Week 1 Flashcards
Types of Bail Application
Detention - Initiated by Prosecutor
Release - Initiated by Defence
Vary - Initiated by interested party, can be either.
Bail Application Sections
Section 49: - Release Application
Section 50: - Detention Application
Section 51: - Variation Application
Where Can Police Make a Bail Decision?
Police Station
Hospital
Mental Health Facility
Police Review*
* Senior Police can review and vary the bail decision of another officer.
True or False: the court registrar may act as a bail authority
True
How Long Does a Bail Decision Last?
It is legislated to last until it is varied, revoked or substantive proceedings for the event conclude.
Section 40 Bail Act 2013
Stay of release decision if detention sought
Bail Decisions & Sections
Section 9: Release w/o bail,
Section 10: Dispense Bail,
Section 11: Refuse or Grant Bail
Show Cause offences and Section
Section 16B Bail Act 2013
Offences include: Murder, offences with life in prison, Sexual intercourse >16, ABH with intent to commit sexual intercourse >16 etc.
DPP v Tikomaimaleya [2015]
Supreme court decision that found if an offence is show cause, there is a two step process for a bail decision. First, why continued detention is unjustified & then the bail risk assessment model
Section 33 Interpretation Act 1987
Regard to be had to the purposes or objects of Acts and statutory rules
Types of Precedent
Original Precedent - creates and applies a new rule
Declaratory Precedent - merely the application of an existing rule of law
Authoritative Precedent - Bind and must be followed
Persuasive - Not binding but worthy of consideration
Statute V Common Law
Statute - Legislated Acts of Parliament
Common Law - Judge Made Law
Ratio Decidendi?
“Reason for Decision”
Orbiter Dictum?
“By the Way” An observation made by a judge on a legal question submitted by a case before that judge, but not so arising in manner that it requires a decision
When there is a conflict between Commonwealth and Statute Law, which prevails
Commonwealth Law always prevails
Doctrine of Precedent
“Like cases ought to be heard alike”
Court Heirarchy
High Court of Australia
Court of Criminal Appeal / Court of Appeal
Supreme Court
District Court
Local Court
Children’s Court
Coroner’s Court
Special Commissions of Enquiry / Royal Commissions
Section 36 Criminal Procedure Act 1986
Right for a Prosecutor to appear in a matter
Who can elect upon Table 1 Offences
Prosecution OR Defendant
Who can elect upon Table 2 Offences
Prosecution ONLY
Strictly indictable offences
Those offences not listed in Table 1 or Table 2
Section 260 Criminal Procedure Act 1986
Table 1/2 offences to be dealt with summarily unless prosecution or defendant elect otherwise
True or False: CAN proceedings commence only when the CAN is filed at the registry
True.
Section 23 Criminal Procedure Act 1986
Indictment may contain 3 similar counts
Which Courts are Binding and where
High Court: Binding on all lesser courts in Australia
Supreme: Binding on inferior courts in the same state
District: Persuasive, not binding
Section 179 CPA 1986
Time Limit for Commencement of Proceedings (Statute of Limitations)
Statute: 6 Months
Section 175 CPA 1986
Form of a CAN
Section 11 & 12 CPA 1986
Section 11: Description of Offence
Section 12: Short Description of Certain Offences
Rule 3.11 LCR 2009
Commencement of Proceedings
What needs to be in the CAN
a. Offence description
b. Particulars
c. Prosecutor (OIC)
d. Specify Court T/D/P
e. State failure to attend = may be warrant OR dealt with in absence
Clause 24 (S.24) CPR 2017
Where a Brief is NOT Required
Section 182 CPA 1986
Written plea’s - S.182 (3)(b) Taken to have attended court if they write in
Section 25(2) Warrant?
Bench Warrant / Warrant to appear
S.183 CPA 1986
Brief to be served upon plea of NOT guilty
3-Step system for a CAN
Commencement S.172 CPA
Service S.177 CPA
Filing S. 178 CPA
Rule 3.13 LCR
Name/Age/Jurat/Signed and witnessed requirements for statements
Section 192 CPA 1986
Must proceed to hearing if all parties present
Section 187 CPA 1986
Circumstances where the BoE need not be served.
(Pieces missing, Could not be served on the accused)
(Court can grant adjournment if it appears just and reasonable if brief wasn’t served)
S. 222 CPA 1986
Police Subpoena Issued
Section 4 Crimes (Appeal and Review) Act 2001
Annulment: Overturning of conviction.
Can be initiated up to 2 years after conviction.
Section 213 CPA 1986
Cost Applications Against Prosecutor (Must be read with S. 214)
Section 40 CPA 1986
Adjournments Generally
Section 223 CPA 1986
Must serve within 5 working days of the date it must be complied with
Section 229 CPA 1986
Subpoena non-compliance
Section 216 CPA 1986
Costs on Adjournment
Section 214 CPA 1986
Limitation on award of professional costs
Bail Stay Restrictions
- Must be Serious Offence
- On the accused’s first application at court (A bail decision has not previously been made)
- Bail is granted by the Magistrate
Section 17 Bail Act 2013
Assessment of Bail Concerns
Section 19 Bail Act 2013
Refusal of Bail - Unacceptable Risk
DPP V West [2000]
“…to get the prosecution back on the rails”. Provides that in S187(4), the court “may” grant one or more adjournment
Section 36 Interpretations Act 1987
Timing on when proceedings must commence
DPP V FUNGAVAKA
Provides that the decision to refuse an adjournment in accordance with 187(4) should not be made solely of POL to comply with 183(3)… but that other considerations should be taken into account.
DPP V CHAOUK
Provides other policy considerations to be made in relation to granting a 187(4):
- Gravity of charges
- Public interest
- Attitude of accused
- Consider double jeopardy
Section 188 CPA 1986
Evidence not to be admitted
1) refusal to admit prosecution evidence if it fails to comply with 183.
2) Court may dispense of (1) on such terms and conditions as appear just and reasonable.
Definition of Brief
…to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence
