Topic One Onus of Proof/Directions to Juries

Criminal Law B Exam Notes 2012

Topic One – Onus of Proof/Directions to Juries

Evidentiary issues are for judges. Persuasive onuses are for juries. Evidentiary Onus: Who has the right or the duty to put something before the court? Persuasive Onus: Who has to persuade the jury of what?

The Prosecution: It is the duty of the prosecution to prove the prisoner’s guilt. They must prove the elements of the offence and disprove any defence that is raised by the evidence (Woolmington/Mullens). The defence must raise the defence only. Elements of the Offence: The prosecution carries the evidentiary onus. They have to prove the elements of the offence and then they have to persuade the jury that all the elements are established. If the defence raises any defences, then the prosecution has to disprove them. These have to be proved/disproved beyond reasonable doubt. Defences: The prosecution does not need to disprove every possible defence only the ones that are raised on the evidence. However, it is up to the judge to figure out whether the defence has been raised on the evidence (Youseff). Occasionally, certain types of evidence raise certain types of defences (Falls Case).

Beyond Reasonable Doubt: The standard of proof simply means beyond reasonable doubt (Dawson). A judge must not use the term “absolute certainty” (Gonclaves). Small glitches may be enough (Robinson).

Defence: Theoretically, the accused does not have to say anything and have a privilege against self-incrimination. The defence has an evidentiary onus for defences. Somehow they have to structure evidence so that certain defences are implied. This may include:  Having a sufficient foundation (Crofts).

2  Prima facie raise the issue (Colvin). However, it is not about proving anything. The defence may raise it through cross-examination question or through the prosecution’s case (He Kaw The). If it has been raised on the evidence, then the judge should direct the jury on that defence in the way that is most favourable to the accused (Stingel).

Exceptions:  Insanity – Everyone is presumed sane. The defence would have to raise it and prove it on the balance of probabilities.  Provocation – The defence has the persuasive and the evidentiary onus. This makes it much more difficult if you just wish to raise it in the background. This has to be proved on the balance of probabilities.

 “For the defence to prove”/”If the person proves” – sign of reverse onus defence. It is the “balance of probabilities” unless otherwise stated.  If drugs are found in your possession you are deemed to be the owner of them. It is for the accused to prove otherwise.  There is a presumption that traffic equipment (red light cameras/ speed cameras) is working. The accused must prove on the balance of probabilities that they are not.  Circumstantial evidence – If one particular piece of evidence cannot be proved, it does not necessarily mean that the case falls apart. However, if it is key piece of circumstantial evidence then it might.  Automatism – Prosecution has to prove it beyond reasonable doubt, but insanity is an issue for the defence (Falconer).

Topic 2 - Policing and Police Accountability

PPRA Schedule 6 (See page 29 Week 2 Legislation Handout)– Key Terminology

3 Reasonable suspicion:  Less than what’s needed to ground belief (George v. Rockett). Very important that there are facts that ground suspicion. There must be an objective standard attached to it.

 “ More than mere idle wondering…positive feeling of actual apprehension…slight opinion” (Queensland Bacon).  Just because the suspicion comes to nothing does not mean that the power was incorrectly exercised (Dobbs v. Ward).  If there is a reasonable suspicion, most powers can be effectively exercised.  Reasonable suspicion has fairly low threshold.

Reasonably Necessary:  Linked to idea of proportionality.  Power needs to be reasonably appropriate and adapted to the conduct (Thomas v. Mowbray).

Pre-Arrest Search Powers  Section 29 – where a police officer “reasonably suspect” any of the “prescribed circumstances” may stop, detain, search the person and seize anything that might cause harm or be evidence.  Schedule 6 sets out what evidence is: evidence of the commission of an offence includes-- (a) A thing or activity that may provide evidence of an offence or suspected offence; and (b) A thing that will, itself or by or on scientific examination, provide evidence of the commission of an offence or suspected offence; and (c) A thing that is to be used for committing an offence or suspected offence; and (d) A thing that may be liable to forfeiture or is forfeited; and (e) A thing that may be used in evidence for a forfeiture proceeding; and

4 (f) A property-tracking document.  Prescribed circumstances include, weapons, drugs, stolen property, evidence etc. (Section 30).  Vehicles can be searched if there is reasonable suspicion (Sections 31-32). Similar as search powers for persons.  Police have power to search public places, dig up land and open locked places (Section 33).

Persons/Vehicles/Public places with a Warrant:  Police would gain warrant in order to protect evidence. If there is no warrant there may be questions about whether there was reasonable suspicion etc.  Applies to public places.  Must apply to a justice.  Must be looking for evidence.  Evidence is at or is likely to be at a place within 72 hours (Section 151).  Warrant ends after 7 days, but is more likely to end before this (Section 155).  Various requirements of what a warrant must state: See also NSW v. Corbett Section 156 What search warrant must state (1) A search warrant must state-- (a) A police officer may exercise search warrant powers under the warrant; and (b) If the warrant is issued in relation to-- (i) An offence--brief particulars of the offence for which the warrant is issued; or (ii) A forfeiture proceeding--the Act under which the forfeiture proceeding is authorised; or (iii) A confiscation related activity--brief particulars of the activity; and (c) Any evidence that may be seized under the warrant; and

5 (d) If the warrant is to be executed at night, the hours when the place may be entered; and (e) The day and time the warrant ends. (2) If the warrant relates to an offence and the offence has been, is being, or may be committed in, on or in relation to a transport vehicle and involves the safety of the vehicle or anyone who may be in or on it, the warrant may also state that a police officer may search anyone or anything in or on or about to board, or to be put in or on, the vehicle. (3) If a magistrate or a judge makes an order under section 153 or 154, the warrant must also state that failure, without reasonable excuse; to comply with the order may be dealt with under the Criminal Code, section 205.  NSW v. Corbett: Police got a warrant to search for firearms under a firearms act. However, the police were worried about Corbett’s mental health, meaning that it was not firearms act legislation. The warrant needs to be as specific as possible.

Post Search Approval:  Limited to indictable offences (and occasionally others) – Section 159.  Post search approval is mainly used where the police are concerned that the evidence will disappear (section 160).  The search can be retrospectively approved by a justice (section 162).  Wright Case – legislation has significant requirements. Court said that there should be compliance because the legislation is trying to protect individuals from oppressive use of police powers. The absolute letter of the law does not need to be followed if public security is at risk. Arrest: Arrest is a very oppressive power as it impinges on liberty.  Police can restrain someone with or without words or using words coupled with submission. They cannot arbitrarily detain people. There might be physical restrain or one might just be told that one is under arrest. Police should not be using physical contact unless it is reasonably necessary.

6  Alderson v. Booth – ideally words might be sufficient, but you might have arrest without the use of words.  Dellit v. Small – Words by themselves are sufficient.

Without a Warrant (Section 365): For an arrest to be lawful in Queensland, a police officer must have reasonable suspicion that an offence has been committed or someone is committing an offence, and it must be reasonably necessary for one of the reasons articulated below. 365 Arrest without warrant (1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons: (a) To prevent the continuation or repetition of an offence or the commission of another offence; (b) To make inquiries to establish the person's identity; (c) To ensure the person's appearance before a court; (d) To obtain or preserve evidence relating to the offence; (e) To prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence; (f) To prevent the fabrication of evidence; (g) To preserve the safety or welfare of any person, including the person arrested; (h) To prevent a person fleeing from a police officer or the location of an offence; (i) Because the offence is an offence against section 790 or 791; (j) Because the offence is an offence against the Domestic and Family Violence Protection Act 1989, section 80; (k) Because of the nature and seriousness of the offence; (l) Because the offence is: (i) An offence against the Corrective Services Act 2006, section 135(4); or (ii) An offence to which the Corrective Services Act 2006, section 136 applies.

7 (2) Also, it is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an indictable offence, for questioning the person about the offence, or investigating the offence, under chapter 15. (3) Subject to the Youth Justice Act 1992, section 13, it is lawful for a police officer to arrest a child without warrant if the police officer reasonably suspects the child is committing or has committed an offence. Editor's note Under the youth justice principles in the Youth Justice Act 1992, schedule 1, it is a principle of that Act that a child should be detained in custody for an offence, whether on arrest or sentence, only as a last resort and for the least time that is justified in the circumstances.

Arrest is not necessarily made unlawful if the person turns out to be innocent (Coleman v. Kinbacher). The lawfulness of the arrest may fluctuate. It must be made clear if there is a contravening offence (assault, escape, etc.) that the arrest was lawful at the time of the offence otherwise the offence may not exist (Michaels/Norton). In situations where the police officer has reasonable suspicion of an indictable offence and just wants to interview the person it is legitimate to arrest the person in order to interview them (Section 365 (2)). This only applies to indictable offences. If there are any concerns about the evidence, a warrant should be sought (Sections 369-372). The arrest must be reasonably necessary.

Safeguards: Police must:  Tell them who they are.

8  Advise them that they are under arrest.  Give reasons for the arrest. If this is not done it does not make the offence unlawful, however it may be used with other matters.  Arrest should stop as soon as it is reasonably practicable (Section 393).  The police either have to give the accused bail, take them to court to have the court decide whether they should be detained in remand or given bail, or should desist with arrest and look to the alternatives.  Williams – Idea of released as soon as reasonably practicable. The balance should be struck in favour of the accused because their liberty is at stake. This does not mean they have to be released, but they should be brought before the court.  Consequences may include civil action and evidence being excluded.

Alternatives to arrest:  Notice to appear – Most matters dealt with in this way (Sections 382-390). This is used for summary offences.  Complaint and Summons – Sections 53-54 Justices Act.  Discontinue Arrest – (Sections 375-380) if police believe that the person is reliable and will appear at court, then they may discontinue arrest, there is not enough to charge, or that taking them to hospital is more appropriate then the police can discontinue arrest.  The police must have new evidence if they wish to re-arrest the person (Section 381).  Infringement Notices – fines, driving tickets, etc.  Move on Powers – (Sections 44-49) if someone is causing trouble the police may move the person on to a different place. There is no need to arrest or charge them with anything.

Police Interview:

9  The person has the right to silence from the beginning to the end. They do not need to contribute to the prosecution’s case in any way (section 397).  Petty and Maiden – accused failed to raise defences at the committal hearing and the prosecution tried to persuade the jury that they were unreliable because of it. The court found that the prosecution could not do that as the accused had a right to silence all the way through and a lack of credibility should not be inferred because of the refusal to talk.  The only exception is that a person must give name and address when requested if the police officer reasonably suspects an offence or that the person can assist with their enquiries. Failure to do this means that you can be charged with an offence under section 791. The defence is that the police officer did not have reasonable suspicion or that the person could not have assisted with enquiries (section 41). This is a reverse onus defence.  See also the application of chapter 15 (Kingston).

Time Limits (sections 403-410)  Person can only be held for a reasonable time.  Time should not exceed 8 hours, 4 hours of that must be “down time”.

Interview Support:  The accused is able to have the support of a friend or relative and a lawyer (sections 418-419). Police must assist in making these arrangements. Police have to wait for a reasonable time (2 hours) for the person to come before they begin their record of interview (section 418).  Must be a private place provided for discussions with lawyer (Barchard).  Failure to allow access to a lawyer may be a problem (Driscoll). Evidence may be excluded.

Recording: Problems with Failing to Record:

10 Conversations between police and suspects must be recorded if practicable. There are quite specific circumstances where the exceptional circumstances would be accepted. If there is no recording the evidence is dangerous. In the absence of any other corroboration, the jury should be directed to treat the evidence with suspicion (McKinney). An example of an exception circumstance may be if the person is in a remote place (Batchelor). If the confession is not recorded there is a good chance that the confession will be excluded as evidence, particularly when it is in the interests of justice to do so (Section 439). The judge has discretion to exclude the evidence. In the case where the confession takes place outside the record of interview the confession is dangerous (Kelly). Talking off record is akin to exercising a right to silence (Nicholls). Legislation does allow for a copy to be given to the accused.

Caution and Interpreters: A two-limbed caution should be given to the accused. The first limb is that they have a right to remain silent. The second limb is to advise them that anything they do say will be recorded and may be used as evidence (Section 431) (Marshall). The person must understand the caution, meaning that the person has the right to an interpreter (Section 433). The police officer must evaluate whether they think the accused will be at a disadvantage as compared with others if they do not have an interpreter.

Interviews in particular circumstances: A support person must be provided and legal aid contacted if the accused is ATSI. The police are responsible for providing this (Section 420). This is the same for people with impaired capacity (Section 422). Evidence can be excluded if these requirements are not met. Police cannot interview someone who is intoxicated until they are no longer under the influence (Section 423) (See also R v. LR).

Post Arrest Searches:

11 Frisk searches/strip searches - anything they find that might be harmful to the accused and others or used in evidence may be seized (Sections 442-443). The arrest must be legal for these kinds of searches to be legal (Courtney v. Thomson). Women should search women, the search must not be conducted in a public place and the police must attempt to maintain dignity (Sections 624-632).

