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(Lexisnexis Questions & Answers) Kerstin Braun - Andrew Hemming - CCH Australia Limited, - Criminal Procedure-LexisNexis Butterworths (2016)
(Lexisnexis Questions & Answers) Kerstin Braun - Andrew Hemming - CCH Australia Limited, - Criminal Procedure-LexisNexis Butterworths (2016)
Kerstin Braun
LLM (UQ), PhD (Qld)
Lecturer, School of Law and Justice,
University of Southern Queensland
Andrew Hemming
MA (Dublin), LLB (Hons) (CDU), GCertEd (Hull), MSc
(Salford), MUrbanPlan (Melb), PhD (CDU) Senior Lecturer,
School of Law and Justice, University of Southern Queensland
LexisNexis Butterworths
Australia
2016
LexisNexis
AUSTRALIA LexisNexis Butterworths
475–495 Victoria Avenue, Chatswood NSW
2067
On the internet at: www.lexisnexis.com.au
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VIENNA
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CANADA LexisNexis Canada, Markham, ONTARIO
CHILE LexisNexis Chile, SANTIAGO
CHINA LexisNexis China, BEIJING, SHANGHAI
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HUNGARY HVG-Orac, BUDAPEST
INDIA LexisNexis, NEW DELHI
ITALY Dott A Giuffrè Editore SpA, MILAN
JAPAN LexisNexis Japan KK, TOKYO
KOREA LexisNexis, SEOUL
MALAYSIA LexisNexis Malaysia Sdn Bhd, PETALING JAYA,
SELANGOR
NEW ZEALAND LexisNexis, WELLINGTON
POLAND Wydawnictwo Prawnicze LexisNexis, WARSAW
SINGAPORE LexisNexis, SINGAPORE
SOUTH AFRICA LexisNexis Butterworths, DURBAN
SWITZERLAND Staempfli Verlag AG, BERNE
TAIWAN LexisNexis, TAIWAN
UNITED KINGDOM LexisNexis UK, LONDON, EDINBURGH
USA LexisNexis Group, New York, NEW YORK
LexisNexis, Miamisburg, OHIO
National Library of Australia Cataloguing-in-Publication entry
A
Alford v Magee (1952) 85 CLR 437 …. 5-1, 5-13, 5-15
Alister v R (1984) 154 CLR 404 …. 5-4
Azzopardi v R (2001) 205 CLR 50 …. 2-1, 2-5–2-9, 2-17, 2-20, 5-1
B
Barton v R (1980) 147 CLR 75 …. 4-9, 5-24, 5-31
Basto v R (1954) 91 CLR 628 …. 2-4, 2-5
Bataillard v R (1907) 4 CLR 1282 …. 6-10
Beckett v New South Wales (2013) 248 CLR 432 …. 5-24
Bell v R (1994) 77 A Crim R 213 …. 1-19
Beneficial Finance Corporation v Commissioner of Australian Federal
Police [1991] 31 FCR 523 …. 1-17
Black v R (1993) 179 CLR 44 …. 5-1
Boucher v R (1954) 110 CCC 263 …. 5-4
Bratty v Attorney-General for Northern Ireland [1963] AC 386 …. 5-
21
Brown v R (1913) 17 CLR 570 …. 5-12
— v — (1986) 160 CLR 171 …. 5-1, 5-7, 5-23
Bugmy v R (2013) 249 CLR 571 …. 6-4
Bunning v Cross (1978) 141 CLR 54 …. 2-1, 2-3, 2-4
C
Cheatle v R (1993) 177 CLR 541 …. 5-1, 5-7
Chow v DPP (NSW) (1992) 28 NSWLR 593 …. 4-10
Cleland v R (1982) 151 CLR 1 …. 2-4
Cokara v Director of Public Prosecutions (DPP) (Qld) [2012] QCA 250
…. 3-24
Collins v R (1980) 31 ALR 257 …. 2-4
Collis v Smith (1909) 9 CLR 490 …. 6-10
CTM v R (2008) 236 CLR 440 …. 5-21
D
Dietrich v R (1992) 177 CLR 292 …. 5-1, 5-10, 5-15
Director of Public Prosecutions v Toomalatai (2006) 163 A Crim R
192 …. 2-4
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
…. 6-5, 6-7
Doja v R (2009) 198 A Crim R 349 …. 4-6
Douglas v Blackler [2001] NSWSC 901 …. 1-17
Duke v R (1989) 180 CLR 508 …. 2-4
E
Ebatarinja v Deland (1998) CLR 444 …. 2-14
Evans v R (2007) 235 CLR 521 …. 5-3
Everett and Phillips v R (1994) 181 CLR 295 …. 6-4
G
George v Rockett (1990) 170 CLR 104 …. 1-9, 1-17
Glinski v McIver (1942) AC 726 …. 5-4
Green v R (1971) 126 CLR 28 …. 5-1, 5-12, 5-15
H
Hili v R (2010) 242 CLR 520 …. 6-8
House v R (1936) 55 CLR 499 …. 5-20, 6-4, 6-10, 6-12
Hughes v Dempsey (1915) 17 WALR 186 …. 1-9
I
Ibbs v R (1987) 163 CLR 447 …. 6-2, 6-17
K
Kozul v R (1981) 147 CLR 221 …. 5-26
Kumar v DPP [2013] VSCA 297 …. 4-10, 4-18
Kuru v State of New South Wales [2008] HCA 26 …. 1-10
L
Lawson v Dunlevy [2012] NSWSC 48 …. 3-29, 3-30
Lee Chun-Chuen v R [1963] AC 220 …. 5-21
Leigh v Cole (1853) 6 Cox C 329 …. 1-15
Liberato v R (1985) 159 CLR 507 …. 6-10
Lippl v Haines (1989) 18 NSWLR 620 …. 1-13, 1-14
M
Mallard v R (2005) 224 CLR 125 …. 6-13
Martino v State of Western Australia [2006] WASCA 78 …. 6-17, 6-18
Maxwell v R (1996) 184 CLR 501 …. 4-9, 4-10
McDermott v R (1948) 76 CLR 501 …. 2-12, 6-10
McInnis v R (1979) 143 CLR 575 …. 5-10
Meissner v R (1995) 184 CLR 132 …. 4-10, 4-17–4-20
Michaels v R (1995) 184 CLR 117 …. 1-19
Miles v R (1997)17 WAR 518 …. 6-17
Momcilovic v R (2011) 245 CLR 1 …. 5-1, 5-21
Morris v R (1987) 163 CLR 454 …. 6-10
Munda v Western Australia (2013) 249 CLR 600 …. 6-21
O
O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC
296; 1 All ER 129 …. 1-17
Osland v The Secretary of the Department of Justice [2010] HCA 24
…. 6-13
P
Parker v DPP (1992) 28 NSWLR 282 …. 6-2
Pearce v R (1998) 194 CLR 610 …. 4-11, 4-13, 4-14
Petty and Maiden v R (1991) 173 CLR 95 …. 2-1, 2-16, 2-19, 2-20
R
R v Acott [1997] 1 All ER 706 …. 5-21
— v Adamic (2000) 117 A Crim R 332 …. 2-4
— v Anunga (1976) 11 ALR 412 …. 2-1, 2-11
— v Atkinson [1976] Crim LR 307 …. 1-18
— v Ayers [1984] AC 447 …. 4-6
— v Bodsworth [1968] 2 NSWR 132 …. 2-4
— v Burt [2000] 1 Qd R 28 …. 2-12
— v Carroll (2002) 213 CLR 635 …. 4-11, 4-12, 4-26, 4-27
— v Chivers [2011] EWCA Crim 1212 …. 2-18
— v Christie [1914] AC 545 …. 2-1
— v Connors (2012) 223 A Crim R 162 …. 3-29
— v Conway [2005] QCA 194 …. 2-9
— v Cornelius (1936) 55 CLR 235 …. 2-4
— v DAH [2004] QCA 419 …. 2-1, 2-9
— v Dixon (1992) 28 NSWLR 215 …. 2-12
— v Drummond [2013] SASCFC 135 …. 6-13, 6-15
— v Economou (1989) 51 SASR 421 …. 5-24
— v Falconer (1990) 171 CLR 30 …. 5-30, 5-31
— v Fardon [2010] QCA 317 …. 5-20, 5-23
— v Ferguson; Ex parte Attorney-General (Qld) [2008] QCA 227 ….
5-20
— v Grandinetti [2005] 1 SCR 27 …. 6-10
— v Hawi (No 7) [2011] NSWSC 1653 …. 5-3
— v Henry [1999] NSWCCA 111 …. 6-17
— v Houghton [2002] QCA 159 …. 6-18
— v Ireland (1970) 126 CLR 321 …. 2-1, 2-4
— v Janceski (2005) 64 NSWLR 10 …. 4-4
— v Jell [1991] 1 Qd R 333 …. 5-24
— v K [2003] NSWCCA 406 …. 5-11, 5-15
— v Khazaal (2012) 246 CLR 601 …. 5-21
— v Kops (1893) 14 LR (NSW) 150 …. 2-6
— v Lamb and Thurston [2002] NSWSC 357 …. 2-11
— v Lander (1989) 52 SASR 424 …. 2-7, 2-8
— v Le [2007] QCA 259 …. 5-28, 5-31
— v Lee (1950) 82 CLR 133 …. 2-1, 2-4, 2-5
— v Lee Kun [1916] 1 KB 337 …. 2-14
— v Lorkin (1995) 82 A Crim R 196 …. 5-24
— v Lovell [1999] 2 Qd R 79 …. 6-20
— v MacDonald (1995) 65 SASR 322 …. 4-7
— v Maddeford (2001) 120 A Crim R 497 …. 6-20
— v Moran [1998] VSCA 64 …. 2-1
— v Osenkowski (1982) 30 SASR 212 …. 6-4
— v Pahuja (1987) 49 SASR 191 …. 5-25, 5-31
— v Phung Huynh [2001] NSWSC 115 …. 2-11
— v Plotzki [1972] Qd R 379 …. 2-12
— v Prasad (1979) SASR 161 …. 5-25
— v Pritchard (1836) 7 Car & P 303 …. 2-14
— v Rae [2006] QCA 207 …. 5-27, 5-31
— v Reid [1999] 2 VR 605 …. 4-8, 4-15
— v Rondo (2001) 126 A Crim R 562 …. 1-9
— v Skaf [2004] NSWCCA 37 …. 5-11
— v Smart (Ruling No 5) [2008] VSC 94 …. 5-25, 5-31
— v Smith (1982) 7 A Crim R 437 …. 6-20
— v Spina [2005] VSCA 319 …. 4-8, 4-15
— v Stankovich (2004) 149 A Crim R 88 …. 1-18
— v Swaffield (1998) 192 CLR 159 …. 2-1
— v Taousanis [1999] NSWSC 107 …. 5-28
— v Tran [2000] FCA 188 …. 5-4
— v Tran [2006] SASC 276 …. 2-17
— v Verdins [2007] VSCA 102 …. 6-20
— v WAF & SBN [2009] QCA 144 …. 2-1
— v Wickham (1971) 55 Cr App R 199 …. 2-6
Roffey v State of Western Australia [2007] WASCA 246 …. 6-2, 6-18
RPS v R (2000) 199 CLR 620 …. 2-6
Ryan v R (2001) 206 CLR 267 …. 6-20
S
Samuels v Western Australia [2005] WASCA 193 …. 6-4
Stapleton v R (1952) 86 CLR 358 …. 2-3
State of New South Wales v Corbett (2007) 230 CLR 606 …. 1-17
Swaffield v R (1996) 88 A Crim R 98 …. 2-3
T
Thomas v R (1960) 102 CLR 584 …. 5-12, 5-15
TLM v State of Western Australia [2009] WASCA 106 …. 6-22
Tofilau v R [2007] HCA 39 …. 6-10, 6-11, 6-12
U
United Mexican States v Cabal [2001] 209 CLR 165 …. 3-14, 3-26
V
Van Den Meer v R (1988) 35 A Crim R 232 …. 2-4
Veen v R (No 2) (1988) 164 CLR 465 …. 6-17, 6-18
W
Waugh v R [1950] AC 203 …. 2-7
Weiss v R (2005) 224 CLR 300 …. 6-7
Weissensteiner v R (1993) 178 CLR 217 …. 2-1, 2-5–2-9, 2-17
Whitehorn v R (1983) 152 CLR 657 …. 5-1, 5-4
Williams v R (1986) 161 CLR 278 …. 1-15, 1-19
Wong v R (2001) 207 CLR 584 …. 6-2, 6-8
Wood v R [2012] NSWCCA 21 …. 5-4
Woods v R (1994) 14 WAR 341 …. 6-17
Woolmington v DPP [1935] AC 462 …. 5-1
Wright v Queensland Police Service [2002] 2 Qd R 667; [2002] QSC
046 …. 1-17
Table of Statutes
COMMONWEALTH
Constitution
s 80 …. 5-1, 5-7, 5-23
Crimes Act 1914 …. 6-2, 6-17, 6-19, 6-20
s 3E …. 1-17
s 3E(5)(d) …. 1-18
s 3R …. 1-20
s 3R(2) …. 1-20
s 3UEA …. 1-8
s 3W …. 1-15
s 3ZS(1) …. 1-14
s 17A …. 6-2
ss 23A–23W …. 2-1, 2-3
s 23H …. 2-11
s 205(2) …. 1-20
Criminal Code 1995
Div 13 …. 5-1
s 13.2(1) …. 5-12
s 13.3.6 …. 5-21
s 101.5(1) …. 5-21
Evidence Act 1995
s 20 …. 2-6
s 20(2) …. 2-1, 2-6, 2-17
s 26 …. 5-1
s 89(1) …. 2-1
s 138 …. 2-3
s 138(1) …. 2-3
s 138(3) …. 2-3
s 139 …. 2-3
s 141(1) …. 5-12
Judiciary Act 1903
s 35A …. 6-1, 6-10, 6-11
s 78 …. 5-1, 5-10
Migration Act 1958 …. 6-2
NORTHERN TERRITORY
Bail Act 1982 …. 3-4, 3-20
s 7A …. 3-4
s 8(2)(a) …. 3-4, 3-20
s 25 …. 3-9
s 27(2) …. 3-11, 3-28
s 27A …. 3-29
s 27A(a) …. 3-13
s 27A(b) …. 3-13
s 37B …. 3-10, 3-31
Criminal Code
s 300 …. 4-9
s 305 …. 4-5
s 305(3) …. 4-5
s 308 …. 4-8
s 309 …. 4-8, 4-15
s 311 …. 4-6
s 312 …. 4-6, 4-7
s 341 …. 4-8, 4-15
s 360 …. 5-1, 5-10
s 368 …. 5-1, 5-7
s 411(2) …. 6-1, 6-7
s 411(3) …. 6-1, 6-5, 6-7
s 411(4) …. 6-1, 6-8
s 414 …. 6-4
Domestic and Family Violence Act 2007
s 84 …. 1-8
Evidence (National Uniform Legislation) Act
s 20 …. 2-6
s 20(2) …. 2-6, 2-17
s 26 …. 5-1
s 138 …. 2-3
s 138(1) …. 2-3
s 138(3) …. 2-3
s 139 …. 2-3
s 141(1) …. 5-12
Police Administration Act s 117 …. 1-17, 1-18
s 118 …. 1-20
s 123 …. 1-15
s 126(2) …. 1-13
s 126(2A) …. 1-8
s 126(2A)(f) …. 1-10
s 137 …. 1-19
ss 140–142 …. 2-1, 2-3
Sentencing Act 1995 …. 6-2, 6-17, 6-19, 6-20
QUEENSLAND
Bail Act 1980 …. 3-4, 3-20
s 9 …. 3-4, 3-20
s 11(1) …. 3-11, 3-28
s 11(2) …. 3-29
s 13 …. 3-3
s 14A …. 3-8
s 16 …. 3-20
s 16(1) …. 3-5, 3-20
s 16(3) …. 3-5, 3-25
s 16(3A) …. 3-5, 3-25
s 20 …. 3-9
s 21 …. 3-12
s 29 …. 3-10, 3-31
Criminal Code
Ch 68 …. 6-14
s 17 …. 4-11
s 561 …. 4-9, 5-24
s 564(1) …. 4-5
s 561(1) …. 5-24
s 564(3) …. 4-5
s 567(1) …. 4-8, 4-15
s 567(2) …. 4-8, 4-15
s 568(12) …. 4-8, 4-15
s 572 …. 4-7
s 573 …. 4-6
s 590(1) …. 4-3
s 597A …. 4-8, 4-15
s 614 …. 5-15, 5-20, 5-23
s 615 …. 5-15, 5-20, 5-23
s 615(1) …. 5-20
s 615(4) …. 5-20
s 615(4)(c) …. 5-20, 5-23
s 615(5) …. 5-20
s 616 …. 5-1, 5-10
s 668E(1A) …. 6-1, 6-7
s 668E(2) …. 6-1, 6-5, 6-7
s 668E(3) …. 6-1, 6-8
s 668F(2) …. 6-1, 6-5, 6-7
s 669 …. 6-1, 6-5, 6-7
s 669A …. 6-4
s 672A …. 6-13
s 672A(a) …. 6-13
s 677 …. 6-13
s 678B …. 4-28, 6-14
ss 678B–678C …. 4-12, 4-28
s 678D(2) …. 4-28
s 678D (3) …. 4-28
s 678F …. 4-28
Criminal Code Act 1899
s 17 …. 4-25
s 618 …. 2-6
s 620(1) …. 2-6, 2-9
Criminal Law Amendment Act 1894
s 10 …. 2-4, 2-5
Evidence Act 1977
s 130 …. 5-27
Jury Act 1995
s 43 …. 5-17
s 43(2)(b) …. 5-17
s 43(3) …. 5-17
s 43(4) …. 5-17
s 43(6) …. 5-17
s 56 …. 5-18
s 56(1)(a) …. 5-18
s 59(3) …. 5-7, 5-18
s 59A …. 5-1
s 69A …. 5-11, 5-15
s 70 …. 5-19
s 70(8) …. 5-19
Penalties and Sentencing Act 1992 …. 6-2, 6-17, 6-19, 6-20
s 3(b) …. 6-17, 6-18
s 9(2)(a) …. 6-2
s 155 …. 6-17
Police Powers and Responsibilities Act 1997
s 95 …. 2-4
Police Powers and Responsibilities Act 2000
Ch 15 …. 2-1, 2-3
s 21(2) …. 1-13
s 151 …. 1-17
s 156 …. 1-18
s 156(1)(b) …. 1-17
s 365 …. 1-15
s 365(1) …. 1-15
s 365(2) …. 1-15
s 403. …. 1-19
s 416 …. 2-4
s 418 …. 2-1
s 418(1) …. 2-3
s 418(2) …. 2-3
s 419 …. 2-3
s 420 …. 2-1, 2-11
s 420(2) …. 2-11
s 420(3) …. 2-11
s 420(4) …. 2-11
s 420(5) …. 2-11
s 423 …. 2-3
s 431 …. 2-1, 2-3
s 433 …. 2-1, 2-11
s 433(1) …. 2-11
s 436 …. 2-1, 2-3, 2-5
s 436(3) …. 2-3
s 439 …. 2-1, 2-3
s 609(1)(b) …. 1-8
s 609(2) …. 1-8
s 609(2)(c) …. 1-9
s 609(4)(c)(i) …. 1-8
ss 615–616 …. 1-15
s 800 …. 1-20
Sch 6 …. 1-9
Police Powers and Responsibilities Regulation 2012
s 26(1) …. 2-3
Sch 9 …. 2-3
SOUTH AUSTRALIA
Bail Act 1985 …. 3-4, 3-20
s 6(1) …. 3-9
s 10(1) …. 3-4, 3-20
s 10(1)(b) …. 3-5, 3-20
s 10A …. 3-5, 3-25
s 11(2) …. 3-11, 3-13, 3-28
s 17 …. 3-10, 3-31
Criminal Law Consolidation Act 1935
Pt 10 …. 4-12, 4-28, 6-14
s 277 …. 4-5
s 278(1) …. 4-8, 4-15
s 278(2) …. 4-8, 4-15
s 281(2) …. 4-7
s 288 …. 5-1, 5-10
s 352 …. 6-4
s 353(1) …. 6-1, 6-7
s 353(2) …. 6-1, 6-5, 6-7
s 353(4) …. 6-1, 6-8
s 353A …. 6-13
s 353A(1) …. 6-13, 6-15
s 353A(2) …. 6-13
s 369 …. 6-13
Sch 3 r 4(3) …. 4-5
Sch 3 r 4(4) …. 4-5
Criminal Law (Sentencing) Act 1988 …. 6-2, 6-17, 6-19, 6-20
s 11 …. 6-2
Evidence Act 1929
s 18(1)(b) …. 2-6, 2-9
Intervention Orders (Prevention of Abuse) Act 2009
s 37…. 1-8
Jury Act 1927
s 57 …. 5-1
s 57(2) …. 5-7
s 57(3)(b) …. 5-7
Summary Offences Act 1953
s 67 …. 1-2, 1-8, 1-18
s 67(4) …. 1-18
s 75 …. 1-15
s 78 …. 1-19
s 79A …. 2-1, 2-3
s 82 …. 1-13
TASMANIA
Bail Act 1994 …. 3-4, 3-20
s 7(2)(a) …. 3-9
s 9 …. 3-10, 3-31
s 23 …. 3-4, 3-20
Criminal Code
Ch XXXVIII …. 4-5
Ch XLIV …. 4-12, 4-28, 6-14
s 311(2) …. 4-8, 4-15
s 312 …. 4-5
s 317 …. 4-5
s 326(1) …. 4-7
s 326(3) …. 4-8, 4-15
s 368 …. 5-1, 5-10
s 402(2) …. 6-1, 6-7
s 402(3) …. 6-1, 6-5, 6-7
s 402(4) …. 6-1, 6-8
s 403(2) …. 6-1, 6-5, 6-7
s 404 …. 6-1, 6-5, 6-7
s 419 …. 6-13
Criminal Code Act 1924
s 26 …. 1-15
s 26A…. 1-13
s 27 …. 1-15
s 27(2) …. 1-15
s 401 …. 6-4
s 402A …. 6-13, 6-15
s 402A(5) …. 6-13
Criminal Law (Detention and Interrogation) Act 1995
s 4 …. 1-19
ss 5–9 …. 2-1, 2-3
Evidence Act 2001
s 20 …. 2-6
s 20(2) …. 2-6, 2-17
s 26 …. 5-1
s 85A …. 2-1, 2-3
s 138 …. 2-3
s 138(1) …. 2-3
s 138(3) …. 2-3
s 139 …. 2-1, 2-3
s 141(1) …. 5-12
Family Violence Act 2004
s 10 …. 1-8, 1-10
Jury Act 1899
s 43 …. 5-1
s 43(3) …. 5-7
Justices Act 1959
s 106L(1)(b) …. 1-8
Police Offences Act 1935
s 60…. 1-2
Search Warrants Act 1997
s 5 …. 1-18
s 5(1) …. 1-17
Sentencing Act 1997 …. 6-2, 6-17, 6-19, 6-20
VICTORIA
Bail Act 1977 …. 3-4, 3-20
s 4(1) …. 3-4, 3-20
s 4(2)(d)(ii) …. 3-5, 3-20
s 5 …. 3-9
s 5(2) …. 3-11, 3-28
s 9 …. 3-12
s 11 …. 3-8
s 13 …. 3-5, 3-25
s 23 …. 3-12
s 30 …. 3-10, 3-31
Constitution Act 1975
s 87E(b) …. 6-13
Crimes Act 1958
s 26A…. 1-13
s 325 …. 5-23, 5-25, 5-31
s 458…. 1-15
s 459A …. 1-13
s 459(1)(a) …. 1-15
s 459A(1)(b) …. 1-8
s 462A …. 1-15
s 464A …. 1-19
ss 464A–464H …. 2-1, 2-3
s 465 …. 1-17
s 465(1) …. 1-18
Crimes (Mental Impairment and Unfitness to Be Tried) Act 1977
s 21(2)(b) …. 5-30
s 21(3) …. 5-30
Criminal Procedure Act 2009
Ch 7A …. 6-14
Pts 5.2–5.3 …. 4-5
Pt 5A.. 4-12
s 33 …. 5-1, 5-10
s 53A … 6-14
s 77 … 6-14
s 161 …. 4-9
s 163 …. 4-3
s 165 …. 4-7
s 166 …. 4-6
s 170 …. 4-8, 4-15
s 193 …. 4-8, 4-15
s 195 …. 4-8, 4-15
s 197 …. 5-1, 5-10
s 197(3) …. 5-10
s 244 …. 6-14
s 276(1) …. 6-1, 6-7
s 277 …. 6-1, 6-5, 6-7
s 281 …. 6-1, 6-8
s 287 …. 6-4 s 327 …. 6-13
Sch 1 …. 4-5
Sch 1 reg 2 …. 4-5
Sch 1 reg 5 …. 4-8, 4-15
Sch 1 reg 7 …. 4-5
Evidence Act 2008
s 20 …. 2-6
s 20(2) …. 2-6, 2-17
s 26 …. 5-1
s 138 …. 2-3
s 138(1) …. 2-3
s 138(3) …. 2-3
s 139 …. 2-3
s 141(1) …. 5-12
Family Violence Protection Act 2008
s 157 …. 1-8
Juries Act 2000
s 46 …. 5-1, 5-7
Sentencing Act 1991 …. 6-2, 6-17, 6-19, 6-20
s 5(4) …. 6-2
WESTERN AUSTRALIA
Bail Act 1982 …. 3-4, 3-5, 3-20
s 5 …. 3-4, 3-20
s 7(1) …. 3-4, 3-20
s 15 …. 3-3
s 28 …. 3-9
s 35 …. 3-12
s 48 …. 3-12
s 51 …. 3-10, 3-31
Sch 1 Pt C cl 3A …. 3-5
Sch 1 Pt C cl 3C …. 3-5, 3-25
Sch 1 Pt D cl 1 …. 3-11, 3-28
Criminal Appeals Act 2004
Pt 5A …. 6-14
s 24 …. 6-4
s 27(1) …. 6-4
s 30 …. 6-1, 6-5, 6-7
s 30(4) …. 6-1, 6-7
s 31 …. 6-1, 6-8
Criminal Investigation Act 2006
Pt 11 …. 2-1, 2-3
s 1(3)(c) …. 1-17
s 1(3)(d) …. 1-17
s 4 …. 1-9
s 16 …. 1-15
s 31(2) …. 1-14
s 35 …. 1-8
s 41(3)(a) …. 1-18
s 42 …. 1-17
s 43(6). …. 1-18
s 128 …. 1-15
s 132(2) …. 1-13
s 137(3) …. 2-1, 2-11
s 137(3)(d) …. 2-11
s 140 …. 1-19
s 154 …. 2-11
s 155(2) …. 2-11
s 294 …. 6-17
s 405 …. 6-17
s 420 …. 2-11
Criminal Code
s 27 …. 5-30
Criminal Procedure Act 2004
Pt 5A …. 4-28
s 83(6) …. 4-9
s 85 …. 4-5
s 114 …. 5-1
s 114(2) …. 5-7
s 114(4) …. 5-7
s 118 …. 5-23
s 131(3) …. 4-6
s 132 …. 4-7
s 133(3) …. 4-8, 4-15
s 133(4) …. 4-8, 4-15
s 172 …. 5-1, 5-10
Sch 1 Div 2 cl 2(2) …. 4-8, 4-15
Sch 1 Div 2 cl 2(3) …. 4-8, 4-15
Sch 1 Div 2 cl 5(1) …. 4-5
Sch 1 Div 2 cl 5(2)(a) …. 4-5
Sch 1 Div 2 cls 7-9 …. 4-8, 4-15
Evidence Act 1906
s 8(1)(c) …. 2-6, 2-9
Restraining Order Act 1997
s 62B …. 1-8, 1-10
Sentencing Act 1995 …. 6-2, 6-17, 6-19, 6-20
s 6 …. 6-17
s 6(4) …. 6-2
s 88 …. 6-17
s 140 …. 6-13
Contents
Table of Cases
Table of Statutes
Index
[page 1]
Chapter 1
Key Issues
1-1 This chapter focuses on (investigative) police powers and
considers the power to enter and search premises as well as the power
to arrest persons. It also briefly touches on the issue of detaining a
person after arrest while matters including the right to silence during
police interviews are explored further in Chapter 2 of this book. The
lawful exercise of police power is a very important area of criminal
procedure as ultimately unauthorised police conduct may make certain
evidence gathered in the process inadmissible in a subsequent trial.
[page 2]
[page 3]
protection. Ultimately, an arrest can only be lawful where it is justified
by statutory or common law. Today, most Australian jurisdictions have
enacted specific legislation dealing with the police power to arrest
persons and its requirements. Yet, common law principles regarding
arrest are nevertheless important particularly in areas not regulated by
statute.
Comparable to the situation of entry and search, an arrest can occur
with or without a warrant. As an arrest constitutes a significant
infringement of the individual right to liberty, arrests should generally
be carried out with a warrant. As explained above, the assessment of
the situation by the warrant issuing authority introduces an element of
objectivity into the process. Yet, arrests can be lawful without a warrant
especially in situations where an offence has just been committed or is
being committed depending on the requirements of the particular
jurisdiction. The offences that allow for an arrest without warrant as
well as the reasons for an arrest also differ between jurisdictions. While
under common law arrests can only occur for the purpose of initiating
criminal proceedings against an individual and taking them before
court, some statutory provisions (see, for example, the extensive
provisions in Queensland and New South Wales on arrest without
warrant discussed in Question 2) contain an extensive number of
reasons as to why an arrest may occur including preserving evidence
and questioning a suspect.
While an arrest can be carried out through the physical restraint of a
person, it is also possible to place a person under arrest through words
alone without any physical force. In any event, in most jurisdictions the
arrested person must be informed about the grounds for their arrest as
soon as this is reasonably practical. The level of force that police are
allowed to use to carry out an arrest and overcome potential resistance
from a suspect generally has to be reasonable and/or proportionate
depending on the jurisdiction.
Ultimately, an unlawful arrest may not only result in civil liability for
wrongful arrest but may also lead to the inadmissibility of evidence
gathered in relation to the arrest during a subsequent criminal trial.
Detention
1-4 Under common law, a person who has been arrested needs to be
brought in front of a judicial officer as soon as reasonably practical.
Where this is not the case, the detention of the person may become
unlawful with the consequence that evidence gathered in the process
may not be admissible in a subsequent criminal trial. A number of
Australian jurisdictions have introduced statutory provisions allowing
the detention of an arrested person for an explicitly stated number of
hours for interviewing and investigative purposes prior to their release.
Matters concerning police interviews and the right to silence during
questioning are discussed in detail in Chapter 2.
[page 4]
Question 1
Bruce Brutal has been married to Helga for 10 years. They have an eight-year-old son,
Marvin. Their relationship is characterised by domestic violence with Bruce frequently
beating Helga. Bruce is well-known to the local police as they are often called out to the
Brutal’s home located at 17 Honeysuckle Place to settle violent altercations. In March
2014, the police were called out 16 times to increasingly violent confrontations at the
Brutal’s home. On the last few occasions Helga was severely injured and had to be taken
to hospital. Despite their intervention, Helga took Bruce back every time after he
apologised to her and promised never to hit her again. Helga refused to take out any
protection orders against Bruce.
On 17 April 2014 Constable Nathan is on his usual police round through the
neighbourhood. He hears a female screaming from inside 17 Honeysuckle Place and
notices sounds that suggest someone is being beaten and pushed forcefully. He hears a
male voice screaming: ‘This time I am going to kill you for good.’
As Constable Nathan knows about Bruce and Helga’s relationship history and has been
to their house many times in the past, he immediately
[page 5]
suspects that Bruce is beating Helga again and wants to end the violence. He arrives at
the door, knocks and screams: ‘This is Constable Nathan. What is going on inside? Open
the door. Helga, do you need help?’
There is no answer from inside but Constable Nathan can hear continuous beating and
high pitched screams. Suddenly Marvin’s face appears at the upstairs window. He yells
down to Constable Nathan: ‘Dad is going to kill mom.’
On hearing this Constable Nathan opens the unlocked front door and rushes inside. He
searches the place and finds Helga just in time to stop Bruce from beating her
unconscious. With his arrival, Bruce stops the violent attacks on Helga.
Still angry and fired up, Bruce tells Constable Nathan to get the hell out of his house.
Constable Nathan, however, remains in the premises for another 20 minutes until an
ambulance arrives to take Helga, who is badly injured and drifting in and out of
consciousness at this stage, and Marvin, who is in shock, to the local hospital.
Advise on the following:
(i) Was Constable Nathan’s entry and search of 17 Honeysuckle Place to stop the
violence lawful?
(ii) Was it lawful that Constable Nathan remained in the dwelling for 20 minutes after
the domestic violence stopped even when Bruce asked him to leave?
Time allowed: 40 mins
Answer Plan
(i) Lawfulness of entry and search of 17 Honeysuckle Place.
• Entry and search based on warrant.
• Requirements for warrantless search?
– Reasonable suspicion/reasonable belief?
– Domestic violence/violence/danger for life?
(ii) Lawfulness of remaining in the dwelling until arrival of
ambulance.
• Reasonable assistance?
• Reasonable time?
Answer Guide
(i) Lawful entry and search of 17 Honeysuckle Place
1-7 Constable Nathan’s entry and search of 17 Honeysuckle Place
would be lawful if the Constable had obtained a warrant to enter the
premises or, in the case of no warrant, if his actions were authorised by
statutory or common law. The facts of the case do not suggest that
Constable Nathan obtained a warrant authorising his entry and search
[page 6]
[page 7]
allows for entry and search where firearms are suspected in cases where
an intervention order exists. In addition, South Australia is one of only
two Australian jurisdictions that allow for the issuance of general
warrants. Section 67 of the Summary Offences Act 1953 (SA) empowers
the South Australian Commissioner of Police to issue general warrants
that remain in force for six months allowing individual officers to enter
into, break open and search any house, building, premises or place
where he or she has reasonable cause to suspect that an offence has
been recently committed, or is about to be committed.
[page 8]
[page 9]
it is lawful for the police officer to stay on the premises for the time
reasonably necessary to give or arrange for reasonable help to any
person at the place. In the Australian Capital Territory, s 188 of the
Crimes Act 1900 (ACT) states that a police officer may enter premises
and may take the action that is necessary and reasonable to protect life.
Section 126(2A)(f) of the Police Administration Act (NT) sets out that
where a person has suffered injury the officer may remain in the
premises until assistance reasonable to the person in the circumstances
has been arranged. Section 9(2) of the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW) enshrines that an officer may only
stay on the premises as long as is reasonably necessary in the
circumstances. Section 10 of the Family Violence Act 2004 (Tas) allows
police officers to stay on the premises for such period that the officer
considers reasonably necessary to prevent family violence. In Western
Australia s 62B of the Restraining Order Act 1997 (WA) permits a
police officer to remain on or in the premises as long as the officer
considers necessary to give or arrange such assistance that is reasonable
in the circumstances.
It is therefore necessary to consider whether it was reasonable for
Constable Nathan to remain in the premises for around 20 minutes
until an ambulance arrived to take Helga and Marvin to the hospital.
The facts of the case state that Helga was severely injured and drifting
in and out of consciousness. In addition, Marvin was in shock. At least
Helga required urgent medical attention at the hospital for her injuries.
Requesting an ambulance for a severely injured person and waiting for
its arrival seems reasonable assistance in the circumstances. Therefore,
in light of the above statutory provisions Constable Nathan’s stay in the
premises appears lawful even after Bruce asked him to leave. In
addition, the facts state that Bruce was visibly still angry and fired up.
Therefore, it could also be argued that it was reasonable and necessary
for Constable Nathan to remain in the premises until Helga was taken
to the hospital to protect Helga from future attacks and preserve her
life.
Based on the statutory requirements outlined above, it is lawful that
Constable Nathan remained on the premises until an ambulance arrived
despite the fact that Bruce asked him to leave 17 Honeysuckle Place.
Examiner’s Comments
1-11 The question required an examination of ‘reasonable suspicion’
and ‘reasonable belief’ in the context of entry and search in a
(domestic/family) violence situation. It was important to identify the
relevant statutory laws relating to entry and search in the case of
(family) violence/threat to life in the respective jurisdiction and to apply
the law to the facts of the case. A detailed analysis of Constable
Nathan’s knowledge as described in the question was necessary. It was
also vital to clearly differentiate between the power to enter and search
the premises on the one hand and the power to remain in or on the
premises after being asked
[page 10]
to leave by one of the occupants on the other hand. As the facts do not
suggest that Helga asked Constable Nathan to enter and stay,
particularly as she was drifting in and out of consciousness, it is
important not to rely on the tempting assumption that Constable
Nathan’s entry and stay are justified on the basis of Helga’s consent as
one of the occupiers.
Keep in Mind
You should avoid the following common errors:
• Not understanding clearly what the question asks you to do.
• Not pointing out the relationship between entry and search
authorised by warrant and warrantless powers.
• Not clearly outlining the statutory requirements for entry and
search in the case of violence.
• Not precisely applying the law to the facts of the case.
• Not differentiating between entering and searching on the one
hand and remaining in the premises on the other hand.
• Assuming Helga consented to Constable Nathan’s entry, search
and stay in the premises.
• Not providing a separate conclusion for part (i) and part (ii) of the
question.
Question 2
On 30 March 2015 around midday Mackie Moneymaker entered the premises of the
First National Savings Bank wearing a storm mask and carrying a shotgun. He grabbed
Penny Shortbottom who was standing in line inside the bank, dragged her up to the
teller and demanded money immediately. In the case of non-compliance he threatened
to kill Penny. On receiving $500,000 he panicked and shot both the teller and Penny who
died immediately.
Afterwards he quickly left the bank. When realising that he was being followed by some
pedestrians who had heard the shots in the bank and had seen him take off his storm
mask on exiting, he entered an apartment building close to the bank, 55 Doorknock
Terrace. The building contained 20 high-end residential units. The pedestrians called the
police and provided information about Mackie’s criminal conduct, his appearance and
his whereabouts. The first police cars arrived only minutes later at 55 Doorknock
Terrace. Senior Sergeant Amaretto, who was in charge of the operation, ordered all
available police officers to search the units of 55 Doorknock Terrace immediately to find
and arrest Mackie.
Earl Grey is the owner and occupier of Unit 5, 55 Doorknock Terrace. The police
knocked on his door and stormed into his flat in search of Mackie as soon as he opened
the door.
[page 11]
While the search of the premises was unsuccessful, Mackie was detained a little while
later when trying to cross the street behind 55 Doorknock Terrace. Mackie tried to
escape his arrest by punching wildly to all sides. One police officer therefore restrained
Mackie’s hands forcefully behind his back, while another put handcuffs on him. Mackie
had small bruises from the police officers’ grip. All other arrest procedures were
complied with. Mackie was charged and brought in front of a court soon after the arrest.
Immediately after Mackie’s arrest Senior Sergeant Amaretto informed all the residents
about the recent developments.
Earl Grey is outraged about the police conduct and the search of his unit.
Advise and provide explanations to Earl on the following matters:
(i) He has heard on TV that Australia is no ‘police state’ and thinks that it is necessary
for the police to obtain a piece of paper allowing them to search private property.
What does Earl Grey mean and was that necessary in this case?
(ii) Earl is of the opinion that the police officers should have formally introduced
themselves before entering his apartment. He thinks that they should have told
him what they were doing and should have politely asked for his consent to come
in. He believes that while at least Senior Sergeant Amaretto has shown some
manners and provided explanations to him afterwards this can clearly not be
sufficient. Is Earl’s view correct?
(iii) Earl is concerned about Mackie’s arrest and wants to know whether the police
officers were allowed to arrest him without any written authorisation from the
justice system. He also does not know whether they were allowed to restrain
Mackie in a way that gave him bruises.
Time allowed: 60 mins
Answer Plan
(i) Lawfulness of warrantless search.
• Lawfulness of entry and search?
– Entry and search based on warrant.
– Requirements warrantless search?
■ Search to arrest.
■ Urgency.
(ii) Execution of search.
• Necessity to provide information before entry and search?
– Practicality of providing information in this case.
– Information as soon as reasonable practical.
[page 12]
Answer Guide
(i) Lawfulness of warrantless search
1-12 Earl Grey is of the opinion that entering and searching his
apartment required a ‘piece of paper’. Generally, police officers can only
enter and search private premises with a warrant. A warrant is a written
authorisation from the relevant authority allowing police officers to
enter and search for certain items or persons. As the warrant is issued
by a third party, often a justice of the peace or a magistrate depending
on the jurisdiction, and not the executing police officer, it instils a
degree of objectivity into the warrant process. Therefore, Earl Grey is
generally right in believing that entry and search of private premises
require authorisation by warrant. In this case the police have not
applied for and been issued a warrant. Yet, a warrantless search may
nevertheless be lawful where it is permitted by statutory or common law
power.
[page 13]
six months imprisonment), s 26A of the Criminal Code Act 1924 (Tas)
(for the purpose of making a lawful arrest without warrant) and s 459A
of the Crimes Act 1958 (Vic) (where the person has committed a serious
indictable offence in Victoria).
Other jurisdictions, Queensland and Western Australia, only require
a reasonable suspicion. Section 21(2) of the Police Powers and
Responsibilities Act 2000 (Qld) states that a police officer may enter
without a warrant to arrest someone without the consent of the
occupier, if they reasonably suspect the person to be arrested to be in
the dwelling. The same applies in Western Australia where s 132(2) of
the Criminal Investigation Act 2006 (WA) allows a police officer to
enter and search premises where they reasonably suspect the person to
be.
The above overview shows that while some statutory provisions
require a reasonable suspicion that the person the police are searching
for is in the premises, others call for the higher standard of a reasonable
belief. The common law requires not only a belief on reasonable but
also probable grounds. Regarding the difference between reasonable
suspicion and belief, although in the context of entering in
emergencies/violence situations, refer to Question 1 above.
The question arises as to whether the police had a reasonable
suspicion/reasonable belief that Mackie was in one of the units of 55
Doorknock Terrace. The facts of the case state that several pedestrians
saw Mackie entering the multi-apartment building, 55 Doorknock
Terrace, and not exiting. Furthermore, the first police cars arrived at the
address only minutes after the phone call by pedestrians suggesting that
Mackie could not have gone far and making it probable that he must
have taken refuge in one of the apartments. Therefore, the facts of the
case seem to satisfy the requirements for a reasonable suspicion as well
as a reasonable belief and the common law standard of reasonable and
probable grounds for believing that Mackie was still somewhere in the
premises of 55 Doorknock Terrace. Also Mackie has likely committed
serious offences/indictable offences including two homicide offences. As
some jurisdictions allow for entry and search to arrest only in the case
of certain more serious offences, this is likely satisfied in this case.
Therefore Earl should be advised that while generally searches of
private premises require a warrant, in this case entry and search without
warrant are justified by statutory and common law power and thus
lawful without warrant.
[page 14]
[page 15]
[page 16]
[page 17]
measures for preventing the escape of those persons they have in custody for the purpose
of taking them before the magistrates; but what those reasonable measures are must
depend entirely upon circumstances, upon the temper and conduct of the person in
custody, on the nature of the charge, and a variety of other circumstances which must
present themselves to the mind of any one.
Considering the serious nature of the offences committed, that
Mackie was physically fighting his arrest and the safety of arresting
police officers, handcuffing Mackie seems a reasonable application of
force in the circumstances. Putting on the handcuffs could only be
carried out by holding Mackie’s hands behind his back which caused
bruises. Yet, as holding his hands was unavoidable to handcuff Mackie,
this level of force too seems reasonable in the circumstances.
Earl should therefore be advised that Mackie’s arrest was lawful for
the above reasons.
Examiner’s Comments
1-16 The question required an examination of the law relating to
warrantless entering and searching to arrest a person. In addition, the
question dealt with specific aspects of arrests. It was important to
identify the relevant statutory provisions and apply them to the problem
at hand. In order to attempt the question, it was necessary to
understand that the requirements for entry and search to arrest differ
from the conditions for entry and search in the case of
violence/emergency situations. Regarding the arrest, the question had to
be discussed whether handcuffing Mackie and the bruises arising from
this action are based on the application of ‘reasonable’ force. It should
not be overlooked that the question asked for advice to be given to Earl
Grey. Therefore each of the answers had to conclude on how Earl Grey
should be advised.
Keep in Mind
You should avoid the following common errors:
• Not understanding clearly what the question asks you to do.
• Automatically assuming that entry and search are unlawful simply
because no warrant has been issued.
• Not realising that the statutory provisions and requirements for
entry and search to arrest differ from those for entry and search in
emergency/violence situations.
• Not applying the relevant law in the jurisdiction in question to the
facts of the case in assessing whether the requirements have been
met in detail.
• Addressing the bruises in the context of ‘reasonable force’ but not
addressing the handcuffing of Mackie and the question of whether
this was reasonable in this case.
[page 18]
Question 3
In June/July 2014, Sergeant Bensoni, together with five other police officers including
Senior Sergeant Careless, was assigned to carry out surveillance on Damien Drugster.
From their surveillance of Damien’s premises at 45 Crescent Place, the police officers
were convinced that Damien was involved in the illegal drug trade and that he imported
and sold prohibited substances. The police did not suspect that Damien currently kept
drugs on the premises. However, they received information from a reliable informant
who had frequently worked with them in the past, Seamus Sure, that Damien had a
talent for poetry and was a fanatical diary writer. They were told that he kept two diaries
at any given time. The police suspected, although Seamus made no mention of this, that
the diaries contained relevant information that would help them establish a link
between Damien and the illegal drug trade.
They requested a warrant to carry out a search of Damien’s house on Friday 25 July 2014.
The warrant application was drafted by Senior Sergeant Careless who was tired and
uninspired after a long day at work. He could not remember the exact address of
Damien’s house and did not want to look it up. He therefore put ‘third house on the left
after the Caltex petrol station on Crescent Place’ on the application. This description,
however, was incorrect as the third house after the Caltex petrol station is number 43
and not number 45. Senior Sergeant Careless included the names of the officers
involved in the operation in the warrant. Yet, because he was tired he forgot to include
Sergeant Bensoni’s name. While he did include in the warrant rather generally that the
object of the search were two ‘journals with notes in Damien’s handwriting’ and
clarified how they knew about the existence and location of the journals, he did not
include how or why the journals could be used as evidence against Damien for the
alleged offences. He also did not remember what offences Damien was exactly
suspected of committing. He therefore included in the application that Damien was
suspected of ‘something to do with drugs and criminal law on various dates in 2014’. In
accordance with the relevant processes (including a sworn application by Senior
Sergeant Careless), the warrant was granted for the mentioned officers and for the
requested location (third house on the left after the Caltex petrol station on Crescent
Place) for Friday 25 July 2014.
Nobody spotted that Bensoni’s name was missing from the warrant. Yet, on the day of
the search the police officers noticed straight away that the property location
description was incorrect. Yet, they thought, ‘what is one house number among friends’
and decided to go ahead with
[page 19]
the search regardless. They waited until 11.30 pm to enter and search because they
hoped that this might show the neighbours that police are keeping the neighbourhood
safe at all hours. When the operation started Sergeant Bensoni, as the leader of the
search, entered 45 Crescent Place and performed the search. The formalities of entry
and search on the night, including providing Damien with a copy of the warrant, were
observed.
The evidence found during the search led police to reasonably believe that Damien had
committed a number of serious drug-related offences. They subsequently arrested him
and brought him to the police station. As it was Friday night he was not taken before a
court until Monday morning when the courts recommenced. During his detention over
the weekend he was questioned by police officers and subsequently charged.
Advise in relation to the following matters:
(i) Was the warrant valid?
(ii) Assume the warrant is valid. Was Sergeant Bensoni’s entry and search of 45
Crescent Place lawful?
(iii) Assume Damien’s arrest is lawful. Was it lawful to detain Damien in police custody
and question him without taking him before court until Monday morning?
Imagine it is 10 pm and the officers are watching Damien’s dwellings. They have
(iv)
not applied for a warrant to enter and search at this stage. They are tipped off by a
credible source that a drug exchange will occur at Damien’s place in the next half
hour. Can Senior Sergeant Careless request a warrant via telephone or even via
text message?
Time allowed: 120 mins
Answer Plan
(i) Validity of the search warrant?
• Compliance with statutory requirements?
• Formalities concerning obtaining warrant, for example, sworn
complaint, correct issuing authority — Nothing stated to the
contrary.
• Reasonable suspicion/reasonable belief that item sought exists
and is located on the premises to be searched.
• Sufficient demonstration of reasonable suspicion/belief that
item will be evidence?
• Sufficient description of alleged offence?
• Sufficient description of premises to be searched.
(ii) Lawful execution of warrant by Sergeant Bensoni?
• Entry and search with warrant.
– Sergeant Bensoni authorised to search?
[page 20]
–
Authorisation to search the premises?
–
Permitted search at night time? — No particular reasons
for search at night and no explicit authorisation.
(iii) Lawfulness of detention?
• Arrest assumed to be lawful.
• Lawful purpose of detention?
• Delay in taking Damien before court? Depends on jurisdiction.
(iv) Obtaining warrant via telephone or SMS?
Statutory provisions on telephone warrant. Depends on
•
jurisdiction.
• Possible warrant via SMS depending on jurisdiction.
Answer Guide
(i) Validity of search warrant
1-17 The warrant authorising entry and search is valid if it complies
with the relevant substantial statutory provisions relating to the
issuance of search warrants. A warrant which violates relevant statutory
conditions may be invalid with the consequence that the evidence may
not be admissible in court. In that regard it was found in George v
Rockett (1990) 170 CLR 104 at 110–11 that:
State and Commonwealth statutes have made many exceptions to the common law
position … Nevertheless, in construing and applying such statutes, it needs to be kept in
mind that they authorise the invasion of interests which the common law has always
valued highly and which, through the writ of trespass, it went to great lengths to protect.
Against that background, the enactment of conditions which must be fulfilled before a
search warrant can be lawfully issued and executed is to be seen as a reflection of the
legislature’s concern to give a measure of protection to these interests. To insist on strict
compliance with the statutory conditions governing the issue of search warrants is simply
to give effect to the purpose of the legislation.
Yet, more recent Queensland case law, Wright v Police Service (Qld)
[2002] 2 Qd R 667 has cautioned that it is important that no ‘excessive
insistence on correctness of every detail’ develops in regards to warrants
in order to allow for effective law enforcement. A similar finding was
made in the case of State of New South Wales v Corbett (2007) 230
CLR 606 according to which a minor defect will not invalidate a
warrant. Whether a violation of statutory conditions for the issuance of
a warrant leads to an overall unlawfulness will therefore likely depend
on the severity of the violation of privacy rights and the significance of
the search for the public interest in law enforcement. The required
conditions for obtaining a warrant differ between Australian
jurisdictions. Yet, a large number of Australian jurisdictions require that
the following conditions are met.
Depending on the jurisdictions, the police officer making the
application for issuance of warrant needs to demonstrate, under oath,
that they have
[page 21]
[page 22]
grounds for believing that a thing answering the description will afford evidence of the
commission of an offence.
In George v Rockett the search warrant application was considered
inadequate. The facts of this case are similar to the facts in George v
Rockett. Senior Sergeant Careless stated that they were searching for
‘journals with notes in Damien’s handwriting’ which is a broad
description not clearly outlining a nexus between the object of the
search and its evidential status. Applying the findings in George v
Rockett to this case suggests that the search warrant could be
inadequate and thus invalid in this case due to the absence of any
explanations on reasonable belief/suspicion of whether the journals, if
found, would be relevant evidence for the alleged drug offence.
Furthermore, the warrant could be invalid due to the vague and
limited description of the alleged offences. In statutory law, s 156(1)(b)
of the Police Powers and Responsibilities Act 2000 (Qld) and s 1(3)(c)
and (d) of the Criminal Investigation Act 2006 (WA) require specific
descriptions of alleged offences in the warrant. In that regard
Queensland courts have held that the bare specification of the offence is
insufficient to satisfy the legislative requirements: see Wright v
Queensland Police Service [2002] QSC 046 at [40]. According to New
South Wales case law, the offence needs to be included in the warrant
regardless of whether statutory law explicitly contains such a
requirement: see Douglas v Blackler [2001] NSWSC 901. While a
description of the alleged offence is necessary, it has been held that the
description of the offence in a search warrant need not be made with
the precision of an indictment: see Beneficial Finance Corporation v
Commissioner of Australian Federal Police [1991] 31 FCR 523 at 524.
This is the case as the police officer will often not know the details of
the offence, yet, and may be carrying out the search to investigate the
details further. In this case, Senior Sergeant Careless’ description,
however, does not appear to satisfy the requirements of describing the
alleged offence. His description is extremely vague and does not even
mention a particular offence. The only thing the application does
mention is that the offence has ‘something to do with drugs and
criminal law’. In addition no approximate dates are given as to when
the offences were allegedly committed. The application simply refers to
various dates in 2014. The description of the offences as well as the lack
of dates when the offences were allegedly committed makes the
description imprecise. The vagueness in regards to the alleged offence
suggests that Senior Sergeant Careless’ application overall does not
demonstrate reasonable belief or suspicion that a particular offence has
been committed.
Another reason why the warrant could be invalid is related to the
description of the property to be searched. The application does not
contain a house number but describes the premises as the ‘third house
on the left after the Caltex petrol station on Crescent Place’. The
question therefore arises as to whether this description is sufficient. The
reasons
[page 23]
why the premises must be sufficiently identifiable include that the
officer undertaking the search must know where to search and to avoid
searching the wrong premises. The facts of the case state that Senior
Sergeant Careless described the house as the third house left after the
Caltex petrol station on Crescent Place. While it may have been
preferable to use house numbering to clarify what premises are to be
searched, the house can nevertheless be identified with the description
provided. It is thus unlikely that the search warrant would be invalid on
this basis alone. That the police searched the wrong house is not a
question of validity of the warrant but should be addressed when
discussing the lawfulness of its execution.
In summary, it seems likely that the search warrant will be found
invalid as it does not sufficiently specify the alleged criminal offences
and fails to sufficiently explain what evidential value the object of the
search has for the alleged drug offences. Both of these violations do not
appear to be only minor defects of the warrant, thus likely rendering it
invalid.
[page 24]
[page 25]
[page 26]
Keep in Mind
You should avoid the following common errors:
• Not understanding clearly what the question asks you to do.
• Having poor time management and structuring skills.
• Not considering in detail whether Damien could be detained at
the police station over the course of the weekend.
• Not precisely identifying the relevant law in the jurisdiction in
question and not applying the relevant law to the facts of the case.
• Not outlining the requirements for obtaining a warrant.
• Not pointing out that there are no particular reasons why the
premises had to be searched at night.
• Not differentiating clearly between validity of the warrant and
lawfulness of its execution.
[page 27]
Chapter 2
Key Issues
2-1 All Australian jurisdictions have legislated to regulate the conduct
of police interrogations: Crimes Act 1914 (Cth) s 23A–23W; Criminal
Procedure Act 1986 (NSW) s 281 and Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW) ss 122–131; Police Administration
Act 1978 (NT) ss 140–142; Police Powers and Responsibilities Act
2000 (Qld) Ch 15; Summary Offences Act 1953 (SA) s 79A; Criminal
Law (Detention and Interrogation) Act 1995 (Tas) ss 5–9; Evidence Act
2001 (Tas) ss 85A and 139; Crimes Act 1958 (Vic) ss 464A–464H;
Criminal Investigation Act 2006 (WA) Pt 11.
An important component of police interrogations are safeguards to
ensure the rights of and fairness to persons questioned for indictable
offences. Police are required to inform an accused of his or her right to
silence. See, for example, s 431 of the Police Powers and
Responsibilities Act 2000 (Qld), which requires that a caution be given
prior to a person being questioned and further requires that police
ensure that the person understands the caution given. Any lack of
understanding will then trigger the right to an interpreter: s 433. A
suspect also has the right to communicate with a friend, relative or
lawyer and ask them to be present during questioning: s 418. The
questioning must, if practicable, be electronically recorded: s 436.
Nevertheless, even if the requirements for the recording of questioning
are not met, the evidence may still be admitted if it would be in the
interests of justice to do so: s 439. If the suspect is Aboriginal or a
Torres Strait Islander, then particular arrangements have to be satisfied
in relation to a lawyer being present and the support person, unless
given the person’s level of education and understanding he or she is not
at a disadvantage in comparison with members of the Australian
community generally: s 420.
Not all Australian jurisdictions have specific provisions dealing with
indigenous people, such as Western Australia, which relies on a general
provision under s 137(3) of the Criminal Investigation Act 2006 (WA):
The arrested person is entitled —
(a) to any necessary medical treatment; and
[page 28]
[page 29]
The judge or any party (other than the prosecutor) may comment on a failure of the
defendant to give evidence. However, unless the comment is made by another defendant
in the proceeding, the comment must not suggest that the defendant failed to give
evidence because the defendant was, or believed that he or she was, guilty of the offence
concerned.
Azzopardi clarified previous High Court authority and confined a
Weissensteiner direction (Weissensteiner v R (1993) 178 CLR 217) to
exceptional cases, as explained by Wilson J in R v WAF & SBN [2009]
QCA 144 at [45]:
In rare and exceptional cases, where evidence is capable of explanation only by
disclosure of additional facts known only to the defendant, it may be proper to comment
on the defendant’s failure to give evidence. But it is not proper to do so merely because
the defendant has failed to contradict some aspect of the case for the prosecution, or to
fill a gap in the prosecution evidence.
Where a trial judge has given a Weissensteiner direction and directed
the jury that an inference of guilt ‘may be more safely drawn from the
proven facts when the accused elects not to give evidence of relevant
facts which can be easily perceived to be in his knowledge’ in
circumstances that are not exceptional, then an appellate court will
quash the conviction as in R v Moran [1998] VSCA 64 at [29] per
Kenny JA:
The only evidence against the applicants was, in this case, the conversation of 6 April
1993. It was a conversation of uncertain significance and pregnant with possibilities,
each possibility involving illicit conduct but not necessarily the conduct alleged. The
deficiencies in the Crown case were, it seems to me, sufficient to explain the applicants’
remaining silent. This is not a case in which the applicants’ failure to give evidence
permitted the jury to be satisfied that the Crown had proved its case against them beyond
reasonable doubt.
In R v DAH [2004] QCA 419 at [11], McPherson JA described as
exemplary the trial judge’s directions below on the onus of proof where
the accused has exercised his or her right to silence at trial:
In this case the accused man has chosen not to give evidence. One consequence of the
rule that the onus of proof rests on the prosecution is that an accused person is not under
any legal obligation to give evidence. While you have not heard the accused man deny
from the witness box that he committed either offence, the fact he has not given evidence
in his trial does not by itself support an inference against him. The rule you have to apply
is that no adverse inference should be drawn against him because he decided not to give
evidence. It is a choice he is permitted to make by law. Equally, the fact that he chose not
to give evidence does not strengthen the case, or supply additional proof of the case
against him.
