(1) Burden of Proof
- Default Position: Prosecution must prove everything beyond reasonable doubt (Woolmington Principle,
accepted by HC in Barlow)
- Woolmington, Mullen
1. Prosecution carries the evidential onus with respect to the elements of the criminal offence
o Must present evidence of the elements of the offence.
o Note some exceptions…
o Prosecution carries the persuasive onus (or ‘legal burden’)
2. must prove each element of the offence is established to a certain standard- beyond reasonable doubt.
3. must disprove defences beyond a reasonable doubt.
o Need not disprove all defences, just those that are raised on the evidence (Yousseff)
o Even if accused doesn’t plead (credibility issues), a defence can still be raised on the evidence (Falls)
- Reasonable Doubt
o Bench book direction: ‘A reasonable doubt is such as you, the jury, consider to be reasonable on a
consideration of the evidence. It is therefore for you and each of you whether you have a doubt that
you consider reasonable. If at the end of your deliberations you as reasonable persons, are in doubt
about the guilt of the defendant, the charge has not been proved beyond a reasonable doubt’.
o means what it says (Punji)
o and should not be over clarified to the jury – e.g. “absolute certainty” is innapropriate (Gonclaves)
o avoid phrases other than “beyond reasonable doubt” (Dawson)
o phrase not to be illustrated or explained – “reasonable = not fanciful” is inappropriate (Wilson,
Tchorz & Young)
o a sufficient misdirection is grounds for appeal (Green)
o a small error may be enough (Robinson)
o though benchbook definition not gospel, not enough to appeal if not followed (Clarke)
- Defendant’s burden
o has an evidential burden to at least raise evidence to support any defences they seek to rely on
(Youseff)
o on the ‘facts most favourable to the accused’ (Stingel, Muratovic)
o must be sufficient basis for the defence (Menniti)
o Defences May also arise indirectly – judge has obligation to put any possible defences to jury
(Buttigeig)
o Defences may be raised on prosecution evidence (He Kaw The)
o Contradictory defences not raised by accused but raised on evidence must be directed by judge
(Stingel, Stevens, Fingelton)
o prosecution must then disprove defences beyond reasonable doubt (Woolmington)
- Where there are presumptions of law (R v F) or fact (Shepherd), there is a reverse onus to rebut the
presumptions on the balance of probabilities e.g. presumption of sanity (26 QCC)
- Onus CAN be modified by specific statutory wording for defences – “it is a defence to prove” (eg. 304(7)
Provocation) or presumptions (129(1)(c) Drugs Misuse Act – possession on premises) – in which case the
accused must prove that defence or fact on the balance of probabilities (Carr-Briant) – though the
prosecution need disprove beyond reasonable doubt (Falconer)
- Special Exception: Location (ie jurisdiction)(QCC 12) only needs to be proven on the balance of probabilities
(Thompson)
(2) Reasonable
- CJC – Report on a Review of Police Powers in QLD:
o “reasonable” imports an objective standard
o When making inquiries, PO not constrained by rules of evidence
o Can take into account anonymous tipoffs etc, but it must be reasonable to rely on that information
o In some circumstances the PO should verify info before acting on it
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(2) Reasonable suspicion
- The facts which can reasonably ground a suspicion may be quite insufficient
reasonably to ground a belief yet some factual basis for the suspicion must be shown (George v Rockett)
- A suspicion that something exists is more than mere idle wondering whether it exists or not; it is a positive
feeling of apprehension or mistrust amounting to a slight opinion (Queensland Bacon P/L v Rees)
- Just because the suspicion comes to nothing, doesn’t mean it was unreasonable (Dobbs v Ward)
- Something more than mere imagination or conjecture
- The suspicion of a reasonable person warranted by facts from which inferences can be drawn, but falling
short of legal proof
- Behaviour of the person may give rise to suspicion
- LRCWA report – Police Act Offences Final Report
(2) Reasonably necessary
- a proportional, appropriate, and adapted response (Thomas v Mowbray)
(2) General Investigation
- Can stay for a ‘reasonable’ time in a place to make inquiries/investigate (19(3) PPRA) or serve documents
(19(4) PPRA)
- Place does not include dwelling (19(5) PPRA) or private place for which warrant is needed (19(2) PPRA)
- Reasonable time depends on circumstances (20(1) PPRA), or time reasonably necessary to ask questions
(20(2)(a) PPRA), make a reasonable observation (20(2)(b) PPRA), or serve a document (20(2)(c) PPRA)
(2) Search without Warrant
The Person
- Can stop, detain and search a person and anything in their possession without a warrant if reasonable
suspicion that prescribed circumstances exist (29(1) PPRA):
o The person possesses (30(a) PPRA):
 Weapon, knife, explosive, or prohibited items (i)
 Unlawful dangerous drug (ii)
 Stolen (iii), unlawfully obtained (iv), tainted (v) property
 Evidence of commission of prescribed offences (vii-ix)
 An antique firearm they shouldn’t be using (30(b) PPRA)
 Something that could be used for housebreaking, stealing a vehicle or administering a
dangerous drug (30(c) PPRA)
 Something intended for harm of self or others (30(d) PPRA)
o The person may have contravened/ committed offences against:
 The Casino Control Act (30(e) PPRA)
 The Racing Act or Corrective Services Act (30(f) PPRA)
Vehicle
- Can stop (a), detain (b) and search a vehicle without a warrant if reasonable suspicion that prescribed
circumstances exist (31(1) PPRA):
o That the following may be in the vehicle (32 PPRA)
 Weapon/ explosive/ prohibited item (a)
 Antique firearm that person shouldn’t use (b)
 Unlawful dangerous drug (c)
 Stolen (d), unlawfully obtained (e) property
 Thing intended for housebreaking, stealing a vehicle or administration of dangerous drug (f),
or threatening security of a prisoner (h), or causing harm to self or others (m)
 Evidence of prescribed offences (g) or (k) or (l)
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Or if reasonable suspicion that:
o Vehicle being used unlawfully (31(2)(a) PPRA)
o Person in vehicle may be arrested (31(2)(b) PPRA)
Public Place
- Can enter public places and stay for time reasonably necessary (33(1)(a) to:
o Search for evidence of commission of offence (b)
o Seize people or things reasonably suspected to be evidence (c)
o Photograph things reasonably suspected to be evidence (d)
o Dig up land (e)
o Open locked things (f)
- Private property ordinarily open to the public requires consent or warrant (33(2) PPRA)
(2) Search Warrants
- Can apply for search warrant to justice/ magistrate/ Supreme Court judge to enter/search and obtain
evidence (150(1) PPRA) if reasonable grounds exist for suspecting evidence is there now or within next 72
hours (151)
- The warrant ends 7 days after it is issued (155(1) PPRA), or if issued for evidence to be at place within 72
hours, 72 hours after issue (155(2) PPRA) or specified date and time (156(1)(e) PPRA)
- Must be sworn and state the grounds on which the warrant is sought (150(5)(a) PPRA)
- Must state (156(1) PPRA):
o That PO to exercise powers (a)
o Brief particulars of the offence/ forfeiture proceeding/ confiscation activity for which the warrant is
issued (b)
 This is only to ‘set bounds to the area of search’ – not invalid even if offence doesn’t exist
(NSW v Corbett)
- PO obtained warrant to search for firearms belonging to C on suspicion of an offence
under firearms legislation that was no longer in force
- The statement of the offence need not be made with the precision of an indictment
o Evidence to be seized under warrant (c)
o Night time hours when the place may be entered (d)
o Day and time of ending (e)
- Broad search power within place stated on warrant (157), but a copy must be shown to the occupier if
present (158(1)(a)) or left behind (158(1)(b))
- Generally, search warrant requirements should be interpreted strictly in order to balance the need for an
effective justice system with protection against arbitrary invasions of individual privacy and property
(George v Rockett)
- But there is also an interest in public safety – if there is excessive insistence on the correctness of every
detail, the balance could be struck too far in favour of the individual (Wright v QLD Police Service)
(2) Post-search approval
- Can conduct a search with search warrant powers (except structural damage 160(3) PPRA) to prevent loss of
evidence if PO reasonably suspects that evidence of an indictable (or other listed 159) offence (159(a) PPRA)
exists and may be concealed or destroyed unless place is immediately entered and searched (160(1))
- Must apply for post search approval as soon as is reasonably practicable after exercising powers (161) under
s160
- Post-search approval only given where either reasonable suspicion was held for exercising the powers and
reasonable likelihood that evidence would be concealed or destroyed (162(1)(a)); or it is in the public
interest having regard to the nature of the evidence found (b).