Identifying Material and Forensic Procedures: Police may take identifying particulars, fingerprints, photographs of tattoos and scars, writing samples, iris scans etc. (Sections 467-474. See also Schedule 6). They can only be taken for offences that have a minimum prison sentence of 1 year (section 467). The person can refuse to supply them, however the police can get a court order to enforce it (Section 471). The particulars should be destroyed if you are found not guilty of the offence or they decide not to proceed with the charge (Section 474). Conviction would mean that the particulars would stay with them forever.

Police Force: The force used by police must be reasonably necessary (Section 614). The force is relevant to the power being exercised. The force should not be likely to cause GBH or death (section 615) (Whitelaw v. O’Sullivan). Police may exercise serious levels of force (causing GBH or death) but only in extreme circumstances (for example, where someone is about to commit a life imprisonment offence) (Section 616). The police must warn the individual before they do it. The assessment is a case-by-case one.

Failure to Observe PPRA Procedures: Possible for evidence to be excluded. Principles are common law ones (Section 10).

Evidence can be excluded:

12 1. If it is involuntarily given. Justifications include, reliability, jury danger, police discipline and free choice. If you can show that the confession was involuntarily given, the confession will be excluded for sure. 1.1. The person in authority holds out a threat or a promise. The person in a position of authority is a person who represents an arm of the state (Tofilau). This includes, “officers of police and the like, the prosecutor and others preferring the charge…” (McDermott). This is a very limited group of people. 1.2. Torture (will is overborne). The question is: was the will overborne so the person did not exercise a free choice to speak or remain silent? (Tofilau) 2. There is discretion to exclude. 2.1. Fairness. Consider how the evidence was collected and whether it would be unfair to admit it. This concerns both reliability and procedural fairness. Were the accused’s procedural rights protected? (Swaffield and Pavic) Undercover police officers are dirty tricks and not okay (Swaffield); undercover friends are okay (Pavic). Would a confession have been made if the interview were properly conducted? (Duke) Would the levels of unfairness shock the community? (Em/Tofilau) Theoretical unfairness that might shock the community may include a police officer dressing as a chaplain or a legal aid lawyer (Tofilau). 2.2. Public Policy. This is used when there has been such a breach by police that they should be punished by having the evidence excluded (Ridgeway). It is not about unfairness to the accused. The seriousness of the offence is considered, along with whether, but for police breaches, the accused would have been a law-abiding citizen. 2.3. Probative value (don’t worry). Topic 3 – Police Complaints, Charge and Bail

Ways a suspect will be charged:  Will receive an NTA (Sections 282-390 PPRA).  Will receive a summons (Sections 53-54 Justices Act) 13  Will be arrested, given a bench charge sheet, and then bailed (Section 42 Justices Act). Court can address bail question if needed.

Bench Charge Sheet: Section 12-14 Justices Regulations. The sheet must include:  Defendant’s name.  Offence.  Particulars. This would include property and information about the victim. There will also be aggravation issues.

QP9 (Court Brief): Police fill in this form when they charge a person. This is a more detailed explanation of the facts they are alleging. It will be provided to the defendant at their first mention in court.

The Discretion to Charge: The DPP Director’s Guidelines: 3. DUTY TO BE FAIR The duty of a prosecutor is to act fairly and impartially, to assist the court to arrive at the truth.

. A prosecutor has the duty of ensuring that the prosecution case is presented properly and with fairness to the accused;

. A prosecutor is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack the view put forward on behalf of the accused; however, this must be done temperately and with restraint;

. A prosecutor must never seek to persuade a jury to a point of view by introducing prejudice or emotion;

. A prosecutor must not advance any argument that does not carry weight in his or her own mind or try to shut out any legal evidence that would be important to the interests of the person accused;

. A prosecutor must inform the Court of authorities or trial directions appropriate to the case, even where unfavourable to the prosecution; and

14 . A prosecutor must offer all evidence relevant to the Crown case during the presentation of the Crown case. The Crown cannot split its case.

4. FAIRNESS TO THE COMMUNITY The prosecution also has a right to be treated fairly. It must maintain that right in the interests of justice. This may mean, for example, that an adjournment must be sought when insufficient notice is given of alibi evidence, representations by an unavailable person or expert evidence to be called by the defense.

• EXPEDITION A fundamental obligation of the prosecution is to assist in the timely and efficient administration of justice.

1 Cases should be prepared for hearing as quickly as possible;

2 Indictments should be finalised as quickly as possible;

3 Indictments should be published to the defence as soon as possible;

4 Any amendment to an indictment should be made known to the defence as soon as possible;

5 As far as practicable, adjournment of any trial should be avoided by prompt attention to the form of the indictment, the availability of witnesses and any other matter which may cause delay; and

6 Any application by ODPP for adjournment must be approved by the relevant Legal Practice Manager, the Director or Deputy Director.

5. THE DECISION TO PROSECUTE The prosecution process should be initiated or continued wherever it appearsto be in the public interest. That is the prosecution policy of the prosecuting authorities in this country and in England and Wales. If it is not in the interestsof the public that a prosecution should be initiated or continued then it should not be pursued. The scarce resources available for prosecution should be used to pursue, with appropriate vigour, cases worthy of prosecution and not wasted pursuing inappropriate cases. It is a two tiered test: -

. (i) Is there sufficient evidence?; and

. (ii) Does the public interest require a prosecution?

(i) Sufficient Evidence

15 • A prima facie case is necessary but not enough.

• A prosecution should not proceed if there is no reasonable prospect of conviction before a reasonable jury (or Magistrate). A decision by a Magistrate to commit a defendant for trial does not absolve the prosecution from its responsibility to independently evaluate the evidence. The test for the Magistrate is limited to whether there is a bare

Prima facie case. The prosecutor must go further to assess the quality and persuasive strength of the evidence as it is likely to be at trial.

The following matters need to be carefully considered bearing in mind that guilt has to be established beyond reasonable doubt:-

. (a) The availability, competence and compellability of witnesses and their likely impression on the Court;

. (b) Any conflicting statements by a material witness;

. (c) The admissibility of evidence, including any alleged confession;

. (d) Any lines of defence which are plainly open; and

. (e) Any other factors relevant to the merits of the Crown case.

(ii) Public Interest Criteria

If there is sufficient reliable evidence of an offence, the issue is whether discretionary factors nevertheless dictate that the matter should not proceed in the public interest.

Discretionary factors may include:-

. (a) The level of seriousness or triviality of the alleged offence, or whether or not it is of a ‘technical’ nature only;

. (b) The existence of any mitigating or aggravating circumstances;

. (c) The youth, age, physical or mental health or special infirmity of the alleged offender or a necessary witness;

. (d) The alleged offender’s antecedents and background, including culture and ability to understand the English language;

. (e) The staleness of the alleged offence;

. (f) The degree of culpability of the alleged offender in connection with the

16 offence;

. (g) Whether or not the prosecution would be perceived as counter- productive to the interests of justice;

. (h) The availability and efficacy of any alternatives to prosecution;

. (i) The prevalence of the alleged offence and the need for deterrence, either personal or general;

(j) Whether or not the alleged offence is of minimal public concern;

. (k) Any entitlement or liability of a victim or other person to criminal compensation, reparation or forfeiture if prosecution action is taken;

. (l) The attitude of the victim of the alleged offence to a prosecution;

. (m) The likely length and expense of a trial;

. (n) Whether or not the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so;

. (o) The likely outcome in the event of a conviction considering the sentencing options available to the Court;

. (p) Whether the alleged offender elected to be tried on indictment rather than be dealt with summarily;

. (q) Whether or not a sentence has already been imposed on the offender which adequately reflects the criminality of the episode;

. (r) Whether or not the alleged offender has already been sentenced for a series of other offences and what likelihood there is of an additional penalty, having regard to the totality principle;

. (s) The necessity to maintain public confidence in the Parliament and the Courts; and

. (t) The effect on public order and morale.

The relevance of discretionary factors will depend upon the individual circumstances of each case.

The more serious the offence, the more likely, that the public interest will require a prosecution.

Indeed, the proper decision in most cases will be to proceed with the prosecution

17 if there is sufficient evidence. Mitigating factors can then be put to the Court at sentence.

(iii) ImpartialityA decision to prosecute or not to prosecute must be based upon the

evidence, the law and these guidelines. It must never be influenced by:-

. (a) Race, religion, sex, national origin or political views;

. (b) Personal feelings of the prosecutor concerning the offender or the victim;

. (c) Possible political advantage or disadvantage to the government or any political group or party; or

(d) The possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution.

These are the things that should guide prosecutors in perusing a charge. However, the two tiered test is the most important (Is there sufficient evidence? Does the public interest require prosecution?) The police can withdraw charges at any time. A more careful assessment may occur down the line.

Can a charge be thrown out for breaching guidelines?

Very rare, and usually only occurs when there is an abuse of process (Maxwell). The purpose of criminal proceedings is to hear and determine finally whether the accused has engaged in conduct that amounts to an offence (Jago).

Oppressive prosecution may be an abuse of process. For example:

 Lack of charge particularity. The details of when the offence/s occurred are dubious or when there is simply a blanket charge may be examples of this. (KRM/Rodgers) This means that it is difficult for the defence to fight the charge and present alibis and defences. There is also a lack of clarity about the verdict.

 Doomed to fail. If there is insufficient evidence from the start, then the

18 prosecution should not have gone ahead (Walton v. Gardiner).

 Double jeopardy (Carroll).

Bail (Bail Act):

Bail will only arise when someone is charged with something. Bail will be addressed where there is some doubt that the person will appear in court when they are supposed to. It is possible for the police to grant bail. Police must consider bail where there is an arrest and charge matter, but not matters listed under Section 13 (life imprisonment offences, murder etc.) If the police do not want to consider bail they must take it to court for consideration. Police bail can include conditions. Bail should be considered where the police couldn’t get the person to court within 24 hours. There is an assumption that the person will be given bail unless it is proved otherwise (Section 9). The onus is on the prosecution to show that the person is an unacceptable risk (Section 16 (1)). Bail is a civil issue and is on the balance of probabilities (Gardener).

Section 16 Refusal of bail (1) Notwithstanding this Act, a court or police officer authorised by this Act to grant bail shall refuse to grant bail to a defendant if the court or police officer is satisfied— (a) That there is an unacceptable risk that the defendant if released on bail— (i) Would fail to appear and surrender into custody; or (ii) Would while released on bail— (A) Commit an offence; or (B) Endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else's safety or welfare; or (C) Interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or (b) That the defendant should remain in custody for the defendant's own protection. (1A) Where it has not been practicable to obtain sufficient information for the purpose of making a decision in connection with any matter specified in subsection (1) due to lack of time since the institution of proceedings against a defendant the court before which the defendant appears or is brought shall

19 remand the defendant in custody with a view to having further information obtained for that purpose. (2) In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) the court or police officer shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant— (a) The nature and seriousness of the offence; (b) The character, antecedents, associations, home environment, employment and background of the defendant; (c) The history of any previous grants of bail to the defendant; (d) The strength of the evidence against the defendant; (e) If the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant's community, including, for example, about— (i) The defendant's relationship to the defendant's community; or (ii) Any cultural considerations; or (iii) Any considerations relating to programs and services in which the community justice group participates. (3) Where the defendant is charged— (a) With an indictable offence that is alleged to have been committed while the defendant was at large with or without bail between the date of the defendant's apprehension and the date of the defendant's committal for trial or while awaiting trial for another indictable offence; or (b) With an offence to which section 13 applies; or (c) With an indictable offence in the course of committing which the defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or (d) With an offence against this Act; or Note— For this paragraph, a person proceeded against under section 33(3) is taken to be charged with an offence against this Act—see section 33(6). (e) With an offence against the Criminal Organisation Act 2009, section 24 or 38; or (f) With an offence against the Criminal Code, section 359 with a circumstance of aggravation mentioned in section 359(2); The court or police officer shall refuse to grant bail unless the defendant shows cause why the defendant's detention in custody is not justified and, if bail is granted or the defendant is released under section 11A, must include in the order a statement of the reasons for granting bail or releasing the defendant.

20 (4) In granting bail in accordance with subsection (3) a court or police officer may impose conditions in accordance with section 11. (5) This section does not apply if the defendant is a child.

The lowest level of bail is on the undertaking that the person will appear in court (s11 (1)). However, it is more common for conditions to be attached to it. Surety may be offered by a guarantor who is then responsible for the accused appearing in court (Section 21). If the person does not appear in court, the money is forfeited (Mokbel). There are various requirements for surety as set out in Section 21. If the person makes every effort to get the person to court and those acts fail, then the money may be returned to them (Baytieh).

Which Court? Basically everything except murder and indefinite detention matters can be heard in the Magistrate’s Court (Section 13). Otherwise the application will be heard in the Supreme Court.

When can bail be considered? Bail can be considered at any time (Section 8). More than one application can be made, however one would need to show that circumstances have changed (Bakir/Lacey).

Review of bail: Generally the review of bail is not necessary if one can show a change in circumstances (Section 19B, Section 10(2)). However, if a trial judge makes a decision about bail in the midst of the trial then that decision is final (Wren).

Can bail be granted after conviction but before an appeal is heard? In situations of appeal bail, bail will only be granted in exceptional circumstances because the person has already been found guilty and the presumption of

21 innocence is lost. Exceptional circumstances may include a good appeal claim (Maher/Chamberlain). Courts are reluctant to give appeal bail.

