Will Barker (S2624467)
4031LAW Criminal Procedure Notes
Common Law Discretion to Exclude Evidence
6
ʻUnfairnessʼ discretion
6
Public policy discretion
7
Entrapment & Controlled Activities & Operations
9
Is the police activity a controlled activity or operation?
9
Will it be rejected a common law?
Search, Seizure & Identification
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Re non-statutory police powers: PPRA, ss 8, 9
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Police Powers & Responsibilities Act 2000
11
Other legislation
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Re warrants: PPRA, ss 150, 151, 156, 157, 158; Responsibilities Code*, ss 3,
4
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ISSUING OF A WARRANT
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EXECUTING A WARRANT
13
INVALID WARRANT?
14
WARRANT-LESS POWERS
14
Re powers to demand identification: PPRA, ss 40, 41
14
Re searching people: PPRA, ss 29, 30, 624, 629, 630
14
Re searching vehicles: PPRA, ss 31, 32
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Re searching public places: PPRA, s 33
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Re seizure: PPRA, ss 196
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Re offences: PPRA, ss 790, 791
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Re identification of suspects: PPRA, s 617; Responsibilities Code*, ss
45-51.
16
What is reasonable suspicion?
Arrest, Investigative Procedures and Bail
16
17
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ARREST
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Defining arrest
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Power to arrest: arrest WITHOUT a warrant
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Power to arrest: arrest WITH a warrant
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Power to arrest: use of FORCE
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DUTIES RELATING TO ARREST
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Duty to provide information
19
Duty to bring arrestee before a court (as soon as practicable):
20
RESULTS OF UNLAWFUL ARREST
20
The fluctuating lawfulness of arrest:
20
Consequences of unlawful arrest:
20
SEARCHES IN CUSTODY
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IDENTIFYING PARTICULARS
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BAIL
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Questioning and Confessions Right to Remain Silent & Powers of Interrogation
24
Confessions
24
Grounds for exclusion: Not recorded
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Grounds for exclusion: Involuntary confessions
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Safeguards for Interrogations
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Charges and Prosecution
24
29
INITIATING CRIMINAL PROCEEDINGS
29
Arrest without warrant
29
Complaint / Summons
29
Notice to Appear
29
PROSECUTORIAL DISCRETION
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Indictable offences are prosecuted by DPP
30
Plea Bargaining
30
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INDICTMENTS
30
Particularity
31
Circumstances of Aggravation
32
Joinder of charges
32
Nolle Prosequi (the means of discontinuing an indictment)
34
(No) Judicial Review of Prosecutorial Decisions
35
Stay of Proceedings 35
Committal Hearings and Trials 37
Jurisdiction for Criminal Proceedings
37
Committal Processes
39
Disclosure obligations on the Crown
40
Disclosure obligations on the accused
42
Trial Process in Higher Courts
43
ʻNo caseʼ submission
43
ʻNo Juryʼ orders / judge-only trials ::: QCC ss 614-615E
43
Fair Trial and Abuse of Process
1. Trial Delay
45
2. Pre-trial Publicity
46
3. Judicial and Prosecutorial Impartiality
47
4. Oppressive Prosecution / Improper Purpose
47
Remedies for unfairness
48
5. Legal Representation
49
Quality of legal representation
50
Lawyer incompetence (this can make a trial unfair)
51
6. Other fairness rules
52
Juries & Verdicts
45
53
Juries
53
Verdicts generally
53
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Alternative verdicts
53
Double jeapordy
54
Exceptions to double jeopardy
56
Appeals against conviction
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Appeal: verdict is unreasonable or unsupportable
57
Appeal: Error of Law
58
Appeal: miscarriages
58
Appeal: miscarriages: Conviction of someone possibly innocent
59
Appeals: Miscarriages: conviction via unfair trial
60
The Proviso – s 668E(1A)
61
Powers of Court of Appeal
62
Appeals by Attorney-General
62
Appeals in summary cases
62
Ethics
1. Defending a person believed to be guilty
63
63
2. If the defence lawyer believes the client or another defence witness has
lied
64
3. If the defence lawyer is aware of an error of law or fact that favours the
defence
64
4. Where a lawyer and the defendant disagree on the conduct of the
case
64
5. The extent of the duty to zealously promote the clientʼs interests
65
The Crime and Misconduct Commission (CMC)
65
The Frank Button case
65
The Andrew Mallard case
65
Wrongful Convictions
66
Defining wrongful conviction
66
Causes of wrongful convictions
66
Faulty scientific evidence
66
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International wrongful conviction
66
Australian wrongful convictions
67
Difficulties for Innocent but Convicted People in Queensland re appeal67
Petitions for Pardon
68
Section 672A QCC
68
Pardon Provision
68
Recent Reform in Queensland
69
International Developments: Options for Australia
69
Penalties & Sentencing
70
Sentencing purposes
70
Factors relevant to sentencing [NOTE - need to expand this when writing
notes]
71
Penalties
74
Indefinite Detention
75
Appeals against sentence
76
Alternative forms of justice 77
Restorative Justice
77
Therapeutic Jurisprudence
77
Drug Court
77
Murri Court
78
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Common Law Discretion to Exclude Evidence
NB statutory regimes govern the admission of evidence respecting unrecorded
confessions and admissions.
The case for exclusion of evidence by the discretionary exclusions must be made by the
accused, with the exception of involuntary confessions, where the prosecution must prove
the voluntariness of a confession once the matter is in issue.
ʻUnfairnessʼ discretion
This is primarily used to reject unreliable confessions. This can happen where:
1. The confession is of poor probative valued, e.g. it is unreliable obtained such as where
the interrogation was too harsh.
2. Procedural rights are breach, e.g. in Foster the accused was unlawfully detained
when his statement was taken (Indigenous person burning down school case)
The unfairness discretion is provided for by s130 EAQ but the test for it is all at common
law.
At common law the test is whether in light of the circumstances, it could impair the
fairness of the accusedʼs trial to use the statement. There are two main heads of
unfairness:
1. Compromised reliability of evidence would also be significant: R v Swaffield;
Pavic v R (1998) 192 CLR 159.
• Consider: 1) What degree of risk is acceptable? 2) Is it ever fair to use an
unreliable confession?
2. Protects against unfairness of forensic disadvantage flowing from abuse of
rights (e.g., breach of right to silence)
• Ask: “Had the police conducted the investigation properly, would the
confession have been made at all?” If not, it is probably unfair to admit the
confession into evidence.
• The exception `is when considering violation of procedural rights. The
seriousness of the violation may have to be balanced against the seriousness
of the offence in issue: Batchelor [2003].
Because these are discretions, the precedent value is in that it tells you what the relevant
factors are in exercising the discretion. (I.e. it is not like a mere normal precedent.)
R v Swaffield; Pavic v R (1998) 192 CLR 159.
• Swaffield was a Qld case, he burnt down some boating club or something. Swaffield
refused to talk. Police pretended to be a criminal and befriended Swaffield and he
confessed to that ʻfriendʼ.
• Pavic was a murder case from a different state. Police questioned a friend of Pavic.
They got the friend to wear a wire and talk to Pavic to get damning evidence and that
actually happened.
• Majority is Toohey, Gaudron & Gummow JJ.
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• Purpose of the discretion: to protect rights of accused – eg, to fair trial. BUT it is not
meant just to give the accused a sporting chance of getting off.
• Trickery doesnʼt necessarily make evidence unfair.
• Therefore, the kind of ʻunfairnessʼ the judges are looking for is something which
tramples the rights of the accused. The two main heads for unfairness:
1. Compromised reliability of evidence would also be significant
2. Protects against unfairness of forensic disadvantage flowing from abuse of
rights (e.g., breach of right to silence)
R v Belford & Bound [2011] QCA 43
• This concerned a murder at Warrick. They put Bound in the watch house. They had also
put two undercover police operatives in the cell. He had not yet invoked his right to
silence. The police were pretty certain he was going to though. This therefore was
basically a deliberate attempt to bypass his right to silent.
• Trial judge decided to admit the evidence.
• In CoA there were two decisions. The first is the dissent and they said it was
inadmissible. The majority did admit it. They considered both Tofilau (decided in 2007)
and Swaffield (1998). They reconciled these cases by saying Tofilau does not concern a
discretion, it is concerned with voluntariness. Therefore they are distinct.
• They distinguished Swaffield by saying that in that case the accused had already
invoked their right to silence, but that had not yet happened in this case. They also said
that the police were not intentionally misleading the accused. They also said that c.f.
Swaffield which was about arson, the fact that this is a much more serious crime
(murder) means the evidence should be admitted.