Evidence obtained during police interrogation, such as a confession or
an admission, may be held to be inadmissible by a court because: (1) the
evidence was not voluntarily given in the exercise of free choice; and (2)
in the exercise of judicial discretion. On the nature of voluntariness, in
R v Lee (1950) 82 CLR 133 at 144 the High Court set out the two
common law rules:
[page 30]
These rules, stated in abbreviated form, are — (1) that such a statement may not be
admitted in evidence unless it is shown to have been voluntarily made in the sense that it
has been made in the exercise of free choice and not because the will of the accused has
been overborne or his statement made as the result of duress, intimidation, persistent
importunity or sustained or undue insistence or pressure, and (2) that such a statement is
not voluntary if it is preceded by an inducement, such as a threat or promise, held out by
a person in authority, unless the inducement is shown to have been removed.
Judicial discretion to exclude evidence can be classified under three
headings: (1) the unfairness discretion; or (2) the public policy
discretion; or (3) the Christie discretion (after R v Christie [1914] AC
545, where the prejudicial impact of the evidence is greater than its
probative value). For the unfairness discretion, in R v Swaffield (1998)
192 CLR 159 at 197 [78] Toohey, Gaudron and Gummow JJ noted
that the essential purpose of the discretion was the protection of the
rights of the accused:
Unreliability is an important aspect of the unfairness discretion but it is not exclusive …
the purpose of that discretion is the protection of the rights and privileges of the accused.
Those rights include procedural rights. There may be occasions when, because of some
impropriety, a confessional statement is made which, if admitted, would result in the
accused being disadvantaged in the conduct of his defence.
For the public policy discretion, Barwick CJ in R v Ireland (1970)
126 CLR 321 at 335 identified the competing public requirements:
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject
the evidence. He must consider its exercise. In the exercise of it, the competing public
requirements must be considered and weighed against each other. On the one hand there
is the public need to bring to conviction those who commit criminal offences. On the
other hand there is the public interest in the protection of the individual from unlawful
and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be
obtained at too high a price. Hence the judicial discretion.
The public policy discretion is founded on the ‘deliberate or reckless
disregard of the law by those whose duty it is to enforce it’: Bunning v
Cross (1978) 141 CLR 54 at 78.
2-2 Before tackling the following questions, please check that you are
familiar with the following:
[page 31]
Question 1
George, an unemployed 21-year-old male, had previously come to the attention of the
police as a petty thief who preyed on elderly women living alone, stealing their
handbags and any portable items of value he could find in their homes in order to feed
his drug habit. After a string of break-ins, focused on Mermaid Street, the police sought
out several persons known to them, including George who the police found drinking in
one of his known haunts. The police told George they were investigating a series of
thefts and asked him to accompany them to the police station for questioning. George
nodded his consent, but was very unsteady on his feet and had to be assisted into the
police car by Constable Druitt.
On the journey in the car, Druitt’s police partner, Constable Lansbury, asked George if
he had been in Mermaid Street recently. George shrugged his shoulders. Lansbury
prodded George in the chest and repeated his question. George was somewhat
intimidated by being prodded and mumbled that he might have been in Mermaid
Street. Lansbury then asked George if he had broken into any of the houses in Mermaid
Street. George again mumbled he might have, before falling asleep.
When the police car arrived at the police station at 9.30 pm, George was immediately
taken to an interview room where he was interrogated by Constables Lansbury and
Druitt, and told he was under arrest on suspicion of breaking into a number of houses
in Mermaid Street. George complained that he was too tired to answer any questions
and needed to sleep. Lansbury said he could not sleep until he had answered some
questions. George kept repeating that he was too tired. Then Lansbury said to George:
‘It would be better for you if you told us the truth. If you tell us all you know, the
Magistrate will go easier on you.’
George sat silent for a while and then asked for a cup of coffee. Lansbury told George
he could have his coffee after he told the truth. When George shook his head, the two
policemen left the room and did not return for two hours by which time it was midnight.
Lansbury and Druitt woke George up and offered him a steaming hot cup of coffee if he
would answer their questions. George could not resist the coffee and proceeded to
admit to breaking into three houses in Mermaid Street and taking cash, jewellery and
watches.
After George had admitted the thefts, Druitt cautioned him. Lansbury then turned on
the electronic recording device and told George to repeat his admissions for the benefit
of the tape. George said he wanted a lawyer present, but Lansbury said it was far too late
at 1.00 am to find a lawyer, and in any event a lawyer was not necessary as he had already
admitted to the crimes. Still George hesitated until Lansbury said the taping would be
completed very quickly and then George could go to sleep in a comfortable bed in the
police cells. George, who was
[page 32]
exhausted, reluctantly agreed and confessed to the break-ins and thefts on tape, finally
getting to bed at 2.00 am.
Assuming George’s confession is disputed, on what grounds could George’s defence
counsel argue that the evidence of the confession on the tape should be found to be
inadmissible? Who bears the onus of proof?
Time allowed: 40 mins
Answer Plan
There are two main grounds under which George’s defence counsel
could argue the ‘confession’ evidence should be excluded:
(i) Procedural breaches.
• Failure to caution George in the police car and at the police
station.
• Failure to allow George to rest and recover before questioning.
• Failure to allow George to have access to a lawyer.
• Failure to record the interview from the outset.
(ii) Admissibility of the evidence.
• The voluntariness of the confession: the prodding in the car;
the inducement to tell the truth; and the conditional offer of a
cup of coffee.
• Judicial discretion.
– Unfairness.
– Public policy.
The second issue is the onus of proof and which party, the Crown or
the defence, bears the onus.
Answer
(i) Procedural breaches
2-3 The procedural breaches are common to all Australian
jurisdictions as similar legislation has been enacted to regulate the
conduct of police interrogations across Australia: Crimes Act 1914
(Cth) ss 23A–23W; Criminal Procedure Act 1986 (NSW) s 281; Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 122–
131; Police Administration Act 1978 (NT) ss 140–142; Police Powers
and Responsibilities Act 2000 (Qld) Ch 15; Summary Offences Act
1953 (SA) s 79A; Criminal Law (Detention and Interrogation) Act 1995
(Tas) ss 5–9; Evidence Act 2001 (Tas) ss 85A and 139; Crimes Act 1958
(Vic) ss 464A–464H; Criminal Investigation Act 2006 (WA) Pt 11.
This part of the answer will focus on Queensland. Apart from the
particular sections identified in the Queensland legislation, which
should
[page 33]
[page 34]
This list reflects five factors identified by Stephen and Aickin JJ in
Bunning v Cross (1978) 141 CLR 54 at 78–80, as relevant in
determining whether illegally obtained evidence should be admitted:
1. whether a deliberate disregard for the law was involved;
2. whether the nature of the illegality affects the cogency of the
evidence so obtained;
3. the ease with which the law might have been complied with in
procuring the evidence in question;
4. the nature of the offence charged; and
5. the intent of the legislation.
Here, on the facts, it would appear that George’s confession is the
only evidence linking George to the thefts, while the contraventions
were deliberate. The contraventions also included a failure to allow
George access to a lawyer, and a failure to allow George to sleep and
recover prior to questioning. The intent of the legislation is to prevent
this type of police behaviour. The nature of the offence, theft, is
common and was not accompanied with violence.
Under s 418(1) of the Police Powers and Responsibilities Act 2000
(Qld), a suspected person has a right to communicate with a friend,
relative or lawyer. Essentially, before a police officer starts to question a
suspect, the police officer must inform the person that he or she may
talk to a friend or relative and ask them to be present during
questioning, and talk to a lawyer and arrange for the lawyer to be
present during questioning. Importantly, under s 418(2) ‘the police
officer must delay the questioning for a reasonable time to allow the
person to telephone or speak to a person mentioned in subsection (1)’.
Additionally, under s 423 Questioning of Intoxicated Persons, if the
suspect is apparently under the influence of liquor or a drug,
questioning must be delayed:
… until the police officer is reasonably satisfied the influence of the liquor or drug no
longer affects the person’s ability to understand his or her rights and to decide whether
or not to answer questions.
Again, on the facts, it would appear that neither s 419 nor s 423 were
complied with by the police, which, in addition to the failure to give a
caution under s 431, would likely trigger judicial discretion to exclude
George’s confessional evidence under the public policy discretion on the
ground that the evidence was obtained illegally.
Finally, there is the question of the failure to record George’s initial
admission to the thefts after taking the cup of coffee and before being
cautioned. Under s 436 of the Police Powers and Responsibilities Act
2000 (Qld) the questioning must, if practicable, be electronically
recorded, and under s 436(3):
… if the person makes a confession or admission to a police officer during the
questioning, the confession or admission is admissible in evidence against the person in a
proceeding only if it is recorded.
[page 35]
[page 36]
[page 38]
[page 39]
the onus of proof lies with the defendant to show a reason for the judge
to exercise his or her discretion to exclude a confession from evidence:
R v Lee (1950) 82 CLR 133.
Keep in Mind
You should take care to:
• Identify all the various procedural breaches. If on reading a
question it becomes clear that a key issue is the admissibility of
confessional evidence, then the factual matrix will likely contain a
number of potential procedural breaches such as those relating to
administering the caution, access to a friend, relative or lawyer,
and recording the confession. The number and significance of the
breaches, combined with the degree of premeditation in
committing these breaches by the police, will likely determine the
outcome of the exercise of judicial discretion.
• Once the breaches have been identified, then the courts adopt a
four-step process to decide whether or not the evidence should be
admitted. The first step is to determine whether the confession
was made voluntarily. If the court decides the confession was
involuntary, then in principle the process ends at this point.
However, judges regularly continue the four-step process both for
completeness and to cover the possibility that if they are wrong on
this point there are other reasons to support their ultimate
conclusion on the admissibility of the evidence. The same
approach should be adopted in hypothetical examinations.
The second step is to assess the reliability of the evidence. The third
step is to consider whether it would be unfair to the accused to admit
the evidence. The fourth step is to decide whether the evidence should
be excluded on public policy grounds. This four-stage checklist should
be employed when answering any question involving the admissibility
of confessional evidence.
Question 2
Caroline had been convicted in a jury trial of obtaining money from her insurance
company by falsely pretending her car had been stolen. The Crown case was that
Caroline and her partner Trevor disposed of the car in order to defraud the insurance
company. The Crown case rested almost entirely on the evidence of Trevor. Caroline
did not give or call any evidence.
The trial judge directed the jury that they must not assume guilt from Caroline’s failure
to give evidence. The trial judge continued by referring to Caroline not giving evidence
at four places in the summing up. As well as repeating that the effect of such a course
was to leave Crown evidence
[page 40]
incriminating Caroline uncontradicted, the trial judge stated: ‘She chose the comfort
and sanctuary of the dock instead of the rigours of the witness box.’
Advise Caroline on the prospects of a successful appeal against conviction on the
ground that the practical effect of the trial judge’s comments was to negate in the minds
of the jury the warning not to infer guilt from Caroline’s failure to give evidence, and to
convey the impression that no innocent person in such circumstances could have failed
to give evidence.
Time allowed: 30 mins
Answer Plan
This question deals with the issue of the appropriate directions by the
trial judge to the jury when the defendant exercises his or her right to
silence at trial, as opposed to the privilege against self-incrimination
which covers a suspect’s right not to answer questions under police
interrogation. There are two issues to be considered under the appeal
ground that the trial judge misdirected the jury on the inferences, if any,
that may be drawn from the defendant’s decision not to take the witness
stand:
(i) Interpretation of statutory requirements.
• Whether the relevant statute specifies that the judge alone or
the judge and the prosecutor are allowed to comment on the
exercise by the defendant of the right to silence at trial.
(ii) Nature of the trial judge’s direction to the jury.
• Whether the circumstances of the case fall within the
directions set out by the High Court in Azzopardi v R (2001)
205 CLR 50.
Whether rare and special circumstances apply such that the
• evidence is capable of explanation by disclosure of additional
facts known only to the defendant as identified in
Weissensteiner v R (1993) 178 CLR 217.
Answer
(i) Interpretation of statutory requirements
2-6 The relevant sections dealing with comment on failure to give
evidence are: the uniform evidence legislation s 20 (Evidence Acts of
Commonwealth, Australian Capital Territory, Northern Territory, New
South Wales, Tasmania and Victoria); Evidence Act 1929 (SA) s 18(1)
(b); Evidence Act 1906 (WA) s 8(1)(c). The statutory language in South
Australia and Western Australia is identical: ‘the failure of any person
charged with an offence to give evidence shall not be made the subject
of any comment by the prosecution.’ This has been interpreted
[page 41]
as meaning that the trial judge (and where applicable a co-accused) are
able to comment on a defendant’s failure to give evidence: R v
Wickham (1971) 55 Cr App R 199. There is no such prohibition on
comment by the prosecution in Queensland: Weissensteiner v R (1993)
178 CLR 217 at 233 per Brennan and Toohey JJ. Indeed, Queensland
has two singular provisions, both of which are found in the Criminal
Code 1899 (Qld). The first is contained in s 618:
At the close of the evidence for the prosecution the proper officer of the court shall ask
the accused person whether the person intends to adduce evidence in the person’s
defence.
The effect of s 618 above is to draw the jury’s attention to the
accused’s specific response to this question, and the fact that a
conscious decision has been made whether or not to enter the witness
box. The second provision is s 620(1) of the Criminal Code 1899 (Qld),
where in the judge’s summing up ‘it is the duty of the court to instruct
the jury as to the law applicable to the case, with such observations
upon the evidence as the court thinks fit to make’.
In terms of judicial discretion to comment on the accused’s exercise of
the right to silence, this discretion is bounded by High Court authority,
most notably, Azzopardi v R (2001) 205 CLR 50 and Weissensteiner v
R (1993) 178 CLR 217, both of which cases are considered in the
second part of this answer: (ii) Nature of the trial judge’s direction to
the jury. The language of s 620(1) of the Criminal Code 1899 (Qld)
above can be compared with s 20(2) of the uniform evidence legislation:
The judge or any party (other than the prosecutor) may comment on a failure of the
defendant to give evidence. However, unless the comment is made by another defendant
in the proceeding, the comment must not suggest that the defendant failed to give
evidence because the defendant was, or believed that he or she was, guilty of the offence
concerned.
In Azzopardi v R (2001) 205 CLR 50 at [53]–[56], the High Court
discussed the application of s 20(2) and the meaning of ‘suggest’:
It is a section which regulates comments by the judge and by the prosecution. The
prosecution may say nothing about the fact that the accused did not give evidence … The
effect of the sub-section is that the judge, the accused and any co-accused may comment
on the fact that the accused did not give evidence, but the judge may not, by that
comment, ‘suggest’ that the accused failed to give evidence because he or she was guilty,
or believed that he or she was guilty, of the offence charged … ‘Suggest’ is a word of very
wide application. It was held in RPS (2000) 199 CLR 620 at 630 [20] that the
prohibition in s 20(2) should be given no narrow construction, that ‘s 20(2) requires a
line to be drawn and it should be drawn in a way that gives the prohibition against
suggesting particular reasons for not giving evidence its full operation’. If s 20(2) is not
interpreted in that way, the opportunity to exculpate has become an obligation to self-
incriminate (R v Kops (1893) 14 LR (NSW) 150 at 190 per Innes J).
Thus, for the right to stay silent at trial, notwithstanding the
differences in statutory language between jurisdictions and the singular
Queensland
[page 42]
reasonable doubt. It is, therefore, clear beyond doubt that the fact that an accused does
not give evidence at trial is not of itself evidence against the accused. It is not an
admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot
be used as a make-weight in considering whether the prosecution has proved the
accusation beyond reasonable doubt.
The High Court in Azzopardi also took the opportunity to narrow its
own previous authority in Weissensteiner v R (1993) 178 CLR 217. In
Weissensteiner, the appellant was convicted of the murder of a couple
who owned a cruising boat. The appellant, who had been hired to crew
the boat, was found in sole possession of the boat. The couple had
disappeared and left behind all their possessions. At his trial, the
appellant did not give evidence and called no witnesses. The sole ground
of appeal was a passage from the trial judge’s direction to the jury (at
224):
I remind you that the onus is on the prosecution and the fact that the accused has not
given or called evidence proves nothing. I remind you that the consequence of that
circumstance is that you have no evidence from the accused to explain the evidence put
before you by the prosecution, and that moreover, this is a case where the truth is not
easily ascertainable by the prosecution. You remember rather here it seeks to have you
infer guilt from such facts as it is able to prove to your satisfaction. Such an inference
may be more safely drawn from the proven facts when the accused elects not to give
evidence of relevant facts which can be easily perceived to be in his knowledge.
The focus of the court centred on the last sentence above, and
whether in the circumstances of the case it was permissible for the trial
judge to suggest to the jury that the inference could be more safely
drawn where the facts were uniquely within the appellant’s knowledge.
The joint judgment of Mason CJ, Deane and Dawson JJ (at 228–9)
answered this question in the affirmative:
There is a distinction, no doubt a fine one, between drawing an inference of guilt merely
from silence and drawing an inference otherwise available more safely simply because the
accused has not supported any hypothesis which is consistent with innocence from facts
which the jury perceives to be within his or her knowledge. In determining whether the
prosecution has satisfied the standard of proof to the requisite degree, it is relevant to
assess the prosecution case on the footing that the accused has not offered evidence of
any hypothesis or explanation which is consistent with innocence …
We think that the trial judge was correct in his view that this was an appropriate case in
which to direct the jury as to the manner in which they might take into account the
failure of the accused to give evidence.
However, the joint judgment in Azzopardi v R (2001) 205 CLR 50 at
75 [68] narrowed a Weissensteiner direction to ‘rare and exceptional’
cases:
It is to be emphasised that cases in which a judge may comment on the failure of an
accused to offer an explanation will be both rare and exceptional. They will occur only if
the evidence is capable of explanation by disclosure of additional facts known only to the
accused. A comment
[page 44]
will never be warranted merely because the accused has failed to contradict some aspect
of the prosecution case.
Thus, a Weissensteiner direction is only justified if the accused is in
sole possession of additional facts. Consequently, unless this test is
satisfied a trial judge will risk a successful appeal if a Weissensteiner
direction is given in anything other than ‘rare and exceptional’
circumstances.
Here, the factual matrix is based on the case of R v Lander (1989) 52
SASR 424, which was heard by the South Australian Court of Appeal.
King CJ (at 425) disapproved of the trial judge’s comments to the jury:
It is, of course, necessary for a trial judge to take care not to make comments which
might have the practical effect of negating in the minds of the jury the warning not to
infer guilt from the failure to give evidence. Remarks comparing ‘the comfort and
sanctuary of the dock’ with ‘the rigours of the witness box’ and remarks of similar
import, are apt to have that effect. I think that remarks of that kind should be avoided.
They tend to arouse feelings of disapproval, even indignation, at the exercise by an
accused person of his legal right to refrain from giving evidence. They tend for that
reason to deflect the jury from a sober and dispassionate evaluation of the evidence in the
case and the significance of the absence of sworn denials by the accused in that process of
evaluation. Such remarks tend rather to incline the jury to engage in the illegitimate
process of drawing an inference of guilt from the failure to give evidence.
Matheson J (at 431) was particularly concerned that the trial judge
had referred four times to the fact that the accused had not given
evidence, and cited Waugh v R [1950] AC 203 at 211 per Lord Oaksey:
In such a state of the evidence the judge’s repeated comments on the appellant’s failure to
give evidence may well have led the jury to think that no innocent man could have taken
such a course … [emphasis added]
Matheson J concluded that the cumulative effect of the trial judge’s
comments had gone too far.
Conclusion
2-8 On the basis of High Court authority in Azzopardi v R (2001)
205 CLR 50 at 64 [34] per Gaudron, Gummow, Kirby and Hayne JJ,
and the decision of the South Australian Court of Appeal in R v Lander
(1989) 52 SASR 424, Caroline’s appeal would be successful. This is not
a case where rare and special circumstances apply, such that the
evidence is capable of explanation by disclosure of additional facts
known only to the defendant as identified in Weissensteiner v R (1993)
178 CLR 217.
Examiner’s Comments
2-9 Having identified that the issue is the right to silence at trial, the
key to this question is a comparison between the directions given by the
trial judge to the jury in the factual matrix and a model direction
[page 45]
[page 46]
Keep in Mind
You should take care to identify the salient parts of the factual matrix:
• Caroline did not give or call any evidence. Thus, the right to
silence at trial is an issue.
• The Crown case rested almost entirely on the evidence of her
partner Trevor, who was also involved in the disposal of the car.
Hence, the factual matrix does not fall within the ‘rare and
exceptional’ category. The question would need to give a factual
matrix on point with Weissensteiner v R (1993) 178 CLR 217,
such that the defendant was in possession of the deceased’s
property in unexplained circumstances, before a trial judge could
safely direct a jury that they could draw an inference more safely
because the accused had not supported any hypothesis which was
consistent with innocence from facts which the jury perceived to
be within his or her knowledge.
• The mixed message that the trial judge was conveying to the jury
by on the one hand directing the jury that they must not assume
guilt from Caroline’s failure to give evidence, while on the other
hand making repeated references to this failure and Caroline’s
avoidance of the witness box. This is the trigger for the
comparison with the model directions in the absence of ‘rare and
exceptional’ circumstances.
Question 3
Cilla was born and raised in an Aboriginal community in Queensland and learnt English
at school. Cilla had serious health problems, left school and her community at the first
opportunity, and went to live in Toowoomba, Queensland with her partner Alex. Cilla’s
Auntie Dora lived in Warwick, 80 kilometres south of Toowoomba, but they were not
close and Cilla never visited her Auntie. Alex drank heavily and regularly assaulted Cilla.
After one extended drinking session, Alex came home and attempted to assault Cilla.
Cilla grabbed a kitchen knife and stabbed Alex in the arm. Alex collapsed on the floor
and passed out. Cilla panicked and fled to a friend’s house.
After three days had passed, Cilla returned home to find it had become a crime scene.
When Cilla identified herself, Sergeant Rockett informed her that Alex was dead and
asked her if she would come to the police station to answer some questions. Cilla
agreed.
At the police station, Cilla was left alone in an interview room for over an hour. Sergeant
Rockett returned with Constable Baker. Sergeant Rockett cautioned Cilla at the
commencement of the interview and asked her if she understood the caution, to which
she answered ‘yes’. Rockett put to Cilla that: ‘You don’t need a lawyer to be present do
you?’ Cilla looked unsure but thought Rockett wanted her to say ‘no’, so Cilla said ‘no’.
[page 47]
Next, Rockett asked Cilla if she had killed Alex. Cilla replied ‘yes’. Rockett then told her
she was under arrest for murder. When they pressed her to answer further questions,
Cilla repeatedly said ‘no’. Both officers left. Four hours later they returned with Cilla’s
Auntie Dora and asked Dora to talk to Cilla about answering questions.
Rockett and Baker left Cilla and Dora alone with each other for twenty minutes. During
that time, Auntie Dora repeatedly urged Cilla to tell the truth as it was the best way to
help herself. On the return of the police officers, Cilla agreed to answer questions.
During the interview, Cilla was asked if: (1) she intended to stab Alex; (2) she left Alex
bleeding profusely and unconscious on the floor; and (3) she told no one what had
happened until she returned home three days later. To these three questions Cilla
simply replied ‘yes’. Cilla was then charged with murder. Both parts of Cilla’s interview
were electronically recorded.
What issues would the court need to consider if the confession was disputed at trial?
Time allowed: 40 mins
Answer Plan
There are two main grounds under which Cilla’s defence counsel could
argue the ‘confession’ evidence should be excluded:
(i) Procedural breaches.
• Failure to follow the proper procedures for questioning
Aboriginal people.
(ii) Admissibility of the evidence.
• The voluntariness of the confession: the use of Auntie Dora by
a person in authority to change her mind and answer further
questions.
Answer
2-10 This question can usefully be read as a variation of Question 1
above. In Question 1, under procedural breaches, there was a failure to
caution and a failure to record the interview from the outset. These
failures are not present in Question 3, where the focus is on the failure
to follow the proper procedures for questioning Aboriginal people. Also
in Question 1, the voluntariness of the confession involved
consideration of the prodding in the car; the inducement to tell the
truth; and the conditional offer of a cup of coffee. Here, in Question 3,
the voluntariness of Cilla’s confession concerns the use of Auntie Dora
as an instrument of a person in authority (the police) to persuade Cilla
to change her mind and answer further questions.
[page 48]
It can be seen that both s 420(2), which deals with a lawyer being
present, and s 420(4), which covers a support person, are both qualified
under s 420(3) and (5) respectively. Section 420(3) allows a police
officer to dispense with the need for a lawyer being present if the officer
‘reasonably suspects’ the indigenous person is not at a disadvantage
[page 49]
[page 51]
[page 52]
Cilla is then left alone for a further four hours without any indication of
sustenance being offered. Third, when the 20 minutes with Auntie Dora
has passed, Cilla has apparently been without sustenance for five hours
and 20 minutes (excluding the time taken to conduct the first part of the
interview) and may also be suffering from tiredness: see the Anunga
Rules 6 and 7.
The involvement of Auntie Dora, who may not be someone Cilla
actually wanted to be present or filled the role of ‘prisoner’s friend’,
occurred in the absence of a legal representative, contrary to s 420(2) of
the Police Powers and Responsibilities Act 2000 (Qld), ‘unless a police
officer reasonably suspects the person is not at a disadvantage in
comparison with members of the Australian community generally’ (s
420(3)), which would appear unlikely on the facts.
[page 53]
Conclusion
2-13 Cilla’s confession would in all probability be excluded from
evidence because of: (1) the breaches in procedure for questioning
Aboriginal people; and (2) the involuntariness of the confession because
it was induced by Auntie Dora.
Examiner’s Comments
2-14 The obvious starting point in this question is the fact that Cilla
is an Aboriginal person. As a result, special conditions apply to the
interrogation of Cilla either directly where the jurisdiction has specific
legislation covering the questioning of Aboriginal people and Torres
Strait Islanders, or indirectly under a legislative requirement to provide
an interpreter ‘if he or she is for any reason unable to understand or
communicate in spoken English sufficiently’. The key test is that the
Aboriginal person is not at a disadvantage in comparison with members
of the Australian community generally. This is effectively a test of
fairness.
Such a test follows from the long established common law principle
that a person may only be tried if he or she ‘has sufficient understanding
to comprehend the nature of [his or her] trial so as to make a proper
defence to the charge’: R v Pritchard (1836) 7 Car & P 303 at 304. As
the High Court observed in Ebatarinja v Deland (1998) CLR 444 at
[27], ‘[i]f the defendant does not speak the language in which the
proceedings are being conducted, the absence of an interpreter will
result in an unfair trial’, citing R v Lee Kun [1916] 1 KB 337 at 341 at
342 as authority. The same principle applies to the interrogation of the
defendant.
The second key fact is the role of Auntie Dora. Whenever a character
is introduced into a legal hypothetical question, students should be
asking themselves what legal principles are attached to the role of the
character in the factual matrix. Here, Auntie Dora appears to be an
agent for the police to circumvent Cilla’s exercise of her right to silence,
which goes to the voluntariness of Cilla’s confessional evidence.
Keep in Mind
You should take care to identify the essential parts of the factual matrix
which shape the issues to be covered:
• Cilla is an Aboriginal person, who had serious health problems,
learnt English at school and left school at the first opportunity.
This raises the issue of Cilla’s vulnerability.
[page 54]
Question 4
Peter and Maurice are jointly charged with the murder of Whitey, who was battered to
death with a blunt instrument. Peter chose to exercise his right to silence when
interrogated by police, but at trial gave evidence that Maurice had killed Whitey.
Maurice, on the other hand, did make a statement to the police when interviewed after
his arrest, laying sole blame on Peter for the killing of Whitey. Maurice exercised his
right to silence at trial. Both Peter and Maurice were convicted of murder and appealed.
The grounds of appeal were the directions the trial judge had given the jury for each of
the accused. In Peter’s case, the trial judge had told the jury that ‘if the accused (Peter)
really had witnessed his co-accused (Maurice) kill the deceased (Whitey), then you
might well believe he would have told the police this vital piece of information at the
time he was interviewed by the police instead of raising this defence many months later
at his trial’.
In Maurice’s case, the trial judge had told the jury that ‘given the accused (Maurice) had
identified his co-accused (Peter) as the deceased’s (Whitey) killer when interviewed by
the police but at his trial has chosen not to enter the witness box, then you might more
safely draw an inference of guilt as his co-accused has testified against him’.
Advise both Peter and Maurice on their prospects of a successful appeal. Would the
outcome differ depending on the jurisdiction? Would your answer differ if Maurice had
decided when the trial started to testify to the effect that Whitey was already dead when
he and Peter found Whitey?
[page 55]
Answer Plan
There are four issues which need to be addressed:
(i) For Peter’s appeal.
• The trial judge’s comment on Peter’s late defence, having
exercised his pre-trial right to silence.
(ii) For Maurice’s appeal.
• The trial judge’s comment on Maurice’s exercise of his right to
silence at trial in light of:
– Maurice’s pre-trial evidence against Peter; and
– Peter’s evidence from the witness box against Maurice.
(iii) Whether the outcome of the appeals would differ depending on
the jurisdiction.
(iv) Whether the outcome would differ if Maurice gave evidence
inconsistent with his original statement to the police.
Answer
2-15 This question can usefully be read as a variation of Question 2
above. In Question 2, the focus of the question was on the trial judge’s
directions to the jury in relation to Caroline’s failure to give any
evidence at trial. Here, in Question 4, there are two defendants who
have engaged in a ‘cut throat’ defence where each has blamed the other
for the murder of the deceased, Whitey. Peter exercised his right to
silence when interrogated by police, but elected to give evidence against
Maurice at trial. Maurice followed the exact opposite course by laying
blame against Peter under interrogation, but exercised his right to
silence at trial notwithstanding Peter had taken to the witness stand
against him.
[page 56]
[page 58]
[page 59]
per Mason CJ, Deane, Toohey and McHugh JJ, evidence of Maurice’s
original statement inculpating Peter is admissible against Maurice, and
the jury would be able to take into account the inconsistency in the pre-
trial and at trial defences when determining the credibility of the later at
trial defence of an unknown third party being responsible for Whitey’s
death:
Obviously, his [Maiden] assertion to the police that Petty had killed Mark White was
inconsistent with the defence raised at the trial that he had himself accidentally killed
White while defending himself from attack.
