perceived first hand by witness.
Effect at court: Another witness who had a conversation with that person (maker) can give hearsay evidence relating to the identification of a person, place or thing; as identified by that person (maker)
In reference to ‘memory was fresh at the time of making’; summarise the findings of:
1) R v GRAHAM
And
2) R v ADAM
“In relation to appropriate time periods in which memory is considered ‘fresh’”
1) R v GRAHAM: “A question of degree, normally hours or days, not years.”
2) R v ADAM: “not limited to hours or days, flexibility is appropriate. 7 weeks is not seen as outside fresh memory.”
How does section 60 of the Evidence act, ‘hearsay for non hearsay purpose’ apply?
Section 60 - ‘Hearsay for non-hearsay purpose applies where we wish to use a previous representation NOT to prove the existence of a fact but for another purpose.
(such as reasonable suspicion for searches etc)
