REVISION 4

 Identify the issues.

 Show can identify the issues, which are reflected in wk 9 10 11, and then show u can apply the law
to the fact circumstances.
 Would like to get the answers right, but what looking for is to show u understand the issues & u
know what the process is to come to a conclusion.
 Fact that u might make the wrong call is not as important.
 More about process, showing u are capable of working out how u can resolve these problems.
 Planning answer is very important. Show what u would have dealt with had u had time, and having
a clear structure.

PROBLEM
 1) Was there a proper reason for the search?
 S 68
 S 52 (immediately relevant bc it relates to drugs) Facts of the case that makes this relevant =
smelling of cannabis. In other situations eg Gibson v Ellis, the officer was searching under s
68. Bc stopped him for a different reason. In Gibson, the 1st suspicion was something
different. Here, the 1st suspicion was drugs.
 Was the search reasonably conducted under s 68?
 Basis for breath test = different legislation, not suspicion. That is the circumstance, but doesn’t
prompt the suspicion.
 1) show u know under what legislation searching under.
 2) Where there is a drug issue, s 52 might be relevant. Searching of the vehicle v Searching of
person.
 2) Personal search of him. He tries to exercise rights under CSA  magistrate.
 Relevance of his request of wanting to be taken before a magistrate? It’s a procedural issue.
He has a right that’s enshrined in the legislation. The consequence of his request = should
have been taken to Magistrate. In not doing so, as a consequence, she acted improperly.
Unlawful.
 So she is statutorily obliged to take him before a justice, in searching wihtut doing that she is
acting illegally which might give rise to a discretion.
 3) Caution.
 Right time to administer a caution : slipping from investigatory to accusatory.
 Did she issue the caution at the right time? What suspicion did she have prior to the finding of
the knife that might have given reason to be accusatory?
 She was investigating for drugs in the car.
 The search disclosed nothing. Then it disclosed a knife.
 So suspicion that there might be a murder weapon aroused before her finding it? No. Hard
to see where the accusatory stage comes in until she puts her hands on that weapon.
 Subjective (what PO had in mind) but have to be qualified by reasonable behaviour. (tested by
objective standards)
 Impact of her failure to take him to magistrate on the finding of the weapon? If he had said he
wanted a magistrate, she would have been allowed to continue searching the car.
 So she hasn’t done right thing with s 52 personal search, but she can still search under s 68.

2)a)
 It’s a dangerous article. So she is moving from investigat to accusa.
 Police say: Had to ask him – if it wasn’t his, then I wouldn’t have been accusatory.
 But she didn’t go and ask more! She should have asked more q’s if she was investigatory.
She didn’t ask if he had a lawful reason for it being there.
 But – the way he answered it crystalises my belief he owns it.
 David would say as soon as found the dager, u knew it was prohibited item, knew I could have
been charged with it, so at that point u were accusatory.

 4) Whether he was apprehended.

 Apprehension occurs at last instance.
 Why is lawyer arguing it occurred earlier? To exclude evidence.
 The law relating to apprehension = the stopping
  He was not apprehended at the point for breath test.  not initially apprehended.
 He could have been apprehended when there’s caution.
 Argument that the apprehension could have been occurred earlier?
 Test = a reasonable person. Indicia of apprehension: Physical restraining, prevented to do
something he asked to do (see magistrate), the search of car.
 If he feels he cannot go somewhere he wants to go, he might be able to build up a picture of
apprehension.
 He was being stopped from doing something he wants to do. Indicia of apprehension. But it
doesn’t follow he has been apprehended.
 If she said “in a minute, ill finish searching car then go to mag” – not apprehension then.
FOCUS ON FACTS.
 What would police say about the arguments of apprehension?
 Conducting vehicle search.
 Judge will apply reasonable standards to experiences of the people.
Q 3)
 Possession of item that constitutes an offence.

Q 4)
 Separate legislative provision.
 Does the seach of him have influenced the outcome of the search of the car? No, she would still
have searched the car. So that illegality doesn’t taint the evidence obtained from s 68.
 If found cannabis in pocket, then have a problem.

 Any argument that might say s 52 tainted s 68?

DISCRETIONS
Ireland, Bunning v Cross – public policy.
 High public policy.
 Court cant condone illegality by police.
 Police cant be allowed to profit from illegality. Keeps police honest.
 If they do something illegal/improper, that evidence will be excluded. Doesn’t matter what effect it
has on the trial – it is designed to keep police honest.
 A direct exclusion that doesn’t have reference to other factors.
 Exclude irrespective of the consequence to the parties.
 Is the fairness of the trial a factor? It is a consideration.
 Bunning v Cross
 Police disregarded the statute that required them to take certain steps with regard to the
person.
 Was it deliberate? No, they did it innocently, didn’t know he had a medical condition.
 Thus – it was also a q of fairness to the trial.
 If he had been in breach of law, the adversity to the accused was nothing, then the unfairness
consideration might leave that condition in place.
 The motivation of police doesn’t infleucne the fact its illegal.
 Ridgeway – they set him up & acted improperly to try to procure an offence. No doubt that they
eliberately 7 intentionally acted improperly.