In the circumstances, evidence of the earlier allegation to the authorities against Petty
was admissible against Maiden. Among other things, it cast doubt upon the genuineness
of the defence that Maiden had killed White accidentally in self-defence or without
relevant intent. Evidence of Maiden’s subsequent failure to withdraw the assertion that
Petty had killed White was also relevant and admissible in that it could lead to an
inference of adherence right up to the time of trial to what was, in effect, an allegation of
murder against Petty and constitute a denial by conduct of his defence at the trial.
As a result, it is likely that the inconsistency between Maurice’s two
defences would weigh heavily against him in the minds of the jury.
Examiner’s Comments
2-20 The key to answering this question is to identify the exercise of
the pre-trial right to silence (Peter) and the exercise of the at trial right
to silence (Maurice). The question contrasts the two forms of the right
to silence by utilising a co-defendant factual scenario, which is loosely
based on Petty and Maiden v R (1991) 173 CLR 95. In many questions
the examiner builds the factual scenario around a case, and the ability
to identify the case is clearly of great assistance. Students need to be
alert to the possibility they have been given a thinly disguised case they
have studied.
Whenever an examiner ask a supplementary question that starts with
‘Would it make any difference to your answer …’, you can usually
assume it will make a difference. Here there were two supplementary
questions. As to the first supplementary question, the reference to a
different outcome based on the jurisdiction is a clear signal that at least
one jurisdiction has passed legislation that alters the relevant law in a
significant manner. In this instance it is New South Wales in the form of
s 89A of the Evidence Act 1995 (NSW), which allows unfavourable
inferences to be drawn from a failure to mention a fact that the
defendant later relied on in his or her defence of the charge and where
the defendant could reasonably have been expected to mention the fact
in the circumstances existing at the time of official questioning. This is
pre-trial silence.
The second supplementary question involves a change in Maurice’s
defence from blaming Peter to blaming an unknown third party. This
triggers an inconsistency and allows the Crown to adduce evidence of
[page 60]
Keep in Mind
You should take care to demonstrate the depth of your knowledge of
any qualifications that may exist in the legislation or key distinctions in
the cases on point. For example:
• The distinction between inferring a consciousness of guilt from
silence and denying credibility to a late defence by reason of
earlier silence.
• In the absence of rare and exceptional circumstances, the use by a
trial judge of a Weissensteiner direction would be an error of law:
Azzopardi v R (2001) 205 CLR 50.
• The inferences under s 89A(1) of the Evidence Act 1995 (NSW)
are only open if the conditions in s 89A(2) are met.
• On the authority of Petty and Maiden v R (1991) 173 CLR 95,
the jury is able to take into account any inconsistency in the pre-
trial and at trial defences when determining the credibility of the
later at trial defence.
[page 61]
Chapter 3
Key Issues
3-1 Chapters 1 and 2 focused largely on the investigation and
preparatory stage prior to the commencement of a criminal trial. This
chapter is concerned with the commencing of proceedings. It considers
the prosecutorial charging decision as well as the question of whether,
and under what circumstances, an accused who has been charged (and
in some cases convicted) can receive a conditional release on bail.
Charging decision
3-2 Where sufficient evidence exists against an accused, it is
ultimately in the discretion of the prosecutor to charge or to continue a
prosecution against an accused. Prosecutors will frequently be police
prosecutors, who mainly act in the Magistrates Courts, and staff of the
Office of the Director of Public Prosecutions (DPP) in superior courts.
While it is also possible that private individuals or public bodies other
than police initiate prosecutions in Australia, this happens less
frequently.
In an attempt to increase transparency of and consistency between
charging decisions, certain prosecutorial guidelines (Guidelines) have
been put into place in all Australian jurisdictions. All Guidelines set out
certain aspects that prosecutors should take into consideration during
the charging decision. As guidelines, however, they are not legally
binding and do not override the prosecutorial discretion.
Based on the above, a two-tier test underlies the charging decision.
The first tier requires the prosecutor to assess whether there is sufficient
evidence against an accused to commence or continue prosecution.
While, as pointed out in previous chapters, it is frequently sufficient for
the police to rely on a reasonable suspicion when acting, this is not
sufficient to satisfy the first tier of the charging decision. Ultimately, the
evidence
[page 62]
[page 63]
[page 64]
Bail
3-3 After a person has been charged with an offence, there can be an
extended waiting period until proceedings actually commence. During
this time the accused may be able to apply for and receive bail under
certain circumstances and may thus be at liberty while awaiting trial.
This can be advantageous for an accused as they are able to prepare
their case more easily than when being incarcerated and are able to
remain in their normal social environment.
A person charged with an offence can seek and receive police bail or
bail from a magistrate or from a superior court judge. In most
Australian states and territories the authority who deals with the matter
at the time of the bail application, for example, before the first court
appearance, after the committal, during an adjournment and pending an
appeal, has jurisdiction to grant bail. This chapter focuses on bail
granted by judicial officers as opposed to police bail. While generally all
courts have the power to grant bail (depending on the stage of
proceedings), in many jurisdictions the power to grant bail for murder is
reserved to the Supreme Court; see, for example, s 13 of the Bail Act
1980 (Qld) and s 15 of the Bail Act 1982 (WA).
The bail decision requires the weighing of a number of different
(frequently competing) interests. On the one hand, there is the interest
that an accused remains at liberty while awaiting trial which is
supported by the presumption of innocence, meaning a defendant is
innocent until proven guilty. On the other hand, there is the interest of
ensuring that the defendant will attend trial, the interest of keeping the
community safe as well as preventing the accused from tempering with
witnesses and other evidence. These competing interests have to be
balanced in the bail decision-making process.
Today, all Australian jurisdictions have introduced legislation
specifically relating to bail (Bail Acts) which aims to strike a balance
between the competing interests named above.
[page 65]
Cash bail
3-8 The type of bail differs between Australian jurisdictions. In
Queensland, a magistrate or police officer may grant a defendant cash
bail where the magistrate adjourns the hearing of a charge that is not an
indictable offence (note that certain offences are excluded). In that case
the defendant does not have to enter into a bail undertaking (Bail Act
1980 (Qld) s 14A) but merely deposits cash. Cash bail is not available
in Queensland in superior courts. Cash bail is also available in certain
circumstances from a police officer in Victoria: see Bail Act 1977 (Vic) s
11. The consequence of cash bail is that where a defendant fails to
appear in court, the money paid is forfeited while no offence against the
Bail Act as such is committed.
Bail undertaking
3-9 Generally, in order to receive bail an accused must enter into a
bail undertaking in most Australian jurisdictions. A bail undertaking is
a written undertaking signed by the accused or an accused and their
surety stating that the accused will attend a hearing or trial at a later
stage and surrender into custody (the exception to entering into an
undertaking is cash bail as explained above); see:
• Bail Act 1992 (ACT) s 28;
• Bail Act 1982 (NT) s 25;
• Bail Act 1980 (Qld) s 20;
[page 67]
[page 68]
• Bail Act 1982 (NT) s 27(2);
• Bail Act 1980 (Qld) s 11(1);
• Bail Act 1985 (SA) s 11(2);
• Bail Act 1977 (Vic) s 5(2); and
• Bail Act 1982 (WA) Sch 1 Pt D cl 1.
Surety
3-12 A surety is a person who guarantees the courts that the accused
will attend future hearings through signing the bail undertaking and
depositing the required sum; see, for example, s 21 of the Bail Act 1980
(Qld) and s 35 of the Bail Act 1982 (WA) s 35. Where the accused fails
to attend subsequent hearings, the deposit is generally forfeited. Not
every person can act as a surety. In most jurisdictions the surety must,
for example, fulfill all or a number of the following requirements:
• be at least 18 years old;
• have no convictions for an indictable offence;
• not be a patient under the Mental Health Act;
• not be under guardianship;
• not be insolvent; and
• not be worth less than the required amount in bail.
See, for example, s 9 of the Bail Act 1977 (Vic). Whether a person
meets these requirements is in the discretion of the bail granting
authority. A surety can apply to be discharged from their obligation if
they fear that the accused does not comply with the undertaking; see,
for example, s 36 of the Bail Act 1992 (ACT), s 23 of the Bail Act 1977
(Vic) and s 48 of the Bail Act 1982 (WA).
[page 69]
Question 1
Joe and Sophia Massouri have been married for just over two years. During this time Joe
has continuously beaten, raped and sexually assaulted Sophia. Joe comes from a wealthy
family which has been involved in local and national politics for decades. While Joe’s
brothers are highly influential members of the current government, Joe is a wealthy
business owner. Joe frequently supports the current government’s endeavours by
making donations and by organising fund-raisers within legal limits.
Joe met Sophia on a holiday in a developing country and brought her to Australia to
marry. They have been living in Australia ever since. Sophia’s family is very poor. To
survive they rely on Sophia sending money provided by Joe every month. Sophia puts
up with the situation as she
[page 70]
sees no way out in this foreign country and wants to ensure the survival of her family
back home.
On 20 July 2015 Joe returns home from a gala ball in an extremely aggressive mood. He
immediately starts yelling at Sophia in front of the butler, housekeeper and gardener
that she is a ‘piece of garbage’ and that she does not deserve the lifestyle he is offering
her. Joe tells the staff to ‘piss off’, otherwise he will fire them. The household staff
depart immediately. Subsequently Joe starts beating Sophia who is unable to defend
herself. He drags her to the bedroom and has sexual intercourse with her against her
will. Sophia screams and loudly begs him to stop. Sophia’s screams and begging from
behind the bedroom door are heard by the butler, the housekeeper and the gardener
downstairs who telephone for the police to come and intervene.
By the time the police arrive Joe is sitting in the small salon fully dressed while Sophia is
lying in bed in tears. She is showing signs of domestic violence and rape. When police
interview Joe he states that he has been sitting in the salon since his return from the ball
and does not know what is going on with Sophia. He tells the police that he does not
appreciate them snooping around. He states that should anything come of this event it
will be extremely embarrassing for the current government given that both of his
brothers are influential members. He also makes clear that no more money will come
the government’s way should anything happen to him. Ultimately he points out that he
will ensure that anyone who makes a charging decision will be fired.
When Sophia is interviewed, she says her injuries stem from running against a door and
that she is emotional due to a movie she has been watching. She says she does not wish
for her husband to be prosecuted and will not be able to testify anything relevant. The
butler, housekeeper and gardener describe their observations of the evening as well as
similar behaviour in the past and indicate that they will be able to give evidence in court.
A background check on the butler shows that he has been convicted of perjury for lying
in court once in 2005 in an unrelated matter. Medical evidence shows that Sophia’s
injuries are consistent with the infliction of violence and rape rather than running
against a door.
The current government has identified domestic violence as a major problem in today’s
society and has only recently published a report entitled ‘Together We Will End
Domestic Violence’. The government has therefore made ending domestic violence one
of the main goals of its current term.
You are working for the DPP and are asked to prepare advice for your supervisor on
whether the DPP should charge Joe for non-fatal and sexual offences against Sophia.
Time allowed: 50 mins
[page 71]
Answer Plan
There are two issues in relation to the charging decision which need to
be addressed:
(i) First tier: sufficient evidence? (reasonable prospect of conviction).
• Joe’s confession?
• Sophia’s witness statement?
• Butler? Perjury conviction.
• Housekeeper and gardener? Heard screams from bedroom but
did not see violent acts. Sufficient?
• Medical evidence?
(ii) Second tier: public interest.
• Considerations relating to the public interest.
• Irrelevant considerations.
Answer
3-16 Joe should be charged with the respective offences if the two-tier
test relevant for the charging decision can be satisfied. Therefore it has
to be assessed first whether there is sufficient evidence that supports a
reasonable prospect of conviction against Joe and second whether the
prosecution is in the public interest.
[page 72]
(and note that the Northern Territory Guidelines are currently under
review and not publicly available), the following can be taken into
consideration when assessing a reasonable prospect of conviction:
• availability and competence of witnesses and other evidence;
• honesty and reliability of witnesses;
• possible attacks on witnesses’ credibility; and
• admissions of the accused.
This book focuses on criminal procedure and not on the law of
evidence. Evidential issues will therefore not be discussed in detail. Yet,
the following matters would have to be taken into consideration. In the
case at hand Sophia states that her injuries have arisen due to running
against a door and that she will not be able to testify anything against
her husband. This raises doubt regarding the quality of her testimony.
In addition, the accused states that he was sitting in the salon since
returning from the ball and has nothing to do with any of Sophia’s
injuries.
While the household staff stated what they had heard that evening
and in the past and that they are all available as witnesses, the question
arises as to their competence as witnesses. None of the witnesses has
seen any acts of domestic violence against Sophia. Yet they have heard
Sophia’s screams from the bedroom which in turn has prompted them
to phone the police. They may therefore be considered available and
competent. Yet, the facts of the case state that the butler has been
convicted for perjury in 2005 for lying in court. This matter could form
the basis for a potential attack on the butler’s testimony in court.
However, nothing indicates that the gardener and the housekeeper are
not available and competent to give evidence. While it would have to be
taken into consideration that neither saw Sophia being beaten or raped,
both can testify that they heard her scream and beg for Joe to stop.
Finally, the medical evidence qualifying Sophia’s injuries as consistent
with (sexual) violence inflicted by another person and not consistent
with running against a door could be taken into consideration. On this
basis it seems possible to argue that sufficient evidence exists supporting
a reasonable prospect of conviction and thus satisfying the first tier of
the test.
(ii) Second tier: public interest
3-18 If the first tier can be satisfied, namely that sufficient evidence is
available against an accused, the question has to be considered whether
the prosecution is in the public interest. The relevant Guidelines in the
respective jurisdictions provide certain factors that have to be taken into
consideration when assessing whether the prosecution is in the public
interest:
• Office of the Director of Public Prosecutions (ACT), The
Prosecution Policy of the ACT, cll 2.8–2.9;
• Office of the Director of Public Prosecutions (NSW), Prosecution
Guidelines, cl 4(3);
• Office of the Director of Public Prosecutions (Qld), Director’s
Guidelines, cl 4(ii);
[page 73]
[page 74]
Yet, it needs to be noted that the victims’ attitudes are only one
consideration among many. In light of the above, it could be argued
that charging Joe with the offences against Sophia is in the public
interest despite Sophia’s wishes.
None of the factors raised by Joe can be taken into consideration
during the course of the charging decision. Whether Joe has influential
brothers in the current government and would withdraw financial
support is equally as irrelevant as per the Guidelines as his threat that
anyone who makes a charging decision against him will be dismissed
from their position.
As a conclusion, the supervisor should be advised that Joe should be
charged with the respective offences as both tiers of the charging
decision are likely satisfied in this case.
Examiner’s Comments
3-19 The question required an in-depth examination of the
underlying principles of the prosecutorial charging decision. Students
should avoid considering the question of sufficient evidence and public
interest together as the requirements differ. In addition, students should
outline that where no sufficient evidence exists public policy
considerations do not become relevant. Students were also expected to
provide an in-depth examination of the facts of the case and to apply
the law to the facts.
Keep in Mind
You should avoid the following common errors:
• Not understanding what the question asks you to do.
• Not explaining that the charging decision is based on two distinct
tiers.
• Not sufficiently analysing the question of whether there is
sufficient evidence including the credibility of the different
witnesses in order to establish whether the first tier is satisfied.
• Not engaging in a detailed assessment of the individual factors
relevant for public policy considerations and failing to apply the
law to the facts of the case in the context of the second tier.
• Failing to identify that Joe’s threats and arguments are irrelevant
considerations for the charging decision as per the Guidelines.
Question 2
Ivan Novak, who is 21 years old, came to Australia with his family when he was 10 years
old from what was then called Yugoslavia. He holds dual Australian and Bosnian
citizenship but only has an expired Bosnian passport. Ivan lives with his parents in
Australia and has no relatives left living in Bosnia. Yet, he has a brother living in Croatia.
He has a girlfriend
[page 75]
in Australia who lives close to his parents. He works as a tradesperson apprentice and
has been described by his supervisor as very unreliable. Ivan has a number of criminal
convictions, the most significant being several robbery convictions and two very serious
possession of dangerous drugs charges. He has been treated in the hospital for
overdosing on drugs several times in the past and failed a urine drug test while on
parole for another offence, which amounted to a breach of his parole order.
On 1 July 2015 Ivan was arrested for perjury (giving false testimony) in a hearing which
took place on 1 June 2015. He is alleged to have given false testimony during that
hearing about his involvement in a drive-by murder.
At a pre-trial hearing for the perjury trial, Ivan applied for bail but this was refused by
the judge.
When considering the bail application the judge found that in Ivan’s favour it had to be
considered that he did not flee the country during the month between testifying at the
hearing and his subsequent arrest. However, the judge ultimately refused bail because
of Ivan’s history of drug offences and the risk that Ivan would reoffend while on bail, the
seriousness of the perjury charge, his unsatisfactory employment record as well as the
flight risk to Bosnia (making it likely that he would not appear at trial and commit further
offences while on bail).
Ivan thinks that this is unfair. He believes that there is no flight risk as Australia exercises
control over its ports and it would be impossible for him to flee to Bosnia. He believes
that his criminal history shows no pattern of repeat offending of any particular type of
offence and believes he is not likely to reoffend while on bail. While he admits that he
has breached a parole order in the past due to drug use, he thinks this should have
nothing to do with his current bail application.
(i) Please advise Ivan on the relevant bail considerations and whether the judge’s
decision to refuse bail is justified.
(ii) Would your advice be different if Ivan was not suspected of committing perjury in
relation to a drive-by murder but suspected of committing murder? Explain why or
why not.
(iii) Ivan is convicted of perjury but is aiming to appeal his conviction on various
grounds. Is there a right to bail after a conviction and pending appeal? If so, what
are the general requirements?
Time allowed: 50 mins
Answer Plan
(i) Advice on bail related to perjury charge.
• General right to bail or presumption of bail?
• Refusal to grant bail due to unacceptable risk?
• Seriousness of the offence.
[page 76]
Answer
(i) Advice on bail related to perjury charge
3-20 Many Bail Acts in Australia set out that the accused has a
general right to bail or enshrine a general presumption that a defendant
is entitled to bail; in the two territories, the Northern Territory and the
Australian Capital Territory, a defendant is entitled to bail unless
granting bail is not justified (Bail Act 1992 (ACT) s 9A(2); Bail Act
1982 (NT) s 8(2)(a)) or there is a general assumption against bail. In
New South Wales, Queensland, South Australia, Tasmania, Victoria
and Western Australia there is a right to bail or a presumption that a
defendant is entitled to bail:
• Bail Act 2013 (NSW) s 20;
• Bail Act 1980 (Qld) s 9;
• Bail Act 1985 (SA) s 10(1);
• Bail Act 1994 (Tas) s 23;
• Bail Act 1977 (Vic) s 4(1); and
• Bail Act 1982 (WA) ss 5 and 7(1) in certain circumstances.
This might mean that Ivan is generally entitled to bail. In addition,
however, the Bail Acts enshrine that under a number of circumstances
an accused should not receive bail. Whether the decision to refuse Ivan
bail is justified would therefore depend on the relevant considerations
set out in the respective Bail Act. As indicated above, no right to bail or
a presumption of bail exists where the prosecution is able to establish
that there is an ‘unacceptable risk’ (New South Wales, Queensland and
Victoria) or likelihood (South Australia) that the defendant if released
on bail would engage in certain conduct specified in legislation. This
conduct includes failing to appear and committing a (serious) offence
while on bail:
• Bail Act 2013 (NSW) s 19(2);
• Bail Act 1980 (Qld) s 16(1);
[page 77]
[page 78]
[page 79]
show any pattern of specific reoffending, for example, robbery and drug
offences, and that he was young (he is only 21 now) when most offences
were committed, these arguments appear unconvincing.
Nothing in the facts of the case suggests that Ivan no longer uses
drugs. The facts state that he had to seek hospital treatment several
times in the past as he overdosed on drugs. His ongoing drug addiction
makes it likely that he will continue to commit drug offences while
released on bail. Ivan’s criminal history contains two serious drug
offence convictions. In addition, in the parole incident, he had failed a
urine test screening for drugs. All of the above suggests a risk of re-
offending in relation to drug offences. This point is enhanced by the fact
that Ivan had previously breached a parole order due to drug use
suggesting his carelessness in this context.
In Ivan’s case there appears to be an unacceptable risk that while
released on bail: (1) Ivan would fail to appear and surrender into
custody; and (2) Ivan would commit an offence. In light of the above,
the judge’s decision to refuse bail appears justified. For further
consideration, see Cokara v Director of Public Prosecutions (DPP)
(Qld) [2012] QCA 250.
[page 80]
(1) strong grounds that an appeal will be allowed; and (2) the custodial
part (the sentence) is likely to have been substantially served prior to the
determination of the appeal. Whether Ivan could receive bail would
thus depend on whether he can meet these two conditions. As the facts
of the case merely state that he is planning to appeal on a number of
grounds and no information is provided as to how much of the
custodial sentence he would have served no definitive answer can be
provided as to whether he would receive bail. Thus, after outlining the
requirements for bail pending an appeal it would have to be concluded
that additional information is required to assess Ivan’s chances of
receiving bail under these circumstances.
Examiner’s Comments
3-27 The question required an in-depth examination of the right to
bail/presumption of bail and situations in which an unacceptable risk
can lead to the denial of bail. It was important to identify the relevant
statutory laws relating to bail in the relevant jurisdiction. A detailed
assessment of what constitutes an ‘unacceptable risk’ was also
necessary. The question could not be sufficiently answered without
precisely applying the law to the facts of the case. Considerations in
favour of and against bail had to be weighed up in detail in order to
ultimately advise as to whether the judge’s decision to refuse bail was
justified.
Keep in Mind
You should avoid the following common errors:
• Not understanding clearly what the question asks you to do.
• Not pointing out the relationship between right to bail and
‘unacceptable risk’.
• Not clearly outlining the statutory requirements for bail
considerations.
• Not precisely applying the law to the facts of the case.
• Not differentiating between factors for and against bail in the case
at hand.
• Not providing a conclusion as to whether the judge’s decision to
refuse bail appears justified.
Question 3
On 7 September 2015 Raymond was arrested for beating his wife Sasi, with whom
Raymond was living at the time. Raymond and Sasi have six children together. Raymond
has been a heavy drinker for years and has been known to get violent and aggressive
when he consumes alcohol. Raymond applied for and received bail on his own
undertaking subject to the following conditions: (1) Raymond must reside at a certain
nominated
[page 81]
address; (2) Raymond must comply with the conditions set out in the domestic violence
order issued the same day the incident occurred; (3) Raymond must not consume any
alcohol; and (4) Raymond must submit to a breath test when so required by police.
The prosecution argued that the fourth bail condition relating to breath-testing was
necessary to identify whether Raymond had been complying with bail condition (3)
(alcohol abstinence) as well as functioning as a necessary deterrent from consuming
alcohol. While Raymond generally has no problem with the first three bail conditions
and accepts that he is not allowed to consume alcohol while on bail, he believes that
having to take breath tests whenever required by police goes too far.
(i) Explain to Raymond what bail conditions are and for what reasons they can
generally be imposed.
(ii) Advise Raymond as to whether bail condition (4) (submitting to breath tests
whenever required to do so by police) can generally be imposed and whether this
condition is more onerous than necessary in his case.
(iii) Assume all four bail conditions are valid. What are the consequences if Raymond
refuses to take a breath test because he does not feel like it when so required by
the police? Would your answer change if Raymond failed to appear at the police
station and to take the breath test because he was hospitalised after a severe
accident?
Time allowed: 50 mins
Answer Plan
(i) Explain to Raymond what bail conditions are and why they can
be imposed.
• Bail undertaking.
• General objectives of bail conditions.
(ii) Breath-testing as bail condition.
• Can breath-testing generally be imposed as a bail condition?
(Check whether in line with the objectives).
• Was this bail condition more onerous than necessary in this
case?
(iii) Consequences of violation of bail conditions.
• Criminal offence.
• Possibility to arrest.
• Exception where accused can show reasonable cause.
Answer
(i) Bail conditions
3-28 A bail undertaking may be subject to certain bail conditions
where the bail decision maker believes imposing said conditions is
necessary to
[page 82]
reduce the risks associated with bail. Where a bail undertaking does not
specify any conditions, so-called unconditional bail, the accused’s only
duty is to attend the next court hearing. However, where bail conditions
apply the accused has to comply with any specified conditions. Bail
conditions are usually imposed to ensure that the defendant will not
abscond, temper with evidence or witnesses, endanger members of the
public or commit other offences while on bail. They must generally be
reasonable in light of the offence and not be more onerous than
necessary. While some bail conditions are of a financial nature others
relate to the conduct of the accused. Financial bail conditions may
include the release of the accused on an undertaking with a deposit of
money and/or other security and/or with a surety:
• Bail Act 1992 (ACT) s 25;
• Bail Act 1982 (NT) s 27(2),
• Bail Act 1980 (Qld) s 11(1);
• Bail Act 1985(SA) s 11(2);
• Bail Act 1977 (Vic) s 5(2); and
• Bail Act 1982 (WA) Sch 1 Pt D cl 1.
In addition to the above described financial conditions, courts can
order certain conduct-related conditions relevant for the specific case at
hand while keeping in mind that the conditions imposed must not be
more onerous than necessary in the circumstances.
[page 83]
Section 27A of the Bail Act 1982 (NT) even explicitly states that an
accused person may be prohibited from consuming alcohol or a drug
(other than a drug as prescribed for the person by a health practitioner).
While bail conditions (1)–(3) seem to fall within the objectives of bail
conditions (for example, keeping the accused from interfering with
witnesses, ensuring they will attend future hearings, and preventing the
commission of future offences), breath-testing as such does not fall
within the primary objectives of bail conditions. It is also not explicitly
listed as a possible exemplary bail condition in any jurisdiction.
Therefore the question arises as to whether it could be imposed as an
ancillary power to the ones listed. One of the permissible objectives for
bail conditions is to prevent further offending while on bail. As
Raymond is known to become violent when consuming alcohol,
prohibiting the consumption of alcohol while on bail appears within the
objectives of the bail conditions. It could thus be argued that
monitoring the consumption of alcohol through random screenings
could be ancillary to a permitted objective of the bail conditions and
thus valid in itself: see R v Connors (2012) 223 A Crim R 162. This line
of argument, however, was rejected in Lawson v Dunlevy [2012]
NSWSC 48, where it was held that random alcohol screenings do not
fall under the primary objectives of bail conditions in New South Wales
and can thus not be imposed as a bail condition.
Regardless of the above, bail condition (4) would be invalid if the
condition had to be considered more onerous than necessary. This will
be discussed below.
[page 84]
Examiner’s Comments
3-32 The question required an in-depth examination of the objectives
and validity of bail conditions. It was important to identify why courts
may impose bail conditions and to assess in detail whether bail
condition (4) relating to breath-testing was valid and not onerous in the
case at hand. In addition, students had to identify the consequences that
arise where an accused is in violation of their bail conditions and note
that exceptions can apply where an accused has reasonable cause for
non-compliance.
Keep in Mind
You should avoid the following common errors:
• Not understanding clearly what the question asks you to do.
[page 85]
Key Issues
4-1 Chapter 3 discussed the considerations relevant to the charging
decision and the decision to continue prosecutions. In addition, it
outlined the requirements for receiving bail prior to and during the
criminal trial as well as pending appeal. After a person has been charged
with an indictable offence and committed to a higher court the
Attorney-General or Director of Public Prosecutions (DPP) has to decide
whether to present an indictment to the higher court (in some
jurisdictions within a specific timeframe) after which the matter will be
set down for trial. This chapter deals with indictments with and without
prior committal proceedings before discussing pleas and their effects as
well as matters relating to the double jeopardy principles.
Indictment
4-2 Indictable offences are usually more serious offences heard by
judge and jury mostly in higher courts. They differ from summary
offences which are usually less severe offences over which a magistrate
has original jurisdiction.
[page 88]
Formalities of indictments
4-4 Indictments are written statements outlining a charge or a
number of charges to which the defendant will subsequently have to
plead. While special pleas are available (see double jeopardy below) the
most common pleas are guilty or not guilty. The objectives of
indictments have been characterised as follows in R v Janceski (2005)
64 NSWLR 10 at 22 per Spigelman J:
Most of the functions performed by the process which initiates criminal proceedings,
particularly an indictment for serious offences, have been fully satisfied by the precise
terms of the charge appearing, as it does, in the same form in the various indictments.
These include:
(i) Informing the court of the precise identity of the offence with which it is required
to deal …
(ii) Providing the accused with the substance of the charge which he or she is called
upon to meet, including identification of the essential factual ingredients …
(iii) Enabling the court to ensure that only relevant evidence is admitted and to properly
instruct the jury on the relevant law …
(iv) Determining the availability of a plea of autrefois acquit and autrefois convict …
(v) To invest the trial court with jurisdiction to hear and determine the prosecution …
4-5 Therefore indictments must contain certain formalities. An
indictment must generally contain: the court in which the offence will
be tried; a description of the alleged offence(s) including the essential
legal elements; the time, the place and the manner in which the alleged
offence took place; and, where relevant, the particulars of the aggrieved
and of property involved in the offence:
• Crimes Act 1900 (ACT) Pt 12;
• Criminal Procedure Act 1986 (NSW)Ch 2 Pt 2;
• Criminal Code (NT) s 305;
• Criminal Code (Qld) s 564(1);
[page 89]
[page 90]
Amendment of indictment
4-7 Any time before or during the trial, where necessary, indictments
can be amended if the amendment is not material to the merits of the
case or would disadvantage or lead to injustice for the accused. For
example, an amendment may be necessary where the indictment and
evidence vary, where a count is missing or where certain words are
missing from or have incorrectly been inserted into the indictment:
• Crimes Act 1900 (ACT) s 264;
• Criminal Procedure Act 1986 (NSW) ss 20 and 21;
• Criminal Code (NT) s 312;
• Criminal Code (Qld) s 572;
• Criminal Law Consolidation Act 1935 (SA) s 281(2);
• Criminal Code (Tas) s 326(1);
• Criminal Procedure Act 2009 (Vic) s 165; and
• Criminal Procedure Act 2004 (WA) s 132.