- Can appeal against refusal to grant post-search approval (163)
(2) Name & Address Power
- General right to silence (397) limited only by name & address power
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Can request name and address (40) under prescribed circumstances (41) – failure
to do so is a contravention - an offense under (791) unless not relevant (40(3)).
o Committing offence (41(a))
o Reasonable suspicion they have committed an offence (41(b))
o Reasonable suspicion they could help investigate an indictable offence (41(j))
A person will be charged with the s791 offence and then have to rely on s40 as a defence, so there is a
reverse onus – D must prove the s40 defence on the balance of probabilities – “Unless the person has a
reasonable excuse (s791(2) PPRA)
(2) Arrest
- Arrest is the deprivation of an individual’s freedom (Williams v The Queen)
- Unlawful detention may result in civil or criminal action in relation to assault or false imprisonment (NSW v
Delly), or evidence resulting from the arrest may be excluded (R v Hardy)
- Words may be sufficient to constitute an arrest (Delit v Small) but they are not always necessary – could just
be physical restraint (Alderson v Booth)
- The lawfulness of arrest may fluctuate (Michaels v The Queen, Norton v The Queen)
- Arrest is still lawful even if suspicion does not eventuate (Ghani v Jones) or PO’s suspicion founded on
mistake of fact or law (Coleman v Power)
- PO may enter a place to arrest a person (21)
- Can arrest without a warrant an adult who PO reasonably suspects has committed an offence (365(1)) if it is
reasonably necessary to:
o Prevent continuation/repetition of an offense (365(1)(a))
o Establish identity (365(1)(b))
o Ensure appearance before court (365(1)(c))
o Obtain evidence (365(1)(d))
o Prevent harassment of a potential witness (365(1)(e))
o Prevent fabrication of evidence (365(1)(f))
o Preserve safety & welfare of any person (365(1)(g))
o Prevent person from fleeing police/scene of crime (365(1)(h))
o Because of the nature & seriousness of the offence (365(1)(k))
o Questioning re an indictable offence that is being committed (365(2))
- Can arrest without warrant someone reasonably suspected to be escaping from lawful custody (366)
- Can arrest if reasonably suspects that breaching bail conditions (367)
- Can arrest a person who has been given an NTA if reasonable suspicion that they are interfering with
witnesses or likely to fail to appear (368)
- Can arrest with a warrant (369) issued under (370-1) for an indictable offence (370(4)(a)) or where summons
or NTA likely ineffective (370(4)(b)).
- Arrest warrant may be issued if there are reasonable grounds for suspecting the commission of indictable
offence or that summons or NTA would be ineffective (371)
- Warrant must identify applicant, offence committed, and accused – if sufficient for indictment, sufficient for
arrest warrant (372)
(2) Discontinuing arrest
- If arrest is discontinued the charge is also dropped (375)
- Arrest must be discontinued at earliest reasonable opportunity if suspicion vanishes (376(1)), or there is not
enough evidence to charge (376(3)) or the reason for arresting ceases to exist and other means become
more appropriate (377(2)) – an infringement notice or summons and NTA; or if the PO reasonably considers
it is more appropriate to deal with the offender other than by charging (377(4))
- After the PO takes the public drunk to a safe place, they must release them at the earliest reasonable
opportunity (378(2))
- Special cases for discontinuing arrest for or minor drugs offences(379)
- If arrested and released, CANNOT be rearrested unless new evidence (381)
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(2) Alternatives to Arrest
- Notice to appear (382) if reasonable suspicion (382(2)(a)) stating general
particulars – what, when, where committed (386); including name, offence, age at time of offence
(adult/child) and time/place to appear (384(1)) at least 14 days later (384(3)(a)) unless a child, in which case
soon as practicable (384(3)(b))
- An NTA is equivalent to a complaint and summons (388)
- Can either hear in absence (389(1)(a) or order immediate arrest warrant (389(1)(b) if fail to appear at that
time (389) unless notice not properly served (390)
- Notice to appear: No formal charge (Coleman v Power); Sets out details of offence and of court appearance;
Where arrest is not reasonably necessary
- Complaint and summons (more unusual): Formal charge; Cumbersome and time consuming; Police make
written complaint and justice may issue summons requiring offender to come before court (53-54 Justices
Act)
- Direction to move on may be issued if reasonable in circumstances (48)
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-
Move-on powers – a police officer can ask a person in a public place to move on if the officer reasonably
suspects that the person has been “(a) causing anxiety to a person entering at or leaving the place; (b)
interfering with trade or business at the place; (c) disrupting the peace and orderly conduct” (ss44-49 PPRA);
power should only be exercised if it is reasonably necessary for public safety, public order or the protection
of rights and freedoms of other persons (s48 PPRA)
Move on powers – ss44-49
o Reasonably necessary for the interest of public safety/public order/protection of others for a person
to move on from a public or prescribed place
o Need to give reasons for order: Rowe v Kemper
(2) Effects of Arrest
- Must advise person they’re under arrest and the offense they are arrested for as soon as reasonably
practicable (391(1)) & notify parents if arresting/NTA child (392(1))
- Must release or bring before court as soon as possible (393(1)) – cannot delay this to interview/interrogate
suspect once arrested, and doing so jeopardises admissibility of any evidence so obtained (Williams v The
Queen)
- Unlawful detention or delay in taking someone before a court could result in civil action (Michaels v The
Queen)
- Williams v The Queen
o When is reasonably practicable is a question of fact
o It will depend on the time, place and conditions under which the arrest was made
o Consider when and where a justice could be found, whether PO’s and transport were available and
how long the necessary paperwork could be completed
o A person’s liberty is an elemental right that is jealously safeguarded
- Must give name/rank/station of arresting officer when released (391(3))
- If received in custody, must take before court as soon as reasonably practicable or grant bail (394)
(2) Questioning of accused (398 – 413)
- Accused has a right to silence (397) that cannot be used against them as evidence of guilt in court (Petty &
Maiden v R)
- Silence should not be interpreted as anything other than a person exercising their right to silence – there are
number of reasons for silence (not just guilt) – shock, upset, confusion, scared, suspicion of the police,
protecting others, unable to explain their defence, their lawyer has told them to be quiet (Swaffield)
- Application of requirements for police questioning only applies when under arrest or in custody (398)
(Kingston)
Time limits
- May detain for a reasonable time (403(1)) or up to 8 hours (403(2)) for questioning after arresting for the
indictable offence
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o
-
May only question for max 4 hours of those 8 – time outs required
(403(4))
o 8 hours starts from time of arrest (403(5)(a))
o Time taken must be ‘reasonable’ – but no longer than 8 hours (404) – consider (404(1)):
(a) whether detention necessary for investigation
(b) number of indictable offences under investigation
(c) seriousness/ complexity of offences
(d) willingness to participate
(e) age, capacity and condition (physical and mental)
(f) time spent questioning before arrest
(g) need to delay for time out
o CAN be extended under 405-9 by magistrate/justice if necessary
Even an additional arrest cannot permit more than 4 out of 24 hours (410)
(2) Safeguards for Indictable Offenses (414-441)
- Only applies for indictable offenses (414) when person is being questioned as a suspect (415) (not while
conducting general investigations – Kingston)
Recording
- Police must caution about right to silence before questioning (431 PPRA) in a way substantially complying
with (PPR Regulation – Sch 10 Responsibilities code, 37):
o 'Before I ask you any questions I must tell you that you have the right to remain silent. This means
you do not have to say anything, answer any question or make any statement unless you wish to do
so. However, if you do say something or make a statement, it may later be used as evidence. Do you
understand?
o And may further explain the caution/ take steps to verify the person’s understanding (37(2-3))
o 2 limbs: suspect doesn’t have to do/say anything, anything done/said to be recorded and used in
evidence (Marshall v The Queen)
- Must electronically record everything, inc cautions, if reasonably practicable (435-6)
o Confessions only admissible if recorded or in writing (436(3),437), though court has discretion to
admit them regardless if satisfied that admission is in the interests of justice (439)
o Written confessions must also be read and recorded (437(7))
o Copies must be made available to accused within 7 (audio) or 14 days (video) (438)
- Problems with unrecorded evidence:
o Driscoll v The Queen: It is very common for an accused person to deny that he made an oral
confession which police witnesses swear that he has made. Police may fabricate unrecorded
confessions. It is thus up to the judge’s discretion as to whether they include it or not.
o Kelly v The Queen: Disputes can turn on misunderstanding, misrecollection, coercion or oppression.
o McKinney v The Queen: Accused argued that the police fabricated records of interview, and they
only signed the interviews as the police had overborne them. Once accepted that an interview
record may be fabricated, it is accepted that the atmosphere which allows for its fabrication may
also be conducive to the suspect signing a false document. Due to this the majority laid down a ‘rule
of practice of general application’ – where there is uncorroborated and disputed police evidence of
confessional statements, and reliable/ accurate audiovisual recording is available, a McKinney
warning must be given depending on the circumstances of the case: direction to doubt the
legitimacy of the evidence
- Unrecorded evidence unlikely to be admitted to trial (Nicholls; Coates made “confession” during break that
was never revisited afterwards – no excuse for not getting it recorded) unless in interests of justice (439),
and even if it is, should be accompanied by a McKinney warning that it is uncorroborated evidence
(McKinney)
o Non-recording accepted for practicability in emergency situations (Batchelor – heat of the moment,
police negotiator, an unrecorded set of confessions – this was determined as not practicable to be
recorded - hostage in rural area case)
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o
o
If not recorded, should be written down and read back under 437 (Smith Smith a ‘relevant person’, PO had recorder available, evidence only
recorded in written form months later: not in the interests of justice – not admissible under 439)
Uncommon for courts to allow unrecorded confessions on interests of justice (McMillan)
Safeguards
- Cannot obtain confession by threat/promise (416)
- Must inform suspect they can have a friend/relative/lawyer present (418(1)) and delay questioning for a
reasonable time to contact (418(2)) and await arrival (418(3)) – but unlikely to delay longer than 2 hours
unless special circumstances (418(6))
- Need not provide access to friend/lawyer if reasonable suspicion it is likely to result in accomplice/accessory
being contact (441)
- If present, must let them speak with friend/lawyer if asked (419(1)) and provide as much privacy as
practicable if talking with lawyer (419(1)(b), (but very low threshold –Barchard) and let them take advice
from friend/lawyer during questioning (419(2)) but may exclude if unreasonable interference (419(3)) as
defined in (424)
- Keeping lawyer from interrogation casts serious doubt on any confessions. Police must not obstruct access
to a lawyer, but evidence won’t always be excluded because of this – a matter of judicial discretion (Driscoll)
- Must also contact legal aid as soon as reasonably practicable if reasonable suspicion that suspect for
questioning is ATSI (420), unless PO reasonably suspects that the person is not at a disadvantage because of
education and understanding levels (420(3), R v Sailor)
- PO must not question an ATSI without having spoken to support person/ without support person present
(420(4)) but may exclude if unreasonable interference (420(6))
- If officer suspects person is a child, must allow them private conversation with and presence of support
person (421(2)) other than the victim of offence (421(3))
- Similar limitations apply to the mentally impaired (422)
- Must delay questioning of apparently intoxicated persons (423(1)) until reasonably satisfied they understand
rights and can decide whether to answer questions (423(2)) – merely being affected by alcohol sufficient (R v
LR)
- Must warn support persons of unreasonable interference (defined in 424) before excluding them (425) and
advise accused they can seek another if excluded (426)
- Must provide interpreter and delay questioning (433(2)) if officer reasonably suspects the suspect can’t
fluently communicate in English for any reason (433(1))
(2) Custodial Searches (Schmidt – unlawful arrest/unnecessary strip searches)
- Only permitted if lawfully arrested (442) (Courtney v Thompson)
- Can search/re-search (443(1)), seize evidence (443(2)) and take items (443(3))
- Must record any cautions/information given if practicable (435)
- Schmidt v Argent: Exposed lady, did not let her change, strip searched too many times, for unpaid fines.
