Criminal Procedure Flashcards
(114 cards)
1
Q
What makes an offence indictable?
A
Offences in the Crimes Act are indictable unless contrary intention: s2B CA
Otherwise level 1 through 6 are indictable: Sentencing Act s112
2
Q
What section determines that summary offences are heard and determined summarily?
A
s27
3
Q
When can an indictable offence be tried summarily?
A
If s29 is satisfied and offence is Level 5 or 6, or listed in Schedule 2: s28
s29 provides court must consider charge appropriate, and accused must consent.
4
Q
How is a criminal proceeding commenced?
A
Per s6:
- Filing a charge-sheet with the Court
- Filing a charge sheet with a bail justice
- By signing a charge-sheet pursuant to a summons
5
Q
What is the limitation period for criminal offences?
A
12 months for summary, unlimited for indictable: s7.
6
Q
Where is a proceeding to be heard?
A
For the MC, at the venue nearest the alleged offence, or the residence of the accused: s11
For the SC/CC, in the court nearest the place where the offence was alleged unless order made under s192 (power to change place of trial) in Part 5.5 (pre-trial procedure) division 3 (orders): s 169
7
Q
What must a charge-sheet contain?
A
Per schedule 1:
- state offence (inc provision for statutory offences)
- contain particulars
- in ordinary language
- descriptions of anything with reasonable clarity
- for indictments, the name of witnesses.
8
Q
What happens once the charge-sheet is filed to get the accused before a judge?
A
Court may issue notice to appear, summons, or warrant to arrest: s12
9
Q
What is an accused entitled to receive prior to a summary proceeding?
A
- Charge sheet and particulars: s32
- Preliminary brief (notice to appear s22, on request s35)
- Full brief: s39
- Continuous disclosure: s42
- Other material: s43
10
Q
What is the prosecution entitled to in a summary proceeding?
A
- Expert evidence witness statement: s50
- Notice of alibi evidence: s51
11
Q
What happens at the mention hearing in a summary proceeding?
A
- Court grants summary hearing for IOHADS, hear and determine charge, fix date for contest mention or summary hearing, make any order (e.g. SCC): s53
- Informant must have available prelim brief, charge-sheet, statement of alleged facts, criminal record: s53A
12
Q
What happens at a summary case conference in a summary proceeding?
A
Parties to manage case progression, identify and provide information required, understand evidence available, identify issues, identify steps to advance (all without prejudice): s54
13
Q
What happens at a contest mention in a summary proceeding?
A
Accused must attend, court requires parties to provides estimate of time, number and availability of witnesses, advise legal representation: s55
14
Q
Can a summary proceeding be adjourned for a diversion?
A
Yes, before formal plea if accused acknowledges responsibility and it appears appropriate to the MC and both the prosecution and defence consent: s59
15
Q
Can an accused ask for a sentencing indication in a summary proceeding?
A
Yes, and then the court must not impose a more severe type if accused pleads guilty: s60 and s61
16
Q
What happens at a summary hearing?
A
- Read out charges and take plea: s62 (self-rep), s63 (represented)
- Leave for opening addresses: s65
- Prosecution witnesses
- Leave for response: s66
- Leave for defence opening: s71
- Defence witnesses
- Leave for closing addressses: s73/s74
- Verdict & sentencing
17
Q
What happens if the informant fails to appear on the date the proceeding is listed for hearing?
A
MC may dismiss or adjourn: s79
18
Q
What happens if the accused fails to answer a summons or answer bail for a summary offence?
A
MC may direct personal service, issue arrest warrant, hear and determine in absence (in which case brief evidence becomes admissible per s83, and no custodial order per s87), or adjourn: s80
19
Q
What happens if the accused fails to answer for an indictable offence being heard and determined summarily?
A
MC may issue warrant to arrest: s81
20
Q
When must a filing hearing occur for a committal proceeding?
A
If arrested and in custody or on bail then within 7 days of charge-sheet being filed, if summons issued then within 28 days of charge-sheet being filed: s102
21
Q
What is the purpose of a committal proceeding?