Swaffield – confessional evidence

 Test swaffield applies?
 Voluntary?
 Reliable?
 Circumstances.
 Swaffield brought both public policy & unfairness in.
 So with confessional evidence, as opposed to real (eg. “I don’t know who belongs to” – not
confessional) can be dealt with under PP or Unfairness.
 So if have a problem with confessional evidence component, look at Swaffield.

Lobban /Kreig/Robinett
 General unfairness.
 Unfairness. Doesn’t depend on police impropriety. It’s the end of the PP test. Look at the nature of
the evidence, how it was obtained, and whether it is too unfair to the accused to let that evidence
go forward in the trial.
 The very circumstances, which were no ones fault, meant that he lost the fundamental right to
defend himself.
 In Kreig & lobban – common factor – there was no way the person could have defended
themselves against that evidence. Absolutely no defence. Unchallengeable evidence.
 In Lobban, the evidence was lost and could not be evaluated – lost chance to defend himself.
 So looking at court’s capacity to look at a fair trial.
 Robinett – nature of the evidence was very prejudicial to the accused. The judge was thinking of
the unfairness. Nothing he can do to challenge.

David case
 The dagger evidence – public policy.
 Public policy applies to everything. Principles also apply to confessional.
 Can argue a public policy for the dagger?
 Just admitting this evidence will give support to misbehaviour of police. Tenuous argument – but
If have an absolute disregarding of s 52, why not?
 Must be a causal connection for public policy exclusion.

 Can argue Lobban.

 Confessional evidence? She didn’t find anything. If she found something, then it should have been
struck out. Gross breach of her duty, clearly public policy.

Caution “I have never seen it before”

 What he said is not a confession. But it was an obvious lie.
 Tango Jones – he said “yes that’s mine, but …” this is a confession.
 What other test can use?
 How can exclude the evidence? Public policy. Didn’t caution.She made a judgement that’s not in
accordance with the law. Facts don’t suggest setting up  not Ridgeway.
 Can use unfairness? It has to be so severe that it deprives you of a defence. This is not what the
evidence is like.
 The unfairness in public policy is a
 Find public policy breach and then consider the unfairness.
 Even tho the police breach the law, there’s a possibility of allowing that evidence in – but test
it against unfairness.
 If the breach is so severe, then it doesn’t matter.

Albert
 Duplicity
 Def has to be put on notice.
 Walsh v Tattersall. Romeyko.
 This fact situation resembles Romeyko. Bc they talk about a whole lot of things in one charge.
Possible for A to know what he is being charged with?
 Hard for him if he has to address every single one of them.
 He doesn’t know whether he’s alleged to have done this from a boat or beach etc.
 Romeyko says that t

1) Duplicity
2) Romeyko v Samuels
3) Intention of parliament
4) He has to know (Walsh)

 Tattersall is a whole pile of repeated events rolled into one.

 Romeyko deals with different character.

 Only charge with ONE charge.

 Romeyko v Samuels say that it’s OK to charge all lots of things?
 Should have only charged him with the matters he was. 2 of the characters only.
 There are 2 sides to the test.
 There were unnecessary charges included in the description of the complaint.
 Not only the fact that there is excess material in the complaint. It also prejudices the person
preparing the defence.
 Here have A – he is prejudiced if he has to address a whole lot of substanes & its not clear where
he pumped out.
 They should have specified that it was sump oil. And then if it was kerosene or diesel, he has a
defence to it.

 Process for classifying an offence?

 Summary offences act – if it’s in there, it’s a summary offence. If not there, it might be minor
or major.
 It’s not a summary offence. Is it minor indictable or major? Classified by the nature of the
penalty and the amount of violence that’s involved.
 Serious but no significant violence, don’t involve weapons.
 If it’s a minor indictable offence, then have a choice. Presumption of minor indictable offence = it
goes b4 a judge in magistrate’s court unless u elect to go to DC. The difference? Costs. Can get
costs in magistrate’s court, but not higher court.
 Usually not an issue bc the def is legally aided.
 Some ppl may prefer to go b4 jury rather than magistrate for strategic reasons.

 Assumes he is being tried in magistrates court. The Def never pays prosecution’s costs. Ling – you
might not get all of your own costs if u conduct yourself by not putting forward info which would
have ended the case then and there.

AMENDMENT OF PROCESS
 General rule abt amendment: Cannot amend the substance/essence of the pleading.
 Issue = whether the amendment goes to substance of charge? If it does, it cant be amended.
 Martinovic – Protects a person’s right to defend themselves.
 Schultz. It was clear in everyone’s memory. Altho equally substantial change of date, he wasn’t
prejudiced. No prejudice in him bc he knew when it happened. It only happened once.
 Time limits – the time limit for a complaint is generally = 6 months. For minor indictable offences,
theres no limit. There can be limits for minor – some statutes will specify. When they sought to
amend back, they were still withn …
 Otherwise they would be retrospective.

Must know the basic cases. A dozen.

 Res judicata = CoA.
 Issue estoppel = issues in dispute.