pre-trial procedure Flashcards
(13 cards)
police powers: to enter and to search
the police may in certain circumstances be permitted to enter land to arrest a person and in process search premises
At common law police are permitted to enter land of another for one of
five purposes: (1) to execute the king’s process; (2) with occupier’s expressed or implied consent; (3) prevent or stop a breach of the
peace
s459a gives additional power to police officers to enter and search premises to arrest people who have committed or are believed to have committed serious indictable offences
police powers
reasonable suspicion
reasonable suspicion is not arbitrary
some factual basis for the suspicion must be shown
a suspicion may be based on hearsay material or materials which may be
inadmissible in evidence
the materials must have some
probative value
police powers: searching people
searching homes and offices infringes rights to privacy and to property
body searches infringe even more the right to privacy and person liberty. it concerns a person’s bodily integrity, our
right not to be touched without our consent
strip searches are more threatening to those rights to personal autonomy than body searches
searching people by dog
commencing criminal prosecutions: other than by arrest
criminal proceedings can be commenced in a number of ways:
- summons
a summons is a legal document that initiates a criminal prosecution by requiring an individual to appear in court to answer to a criminal charge
it’s a formal notice outlining the charge and the date, time, and location of the initial court appearance
failing to appear as directed on the summons can result in a warrant for the individual’s arrest
-
notice to attend
a document issued by police or a public official, requiring an individual to attend court to answer to a suspected criminal offense
it’s a way of starting criminal proceedings without requiring an arrest
the notice specifies the offense, circumstances, and court date, and failure to attend can lead to arrest and further legal action
-
infringement notice
a way to deal with minor offences without going to court, but they can lead to criminal prosecutions if not handled properly
essentially, an infringement notice is an on-the-spot fine issued for minor breaches of the law
while paying the fine is an alternative to court, failure to do so can result in further action, potentially including criminal prosecution
-
arrest
when police reasonably believe a person has committed an offense, they can arrest them, either with or without a warrant, and take them into custody
this arrest is a formal procedure where the individual is taken into police custody, potentially leading to formal charges and a court appearance
commencing criminal prosecutions
- freedom from detention a human right
- judicial failure in controlling police use of arrest
key elements of lawful arrest
- some physical restraint but not necessarily - arrest can be verval if the person arrested submits
- a person should ne explicitly or implicitly informed that the person is no longer free to leave and must remain
- the person arrested must be informed of the reason for the
arrest unless the person makes this impossible by resisting or
trying to free or because circumstances make it clear - an arrest which was unlawful can become lawful once person is told of reason
- reasonable force, including lethal force, can be used to arrest a person
reasons a person can be arrested
- reasonable suspicion
- reasonable belief
- arrest under warrant for arrest
custody
primarily refers to the care and control of a child, particularly following a separation or divorce of the parents
it involves determining who has the responsibility for the child’s upbringing, daily care, and decision-making regarding their welfare
in australia, the family law act 1975 guides these decisions, prioritizing the child’s best interests
- protection for those in police custody
- protections for cognitively impaired peopoe in police custody
- right to silence
- exclusion of improperly obtained evidence
pre-trial procedure
bail
bail applies to those who have been arrested and charged where
police have chosen not to proceed by summons
there is an obligation on the arresting officer where the accused is not released using police powers to bail to take them before a bail justice or magistrate
the release of a person who has been charged with a crime from custody, with the condition that they will appear in court at a later date to answer the charges
essentially, it’s a process that allows an individual to be free in the community while awaiting trial, rather than being held in jail
bail
- guiding principles
- human rights and release before trial
- bail process (bail law reform and increasing prison population)
- sometimes bail refusal
- precedures for granting and reviewing bail
bail
three questions
1) has a family violence order, or notice, or a recognisded dvo (domestic violence order) been made or issued?
2) is the accused an aboriginal australian, a child, a vulnerable adult, or a person over the age of 18 in a remand centre?
3) what category does the offence fit into?
- schedule 1 offence; or (ii) schedule 2 offence and terrorism record or risk; or schedule 2 offence committed on bail
- schedule 2 offence; or (ii) any other offence and terrorism record or risk
- all other offences where there is no terrorism record or risk
bail conditions
bail can be granted subject to conditions to address any unacceptable risks to make them more acceptable:
- reporting to a police station - perhaps daily;
- abiding by a curfew;
- requiring accused to live at particular place;
- surrender of passport;
- not to associate with certain people;
- not to go within specific distance of person or place;
- not to consume alcohol or drugs; and
- accept supervision of corrective services
checkpoint
in lockean liberalism the state comes first and citizens and their rights are limited by the state.
false
- locke claims that the state is formed by people who already have rights – including the right to liberty - and the state is formed subject to those rights