(2) General Search Rules (Schmidt – unlawful arrest/unnecessary strip searches)
- Must cause minimum embarrassment (624(1)(a)), take reasonable care to protect the dignity of the person
(624(1)(b)), restrict to outer clothing unless immediately necessary (624(1)(c)), and conduct detailed
searches in private unless immediately necessary (624(1)(d))
- Can only detain for as long as reasonably necessary (626)
- Searcher must be same gender or doctor unless immediate necessity (624(2))
- Authority to relocate to private room for detailed search under (625), to remove any/all clothing under (629)
- Must take reasonably practicable steps to warn/ask for cooperation (630(1))
- Must either prevent video surveillance of searches (632(1)) or turn off monitor (632(2)) and limit viewing of
recordings (632(3))
(2) Identifying Particulars
- Must be an identifying particulars offense – generally 1 year+ penalty (Sch 6)
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Can take identifying particulars while in custody (467) or a reasonable time
before/after serving an NTA (468), or after an identifying particulars notice
requiring them to report to/stay at a police station (470). Court can also order this (471), allowing police to
detain for 1 hour or reasonable time (472)
Identifying particulars must be destroyed IF found not guilty (474(1))
(2) Power to use Reasonable Force/Reasonably Necessary Force
- General reasonably necessary force permitted when exercising police powers except to individuals (614) –
eg. Breaking down a door.
- Limited to ‘reasonably necessary force’ against individuals (615(1)) which does not include force likely to
cause GBH or death (615(3)) except in critical situations when reasonable suspicion they’re
committing/escaping life imprisonment offense (616(1)) or about to cause GBH or death (616(2)) – but even
then, must first tell them to stop if reasonably practicable (616(5))
- Must be both OBJECTIVELY reasonable and an HONEST belief that it was reasonable (Rowe v Kemper)
- Must look at circumstances to see if force is reasonable – e.g. handcuffs not always necessary in arrest (R v
Hardy)
- (Whitelaw v O’Sullivan)
(2) Accountability
- Must leave behind the police officers details for pretty much anything (637)
- Must identify names, day, time, etc. of executed warrants on back (638)
(2) Excluding evidence
-
2 stages: 1) voluntariness; 2) discretion to exclude
1. Voluntariness
- Must be excluded if involuntary
- Justification for rule? (Tofilau 2007 HCA): Reliability, jury danger, police discipline, free choice (privilege
against self incrim.); free choice to speak or stay silent (Lee; Van der Meer)
a) threat or promise by person in authority
- Was the confession induced by a threat or a promise s416 PPRA (by a person in authority)?
- Who is a person in authority? ‘…a perception by the suspect that the coercive power of the state is being
used is central…’ Tofilau 2007 HCA
- Includes ‘officers of police and the like, the prosecutor and others preferring the charge…’ McDermott (1948)
76 CLR 501
- What if police threat conveyed to accused by the person’s lawyer? – it doesn’t matter who conveys the
threat, as long as it stems from police: R v Naylor ex parte AG [2012] QCA 116
- Would a confession have been made if the interview was properly conducted? (Duke)
b) Basal Involuntariness
- where ‘will is overborne’ – the result of duress, intimidation, persistent importunity, sustained undue
pressure – factors external to the accuse (Tofilau)
- Could be excluded where confession made late at night after fainting twice and in “dopey condition” (R v
Burnett)
- Or where accused stabbed someone, blacked out, attempted suicide by poisoning and confessed wet, cold
and distressed (R v Williams)
- More likely to be excluded when the role of police is relevant e.g. in depriving of sleep (Griffiths)
2. Discretion to exclude
- Common law discretion to exclude confession if unfairly/unlawfully obtained not affected by PPRA (10) –
based on 3 factors: unfairness, public policy, and prejudicial value outweighing probative value (Tofilau)
- Unfairness depends on whether it would be unfair to the accused so contrary to public policy that it should
be excluded (Swaffield): concerns reliability and procedural fairness (Lee)
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improprietary of conduct (Swaffield & Pavic – undercover police officer not
warning Swaffield ‘dirty’, while getting Pavic’s friend to carry recording device
okay) and degree to which it would ‘shock the community’ (Tofilau, Em – merely letting the accused believe
he wasn’t being recorded was not unfair, as long as they didn’t contribute to the belief – the right to silence
is protected)
Public Policy grounds – if breach of the PPRA but still reliable, could be excluded
eg. accused would have been law abiding but for the police interference (Ridgeway – police involved in
importing heroin, not in public interest to spend all that money)
Discretionary balancing act between discouraging improper behaviour/excessive force with the reliability of
the evidence obtained (Ridgeway). Consider:
o Seriousness of the offence
o Personal culpability of accused: but for police conduct, would they have been law-abiding?
R v Martin:
o …..in deciding this issue, must consider the public interest in maintaining an individual's right not to
be unlawfully or unfairly treated by law enforcement officers. Unlawfully obtained evidence should
be excluded where the public interest in the protection of the individual from unlawful or unfair
treatment outweighs the public need to bring to justice those who commit offences; convictions
achieved with the aid of unlawfully obtained evidence may be achieved at too high a price.
(2) Contravention Offences
- Assault or obstruct police officer (790)
- Contravene direction or requirement (791) – but must first issue a warning if reasonably practicable (633)
identifying that non-compliance is an offence (Cox v Robinson)
(2) Police Misconduct (Crime and Misconduct Act)
- Two levels – 1) mere police misconduct (defined in sch 2 as (a) is disgraceful, improper or unbecoming a
police officer; or (b) shows unfitness to be or continue as a police officer; or (c) does not meet the standard
of conduct the community reasonably expects of a police officer.
generally reported to police station & police commissioner via 41-42 – must still have substance/credibility
(42(3)), and commissioner must respond to complaint (42(7))) and official misconduct (criminal
offence/grounds for termination (15))
- Act Applies to police officers (20(1)(d)), allowing public complaints to the CMC under (36) by the public, and
imposing duties to police commissioner to report suspected official misconduct (37))
- Commission must deal with complaints (46) or refer it back to police commissioner to deal with (46(2)(e)
unless frivolous (46(2)(g)), and respond to the complainant on what action, if any, is taken (46(3))
- May assume responsibility & investigate themselves, or let police Commissioner (47)
- If investigating itself, can report to DPP/Judges (49(2)) or prosecute official misconduct (15 criminal offence
or disciplinary breach) itself (50) by applying to QCAT under 219I
(2) Police Misconduct (Police Service Administration Act)
- Commissioner can stand down/suspend if it appears on reasonable grounds that there will be a disciplinary
action (7.4) or official misconduct action (6.1)
- Note: False complaints can be prosecuted (10.21 Police Service Admin Act)
(2) Discretion to Charge (Directors Guidelines)
- Both Police (summary offences) and DPP (indictable offences) base their decision on whether or not to
charge on the Directors Guidelines
- Duty to be fair (1)
Prosecution has to present evidence that is helpful to both the prosecution and the defence case

 Police do all the investigations: must disclose evidence helpful to the accused - could end in quashed
convictions if they don’t
 Prosecution must act without emotion or prejudice
 Prosecution must present all of their case, then the accused must defend - can't split cases (R v Soma)
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
-
-
-
-
-
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Must act impartially, inform court of all appropriate authorities, offer all
evidence relevant to the Crown case
Fairness to the community (2)
o In community interest to lock up crims
o Therefore this interest supports time extensions, allowances for community protection and evidence
gathering
o Prosecution must also be treated fairly (eg seek adjournments as necessary)
Expedition (3)
o Seek expeditious, timely, and efficient administration of justice – preparing cases, finalising hearings,
avoiding adjournments, etc.
