Week 3 Flashcards
DV, Forensic Procedure, Children's proceedings, Traffic 2
List the time frame for conducting RBT/BAS testing & Blood/Urine taking
RBT/BAS: 2 Hours from the time of incident
Blood/urine: Must be taken within 4 hours
What are the 4 drugs regarding PID offences
- THC
- Cocaine
- Speed
- Ecstasy
What is a Section 257 certificate
Section 257 certificate is evidence that a driver was suspended at the time of a driving offence (Police can apply/create these certificates)
Where does the power to breath test come from?
Schedule 3, Clause 3 of the Road Transport Act 2013
Where does the offence of Wilfully Alter Concentration come from?
Schedule 3, Clause 18 of the Road Transport Act 2013
How many offences for Wilfully Alter are there, and what are they?
2 offences exist:
1. wilful act occurs before breath test, and
2. wilful act occurs after test
The prosecution must prove the person INTENDED to alter the concentration of alcohol (Thorpe v Shepherd)
When can a Sergeant withdraw a matter on the day of hearing
Figure 2.2 of the WIthdrawal Policy: Only if:
- Subpoena has been issued
- Contact made with victim/witness and the indicate their intention to not attend
- No other admissible evidence to satisfy the elements of the charge
- Application for adjournment/warrant has been made and considered
- Application for adjournment/warrant has been refused
- Consultation with OIC
- Senior Sergeant, PPC, has been consulted and authorises withdrawal
Circumstances where a prosecutor can W/D without authority
- Incorrect Charge
- Backup Charge/charge in the alternative
- Fail to appear charge (S4 application granted)
- On day of hearing (Certain criteria applies)
Prosecutors duty of disclosure
A prosecutor must disclose to the defence all material which MAY assist the defence in preparation of their case
Ongoing duty of disclosure
Bar rules 87 & 88
What is the De Simoni principle
References to an offence for which the accused is NOT charged should be removed from the fact sheet (unless those references provide context for the offence charged)
What to consider when discussing matters off the record?
Defendant or defence present, fair & ethical conversation & do not discuss active cases
What to do upon withdrawing a charge after court
Record a failed prosecution on CMFMS
Media policy in relation to the release of fact sheets
Section 314(3) CPA states the Registrar is not required to make available documents for inspection if the document is not in the possession and control of the registrar. Media Policy 2.4.6 states if the fact sheet has either been read aloud in court or filed with the registry or handed to the magistrate in the determination of bail, the prosecutor may make it available for inspection for the purpose of accurate reporting.
What was L v Lyons
Sully, J, challenged that material was admissible in the particular proceedings not as hearsay evidence to prove the truth of what was asserted, but as a composite body of evidence to establish the matters required to be established.
What was Plassas v Person
A previous sample taken from a defendant does not preclude another sample being taken to the benefit of the suspect by negating continuity issues & potential prejudice
To what level must doli incapax be proven?
Beyond reasonable doubt
What age groups can appear before the Children’s Court
At the time of the offence:
- Under the age of 18, and
- Under the age of 21 when the charges were brought before the court
What offences appear before the children’s court
- Any offence whether indictable or otherwise other than a serious children’s indictable offence
- Committal proceedings for any indictable offence including children’s indictable offences
When is an admission from a child admissible under Section 13 of the Act?
In the presence of a support person, and if not in the presence the judicial officer is satisfied that:
- There was proper and sufficient reason why the adult was absent, and
- Given the particular circumstances of the case, the admission should be admitted
List 4 of the Section 6 principles
- It is desirable where possible to allow the employment or education of the child to continue
- It is desirable where possible to allow the child to reside in his or her own home
- The penalty imposed on a child should be no greater than that imposed on an adult who commits the same offence
- It is desirable where possible that children who commit crime are assisted with their reintegration into the community so as to sustain family ties.
How may a DV complainant give evidence?
Section 289F CPA - Complainant may give evidence in chief by way of video recording
Section 289V CPA - Evidence via AVL
Section 38 C(DPV)A 2017
AVO’s made can be extended to also protect anyone whom the PINOP has a domestic relationship with
Section 17 C(DPV)A 2017
In making an AVO, Court must consider the safety of any child directly or indirectly affected by the conduct of the defendant
Legislation when a defendant doesn’t attend an AVO mention/hearing
Section 57A C(DPV)A 2017
When can the Prosecutor withdraw AVO proceedings
- When the PINOP is NOT a child, and
- No information exists that the PINOP may be suffering from below average IQ,
- Information is received by the prosecutor that the PINOP does not hold fears,
- No information is present to suggest the PINOP has been subjected to a DV offence,
- There is no likelihood the PINOP will be subjected to a DV offence, and
- The OIC or DVLO state no objection to the discontinuation of AVO proceedings.
True or False: The registrar is required to release Fact Sheets.
False: The registrar is not required to make fact sheets available which they do not have control over - S314(c) CPA 1986
Is Home defined in legislation?
No, home is defined through common law. Clampett v Workcover Authority of NSW [2003] NSWCA 52. Home does not only include the physical building where one resides, but is inclusive of anything behind the curtilage of the property line (behind the mailbox).
What if material is uncovered that would bring the organisation into disrepute?
Immediately consult your team leader and Crime Manager.
When can you RBT a person under the Act
If you reasonably suspect the person is/was:
a) driving a motor vehicle on a road, or
b) the person is/was occupying the driving seat and is/was attempting to put into motion, or
c) the person is/was occupying the seat next to a learner driver.
Define Accident Hospital Patient and Accident participant
Accident Hospital Patient: a person who was injured as a result of a collision and was admitted to hospital.
Accident Paricipant: a person who was a driver at the time of a collision
What does Clause 4 allow a police officer to do under the RTA?
Arrest following a failed breath test for the purpose of a secondary test
List 4 Serious Children’s Offences
1) Homicide
2) An offence punishable by imprisonment for life or for 25 years
3) An offence arising from Section 61J or 61K, and
4) Offence under the Firearms Act
True or False: In a forensic procedure hearing, the defendant/defence can cross examine any person they want.
False: the defence/defendant need leave of the court to cross examine anyone other than the OIC (Section 30(6))
In the making of a forensic procedure, the magistrate must be convinced to what level the procedure is necessary and justifiable in all the circumstances?
On the balance of probabilities (Section 24(1))
Who qualifies as a Untested Former Offender (UFO)?
Any person who:
- Has previously served a term of imprisonment for a serious indictable offence
- Have subsequently been served a court attendance notice for an indictable offence, and
- Their DNA profile is not contained in the offenders index of the DNA database system.
List 4 considerations under Section 24(4) of the Crimes (Forensic Procedure) Act when determining if an application is “justified in all the circumstances”
- Gravity of the offence,
- Seriousness of circumstances,
- Degree of suspect’s participation, and
- Reasons suspects may refuse consent