Topic 4 – Commencing Proceedings

Offence Classification: Regulatory Offences: Prosecutors should always prefer summary offences to indictable ones where available. For example, if someone is charged with stealing, is it possible to charge with the equivalent summary offence of shoplifting. The other two regulatory offences are failure to pay (Section 6)/Fraud (Section 408C and damage (Section 7)/Criminal Damage (Section 469). Mens rea (mental element) is still present in these charges. Simple (summary) Indictable (summary)

22 Commence w/in 1year Generally no time limit (although statutory (s 52 Justices Act (JA) 1886 Qld; s388 exceptions and fairness)(see s552FQCC; PPRA re NTAs) s52 Justices Act) Generally heard in the Magistrates Court Prosecution via indictment – so generally (exception s651 QCC) can be heard in higher court (s3(3) QCC but see chapter 58A QCC)

Can be heard ex parte (in absence of Generally accused should be present – accused) although greater flexibility for (ss142-142A JA) misdemeanour (s 617 QCC) Costs may be awarded Costs not awarded in higher courts. (s157, 158, 158A JA)

Summary/Simple Offences vs. Indictable Offences

Simple Offences: These are essentially everything except indictable offences. If the offence is referred to as “an offence” in the QCC, then it will usually be a summary offence. The Justices Act will always regulate procedure. Summary offences can be dealt with in higher courts if they involve the same set of circumstances (Section 651 Queensland Criminal Code). However, the court must see it as appropriate, usually meaning that it must be connected to the indictable offence, the person must be represented, there must be a plea of guilty and the person must be represented. A judge cannot disqualify or imprison a person ex parte. The complaint should be made within one year because they are simple matters.

Costs may be awarded if the offence is dismissed and the accused suffered financially because of it (Sections 158/158A Justices Act). The judge has discretion when awarding costs. The judge will look at whether the charge was brought in good faith, whether the prosecution failed to investigate the offence properly, the conduct of the accused etc. The person can still apply for costs even if they were not represented by a lawyer (Latoudis v. Casey). It is also possible for the accused to pay the prosecution’s costs, but this is unlikely.

23 Indictable Offences The offence as listed in the Queensland Criminal Code will state that the offence is a “crime” or “misdemeanour”. The procedure for indictable offences is in the Queensland Criminal Code. Crimes are more serious than misdemeanours, however the distinction is becoming irrelevant. There is no time limit for the prosecution of indictable offences. Generally, there are no costs awarded. Victims may be awarded costs, however, this is unlikely to happen because of the victims of crime legislations.

If an indictable offence makes it into the higher court, an indictment will be prepared. The accused must be present, however there are exceptional circumstances where this is not the case (Section 617/Stuart). In theory, there is greater flexibility for misdemeanours than crimes (Section 617(4)).

Where are Indictable Offences heard? Chapter 58AQCC when indictable offences can be heard in magistrates court. Why would this be desirable? …speed, cost, penalty, type of conviction recorded… (see s552H; s659 QCC) • s552A - prosecution election for summary jurisdiction • s552B - must be summary unless defence elects jury trial • s552BA- heard summarily – no election required (unless excluded offence under s552BB) * Note value = $30,000 • s552BB - Excluded offences (a list of particular offences + circumstances) • s552D - Magisterial discretion overrides re: s552BA matters

24 special case, def can apply for trial court and discretion of mag. (can be appeal ground see s552J QCC- Hall [1980] QdR 304). • s552G magistrate decides value of property. • s552H maximum penalty 3yrs • s552I special procedure for s552B matters

There may be benefits for the accused if they would ordinarily be facing an offence with imprisonment penalty of more than 3 years. If the offence is heard in the Magistrate’s Court, the penalty can only be 3 years. The general rule is that offences are concurrent.

District or Supreme Court Matters: Whether an offence is heard in the District or Supreme Court depends on the complexity/seriousness/importance of the offence (Section 560 (4) QCC). Sections 60 and 61 of the District Court of Queensland Act sets out what offences can be heard in the District Court. These requirements include: Maximum 20 year imprisonment (Sub Section 1) Specific matters in list (includes rape and sexual offences (Sub Section 2) All other matters end up in the Supreme Court. Extradition: It is possible to extradite from overseas or interstate. Interstate extradition would need to be carried out pursuant to the Service and Execution of Process Act (SEPA) sections 82 and 83. Police can deliver a warrant to the police service in the other state. Those police will then arrest the person and arrange for them to travel back to Queensland. The magistrate can refuse to extradite where they need to protect their own processes, where there is an abuse of process (Loveridge).

Extradition is possible from overseas but only from those countries which Australia has extradition treaties with. The requirements are as follows:

25  Extraditable person – person charged with an extraditable offence.  Extraditable offence – offence must be recognised by the country you are seeking the extradition from.  Must be an offence in Australia.  Must be no extradition objections – for example, ill health objections, religious issues, human rights issues, etc.

Committals Committal processes are a way that the defence can assess the prosecution’s case. There is also disclosure of evidence for the accused. It is also an opportunity for the prosecution to determine whether a jury trial is justified.

When some charges are heard at a committal and others are not, resulting in the accused being found guilty of all of them it may mean that there is an unfair trial in relation to the matters that are not given committals (Barton v. The Queen).

Disclosure in the Magistrates Court A magistrate can order, or a party can request, a directions hearing (Section 83A Justices Act). A defendant can make a request through the Magistrates court for disclosure and then the magistrate can make a request for it. The magistrate can stipulate that the matter is not able to go ahead until there is disclosure. The accused is also able to make an application to cross-examine any witnesses.

Examination of Witnesses The purpose of this is to assess how the witness will go when cross-examined. The magistrate has a supervisory role in this (Section 103B JA). Generally, a committal will go via hand up, and there will be no cross-examination of witnesses (Section 110 JA). The accused must be represented during a hand up committal.

26 There must be an agreement between the accused and the prosecution that certain witnesses can be cross-examined. If the prosecution does not allow this to happen, the accused can make an application under section 83A for cross- examination of a particular witness. If there are witnesses that have been cross examined, then the magistrate will make an assessment on the case that has been presented and decide whether there is sufficient evidence that a properly directed jury could find a person guilty of an offence (Doney). Once all the documents have been handed over and any witnesses have been examined the magistrate will commit the person for trial. The premise of this is that the accused is innocent until proven guilty and the prosecution has to prove the case beyond reasonable doubt.

The magistrate should not allow a witness to be cross examined unless they are satisfied there are substantial reasons why, in the interests of justice, the maker should attend to give oral evidence or be made available for cross-examination on the witness statement (Section 110B). The accused will also have to explain why they are making the application (Section 110C). The accused cannot go on a fishing expedition. The questions asked must also be relevant. Substantial reasons may include (Blacklidge):  The purpose for the cross-examination.  What the accused hopes to determine.  Clear reasons for the examination.  Must bare in mind the purpose of the act. Witnesses who have made inconsistent statements should be considered available for cross-examination. However, it is the discretion of the court to decide whether the reasons are substantial (Police v. K).

Indictments: Assuming that after the committal the matter still needs to go to a higher court an indictment is required. There are two forms:

27 1. Indictment: This is usually prepared after the committal and is a new written charge against the accused (Section 560 QCC). 1.1. These must be presented within six month of full disclosure being finalised, and should be presented to the District or the Supreme Court, whichever is appropriate. There may be an extension of time, including, evidence that is not available yet, or impracticality, etc. It is up to the court to allow this. The gravity of the charge and the evidence will be considered when deciding this (Cicolini). 1.2. The particulars of the offence need to be set out (Section 564 QCC). It is not a big deal if there is a particular missing. The indictment can be amended (Section 572/Fahey). 1.3. There should be one indictment per charge (Section 567(1)) and there should not be an overload of indictments (Ambrose). More than one charge can be attached to an indictment (joinder) under certain circumstances (Section 567 (2) QCC). 1.3.1.1. For example: Same facts (Collins), Series of offences (Iongi), Where crimes are committed for a single person (Cranston). The prosecution has discretion over this, and they must have good reason. If they don’t have good reason the indictments might be thrown out (JMP v. R). Joinder is cheaper and more efficient for both the accused and the prosecution, however there are issues. They are highly prejudicial as juries will connect things together (De Jesus/Phillips). 1.3.1.2. The accused may apply for separate trials (Section 597A/597B QCC). It will be the discretion of the court to allow this (KP). 1.3.1.3. It is possible for co-accused to be joined in one indictment (Section 568). However, this may end in the accused persons negating fault. There may also be issues relating to evidence relating to one and not the other.

28 2. Ex officio Indictment: This matter has gone straight to the Magistrates Court without a committal (Section 561 QCC). 2.1. The risk with this is there may not have been disclosure because there was no committal (Barton). 2.1.1.1. An example of an appropriate ex officio indictment is when a person has gone through a committal for a murder charge and is now going through a trial for manslaughter (Webb/Siugzdinis). 2.1.1.2. If the accused consents, a committal may not be appropriate (Webb). 2.1.1.3. The court also cannot use ex officio indictments as a way of getting around the six month time limit (Section 560 QCC) for an ordinary indictment (Foley).

Topic 5 – Pleas and Double Jeopardy

Charge Bargaining/Negotiating: Nothing is set in concrete until the plea is entered in court. Charges may be altered by the prosecution at any time (Section 48-49 Justices Act/Sections 571- 572 QCC).

DPP Guidelines on Charge Negotiation: 16. CHARGE NEGOTIATIONS

29 The public interest is in the conviction of the guilty. The most efficient conviction is a plea of guilty. Early notice of the plea of guilty will maximise the benefits for the victim and the community.

Early negotiations (within this guideline) are therefore encouraged.

Negotiations may result in a reduction of the level or the number of charges. This is a legitimate and important part of the criminal justice system throughout Australia. The purpose is to secure a just result.

(i) The Principles

6. The prosecution must always proceed on those charges which fairly represent the conduct that the Crown can reasonably prove;

7. A plea of guilty will only be accepted if, after an analysis of all of the facts, it is in the general public interest. The public interest may be satisfied if one or more of the following applies:-

• (a) The fresh charge adequately reflects the essential criminality of the conduct and provides sufficient scope for sentencing;

• (b) The prosecution evidence is deficient in some material way;

• (c) The saving of a trial compares favourably to the likely outcome of a trial; or

• (d) Sparing the victim the ordeal of a trial compares favourably with the likely outcome of a trial.

A comparison of likely outcomes must take account of the principles set out in R v D [1996] 1 QdR 363, which limits punishment to the offence the subject of conviction and incidental minor offences which are inextricably bound up with it.

An accused cannot be sentenced for a more serious offence that is not charged.

. (ii) Prohibited Pleas Under no circumstances will a plea of guilty be accepted if:-

1 (a) It does not adequately reflect the gravity of the provable conduct of the accused;

2 (b) It would require the prosecution to distort evidence; or

3 (c) The accused maintains his or her innocence.

. (iii) Scope for Charge Negotiations Each case will depend on its own facts but

30 negotiation may be appropriate in the following cases:-

1 (a) Where the prosecution has to choose between a number of appropriate alternative charges. This occurs when the one episode of criminal conduct may constitute a number of overlapping but alternative charges;

2 (b) Where new reliable evidence reduces the Crown case; or

3 (c) Where the accused offers to plead to a specific count or an alternative count in an indictment and to give evidence against a co- offender. The acceptability of this will depend upon the importance of such evidence to the Crown case, and more importantly, its credibility in light of corroboration and the level of culpability of the accused as against the co-offenders;

. There is an obligation to avoid overcharging. A common example is a charge of attempted murder when there is no evidence of an intention to kill. In such a case there is insufficient evidence to justify attempted murder and the charge should be reduced independent of any negotiations.

The prosecution should always wait to be approached by the defence. Without plea negotiation, the system would collapse under the wait of trials. Essentially:  The Crown should only conduct charges they can reasonably prove. This implies that they should not attempt to charge someone with something they cannot reasonably prove.  The Crown should accept a plea if it is in the public interest.  Negotiation between accused and Crown are encouraged.  The charges must reflect the seriousness of the charge and provide sufficient scope for sentencing.  Negotiation may be appropriate where there is some kind of deficiency in the evidence. If there is agreement, then it might be appropriate to reduce the charge in order to reflect that.  There must be a balance of the saving of the trial with the appropriate outcome.  Must be considered that they are saving the victim from giving evidence.  Where there is an element of intent required for a charge, there is also an alternative where intent is not required (Murder/Manslaughter).

31  Given that the accused is agreeing with the same set of facts there may be the same sentence imposed, irrespective of the charge.  New evidence may become available and support a new charge. This may be done at any time before the plea is entered.  If there is a plea of guilty, there is a reduced sentence (legislation demands it. See below).  However, the plea bargaining system is quite unaccountable. The public does not know the deals that have been made. This may reduce confidence in the system.