Decision to prosecute (4) – only prosecute if both tiers are fulfilled.
o (i) Is there sufficient evidence?
 A prima facie case is necessary but not enough
 Shouldn’t prosecute if no reasonable chance of conviction by reasonable jury
 Consider
(a) Availability/ competence of witnesses
(b) Conflicting witness statements
(c) Admissibility of evidence
(d) Defences
(e) Other factors
o (ii) does the public interest require a prosecution?
 Consider whether discretionary factors mean the charge should not go ahead:
- Serious or merely technical offence
- Mitigating/ aggravating circumstances
- Age, physical and mental health of offenders/ witnesses
- Offender’s background/ culture
- Staleness of offence
- Offender’s culpability
- Perception of prosecution as counter-productive to interests of justice
- Alternatives to prosecution
- Prevalence and need for deterrence of offence
- Minimal public concern
- Entitlement of victim to compensation
- Attitude of victim to prosecution
- Length and expense of trial
- Cooperation of offender in prosecuting others
- Likely sentence
- Election of indictment/ summary judgment
- Whether a sentence has already been imposed
- Additional penalty on top of sentence
- Public confidence in Parliament and Courts
- Public order and morale
o (iii) the decision to prosecute must be made in an impartial manner
Can only throw out a charge for breaching the guidelines if it constitutes an abuse of process: courts are
aware of separation of powers and are reluctant to say that the DPP was wrong (Maxwell – judge can only
refuse to accept plea if it constituted an abuse of process - Reduced charge from murder to manslaughter on
diminished responsibility, talked extensively about reluctance to throw out charges)
Decision to charge that is malicious or improper COULD constitute an abuse of process
The purpose of criminal proceedings ‘is to hear and determine finally whether the accused has engaged in
conduct which amounts to an offence…must be proportional (Jago – charge 7 years later was NOT sufficient
to constitute an abuse of process – would need to be fundamental (eg. lost evidence, key witnesses – though
Loveridge held 24 year delay where prosecution told lawyer they wouldn’t charge was sufficient) or Noyes –
must be deliberate or negligent, not just reasonable delay to constitute an abuse of process; or an “affront
to the public conscience” - Moti)
Oppressive prosecution could be an abuse of process:
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Lack of charge particularity: Patel - unclear what evidence related to which
charge, making it difficult for the jury
KRM, Rogers - where young children make allegations of sexual assault - hard for the victim to match,
especially after such a long time - but also difficult for the defence e.g. can't come up with alibi's etc
Rogers: lists issues with lack of particularity: lack of clarity as to jury verdict, evidence matching charges,
defences matching prosecution, double jeopardy
Doomed to fail: where there is core evidence missing against the suspect - e.g. a murder charge with no
evidence of death, D may ask court to throw out (Walton v Gardiner)
Double jeopardy: R v Carroll
(2) Commencing Proceedings (Justices Regulation)
- Must provide magistrate a bench charge sheet for each charge (12) stating the name, offence, particulars,
circumstances of aggravation etc (13(1)) to same level as indictment (13(3)), which any amendments,
pleases, and decisions will be recorded on (14)
- QP9 (Court brief)
- Queensland Police Form 9 and is a form that the police fill in when they charge a person.
- It lists the exact charge with a brief description of the facts which they allege against the person.
- The QP9 is usually picked up at the first mention at court.
(2) Commencing Proceedings (Justices Act)
- Generally commenced via complaint in writing (42(1)) however if defendant does not object, additional
charges can be made absent written complaint (42(1A)) simply by amending the bench charge sheet (42(2))
- Alternatively via NTA (382-390 PPRA) or summons (53-54)
(3) Bail (Bail Act)
- Police Bail: Must either grant bail (7) (barring major crimes – life or indefinite imprisonment unable to be
mitigated - such as murder, which require Supreme Court to grant bail under 13) or bring before a judge as
soon as reasonably practicable (393(1) of PPRA, Williams) – if not practicable within 24 hours, MUST grant
bail if possible (7(2)(b))
- Court Bail: Any court can grant or revoke bail (8) (excepting s 13) – Supreme only)
- General presumption in favour of bail (9) in line with presumption of innocence, but can refuse on the basis
of an unacceptable risk (16(1)) of either failing to appear and surrender (16(1)(a)(i)) or committing other
offences/harming victims/witnesses (16(1)(a)(ii) or that offender should stay in custody for their own
protection (16(1)(b))
- When deciding to decline bail, should consider factors under 16(2), including nature and seriousness of
offence (16(2)(a)), offender’s character/ antecedents/ associations/ home environment/ employment/
background (16(2)(b)), bail history (16(2)(c)), strength of evidence/case(16(2)(d)), and ATSI factors (16(2)(e))
– as well as likely delay before trial (Lacey).
- Certain ‘show cause’ offences reverse presumption of bail (16(3)) – including:
o Life sentence offences (16(3)(b) Tappin – murderer still granted bail due to weak evidence of intent)
o Indictable offenses while on bail (16(3)(a))
o Indictable offenses while armed (16(3)(c) Williamson – includes accomplices to armed offenders –
moderately strong case, moderate risk of reoffending, minor danger of fleeing, still granted)
o Bail Act offense (16(3)(d)) – most common being failure to appear in accordance with undertaking
(33 – failure to surrender (33(1)) without reasonable cause (33(2))
- Civil standard – party with onus must satisfy on balance of probabilities (Gardner)
- Magistrate can grant cash bail (14A) – minor refundable (14A(4)) deposit
- Can require undertakings (11, 20) – money or surety(21), but no more onerous than necessary (11(1)) or
impose special conditions (11(2)) such as the time/location restriction examples mentioned in 11(3)
(conditions not to be too onerous for defendant/ crime (11(5))
- Surety must be a third party, aged 18 or over (21(1)(a)), never convicted of indictable offense (21(1)(b)), not
mentally disabled (21(1)(c)), not bankrupt (21(1)(d)), and worth more than the amount required (21(1)(f))
- Suitability based on finances, character, relationship, and proximity to defendant (21(3)).
