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SSGT S/SGT CPK to Nov 2021 > Bail, Prosecution > Flashcards

Bail, Prosecution Flashcards

1
Q

s.7 BA2000: When is a defendant bailable as of right? (2)

A
  1. When charged with offence not punishable by imprisonment
  2. charged with offence <3yrs
    unless:
    assault on child
    male assaults female
    Assault someone in Family Relationship
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2
Q

s 7 (4) When is a defendant not bailable as of right?

A

TRUE s 7 (4). Not bailable of right if charged with offence punishable by imprisonment after previously convicted of offence punishable by imprisonment.

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3
Q

s.8 (1) BA2000: When considering if there is just cause for continued detention, what 4 ‘risks’ MUST the court take into account?

A

Whether defendant may:

fail to appear
interfere with witnesses/evidence
offend while on bail
Other matter making it ‘unjust’ to detain

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4
Q

BA2000 s.8: In considering if there is ‘just cause’ for continued detention under subsection (1), the court MAY take into account the following 8 things in s8 (2):

A
  • Nature of offences -
  • Strength of evidence & probability of a conviction
  • Seriousness and Severity of the punishment
  • Character and past conduct
  • History of offending whilst on bail
  • Likely length of time before matter comes to court.
  • Possible prejudice to the defence
  • Other special matters
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5
Q

BA2000 s.8 (3A) Family Violence Offences, What is the courts primary considerations when considering bail?

A

Need to protect

  1. the victim
  2. any person in a family relationship with the Victim
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6
Q

BA2000 s.8 (3C) Breach PO, What is the courts primary considerations when considering bail?

A

To protect every protected person on the PO

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7
Q

BA2000 s.8 (4A & 4B) what can and cant the court take into consideration regarding a defendants cooperation/assistance with authorities of any offence

A
  1. Can’t take this into account for Bail.

2. Can take it into account if the cooperation is relevant to assessment of risk that Defendant will appear at Court.

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8
Q

S10 - Restriction on bail if defendant with previous conviction for specified offences charged with further specified offences applies to a defendant of what age?

A

Of or over the age of 17 years.

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9
Q

S10 - Give 4 examples of a SPECIFIED OFFENCES

A 
S128B - Sexual Violation
S132 - Sexual conduct with Child <12
S167 - Murder
S171 - Manslaugther
S188 - Wounding with Intent
S234 - Agg Robbery
S232 - Agg Burglary
S 173 Att Murder
S 191 Agg Wounding/Injury
S 198A Uses FA against LEO
S 198B Uses FA in comitting Crime
S 208 & 209 Abduction & Kidnapping
S 236 Assault W intent to Rob
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10
Q

S10 Defendant charged with specified offences- No defendant may be granted bail or allowed to go at large except by order of who?

A
  • High Court Judge or a District Court Judge
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11
Q

A. What is the REVERSE BURDEN OF PROOF as it relates to s10 (4), (5), (6)?

B. s10 (5). What is the standard of proof for the defendant and what must he satisfy the court

C. s10(6) What primary considerations must court take into account in deciding to grant bail for S 10 offending.

A

A. Defendant can be subject to ‘REVERSE BURDEN OF PROOF” in bail decision where the defendant has to prove that he or she should be released on bail rather than the prosecutor proving that the defendant should not be released on bail.
B. (5) Satisfies on Balance of probabilities. Won’t while on bail commit violence offence or danger safety of anyone.
C (6) Need to protect safety of public and Victims.

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12
Q

S12 1 (a) Restriction on Bail. Defendant 18+ charged with offence over 3yrs prison and at time on Bail for another 3 yr + offence and …..

A

at any time has previously received a sentence of imprisonment.
Only granted Bail by DC HC Judge

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13
Q

S12 1 (b) Restriction on Bail. Defendant 18+ charged with offence over 3yrs prison and previously received 14 + sentences of Prison ….

A

previously convicted of offence committed while on bail for 3yr + offence
Only granted Bail by DC HC Judge

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14
Q

S12 (5) - Further restriction on bail in certain cases, the defendant must satisfy the Judge on the balances of probabilities that he will not while on bail or at large commit what? (2)

A
  • violence against or danger to the safety of anyone or

- burglary or any other serious property offence. (more than 7 years serious property offences)

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15
Q

S15 Granting Bail to Defendant under 18 yrs- What must the courts think when granting of bail to defendant who is 17 and 18 years of age? (2)

A
  • appears to be 17 or 18 years of age and
  • not previously been sentence to imprisonment
    Must be bailed (unless exceptions exist ie specified offences etc)
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16
Q

S16 - Bail is only granted for drug dealing offences by order of who?

A

High Court Judge or District Court Judge

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17
Q

S21 when may Police grant Police Bail

A

When considers PRUDENT to do so subject exclusions S 10, 12 , 16.

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18
Q

S21 what considerations must police make considering Police bail for those charged with:

  1. Family Violence offences
  2. Breach of PO
A
  1. To protect victim and person in family relationship with Victim
  2. need to protect protected persons on the order.
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19
Q

S21 (4) who is entitled to be granted Police bail as of right

A

no one

20
Q

S21A - Notice of Police bail - A Police employee who grants Police bail must ensure that notice of Police bail is completed and what? (3)

A
  • Give notice to defendant
  • Ensure defendant understands conditions of bail and
  • Ensure defendant authenticates the notice.
21
Q

S 21 A Police Bail. When must attendance at court be no later than

A

14 Days from date on notice

22
Q

S21B If Police impose bail conditions when must court attendance be

A
  1. less than 7 days of date on notice

2. unless court is closed for more than 7 consecutive days after the date of arrest.