Requests for amendment of the indictment by the prosecution may
not always be successful. For example, in R v MacDonald (1995) 65
SASR 322, an accused was charged with sexual offences particularised
to have occurred on certain dates which were important to the offences
and to the defence of the accused. The trial judge refused leave for an
amendment of these particulars as the defendant would otherwise have
had to face an essentially new case at a late stage.
Joinder of counts
4-8 The general rule in a number of Australian jurisdictions is that
there is one count, that is, offence, per indictment and that the
indictment must generally only relate to one accused:
• Criminal Code (Qld) s 567(1);
• Criminal Code (Tas) s 311(2); and
• Criminal Procedure Act 2004 (WA) Sch 1 Div 2 cl 2(2) and (3).
Yet, there is the possibility to join several charges or charges against
several defendants in one indictment if certain circumstances are
fulfilled:
• Crimes Act 1900 (ACT) s 269;
• Criminal Procedure Act 1986 (NSW) s 29 (accused and
prosecution consent, offences arise out of the same circumstances,
offences form part of a series of offences of the same or similar
character);
[page 91]
[page 92]
expeditious and final litigation as well as with the convenience of witnesses. The
requirement that the charges are to be founded on the same facts does not mean that the
facts in relation to the charges must be identical in substance or be virtually
contemporaneous. It is sufficient if the charges have a common factual origin … or if
there is a sufficient connection or nexus between them … In order to determine if the
relevant nexus exists, one has regard to the charges and, broadly, the evidence that is to
be led in relation to them by the parties.
[page 93]
Double jeopardy
4-11 The principles relating to double jeopardy set out that an
accused cannot be tried twice for the same offence. This principle
includes that a person cannot be retried for an offence of which they
have previously been acquitted or convicted; an earlier acquittal cannot
be undermined by a subsequent conviction even for a different offence
(see R v Carroll (2002) 213 CLR 635), and a person cannot be
punished twice for essentially the same criminal act (arising from the
same set of circumstances). The double jeopardy rule was mainly
introduced to ensure that convictions or acquittals were final and a
prosecution could not be repeated at a later stage.
When assessing whether the double jeopardy rules apply, it is
necessary to compare the different elements of an offence and to
identify whether they overlap. The principle applies only where the
elements of different offences are wholly identical. That means the
double jeopardy principle does not operate where the offences arise out
of the same conduct but have led to different consequences as the
elements would not be wholly identical. See, for example, Pearce v R
(1998) 194 CLR 610, where the accused was convicted for a number of
charges (beating victims) arising out of a single event, namely breaking
into a house, as the double jeopardy rules did not apply (note that
double jeopardy is different to the question of double punishment,
which is relevant to sentencing considerations). On matters relating to
sentencing, see Chapter 6.
Where, at the beginning of the trial, an accused points out that the
prosecution should not go ahead for reasons of double jeopardy, they
can either rely on a special plea (autrefois acquit and autrefois convict)
or a statutory defence: Criminal Code Act 1899 (Qld) s 17, depending
on the requirements of the respective jurisdiction. Ultimately, a court
would have to order a stay of proceedings where double jeopardy is
successfully raised.
[page 94]
4-12 After the decision of R v Carroll (2002) 213 CLR 635, in which
essentially a retrial for the murder of a baby was barred due to the
double jeopardy rules even after new significant evidence had been
discovered, many Australian jurisdictions have weakened their double
jeopardy rules. New South Wales was the first jurisdictions to do so as
early as 2006. Depending on the jurisdiction, a retrial is now allowed
after a prior acquittal in case of a very serious offence, murder or a life-
sentence offence (depending on the jurisdiction), where fresh and
compelling evidence arises that was not available during the original
trial. In addition, a retrial is possible for a serious offence (with a timely
sentence between 15 and 25 years depending on the jurisdiction) where
the original acquittal is tainted (accused has been convicted of an
administration of justice offence regarding the earlier trial). However, a
retrial is only possible where this is in the interest of justice:
• Crimes (Appeal) and Review Act 2001 (NSW) ss 100 and 101;
• Criminal Code (Qld) ss 678B–678C;
• Criminal Law Consolidation Act 1935 (SA) Pt 10;
• Criminal Code (Tas) Ch XLIV (exceptions to the double jeopardy
rules); and
• Criminal Appeals Act 2004 (WA) Pt 5A.
4-13 Before tackling the following questions, please check that you
are familiar with the following:
✓ formalities of indictments;
✓ joinder of charges in one indictment and separation of joint
charges;
✓ guilty pleas and their effects;
✓ different aspects of the double jeopardy rule; and
✓ exceptions to the double jeopardy rule.
Question 1
Marco Elastico is a talented soccer player and plays for a local but up and coming soccer
team in Australia, the ‘Footlockers’. Marco’s talent has not gone unnoticed by the coach,
William Kraft. William has had several chats with Marco outlining how important it is
that he scores goals during the matches as the team is relying on him. Marco felt that he
was under a lot of pressure and sometimes believed that everything was getting too
much for him. Recently, he started to become worried about his mental health. In a
desperate attempt to win and not let the team down, he committed a few fouls during
the last soccer match which caused the ‘Footlockers’ to lose.
[page 95]
After the match, William had a stern word with Marco in the changing rooms. He was
outraged and started yelling and screaming that the last thing the ‘Footlockers’ needed
were players who do not follow the rules. Marco felt as though everything was getting
out of control and left. William stayed behind in the changing rooms to chat with the
other players and to develop a strategy for their next match.
About 10 minutes later Marco returned to the changing room where the rest of the
‘Footlockers’ were listening to the coach outlining the next game plan. Marco had a .22
calibre rifle with him that was still in his car from a previous hunting expedition. He
wanted to vent his anger and frustration with the ‘Footlockers’ and their unrealistic
expectations. He fired the gun into the changing room. One shot emerged from the
rifle, went through one player and ultimately hit William Kraft, the coach. Both the
player and the coach died immediately due to the sustained injuries.
Marco is charged with two counts of murder. Advise Marco regarding the following
matters:
(i) Marco believes that he cannot be charged with two counts of murder because he
only fired one shot. Charging him twice would violate the double jeopardy rules.
Please explain to Marco whether his assumption is correct.
(ii) The two murder charges are joined in one indictment and heard in front of the
same jury. Marco, who is legally represented at the time by another lawyer, is
convicted of both charges and sentenced to life imprisonment. He is not happy
about this at all and comes to you for advice after his conviction. He believes that
the fair trial principle dictates that the charges should have been heard separately
during two different trials and by different juries. He remembers that he has heard
one of his friends in law school say something about ‘one count per indictment’.
During the trial he tried to rely on insanity due to his mental health problems and
feels that two different juries may have reached two different verdicts. He believes
that the Australian government only wants to save taxpayers’ money by grouping
offences together randomly in one trial at the expense of justice.
Advise Marco on whether the court was able to hear the two murder charges
together.
(iii) Assume that before the murder trial starts and Marco is convicted he is now
agreeable with hearing the two murder charges in one indictment. In addition, he
tells you that he has recently been committed to trial for five computer hacking
charges (indictable offences) that all occurred around two years prior to the
murders. He wonders whether it is possible and advisable to hear the murder
charges and the computer hacking charges all in one trial to get things over and
done with. Marco says he would prefer to put all of his criminal activity behind him
as fast as possible and to start anew.
Time allowed: 40 mins
[page 96]
Answer Plan
(i) Double jeopardy.
• Double prosecution for essentially the same offence?
– Two deaths and therefore elements do not wholly overlap:
see Pearce v R (1998) 194 CLR 610.
– Therefore, two charges (despite arising out of one fired
shot).
(ii) Joining of charges.
• General rule in a number of jurisdictions: One count per
indictment.
• Joinder possible (exception): factual nexus/same set of
facts/series of offences. Same action caused the death of two
persons.
• Joinder possible.
• Prejudice or embarrassment? Not apparent = especially no
evidence admissible on one count and inadmissible on another
count.
(iii) Can computer hacking charges be joined?
• Joinder possible: factual nexus/same set of facts/series of
offences. Here unrelated and different offences.
Answer
(i) Double jeopardy
4-14 Under the double jeopardy rules a person cannot be prosecuted
twice for essentially the same offence. In the case at hand, Marco
believes that he cannot be charged with two counts of murder as he
only fired one shot and a prosecution for two counts of murder would
therefore violate the principles relating to double jeopardy.
In order to advise Marco, it is necessary to compare the different
elements of the offences in question and to identify whether they
overlap. The double jeopardy principle applies only where the elements
of different offences wholly overlap. That means double jeopardy does
not operate where the offences arise out of the same conduct but have
different consequences. In this case the elements would not be wholly
identical. See, for example, Pearce v R (1998) 194 CLR 610 where the
accused was convicted for a number of charges (beating victims) arising
out of a single event, namely the breaking into a house as the double
jeopardy rules did not apply. (Note that double jeopardy is different to
the question of double punishment which is relevant for sentencing. On
sentencing, see further Chapter 6.)
While both murder charges overlap to some degree because both arise
out of the same conduct, namely firing of one shot into the changing
room, not all elements overlap. The consequences of the act differ as
two (and not one) deaths, the death of the coach and the death of one
player, have occurred as a result of the shooting. This means that the
two offences are not wholly identical. Therefore Marco should be
advised that he is not being prosecuted twice for the same offence but
for two
[page 97]
different offences despite the fact that both offences arise from the same
fired shot. The double jeopardy rules have no application to the
prosecution of Marco in scenario (i).
[page 98]
[page 99]
the joinder rules. That means that there must be a factual nexus
between the offences, or the offences must arise out of the same set of
facts or form part of a series of offences. The facts of the case state that
the computer hacking charges are unrelated to the murder charges and
occurred around two years prior to the murder charges. As there is no
common nexus between the charges, the criteria for joining them in one
indictment do not seem satisfied. While the accused may find it
desirable to hear all charges (murder and computer hacking) in one trial
to get matters finalised and move on with his life, Marco should be
advised that the charges will likely not be joined and heard together
during the same trial.
Examiner’s Comments
4-17 The question required an examination of the double jeopardy
rule as well as questions related to the admissibility of joining several
counts in one indictment. In order to adequately address the question of
whether in this case the double jeopardy rule prevents Marco from
being charged with two counts of murder, it was necessary to outline
and distinguish what offences had occurred and whether and to what
extent they overlapped. Students needed to ensure that they clearly
outlined in their answer that the two offences did not wholly overlap
despite the fact that they arose from the same act, namely the firing of
the gun.
In relation to the joinder of different offences and the question of
whether a joinder was possible in this case, it was necessary for students
to outline the general rule in many jurisdictions first, in this case
charging one count per indictment, prior to outlining the exceptions to
the rule. It was subsequently important to apply the law to the facts of
the case in an attempt to identify whether the different charges (two
counts of murder as well as two counts of murder and five computer
hacking charges) could be joined in one indictment.
Keep in Mind
You should avoid the following common errors:
• Not understanding clearly what the question asks you to do.
• Not explaining the general rules prior to their exceptions.
• Failing to provide relevant statutory and case law.
• Not applying the law to the facts of the case.
• Failing to advise Marco regards his specific questions.
Question 2
Barbara-Ann is charged with two very serious drug offences. When the judge asks her
how she pleads she says she pleads guilty to the charges.
[page 100]
Consider the following separate and partially unrelated scenarios and provide advice as
requested:
(i) Barbara-Ann is not guilty of the offences. However, she does not want to sit
through the agony of a trial and just wants things to be over and done with. She
has been tried and convicted in the past, despite being innocent, ultimately leaving
her with a large bill for her legal representation. She does not want to repeat this
experience. In addition, her legal representative has discussed matters with the
prosecution with the consequence that there will be a ‘discount’ for her early
guilty plea.
Can the court accept her guilty plea even where Barbara-Ann is not guilty?
(ii) Shortly before the arraignment, one of the trial judges in Barbara-Ann’s trial was
walking from his office to the court room. Without knowing that it was Barbara-
Ann, he noticed a scared looking female in the building’s foyer surrounded by a
group of males in black outfits with matching red shoes, appearing to be closing in
on her. While he could not understand everything that was being said in detail as
he was too far away, he did hear one of the men say to Barbara-Ann ‘You will take
the fall for this and get Berny out of trouble. We have your daughter and you know
what will happen to her if you don’t. You know the motto of the ‘‘Urbanos’’ is “all
for one-and one for all”’. The judge quickly tried to find a security officer but the
foyer was deserted by the time of their return. During the arraignment the judge
recognised Barbara-Ann immediately from the earlier scene. Barbara-Ann is not
legally represented. Should the court accept Barbara-Ann’s guilty plea? What could
be the consequences for the trial if the guilty plea was accepted?
(iii) In scenario (i) Barbara-Ann changed her mind after pleading guilty and prior to
sentencing. She now wants to withdraw her earlier plea, plead not guilty and go
through with the trial. Her legal representative diligently explained the
consequences of pleading guilty to her in writing prior to the arraignment and
Barbara-Ann confirmed in writing that this is exactly what she wanted to do.
However, she now believes her legal representative is an idiot and all his advice is
useless as he was unwilling to engage in a romantic relationship with her. She
believes that she is the accused and proceedings must therefore revolve around
her and her justice. She is of the opinion that she needs to able to change her
mind at least once during a trial. She can not see where the harm is as she has not
been sentenced, yet, and therefore no court time has been wasted.
Advise Barbara-Ann whether withdrawing the guilty plea in her case is possible,
whether there is an onus of proof and what would have to be established to justify
a withdrawal.
(iv) Imagine that in scenario (ii) no trial judge witnessed the scene in the foyer and
Barbara-Ann’s guilty plea was accepted by the court.
[page 101]
She has not been sentenced, yet. Her brother Xavier has since been able to
organise your law firm Shaker & Baker to provide legal representation to Barbara-
Ann.
Your supervising partner asks you to advise whether Barbara-Ann can withdraw
her guilty plea and on what basis.
(v) Assume Barbara-Ann pleaded not guilty and was tried for and acquitted of the
drug offences due to the availability of a defence. It subsequently turns out that
Berny committed the offences.
Can Berny be tried for the drug offences or do the double jeopardy rules prevent a
trial against Berny from going ahead?
Time allowed: 80 mins
Answer Plan
(i) Can the court accept a guilty plea even where Barbara-Ann is not
guilty?
• Generally yes — see Meissner v R (1995) 184 CLR 132.
(ii) Should the court have accepted Barbara-Ann’s guilty plea? What
could be the consequences for the trial if the guilty plea was
accepted?
• (Problem) Risk of unfair trial if plea accepted.
• Meissner v R (1995) 184 CLR 132: should not have accepted
as likely induced by threat or intimidation and potential
mistrial.
(iii) Can Barbara-Ann withdraw her guilty plea in scenario (i)?
• Likely miscarriage of justice if she is unable to withdraw?
Especially as she was legally represented and her lawyer
explained the consequences of a guilty plea to her.
(iv) Can Barbara-Ann withdraw her guilty plea in scenario (ii)?
• Likely miscarriage of justice if she is unable to withdraw?
Especially due to the intimidation and threat.
(v) Can Berny be tried for the drug offences if Barbara-Ann has
already been tried and acquitted?
• Double jeopardy? Only applies to Barbara-Ann, not another
person.
Answer
(i) Can court accept guilty plea even where Barbara-Ann not
guilty?
4-18 An accused is free to plead guilty even where they have not
committed the offence. In Meissner v R (1995) 184 CLR 132 at 141 it
was found that:
A person charged with an offence is at liberty to plead guilty or not guilty to the charge,
whether or not that person is in truth guilty or not guilty. An
[page 102]
inducement to plead guilty does not necessarily have a tendency to pervert the course of
justice, for the inducement may be offered simply to assist the person charged to make a
free choice in that person’s own interests. A court will act on a plea of guilty … when it
is entered in open court by a person who is of full age and apparently of sound mind and
understanding, provided the plea is entered in exercise of a free choice in the interests of
the person entering the plea. There is no miscarriage of justice if a court does act on such
a plea, even if the person entering it is not in truth guilty of the offence.
Reasons as to why an innocent accused may choose to plead guilty
include speedy settlement of the issue and avoiding an unsettling and
lengthy trial as well as potential benefits resulting from a deal with the
prosecution based on an early plea of guilty. It was found in Kumar v
DPP [2013] VSCA 297 that even pleading guilty based on a deal with
the prosecution does not take away the validity of the plea. The facts of
the case state that Barbara-Ann does not trust the legal system any
longer after her prior experience. She wants to avoid the costs for being
legally represented but also the agony of a lengthy trial. In addition, she
wants to receive a ‘discount’ for her early guilty plea from the
prosecution. While the ‘discount’ may be considered a form of
inducement, it cannot be considered an inducement to the degree that
Barbara-Ann is no longer able to make her own free choice. In addition,
Barbara is of full age and of sound mind and the plea entered into is in
her interest. Therefore the court will likely accept her guilty plea even
though she is not guilty as no miscarriage of justice can be expected to
arise in scenario (i).
(ii) Court accepting guilty plea and consequences of
acceptance
4-19 Unless a plea is voluntary a court is not obligated to accept the
plea and may refuse it. As pointed out above, Meissner v R (1995) 184
CLR 132 states that a plea is voluntary if the person making it is able to
exercise ‘free choice’. The question therefore arises whether in this case
the plea was induced by intimidation or whether Barbara-Ann was still
able to exercise free choice. The facts of the case state that a number of
male members of the ‘Urbanos’ closed in on Barbara-Ann in the court’s
foyer suggesting to her that they had her daughter. In addition, the
comment ‘you know what will happen to her if you don’t’ indicates that
the daughter will experience harm if Barbara-Ann does not plead guilty
to the charges. This supports the argument that Barbara-Ann’s decision
to plead guilty was induced by intimidation and she was unable to
exercise her free will as she was fearing for the life or well-being of her
daughter. Accepting Barbara-Ann’s guilty plea thus contains the risk of
an unfair trial. The court should therefore reject Barbara-Ann’s guilty
plea in scenario (ii).
[page 103]
[page 104]
a person cannot be tried twice for essentially the same offence for which
they have previously been acquitted or convicted. In this case, however,
the double jeopardy rules only apply to Barbara-Anne as she has
previously been tried and acquitted of the drug offence. Berny, on the
other hand, has never been tried for these offences in the past. As the
double jeopardy rules do not apply to Berny, he can be prosecuted for
the drug offences.
Examiner’s Comments
4-23 The question required an examination of guilty pleas and their
effects as well as the possibility to withdraw a guilty plea after
arraignment prior to sentencing. Additionally, it was necessary to
consider and apply the double jeopardy rules to the question at hand.
In order to address the question in sufficient detail, students needed
to outline whether an innocent accused is able to plead guilty and why
an accused may consider to do so. In addition, students had to
differentiate between different scenarios and the question of whether a
court should or should not have accepted a guilty plea, and the related
question of whether a guilty plea can be withdrawn after arraignment.
Regarding the double jeopardy principle it was important to
demonstrate an understanding of to whom the principles relate, namely
the previous accused, and not a third party.
Keep in Mind
You should avoid the following common errors:
• Not understanding clearly what the question asks you to do.
• Not sufficiently differentiating between the facts of the different
scenarios.
• Not applying the law to the facts of the case.
• Incorrectly applying the double jeopardy rules.
Question 3
After a rough week at work Gertrude is looking forward to a fun-filled weekend. On
Friday evening she queues up at one of Australia’s latest and greatest techno-revival
clubs, the ‘Fish-market’, in order to see her favourite band, ‘Dead Mouse Project’,
perform live. Pamela is walking past the line of excited club goers including Gertrude.
Gertrude fears that Pamela is trying to cut in line to get into the club before her and
therefore shoulder-barges Pamela. Pamela is outraged and punches Gertrude in the
stomach. Subsequently, some punches are exchanged between Gertrude and Pamela
until Pamela says ‘Stop. Enough. I am done’. Pamela then sits down by herself on a
bench near a close-by kebab stand in order to get her head around what just happened.
Five minutes later Gertrude walks
[page 105]
across to Pamela and punches Pamela in the stomach. The force of the punch is so
strong that Pamela falls from the bench to the ground. When Pamela gets up she feels
dizzy and goes straight home. The police are called and arrive after Pamela has left the
scene. Gertrude is charged with committing a public nuisance offence.
Gertrude appears in court two weeks later and pleads guilty to the public nuisance
charge. The facts read to the court on the indictment are that Gertrude and Pamela were
in a consensual fight outside the ‘Fish-market’. Gertrude was fined $600.
Pamela felt terribly nauseous as she was walking home from the ‘Fish-market’. She went
straight to bed. When Pamela’s mother, Judy, checked on her the next morning, she was
unresponsive. Judy called an ambulance and Pamela was rushed to hospital. The doctor
said that there was severe internal bleeding which was likely to cause extensive damage
to internal organs. The doctor considered that the injury was consistent with blunt force
trauma (being struck in the stomach).
When the doctor provided a statement to police, a month after the offence, police
charged Gertrude with doing grievous bodily harm.
(i) Advise whether Gertrude can be prosecuted for doing grievous bodily harm or
whether the double jeopardy rules apply.
(ii) Assume the double jeopardy rules do apply. What could Gertrude do when being
charged with doing grievous bodily harm in order to rely on double jeopardy?
Time allowed: 30 minutes
Answer Plan
(i) Double jeopardy rules applicable?
• Double jeopardy applicable if Gertrude has already been
charged with and convicted/acquitted of the offence.
– Depends on how the public nuisance offence has been
particularised. Here: consensual fight. However, relevant
punch causing the injury happened after the consensual
fight and after Pamela had already left and taken a seat on
the bench, and therefore double jeopardy rules apply.
• Charging Gertrude with GBH possible.
(ii) Assume double jeopardy did apply — what could Gertrude do?
• Depends on jurisdiction: special plea or defence.
Answer
(i) Double jeopardy rules applicability
4-24 In order to advise Gertrude on whether the double jeopardy
rules prevent her from being charged with doing grievous bodily harm,
the
[page 106]
Examiner’s Comments
4-26 The question required students to identify the principles relating
to double jeopardy. In addition, it was important to outline and discuss
in detail what exactly Gertrude had already been charged with and
convicted of. Only a thorough application of the law to the facts of the
case allowed students to identify that the public nuisance offence does
not likely include the second punch that caused the internal injuries.
Based on this finding students were able to draw a conclusion regarding
the double jeopardy rules.
[page 107]
Keep in Mind
You should avoid the following common errors:
• Not understanding clearly what the question asks you to do.
• Not sufficiently differentiating between the facts of the different
scenarios.
• Not applying the law to the facts of the case.
• Incorrectly applying the double jeopardy rules.
Question 4
In October 2001 Melville was interviewed by police in relation to the murder of baby
Shaniya-Jay whose dead body had been found in the dumpster of a public library in
Australia in April 2000. It could be confirmed that Shaniya-Jay died of strangulation.
During the examination bite marks and bruises were identified on the baby’s arms and
legs. Dental records eventually lead to the questioning of Melville who was
subsequently charged with murder.
During the trial in November 2001 Melville claimed that he was interstate visiting his
grandmother during the estimated time of Shaniya-Jay’s death and had nothing to do
with the murder. While Melville was originally convicted of murder, the conviction was
quashed on appeal as the court of appeal found that the prosecution had led no
evidence to disprove Melville’s claim that he was interstate visiting his grandmother as
well as matters relating to the bite mark evidence.
By 2002, the police had obtained substantial new DNA evidence relating to the bite
marks as well as a witness who could testify that Melville was in fact in town at the time
of Shaniya-Jay’s death. Melville was therefore charged with perjury on 21 May 2002. The
indictment presented against Melville claimed he had committed perjury in the earlier
murder trial by swearing he did not kill Shaniya-Jay. In November 2002 a jury convicted
him of perjury.
(i) Assume it is 2002. Melville comes to you for advice. He believes that although he
was not technically retried for murder, the second trial was essentially a retrial of
the earlier murder trial. He wants to know whether the double jeopardy rules
apply here and whether the new trial should have taken place.
Address Melville’s concerns.
(ii) Imagine the following: Melville, for various reasons, had been tried for and
acquitted of Shaniya-Jay’s murder for the first time in 2008
[page 108]
due to insufficient evidence placing him at the crime scene. In 2009, a credible
witness has come forward who can testify that Melville was in fact in town at the
time of Shaniya-Jay’s death and was even seen near the dumpster at the time the
baby’s death occurred. The witness did not come forward earlier as he was afraid
of Melville and feared his repercussions. He is, however, prepared to testify now.
Advise Melville on whether he can be retried for the murder of Shaniya-Jay in 2009
despite his earlier acquittal in 2008.
Time allowed: 60 mins
Answer Plan
(i) Situation in 2002.
• Double jeopardy applicable to perjury trial?
• No ‘retrial’ for murder but conviction automatically
contravenes the original acquittal. Therefore double jeopardy.
See R v Carroll (2002) 213 CLR 635.
(ii) Situation in 2009.
• Double jeopardy rules applicable to retrial after original
acquittal.
• Legislative amendments commencing from 2006 in many
Australian jurisdictions.
– Prosecution for murder (very serious offence).
– Fresh and compelling evidence?
– In the interest of justice?
■ Retrial likely fair? Nine years later but no information
that witnesses/evidence is lost.
■ Police diligence? Witness did not come forward prior
due to fear of repercussions. No information that police
acted without diligence.
Answer
(i) Situation in 2002
4-27 Melville’s trial for perjury (lying about his involvement in the
original murder trial) should not have occurred if the trial constituted a
violation of the double jeopardy rules. The trial for perjury was initiated
by the prosecution as new DNA evidence was available and a witness
had come forward linking Melville to the crime scene around the time
of the baby’s death. The double jeopardy rules set out that a person
cannot be retried for the same offence in order to provide finality for
the accused. In this case, however, Melville was not retried for murder
but for another offence (perjury related to lying in the original trial). As
such there is no ‘retrial’ per se. However, in R v Carroll (2002) 213
[page 109]
CLR 635 the court found that where a conviction for perjury inevitably
controverts a previous acquittal for murder such conviction is
inconsistent with double jeopardy principles. In the case at hand, the
conviction for perjury directly contravenes Melville’s original acquittal
in the murder trial. Melville should therefore be advised that a trial for
perjury should not have occurred due to the double jeopardy rules. In
addition, students need to note that in 2002 no exceptions to the double
jeopardy rules in the case of very serious offences and fresh and
compelling evidence existed.
Examiner’s Comments
4-29 The question required students to discuss the double jeopardy
rules and possible exceptions to the rules which have recently been
introduced in a number of Australian jurisdictions. Students had to be
very diligent in addressing scenario (i) and scenario (ii) as the law
relating to double jeopardy and retrials for certain offences had
significantly changed during the timeframe set out in the questions.
Ultimately, it was important for students to engage in a detailed
assessment of the statutory exceptions to the double jeopardy rules and
apply the law to the facts of the case.
Keep in Mind
You should avoid the following common errors:
• Not understanding clearly what the question asks you to do.
• Failing to provide relevant case law.
• Failing to provide relevant legislation and definitions provided in
legislation regarding exceptions to the double jeopardy rules.
• Failing to demonstrate the difference in legislation between 2002
and 2009.
• Not applying the law to the facts of the case.
• Incorrectly applying the double jeopardy rules.
[page 111]
Chapter 5
Key Issues
5-1 The key participants in a criminal trial are: the judge, the jury
(unless it is a trial by judge alone), the accused, the prosecutor and the
defence. The trial processes are distinct from the gathering of evidence
by the parties, as the trial is where the evidence is examined and tested.
The facts are determined by an impartial tribunal (jury or judge)
divorced from the investigation or presentation of evidence. The trial is
presided over by a judge whose prime function is to ensure a fair trial,
and who leaves the decisions as to the evidence to be adduced, the
witnesses to be called and the manner of the questioning to the parties.
Nevertheless, the judge has the ultimate control over the questioning of
witnesses, as exampled by s 26 of the uniform evidence legislation:
The court may make such orders as it considers just in relation to:
(a) the way in which witnesses are to be questioned; and
(b) the production and use of documents and things in connection with the questioning
of witnesses; and
(c) the order in which parties may question a witness; and
(d) the presence and behaviour of any person in connection with the questioning of
witnesses.
It is often stated that a criminal trial in Australia is adversarial in
nature, but a more accurate description is ‘accusatorial’ given the heavy
burden of proof placed on the Crown, as summed up by the High Court
in Azzopardi v R (2001) 205 CLR 50 at [34] per Gaudron, Gummow,
Kirby and Hayne:
The fundamental proposition from which consideration of the present matters must
begin is that a criminal trial is an accusatorial process, in which the prosecution bears the
onus of proving the guilt of the accused beyond reasonable doubt.
However, a prosecutor fulfils two roles in a criminal trial: the
prosecutor is both an adversary of the accused and a minister of justice
on behalf of the community, with the obligation of pursuing the truth
with fairness and detachment rather than seeking to win at any cost.
Deane J in
[page 112]
[page 113]
[page 114]
Question 1
Alfred was on trial for murder. The Crown case was that Alfred was the man who
entered a bank in Parramatta, Sydney dressed in overalls and a beanie and shot a bank
teller dead in a botched armed robbery.