Foster v R (1993) 113 ALR 1
• Another arson case, a high school in Narooma. A 21yo Aboriginal man was arrested.
There was no basis of reasonable suspicion. He was repeatedly asked about the fire but
eventually he made a signed confession. The judge let the confession in at trial and he
was convicted. He appealed against the conviction.
• HC held relevant factors included:
• unlawful arrest / detention, no lawyer, support person
• threatened with bashing (maybe)
• police would not release him until he signed confession
• HC emphasised vulnerable position of semi-literate viz police – overwhelming,
overpowering
• (public policy discretion could also have been applied)
• Held that evidence can be excluded on the grounds of unfairness even if it is lawfully
obtained.
Public policy discretion
The point of the public policy discretion is to protect the integrity of the justice processes.
Usually the public policy discretion is called into play when there has been unlawful
conduct on the part of the police in collecting evidence.
When exercising discretion re public policy, this depends on:
• the degree of criminality VS the gravity / nature seriousness and effect of the police
misconduct. The worse the criminality, the more likely the evidence is to be admitted; the
worse the police misconduct, the more likely the evidence is to be excluded. Ridgeway.
• Was the police misconduct “calculated”? Ridgeway.
• Was the police misconduct encouraged or tolerated by superiors? If so, this will be
further grounds for not admitting the evidence. Ridgeway.
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Burden to argue the use of discretions lies with the accused.
Note EAQ – s 98
• Applies only to evidence admitted under Part 6 (this applies to statements, i.e.
essentially exceptions to the hearsay rule)
• Court will reject evidence if “expedient in interests of justice”
The public policy discretion is similar to the unfairness discretion. BUT this discretion
“transcends any question of unfairness to the particular accused. In their forefront is the
threat which calculated disregard of the law by those empowered to enforce it represents
to the legal structure of our society and the integrity of the administration of criminal
justice.”: Pollard v R (1992) 176 CLR 177 as per Deane J.
Need to engage in a balancing test: Bunning v Cross (1977) 141 CLR 54:
• EXCLUSIONARY factors
• nature of the wrongdoing on the part of the authorities, e.g. breaches of safeguards to
protect rights & liberties
• whether wrongdoing was deliberate or reckless or merely inadvertent
• relative ease with which the police might have complied with the law
• deliberate cutting of corners will tend in favour of the discretion being exercised, as
will systemic breaches or breaches tacitly condoned by senior police.
• legislative intention to tightly constrain the conduct of police in relation to any powers
being unlawfully exercised.
• ADMISSION factors
• nature and seriousness of the alleged offending conduct
• public interest in bringing guilty offenders to justice
• if the police breach was merely inadvertent, the judge should consider whether the
illegality affects the reliability / cogency of the evidence; high levels of cogency will
favour admission of the evidence.
R v Ireland (1970) 126 CLR 321
• Woman publican found stabbed to death in pub with a knife with a broken handle still in
body. The police found Irelandʼs heel prints in blood and also cigarette buts from the type
of cigarettes he smoked. Ireland had his handsʼ photographed. Then a doctor examined
his hands. This was relevant re the broken knife handle.
• But the photographing & medical examination of hands was unlawful.
• Barwick CJ said evidence was inadmissible because police asserted they had power
(ʻyou need to have hand photos takenʼ) they did not have. Also did not fulfil the
conditions to organise a doctor to examine an accused.
• Requires balancing 2 competing public interests:
1. need to convict criminals
2. public interest in protecting individuals from unlawful treatment
NOTE: It is improbable that this case would be decided the same way now because in that
case the guy was a murderer and most other judges would be more likely not to let him get
away.
Bunning v Cross (1977) 141 CLR 54
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• Concerned a drink driving offence. Driver driving erratically and pulled over by police.
Driver admitted had had a few drinks and so police took him to station for a breath test.
Driver seemed to comply with policeman taking him to station. The problem is that the
way the legislation was drafted is that in order to invoke the legal power to breath test a
person at a station, you first need to do a roadside breathtest. This is despite the fact the
driver had admitted to drinking. This is basically just an example of bad drafting. The trial
judge (magistrate) rejected the breathe test taken at the station. There was an appeal
which made it to the High Court. HC held the magistrate had used the incorrect
evidence. HC held it was not correct to exercise the discretion in that instance.
• They held it was not inadmissible in principle, but could have been by discretion.