Limits:  The guidelines should be seen as an ethical framework for plea negotiating.  GAS and SJK – Sets out the roles and the way each person should behave. There was an agreement that the sentence should be less however, the magistrate does not have to fulfil the agreement. No sentencing negotiations will bind any judge. All negotiations should be put in writing.  Judges should not be indicating sentencing before the plea (Marshall). There should not be any arrangements with the judge regarding sentencing. The judge should not have to indicate a sentence before they have heard the facts of the case.  Counsel should not meet privately with the judge (McQuire and Porter). Negotiating sentences is not appropriate.  Where the prosecution defaults on the agreement in some cases it will be possible to stay proceedings (Wentworth). This would be in the public interest.

Pleading Guilty: Virtually everything resolves in a plea of guilty. Pleading guilty in the Magistrates Court is set out in Sections145/146 Justices Act. Pleading guilty after committal is set out in Sections 104(2), 133 Justices Act.

32 In the higher courts it is the job of the court associate to put the charge to the accused (Section 597 QCC), and then the person will be sentenced (Section 600 QCC). If the person does not enter a plea, it will be assumed that the person is pleading guilty and the matter will be set down for trial (Section 601 QCC). The accused can enter a plea at any stage, including mid trial (Section 631A QCC). The earlier the plea is entered, the more favourable the sentence will be. The plea can be withdrawn even after the allocutus (Section 648 QCC).

It should be noted that people don’t plead guilty necessarily because they are guilty (Meissner). A guilty plea is not indicative of actual guilt. The court does not have to interrogate the plea of guilty.

The courts must take a plea of guilty into account and may reduce the sentence because of it (Section 13 Penalties and Sentences Act). PENALTIES AND SENTENCES ACT 1992

13 Guilty plea to be taken into account (1) In imposing a sentence on an offender who has pleaded guilty to an offence, a court— (a) must take the guilty plea into account; and (b) may reduce the sentence that it would have imposed had the offender not pleaded guilty. (2) A reduction under subsection (1)(b) may be made having regard to the time at which the offender— (a) pleaded guilty; or (b) informed the relevant law enforcement agency of his or her intention to plead guilty. (3) When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed. (4) A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court— (a) that fact; and (b) its reasons for not reducing the sentence. (5) A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.

33 The defence may use similar cases to show the court the kind of sentence that has been given for a similar type of crime. There is no set amount of reduction. A plea of guilty facilitates the justice process and is therefore a good thing (Cameron). Remorse is also a consideration. Although Section 13 must be taken into account, the court does not have to reduce the sentence (Baker and Bates). If the facts are heinous and the accused is particularly culpable, then there may not be a reduction in sentence. The closer the plea of guilty to be beginning, the more it will be taken into account (BAY/Stuck). If the plea is after the committal it is usually not considered a late plea (BAY/Stuck).

When will a guilty plea be accepted? A court will act on a plea of guilty when it is entered into in open court by a person who is of sound mind and understanding, provided that the pleas is an exercise of free choice and in the interests of the person entering it (Meissner). There is no miscarriage of justice if the person is not guilty, therefore allowing the judge to avoid questioning the plea.

When can a court set aside a conviction when a guilty plea is entered?  The person does not understand the nature of the charge.  The person did not intend to admit they were guilty.  If upon the facts admitted by the plea he could not in law be guilty of an offence.  The person was induced by intimidation or fraud. (Meissner) The court may also see during the hearing that the person may not fully understand the charge or they are, in some other way, not capable of pleading. The court may then reject the plea in cases where there is an abuse of process (Maxwell). The court cannot look into the prosecution’s processes, but when this begins to intervene on the courts processes, that is when the court can refuse to hear the plea.

34 When can a guilty plea be withdrawn by the accused ( Nerbas )?  The guilty plea does not constitute a conviction. The person is not guilty as soon as they plead guilty. Before they are convicted they can potentially withdraw their plea.  The conviction on a plea of guilty is provisional upon the imposition of a sentence. Even when a person is convicted, it is still only provisional prior to the sentence being imposed.  A plea may be withdrawn any time before sentencing. However, they must have the leave of the court.  The court will give leave where there would be a miscarriage or justice or abuse of process if leave were not granted.

Double Jeopardy: Four Rules: 1. A person cannot be tried for an offence of which they have been earlier convicted or acquitted (Section 17 QCC). 2. Where a judge excludes confessional evidence at a trial, that evidence cannot be relied on at a later trial for a different offence. For example, if a judge excludes a record of interview, that cannot be used at a later time for a different offence. 3. An earlier acquittal cannot be undermined or controverted in later proceedings, even for a different offence (Carroll). 4. A person cannot be punished twice for the same crime (Section 16 QCC). The nature of this is to benefit the defendant and protect them from the state. A trial should be properly prepared and there should be finality after that.

Section 17 – Alternative Verdicts Only relevant to listed alternative verdicts in the code (Sections 575-589). If you are found guilty or not guilty of one matter, you cannot be found guilty of an alternative matter on the same facts. Judges should tell juries about alternative verdicts (Willersdorf/Rehavi). It depends on the evidence in the particular case

35 and whether or not the alternative verdict fairly arises on the whole of the evidence (Willersdorf). Section 17 is limited to alternative verdicts.

If the offence is similar but not an alternative it is possible to claim that you have been found guilty/not guilty of an offence on the same set of facts at common law (Viers). There cannot be another trial. Trying the person again would be considered an abuse of process (Walton v. Gardiner).

Where a judge excludes confessional evidence at a trial, that evidence cannot be relied on at a later trial for a different offence. This is to stop endless rehashing of police evidence (Rodgers). Once a judge excludes evidence, it cannot be brought back.

An earlier acquittal cannot be undermined or controverted in later proceedings, even for a different offence. Carroll – Evidence to prove a perjury charge undermined the pervious acquittal for murder. If a new prosecution controverts an earlier acquittal that would be double jeopardy. A person cannot be punished twice for the same crime. The rules against double jeopardy also protect the accused at the time of sentence (Pearce). If one act is part of a series of acts that a person is convicted of and there is overlap in the evidence, then the sentence should reflect that. This is dealt with by ensuring there is concurrency in sentence where there is overlap.

Section 16 (QCC) deals with this issue. There is an exception to the common law principle placed in the statute. The exception is where there is a death caused. A person can be charged with a lower level offence and then if the victim dies as a result of the offence, that person can be charged with murder (Tricklebank).

Double Jeopardy Exceptions Since 2007

36 1. There can be a retrial for murder on the basis of fresh and compelling evidence and it is just to proceed (Section 678B). 2. There can be a retrial for a 25-year offence on the basis of a tainted acquittal (Section 678C). These offences include serious riot, rape, intended GBH, robbery, serious drug offences, and murder (Section 678).

Fresh and Compelling Evidence (Section 678D)  Fresh (Sub Section 2) – The evidence was not adduced in the original proceedings and could not have been adduced with reasonable diligence. It is still required that the prosecution throws everything at the first trial. A change in the rules of evidence may make the evidence fresh (i.e. allowing hearsay).  Compelling (Sub Section 3) – The evidence must be reliable, substantial and highly probative. This is an evidentiary standard.

Tainted Acquittal: 1. The accused person or another person has been convicted of an administration of justice offence in relation to the proceedings were acquitted and, 2. It is more likely than not, but for the commission of the administration of justice offence (Section 16 QCC), the accused person would have been convicted. Essentially, someone lied at the original trial and that caused the acquittal. If there had been that offence there would not have been an acquittal.

Exceptions and Protections (Section 678F) These considerations are related to the interests of justice. The court must consider whether the trial is likely to be fair and must regard the time between the alleged commission of the offence. They must also consider the diligence of the investigators and the expedition in relation to the initial investigation and

37 prosecution and the application for retrial. These provisions onwards cover only acquittals from 2007.

Topic 6 – Trial Process

Prosecution Disclosure There can be applications made by the defence right up to the date of the trial for evidence that appears to be missing in the original disclosure (Section 590AA QCC). In an ideal world, the matter would not be listed for trial until full disclosure is made.

If a judge has ordered disclosure of particular matters and there is a failure to provide documents as ordered, the judge can adjourn proceedings until full disclosure is given (Section 590AAA QCC). Cost orders can also be made against

38 the prosecution. The obligation to disclose is a fundamental one (Section 590AB), and they should disclose all evidence they wish to rely on. All things in the possession of the prosecution are to be disclosed unless they are in the public interest. They also have a duty to disclose things that might assist the defence’s case.

If there isn’t any disclosure or if there is no disclosure there is not inevitably an unfair trial. There may be various orders made, but if there is a conviction and part of the conviction is appealed because of a lack of disclosure, there is no guarantee that the conviction will be overturned even if it is accepted that there was a lack of disclosure where there should have been disclosure (Section 590AC QCC). The court may ask whether the late disclosure resulted in a missed opportunity of acquittal (R v. OL).

There are two categories of prosecution disclosure, material that must always be disclosed (Section 590AH) and material that must be disclosed on request (Section 590AJ). Material that must be disclosed:  Bench charge sheet.  Accused criminal history.  Statements made by the accused.  Notices relating to affected children (victims in sexual offences cases usually).  Witness statements.  Forensic test reports.

Material that must be given on request:  Particulars if a proposed witness is an “affected child”.  A witness criminal history.  Material adverse to a witness reliability/credibility/competence.

39  In possession of the prosecution, but not intended to be relied upon. This includes things that will be helpful to the accused.

Limits on Prosecution Disclosure: The prosecution is not required to disclose:  Any material already disclosed.

 “ Sensitive evidence”. This might include things that affect a person dignity or privacy. In events where this is the case, the prosecution might provide a description of the evidence to the defence and they would be able to go and see it but not take it away.

 “Section 93A Statements”. These are statements made by children who have been sexually assaulted. As above, the defence can go and see the evidence, but they can’t take it away.  Limit on witness contact details. If the contact details are important evidence they may be given.  Limit on material contrary to public interest. This includes material that may facilitate further offending or be politically damaging.

The accused can waive their right to disclosure, but it must be done in writing (Section 590AT/590AU). Courts can also waive if there is good reason.

Time Limits: Mandatory disclosure must be made at least 14 days prior to the date for hearing in the magistrates court (committal of summary trial) and no more than 28 days after the presentation of the indictment (Section 590AI). When a request is made, the evidence should be provided as soon as practicable (Section 590AK). There is an ongoing obligation to disclose information (Section 590AL).

Defence Disclosure: The defence must disclose the following:

40 1. Alibi evidence (Section 590A/Erasmus). This is evidence that might be provided by the accused or someone else to argue that they were not at the scene of the crime. Alibi evidence should be given early so as to give the prosecution the ability to form their case around it (Erasmus). 2. Expert evidence (Section 590B/de Voss). This might include evidence of insanity and diminished responsibility. This must be given to the prosecution early so that they can get their own reports. Not giving the prosecution sufficient time to get their own reports might be prejudicial to their case (de Voss).

Hearings in the Magistrates Court: Justices Act  Person has to be taken to court either through arrest and charge, notice to appear or complaint and summons. A bench charge sheet and QP9 will also be provided.  There may be a directions hearing (Section 83A). For example, there may be a directions hearing regarding applications for evidence (Brown v. Owen).  There might be other issues heard at the directions hearing including issues of joinder, particulars and previous convictions. This is to allow the defence to see what might be alleged against them.  There can be amendments to the charges if necessary (Section 48-49 JA).  Plea entered. If the plea is guilty the matter is finalised, if it is not guilty the matter goes to trial.  Entering a plea of not guilty is the same as for the higher courts (Section 148).  After the prosecution presents its case there may be a no case submission by the judge if there is insufficient evidence etc. This may result in either a directed acquittal or a stay in proceedings.  Defence evidence comes after prosecution case.  Final addresses – If the defence did not present evidence they go last, if they did they go first.

41  There might be issues of costs depending on what happens.

Trials in Supreme and District Court  Proceedings commence with an indictment following committal or ex officio indictments presented.  Directions/Pre-trial Rulings - There are similar issues to the previous ones, including sorting out issues of disclosure, double jeopardy, exclusion of evidence, stay of indictments and questions of law.  Arraignment on the accused (Section 597C).  Entering a plea of guilty – proceed to sentence.  Entering plea of not guilty – trial by jury or judge alone trial.

Judge Alone Trials If the trial is already listed and the accused knows who the judge will be there must be very good reasons why they want a judge alone trial (Section 614 QCC). Special reasons would not include circumstances where the facts are quite plain and the outcome inevitable. The reasons must be out of the ordinary, distinct, particular, must carry particular weight in the case. However, it does not need to be incredibly unusual (Prisk and Harris). The application for a judge alone trial should be made before the trial is listed. The defence must consent/make the application. The prosecution does not have to consent. The judge then must make an assessment of the circumstances and ask whether it is in the interests of justice to have a judge alone trial. The ordinary approach is that there will be a jury trial (Section 615 QCC). There are three main things that are considered: 1. Whether there is a retaliation issue that might put jurors at risk. 2. Complex evidence. 3. Pre trial publicity. Clough – Focus on whether it would be in the interests of justice. There are no particular categories of cases that should have judge alone trials. It will be considered whether the accused will get a fair trial if they have a jury trial. The

42 subjective views of the defendant are relevant, but only one consideration of many. Ferguson – significant pre-trial publicity meant that he would not get a fair trial. The “expertise” of juries must be balanced with the interests of justice.