[page 115]
The whole case turned on whether Alfred was the man caught on the bank’s security
cameras. The judge was satisfied that a view of the bank’s premises would assist the jury
in understanding the evidence. The judge also acceded to Crown’s counsel’s request to
require Alfred to parade before the jury wearing the overalls and balaclava that had
been found by police at Alfred’s house at the time of his arrest.
In his closing address, Crown counsel put a list of 50 questions to the jury which called
for an explanation by the accused, Alfred, by using the technique of asking ‘how did’
and ‘why was it’ and ‘if the accused had been’.
The jury of 12 persons returned seven and a half hours after retiring to consider their
verdict and told the judge they could not reach a unanimous verdict. The judge then
directed the jury that they could now bring in a majority verdict of 11:1. An hour later
the jury came in with a verdict of guilty.
(i) Advise Alfred as to the availability of any grounds of appeal and his likelihood of
success.
(ii) How would your answer differ as regards a majority verdict of 11:1 if Alfred had
been tried:
(a) in a different jurisdiction for murder; and
(b) for armed robbery rather than murder in New South Wales?
Time allowed: 40 mins
Answer Plan
(i) There are three main grounds under which Alfred’s defence
counsel could argue his conviction for murder should be quashed
and a new trial ordered:
(a) Demonstration or parade.
• Requiring Alfred to parade in the overalls and a balaclava
was unfairly prejudicial to Alfred.
(b) Prosecutor’s closing address.
• The prosecutor’s technique of putting questions to the jury
which effectively called for an explanation by the accused
impermissibly reversed the onus of proof.
(c) Length of time before a majority decision can be considered.
• A majority verdict is only permitted after at least eight
hours of deliberation in New South Wales.
(ii) How would your answer differ:
(a) if Alfred had been tried in a different jurisdiction for murder,
any Australian jurisdictions require a unanimous verdict?
(b) if Alfred had been tried for armed robbery rather than murder
in New South Wales, the lesser charge alters either the time for
jury deliberation and/or the majority number out of 12
persons?
[page 116]
Answer
(i) Availability of grounds of appeal and likelihood of success
(a) Demonstration or parade
5-3 Section 53(1) of the Evidence Act 1995 (NSW) states: ‘A judge
may, on application, order that a demonstration, experiment or
inspection be held.’ Section 53(3) sets out the matters a judge is to take
into account in deciding whether to make an order. For present
purposes, the relevant subsections are (b) and (c):
(b) whether the demonstration, experiment or inspection will, in the court’s opinion,
assist the court in resolving issues of fact or understanding the evidence;
(c) the danger that the demonstration, experiment or inspection might be unfairly
prejudicial, might be misleading or confusing or might cause or result in undue
waste of time.
On the facts, the judge made two orders under s 53(1): (1) to allow a
view of the bank’s premises; and (2) to require Alfred to parade before
the jury wearing overalls and a balaclava. The decision to allow a view
of the bank’s premises is consistent with R v Hawi (No 7) [2011]
NSWSC 1653, where Hulme J (at [1]) observed that: ‘A picture is said
to be worth a thousand words; sometimes a first-hand look can be
worth a thousand pictures.’ In Hawi, the trial was concerned with a riot
and murder that occurred at Terminal 3, at Sydney Airport. The Crown
submitted that the jury would be able to make a better assessment of
distances and the general layout of the terminal by seeing the scene for
themselves. In granting the Crown’s application, Hulme J was ‘satisfied
that a view will assist the jury in understanding the evidence’ (at [15]),
and ‘there is no danger that the view might be unfairly prejudicial or
confusing’: at [16]. This would appear also to be the case here.
However, the situation is different with the parading of Alfred in
overalls and a balaclava. The case on point is Evans v R (2007) 235
CLR 521. In Evans, the High Court held that: (1) showing the jury
what the accused looked like when wearing the overalls and balaclava
tendered no relevant evidence; and (2) s 53 of the Evidence Act 1995
(NSW), which provides for the ordering that a demonstration,
experiment or inspection be held, does not apply to conduct inside the
court room. Kirby J held that any probative value of the demonstration
was outweighed by the danger that the evidence might have been
unfairly prejudicial: see s 53(3)(c) above. The High Court in Evans split
3:2 on whether to apply the proviso (see Chapter 6 on Appeals and
Sentencing), with the majority ordering a new trial. Here, at this
juncture, it can be said that Alfred has an appeal point in relation to
him being ordered to parade before the jury that will be upheld on the
authority of Evans v R (2007) 235 CLR 521, but whether a new trial
would be ordered will also depend on the resolution of the two other
grounds of appeal: (b) and (c) below.
[page 117]
[page 118]
Thus, on the authority of Alister v R (1984) 154 CLR 404 at 429 per
Murphy J and Wood v R [2012] NSWCCA 21 at [604]–[605] per
McClellan CJ at CL, Alfred would appear to have suffered a
miscarriage of justice as a result of the prosecutor’s list of 50 questions
in his closing address. The matter would be put beyond doubt if the
trial judge had failed to follow the statutory procedures laid out where a
majority verdict is involved.
[page 119]
Examiner’s Comments
5-9 The only ground of appeal that is jurisdiction specific is the
relevant legislation dealing with majority verdicts. Even though there
are two broad regimes in Australia relating to evidence (the uniform
evidence legislation which applies in the Commonwealth, New South
Wales, Victoria, Tasmania, the Australian Capital Territory and the
Northern Territory, and the ‘common law’ states of Queensland, South
Australia and Western Australia), there is no significant jurisdictional
difference as regards the other two appeal grounds of the parade and
the prosecutor’s address. Both of these appeal grounds fall to be decided
by case law as determined by the High Court.
Keep in Mind
You should take care in reading the factual matrix to identify the key
issues from the ‘clues’ given by the examiner:
• You are told that the judge is allowing both a view of the bank
premises and requiring Alfred to parade before the jury. This
should raise in your mind the criteria for such a view, and the
fairness of requiring Alfred to parade.
[page 120]
• The form of the questions put by Crown counsel should have
suggested a potential reversal of the onus of proof, which needed
to be supported by authority.
• In giving the jury seven and a half hours duration span for
deliberation and an 11:1 majority on a murder charge, clearly
required examination of the relevant legislation. This was
reinforced by the additional questions relating to the jurisdiction
and the offence.
Question 2
Benbow was on trial for manslaughter. Benbow was unable to secure Legal Aid and
therefore decided to represent himself at trial. The trial judge, Noah J, had reservations
about allowing the trial to commence under such circumstances, but mindful of the
costs of delay and that both parties wished proceed, Noah J reluctantly agreed to
Benbow being self-represented. At numerous times during the trial, Noah J had to
intervene to assist Benbow who experienced difficulty following proceedings.
Benbow was charged with being criminally negligent in the operation of his ‘Big Bopper’
fairground ride when a young child died after being thrown from the ride. Two jurors
conducted research on the Internet during the trial in relation to the safety standards of
such rides.
During Noah J’s summing up, the judge defined beyond reasonable doubt as meaning a
‘comfortable satisfaction, which can be likened to the task of deciding any of the more
important questions which confront you in your daily lives’. Noah J also told the jury
that ‘reasonable’ was an objective standard and did not relate to their own individual
understanding of the word ‘reasonable’.
Noah J’s summing up discussed the law of criminal negligence in general terms and
then left it to the jury to apply the law in the case before them.
Benbow was found guilty of criminal negligence manslaughter and now seeks your
advice on any grounds of appeal he might have.
Time allowed: 40 mins
Answer Plan
There are four main grounds under which you could argue that
Benbow’s conviction for manslaughter should be quashed and a new
trial ordered:
(i) Judge allowing Benbow to be self-represented.
• This conflicts with the fundamental right of the accused to be
tried fairly.
(ii) Internet searches by two of the jurors.
• Conducting such searches is not consistent with preserving the
sanctity of the jury room.
[page 121]
Answer
(i) Judge allowing Benbow to be self-represented
5-10 In Australia, the High Court has stated that there is a
fundamental right of the accused to be tried fairly: Dietrich v R (1992)
177 CLR 292 at 299 per Mason CJ and McHugh J. The accused has a
statutory right to be represented at trial: see Judiciary Act 1903 (Cth) s
78; Criminal Procedure Act 1986 (NSW) s 36; Criminal Code (NT) s
360; Criminal Code (Qld) s 616; Criminal Law Consolidation Act 1935
(SA) s 288; Criminal Code (Tas) s 368; Criminal Procedure Act 2009
(Vic) ss 33 and 197; Criminal Procedure Act 2004 (WA) s 172. Such a
statutory right reflects High Court authority that legal representation is
regarded as being essential to a fair trial where the charge is serious:
Dietrich v R (1992) 177 CLR 292 at 301–2 per Mason CJ and
McHugh J:
The advantages of representation by counsel are even clearer today than they were in the
nineteenth century. It is in the best interests not only of the accused but also of the
administration of justice that an accused be so represented, particularly when the offence
charged is serious (McInnis v The Queen (1979) 143 CLR 575, at 579, per Barwick CJ
… An unrepresented accused is disadvantaged, not merely because almost always he or
she has insufficient legal knowledge and skills, but also because an accused in such a
position is unable dispassionately to assess and present his or her case in the same
manner as counsel for the Crown (McInnis (1979) 143 CLR 575, at 590, per Murphy J).
In Dietrich, the High Court held that, where an accused facing
serious charges (as Benbow is with manslaughter) is unrepresented
through no fault of their own, proceedings ought to be stayed until the
accused can obtain representation. This right to be represented does not
extend to a right to be represented at public expense. However,
jurisdictions such as Victoria have legislated to order Victoria Legal Aid
to provide legal representation if the court is satisfied the accused may
not receive a fair trial without legal representation (s 197(3) of the
Criminal Procedure Act 2009 (Vic)):
If a court is satisfied at any time that —
(a) it will be unable to ensure that the accused will receive a fair trial unless the
accused is legally represented in the trial; and
(b) the accused is in need of legal representation because the accused is unable to
afford the full cost of obtaining from a private law practice or private legal
practitioner legal representation in the trial —
[page 122]
the court may order Victoria Legal Aid to provide legal representation to the accused, on
any conditions specified by the court, and may adjourn the trial until that legal
representation has been provided.
Thus, here, Noah J should have ordered a stay of proceedings until
Benbow was legally represented.
[page 123]
(1) A person who has been sworn as a juror in a criminal trial must not inquire about
the defendant in the trial until the jury of which the person is a member has given
its verdict, or the person has been discharged by the judge.
…
(3) In this section —
inquire includes —
(a) search an electronic database for information, for example, by using the
internet; and
(b) cause someone else to inquire.
Consequently, Benbow will succeed on this ground of appeal relating
to the Internet searches by two of the jurors on the authority of R v K
[2003] NSWCCA 406 (and if applicable under the relevant Jury Act)
where the court stressed the importance of preserving the sanctity of the
jury room.
[page 124]
A reasonable doubt is a doubt which the particular jury entertain in the circumstances.
Jurymen themselves set the standard of what is reasonable in the circumstances. It is that
ability which is attributed to them which is one of the virtues of our mode of trial: to
their task of deciding facts they bring to bear their experience and judgment. They are
both unaccustomed and not required to submit their processes of mind to objective
analysis of the kind proposed in the language of the judge in this case … A reasonable
doubt which a jury may entertain is not to be confined to a ‘rational doubt’, or a ‘doubt
founded on reason’ in the analytical sense.
Consequently, Noah J has made two errors of law in defining
‘beyond reasonable doubt’ to the jury, which aside from the three other
grounds of appeal would be sufficient to require a new trial.
Conclusion
5-14 Benbow will win his appeal on all four grounds as they
constitute a miscarriage of justice, and consequently Benbow will face a
new trial.
Examiner’s Comments
5-15 It should have been apparent that each paragraph represented a
different issue that needed to be addressed in the answer. For example,
in the first paragraph you are told Benbow is representing himself at
trial despite Noah J’s reservations, along with the judge’s interventions
to assist Benbow who was having difficulty following proceedings.
[page 125]
Keep in Mind
You should remember that in a hypothetical legal problem examiners
do not waste words:
• The opening sentence is: ‘Benbow was on trial for manslaughter.’
This tells you that the charge is serious, which is relevant to the
fact that Benbow is representing himself. You are not told why
Benbow was unable to secure Legal Aid, but this fact is relevant:
(1) to jurisdictions like Victoria where the judge may order
Victoria Legal Aid to provide legal representation if the court is
satisfied the accused may not receive a fair trial without legal
representation; and (2) to the High Court’s decision in Dietrich
that the right to be represented does not extend to a right to be
represented at public expense.
• You are told Benbow is charged with criminal negligence in
relation to his ‘Big Bopper’ ride where a child died, and that two
jurors conducted research on the safety standards of such rides. In
other circumstances, such research would be considered
professional and dedicated. Ask yourself: ‘Why would this
research be a legal issue when conducted by a juror?’
• In Noah J’s definition of ‘beyond reasonable doubt’ there are two
limbs to the instruction to the jury: one dealing with ‘comfortable
satisfaction’ and the other with an objective standard of
‘reasonable’. This suggests that there might be two cases involved
and two separate principles.
• All you are told about the summing up on criminal negligence is
that Noah J discussed the law of criminal negligence in ‘general
terms’
[page 126]
and then left the jury to apply the law to the facts. Ask yourself:
‘Is this the limit of a judge’s function to a jury untrained in the
law?’
Question 3
Barry was on trial in the Queensland Supreme Court for the murder of his wife. The case
had attracted considerable media attention. Paul was summoned for jury selection and
was challenged for cause by the defence who alleged Paul was not impartial. The reason
cited was that Paul had told all his friends at a barbecue, prior to knowing that he would
called up for jury service, that Barry was ‘obviously guilty’. Deacon J dismissed the
challenge ruling that in the absence of any other evidence there was no basis to inquire
into the impartiality of Paul.
The defence then applied for a no jury order under ss 614 and 615 of the Criminal Code
(Qld). Deacon J exercised his discretion to refuse the application. His Honour held:
The risk of prejudice that may exist from the publicity is likely to be able to be
contained and is offset to a significant extent by the interest in deciding the case
by reference to community standards considered by a jury.
Barry’s defence was that he had acted in self-defence. Deacon J refused to allow self-
defence to go before the jury, ruling that there was insufficient evidence to raise a
reasonable possibility of Barry acting in self-defence because the medical evidence
indicated his wife had died as a result of a sustained attack.
Immediately after the jury retired to consider its verdict, Paul pressed the jury foreman
for a vote which resulted in a 10:2 split in favour of conviction. Paul then attacked the
two jurors in the minority saying they must be ‘stupid and blind’ in failing to be
convinced of Barry’s guilt. In the many hours of jury deliberation that followed, Paul
kept up his attack on the two minority jurors until both jurors finally agreed to change
their votes. Some of the jurors were uncomfortable with Paul’s behaviour, but no juror
raised a concern with the judge before the foreman brought in a verdict of guilty.
Advise Barry on any grounds of appeal that may be available to him.
Would your answer differ if it transpired after the trial that one of the jurors discovered
that Paul was a business rival of Barry’s and Paul had a vested interest in Barry’s
conviction?
Time allowed: 40 mins
Answer Plan
There are three main grounds of appeal for Barry:
(i) Possibility that Paul was not impartial.
[page 127]
Answer
5-16 This question has been set in Queensland. For students in other
jurisdictions it is necessary to consult the relevant equivalent legislation
to ascertain whether the statutory language is similar, or whether the
issue has been covered in a different manner or the legislation is silent
on the issue in which case the common law is applicable.
[page 128]
[page 129]
be the mode of trial. If the Code expressed neutrality and no preference for a trial by a
jury the order could be had for the asking. As it is the sections make it clear that there
must be an application for a trial without a jury and, in accordance with ordinary
principles, demonstrate why such an order is in the interests of justice.
On the above authority, there is an onus on the party seeking a no
jury order to show why such an order is in the interests of justice.
Furthermore, as Chesterman JA observed (at [71]):
Appeals from no jury orders are likely to be rare because any challenge is against a
judicial discretion exercised by reference to undefined and indeterminate parameters …
[t]he width of the discretion conferred by s 615(1) will make challenges to it very
difficult.
Finally, there is authority in R v Ferguson; Ex parte Attorney-General
(Qld) [2008] QCA 227 at [26] which is unhelpful to Barry’s appeal
ground:
[T]here is an abundance of authoritative statements that even where a trial is
accompanied by adverse publicity, even adverse publicity concerning the accused’s
previous criminal convictions, the Court should be slow to conclude the resultant risk of
unfairness to the accused is intractable, because the jury is unlikely to be amenable to the
directions of the trial Judge to ignore the adverse publicity and render the verdict based
on the evidence.
As to the reference by Deacon J to ‘community standards considered
by a jury’, Chesterman JA pointed out (at [86]):
There is no reason to think, and no basis in law for concluding, that one mode of trial is
more ‘socially acceptable’ than the other. The discretion to make a no jury order should
be unaffected by any notion that ‘the community’ will more readily accept the validity of
one mode of trial over the other.
In any event, even though Deacon J may have been referring to s
615(5) without mentioning ‘objective’ community standards, his
reasons for refusing the no jury order (containment and a rebuttable
presumption in favour of a jury trial) are consistent with: (1) R v
Ferguson; Ex parte Attorney-General (Qld); and (2) R v Fardon [2010]
QCA 317.
Consequently, it is most unlikely that Barry would be successful in his
appeal on the ground that Deacon J incorrectly exercised his discretion
to refuse a no jury order: House v R (1936) 55 CLR 499 at 504–5.
(iii) Deacon J’s refusal to allow self-defence to go before jury
5-21 Under s 13.3(6) of the Criminal Code 1995 (Cth), an evidential
burden is defined as follows:
evidential burden, in relation to a matter, means the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter exists or does not exist.
[page 131]
[page 132]
that there was specific provoking conduct resulting in a loss of self-control, there is
simply no issue of provocation to be considered by the jury.
The case here against Barry is a fortiori compared with R v Acott
(above), given Barry’s defence is self-defence rather than provocation.
Also, you are not told whether Barry gave evidence at his trial, but it
would be difficult for Barry to satisfy the evidential burden if he did not
take the witness stand. In CTM v R (2008) 236 CLR 440, the accused
sought to raise mistake of fact as to the complainant’s age. CTM did
not give evidence at his trial and it was not put to the girl in cross
examination that she had said anything to CTM about her age.
Consequently, the High Court held that CTM had not satisfied the
evidentiary burden sufficiently to raise the defence of mistake of fact.
Here, Barry would be sorely pressed to argue, given the medical
evidence, that Deacon J made an error of law in refusing to allow self-
defence to be put before the jury, especially if Barry did not give
evidence on his own behalf: CTM v R (2008) 236 CLR 440. Barry’s
counsel would have had to tender more evidence than presently
available to satisfy the evidential burden for self-defence.
Conclusion
5-22 Barry’s only realistic ground for a successful appeal lies in the
possibility that Paul was not an impartial juror, and depends on the
second scenario where one of the jurors discovered Paul had a conflict
of interest. Barry will fail on challenging Deacon J’s decisions not to
make a no jury order and not to allow self-defence to go to the jury.
Examiner’s Comments
5-23 The question is based in Queensland, but the outcome would be
similar in any jurisdiction in Australia with the exception of the no jury
order. Only Queensland, New South Wales and Western Australia have
no jury orders: Criminal Code (Qld) ss 614 and 615; Criminal
Procedure Act 1986 (NSW) s 132; Criminal Procedure Act 2004 (WA) s
118. Apart from minor differences in the relevant sections of the
respective Jury Acts, the major point of distinction is whether the
particular jurisdiction allows a no jury order to be made or gives the
accused the right to choose. The Commonwealth (see Brown v R (1986)
160 CLR 171 where the High Court found that s 80 of the Australian
Constitution prevented the accused electing for a trial by judge alone),
Victoria, Tasmania and the Northern Territory do not provide for
criminal trials by judge alone. Alternatively, even though the particular
jurisdiction does allow no jury trials, an accused is allowed to elect to
be tried by a judge alone without any discretion in the Crown or the
court to refuse such an election. South Australia and the Australian
Capital Territory allow the accused the right to choose.
Thus, apart from the no jury order, the issues of satisfying the
evidential burden for self-defence and dealing with a juror who was
demonstrably
[page 133]
Keep in Mind
You should take care to identify the key characters in a hypothetical
legal problem and the law they notionally ‘carry’ with them:
• Paul is clearly a key character and plays the role of ‘rogue’ juror.
The question requires you to be able to identify the points in the
narrative that intersect with a legislative response to the problem
of a ‘rogue’ juror, and how the response differs depending on the
point at which the trial has reached when the ‘rogue’ behaviour
occurs.
• The trial judge, Deacon J, is the obvious other main character
who makes two critical discretionary decisions in relation to the
no jury order and the evidential burden. As with most legal
problem solving questions, there is a need to identify the relevant
legislative sections and cases on point. For example, for the no
jury order ss 614 and 615 of the Criminal Code (Qld) and R v
Fardon [2010] QCA 317 are critical. But it is not sufficient to just
mention the two sections. It is necessary to explain how the two
sections operate and which criteria are relevant. Here, it was s
615(4)(c) as it deals with significant pre-trial publicity. Again, R v
Fardon explained the meaning of the phrase ‘interests of justice’
and that the onus was on the party applying for the no jury order.
Question 4
Gustave was indicted on a charge of murder in Victoria. However, before the trial
commenced the Crown declared a nolle prosequi. Six months later, the Crown
presented an ex officio indictment against Gustave in the Victorian Supreme Court for
murder.
The case against Gustave was circumstantial. When the Crown closed its case, Gustave’s
defence counsel applied to the trial judge, Nuttall J, to issue a ‘Prasad direction’ to the
jury. The Crown submitted that if a ‘Prasad direction’ was to be put to the jury, such a
direction should include the offence of accessory after the fact pursuant to s 325 of the
Crimes Act 1958 (Vic) as an alternative to the count of murder in order to ‘clear the
presentment’. Nuttall J refused the defence application for the court to issue a ‘Prasad
direction’ to the jury because no serious weakness in the Crown case had emerged,
noting that such a procedure should be used ‘sparingly and only in circumstances
where the trial judge was of the view that the evidence was not sufficiently cogent to
justify a conviction’.
Nuttall J also refused a defence application to exclude some photographic exhibits from
evidence made available to the jury, which depicted ‘ghastly injuries’ to the deceased,
because the photographs provided some
[page 134]
assistance in understanding the pathologist’s evidence of the position of the before and
after death injuries. In addition to the photographs, Nuttall J allowed the jury to retire
with both Gustave’s recorded interview with the police and a transcript of the interview,
to better navigate through the recording to those parts of the interview the jury
particularly wanted to revisit.
Gustave was convicted of murder. Advise Gustave on any grounds of appeal that may be
available to him.
How would your answer differ if Gustave admitted killing the deceased but pleaded the
defence of non-insane automatism, and Nuttall J directed the jury in the following
manner on the onus of proof where the evidence required the jury to consider both
non-insane automatism and insanity?
Answer Plan
There are four issues which need to be addressed:
(i) Pre-trial procedures.
• The Crown initially declared a nolle prosequi, but six months
later, the Crown presented an ex officio indictment.
(ii) Defence’s request that the court issue a ‘Prasad direction’ was
refused.
• The case against Gustave was circumstantial, but the Crown
sought an alternative verdict of accessory after the fact be
included in the ‘Prasad direction’.
(iii) Nuttall J’s decision to allow the jury to retire with some exhibits.
• The jury was able to take into the jury room.
– Photographic exhibits depicting the ‘ghastly injuries’ of the
deceased.
– Gustave’s recorded interview with the police and a
transcript of Gustave’s recorded interview.
(iv) Nuttall J’s direction to the jury regarding the onus of proof for
non-insane automatism.
Nuttall J directed the jury that the onus of proof lay with the accused,
Gustave, to show on the balance of probabilities that he was acting like
[page 135]
Answer
(i) Pre-trial procedures
5-24 Before the trial commenced the Crown entered a nolle prosequi,
which means that the prosecutor voluntarily discontinued criminal
charges against Gustave. A nolle prosequi is available to the Crown
between the presentation of the indictment and prior to the verdict:
Beckett v New South Wales (2013) 248 CLR 432. However, a nolle
prosequi is subject to judicial review and may be refused by the court if
it constitutes an abuse of process: R v Jell [1991] 1 Qd R 333. For
example, there is no indication in the factual matrix that the Crown had
applied for a nolle prosequi where an adjournment has been or might be
refused: R v Lorkin (1995) 82 A Crim R 196; or that refusal of a nolle
prosequi was necessary to prevent oppression: R v Economou (1989) 51
SASR 421.
The reason for the Crown entering a nolle prosequi may have been
because the evidence was not deemed sufficient at the time to shoulder
the burden of proof. The legal effect of the entry of a nolle prosequi is
simply to withdraw the charges and does not amount to an acquittal.
Hence, there is no question here of the application of double jeopardy.
The Crown has left open the possibility that Gustave may be re-indicted
on the same charge of murder.
Six months later, the Crown presented an ex officio indictment
against Gustave for murder. The Director of Public Prosecutions in
exceptional circumstances is able to file an ex officio indictment, which
has the effect of circumventing a committal hearing and proceeding
directly to trial in the Supreme Court. See, for example, s 561(1) of the
Criminal Code (Qld):
A Crown Law Officer may sign and present an indictment in any court of criminal
jurisdiction against any person for any indictable offence, whether the accused person
has been committed for trial or not.
As a rule, courts frown on ex officio indictments as they prevent the
accused from testing the Crown’s case. While the decision to file an ex
officio indictment is beyond judicial review, unless the consequential
potential unfairness is addressed the situation may warrant a stay of
proceedings until committal proceedings are held: Barton v R (1980)
147 CLR 75.
However, where the accused has a prior understanding of the nature
of the case against him or her, an ex officio indictment is less
contentious: Barton v R (1980) 147 CLR 75. Here, Gustave would have
previously been through a committal proceeding on the charge of
murder, and
[page 136]
[page 137]
(a) Photographs
5-27 A case on point can be found in R v Rae [2006] QCA 207,
where the appellant contended that the trial judge erred in exercising his
discretion under s 130 of the Evidence Act 1977 (Qld) in not excluding
photographic exhibits. McMurdo P (at [42]) observed that the trial
judge was of the view that the photographs, which depicted ‘ghastly’
injuries to the deceased, had potential probative value ‘to show the high
level of animosity borne by the appellant to his victim tending to
establish that the attack was motivated by an intention to kill or to
cause grievous bodily harm’. McMurdo P concluded (at [43]) that given
all the other
[page 138]
Conclusion
5-29 Gustave has no realistic grounds of success to appeal his
conviction on: (i) pre-trial procedures; (ii) Nuttall J’s refusal of the
defence’s request that the court issue a ‘Prasad direction’; and (iii)
Nuttall J’s decision to allow the jury to retire with some exhibits.
[page 140]
and if insanity is not established on the balance of probabilities, in the absence of any
other defence the jury should convict.
The reference to the defence of insanity (or mental impairment)
placing the legal burden on the party raising the defence, with the
standard of proof being on the balance of probabilities, is reflected in s
21(2)(b) and (3) of the Crimes (Mental Impairment and Unfitness to Be
Tried) Act 1977 (Vic).
Consequently, on the authority of the majority in R v Falconer (1990)
171 CLR 30, Nuttall J has misdirected the jury on the onus of proof for
non-insane automatism. This would be sufficient to constitute a
miscarriage of justice and require Gustave to face a new trial.
Examiner’s Comments
5-31 The key to answering this question is to identify the four issues
raised in the factual matrix. For the first issue of the pre-trial
procedures, the examiner will be expecting both a discussion of the
terms nolle prosequi and ex officio indictment as well as an analysis of
their legal effect in the context of the factual matrix.
The second issue of the ‘Prasad direction’ contains an addendum in
the form of the Crown seeking to include an alternative verdict of
accessory after the fact pursuant to s 325 of the Crimes Act 1958 (Vic).
This level of specificity often reveals a clue as the actual case that this
part of the factual matrix is built around. Here, it was R v Smart
(Ruling No 5) [2008] VSC 94, which also provides a handy overview of
the test for giving a ‘Prasad direction’.
The third issue of allowing the various exhibits into the jury room
goes to judicial discretion. On the one hand the photographs depicted
‘ghastly injuries’ which may inflame the jury, while on the other hand
the extent of the injuries went to the fault element of intent in a murder
trial. Similarly, providing both the interview and the transcript while
convenient and practical ran the risk that the jury would rely on the
transcript rather than the actual words spoken in the interview. Again,
the factual matrix was drawn from two actual cases: R v Rae [2006]
QCA 207 and R v Le [2007] QCA 259.
The fourth issue of the direction on the onus of proof for non-insane
automatism was given in the context of a supplementary question
prefaced by: ‘How would your answer differ?’ The examiner is calling
attention to the onus of proof, and specifically giving a long quote in
the expectation students would be able to identify the case from which
the quote was taken. The issue then is whether the quote correctly states
the law on the onus of proof for non-insane automatism. As the
examiner has altered the factual matrix to an admission of having killed
the deceased but with a defence non-insane automatism, it is likely that
your answer on whether Gustave may now have an appeal ground may
well differ.
[page 141]
Keep in Mind
You should always be alert to identify significant pieces of information.
For example:
• The fact that the same charge of murder was presented in the ex
officio indictment against Gustave. You can display your
knowledge by telling the examiner that if the Crown had brought
a different charge against Gustave that was not part of the
original res gestae, then while the decision to file an ex officio
indictment is beyond judicial review unless the consequential
potential unfairness is addressed the situation may warrant a stay
of proceedings: Barton v R (1980) 147 CLR 75.
• When the examiner attributes statements to the trial judge ask
yourself: do these statements reflect the law and is there a case on
point? Thus, Nuttall J gave the criterion for giving a ‘Prasad
direction’ as being used ‘sparingly and only in circumstances
where the trial judge was of the view that the evidence was not
sufficiently cogent to justify a conviction’. This is a correct
statement of the law as held in R v Pahuja (1987) 49 SASR 191.