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Must satisfy court of means (21(4)), won’t be accepted if amount would be
‘ruinous’ (21(8), Mokbel – lied about owning $1M house used as surety for
brother-in-law, actually part of family trust – held to still owe $1,000,000)
MAY potentially not forfeit surety due to breach (Baytieh – chaplain who lived with D and did everything in
his power to assist D to come to court, D fled on the day of trial)
Can reapply for bail, but won’t succeed barring a ‘material change of circumstances (McPherson JA in
Scrivener v DPP) – actually a low threshold (Bakir – when prosecution’s case is weakened, offered
undertaking to live with brother away from area of crime; Lacey – when trial listed for a much later date)
Can be reviewed under 19B if not Supreme Court – but high threshold (Lacey – mere lengthy delay before
trial unlikely to be sufficient)
Bail cannot be reviewed mid trial (Wren - Went through whole trial, sentencing, Half way through
sentencing, judge needed another report, recommended D be kept in custody until sentencing finished. D
refused bail, ran off to another judge with bail application. Cannot review bail mid trial)
Can seek bail pending appeal, (common law only) but onus reversed after conviction (Chamberlain – refused
Lindy bail pending her appeal as it would whittle away finality of jury finding) – unlikely to be granted absent
exceptional circumstances as discussed by Thomas J in Ex Parte Maher – requires patent error or when
prosecution agrees to bail. (Cabal Test - requires strong grounds of appeal AND that the sentence would be
virtually completed by time appeal was heard), but significant delay itself is not sufficient to give rise to a
right to bail (Lacey)
(4) Interstate Extradition (Service and Execution of Process Act)
- Allows apprehension of person based on warrant issued in another state (82)
- Must be taken to magistrate of apprehending state soon as practicable (83(1))
- Must produce warrant (82(2)) or release/adjourn (83(3)) – max 5 days before releasing if not produced
(83(5)), and order release if warrant invalid (83(10))
- If produced, magistrate must grant bail to appear at interstate court (83(8)(a)) or place in custody to the
place specified (83(8)(b)) – but may suspend under (83(11)) if sending back, and keep in custody (83(12)(b))
or bail (83(12)(a))
- Discretion to refuse to extradite relied on in (Binge v Bennet – refused to extradite due to horrific conditions
of Qld watch houses) since removed from Act, but CAN still apply to Supreme Court for a rehearing, as
‘abuse of process’ is sufficient grounds to dismiss request (Loveridge – 24 year delay, WA authorities said
they wouldn’t prosecute 15 years earlier)
(4) International Extradition (Extradition Act)
- Is there an agreement/treaty? (extradition country defined in (5))
- Was it an extradition offense? (extradition offense defined in (5) – must be an offence against the law of that
country with a max penalty of at least 12 months, or set out in extradition treaty)
- Are they an extraditable person? Either warrant in force or outstanding conviction and intention to impose
sentence (6)
- Can they mount a valid extradition objection?
o Is it a political offence (defined in (5)) (7(a))
o Is real reason discriminatory punishment rather than extradition offence (7(b))
o Would they be prejudiced/discriminated at trial (7(c) – Sneddon attempted this, but High Court
overturned– held imprisonment was for actions, not political beliefs)
o Cannot have already served sentence/been pardoned – double jeopardy (7(e))
o BUT objection less likely to succeed for serious charge (Mokbel – application to European Court of
Human Rights that extradition violates rights not enough to stay serious drug offence charges –
balancing act)
o However humanitarian reasons may be sufficient (eg. Skase – life threatening illness)
- Other factors set out in textbook on page 144-150 – probably unnecessary.
(4) Regulatory Offences (Regulatory Offences Act)
- Only 3, ONLY punishable by fines – shoplifting value =/<$150 (5), failing to pay value =/<$150 (6), damage
value =/<$250 (7)
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Most QCC defences unavailable except for defences of 22(2) honest claim of right;
29 immature age; 31 compulsion (excluded by 36(2) QCC), but mens rea/intent
must still be proven (Cameron v Holt)
Heard in mags court (19 JA)
(4) Simple/Summary Offences (Justices Act)
- Simple offences anything not described as crime or misdemeanour in code, summary offences where liable
to summary conviction in code or in Summary Offences Act
- Ordinarily prosecuted by Police rather than the DPP
- MUST be commenced within one year of the time when the matter arose (Justices Act 52(1)) unless
otherwise specified (only really applies to common assault) – Notice to appear bound by the same
limitations (QCC 388)
- Heard in Magistrates court (19 JA), which means costs CAN be awarded (defendant may have to pay 157 JA if
convicted, 158 JA if dismissed; complainant may have to pay 158(2) if mags court not the correct jurisdiction)
– but this is discretionary (158A JA) and requires considering:
o whether proceeding bought in good faith (158A(2)(a))
o failure to properly investigate matters (158A(2)(b))
o improper investigation (158A(2)(c))
o whether dismissal was on a technicality (158A(2)(d))
o Defendants conduct: suspicion, self-explanation, compliance with directions, defence prolonging the
proceedings (158A(2)(e)-(h))
o Was dismissal accompanied by another conviction (158A(2)(i)).
- Exceptional circumstances NOT required for costs (Turner v Randall – No witnesses available, charges
dropped, costs awarded), but High Court in Latoudis v Casey held:
o Costs are compensatory, not punitive. Inequitable to expect defendant to bear entire burden of
defending criminal charges that should not have been bought
o Costs should not be influenced by legal aid – inappropriate to distinguish: The fact that police might
be less willing to prosecute and legal aid might be less willing to defend shouldn't be part of the
consideration in awarding costs orders
o No difference between costs awarded against private individual or state
- If accused not present:
o Can hear ex parte if satisfied that summons was properly served (142(1)(a)) BUT may have to rehear
if accused had valid reason for not being present (Diplock v Bennet – was waiting until 9 like sign
said, sentenced at 8:56)
o Jump straight to sentencing ex parte (142(1)(c)) in response to a written guilty plea (meeting the
requirements under 146A) but cannot disqualify or imprison (142(2)(b), or 142A(6) if defendant is a
public/police officer).
o Alternatively, can adjourn and issue an arrest warrant (142(1)(b) warrant, 143 adjournment) or just
adjourn the hearing (142(1)(d)).