23
Q

S22 what conditions can Police place on bail in family violence offences

A

any conditions necessary to protect victim or person in family relationship with victim.

24
Q

S23 - Can a person arrested for Breach PO get Police Bail?

A

No not by Police under S21 during the 24 hours following the arrest. Although the obligation to get charged person to court still exists

25
Q

S35 - A defendant on bail may be arrested W/out Warrant in certain circumstances when? (2)

A
  • defendant has absconded or is about to to evade justice or
  • defendant has contravened or failed to comply with any bail conditions.
    (note: S35(4) if defendant is K9 for above, he cannot be bailed as of right)
26
Q

S37 - Who can issue a WTA absconding or BOB or fails to answer bail?

A

A Judicial Officer or Registrar.

27
Q

S37 (5) What must constable executing Arrest Warrant have/do (3)

A
  1. Have copy of warrant
  2. Produce ID on initial entry and if requested
  3. If not in uniform produce evidence is a constable
28
Q

Rv Bryant Prudent

A

Charged with Indecent Acts. Statements obtained from him while in custody. Went to court next day. Was bailable as of right and admissibility of statements challenged. S21 says Police bail when prudent to do so. requires Constable to determine whether he can be released safely until defendant becomes the responsibility of the court.

29
Q

Police Act S32 - Identifying particulars of person in custody. A constable may take their particulars if person in lawful custody is detained for committing an offence. Where can this happen? (2 places)
What if fails?

A

At a police station or at any other place being used for Police purposes
Commits offence if fails to comply, reasonable force to secure identifying particulars

30
Q

S33 - Identifying particulars for summons a constable who has good cause to suspect a person of committing an offence and intends to bring proceedings against them by way of summons may detain that person at any place in order to what? (2)

A
  • take their identifying particular
  • and only for the period necessary to take the person identifying particulars.
    Commits offence if fails to comply, reasonable force to secure identifying particulars
31
Q

S 32 (5) Policing Act. What are identifying particulars? (3)

A

Persons:
- Biographical details - name address dob,
- Photograph of visual image
- Finger prints, palm-prints and foot print
Note: Place includes any land building, premises or vehicle.

32
Q

S36 - A constable who finds a person intoxicated in a public place or while trespassing may detain and take a person into custody if they reasonable believe that the person is what?

A
  • Incapable of protecting himself from physical harm
  • Likely to cause physical harm to himself/others
  • Likely to cause property damage.
33
Q

S36 Intoxicated people. If reasonably practicable, where can he be taken

A

place of residence, temporary shelter

Note if not reasonably practicable to provide for care here , then ok to place in custody.

34
Q

S36 A person detained under S36(1) intoxicated must be released when?

A

SAP person ceases to be intoxicated

and

must not be detained longer than 12 hours unless recommended by Health practitioner.

35
Q

s36 Intoxicated

A

observably affected by drugs, alcohol or substances to degree balance, speech, coordination, behaviour impaired

36
Q

s36 Temporary shelter

A

place for care and protection of intoxicated person, not operated by Police

37
Q

When is the prosecutor satisfied that the Test for Prosecution is met? (2)

A

The Evidential Test

and

The Public Interest Test.

38
Q

Explain what the Evidential Test is:

A

Evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction.

39
Q

Explain what the Public Interest Test is:

A

The presumption that public interest requires a prosecution eg: serious nature of the case

40
Q

Which TEST must be satisfied first?

A

The Evidential Test

41
Q

What are the 6 elements that satisfy the conditions of the Evidential Test?

A
  1. Identifiable Individual
  2. Credible Evidence (capable of belief)
  3. Evidence which the prosecution can adduce (available and legally admissible)
  4. Could reasonable be expected to be satisfied (reasonable prospect of conviction)
  5. Beyond reasonable doubt (high standard of proof)
  6. Commission of a Criminal Offence. (evidence against each ingredients)
42
Q

What are some considerations for prosecution in the public interest test (18)

A
  1. Seriousness of offence
  2. serious significant violence
  3. likely to be continued/repeated
  4. relevant previous convictions/warnings
  5. Committed while on bail
  6. Offence is prevalent
  7. Ringleader
  8. premeditated
  9. Carried out by Group
  10. Organised Crime
  11. victim in fear. Vulnerable
  12. Serious risk of harm
  13. serious financial loss.
  14. position of authority, trust
  15. public servant
  16. took advantage of victim developmental age
  17. race/sexual orientation/religion/political motivated hate crime etc
  18. Corruption
43
Q

What are some instances against prosecution in public interest (13)

A
  1. likely minimal sentence
  2. genuine mistake minimal loss or harm
  3. not serious or unlikely to be repeated.
  4. long passage of time unless:
    serious offence
    delay caused by defendant
    offence recently came to light
    complex lengthy investigation
  5. prosecution have detrimental effect on Vicitm/witness
  6. Elderly defendant
  7. young defendant
  8. no previous convicitons
  9. defendants significant mental or physically ill health at time of offence or trial
  10. victim accepts defendant has rectified loss or harm
    11.recovery would be more effective by civil action
  11. informaiton made public would harm sources, national security etc
    13.proper alternatives to prosecution exists (ie disciplinary proceedings)
44
Q

What is also a relevant factor in determining the overall assessment of public interest

A

Cost

45
Q

Once evidential test is met (or otherwise) and weighed up against public interest prosecutor determines there is no public interest in progressing the matter a decision of no prosecution is made. Does this preclude further further prosecution if other information comes to hand

A

No but it is anticipated this to be rare

SSGT S/SGT CPK to Nov 2021 (18 decks)

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