A
To determine if charge is appropriate to be heard and determined summarily, whether there is evidence of sufficient weight to support a conviction, determine how accused proposed to plead, and ensure a fair trial by giving accused the right to hear or read the prosecution case, prepare for and put forward a defence, and define the issues: s97
22
Q
What hearings may occur in a committal proceeding?
A
Filing hearing, special mention, compulsory examination, committal mention, committal case conference, and committal hearing: s100
23
Q
When does a committal proceeding commence?
A
On commencement of a filing hearing: s98
24
Q
When must the informant serve and file a hand up brief?
A
Served 42 days before the committal mention, then filed within 7 days
25
What must a hand up brief contain?
Notice specifying the committal mention date, nature of committal proceeding and purposes of stages, importance of legal representation, right to apply for legal aid, charge-sheet, statement of material facts, any info/doc/thing the prosecution intends to rely: s110
26
Is there an ongoing disclosure after serving the hand up brief?
Yes: s111
27
When must a joint case direction notice be filed?
7 days before the committal mention: s118
28
What must a joint case direction notice contain?
The procedure for how the matter will be dealt with, whether adjournment would assist, names of witnesses, if and why accused intends to seek leave to cross-examine, issues opposed, previous convictions: s119
29
In a commital proceeding, can the accused apply for leave to cross-examine after the case direction notice?
Yes, granted if court is satisfied it is in the interests of justice, in which case new joint case direction notice to be issued: s120
30
In a committal proceeding, does cross-examining a witness require leave?
Yes, to be determined with regards to whether the informant consents, but must be about an issue that relates and be relevant and justified: s124
31
What happens at a committal mention?
MC may determine the committal proceeding, offer a summary hearing (for offence that can be heard and determined summarily), determine applications for leave to cross-examine, fix a date for a committal hearing: s125
32
When must the committal mention occur?
Within 3 months for sexual offences, otherwise within 6 months: s126.
33
Is a committal case conference without prejudice?
Yes: s127
34
What happens at a committal hearing?
MC may offer a summary hearing (for offence that can be heard and determined summarily), hear oral evidence, and (if the committal hearing proceeds) must determine whether there is sufficient weight to support a conviction (s128) by asking for a plea (s144) and then discharging the accused, adjourn to enable informant to file a charge-sheet for a difference offence, or commit accused for trial (s141)
35
At a committal hearing, is cross-examination evidence restricted?
Yes, first leave must be obtained pursuant to the case direction notice procedure under s124, then at the commital hearing itself the cross-examination must be limited to the issues identified (s132) otherwise leave is required where the MC has to be satisfied an issue has been identified and that the cross-examination is justified (s132A).
36
What is the accused entitled to if committal for trial?
A copy of the depositions (being a transcript of evidence given in a committal and any statements admitted in the committal) a transcript of any recording admitted, and to examine any exhibits: s147.
37
If committed for trial (or on a direct indictment), what must the filed indictment contain?
Schedule 1 items: state the offence (and statute if relevant) and particulars, set out in ordinary language, identifying the people, documents and relevant property, plus the name of witnesses.
38
Can the indictment be amended?
Yes, unless it would cause injustice: s165
39
Can the prosecution discontinue an indictment?
Yes (but it's not an acquittal and is without prejudice): s177
40
When can the court conduct a directions hearing during an indictment?
Any time (s179) where it can make or vary any direction or order (s181)
41
What pre-trial disclosure obligations are there for the prosecution in an indictment?
- Serve a summary of prosecution opening and notice of pre-trial admissions (s182)
- Continuing obligation of disclosure (s185)
- Prosecution notice of additional evidence (s188)
42
What pre-trial disclosure obligations are there for the defence in an indictment?
- Response to prosecution opening 14 days before trial: s183
- Statement of expert witness 14 days before trial: s189
- Notice of alibi witness 14 days after being committed: s190
43
When can the court order the pre-trial taking of evidence in an indictment?
If reasonably anticipated witness will be unavailable to give evidence at trial, where the parties agree, or if the court considers appropriate, but in any case must be in the interests of justice: s198
44
Can the accused ask for a sentencing indication in an indictment?
Yes, by application: s207 and 208, and if the accused pleads guilty the Court may not impose a more severe sentence: s209
45
When does arraignment occur and the trial begin?
When the court asks the accused whether they are the person named, and each charge is read out and asked whether they plead guilty or not guilty: s215. The trial begins if they plead not guilty on arraignment in the presence of the jury.
46
What is the time limit for commencing trial on an indictable offence?
3 months after committal for sexual offence (s212), otherwise 12 months (s211)
47
What is the procedure for trial on an indictable offence?
- Prosecution opening: s224
- Defence response: s225
- Case for the prosecution
- Defence elects no case to answer, or to answer (either with or without evidence or witnesses): s226
- Trial judge may discharge the jury if no case to answer (or prosecution calls no evidence): s 241
- Defence opening: s231
- Defence evidence
- Prosecution closing: s234
- Defence closing: s235
- Prosecution supplementary: s236
- Judge charges the jury: s238
48
What are the appeal options both from the MC and the SC/CC?
- Right for offender to appeal from MC to CC against conviction and/or sentence: s254
- Right for DPP to appeal from MC to CC against sentence: s257
- Right for DPP to appeal from MC to CC for failure to fulfill undertaking to help law enforcement: s260
- Right of appeal from MC to SC on question of law from final order: s272
- Leave for offender to appeal from SC/CC to CoA against conviction: s274
- Leave for offender to appeal from SC/CC to CoA against sentence: s278
- Right for crown to appeal from SC/CC to CoA against sentence: s287
- Certificate to appeal against interlocutory decision in SC/CC to CoA: s295 (and review of failure to certify: s296)
- Court power to reserve question of law from SC/CC to CoA: s302 (or in CC on appeal from MC: s302A)
49
How may an application for bail be made, and what evidence may be considered?
An application for bail may be made under s8 of the Bail Act, and the bail decision maker (per s3 a court, bail justice police officer and sheriff) may make such inquires as they consider desirable (other than inquiry into the offence alleged) and may take into account any evidence they consider credible or trustworthy
50
What tests apply to an application for bail?
- For a schedule 1, or schedule 2 offence with a terrorism risk or while on bail/summmons/trial/CCO/sentence/parole for any schedule 1 or 2 offence, the EXCEPTIONAL CIRCUMSTANCES test applies
- For a schedule 2 offence alone, or a non-schedule offence with a terrorist risk, the COMPELLING REASONS test applies
- For everything else, the UNACCEPTABLE RISK test applies
51
What is the presumption of bail?
Per s4, a person held in custody is entitled to be granted ail unless the bail decision maker is required to refuse bail (e.g. by the exceptional circumstances, compelling reasons, or unacceptable risk tests)
52
What is the exceptional circumstances test in a bail application?
If the accused can show that exceptional circumstances exist to justify the grant of bail considering the surrounding circumstances, and if the prosecution cannot show an unacceptable risk applies, then the accused is entitled to bail: s4A
53
What is the compelling reason test in a bail application?
If per s4C the accused can show that a compelling reason exists to justify the grant of bail considering the surrounding circumstances, and if the prosecution cannot per s4D show an unacceptable risk applies, then the accused is entitled to bail
54
What is the unacceptable risk test in a bail application?
If either the exception circumstances, or compelling reason test is passed, or they don't apply, then if the prosecutor can show that there is a risk to the safety or welfare of a person, or that the accused would commit an offence, or interfere with a witness or obstruct justice, or fail to surrender, considering the surrounding circumstances, and conditional bail would not sufficiently mitigate the risk, then bail must be refused: s4D
55
What is a bail undertaking?
Per s5, on the grant of bail the accused must enter into a written undertaking to surrender to custody at the hearing or trial, which may be granted on certain conditions.
56
What conditions can be imposed on bail?
Per s5AAA the bail decision maker may impose any condition they think will reduce the liklihood the accused may endanger safety or welfare, commit an offence, interfere with witnesses or obstruct justice, or fail to surrender, but may not impose conditions any more onerous than required
57
What is the purpose of the Jury Directions Act?
To reduce the complexity of jury directions, simplify and clarify issues that juries must determine, clarify the duty of legal practitioners, and to assist the trial judge in giving clear, brief, simple and comprehensible directions: s1
58
What are the guiding principles of the Jury Directions Act?
To allow the jury to determine the issues in dispute by way of directions which contain only so much of the law as is necessary to give clear, brief, simple, and comprehensible instructions that avoid technical language, and for legal practitioners to assist the trial judge: s5
59
When does the Jury Directions Act discussion start?
After the close of evidence but before the closing address of the prosecution: s11
60
What happens at the start of the Jury Directions Act discussion?
Prosecution must inform the judge whether any alternative offences, or alternative bases of complicity, and whether it relies on them. Then the defence must inform whether each element of the offence, alternative offences or alternative bases, and whether any defence, is in issue: s11
61
What happens after the prosecution and defence define the issues at the start of the Jury Directions Act discussion?
The prosecution and defence must each request the trial judge give jury directions in relation to any matter in issue or relevant evidence: s12
62
What happens if the prosecution or defence request a jury direction?
The trial judge must give it unless there are good reasons not to do so: s14
63
Can the judge unilaterally give jury directions?
Yes, but only after informing the prosecution and defence of any such intention, inviting submissions, and then deciding that there are substantial and compelling reasons to give such a direction: s15
64
What happens under the Jury Directions Act if there is post-offence incriminating conduct (e.g. going on the run?)
- Notice requirement if prosecution intends to rely: s19
- Must be reasonably cable of being viewed as incriminating conduct: s20
- Judge must direct jury that it can rely on it only if it concludes the conduct occurred and the only reasonably explanation is the accused's belief: s21
- Defence counsel may request a direction that there are other reasons: s22
- Evidence admitted for another reason must not be relied on as incriminating conduct: s23
65
What occurs under the Jury Directions Act if there is other misconduct evidence (e.g. alleged violence after consuming ice)
- Defence may request jury direction as to how the evidence is relevant and to not decide the case on prejudice: s27
- If co-accused adduced misconduct evidence about another accused, the prosecution or defence may request a direction to the jury to identify how the misconduct evidence is relevant and direct jury not to use for another purpose: s28
- If other misconduct evidence other than tendency evidence, the prosecution or defence may request a direction to warn not to use as tendency evidence: s29
66
What happens under the Jury Directions Act if there is unreliable evidence?
- Prosecution or defence may request direction specifying the matters that would make the evidence unreliable and warn the jury of the matters which may cause unreliability
- In the case of children, any request for directions must identify matters other than solely age that make the evidence unreliable, and noone may say anything that suggests children as a class are unreliable
67
What happens under the Jury Directions Act if there is identification evidence?
Prosecution or defence may request a direction specifying the matters that would make the evidence unreliable, then the judge must warn the jury of the need for caution and that a witness may honestly believe their evidence and be convincing, but nevertheless be mistaken and that mistaken ID evidence has resulted in innocent people being convicted: s36.
68
What happens under the Jury Directions Act if there is a long delay bringing the charges?
If there is a forensic disadvantage, defence may request a direction that the jury should consider the nature of the disadvantage and the need to take it into account (but not say it would be dangerous or unsafe to convict, or that the victim's evidence should be scrutinised with great care): s39
69
Under the Jury Directions Act, what if there is a failure by the accused to give evidence or call witnesses?
- Defence may request a direction that the judge explain the obligation to prove guilt, that the accused is not required to give evidence or call witnesses, the jury should not speculate, and a failure to give evidence is not evidence against the accused or an admission: s41
- No one may suggest to the jury that because an accused did not give evidence that the jury may conclude the accused is guilty: s42
70
Under the Jury Directions Act, what if there is a failure by the prosecution to give evidence or call a material witness?
On request if the judge is satisfied the prosecution ought to have called a witness but not satisfactorily explained why not, may inform the jury that it may conclude the witness would not have assisted the prosecution's case: s43
71
What may be said in general directions to a jury?
- The judge may only direct that the only things to be proved beyond a reasonable doubt are the elements of the offence and the absence of any relevant defence: s61
- If the jury asks about "beyond a reasonable doubt", the judge may refer to the presumption of innocence, the obligation to prove guilt, it not being enough the accused is "probably" or "very likely" guilty, that it's almost impossible to prove anything with absolute certainty nor need the prosecution so prove, that the jury should not be satisfied if they have any reasonable doubt but that reasonable doubt it not an imaginary or fanciful doubt or unrealistic possibility (as adapted to the question asked): s63
72
May the trial judge sum up to a jury?
Yes, but only so much of the law as is necessary, and only so much of the evidence as necessary, to determine the issues: s65
73
May the trial judge give jury directions in the form of factual questions?
Yes, the judge may give integrated directions: s67
74
What is the purpose of the Sentencing Act?
Per s1:
- Promote consistency
- Fair procedures
- Prevent crime and promote respect for law
- Ensure offenders are punished to the extent justified
- Promote public understanding of sentencing practices
- Provide sentencing principles
- Provide for special categories of offenders
- Set out objectives for sentencing
- Ensure victims of crime receive compensation
- Provide a framework for maximum penalties
75
What are the purposes for which a sentence may be imposed?
Per s5(1):
- Punishment
- Deterrence (general and specific)
- Rehabilitation
- Denunciation
- Protection
76
What must a court have regard for when sentencing an offender?
Per s5(2):
- Maximum penalty
- Standard sentence
- Current sentencing practices
- Nature and gravity of offence
- Culpability and degree of responsibility
- Whether motivated by hatred or prejudice
- Victim
- Injury, loss or damage
- Aggravating or mitigating circumstances of offender
- Any other relevant circumstances
77
What are the principles of parsimony in sentencing?
Per s5: An offender is not to be sentenced more severely than is necessary to achieve the purpose for which the sentence is imposed:
78
What of the offender's character can be considered in sentencing?
Per s6:
- Previous findings of guilt
- General reputation
- Significant contributions to the community
79
What are the available sentencing options?
Per s7:
- Imprisonment (with conviction)
- Detention and treatment for mental health (with conviction)
- Drug or alcohol treatment order (with conviction)
- Treatment in youth justice or youth residential centre (with conviction)
- Order a CCO (with or without conviction)
- Issue a fine (with or without conviction)
- Order release on adjournment with conditions (aka a bond) (with or without conviction)
- Order a discharge (with conviction) or dismissal (without conviction)
80
What must a court have regard to when deciding whether to impose a conviction?
Per s8:
- Nature of the offence
- Character and past history of offender
- Impact of conviction
81
When is a pre-sentence report (PSR) required?
Per s8A: One must be ordered if the court is considering making a community corrections order (CCO), youth justice centre order (YJCO) or youth residential centre order (YRCO) unless the sole condition is unpaid community work up to 300 hours (contents of PSR in s8B)
82
When may a victim impact statement be given?
If a person is found guilty: s8K (contents in 8L, may be read aloud per s8Q)
83
What is the maximum penalty for a summary offence?
2 years: s113A
84
What is the maximum penalty for a single indictable offence being heard and determined summarily in the Magistrates Court?
2 years: s113
85
What is the maximum penalty for several offences imposed by the Magistrates Court?
5 years: s113B
86
May a court order an aggregate sentence of imprisonment?
Yes if convicted on the same facts or a series of offences of similar character: s9
87
When may a court order cumulative vs concurrent imprisonment sentences?
Default is concurrent, but the total should be a just and appropriate measure of the total criminality involved, and there are special situations which displace the presumption: s16
88
When must a court issue a non-parole period?
Where there is a custodial sentence of 2 years or more, unless the court fixes both a CCO and imprisonment: s11
89
Is time spent on remand deducted?
Yes, any period held in custody in relation to that offence must be reckoned as a period already served: s18
90
What is the purpose of a CCO?
Per s36: To provide a community based sentence having regard to the circumstances of the offender
91
May a court order an aggregate CCO?
Per s40: Yes if convicted on the same facts or a series of offences of similar character
92
When may a court order cumulative vs concurrent CCOs?
