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PEP64 > Week 1 > Flashcards

Week 1 Flashcards

1
Q

Types of Bail Application

A

Detention - Initiated by Prosecutor
Release - Initiated by Defence
Vary - Initiated by interested party, can be either.

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2
Q

Bail Application Sections

A

Section 49: - Release Application
Section 50: - Detention Application
Section 51: - Variation Application

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3
Q

Where Can Police Make a Bail Decision?

A

Police Station
Hospital
Mental Health Facility
Police Review*
* Senior Police can review and vary the bail decision of another officer.

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4
Q

True or False: the court registrar may act as a bail authority

A

True

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5
Q

How Long Does a Bail Decision Last?

A

It is legislated to last until it is varied, revoked or substantive proceedings for the event conclude.

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6
Q

Section 40 Bail Act 2013

A

Stay of release decision if detention sought

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7
Q

Bail Decisions & Sections

A

Section 9: Release w/o bail,
Section 10: Dispense Bail,
Section 11: Refuse or Grant Bail

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8
Q

Show Cause offences and Section

A

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.

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9
Q

DPP v Tikomaimaleya [2015]

A

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

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10
Q

Section 33 Interpretation Act 1987

A

Regard to be had to the purposes or objects of Acts and statutory rules

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11
Q

Types of Precedent

A

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

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12
Q

Statute V Common Law

A

Statute - Legislated Acts of Parliament
Common Law - Judge Made Law

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13
Q

Ratio Decidendi?

A

“Reason for Decision”

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14
Q

Orbiter Dictum?

A

“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

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15
Q

When there is a conflict between Commonwealth and Statute Law, which prevails

A

Commonwealth Law always prevails

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16
Q

Doctrine of Precedent

A

“Like cases ought to be heard alike”

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17
Q

Court Heirarchy

A

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

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18
Q

Section 36 Criminal Procedure Act 1986

A

Right for a Prosecutor to appear in a matter

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19
Q

Who can elect upon Table 1 Offences

A

Prosecution OR Defendant

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19
Q

Who can elect upon Table 2 Offences

A

Prosecution ONLY

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20
Q

Strictly indictable offences

A

Those offences not listed in Table 1 or Table 2

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21
Q

Section 260 Criminal Procedure Act 1986

A

Table 1/2 offences to be dealt with summarily unless prosecution or defendant elect otherwise

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22
Q

True or False: CAN proceedings commence only when the CAN is filed at the registry

A

True.

23
Q

Section 23 Criminal Procedure Act 1986

A

Indictment may contain 3 similar counts

24
Q

Which Courts are Binding and where

A

High Court: Binding on all lesser courts in Australia
Supreme: Binding on inferior courts in the same state
District: Persuasive, not binding

25
Q

Section 179 CPA 1986

A

Time Limit for Commencement of Proceedings (Statute of Limitations)

Statute: 6 Months

26
Q

Section 175 CPA 1986

A

Form of a CAN

27
Q

Section 11 & 12 CPA 1986

A

Section 11: Description of Offence
Section 12: Short Description of Certain Offences

28
Q

Rule 3.11 LCR 2009

A

Commencement of Proceedings

29
Q

What needs to be in the CAN

A

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

30
Q

Clause 24 (S.24) CPR 2017

A

Where a Brief is NOT Required

31
Q

Section 182 CPA 1986

A

Written plea’s - S.182 (3)(b) Taken to have attended court if they write in

32
Q

Section 25(2) Warrant?

A

Bench Warrant / Warrant to appear

33
Q

S.183 CPA 1986

A

Brief to be served upon plea of NOT guilty

34
Q

3-Step system for a CAN

A

Commencement S.172 CPA
Service S.177 CPA
Filing S. 178 CPA

35
Q

Rule 3.13 LCR

A

Name/Age/Jurat/Signed and witnessed requirements for statements

36
Q

Section 192 CPA 1986

A

Must proceed to hearing if all parties present

36
Q

Section 187 CPA 1986

A

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)

37
Q

S. 222 CPA 1986

A

Police Subpoena Issued

38
Q

Section 4 Crimes (Appeal and Review) Act 2001

A

Annulment: Overturning of conviction.
Can be initiated up to 2 years after conviction.

39
Q

Section 213 CPA 1986

A

Cost Applications Against Prosecutor (Must be read with S. 214)

40
Q

Section 40 CPA 1986

A

Adjournments Generally

41
Q

Section 223 CPA 1986

A

Must serve within 5 working days of the date it must be complied with

42
Q

Section 229 CPA 1986

A

Subpoena non-compliance

43
Q

Section 216 CPA 1986

A

Costs on Adjournment

44
Q

Section 214 CPA 1986

A

Limitation on award of professional costs

45
Q

Bail Stay Restrictions

A
  1. Must be Serious Offence
  2. On the accused’s first application at court (A bail decision has not previously been made)
  3. Bail is granted by the Magistrate
46
Q

Section 17 Bail Act 2013

A

Assessment of Bail Concerns

47
Q

Section 19 Bail Act 2013

A

Refusal of Bail - Unacceptable Risk

48
Q

DPP V West [2000]

A

“…to get the prosecution back on the rails”. Provides that in S187(4), the court “may” grant one or more adjournment

49
Q

Section 36 Interpretations Act 1987

A

Timing on when proceedings must commence

50
Q

DPP V FUNGAVAKA

A

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.

51
Q

DPP V CHAOUK

A

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

52
Q

Section 188 CPA 1986

A

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.

53
Q

Definition of Brief

A

…to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence

PEP64 (4 decks)

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