• Held: unlawfully obtained evidence is admissible but need to consider public policy
discretion. This requires balancing 2 competing public interests:
1. need to convict criminals
2. undesirable effect of tacit judicial approval of unlawful conduct by law enforcement
officers
• Fairness to accused is not the focus – instead, high public policy
Entrapment & Controlled Activities & Operations
Entrapment describes cases where the police or their agents improperly induce or
facilitate offences for the purpose of prosecuting them. Evidence of an offence brought
about by improper entrapment is liable to be excluded.
Is the police activity a controlled activity or operation?
Evidence obtained as a result of a controlled operation will not be inadmissible on the
ground that it was obtained unlawfully (as long as validly authorised under the controller
operation provisions: PPRA ss 226, 230(6).
Controlled activities involve one or more meetings with a single person: s224(1)(b).
• The purpose must be to obtain evidence of the commission of a ʻcontrolled activity
offenceʼ: s224(1)(a). This is one which is punishable by seven or more yearʼs
imprisonment or which is specifically mentioned in Sch 2 or Sch 5.
• ʻControlled activitiesʼ may be conducted by police officers with the authorisation of
superiors of the rank of inspector or above: s224(2).
• The officer conducting the activity consider it ʻreasonably necessaryʼ to obtain the
evidence: s224(1).
• The senior officer who authorises the activity must consider it ʻappropriate in the
particular circumstancesʼ, having regard to ʻthe nature or extent of the relevant offence:
s224(4).
• An authorisation must be written and must specify the activity authorised: s224(3) +
s224(5) (a).
• The activity must not be for more than 7 days: s224(5)(b).
Controlled operations are governed by a more elaborate scheme. They can involve ongoing operations involving interaction over a period of time and with a number of people.
• Purpose must be to gather evidence of a ʻrelevant offenceʼ: s224(1)(a). This is one which
is punishable by seven or more years imprisonment or which is specifically mentioned in
Sch 2.
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• Usually these will be conducted by policy officers but, if impractical, approval can be
given for other persons: s244(1)(h). Any participant must be appropriately trained:
s244(1)(i).
• These are subject to a two-tiered control scheme which has a relatively complex
approval process.
• The application must be written (unless there are urgent circumstances), it must identify
the personnel to be involved and the criminal activity in relation to which evidence is
sought, and the controlled conduct in which a participant will be required to engage
(described in general terms for a law enforcement officer, in precise terms for a civilian):
ss239(4)-(5), s245.
• A participant in a controlled operation is generally protected from criminal responsibility:
s258(1)(a).
• The conduct must not be intended to induce a person to commit an offence that the
person would not otherwise have intended to commit: s258(1)(b).
• The conduct must not be likely to cause death or serious injury to any person or be likely
to involve a sexual offence: s258(3).
Will it be rejected a common law?
When a regime of controlled operations/activities is available, almost all unauthorised
participation in offences for the purpose of obtaining evidence will be improper. Therefore,
it will probably invoke the discretion to exclude it at common law. There is an exception in
the PPRA s230(3) to the effect that it is not intended ʻto affect the investigation of minor
matters or investigative activities that, by their nature, can not be planned.ʼ
Section 10 PPRA: Judicial discretions preserved.
At common law evidence gained by entrapment may be excluded by the ʻpublic policyʼ
discretion: Ridgeway. (importation of heroin case)
Relevant factors:
• Did the police conduct simply induce the offence or did the police conduct amount to
the principal offence, with the offence charged against the accused being ancillary to it,
or the police conduct is part of the offence charged? Ridgeways. The second category
should nearly always result in the exclusion of evidence, whereas evidence should not
be excluded in the first category apart from in exceptional cases where the illegality or
impropriety is ʻcalculatedʼ or ʻentrenchedʼ.
• Swift v R (1999) was a case of official corruption in which an undercover operative
offered to pay a detective for protection for certain drug activities. It was held that this is
induced of the first category (and hence evidence would be admissible), and in any case
if you want to catch someone taking a bribe the only way to do it is to offer them a bribe.
In other words, this is the only means by which one can gain evidence in this scenario.
• DʼArrigo v R [1994] and Stead v R [1994] are two contrasting cases based on a car
stealing racket where illegality was committed by a police agent in gaining evidence. In
DʼArrigo the evidence was not admitted, but it was in Stead. While these decisions would
appear to conflict, one possible difference is that in Stead the accused had a prior history
of involvement in these kinds of activities, where as the accused in the other case did
not.
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