Default is concurrent: s41
93
When can the court order an intensive compliance period for a CCO?
If the CCO is for 6 months or more: s39
94
Can a court order both imprisonment and a CCO?
Yes, but only if the sum of all terms of imprisonment (after deductions for time served) is 1 year or less and the combined total must not be greater than 5 years: s44
95
What are the compulsory terms of a CCO?
Per s45:
- Must not commit imprisonable offences
- Obligations/requirements in the regulations
- Must report to the Secretary and CCO centre
- Notify the Secretary of address or employment changes within 2 days
- Must not leave Victoria without permission
- Must comply with any directions given by the Secretary under s46
- Must comply with other conditions made by court under s47
96
What are the other conditions that can attach to a CCO?
- Unpaid community work: s48C
- Treatment and rehab: s48D
- Supervision by the Secretary: s48E
- Non-association: s48F
- Residence requirements or exclusions: s58G
- Place or area exclusion: s48H
- Curfews: s48I
- Alcohol exclusion: s48J
- Payment of bond: s48JA
- Judicial monitoring: s48K and 48L
- Electronic monitoring: s48LA
97
May a court issue an aggregate fine in sentencing?
Yes if convicted on the same facts or a series of offences of similar character: s51
98
What must a court have regard to when issuing a fine?
- Financial circumstances of offender: s52
- Forfeiture, compensation and restitution orders: s53
- Loss/destruction and value of benefit to offender: s54
99
What is the purpose of dismissals, discharges, and adjournments (bonds) in sentencing?
To provide for rehabilitation by allowing a sentence to be served in the community unsupervised, taking into account the trivial, technical or minor nature of offending, allowing an offender to demonstrate remorse, allow for a nominal punishment, and allow for extenuating circumstances: s70
100
What other orders can be made in addition to sentences?
- Restitution for stolen goods: s84
- Compensation for injury suffered: s85B
- Compensation for property loss: s86
- Recovery of assistance paid under Victims of Crime Assistance Act: s87A
- Driver's licence cancellation: s89
- Alcohol exclusion orders: s89DE
- Court assessment orders for mental illness: s91
- Court secure treatment order for mental illness: s94
101
When may a drug and alcohol assessment report be ordered?
Per s8E: If a court is considering making a CCO, if satisfied the offender has a dependency that contributed
102
What section defines the maximum penalties?
s109
103
What are the special provisions for young offenders in sentencing?
s32: Youth justice or residential centre order
s32A: Aggregate sentences if founded on same facts
s33: Any detention to be concurrent with any uncompleted sentence
s34: Detention commences on day of custody/previous sentence/apprehended
s35: Pre-sentence detention deducted
104
When may a CCO be ordered?
Per s37: When convicted/guilty of 5PU offence, had regard to a pre-sentence report (unless only considering community work up to 300 hours), informed consent
105
What is the maximum CCO period?
Per s38:
1 offence in MC: 2 years
2 offences in MC: 4 years
3+ in MC: 5 years
CC or SC: 5 years
106
Can a court order both a fine and a CCO?
Yes: s43
107
Can a court issue a fine in addition to or instead of any other sentence?
Yes, but not in addition to a level 1 imprisonment, and not instead of a level 1 or 2 imprisonment: s49
108
Under what section are the maximum fines that can be issued?
s50
109
What is the court's power to convict and issue a good behaviour bond?
Per s72 convict and adjourn for up to 5 years and release on undertaking with conditions, and order justice plan up to 2 years
110
Can the court convict and discharge?
Yes: s73, and may then per s74 make a compensation or restitution order
111
Can the court issue a good behaviour bond without conviction?
Per s75 a court can adjourn up to 60 months and release on undertaking with conditions, or justice plan up to 2 years, and if conditions observed may discharge without a further hearing
112
Can the court find a person guilty but dismiss without conviction?
Yes: s76, and may per s77 make an order for compensation or restitution
113
Can the court defer sentencing with a deferral to participate in a program?
Yes: s83A
114
What makes an offence indictable?
Per s112 an offence defined in anything other than the Crimes or Wrongs Act as being level 1 through 6 is indictable, everything else is summary.