Juries – Jury Act 1995: Part of a fair trial is having a jury (Kingswell). The person is able to be judged by people who are also subject to the law. In jury trials, everything is much clearer and have the appearance of being impartial. It is also not good for counsel’s case if they misbehave in front of a jury. There are often more appeals from jury trials as there tend to be more problems with the way in which things are explained to them. The Jury Act has the following provisions:  There are limits to who can serve. Lawyers who engage in legal work cannot be jury members (Section 4).  To be included in a jury one must be enrolled to vote, have an address, and have to be eligible (not corrective service officers, police, MPs, etc.) The criteria to exclude are found in Section 21.  There are 12 people plus reserves (Sections 33-34).  There must be disclosure regarding suitability (Section 35).  There is a right to challenge advised (Section 39). There are 8 peremptory challenges (Section 42). They do not have to explain why they are challenging a person. There are 8 challenges per defendant. If there is more than one defendant there are more challenges. There must be an equal number given to the prosecution.  There might be challenges for cause if there is an individual jury member who might not be qualified or impartial (Section 43). This can be particularly problematic in small towns.  There are possibilities to challenge the whole panel (Section 40). This might occur where there were problems with selecting the panel. There is judicial discretion to discharge (Section 46).

43  Section 47 allows for special challenges where pre-trial publicity might have affected jury members. One can ask the members of the panel if they will be bias against the accused because of publicity (Stuart/D’Arcy).  When something really bad happens in a trial it is possible for the judge to discharge the jury (Section 48).

Impartiality Examples: Tichowitsch – Jury member had granddaughter who was raped and was now sitting on a sexual offences trial. The court did not quash the conviction because the matter had been properly dealt with during the trial and the defence went along with it. Edwards and Ors – Drunk jury member had to sleep at police station overnight. The issue was not only was there prejudice, but would the ordinary member of the community believe there was prejudice. The court found that it might be seen to be prejudicial to an ordinary member of the public. R v. McCosker – Small country town. Friend of ex wife being on the jury. The defence allowed this person to be on the jury. Discussion as to whether you can waive your right to an impartial jury. The test to be applied is whether it gives rise to a reasonable apprehension or suspicion on the part of a fair minded individual that the jury will not discharge their task impartially. R v. Metius – There might appear to be impartiality if the jury is being particularly threatening.

Jury Misconduct:  It is possible for the jury to view the crime scene (Section 52). The problem is when jury members go and do their own research. In Myles and Myles there was a particularly active jury member, however, it was found that the evidence they collected did not answer or affect the central question for dispute in the case.  Under Section 59 the jury should come to a unanimous verdict, however it is possible to have a majority verdict (Section 59A). The jury should have

44 at least 8 hours to come to a decision and then we may have a situation where they may come to a majority verdict (11/12 or 10/11). If they have not come to a decision close to the 8 hours, they should be given a “black direction” where they will be told to work harder/try and come to a decision. If that fails, they will be told to come to a majority verdict (Section 59A), but not before 8 hours. The “black direction” is optional and failure to do so may not result in the quashing of a conviction (McClintock). There is also no requirement for time limit to come to a majority verdict (Royal).

Other Aspects of Higher Court Trials:  Voir dires – discussion in open court without the jury in the room.  No case submission – this may be given when it is found that an ordinary jury member, properly directed, could not convict a person.

Nolle Prosequi (Section 563) This is where the prosecution removes the case during the trial because it has become apparent that there will probably be an acquittal. The closer the verdict the more likely it will be found to be an abuse of process. The removal of a case does not mean that the indictment goes away. The charge may come back at any time, provided there has not been an abuse of process. When a court looks at application for this, they are not to review the decision making procedures of the prosecution. They are not looking into whether the charge should have been made in the first place. They are protecting court process to ensure that individuals who come before the court get a fair trial (DPP v. B). There are minimum requirements for a fair trial and one of them is that sometimes defendants need to be protected from Nolle Prosequi’s execution. It is an old view that the court cannot review a Nolle because it would interfere with the procedure of the prosecution.

45 Topic 7 – Fair Trial and Abuse of Process

Fair trial and abuse of process are not particularly distinct issues (Jago).

Fair Trial: If a trial runs by the rules one can usually, but not always, expect that the trial is fair (Dietrich). There might be ideals about the way in which a trial is run but they are ultimately constricted by limits to resources. Norms and notions of

46 fairness change over time (McKinney). The principles of fair trials are incorporated in various legislation as well as in common law. The DPP prosecution guidelines are also helpful for this. The pre-trial issues might implicate on the ability for the accused to have a fair trial later on (for example, disclosure). It may be considered that there is a right not to be tried unfairly (Jago).

Appearance of Fairness: People in the community should be able to look at a trial and know that the trial was conducted properly. This is necessary for the public maintenance of faith in the legal system. It is a fundamental principle that justice must not only be done, but it must be seen to be done (Johnson v. Johnson). It is possible that if the judge interjects too much and criticises the defence in front of the jury might make it look like the judge is bias (RPS v. R). If the judge takes over the role of the prosecution, that might have influenced the jury and made the trial unfair (Copsey). A sleeping judge may also give the appearance of an unfair trial (Cesan).

Examples of what makes a trial unfair:  Failure to exclude evidence (Nicholls and Coates).  Refusal of separate trials (De Jesus/Phillips).  Lack of disclosure/committal (Barton).  Jury irregularities (Tichowitsch/Edwards).  Prosecution behaviour. Examples: Livermore – Prosecution said various horrible things about rape victim and criticised defence witness. The prosecution should not put anything in closing addresses that is not in evidence, make inflammatory remarks, or impute the credibility of a witness or make negative comments about them unless the other side have the opportunity to respond to them. KP – Prosecution made comments about another complainant of which there were no charges.

47 Szabo – There was a relationship between the defence and prosecution counsel.  Lack of an interpreter. There is no absolute right to an interpreter, however if it becomes clear that the person cannot understand the evidence and the way the trial is being conducted there might be an unfair trial. Examples: Ebatarinja – If the defendant does not speak the language in which the proceedings are being conducted the result will be an unfair trial. This suggests that if you cannot get an interpreter the decision should either be quashed or proceedings stayed. De La Espriella-Velasco – Appealed on the basis that the interpreter was not competent. There would be an unfair trial where there was denial of an interpreter where one was needed, but in this case it was sufficient.

Abuse of Process: An abuse of process may be considered as conduct that goes against the purpose of the court process. When there is an abuse of process the court has a duty to protect itself and it has various ways of doing this.

What amounts to abuse of process? Will exhibit one of three characteristics (PNJ v. The Queen): 1. The invoking of a court’s processes for an illegitimate or collateral purpose; 2. The use of the court’s procedures would be unjustifiably oppressive to a party, or 3. The use of the court’s procedures would bring the administration of justice into disrepute.

Examples:  Lack of offence particularity (Rogers/Patel). This made it difficult for the defendant to respond to the evidence.  Purpose of proceedings (Williams v. Spautz).

48  Inappropriate use of ex officio indictments (Barton). There may be certain contexts where this is appropriate however in contexts where it is inappropriate this would amount to an unfair trial.  Double jeopardy/Controversion of earlier acquittal (Carroll).  Nolle Prosequi (Saunders).

Delay: Delay is not sufficient on its own however it may have the effect of an abuse of process. There is no right to a speedy trial. The proceedings can only be stayed for delay when the effect of the delay is to create an unfair trial. Things to consider: 1. The length of the delay. The longer it is the more likely it is to impact on an unfair trial. 2. The reasons for delay. 3. The accused’s responsibility to assert their rights. Did the accused enjoy the delay or did they attempt to move the trial on? 4. Prejudice suffered by the accused. Did the accused suffer prejudice because of the delay? 5. Public interest. Is the public interest in forcing the trial ahead or staying proceedings. In Jago, it was found that proceedings should only be stayed in extreme cases. It is unlikely that a delay in itself is generally not going to be enough. Generally it is in the public interest to prosecute people and to do this without unnecessary delay. If a trial goes ahead after significant delay that may result in an unfair trial as it was a misuse of court process. Delay is inevitable, the question is how much is the delay and what affect did it have on the accused. Most of the cases speak of prejudice to the accused.

If the accused wishes to permanently stay proceedings, they must be able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute (Jago).

49 Other examples: Edwards – Four or five year delay and some evidence was lost. Because the lost evidence had unknown content and could have gone either way the matter was forced on. The delay was not sufficient. Khoury – Disorganised prosecution. Court allowed a stay in proceedings because they were the authors of their own misfortune. There was also prejudice to the accused, as he could no longer afford a lawyer to run the case. Gill – Witnesses died after twenty-year delay. Wrigley – There was no prejudice to the accused because of the fading of memories.

Pre-Trial Publicity: There is a clash between the public’s right to know and the accused’s right to a fair trial. There is the ability to have contempt of court and suppression order to stop this from happening but they are civil matters and only occur in exceptional circumstances. Glennan – It is certainly possible for jurors to acquire prejudicial information. However, if the trial judge consistently instructs the jury to focus on the evidence and not the pre-trial publicity. Delays in proceedings may be a way of handling issues of widespread pre-trial publicity. Purdie – Dismissing a jury before the trial because they may be subject to pre- trial publicity may be a way of handling minor issues. This is an issue that is entertained by courts, but it is rarely successful.

There are several things that may be done in order to prevent pre-trial publicity from being a problem (Ferguson): 1. Jury directions (Jago) – “by the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness.”

50 2. Section 47 Jury Act – The judge can cross-examine jury members to see if they are influenced by pre-trial publicity. 3. Adjournment/Delay – Happened in a practical sense in Glennan and Dupas. 4. Forum change (Section 557 QCC) – There is an assumption that the trial will take place nearest to where the offences took place. To combat pre- trial publicity, the court could be changed (Long). 5. Judge alone trial (Section 614/615 QCC) – This has to be consented to by the defence.

Responding to Unfairness or Abuse of Process: During/Commencing the trial: the judge must manage the trial:  Adjournments so the problem can be fixed (Section 88 JA; Section 592 QCC).  Refuse to accept a plea.  Ensure appropriate procedures are followed.  Make appropriate rulings on evidence.  Appropriately direct the jury.  Discharge jury members if necessary.

After the trial: Appeal against conviction. Order a stay of proceedings. Stay Proceedings: The court might stay for a certain amount of time or indefinitely. The application may be made before (Section 590AA) or during the trial or as a result of the appeal. The proceeding should be stayed for a necessary period of time until the problem is resolved (Williams v. Spautz). This is similar to an adjournment without a fixed date for return. The stay has two purposes, to combat abuse of process and to ensure that the person is protected from a trial that is unfair. However, the court must think that there is nothing else that can be done.

51 Permanent Stay: If it is not a case where there cannot be a directed acquittal. This is not something that courts want to do, however sometimes there may be exceptional circumstances. In order to permanently stay proceedings there must be a fundamental defect which goes to the root of the criminal trial of such a nature that nothing that the trial judge can do in the conduct of the trial can relieve against its unfair consequences (Jago).

Oppressive Prosecution: Williams v. Spautz – The purpose of the prosecution is to be oppressive. The prosecution is improper where its purpose is to gain some kind of advantage.

Malicious Prosecution: A v. New South Wales – The police service in continuing with proceedings knowing that they would fail could be sued in tort law.

Topic 8 – Legal Ethics and Legal Representation in Criminal Matters

Legal Ethics:  A practitioner’s primary responsibility is to the court and then to the client (Council of the Queensland Law Society v. Wright).  There should be full and frank disclosure between client and solicitor (Szabo).

52  There is a different between the way in which one is supposed to defend a client when they have confessed and wish to plead not guilty. If the client has not confessed, the defence should be structured in a way that attempts to show that your client was not the person who did the offence (alibi, forensic evidence, etc.) If the client has confessed, the defence should attempt to show that the prosecution does not have enough to prove that it was the accused that committed the crime. This can be summed up as a positive defence vs. burden of proof issues.  Must avoid duties where we are responsible to two or more clients that might be in conflict.  One must not mislead the court.  Bear in mind burden of proof rules when considering ethics issues.

Douglas’ Comments:  Never stop your client from telling you something they wish to tell you.  Always allow a client to report you if they wish to. Provide information and contact details to them.  Never ask a client if they are guilty or innocent. However, you should tell them that anything they say to you should be truthful because you may seek to rely on it and it would be embarrassing if it were false.

Legal Representation: There are many places where the right to legal representation is entrenched:  ICCPR paragraph 14.3(d)  Section 616 QCC  Murphy’s dissent in McInnis – the issue was whether a person would loose the prospect of a fair trial if they were unrepresented.  Dietrich – Did loose a real chance of acquittal because he was unrepresented. It could potentially be unfair if a person did not have legal

53 representation at trial. However, the court did not say that there was a right to have publically funded legal representation.

Dietrich Principles: 1. Indigent accused. 2. Charged with a serious offence. 3. Through no fault of their own does not have legal representation. 4. There are no exceptional circumstances present.