The ability to quickly identify the relevant law and the leading
case is a key skill in legal problem solving.
• For the exhibits being taken into the jury room, the question that
should be uppermost in your mind is: under what circumstances
would a judge decline to exercise his or her discretion to allow the
exhibit into the jury room? These circumstances are: (1) the risks
the jury would misuse the evidence; and (2) whether the
prejudicial effect may exceed the probative value of having the
exhibit in the jury room.
• The supplementary question requires a dissection of Nuttall J’s
direction on the onus of proof for non-insane automatism. Using
first principles, it should be possible to identify that the direction
places both the evidentiary and legal onus on Gustave in raising
the defence of non-insane automatism. The leading High Court
case on automatism is R v Falconer (1990) 171 CLR 30. The
examiner would be expecting students to be familiar with the case
and to be able to identify the fact that Nuttall J has directed the
jury in accordance with the views of the minority rather than the
majority judges who decided Falconer.
[page 143]
Chapter 6
Key Issues
Statute — Appeals
6-1 Appeals are creatures of statute. There is no common law right to
an appeal. Consequently, for each jurisdiction in Australia it is
necessary to commence with the relevant legislation covering appeals.
As each jurisdiction has a hierarchy of courts, a mechanism is provided
to allow for appeals between lower and higher courts. This may entail
legislation across several pieces of legislation, or a single piece of
legislation. In the main all Australian jurisdictions have similar rules
governing the appeal process, the overriding objective being to avoid a
miscarriage of justice.
Irrespective of the individual grounds of appeal, the appeal must
ultimately be grounded in one of the recognised criteria for the Court of
Appeal allowing an appeal. For the purposes of an appeal, it is
necessary to distinguish between the Crown as the appellant and the
offender as the appellant
In most jurisdictions, Western Australia is an exception, an appeal by
the offender against conviction on a question of law alone is an as of
right appeal. All other appeals by an offender require leave from the
Court of Appeal. Thus, an appeal by an offender against sentence
requires leave. The Crown, on the other hand, does not require leave to
appeal against sentence.
The appeal process is exhausted when leave to appeal is refused. If
the appeal is on a question of law alone, then, excepting Western
Australia, there is an as of right appeal to the Court of Appeal.
However, a further appeal to the High Court requires special leave. The
criteria are set out in s 35A of the Judiciary Act 1903 (Cth) and are
difficult to satisfy. These criteria relate to a question of law that is of
public importance, or whether the interests of the administration of
justice require consideration by the High Court.
The range of options open to the court deciding the appeal depends
on the status of the court hearing the appeal in the court hierarchy. The
most senior appellate court is the Court of Appeal or the Court of
Criminal
[page 144]
Statute — Sentencing
6-2 Sentencing statutes contain the purposes, principles and objectives
of sentencing, as well as matters that judicial officers are required to
take into account as part of the sentencing process. The principal
sentencing legislation in each Australian jurisdiction is as follows:
Crimes Act 1914 (Cth); Crimes (Sentencing) Act 2005 (ACT); Crimes
(Sentencing Procedure) Act 1999 (NSW); Sentencing Act 1995 (NT);
Penalties and Sentencing Act 1992 (Qld); Criminal Law (Sentencing)
Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1991 (Vic);
Sentencing Act 1995 (WA).
Criminal sentencing occurs after the accused has been found guilty
and convicted of a criminal offence by a magistrate, a judge sitting
alone or
[page 145]
a jury. There are various sentencing options open to the judicial officer
including a good behaviour bond, a community service order, a fine and
a term of imprisonment. This chapter will focus on terms of
imprisonment. It is important to distinguish between the sentence
handed down or ‘head sentence’, and the proportion of the sentence
that must be served in prison which is often called the non-parole
period.
Determining the appropriate sentence is a subjective balancing act of
a number of different purposes served by the imposition of a criminal
sentence, such as deterrence and rehabilitation. The governing
sentencing principles are set out in each Sentencing Act above. These
sentencing principles typically include:
(1) a sentence imposed on an offender must be commensurate with
the seriousness of the offence;
(2) the seriousness of an offence must be determined by taking into
account:
(a) the statutory penalty for the offence; and
(b) the circumstances of the commission of the offence, including
the vulnerability of any victim of the offence; and
(c) any aggravating factors; and
(d) any mitigating factors;
(3) a court must not impose a sentence of imprisonment on an
offender unless it decides that:
(a) the seriousness of the offence is such that only imprisonment
can be justified; or
(b) the protection of the community requires it.
As can be seen from (3) above, imprisonment is a sanction of last
resort: Parker v DPP (1992) 28 NSWLR 282. This principle finds
expression in statute: Crimes Act 1914 (Cth) s 17A; Crimes (Sentencing
Procedure) Act 1999 (NSW) s 5(1); Penalties and Sentencing Act 1992
(Qld) s 9(2)(a); Criminal Law (Sentencing) Act 1988 (SA) s 11;
Sentencing Act 1991 (Vic) s 5(4); Sentencing Act 1995 (WA) s 6(4).
The specified term of imprisonment is the maximum available and is
rarely imposed under judicial discretion, being reserved for the very
worst cases with significant aggravating factors: Ibbs v R (1987) 163
CLR 447 at 451–2. Aggravating factors and mitigating factors are
factors which in the court’s opinion increase or decrease the offender’s
culpability respectively. In the main all Australian jurisdictions have
similar rules governing the sentencing process, the overriding objective
being to make the punishment fit the crime.
The basis on which an offender will be sentenced is a complex mix of
factors that range from the objective seriousness of the offence and the
circumstances of the offence, to the vulnerability of the victim and any
aggravating or mitigating factors. According to the High Court there is
no single sentencing principle, and the sentencing court subjectively and
intuitively assesses the various sentencing principles to ‘take account of
[page 146]
all of the relevant factors and to arrive at a single result which takes due
account of all of them’: Wong v R (2001) 207 CLR 584 at 611.
Precedents and sentencing ranges for comparable offences are
frequently used by the courts, with the Crown and the defence citing
cases in support of their respective arguments for the appropriate
sentence. Under statute, courts are required to take an offender’s
character, age and intellectual capacity into consideration when
undertaking the sentencing process. Both a guilty plea and the amount
of assistance given to law enforcement authorities are factors to be
taken into account at sentencing.
To be successful in appealing against a sentence, the ground of appeal
must be an error of fact or law. In Roffey v State of Western Australia
[2007] WASCA 246 at [23], McLure JA identified the prime
consideration in securing a successful appeal against sentence:
An appellate court is not entitled to intervene merely because it would have exercised the
sentencing discretion in a manner different than the sentencing judge. It can only
intervene if the sentencing judge has made an express or implied material error of fact or
law.
There are a number of Australian jurisdictions where mandatory
sentencing applies, one of which is the Commonwealth for certain
people smuggling offences under the Migration Act 1958 (Cth).
Appeal questions
6-3 Before tackling the following questions, please check that you are
familiar with the following:
Question 1
Peter Poster was convicted of stealing a number of items from the home of his next door
neighbour Boris Barker. The items included a stamp collection which the Crown alleged
was worth over $1 million. Poster did not dispute that he had taken the stamp collection
and the other items, but claimed he was acting under an honest claim of right. Poster’s
[page 147]
defence was that Barker had himself stolen part of Poster’s own stamp collection and
that he was only taking back his own property ‘with interest’. The Supreme Court trial
judge had refused to allow Poster’s defence of honest claim of right to go to the jury.
Poster also disputed the value of Barker’s stamp collection, claiming that the stamp
collection was worth ‘much less’ than $1 million. In sentencing Poster to two years’
imprisonment, the trial judge had said that he took into account both the value of the
stamp collection and the breach of trust between two keen stamp collectors. Poster has
‘sacked’ his original defence counsel and seeks your advice on an appeal against both
conviction and sentence. The Crown has indicated it will cross-appeal on the grounds
that the two year sentence is manifestly inadequate.
Time allowed: 25 mins
Answer Plan
(i) Nature of the appeal.
• Context of the appeal.
• Does the appeal require leave or is it as of right?
• For an appeal against sentence, the difference between the
Crown and the convicted person in the leave to appeal
requirements.
(ii) Merits of the appeal.
• Does the appellant make good a ground of appeal?
• Does the appellant overcome the application of the proviso?
Answer
(i) Nature of appeal
6-4 At the outset of your answer, observe that the factual matrix is
set in the context of a Supreme Court trial, from which an appeal may
be made to the Court of Appeal. In advising Peter Poster (PP), it is
necessary to identify the nature of the appeal in order to establish
whether the appeal is as of right or requires leave. With the exception of
Western Australia (see s 27(1) of the Criminal Appeals Act 2004 (WA)
where the test is a reasonable prospect of succeeding, for which see
Samuels v Western Australia [2005] WASCA 193), an appeal by the
offender against conviction on a question of law alone is an as of right
appeal. All other appeals by an offender require leave from the Court of
Appeal. In PP’s case, the Supreme Court trial judge had refused to allow
PP’s defence of honest claim of right to go to the jury. A defence of
honest claim of right is required to satisfy an evidential burden only,
which is defined as presenting evidence that suggests a reasonable
possibility that a jury could accept the defence. The refusal to allow the
defence to go to the jury is prima facie a question of law alone, and
therefore an as of right appeal would be available to PP. However, if the
refusal was grounded
[page 148]
[page 149]
[page 150]
(1) the trial judge should have left the defence of honest claim of right
with the jury; and (2) that as a result the appellant was denied a chance
of an acquittal.
If the conviction is quashed, the Court of Appeal then has to decide
whether to: (1) order an acquittal; (2) substitute an alternative verdict;
or (3) order a new trial: Supreme Court Act 1933 (ACT) s 37O(1);
Criminal Appeal Act 1912 (NSW) ss 6(2), 7 and 8; Criminal Code (NT)
s 411(3); Criminal Code (Qld) ss 668E(2), 668F(2) and 669; Criminal
Law Consolidation Act 1935 (SA) s 353(2); Criminal Code (Tas) ss
402(3), 403(2) and 404; Criminal Procedure Act 2009 (Vic) s 277;
Criminal Appeals Act 2004 (WA) s 30. The appropriate criteria for
ordering a new trial were considered in the Director of Public
Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at [5], where the
High Court identified two principles: (1) the cogency of the evidence;
and (2) whether any circumstances existed that would make it unjust
for the defendant to be re-tried.
Clearly, if the appeal against conviction succeeds, then it is
unnecessary for the Court of Appeal to consider the appeal against
sentence. Assuming the appeal against conviction is dismissed, then as
regards the strength of the appeal against sentence, the Court of Appeal
will consider the original sentence and determine whether there has
been an error by the trial judge in exercising the sentencing discretion.
Relevant factors in assessing whether an error of principle has been
made include: (1) the maximum sentence available, which is normally
reserved for the very worst cases; (2) the manner in which the original
sentence was calculated; (3) the range of sentences for similar offences;
(4) the seriousness of the offence, including mitigating and aggravating
circumstances; and (5) the personal circumstances of the offender, such
as whether this was a first offence.
In PP’s case, you are told the trial judge specifically took into account
the value of the stamp collection and the breach of trust between the
two keen stamp collectors. Thus, if the Court of Appeal were to be
satisfied that there was some substance to PP’s claim that the value of
the collection was worth ‘much less’ than $1 million and that there was
a possibility that the trial judge had overstated the breach of trust by
PP, then the sentence of two years’ imprisonment might well be
reduced.
Examiner’s Comments
6-6 In reading any hypothetical legal problem, the key is to focus on
the essential pieces of information that determine the issues to be
discussed. You are asked to advise on an appeal against both conviction
and sentence. For this purpose the key pieces of information are: (1) the
refusal by the trial judge to leave the defence (or excuse) of honest claim
of right with the jury; and (2) the dispute over the value of the stamp
collection. The next step is to relate this information to the appeal. This
[page 151]
Keep in Mind
You should bear in mind:
• It is important in legal problem solving to distinguish narrative
from key facts that raise legal issues. So while examiners do not
waste words, the factual matrix is a vehicle to arrive at the legal
issues. Identifying the key facts is vital for legal problem solving.
• There is a difference between speculation and ‘flipping’ the facts
to demonstrate an understanding of a legal principle. Judges
regularly collect cases for the purpose of identifying the relevant
legal principle(s) for the case in hand, and then apply the facts of
the case. By adjusting or varying the facts to show that had x
occurred rather than y, then the case would have fallen within or
without the identified legal principle(s), judges distinguish
between cases and flesh out the legal principle(s). Students need to
follow the same process by identifying the legal principle(s) before
addressing the particular facts. Some posited variation in the
factual matrix to demonstrate
[page 152]
Question 2
Barney Blessed appealed both his conviction in the Supreme Court for inflicting
grievous bodily harm and his sentence of three years’ imprisonment imposed by the
trial judge. The Court of Appeal gave Barney leave to appeal on both conviction and
sentence. Discuss the Court of Appeal’s options in deciding Barney’s appeal.
Time allowed: 20 mins
Answer Plan
(i) Options in relation to conviction.
• Grounds of appeal.
• Court of Appeal’s options.
(ii) Options in relation to sentence.
• Grounds of appeal.
Answer
(i) Options in relation to conviction
6-7 Barney may have appealed on one or several grounds, and the
Court of Appeal will consider each ground. The court must decide
whether the particular ground of appeal has merit and should be
upheld. However, the court has a further task in deciding whether or
not to apply the ‘proviso’. Applying the ‘proviso’ means that despite the
court upholding the ground of appeal, the conviction stands because no
substantial miscarriage of justice occurred: Supreme Court Act 1933
(ACT) s 37O(3); Criminal Appeal Act 1912 (NSW) s 6(1); Criminal
Code (NT) s 411(2); Criminal Code (Qld) s 668E(1A); Criminal Law
Consolidation Act 1935 (SA) s 353(1); Criminal Code (Tas) s 402(2);
Criminal Procedure Act 2009 (Vic) s 276(1); Criminal Appeals Act
2004 (WA) s 30(4).
In Weiss v R (2005) 224 CLR 300, the High Court held that in
applying the ‘proviso’ the appellate court is required to make its own
assessment of the whole of the evidence, to be performed by deciding an
appeal on the record of the trial. As to the actual test, the High Court
identified (at [35]) an appellate court’s task as deciding objectively
whether a substantial miscarriage of justice has actually occurred, which
is to be performed with whatever are the advantages and disadvantages
of deciding an appeal on the record of the trial, and is not an exercise in
speculation or prediction:
[page 153]
The fundamental task committed to the appellate court by the common form of criminal
appeal statute is to decide the appeal. In so far as that task requires considering the
proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury
at trial or some hypothetical future jury) would or might do. Rather, in applying the
proviso, the task is to decide whether a ‘substantial miscarriage of justice has actually
occurred’.
On the assumption that the Court of Appeal did not apply the
‘proviso’, the court has three options: (1) order an acquittal; (2)
substitute an alternative verdict; or (3) order a new trial: Supreme Court
Act 1933 (ACT) s 37O(1); Criminal Appeal Act 1912 (NSW) ss 6(2), 7
and 8; Criminal Code (NT) s 411(3); Criminal Code (Qld) ss 668E(2),
668F(2) and 669; Criminal Law Consolidation Act 1935 (SA) s 353(2);
Criminal Code (Tas) ss 402(3), 403(2) and 404; Criminal Procedure Act
2009 (Vic) s 277; Criminal Appeals Act 2004 (WA) s 30.
Section 277 of the Criminal Procedure Act 2009 (Vic) is an example
of the type of legislation that sets out the Court of Appeal’s options in
relation to a conviction:
(1) If the Court of Appeal allows an appeal under section 274, it must set aside the
conviction of the offence (‘offence A’) and must —
(a) order a new trial of offence A; or
(b) enter a judgment of acquittal of offence A; or
(c) if —
(i) the appellant could have been found guilty of some other offence (offence B)
instead of offence A; and
(ii) the court is satisfied that the jury must have been satisfied of facts that prove
the appellant was guilty of offence B —
enter a judgment of conviction of offence B and impose a sentence for offence B
that is no more severe than the sentence that was imposed for offence A; or
(d) if the appellant could have been found guilty of some other offence (offence B)
instead of offence A and the court is not satisfied as required by paragraph (c)
(ii), order a new trial for offence B.
In relation to option (3), the appropriate criteria for ordering a new
trial were considered in the Director of Public Prosecutions (Nauru) v
Fowler (1984) 154 CLR 627 at [5], where the High Court identified
two principles: (1) the cogency of the evidence; and (2) whether any
circumstances existed that would make it unjust for the defendant to be
re-tried:
The power to grant a new trial is a discretionary one and in deciding whether to exercise
it the court which has quashed the conviction must decide whether the interests of justice
require a new trial to be had. In so deciding, the court should first consider whether the
admissible evidence given at the original trial was sufficiently cogent to justify a
conviction, for if it was not it would be wrong by making an order for a new trial to give
the prosecution an opportunity to supplement a defective case. In the present case, the
admissible evidence given at the trial satisfies this test. Then the court must take into
account any circumstances that might render it unjust to the accused to make him stand
trial again, remembering however that the public interest in the proper administration of
justice must be considered as well as the interests of the individual accused.
[page 154]
Examiner’s Comments
6-9 This question specifically calls for a discussion of the Court of
Appeal’s options in deciding Barney’s appeal in relation to both his
conviction and sentence. The jurisdiction is not mentioned, and the
answer should be tailored to the relevant legislation on which you will
be examined, examples of which are given in the Answer. Also, there is
no detail on the grounds of Barney’s appeal. Therefore, the whole focus
of the answer is on the court’s options, and they include the application
of the ‘proviso’. Examples of the ‘proviso’ legislation are also included
in the Answer.
[page 155]
Keep in Mind
You should avoid the following common errors:
• Failing to answer the question. The question was specific and did
not require speculation as to nature of the grounds of appeal.
• Overlooking the application of the ‘proviso’ as part of the options
open to the Court of Appeal.
• Digressing from the Court of Appeal’s options to discuss options
open to other courts in the court hierarchy, or the granting of
leave to appeal.
Question 3
Jonah Joyce had lost his appeal against conviction for murder in the Court of Appeal,
and sought special leave to appeal to the High Court. Joyce’s appeal was grounded on
his conviction being the result of the admission by the trial judge of ‘scenario’ evidence
where undercover police officers pose as members of a criminal gang. The ‘target’, here
Joyce, is a person who is suspected of committing a serious crime, but which the police
are unable prove without further evidence. In exchange for material gain and protection
from prosecution which the gang leader can supposedly offer, the ‘target’ must inform
the gang leader of anything he or she might have done to attract police attention. In this
way, a confession was obtained from Joyce.
Joyce’s appeal was based on his confession being wrongly admitted because: (1) his
confession was involuntary; or (2) in the alternative, his confession should have been
excluded on discretionary grounds.
Discuss the criteria against which Joyce’s application for special leave to appeal to the
High Court will be assessed, whether Joyce’s grounds for appeal may satisfy those
criteria, and the likely outcome of the appeal.
Time allowed: 20 mins
Answer Plan
(i) Identification of the criteria used by the High Court to assess
special leave applications.
(ii) Likely prospects of Joyce being able to satisfy these criteria.
(iii) Likely outcome of the appeal.
Answer
6-10 The first part of the question requires the identification of the
criteria used by the High Court to assess special leave applications,
citing the appropriate sections of the statute and relevant case authority.
The criteria are set out in s 35A of the Judiciary Act 1903 (Cth) and are
[page 156]
[page 157]
compulsion, and the extent to which the ‘target’ Joyce was free to
choose whether he spoke or remained silent about the murder.
In Tofilau v R [2007] HCA 39 at [17]–[18] and [22], Gleeson CJ
dealt with the issues of voluntariness and coercion:
The law treats as voluntary a great deal of conduct about which a person, speaking
colloquially, may say that he or she had no choice. Since the original rationale for the
principle of exclusion of involuntary statements was concern about the unreliability of
statements made under coercion, that will sometimes be a useful guide in making a
judgment about what kind of conduct will be taken to render a statement involuntary. It
is, however, of no assistance to the appellants in this case, because the deception
practised upon them was not such as was likely to elicit a false confession.
To the extent that abuse of the state’s coercive authority is another part of the rationale
for the exclusionary rule, there are two difficulties for the appellants. The first has
already been mentioned in dealing with the definite rule: the appellants thought they
were talking to criminals, not police officers. The second is that deception is a very
common method of seeking to obtain confessions from people suspected of crime …
If the deception practised upon the appellants rendered their statements involuntary, then
many other forms of deception to which people suspected of crime are subjected will
have the same consequence. The wills of the appellants were not overborne. Their
statements were, in a legal sense, voluntary.
The second ground of appeal contended that Joyce’s confession
should have been excluded on discretionary grounds of alleged
unfairness and public policy. As Gleeson CJ pointed out in Tofilau v R
(at [24]) ‘appellate review of judicial discretion, in accordance with the
principles stated in House v The King (1936) 59 CLR 499, is not at
large’.
In order for an appellate court to interfere with a trial judge’s exercise
of discretion, it would be necessary to demonstrate that the trial judge
made an error of fact or law, took anything irrelevant into account or
failed to take anything relevant into account, or that the result was so
unjust as to suggest some error not apparent on the face of the trial
judge’s reasoning: see Tofilau v R [2007] HCA 39 at [414] per Callinan,
Heydon and Crennan JJ below, following House v R (1936) 59 CLR
499 at 504–5 per Dixon, Evatt and McTiernan JJ:
If Kellam J’s decision is to be viewed as discretionary, it cannot be said that he made any
error of fact or law, took anything irrelevant into account or failed to take anything
relevant into account; nor that the result was so unjust as to suggest some error not
apparent on the face of his reasoning. If his discretion is not to be viewed as
discretionary, it was correct for the reasons set out above. In either event the Court of
Appeal was right not to interfere with it.
Conclusion
6-11 It would be open to conclude that both grounds of appeal may
come within the ambit of the criteria set out in s 35A of the Judiciary
Act
[page 158]
Examiner’s Comments
6-12 The question has two parts which both need to be addressed.
First, identification of the criteria used by the High Court to assess
special leave applications, by reference to the appropriate sections of the
statute and relevant case authority. Second, the likely prospects of Joyce
being able to satisfy these criteria, and therefore being allowed to argue
his appeal in front of the Full Bench of the High Court.
Examiners often base a question around a particular case which will
have been covered in the course materials and diligent students will be
able to readily identify. The leading High Court authority on the
admissibility of ‘scenario’ evidence is Tofilau v R [2007] HCA 39.
Knowledge of the case would obviously place a student at a significant
advantage in answering this question. However, it is possible to proceed
from first principles in considering whether the issues raised by the
appeal in the hypothetical factual matrix may satisfy the strict
overarching criteria required for the High Court to grant special leave
to appeal.
As to reasons for dismissing the Joyce’s appeal, based on Tofilau v R
[2007] HCA 39, although Joyce’s confession was obtained by
deception, Joyce’s will was not overborne, there was no duress or
intimidation and the confessions were voluntary. As to Joyce’s
argument that the trial judge should have exercised his discretion to
exclude his confession for reasons of unreliability, unfairness and public
policy, those arguments were dismissed in following House v R (1936)
59 CLR 499 at 504–5 per Dixon, Evatt and McTiernan JJ.
Keep in Mind
You should be aware that:
• The question does not require an analysis of the merits of the
appeal before the Full Bench of the High Court.
• The focus of the question is on whether Joyce’s grounds of appeal
are likely to meet the criteria for special leave to appeal being
granted by the High Court.
• The actual conclusion as to whether Joyce would be successful in
securing special leave to appeal is less important than the
reasoning and authority that lie behind the conclusion. Legal
minds differ,
[page 159]
Question 4
Scenario 1 Assume that leave to appeal to the High Court from the Court of Appeal has
been refused. In which jurisdiction(s) in Australia is it possible that the Court of Appeal
may hear a second or subsequent appeal against conviction and on what basis?
Scenario 2 Assume that the defendant in a murder trial has been acquitted by the jury. In
which jurisdiction(s) in Australia is it possible that the Court of Appeal may order a
retrial for murder and on what basis?
Time allowed: 20 mins
Answer Plan
(i) Scenario 1.
• Identify the jurisdiction(s) that permit a second or subsequent
appeal by a convicted person.
• On what basis?
(ii) Scenario 2.
• Identify the jurisdiction(s) that permit the Crown to secure a
second trial for the same offence.
• On what basis?
Answer
(i) Scenario 1
6-13 At present, South Australia and Tasmania are the only
jurisdictions in Australia that permit a second or subsequent appeal:
Criminal Law Consolidation Act 1935 (SA) s 353A; Criminal Code
1924 (Tas) s 402A. The Full Court of Criminal Appeal may hear a
second or subsequent appeal against conviction where the court is
satisfied there is fresh and compelling evidence that should, in the
interests of justice, be considered on an appeal.
In R v Drummond [2013] SASCFC 135, the applicant sought
permission under s 353A(2) of the Criminal Law Consolidation Act
1935 (SA) for a second appeal against conviction on the ground that
there existed fresh and compelling evidence that should, in the interests
of justice, be considered on appeal pursuant to s 353A(1) of the
Criminal Law Consolidation Act 1935 (SA). Stanley J refused
permission for a second appeal to the Full Court and held: (1) the onus
is on the appellant to
[page 160]
satisfy the appeal court that the requirements of s 353A(1) have been
met; (2) permission to appeal against conviction will be granted if the
proposed ground of appeal is reasonably arguable; and (3) it was not
reasonably arguable that the evidence was either fresh or compelling.
Thus, while the opportunity exists for a second appeal in South
Australia, the appellant will face the dual hurdle of meeting the onus of
satisfying s 353A(1) and showing the proposed ground of appeal is
reasonably arguable. Similar obstacles confront an appellant under s
402A(5) of the Criminal Code 1924 (Tas).
A different form of review of a conviction is judicial review, an
example of which is found under Pt 7 of the Crimes (Appeal and
Review Act) 2001 (NSW). The purpose of Pt 7 is not to provide another
avenue of appeal, but to leave open the door to judicial review where
there is a strong case that a miscarriage of justice might have occurred.
Essentially, the trigger for a judicial review is the emergence of special
facts or circumstances which cast doubt on the original conviction.
Another example of the post-appeal process is where a convicted
person petitions for clemency: see Crimes (Appeal and Review Act)
2001 (NSW) s 76; Criminal Code (Qld) s 672A; Criminal Law
Consolidation Act 1935 (SA) s 369; Criminal Code (Tas) s 419;
Criminal Procedure Act 2009 (Vic) s 327; Sentencing Act 1995 (WA) s
140. In Mallard v R (2005) 224 CLR 125, the High Court found that
under s 140 of the Sentencing Act 1995 (WA) the correct approach was
to consider the ‘whole case’. An example of a pardoning power is found
in s 672A of the Criminal Code 1899 (Qld) where, under s 672A(a), the
Attorney-General is empowered to refer the petition to the Court of
Appeal as if it were an appeal. The effect of a pardon under s 677 is to
discharge the convicted person from the consequences of the conviction.
Section 672A states:
Nothing in sections 668 to 672 shall affect the pardoning power of the Governor on
behalf of Her Majesty, but the Crown Law Officer, on the consideration of any petition
for the exercise of the pardoning power having reference to the conviction of any person
or to any sentence passed on a convicted person, may —
(a) refer the whole case to the Court, and the case shall be heard and determined by
the Court as in the case of an appeal by a person convicted; or
(b) if the Crown Law Officer desires the assistance of the Court on any point arising in
the case with a view to the determination of the petition, refer that point to the
Court for its opinion thereon, and the Court shall consider the point so referred
and furnish the Crown Law Officer with its opinion thereon accordingly.
For an example of the exercise of the royal prerogative of mercy
under s 87E(b) of the Constitution Act 1975 (Vic), see Osland v The
Secretary of the Department of Justice [2010) HCA 24. The process
that led to the petition for a pardon was outlined by the High Court in
Osland (at [1]–[2]):
[page 161]
On 2 October 1996, the appellant, Mrs Osland, was convicted in the Supreme Court of
Victoria of the murder of her husband. On 12 November 1996, she was sentenced to a
term of 14½ years imprisonment with a non-parole period of 9½ years. Applications for
leave to appeal against her conviction and sentence were dismissed by the Court of
Appeal of the Supreme Court of Victoria on 1 August 1997. An appeal to this Court was
dismissed on 10 December 1998.
On 5 July 1999, Mrs Osland petitioned the Attorney-General for Victoria seeking a
pardon in the exercise of the royal prerogative of mercy. That is a prerogative vested in
the Queen and exercisable by the Governor of Victoria, acting on the advice of the
Premier. As a matter of practice, the Premier acts on the advice of the Attorney-General.
The Attorney-General appointed a panel of three senior counsel
whose joint advice recommended that the petition should be denied.
Consequently, the Attorney-General recommended to the Premier that
the Governor be advised to deny the petition. The Governor accepted
this advice and denied the petition.
(ii) Scenario 2
6-14 There is an exception to the double jeopardy rule which permits
the Crown to apply for and secure a retrial of an acquitted person for a
serious offence if the Court of Appeal is satisfied that: (1) there is fresh
and compelling evidence against the acquitted person; and (2) it is in the
interests of justice. All Australian states, but not the Commonwealth or
the territories, have introduced similar legislation based on the Council
of Australian Governments (COAG) model of reform to the double
jeopardy rule: Crimes (Appeal and Review) Act 2001 (NSW) s 100;
Criminal Code (Qld) Ch 68; Criminal Law Consolidation Act 1935
(SA) Pt 10; Criminal Code (Tas) Ch XLIV; Criminal Procedure Act
2009 (Vic) ss 53A, 77 and 244 and Ch 7A; Criminal Appeals Act 2004
(WA) Pt 5A.