- CAN be heard in a higher court as part of an indictable offence (QCC 651) but only if accused is represented
(651(2)(b)), accused and crown consents (651(2)(c)), accused pleads guilty (651(2)(d)) and court considers it
appropriate (651(2)(a))
(4) Indictable offences (Misdemeanours/Crimes) (QCC)
- Accused must ordinarily be present (617(1)), BUT:
o Can be removed if conduct would ‘render proceedings in the person’s presence impracticable
(617(2)) eg. Stuart – attempted suicide immediately prior to hearing, and again DURING, heard ex
parte, while Hill overdosed once on prescription medication, successfully appealed due to ‘no proper
basis’ for finding him to have ‘exhibited a clear desire to not take part’)
o Can permit absence on conditions it sees fit if charged with a Misdemeanour (617(4))
When indictable offences to be heard in Mags court and decided summarily
- 552A (subject to 552D): Must be heard on prosecution election:
o offences against 141, 142, 143, 340
o non-sexual assault, not accompanied by attempted crime, 3-5 years max imprisonment
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counselling, procuring, attempting to commit, becoming accessory after
the fact to the above offences
552B (subject to 552D): Must be heard unless defendant elects jury trial
o Non-aggravated sexual offences where victim 14 or older, with guilty plea and max imprisonment >3
years
o Offences against 339(1), 316A, 328A(2), 359E if max imprisonment <5 years
o Offences against chapter 42A; or ch14 div2/ ch22A if max imprisonment >3 years
o Non-aggravated, non-sexual assault, 3-7 years max imprisonment, that is not included in 552A
o counselling, procuring, attempting to commit, becoming accessory after the fact to the above
offences, if not a relevant offence under 552BA(4)
o 552I Procedure under 552B:
 If D not represented, Mags court must state substance of charge, explain to D that they are
entitled to jury trial and not obliged to make a defence, ask whether D wants to be heard
summarily
 Must ask whether guilty or not guilty
 After plea, must deal with summarily: if guilty must convict, if not guilty must hear defence
 Unless criminal history admissible in evidence, not to be used to assess guilt or propriety of
summary jurisdiction
552BA (subject to 552D) ‘relevant offences’ must be heard:
o Offence with max imprisonment of <3 years
o Offence against pt 6 except:
 Max imprisonment <3 years (ie mentioned in (a))
 Offence against ch42A
 Excluded offence under 552BB
Excluded offences:
o Listed in the table with no factors, or factor/s that relate to the offence committed
o Counselling/ procuring excluded offence
o Attempting/ becoming accessory to excluded offence carrying >3 years penalty (ie. Not a
552BA(4)(a) relevant offence)
o Prescribed value = $30 000
552D when Mags court can abstain from summary jurisdiction:
o Because of nature/ seriousness of offence D will not be adequately punished
o Application by defence with exceptional circumstances
o If abstains, must be committal
No time restrictions on summary jurisdiction (552F)
Max penalty in Mags court in 100 penalty units or 3 years imprisonment (552H(1)(a)) and conviction is
deemed to have been for a simple offense only (659) – cannot impose cumulative sentences for multiple
offences if the end result would be greater than 3 years (R v Hall)
Summary verdict or sentence may be appealed (552J)
Costs not ordinarily awarded (but for indictable offences to the person, prosecutor/ victim can still apply for
compensation costs after conviction under QCC 660)
ODPP Guidelines: GL 13
o Summary jurisdiction will be preferred unless the conduct could not be adequately punished other
than on indictment having regard to:
o the likely sentence in the event of a conviction on indictment;
o the maximum penalty a magistrate may impose if the offence is dealt with
o summarily;
o the antecedents of the alleged offender; and
o the circumstances of the alleged offence, including:
o the harm or risk of harm to the environment caused by the offence;
o the culpability of the offender;
o whether a comparable offender has been dealt with for a similar offence on
o indictment; and
o any other mitigating or aggravating circumstance.
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District or Supreme Court
- District court has jurisdiction to hear all indictable offences (60 District Court of
QLD Act) except where max penalty is 20 years+ imprisonment (61(a) DCQA)
- District court has jurisdiction to hear counselling procuring of QCC offences 61, 208, 213, 215, 216, 219, 222,
229B, 315, 316, 317, 318, 319, 349, 352, 411, 412, 415, 419, 421, 461, 469 or 469A; corrective services Act
s122.
- Other cases go to Supreme Court
- 560(4) QCC In deciding the court to which the indictment is to be presented, the Crown Law Officer or Crown
prosecutor must have regard to-(a) the complexity of the case; and
(b) the seriousness of the alleged offence; and
(c) any particular importance attaching to the case; and
(d) any other relevant consideration.
(4) Committals for indictable offence (Justices Act)
- Traditional purposes included method of disclosure, establishing sufficiency of evidence and giving defence
opportunity to ‘test the case against them’ (Barton)
- Traditional committal: if sufficient evidence, prepare indictment (560 QCC), if insufficient, ex-oficio
indictment (561 QCC)
If Magistrate not satisfied at sufficiency of evidence (HC in both Doney and Antoun held evidence must lead
a reasonable jury to potentially convict) they must discharge defendant (104(2), 108(1)), and if satisfied must
commit the defendant to be tried (108(1), 114)
- Magistrate has supervisory role over committal proceedings (103B)
- Now goals seem to be sufficiency (104(2), 108(1)) and witness protection post Moynihan
- Now primarily uses tendered statements – ‘committal on the papers’ permitted (110A(2))
- Magistrate must accept written evidence tendered by prosecution (110A(3)) ONLY IF defendant is
represented or mags satisfied that (110A(4):
o D understands proceeding and possible consequences: CANNOT commit an accused who doesn’t
understand proceedings (110A(4)(a), Ebatarinja v Pryce– deaf and mute indigenous person) – but
can still proceed via ex officio indictment.
o D is aware that they are entitled to legal assistance and may apply for it
o D is aware that they can apply for oral evidence under 83A(5AA)
o D is aware of requirements for application
- Prosecution and defence can agree to have witnesses present for cross-examination (110A (5))
- Written statements by the defence may only be admitted if prosecution agrees and no other party objects
(110A (6B)
- Witnesses may be called and cross examined under 83A(5AA) if in there are substantial reasons in the
interests of justice (110B(1)), specifically set out by defendant (110B(3)(iii)) – and can ONLY cross-examine
on those reasons (110C(1)) unless substantial reasons in the interests of justice (110C(2))
 Reasons must be sufficiently detailed (likely discharge, narrowing issues, avoid surprise), and
not merely to undermine case or to fish (Police v K)
 Related to idea of a ‘fair trial’ (Hanna v Kearney)
 Onus on defendant to convince that order should be made – must provide substantial
reasons, cannot be nominal or ephemeral and should bear in mind purposes of the act and
the discretion of the trial judge; to investigate inconsistencies with key witnesses or avoid
Basha inquiry (Blacklidge v Police)
 If witness unavailable, a voir dire “Basha enquiry” can be conducted to allow the evidence to
be tested if it would otherwise be unfair: Hearing conducted before jury is empanelled in
order to provide defence with an opportunity to hear and test evidence that was not
provided at committal, Not permitted unless accused is able to establish that without one,
there is a risk of an unfair trial (based on R v Basha – undercover officer unable to give
evidence at committal due to being undercover)
- BUT represented accused (110A(6D)(b)) can waive sufficiency requirement if entirely written statements
(110A(6D)(a)) under 110A(6E) in interests of expediency
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MUST also notify the accused (104(5)) of the 14 day limit on alibi evidence (590A
QCC)
Accused not required to give evidence, but can under (104(4) – if so, its considered as part of decision to
commit or discharge (108(1)), and could constitute evidence at trial (105)
Accused not required to enter plea (104(2)(b)), but guilty plea committed for sentencing (113)
Magistrate may order, on own initiative or on application, a direction hearing to give directions about
disclosure, documents provided, call prosecution witness for oral statement and cross-examination, (83A JA)
(4) Ex Officio Indictments (561 QCC)
- Can occur in absence of committal or after the failure of one
- Discretion of the DPP (Webb) but Must be appropriate to use (requires procedural reasons to justify it, and
no prejudice to the defendant (Suigzdinis – adding additional trivial offences beyond those raised at the
committal held to be an abuse of process – designed to be vexatious and embarrassing)
- Question of unfairness/abuse of process arises if committal process circumvented or lack of disclosure
(Barton – HC held strong and compelling grounds required for not having a committal) – serving ex officio
during committal adjournment unlikely to be permitted (R v Haslett)
- CANNOT circumvent 6 month limit after committal (Foley, Boulle)
- Actual indictment managed by clerks pending finalisation (23EB justices act)
- 23EB Management by clerk of the court of charge pending finalisation of proceeding under ex officio
indictment
- (1) A court may, under this section, refer to the clerk of the court a charge before the court, but only if the
defendant in relation to the charge—
- (a) is represented by a lawyer; and
- (b) is not in custody; and
- (c) is not in breach of any condition of the undertaking on which the defendant was granted bail.