Indigent: The person lacks means for paying legal representation. This also includes not being able to pay for full trial, being able to afford a solicitor but not a barrister, etc. Lack of means does not mean that the person is living in poverty; it means that the person cannot afford to obtain appropriate legal representation (Marchi). One must assess the resources of the accused and the resources they need to run an appropriate trial. The court might be prepared to delve into what money a person could get from relatives (Smith). The court may also look at how the accused has used their initiative in finding money to pay for legal representation; however, it is not a snapshot test. One can look how the person has used their money since becoming aware that they would have to be legally represented. The court may also consider if they have to pay for expert witnesses to come to court for the defence (Roddan). Serious: Seems to be limited to indictable offences, but might be too narrow a frame considering Moynihan reforms. Dietrich mentioned that serious would indicate a judge and jury setting in the District and Supreme Court, however it might not be limited to this. The court will also look at whether there is a real threat to liberty imposed by the charge (Dietrich). This might be assessed on the likely outlook of the charge (Essenburg). This principle has been limited to trials and not

54 committals, enquiries, or appeals (Helfenbaum/Cannellis/Sinanovic/Crampton). Legal aid do appear to be supportive of appeals, particularly against conviction.

No Fault: If the person is at fault then they do not have a right to legal representation. The fault need not be deliberate or wilful (Small). In Craig it is clear that one must look at the whole picture of the accused in deciding whether or not there is fault in a particular case and the behaviour of the accused. An accused can make a small fault and still be able to get legal representation. The accused cannot constantly be sacking lawyers (Batiste). If the accused is using delaying tactics, that will be considered fault (East). However, the person should be given the opportunity to explain the situation. When an accused misbehaves, is unreliable, does not provide requested evidence, they are considered at fault (Promizio).

Quality: For the purposes of Deitrich, a person has a right to competent legal representation (Fuller). There legal aid granted to the defence does not have to match the skill of the prosecution (Milat). One might be considered without legal representation if the level of legal representation does not meet the level of the case (Souter).

Exceptional Circumstances: The exceptional circumstances that might give rise to a person being able to represent themselves might include if person is legally trained or a skilled litigant (Fuller). If a person is mentally ill and this causes some fault this may be considered an exceptional circumstances (Wilson).

Unrepresented and Competence:

55 If a lawyer is plainly incompetent, then for all intents and purposes that person has not been legally represented (Eastman). The lawyer decides how to run the case (Birks), so they can make bad decisions but that does not make them incompetent. It is not regarded as incompetence if not every single decision is rational or wise (TKWJ). There must be something incredibly fundamental for there to be incompetence. However, someone must have lost a real chance of acquittal as a result of the incompetence (Nudd).

Legal Aid: There is both a means and merits test. The merits test involves looking into whether:  There is a reasonable prospect of success.  Someone who was self-funding would fund this.  Case is appropriate.

Unrepresented Persons – Issues: Having legal representation is an advantage to the accused. The judge should give assistance to unrepresented people and ensure that there is a fair trial (MacPherson). However, the judge is not an advocate. The judge needs to tell the accused of their rights and assist them in facilitating the rights. The judge should not excessively intervene (Esposito).

McKenzie Friend: This is a person who is not a legal representative who assists the accused. It is to the court’s discretion as to whether they allow this to occur. The complexities and difficulties that the unrepresented person faces, the fact that there is no disciplinary code or insurance will be taken into account (Damjanovic v. Maley).

Amicus Curie:

56 This is an independent third party who has an interest in the issues (Levy v. Victoria).

Generally, if there is a real prospect of attaining legal representation the court will adjourn proceedings so that the person can get that representation.

Topic 9 – Considerations Underlying Sentencing

Punishment: Punishment should involve pain or circumstances that should be considered unpleasant (Hart). Punishment may also involve a setback of interests (Wilson). However, this might include things that are not necessarily punishment (taxes). Punishment must be for the breach of legal rules. It should also be the person who

57 carried out the offence, and should be administered by someone other than the victim. Most theorists think of punishment as a symbolic approach to crime (Bentham).

Media and Sentencing: The media creates the “bark” in sentencing, but has very little “bite”. This certainly does not make much difference to judges’ discretion. Media campaigns usually result in the increase of the maximum penalty rather than the minimum. The media generally affects the way that the statute is put together, rather than what the judges do on the ground.

The Sentencing Hearing:  The courts ask the person if there is any reason why they shouldn’t be punished (Allocutus - Section 648 QCC). This starts the procedure of sentencing.  If the court is concerned about what to do with an individual, they might order a pre-sentence report (Section 15 PSA). This looks at various medical/rehabilitation responses, the offender, prior convictions, etc. It is a nice snapshot into the person’s life and may include considerations and possible solutions.  The prosecution will put forth their views on sentences. These should be based on facts, carefully made, and have a view to the sentence the person should expect to get (Ku et al). However, ultimately the judge decides.  The defence comments on sentence. Generally, they put forth arguments to attempt to limit the sentence. Section 132 C Evidence Act states that there is a specific burden of proof in sentencing cases. Generally, the defence make a claim, the prosecution rebuts the claim, and the judge must be satisfied on the balance of probabilities that the statement is true/false. If the facts are not in conflict, then the magistrate or judge should accept them.

58  Judge should refrain from bias comments. Judge should refrain from comments that indicate they have a set against the accused (Porter).  The victim’s views should be considered in the sentencing process (Section 15 Victims of Crime Assistance Act).  All facts found by judge have to be consistent with jury findings (Cheung).  Generally the judge is not required to give reasons. They usually do so that they aren’t appealed as easy. The judge should give reasons if there will be a jail term. A lack of reasons is not an appeal point in itself.

Judicial Discretion and its Limits: Judges want to have the most discretion they can have, therefore it is an instinctive synthesis process that has be settled on by the High Court (Markarian). This is conducted by looking at the various factors and then deciding what is the appropriate sentence, rather than taking an average sentence and adding and subtracting (staged process).

Statutory Penalty: This involves minimum and maximum penalties. Most offences have a maximum penalty. There is a mandatory life penalty for murder (Section 305 QCC); however there can be negotiations on the release date. There are differing penalties depending on whether there are aggravations present. There generally are not numerical guidelines as most judges resist them. There is a system of case law to give a sense of the range that should be given to your client (Pesnak/Ku et al).

Statistics: Court is very reluctant to use statistics to give a sentence as the case before the judges could be the exception, not the rule (Markarian). Judges are wary of statistics. Guiding cases are more useful (Morton).

Totality:

59 This is the idea that the sentence should be just overall. The aggregate needs to be just and appropriate (Mill). It is also necessary for the court to take a last look at the total to see if it is appropriate in the circumstances. The penalty should not be crushing (Schmidt). This is because we do want the person to be out in the community eventually.

The assumption is that jail sentences should run concurrently (Section 155 PSA/Crofts). There are certain circumstances where this is not the case (see next topic). One notable exception to this is crime committed whilst in custody. In that case the sentence will be added on to the one already being served. The court will also consider the amount of time the person has already spent in remand (Section 159 PSA).

Maximum: The maximum is obviously the highest penalty a person can get, however there is debate as to when the maximum should be given. Veen #2 argues that the maximum should be reserved for the worst example of that offence. It does not mean that a lesser penalty should be imposed if it is possible to envisage a worse case. Situations of great heinousness will warrant a maximum sentence (Fernando). A judge must look at an offence and see if it is grave enough to warrant a very long sentence (Murdock). The offender’s history and risk factor is very important.

Parity: One would assume that like offences should receive a like sentence. However, all offenders are not alike, for example, if one pleads guilty and the other doesn’t (McQuire and Porter) or if one is the ringleader. The context of the offence and the role of the offender in the offence are more relevant (Ku et al). There may also be different mitigating factors (youth, criminal history, etc.)

60 Consistency: It is impossible to have absolute consistency when context is taken into account (Wong).

Aims of Punishment: There is no consistency in any particular case as to the reasons the person was punished. The purpose of punishment will depend on the individual. However, prison is not a dumping ground for difficult social problems (Clarke). Vengeance is also not a reason for punishing people. Section 9(1) PSA lists the following reasons for punishment:  Just punishment  Rehabilitation  Deterrence – General or special.  Denunciation  Protection There may be more than one for any one individual.

Just Punishment (Section 9 (2) (a)): Idea that the penalty is proportionate to the crime that was carried out. Linked to the idea that a person gets what they deserve.

Rehabilitation (Section 9 (2) (b)): This assumes that punishment can be used as a form of treatment for the offender. The younger an offender is, the more likely the offender is to be rehabilitation (Taylor and Napatali). There are also special rehabilitation programs for people charged with drug offences (Sections 15B-15F PSA). First offences will usually receive the benefit of rehabilitation-orientated sentences (community based sentences).

Special Deterrence (Section 9 (2) (c)):

61 This assumes that offenders make rational choices, which denies the kind of offences that usually occur continuously. This is focused on the individual.

General Deterrence: This is focused on society or a group. This can work in certain contexts. Where there is a prevalent problem, this may be responded to using general deterrence (Amituani). Where the court takes offence at a particular crime they might focus on general deterrence to attempt to stop it (Pangallo/Sabanovic). This is particularly true when the crimes relate to the criminal justice system.

Denunciation (Section 9(2)(d)): According to Kirby, this comes with the territory or inevitable, potentially liked with the idea of just deserts (Ku et al).

Protection (Section 9(2)(e)): Penalties can be used to protect the community from future harm. This is better linked to the idea that the person is incapable of committing crimes rather than being rehabilitated so they no longer commit crimes. If the person is a risk, then protection can be used to justify punishment (Veen #2).

Factors: In addressing the factors to be considered for a sentence, there are aggravating factors and mitigating factors. Aggravating factors make the sentence go up, mitigating factors make the sentence go down (Colless). If the prosecution or defence have not specifically raised an issue but it comes up in the paperwork somewhere the court is required to notify the parties that they are considering the issue as an aggravating or mitigating factor (Lui). Extra-curial punishment may be taken into account when sentencing (Hannigan).

Section 9 (2) PSA sets out any relevant factors for decisions on sentences: (2) In sentencing an offender, a court must have regard to—

62 (a) principles that— (i) a sentence of imprisonment should only be imposed as a last resort; and (ii) a sentence that allows the offender to stay in the community is preferable; and (b) the maximum and any minimum penalty prescribed for the offence; and (c) the nature of the offence and how serious the offence was, including— (i) any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim given to the court under the Victims of Crime Assistance Act 2009, section 15; and (ii) the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence; and (d) the extent to which the offender is to blame for the offence; and (e) any damage, injury or loss caused by the offender. This is related to community protection. Victim Impact Statements are able to be used where the court sees it as appropriate (Section 15 Victims of Crime Act/Singh). This is a core consideration when looking at sex offences (Section 9(5) – (6) PSA); and (f) the offender’s character, age and intellectual capacity; Generally, the younger you are the more open you are to rehabilitation (Taylor and Napatali). Old age must be liked with some kind of illness and isn’t a factor on its own (Gulyas). Where a person has an intellectual disability, this is more likely to reduce the person’s culpability but has a significant justification for the purpose of punishment (Verdins). However, the courts should not focus too heavily on the element of risk as it might lead to a disproportionate sentence, and (g) the presence of any aggravating or mitigating factor concerning the offender; and (h) the prevalence of the offence; and (i) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and (j) time spent in custody by the offender for the offence before being sentenced; and (k) sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing; and (l) sentences already imposed on the offender that have not been served; and (m) sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender; and (n) if the offender is the subject of a community based order—the offender’s compliance with the order as disclosed in an oral or written report given by an authorised corrective services officer; and (o) if the offender is on bail and is required under the offender’s undertaking to attend a rehabilitation, treatment or other intervention program or course—the offender’s successful completion of the program or course; and (p) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example— (i) the offender’s relationship to the offender’s community; or (ii) any cultural considerations; or

63 (iii) any considerations relating to programs and services established for offenders in which the community justice group participates; and (q) anything else prescribed by this Act to which the court must have regard; and (r) any other relevant circumstance.

Section 11 PSA lists character as another relevant factor. Good character generally means the person has no prior convictions (or no prior convictions of that nature). Character may also take into account community views of an individual. However, prior convictions may trump any community support the person has (Ryan).

Cooperation with Authorities: Actual cooperation with authorities is awarded with mitigation as it is helpful for the speed of the investigation (York). Promised assistance (Section 13A PSA) can be a mitigating factor, however there are rules associated with it. This allows for the court to give a significant reduction in penalty as a result of the promised assistance but also states what the sentence would be if they did not help. If the person does not give the assistance they offered, the court will give them the higher alternative (Webber).

Culture: Fernando – Need to avoid racism, paternalism and collective guilt in sentencing. However, there may be some things that need to be taken into account when sentencing aboriginal people that are related to their race. Neal – All things that affect an individual should be taken into account, and one of those is race. Impact on Self and Others: Self: The impact on an individual if punished could be considered by the court in sentencing (York).

Impact on Others (only in exceptional circumstances):

64 Children might be a consideration (Tilley). However, the public interest will outweigh this. This was emphasised in Burns.

Community Based Sentences Preferred (Section 9(2)(a) PSA): Except in violent or sexual offences (Section 9(3)-(4) PSA). Community protection is more important in these circumstances. Violence has a broad meaning; distress is not enough (Breeze) but threats are (Barling).

Sexual Offences Against Children: Children must be under 16. However, in McGrath, it was a police officer mascaraing as a 14 year old (attempted offences are included). Sexual offences surrounding computers and images are also exempt.