An example of the type of legislation now enacted in all Australian
states is s 678B of the Criminal Code (Qld):
(1) The Court may, on the application of the director of public prosecutions, order an
acquitted person to be retried for the offence of murder if satisfied that (a) there is
fresh and compelling evidence against the acquitted person in relation to the
offence; and (b) in all the circumstances it is in the interests of justice for the order
to be made.
‘No applications for retrial on the basis of fresh and compelling
evidence have been made in Australia’: M McMahon, ‘Retrials of
Persons Acquitted of Indictable Offences in England and Australia:
Exceptions to the Rule against Double Jeopardy’ (2014) 38 Criminal
Law Journal 159 at 182.
Examiner’s Comments
6-15 There are two scenarios to be covered. Scenario 1 deals with a
second appeal to the Court of Appeal by a convicted person, while
Scenario 2 deals with the Crown securing a second trial for the same
offence as an
[page 162]
exception to the double jeopardy rule. You are asked to identify the
relevant jurisdictions for each scenario, and the basis for a party coming
within the ambit of the legislation for either a second appeal or a second
trial.
The key to this question is ‘fresh and compelling evidence’. Such
evidence may allow a convicted person a second appeal in South
Australia and Tasmania, and force an acquitted person to undergo a
retrial in all Australian states. The respective legislation is tightly drawn.
A convicted person seeking a second appeal faces the dual hurdle of the
onus of satisfying s 353A(1) of the Criminal Law Consolidation Act
1935 (SA) and showing the proposed ground of appeal is reasonably
arguable, while the Crown in seeking a retrial must overcome the
safeguard of ‘in all the circumstances it is in the interests of justice’.
Similar legislation is to be found in s 402A of the Criminal Code 1924
(Tas).
Keep in Mind
You should take care to:
• Divide your time according to the marks available. It is common
practice in exams to display the number of marks available for
each part of a question. Here there were two scenarios to be
tackled in 20 minutes. There was no information about marks,
but where there is such information you should allocate your time
accordingly. Poor time management is a common error which
should be avoided.
• This question would be difficult to answer without a working
knowledge of the legislation. In Scenario 1 there were only two
jurisdictions to identify although other jurisdictions post-appeal
could be mentioned, while in Scenario 2 there were six
jurisdictions. Where possible, provide a case example of the
operation of the legislation, such as R v Drummond [2013]
SASCFC 135 for s 353A(1) of the Criminal Law Consolidation
Act 1935 (SA).
Sentencing questions
6-16 Before tackling the following questions, please check that you
are familiar with the following:
[page 163]
Question 5
Robin Rook broke into series of houses (six in total) on the same night, and stole high
value low volume property such as jewellery, laptops, mobile phones, purses and
wallets. While removing property from the sixth house, Robin was surprised by the male
householder, Jack. A violent struggle ensued which ended when Robin knocked Jack
senseless using the jemmy from his burglary tools. While the struggle was taking place,
the female householder, Susan, rang the police. As it happened, a police patrol car was
close by, and police officers were able to apprehend Robin after he fled the scene.
Robin, who was powerfully built, resisted arrest and it required both officers to restrain
him, but not before Robin broke the collar bone of one of the police officers with his
jemmy.
Robin was charged with burglary (five counts), aggravated robbery, and an act intended
to do grievous bodily harm or prevent arrest. Robin pleaded guilty to all the charges at
the first available opportunity. When Robin came up for sentence, the sentencing judge
noted that Robin was 35 years of age, had three prior convictions for burglary and two
for assault. For these convictions, the first when he was 17 years of age, Robin had spent
a total of 12 years in prison.
On what basis will the sentence be calculated?
Assume that the sentencing judge took the view that Robin was a violent, serial criminal
with no prospects of rehabilitation, and that deterrence and community protection were
the primary considerations in sentencing. The sentencing judge, after noting that
aggravated robbery carried a maximum sentence of life imprisonment, and describing
Robin’s offence of beating Jack senseless and confining him to a wheelchair for the rest
of his life as one of the worst type of cases of aggravated robbery, sentenced Robin to 20
years’ imprisonment with eligibility for parole after 17 years’ imprisonment. This
sentence was a concurrent sentence taking into consideration the whole ‘transaction’
on the night in question, particularly the further assault on the police officer.
Discuss the prospects of an appeal on the basis the sentence was manifestly excessive.
Time allowed: 25 mins
Answer Plan
(i) On what basis will the sentence be calculated?
(ii) The prospects of an appeal on the basis the sentence was
manifestly excessive.
[page 164]
Answer
(i) Basis on which sentence calculated
6-17 Determining the appropriate sentence is a subjective balancing
act of a number of different purposes served by the imposition of a
criminal sentence, such as deterrence and rehabilitation. Among other
things, judicial officers are guided by a historical ‘range’ of sentence for
a given offence.
The starting point is the sentencing principles set out in the relevant
statute: Crimes Act 1914 (Cth); Crimes (Sentencing) Act 2005 (ACT);
Crimes (Sentencing Procedure) Act 1999 (NSW); Sentencing Act 1995
(NT); Penalties and Sentencing Act 1992 (Qld); Criminal Law
(Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act
1991 (Vic); Sentencing Act 1995 (WA).
Here, Western Australia is used as an example: see s 6 Principles of
Sentencing of the Sentencing Act 1995 (WA) below:
(1) A sentence imposed on an offender must be commensurate with the seriousness of
the offence.
(2) The seriousness of an offence must be determined by taking into account —
(a) the statutory penalty for the offence; and
(b) the circumstances of the commission of the offence, including the vulnerability
of any victim of the offence; and
(c) any aggravating factors; and
(d) any mitigating factors.
(3) Subsection (1) does not prevent the reduction of a sentence because of —
(a) any mitigating factors; or
(b) any rule of law as to the totality of sentences.
(4) A court must not impose a sentence of imprisonment on an offender unless it
decides that —
(a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it.
(5) A court sentencing an offender must take into account any relevant guidelines in a
guideline judgment given under section 143 [Guideline judgments by Court of
Appeal].
(6) For the purpose of subsection (4), an order under section 58 [Imprisonment until
fine is paid] that a person be imprisoned is not a sentence of imprisonment.
There are three offences to which Robin has pleaded guilty: burglary
(five counts), aggravated robbery, and an act intended to do grievous
bodily harm or prevent arrest. For ease of analysis, the most serious
offence, aggravated robbery, which you are told carries a maximum
sentence of life imprisonment, will be used to work through the above
principles. The two principles cover the seriousness of the offence which
is assessed by the penalty, circumstances, and aggravating/mitigating
factors. Clearly, aggravated robbery (aggravated because Robin was
[page 165]
[page 166]
[page 167]
[page 168]
Examiner’s Comments
6-19 This is a generic answer which needs to be tailored to the
individual sentencing regime. Western Australia was used as an
example, but as the sentencing legislation in Australia is broadly similar,
all that is required to adapt the answer to a particular jurisdiction is to
apply the relevant section of the individual legislation as follows:
Crimes Act 1914 (Cth); Crimes (Sentencing) Act 2005 (ACT); Crimes
(Sentencing Procedure) Act 1999 (NSW); Sentencing Act 1995 (NT);
Penalties and Sentencing Act 1992 (Qld); Criminal Law (Sentencing)
Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1991 (Vic);
Sentencing Act 1995 (WA). For example, there may be a relevant
sentencing guideline or the legislation may statutorily overrule common
law authority. Some questions like the one above are quite short,
leaving the student to identify the alternatives without engaging in
speculation.
There are two questions to be answered. The first involves the basis
on which the sentence will be calculated. This requires the student to
look at the individual sentencing regime for their jurisdiction to
examine any particular requirements that the sentencing judge is
required to take into consideration. There are three generic issues in the
factual matrix: (1) the
[page 169]
prompt guilty plea; (2) the series of offences; and (3) Robin’s prior
offending. The second question goes to the basis of an appeal, which
must be founded on a material error of fact or law. The sentencing
judge categorised Robin’s aggravated robbery offence as of the worst
kind, which raises the proportionality principle.
The first part of the question called for an analysis of the basis on
which the sentence will be calculated. The starting point is the
sentencing principles set out in the legislation of the particular
legislation. It is then necessary to identify the relevant principles based
on the factual matrix you have been given. Clearly, the seriousness of
the offences and their circumstances are particularly significant here.
The fact that Robin has pleaded guilty at the first opportunity should
not be overlooked, nor that this is a ‘one transaction’ scenario. Robin’s
age and previous criminal record are significant for the issues of
rehabilitation and community protection. Remember that in a
hypothetical problem while some facts set the scene, the majority
provide clues as to the issues that need to be covered.
The second part of the question calls for a discussion of the prospects
of a successful appeal against sentence based on the sparse summary of
the sentencing judge’s reasons. Here the starting point is that there must
be a material error of fact or law for an appeal against sentence to be
successful. In seeking such a possible error, certain important issues
should present themselves such as the sentencing judge’s description of
the aggravated robbery as of the worst kind, which in turn flags case
law. Other issues include whether the sentence is crushing, any discount
for the early guilty plea and the final sentence being a concurrent one.
Keep in Mind
You should take care to:
• Identify the key issues with which you have to deal that are fairly
raised on the facts. A good answer will always cover all the key
issues.
• There is a fine line between dealing with legitimate alternatives
and engaging in speculation. Thus, in reviewing the sentencing
judge’s assessment it is quite appropriate on a sparse factual
matrix to raise an alternative assessment on, for example, the
prospects of rehabilitation or whether Robin’s offending was of
the worst kind. The latter would be addressed objectively with
suitable cases.
• In a real sentencing appeal, the defence will have been poring over
the reasons given by the sentencing judge in a judgment of many
pages seeking a possible source of error. In a hypothetical it is
sufficient to identify the most fruitful lines of development backed
by authority or statute.
[page 170]
Question 6
Scenario 1 Romano, who was 19 years of age, spoke poor English and suffered from an
intellectual disability. Romano was tried before a judge and jury for the crime of raping
Simone. The case hinged on the question of consent and whether Romano understood
that Simone was not consenting. Romano gave evidence on his own behalf, and
expressed his deep remorse that he had misunderstood Simone’s responses as he
claimed he never would have continued otherwise. After deliberating for several days,
the jury returned a guilty verdict. Romano has no previous convictions, and at the
sentencing hearing members of his community spoke of his good character, particularly
the manner in which he had supported his mother and younger siblings since their
arrival in Australia three years previously.
Discuss the issues raised in sentencing Romano.
Scenario 2 Albert, who was 28 years of age, lived in a rural Aboriginal community where
the use of alcohol was widespread and domestic violence prevalent. Albert had a long
history of criminal offending, commencing when he was a juvenile, particularly for
assault. Albert lived with his de facto partner, Martha, with whom he had three children
who are all presently under the age of 10 years old. Albert had been convicted of
assaulting Martha on two previous occasions, was still on parole for the most recent of
those offences and there was a Domestic Violence Order against Albert at the time he
killed Martha in a drunken rage in their home in front of their oldest child. The Crown
has accepted Albert’s plea of guilty to manslaughter.
Discuss the issues raised in sentencing Albert.
Scenario 3 Ben, Paul, Ron and Jim are members of a criminal gang who specialise in
breaking into residential premises at night. All four members were convicted of burglary
two years ago and have just been released on parole. All of the gang, except Jim, are
keen to continue their criminal activities. Jim would like to get out of the gang but is
scared of what the others might do to him. Astute police, aware that Jim is very much a
follower in the gang, interview Jim to warn him of the dangers of continuing to associate
with the gang. Jim just listens but takes a card with the policemen’s contact details.
Shortly afterwards, the gang plans their next burglary spree. Jim is the getaway driver.
During the last of the burglaries, while the others are inside, Jim phones his police
contact and tells him where all the loot will be stored. When the others return and drive
to the lock-up garage, all four of the members of the gang are arrested by waiting police.
Discuss the issues raised in sentencing Jim.
Time allowed: 30 mins
[page 171]
Answer Plan
(i) Scenario 1.
• Discuss the issues raised in sentencing Romano.
(ii) Scenario 2.
• Discuss the issues raised in sentencing Albert.
(iii) Scenario 3.
• Discuss the issues raised in sentencing Jim.
Answer
(i) Scenario 1
6-20 The sentencing issues raised for Romano relate to his youth (19
years old), his otherwise good character and his intellectual disability.
Also, given the case turned on the question of consent, Romano’s poor
command of English and his intellectual disability will be factors that
will weigh on the sentencing judge’s mind given his remorse in the
witness box.
Rape or sexual intercourse without consent (depending on the
jurisdiction) carries a maximum penalty of life imprisonment. The
Australian Bureau of Statistics Survey of Prisoners in Australia in 2012
(4517.0) shows that the median average sentence length for sexual
assault is seven years or 84 months. The Victorian Sentencing Advisory
Council’s study of sentencing trends for rape in Victoria’s higher courts
between 2007 and 2012 showed that on average the sentence for rape
was between four years and 11 months and five years and six months’
imprisonment. The most common sentence (given in 28 cases) was four
years with a non-parole period of two years. These figures have been
extracted to give a median range on which to base Romano’s sentence.
The relevant sentencing legislation to answer this question is as
follows: Crimes Act 1914 (Cth); Crimes (Sentencing) Act 2005 (ACT);
Crimes (Sentencing Procedure) Act 1999 (NSW); Sentencing Act 1995
(NT); Penalties and Sentencing Act 1992 (Qld); Criminal Law
(Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act
1991 (Vic); Sentencing Act 1995 (WA).
New South Wales will be used as an example of applying the relevant
legislation for the purpose of answering this question, and s 21A(3)(e),
(f), (i) and (j) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
sets out the relevant mitigating factors in sentencing for present
purposes:
(e) the offender does not have any record (or any significant record) of previous
convictions,
(f) the offender was a person of good character,
…
(i) the remorse shown by the offender for the offence,
…
(j) the offender was not fully aware of the consequences of his or her actions because
of the offender’s age or any disability.
[page 172]
[page 173]
(ii) Scenario 2
6-21 Albert is in the reverse situation to Romano as the factual
matrix points to a list of aggravating factors. Again using the Crimes
(Sentencing Procedure) Act 1999 (NSW), the relevant aggravating
factors subsections in s 23A(2) are listed below:
(b) the offence involved the actual or threatened use of violence,
…
(d) the offender has a record of previous convictions (particularly if the offender is
being sentenced for a serious personal violence offence and has a record of previous
convictions for serious personal violence offences)
…
(ea) the offence was committed in the presence of a child under 18 years of age,
(eb) the offence was committed in the home of the victim or any other person,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial
…
(ib) the offence involved a grave risk of death to another person or persons, (j) the
offence was committed while the offender was on conditional liberty in relation to
an offence or alleged offence.
In addition, s 23A(5AA) deals with a special rule for self-induced
intoxication:
In determining the appropriate sentence for an offence, the self-induced intoxication of
the offender at the time the offence was committed is not to be taken into account as a
mitigating factor.
Thus, on its face, Albert is looking at a sentence above the average
range for manslaughter. However, will the fact that Albert lived in a
rural Aboriginal community where the use of alcohol was widespread
and domestic violence was prevalent constitute a mitigating factor in
sentencing? The most recent High Court authority on this point is
Munda v Western Australia (2013) 249 CLR 600 at [53] where the
High Court confirmed the principle in Neal v R (1982) 149 CLR 305:
Mitigating factors must be given appropriate weight, but they must not be allowed ‘to
lead to the imposition of a penalty which is disproportionate to the gravity of the instant
offence’. It would be contrary to the principle stated by Brennan J in Neal to accept that
Aboriginal offending is to be viewed systemically as less serious than offending by
persons of other ethnicities. To accept that Aboriginal offenders are in general less
responsible for their actions than other persons would be to deny Aboriginal people their
full measure of human dignity. It would be quite inconsistent with the statement of
principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of
individual offenders by consigning them, by reason of their race and place of residence,
to a category of persons who are less capable than others of decent behaviour. Further, it
would be wrong to accept that a victim of violence by an Aboriginal offender is
[page 174]
somehow less in need, or deserving, of such protection and vindication as the criminal
law can provide.
In Munda, a case very similar to Albert’s situation, the High Court
upheld the Western Australian Court of Appeal’s decision to impose a
head sentence of seven years and nine months’ imprisonment. Given the
list of the pertinent aggravating factors in s 23A(2) above for Albert and
the authority of Munda, there is little reason to suppose that Albert
could expect a sentence any lower than seven years and nine months’
imprisonment.
(iii) Scenario 3
6-22 Jim has assisted the police in capturing the gang red-handed
with all the stolen property. Again using s 23(1) of the Crimes
(Sentencing Procedure) Act 1999 (NSW) is relevant:
A court may impose a lesser penalty than it would otherwise impose on an offender,
having regard to the degree to which the offender has assisted, or undertaken to assist,
law enforcement authorities in the prevention, detection or investigation of, or in
proceedings relating to, the offence concerned or any other offence.
Section 23(2) lists a series of matters that the court must consider in
determining whether to impose a lesser penalty, which are mainly
related to the significance and usefulness of the offender’s assistance to
the authorities and whether the offender or the offender’s family will
suffer as a result of the assistance given.
The operational sentencing implications of assistance to law
enforcement authorities and the degree of assistance involved was
discussed in TLM v State of Western Australia [2009] WASCA 106. In
TLM, reference is made (at [17]) to a number of case authorities which
have held that substantial sentence discounts, which may be as high as
two-thirds deducted from the head sentence, can be given to offenders
who co-operate with law enforcement authorities. The highest discounts
are given where valuable assistance is combined with genuine remorse
or contrition. However, irrespective of remorse, there is a clear public
interest that crime should be detected and successfully prosecuted.
Clearly, the assistance given by Jim to the law enforcement
authorities was both significant and timely, and there is a definite
possibility he may suffer harsher custodial conditions as a result. Thus,
on the authority of TLM above, Jim may expect a two-thirds deduction
from his head sentence.
Examiner’s Comments
6-23 There are three different sentencing scenarios to cover, with
each having a different focus based on the characteristics of the
offender. In Scenario 1, the focus is on Romano’s youth, poor English
(in the context of the case), intellectual disability, and otherwise good
character.
[page 175]
In Scenario 2, the focus is on Albert’s Aboriginal social background and
his long exposure to alcohol, along with his prior offending against the
victim. In Scenario 3, the focus is on Jim’s assistance to law enforcement
authorities to secure the capture of the gang. The question for
discussion is the extent to which each offender’s individual
characteristics impact on the sentencing outcome.
Any answer has to be tailored to the relevant jurisdiction. Here, New
South Wales legislation was used: Crimes (Sentencing Procedure) Act
1999 (NSW). You should combine the identification of the relevant
sections of the legislation needed to answer the particular scenario with
case law on point, preferably High Court or Court of Appeal authority.
It is also helpful to have a working knowledge of the range of sentences
handed down for particular offences in your own jurisdiction, especially
if guideline sentences have been sought by the Crown and pronounced
by the Court of Appeal.
Each character, Romano, Albert and Jim, presented with different
aspects of sentencing surrounding them, predominantly dealing with
mitigating and aggravating factors. Be sure to stay on point for each
scenario, and remember to draw a conclusion.
Keep in Mind
You should take care to:
• Manage your time carefully. Here you have three scenarios to be
answered in 30 minutes. So ensure you allocate only 10 minutes
per scenario.
• Try not to repeat yourself between scenarios. Under exam time
pressure, it is quite legitimate to refer the examiner back to a
previous answer where, for example, you may have discussed the
implications of aggravating and mitigating factors on the
sentencing outcome.
Index
A
Accused
fairly, right to be tried …. 5-10
no jury order, application for …. 5-20
represented at trial, statutory right to be …. 5-10
Appeal
conviction
against …. 6-5
options in relation to …. 6-7
“proviso”, applying the …. 6-7
Court of …. 6-1
fact, material error of …. 6-18
grounds of, availability of murder, conviction for
demonstration or parade …. 5-3
length of time before majority verdict may be returned …. 5-6
prosecutor’s closing address …. 5-4
involuntariness ground of …. 6-10
leave, requires …. 6-4
merits of …. 6-5
outcomes, differing
defences, owing to inconsistency between …. 2-19
jurisdiction, depending on …. 2-18
post-appeal process …. 6-13
right, as of …. 6-4
rules governing the appeals process …. 6-1
second …. 6-13
special leave to …. 6-10–6-11
sentencing, against …. 6-1–6-2, 6-4, 6-5
Arrest
arrested persons, rights of …. 2-11
entering premises to see Private premises
force, reasonable …. 1-15
lawfulness of …. 1-15, 1-19
power to see Police
unlawful …. 1-3
warrant, with …. 1-3, 1-12
warrantless …. 1-12–1-15
warrantless search to see Search
B
Bail
after conviction
before appeal, and …. 3-26
pending appeal …. 3-14
decision …. 3-3–3-4
grounds for refusing …. 3-5
underlying considerations of …. 3-6
forms and conditions of …. 3-7
bail conditions …. 3-10, 3-28
breath-testing …. 3-29
conduct, relating to …. 3-13
financial …. 3-11
more onerous than necessary …. 3-30
violation of …. 3-31
bail undertaking …. 3-8
cash bail …. 3-8
surety …. 3-12
judicial officers, granted by …. 3-3
legislation relating to …. 3-3
murder charge, and …. 3-25
perjury charge, and …. 3-20
refusal of …. 3-20
risk, unacceptable
defendant would commit an offence …. 3-24
defendant would fail to appear and surrender into custody …. 3-
21–3-23
C
Charge
armed robbery …. 5-8
charging decision …. 3-2, 3-16
two-tier test …. 3-2
first tier, sufficient evidence …. 3-17
second tier, public interest …. 3-18
criminal
nolle prosequi, definition …. 5-24
grievous bodily harm …. 4-24–4-25
murder
advice on bail related to …. 3-25
joining of charges …. 4-15
joining of unrelated charges to …. 4-16
unanimous verdict of a jury …. 5-7
perjury, advice on bail related to see Perjury
Confession
confessional evidence
admissibility of …. 2-4, 2-12
exclusion of …. 2-13, 6-10
involuntary …. 2-4, 6-10
induced …. 2-12–2-13
voluntary …. 2-4
Criminal negligence
law of, summing up on …. 5-13
D
Defence
automatism, sane …. 5-30
insanity, of …. 5-30
late …. 2-16
“Prasad direction”, request …. 5-25, 5-29
pre-trial and at trial defences, inconsistency in …. 2-19–2-20
self-defence, evidential burden of …. 5-21
Detention
interviewing and investigative purposes, for …. 1-4
lawfulness of …. 1-19
Domestic violence
government concern to end …. 3-18
police entry and search of premises, and …. 1-8
public concern, and …. 3-18
witnesses and …. 3-17
Double jeopardy see Offence
E
Entry and search see also Police; Private premises; Search
lawful …. 1-7
emergency, requirements in the case of …. 1-8
violence, requirements in the case of …. 1-8
preservation of life or property, for common law principle …. 1-8
Evidence
cogency of …. 6-5, 6-7
confessional see Confession
evidential burden, definition …. 5-21
self-defence …. 5-21
failure to give, comment on defendant’s …. 2-6
trial judge’s direction to the jury, nature of …. 2-7, 2-9, 2-15
illegally or improperly obtained …. 2-3
inadmissibility of …. 1-3, 1-4
police interrogation, obtained during …. 2-1
judicial discretion to exclude
Christie discretion …. 2-1
public policy discretion …. 2-1–2-4
unfairness discretion …. 2-1, 2-4
jurors assessors of …. 5-11
Prasad direction see Jury
I
Indictment
amendment of …. 4-7
committal hearing
after …. 4-2–4-3
without …. 4-9
ex officio …. 5-24
formalities of …. 4-4–4-6
indictable offence …. 4-1–4-2
prosecution of …. 4-3
trial for …. 4-10
pleas …. 4-10
joinder of counts …. 4-8
Indigenous people
questioning, statutory provisions for see Police interrogations
sentencing of aboriginal offender …. 6-21
Interpreter
absence of …. 2-14
right to an see Police interrogations
Interrogation see Police interrogations
J
Judge
“beyond reasonable doubt”, definition of …. 5-12
demonstration or parade, order of …. 5-3
self-representation, allowing accused …. 5-10
Jury
exhibits, allowing to retire with …. 5-26, 5-29
photographs …. 5-27
recorded interview and transcript …. 5-28
internet searches by jurors …. 5-11
judicial instruction to …. 5-1
juror
cause, challenge for …. 5-17
impartiality of …. 5-17
minority, attack on …. 5-18–5-19
misconduct, reporting …. 5-19
peremptory challenge …. 5-17
majority verdict see Verdict
return of …. 5-5
no jury order …. 5-20
Prasad direction …. 5-25, 5-29
role of …. 5-1
unanimous verdict see Verdict
M
Majority verdict see Verdict
O
Offence
charging decision see Charge
double jeopardy …. 4-11–4-12, 4-14, 4-22
applicability of rules …. 4-24–4-25
exemptions to rules, statutory …. 4-28, 6-14
violation of the rules …. 4-27
indictable see Indictment
person charged with, after …. 3-3
Onus of proof
discharging …. 2-5
non-insane automatism, for …. 5-30
onus of disproof …. 5-21
party bearing …. 2-2
prosecution, rests on …. 2-5, 2-7
reversal of …. 5-4
voluntariness, for …. 2-5
P
Perjury
charge
advice on bail related to …. 3-20
conviction of …. 3-17
trial for …. 4-27
Plea
guilty …. 4-10, 6-2, 6-17–6-19
acceptance of …. 4-19
when accused has not committed offence …. 4-10, 4-18
withdrawal of …. 4-20–4-21
special …. 4-25
Police
arrest, power to …. 1-1
force used, level of …. 1-3
warrant, with and without …. 1-3
enter and search, power to …. 1-1
arrest, prior to …. 1-2
consent of an occupier …. 1-14
warrant, authorised by see Warrant
interrogations see Police interrogations
investigative powers …. 1-1
lawful exercise of …. 1-5
reasonable belief see Reasonable belief
reasonable suspicion see Reasonable suspicion
Police interrogations
admission or confession, electronic
recording of …. 2-3
conduct of …. 2-1
indigenous people
Anunga Rules …. 2-1, 2-11
breaches in procedure for questioning …. 2-13
interpreter, right to an …. 2-11
waiver …. 2-11
lawyer, right to communicate with …. 2-11
questioning, provisions for …. 2-1, 2-10–2-11
interpreter, right to an …. 2-1, 2-11
lawyer, right to communicate with …. 2-1, 2-3
procedural breaches …. 2-3, 2-10
silence, right to see Silence
support person, right to communicate with …. 2-1, 2-3
suspects, safeguards to protect the rights of …. 2-2
Prasad direction see Jury
Private premises
enter and search, power to see Police
entering premises to arrest a person common law requirement …. 1-
14
exigent circumstances …. 1-14
lawfulness of remaining in …. 1-10
Proceedings
commencement of …. 3-1
waiting period before …. 3-3
Proof
evidential burden of …. 5-1
legal burden of …. 5-1
onus of see Onus of proof
standard of …. 5-1
“beyond reasonable doubt”, definition of …. 5-12
Prosecutor
closing address …. 5-4
criminal trial, roles in …. 5-1
duty to act fairly …. 5-4
no jury order, application for …. 5-20
R
Reasonable belief
circumstances supporting …. 1-9
domestic violence, and …. 1-8
meaning of …. 1-9
requirement …. 1-5
Reasonable suspicion
circumstances supporting …. 1-9
domestic violence, and …. 1-8
meaning of …. 1-9
requirement …. 1-5
warrantless arrest, and …. 1-15
S
Search
enter and
power to see Police
execution of …. 1-14
warrantless
arrest, to …. 1-13
lawfulness of …. 1-12
Self-representation
granting of …. 5-10
Sentencing
aggravating factors …. 6-21
appeals in relation to …. 6-1
calculation …. 6-5, 6-17–6-19
discounts …. 6-22
excessive, manifestly …. 6-1, 6-8, 6-18
harsh …. 6-18
inadequate, manifestly …. 6-1, 6-4, 6-8
maximum …. 6-2, 6-5, 6-17–6-18, 6-20
mitigating factors
assistance to law enforcement authorities …. 6-22
good character …. 6-20
intellectual disability …. 6-20
youth …. 6-20
options in relation to …. 6-2, 6-8
principles …. 6-2
ranges …. 6-2, 6-5
statutes …. 6-2
totality principle …. 6-17
Silence
right to …. 2-1, 2-14
inference of guilt at trial, drawing …. 2-1, 2-7, 2-16, 2-18
pre-trial …. 2-1, 2-15–2-17
trial, at …. 2-1, 2-6, 2-9, 2-15
T
Trial
fair, right of accused to …. 5-1
judge alone, by …. 5-20
jury, by …. 5-1
mode of
community standards …. 5-20
new, order …. 6-1, 6-5
participants, key …. 5-1
pre-trial
nolle prosequi, application for …. 5-24
procedures …. 5-24, 5-29
publicity …. 5-20
retrial …. 4-28, 5-6
applications for …. 6-14
summing up …. 5-1
criminal negligence, law of …. 5-13
unfair
interpreter, absence of …. 2-14
V
Verdict
alternative, substitution of …. 6-1, 6-5
majority
different jurisdictions …. 5-7–5-8
unanimous …. 5-7, 5-18
undisturbed …. 6-1
W
Warrant
arrest, and see Arrest
entry and search
authorised by …. 1-2
lawfulness of execution of …. 1-18
validity of …. 1-17
without, executed …. 1-2
general …. 1-2
conditions, subject to …. 1-2
telephone, via …. 1-20
text message, via …. 1-20
warrantless arrest see Arrest
warrantless search see Search