Topic 10 – Punishment and Penalty

Lower level penalty Intermediate penalty Higher level penalty

65 • Conviction not • Conviction not • Conviction recorded recorded / recorded / conviction • Intensive Correction conviction recorded recorded (s12) Orders (ICO) (Part 6) (s12 PSA) • Suspended sentence of • Community Service imprisonment • Bond / Orders (CSO) (Part 5) (Part 8) recognisance (Part • Probation (Part 5) • Imprisonment (Part 9) 3) • Serious Violent offender • Fines (Part 4) (Part 9A) • Repeat child sex offences (Part 9B) • Indefinite imprisonment (Part 10)

Recording a Conviction (Section 12 PSA)  Can be considered a penalty in itself.  Just because a conviction is not recorded does not mean the police and the court don’t know about it. If there is no conviction recorded you do not have to disclose it to potential employers.  Increasingly, legislation is focusing on whether a person has ever been in front of the court.  The nature of the offence, the character and age of the offender, impact on recording a conviction on social/economic wellbeing and chance of employment are all stipulated under statute to be taken into account.  It is much less likely to have a conviction recorded for a trivial (summary) offence. However, it is possible to have no conviction recorded for other offences.  Trivial crimes must be ascertained by reference to conduct, which constitutes the offence for which the offender is likely to be convicted and to the actual circumstances in which the offence was committed (Walden v. Hensler). Therefore, it is the conduct of the accused and the nature of the offence that constitutes a trivial offence.  Having no conviction recorded sends a message to future courts that the first act was not worthy of a criminal record.  Only available for lower and intermediate level penalties.

66  Consideration of employment prospects is often the most important reason for appealing against recording conviction (Ndizeye).  Can appeal against conviction recorded.  R v. Briese – There is a concern where someone does not have a conviction recorded they can go to new employers without convictions. In situations where there has been an abuse of trust, that would be a situation where it might be appropriate for there to be a conviction recorded.  R v. SAT – The public might have a right to know that the person has been found guilty of an offence. This is particularly true where the offence is a sexual one. A conviction should be recorded unless there are exceptional circumstances.  R v. Mirza – There are extra things that should be considered when deciding if a conviction should be recorded in a sexual offences case; Pre- mediation, actual contact, impact on the victim, guilty plea, employment and community service, rehabilitation prospects, and impact of the conviction.  Assume that in matter of sexual offences that there will be a conviction recorded, however there are plenty of examples where this has not happened.

Releases (Part 3 PSA): Sectioin 19 Bond – This basically involves the person being admonished and discharged. Most are placed on a good behaviour bond, meaning they shouldn’t commit any more offences. This can be anything from 1-3 years. If a person reoffend, the person is brought back to court and resentenced relating to the original offence. The person can be ordered to complete various rehabilitation programes. Sureties or recognisance can be paid in some circumstances. This can be expected in trivial or minor matters or where it is the person’s first offence. It is also considered a very lenient punishment. The same kind of considerations are used for this as for normal sentences. No conviction will be recorded with this

67 kind of bond, however there are others under the same provision in which convictions will be recorded.

Other Minor Penalties:  Recognisance for minor property related offences (Sections 22-28). This can be order along with bond, community service, etc.  Orders for restitution or compensation (with other penalties) (Sections 34- 43). This is where goods are ordered to be returned or money has to be paid as compensation for the act.  Ferrari – Difference between restitution and compensation.  Civoniceva – Restitution and compensation are not penalties in themselves, they are in addition to the penalty.  Courts don’t make restitutional compensation orders very regularly, usually these are dealt with in other forums.

Fines (Part 4 (Sections 44-51):  Fines do not have to have a conviction recorded. That is discretionary.  Unlike other responses, there is no consent of the accused required.  These can be ordered along with most other penalties (Section 45).  The penalty unit is $110. Most offences have a maximum penalty unit (section 46).  The financial circumstances of the accused and the burden of the fine can be taken into account (Section 48/Woolard v. Ellis). It is not very clear what the burden of the fine is.  A person can appeal against the fine (Meid).  Unpaid fines result in licence suspension.

Probation (Part 5 Sections 90-99):  Possible to have conviction recorded or not recorded, depending on the seriousness of the offence (Section 90).

68  There must be consent for the individual because they will be undertaking some kind of rehabilitation (Section 96/93/94).  Can make a single order of probation for multiple offences (Section 97).  Possible to order probation from 6 months to 3 years (Section 92).  Opportunity for the state to impact on a person’s daily life.  Generally, one will ask whether probation is consistent with the other penalty being applied. R v. Hood stated that probation can run alongside a prison sentence of no more than 12 months, a suspended sentence for another offence only, but cannot be run with an intensive correction order.

Community Service Order (Sections 100-108):  Unpaid work in community.  May be able to tailor a community service order to the type of offending the person has done.  This must have the person’s consent (Section 106, 101).  Minimum amount that can be ordered is 40 hours, the maximum is 240 hours over 1 year period (maximum overall, even for multiple offences) (Section 103).  There is no translation made between the hours of community service work and the person’s hourly rate at their place of employment (Nieto v. Mill).  It is possible to have a suspended sentence and a community service order on different offences (R v. Vincent). When mixing penalties, the court should have the particular individual in mind.  Probation and community service orders are okay together (R v. Mathers) (Section 109).  Community service orders and intensive correction orders cannot be put together (R v. Grieg).  If there is a breach then you can be brought back and resentenced (with significant discretion).

69 Intensive Correction Orders (Part 6 Sections 111-119):  This requires a conviction be recorded (Section 111).  Also requires that a person consent (Section 117).  The court must decide that the person is worthy of a term of imprisonment before they consider an intensive correction order (Section 112).  As part of an intensive correction order one may be required to partake in unpaid work, rehabilitation, etc. (Section 114/Tran).  Considered to be a serious penalty.  Considered for punishment purposes as akin to prison.  If one were to breach the ICO half way through, when resentenced one would be considered to have served half the sentence already.  For the “last resort” purpose, ICOs are not considered imprisonment (Bagust).

Suspended Sentences (Part 8 Sections 143-148):  There is a conviction recorded (Section 143).  Maximum is 5 year and can be suspended for 5 years (Section 144).  There is a two-step process (Dinsdale): Imprisonment must be appropriate, and likewise suspension must be appropriate.  In order to suspend the sentence, the court must be satisfied that rehabilitation is possible; there is a low likelihood of reoffending, and the impact on the offender (Dinsdale). The court may also consider the safety of the offender if they were to go to jail (York).  Breaching a suspended sentence would usually result in the sentence being served (Holcroft/Sections 145/146/147). However, the court must look at the nature of the reoffending and be flexible with it (Hurst). Also considered is the time served under the suspended sentence and the effort the offender has gone to in order to be rehabilitated (Stevens). The gravity of the breach is relatively flexible and the court may also consider how much of the suspended sentence the offender has served (Summerlin).

70 Imprisonment (Part 9):  This is the upper end of punishment scale.  After a person goes to prison the rate of reoffending goes up.  Should be the last resort (Section 9 (2) (a) (i)).  A conviction must be recorded.  Generally, a prison sentence is concurrent (Section 155). However, if the offender commits an offence whilst in prison will add to the sentence (Section 156/156A).  Time served on remand is deducted from the sentence (Section 159A).  Unlike other punishments, each particular offence must have a particular penalty and are usually served concurrently (Crofts).

Serious Violent Offenders (Part 9A (Sections 161A-161C)):  Schedule 1 has a list of offences that are considered serious.  If a person is serving a sentence of 10 years or more (where it is a serious violent offence), the court must declare that person is a serious violent offender and they must serve 80% of their sentence before being considered eligible for parole (Section 161B(1)).  If the person is serving a sentence of between 5 and 10 years the court has discretion as to whether the person should be considered a serious violent offender. They, too, will have to serve 80% of their sentence before being considered eligible for parole.  The court must consider the consequence of the penalty (McDougall; Collas).  When considering a declaration, the court must take into account, the level of violence, prior convictions, etc.

Repeat Serious Child Sex Offences (Part 9B):  Offences included in Schedule 1A.  This is the two strikes policy. If there are two strikes there is a mandatory life sentence.

71  Concern that there will be ramifications (there is no incentive to leave the victim alive).

Indefinite Sentences (Part 10):  This is a risk assessment response in order to prevent more victims falling foul of an offender.  When there is an offender that is at great risk of reoffending they can be given an indefinite sentence. The person is given a head sentence (eg. 10 years) and after it the sentence is reviewed. There is no guarantee of release.  There must be regular review (Section 162).  This can only occur in exceptional circumstances (Buckley).  Usually the risk assessment involves expert reports.

Dangerous Prisoner (Sexual Offenders) Act 2003: The Attorney General can apply to detain a sexual offender beyond their sentence if they are considered a risk (Fardon). The detention is indefinite.

Risk? There is a risk that the state will get its risk assessments wrong and keep people in prison who are not risky.

Non-Contact Orders (Part 3A): This is usually given with other penalties in order to prevent the offender from contacting someone (usually the victim) for a maximum of two years (Gaudry). If this is breached, the person can be resentenced with a maximum of one year imprisonment. There must be a specific person identified.

72 Topic 11 – Appeals

Initial hearing Appeal

Magistrates Court District Court Court of Appeal High Court s222 Justices Act via s118 District s35 / s35A Judiciary Court Act & s668D Act 1903 (Cmth) QCC

73 District Court - Court of Appeal s668D QCC (chapter 67 QCC)

Supreme Court -

It is a lot easier (theoretically) to appeal against convictions in the Magistrates Court as courts are generally reluctant to appeal jury decisions. Generally it is possible for an accused to appeal against conviction and sentence, however (for double jeopardy reasons) it is not possible for the prosecution to appeal against acquittals. The prosecution can appeal against sentence.

Appeals for the Magistrates Court to the District Court:

Section 222 Justices Act – Appeal to a single judge: If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way (i.e. Magistrates Court) on a complaint for an offence or breach of duty, the person may appeal within one month after the date of the order to a District Court judge.  This provision reflects how we deal with summary matters where there is a concern about the result.

 “Feels aggrieved” has been interpreted very widely to include any person who has a direct interest in the case (McCarthy v. Xiong). This could include a person who is not a party to the case. This might include the victim. This does not include mere busybodies.

 “ Within one month” applies to all appeals. There are certain rules that allow time to be extended (Tait/Section 224(1)(a)). This time limit applies across the board.  A person who pleads not guilty and is convicted can appeal against conviction, sentence and cost orders (Section 222(1).

74 Some exceptions apply under Section 222 (2) (Summary Offences): (a) a person may not appeal under this section against a conviction or order made in a summary way under the Criminal Code, section 651;  These are summary offences dealt with in the higher courts. Under 651, the court must think it is appropriate, the accused must be represented, the Crown must consent, the bench charge sheet must be seen by the court. McKinlay v. Commissioner of Police (b) if the order the subject of the proposed appeal is an order of justices dealing summarily with an indictable offence, a complainant (police etc.) aggrieved by the decision may appeal under this section only against sentence or an order for costs;  Because there are more and more matters being heard summarily, we do not want the prosecution to have greater appeal rights just because they are dealing with indictable offences in a summary way.  This limits the appeal rights of the prosecution so the appeal rights are the same as if they had dealt with the matter in the District or Supreme Court (where they can’t appeal against acquittal). McKinlay v. Commissioner of Police argued that if this provision did not exist, the prosecution would have rights they were not entitled to have. (c) if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.  This is a limitation for defendants who plead guilty in the Magistrates Court to summary matters.  This has been interpreted more widely by the courts than the section suggests it should be.  Where a plea of guilty to a charge that clearly did not exist at law does not amount to a plea of guilty (Hall v. Bobbermen).

75  Where the appellant’s plea was equivocal or (upon analysis) amounted to a plea of not guilty this section does not count (Ajax v. Bird).  Courts can consider costs appealable (R v. Samson). This was considered by the court to be the purpose of the legislation.

Attorney General Appeals from Magistrates Court: These are indictable matters that are heard at the Magistrates Court. If the A.G. wants to appeal against sentence the matter goes straight to the Court of Appeal (Section 669A QCC). It is possible to refer points of law to the Court of Appeal (Section 227 JA). An example of this is Harrison v. Wilkins.

Which evidence can be heard on appeal? 223 Appeal generally a rehearing on the evidence (1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. (2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. (3) If the court gives leave under subsection (2), the appeal is-- a) by way of rehearing on the original evidence; and b) on the new evidence adduced. Original evidence means transcripts of proceedings. The witnesses do not have to go through evidence again. It is possible to bring fresh evidence into court, which have similar requirements to extension of time limits. The approach in the court of appeal is followed (Pavlovic v. Commissioner of Police).

Powers of the Court (Section 225): The District Court can confirm, set aside or vary the order, or make any other order the judge considers fit. If the decision is quashed, the case goes back to the

76 Magistrates Court for rehearing and reconsideration. The prosecution has to decide whether they go back to the Magistrates Court.

Costs (Section 226): The judge may make an order regarding costs. Courts of appeal have very wide discretion on costs (Murray v. Radford).

It is possible to take a matter from the District Court up to the Court of Appeal (Section 118 District Court Act), however leave is needed from the Court of Appeal. This usually involves an assessment of the significance of the matter.

Appeals against Conviction from District of Supreme Court to Court of Appeal (Sections 668B/668D/669A QCC):  These are indictable offences that begin in the District or Supreme Court.  There is a right by the defence to appeal against conviction if it is a question of law alone (Section 668D (1) (a)). Fitzgerald – The wrong direction to a jury is a question of law alone.  If it is a question of law and fact, or a question of fact alone, there must be leave to appeal (Section 668D (1) (b)). Zischke – Judges direction fault and cost of damage caused error caused a fact and law combination.  A question of fact is decided by the jury; a question of law is decided by the judge. If in doubt, say that the person may have to apply for leave. It is the strength of the appeal that will allow you into the court anyway. Section 671 QCC – Time to Appeal (Same for Magistrates Court Decisions): (1) Any person convicted desiring to appeal to the Court, or to obtain the leave of the Court to appeal from any conviction or sentence, shall give notice of appeal or notice of application for leave to appeal, in the prescribed manner, within 1 calendar month of the date of such conviction or sentence. … (3) The time …may be extended at any time by the Court…

77  Tait – There is some time limit in the granting of time limits. Generally, it will come down to the reason for the delay, and being unrepresented and unaware is a good reason (Hatten). The overriding issue is whether it is in the interests of justice to extend the time. Other considerations include the viability of the appeal (Riley), the prospect of success, the prejudice to the prosecution, and the length of the delay.

Fresh Evidence on Appeal: Section 671B QCC states that normally the court only considers the transcripts, however fresh evidence is able to be heard under certain circumstances. There is some flexibility as to how the court of appeal might deal with it, and this implies fresh evidence. Fresh means evidence that was not available in the original trial will reasonable diligence (from the defence) (R v. A). The court will also consider whether the evidence would have made a difference in the original hearing (Mickelberg). The evidence must be quite influential and credible (Gallagher v. The Queen).

Grounds where against Conviction in Court of Appeal: Section 668E(1): The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.  There is overlap between the miscarriage of justice ground and the others.

 “Unreasonable; cannot be supported by the evidence”: This occurs when the jury has found that there is sufficient evidence for a conviction. We would be asking the Court of Appeal to revisit that evidence and say that the conviction cannot be supported by the evidence. Essentially, the jury made an error. M argued that the conviction would be unreasonable where

78 it is unsafe or unsatisfactory. This is a question of fact and the court has to decide looking at the transcript that, although the jury had looked at the evidence and convicted, all the circumstance meant that it would be dangerous to let the verdict stand. The court has to ask itself the view of all of the evidence and not parts of it. The court will look at the transcript and decide if it was reasonable for the jury to believe beyond reasonable doubt that the person was guilty. It is a different analysis that goes on here then would occur in a directed acquittal (MFA). However, it is up to the jury to convict on offences, and the court probably shouldn’t look too deeply into convictions of some counts but not others (MFA).  Wrong decision on a question of law: This includes situations where it is impossible to charge a certain person with a certain offence (Fingleton), certain evidence was put before the court that shouldn’t have been (Nicholls), and incorrect interpretation of provision (Bardsely). If you can get an error of law it is most likely to get to the next level.  Miscarriage of justice: This can be both actual and perceived unfairness (Svabo). This might also include jury prejudice for whatever reason, prejudicial judge comments, prejudicial media, or an aggregate of faults (Festa).  Some things will fit into more than one category.

The Proviso (Section 668E(1A) QCC): Even if it is possible to prove grounds etc. the appeal is not going to happen unless we can establish a substantial miscarriage of justice. This ultimately requires the loss of a real chance of acquittal (Festa). If you can prove that the conviction cannot be supported by the evidence that would suggest there is a substantial miscarriage of justice (unusual, though it is).

Weiss:

79  A substantial miscarriage of justice must have actually occurred.  There is an independent assessment of the evidence.  Does the court really think that the person lost a real chance of an acquittal?  The court would have to go back to the evidence to look at whether, because of the errors, the person lost a real chance of acquittal.

The Proviso and Fundamental Error: Were the errors in the trial so fundamental that we can bypass the proviso because everyone has a right to a fair trial and this trial was not fair even though it did not amount to a substantial miscarriage of justice? The courts will allow this to occur but they have never done it. R v. Navarolli: 1. An appellate court cannot be satisfied that no substantial miscarriage of justice has actually occurred unless it is satisfied beyond reasonable doubt that the appellate is guilty of an offence. 2. The limitations on the appellate process may mean that it is impossible for the court to be satisfied in the circumstances of the case, simply by reason of the nature of the process. 3. Satisfaction of guilt beyond reasonable doubt is a necessary, but may not be sufficient condition for the application of the proviso. 4. There may be some errors or miscarriages of justice which amount to such a serious breach of the presuppositions of the trial as to deny the application of the appeal provision with its proviso. Wilde:  The error must go to the root of proceedings.  The accused has not had a proper trial and therefore a miscarriage of justice has occurred.  There is no rigid formula.

80 Patel – The inclusion of extremely damaging evidence was considered to be a substantial miscarriage of justice, therefore meaning the proviso did not need to be bypassed.

Appeals from District/Supreme Court to Court of Appeal (Sections 668E/668F/669 QCC): Once the appeal is allowed, the court can either quash the conviction (Section 668E (2) or quash some convictions but not others (Section 668F). They will usually quash the conviction and grant the possibility of a new trial (Section 669). This is the norm, but that doesn’t mean it will happen (up to the prosecution to go through with it). The questions the court will ask itself (Fowler): 1. Is the evidence cogent? i.e. is it all there? If the evidence were fabricated, there would not be a retrial. Problems with jury behaviour, jury directions, etc. can be fixed. 2. Is it just to order a retrial? These are the usual considerations including prejudice, whether the person has spent time in custody, etc. Usually 2 retrials (three trials) will be the limit (Jackson). It is possible for the crown to appeal the refusal for a retrial (Taufahema).

Outline of Appeals from District/Supreme Court to Court of Appeal: 1. Is it in time (S 671)? 2. Is it a right or does it require leave (S 668D)? 3. Is there fresh evidence (S 671B)? 4. Are there grounds for appeal (S 668E(1))? 5. Was there a miscarriage of justice or a fundamental error (S 668E (1A))? 6. Will a new trial be ordered? These should all be set out in an outline of argument.

Appeals against Sentence: Magistrate’s Decision:

81 Defendant: Where plead not guilty (Section 222 (1) JA to District Court. Where plead guilty (Section 222 (2) (c) to District Court. The House principle applies when appealing against sentence in the Magistrates Court (JRB v. Bird)

It is possible for a police officer to appeal the sentence of a summary offence (Section 222(1)). This would then go to the District Court. Where there is an indictable offence heard summarily and the prosecution does not think it is sufficient, the Attorney General will appeal against the sentence and that would go to the Court of Appeal (Section 669A(1)(b)). If the defence is also appealing sentence/conviction, the entire matter would go to the Court of Appeal.

Defendant Appeals against Sentence: A defendant needs to apply for leave to appeal a sentence from the District/Supreme Court to the Court of Appeal (Section 668D QCC). Appeals against sentence and conviction are to be dealt with separately. If the Court of Appeal intends to increase the sentence, they must advise the accused of this and give them the opportunity to withdraw the appeal (Neal). It is virtually unheard of for the Court of Appeal to increase a sentence without an application from the Attorney General.

Grounds: The appeal point for the accused is that the sentence is “manifestly excessive” (Skinner). This is the ultimate ground. The court will not interfere with a sentence unless there is an absolute need to because the Court of Appeal is working from the written record and does not have the benefit of hearing all the evidence as it was at the trial.

House v. R:

82 Saying something is manifestly excessive and nothing else might lead to judges just revisiting the discretionary application of the sentence. The following principles underpin a judge revisiting a sentence:  That some error has been made in exercising discretion.  Wrong principle.  Extraneous or irrelevant matters.  Mistakes the facts.  Does not take into account some material consideration…determination should be reviewed.  Unreasonable or plainly unjust…may infer improper exercise of discretion and review. Also applies in appealing decisions from the Magistrates Court.

Attorney General Appeals against Sentence - District/Supreme Court Judge’s decision: QCC 669A Appeal by Attorney-General (1) The Attorney-General may appeal to the Court against any sentence pronounced by-- (a) the court of trial; or (b) a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court; and the Court may in its unfettered* discretion vary the sentence and impose such sentence as to the Court deems proper*.  House principle does apply to appeals from the Attorney General (Lacey v. A-G). The High Court argued that one must consider the jurisdiction and the powers of the Court of Appeal. The Attorney General’s power should be used sparingly and should not be used as a “second shot” at a sentence without giving reasons. Equality before the law means equality between defence and prosecution. The Attorney General must demonstrate an error in order to allow an appeal. This was cemented in R v. Major; ex parte A-G and R v.

83 Kuzmanovski; ex parte A-G. The role of the Attorney General is to be a model litigant and to cement the proper principles into law.

Other Attorney General Matters under Section 699A QCC:  The Attorney General may appeal against stays (Section 669A (1A)) (Ferguson). The power to stay is to prevent breaches of court procedure. The Court of Appeal will review the stay, review the mischief the stay is supposed to be responding to and making a second decision as to whether a stay is appropriate (Moti).  Points of law can be referred by the Attorney General (Section 669A (2)) where an indictment has been heard or in the summary trial of a charge of an indictable offence (R v. Folling; ex parte Attorney General). This can occur both at the end and in the middle of the trial itself.  Section 18 QCC allows the Attorney General to grant the common law power of a royal prerogative of mercy. Usually this with either happen when the person has run out of appeal options or where they have sought leave to the High Court and that leave has been refused. There may be a free and unconditional pardon granted, a conditional pardon, the remission or part remission of a sentence or an order for inquiry. Usually this will be sent back to the Court of Appeal for reconsideration.  Executive pardon - Usually, the individual will petition the government for mercy and the government will reissue the matter to the court of appeal for reconsideration (Section 672A QCC). This normally occurs when fresh evidence arises. A successful pardon will discharge the offender from the consequences of the conviction (Section 677 QCC). See R v. Martens. The test for fresh evidence is the same as for double jeopardy and appeals (Kina). Often the person has spent some time in custody, so the DPP will not order a retrial if the decision is quashed by the Court of Appeal (Mallard).

84 Appeals to the High Court:  There must be leave obtained for a case to be heard in the High Court (Section 35 (2) Judiciary Act).  The basis of leave is: s35A: proceedings involve a question of law which is of public importance or in respect of which the court is required to resolve differences of opinions within the one court or between different courts; and whether the interests of the administration of justice require the court to consider the judgment of the court below.  Essentially, there should be something special in the case (White). There must also be a point of law of general application (applies to Australia generally) (Morris).  There might be perfectly valid cases, but the High Court does not accept them because they are not of general application. They are also concerned with the public principles, rather than the private concerns of an individual.  They can basically do anything a Court of Appeal can. They can require a retrial on the same test as above (Fowler).  Sentencing appeals also require the application of the House principle. When the High Court considers a sentencing appeal, they give great weight on the original sentence and are reluctant to interfere with the discretion of the original judge. The High Court will also need to identify the error, focus on the process of decision making, and give very little weight to the claim that the sentence is “excessive” (there will need to be examples given).

85 Topic 12 – Restoring Justice

Victims of Crime Assistance Act 2009:  More a recognition of the criminal offending rather than true compensation.  Victims can go to government to get money where they have been the victims of crime. They do not have to go through the court system.  Limited to acts of violence.

86  The administrative scheme has to be persuaded on the balance of probabilities.  Requires a complaint to police to be made and evidence of injury.

Restorative Justice:  Focus on response and repairing harm done.  Crime is the violation of one person against another.  Victim becomes key player and has as much “air time” as defence.  Based on communication.  Do reduce reoffending (27% reduction).  Works better for violence than property offences.  Victims feel better about it.  Cost benefit analysis works in favour of restorative justice.  Meetings between victims and offenders are usually part of it.  Decisions are in parallel with court decisions.  Higher victim satisfaction and remorse.  Reduces revenge.  Less post-traumatic stress disorder.  There is a lot of debate as to whether these schemes should be used for sexual and domestic violence offences.

Justice Mediation:  Face to face meeting between victim and the accused and a police officer (possibly also a support person).  Admission to the facts of the incident.  Consent by all parties.  Returning stolen property.  Agreeing to do something for the complainant (paying money or repairing damages).

87  Making an apology.  Defendant may agree to attend counselling.  Defendant potentially avoids conviction.

Indigenous Justice:  Sentencing only (already an admission of guilt).  Magistrate has ultimate decision on sentence.  Contribution of elders.  Attempt to engage the offender.

Drug Courts:  Therapeutic jurisprudence.  Offending must be related to drug problem (illicit drug addiction).  Must be at risk of being imprisonment.  Violent/sexual offences are excluded.  Person assigned a team. More like a case management for a drug rehabilitation order.  Really a suspended sentence with conditions.  Very labour intensive.

Special Circumstances Court:  Target is people who have impaired decision-making capacity and the homeless.  Usually drug, theft and property offences.  Attempt to deal with the problems that underline the offending.