(4) Indictments
- Must be prepared within 6 months of committal (590(1)) unless extension of time is granted (590(3) Cicolini
– must be good cause looking at all relevant circumstances/consequences) or defendant must be discharged
if time lapse (590(3) Jenkins – only released, no double jeopardy limits)
- Must set out all relevant particulars – date, time, location, crime and all its elements, etc. (564(1) Rogers –
must be sufficiently detailed to identify ‘the occasion to which the count relates’) – court may adjourn and
order additional particulars be provided (473) – but will not be invalid due to mere formality problems (eg.
obviously wrong date) (571)
- Court can amend indictment if appropriate, on such terms as are necessary (572(1)) at any stage where it is
satisfied no injustice will be done (572(3)) subject to 572(1) (Fahey)
- Normally one count per indictment (567(1)) but can join them (567(2)) IF:
o Founded on same facts (Collins – breaking/entering, stealing, arson – same building)
o Multiple offences for a single purpose (Cranston – assaulted rescuer as part of rape)
o Series of similar offenses (Iongi: 2 rapes over 12 yrs, same victim, interim harassment, Fraser: 4
similar murders – one of which had victim turn up alive with her boyfriend)
o Note: Cannot ‘overload’ or ‘throw the book’ at the defendant (Ambrose, Suigzdinis)
(4) Joinder (QCC)
- Appropriateness of joinder depends on degree of prejudice and common admissibility of evidence – can
apply for a separate trial if prejudiced (597A(1), R v Phillips – evidential value must not be grossly
outweighed by prejudice) –less strict for sexual offences (597A(1AA)) but if sufficiently prejudicial, may still
require it (De Jesus – inadmissible evidence of 2 rapes, successful appeal) – general issues with ‘propensity’
evidence when joining multiple similar offences together (R v KP)
- Co-accused can also be joined or tried separately (568(11),568(12)) , as can accessories (569)– but may apply
for separate trials (597B), but discretionary and unlikely to be granted (Ginger – mere inadmissibility of some
of the evidence not sufficient – must be severely prejudicial)
- Separation is subject to discretion (R v KP) but could be an appeal point (Phillips)
- Could appeal for abuse of process (JMP v R)
o Issues with admissibility on one count, admissibility on the other
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Trial judge instructions crucial as to what evidence can be used for what
charge
Increased likelihood of conviction with joinder
Similar considerations raised in Justices Act s 43.
(5) Charge Bargaining/Plea Negotiation (Justices Act, QCC, & Directors Guidelines)
- Court will almost certainly amend charge sheet (JA 48-49) or indictment (572) if parties agree prior to plea
- ODPP Guideline 16 CHARGE NEGOTIATIONS
o Early negotiations and early, efficient conviction of the guilty is encouraged
o The purpose of negotiation is to secure a just result
o (i) The Principles
 The prosecution must always proceed on those charges which fairly represent the conduct
that the Crown can reasonably prove;
 A plea of guilty will only be accepted if, after an analysis of all of the facts, it is in the general
public interest.
 The public interest may be satisfied if one or more of the following applies:(a) the fresh charge adequately reflects the essential criminality of the conduct and provides sufficient scope
for sentencing;
(b) the prosecution evidence is deficient in some material way;
(c) the saving of a trial compares favourably to the likely outcome of a trial; or
(d) sparing the victim the ordeal of a trial compares favourably with the likely outcome of a trial.
- ODPP guidelines explicitly prohibit overcharging (16(iii)) – echoed by court in Ambrose – potential abuse of
process (as is undercharging, according to Brown) – but do encourage negotiation and settlement if its in the
public interest (16)
- Key case: GAS & SJK v R – unanimous HC discussion on plea bargaining (both sentenced for aiding/abetting
manslaughter, accepted plea due to lack of evidence of principal killer)
- Prosecutor decides charge, Accused decides plea, Judge decides sentence. Prosecutor can ONLY promise a
reduced charge, not a reduced sentence, and any agreement that purports to do so is inappropriate. (GAS &
SJK)
- Agreement should be recorded in writing to avoid confusion/appeal (GAS & SJK)
- DPP CANNOT enter into agreement limiting AG’s right of appeal (McQuire & Porter v R)
- Counsel should NOT discuss sentencing with judge prior to finalising plea (McQuire – never actually proven
or accepted that it happened, or that it made any difference if it did)
- Inappropriate for judge to offer guidance re sentencing on plea to be made – judge should not be restricted
in sentencing by plea (Marshall)
- Dishonouring negotiations could be abuse of process: negotiations protected by courts (Wentworth - 5
charges, Prosecution after negotiation dropped 2 charges. New prosecutor Came back with all 5 charges at
court. Court agreed that prosecutor had abused process by coming back with all 5 charges after 2 were
dropped)
(5) Pleadings (Mostly QCC)
- Can plead guilty at any point, including when asked (Mags court: 145 JA, mags court to convict upon guilty
plea)( Higher courts: 597C or 598), during committal if you want (104(2)(b), 113), or any point during trial
prior to jury verdict (631A)
- Standing mute is treated as a plea of not guilty (601)
- Pleading guilty assists the justice system (Cameron)
- Penalties and Sentences Act 1992 s13 Guilty plea to be taken into account
(1) In imposing a sentence on an offender who has pleaded guilty to an offence, a court—
must take the guilty plea into account; and
may reduce the sentence that it would have imposed had the offender not pleaded guilty.
(2) A reduction under subsection (1)(b) may be made having regard to the time at which the offender—
pleaded guilty; or
informed the relevant law enforcement agency of his or her intention to plead guilty.
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(3) When imposing the sentence, the court must state in open court that it
took account of the guilty plea in determining the sentence imposed.
(4) A court that does not, under subsection (2), reduce the sentence imposed on an offender who
pleaded guilty must state in open court—
that fact; and
its reasons for not reducing the sentence.
(5) A sentence is not invalid merely because of the failure of the court to make the statement
mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal
against sentence is made.
Don’t have to reduce sentence for guilty plea: Baker and Bates (B charged with murder, Charge eventually
went in as manslaughter - issues with intent, Sentenced was not reduced for guilty plea, because crimes are
so serious)
Timing is important if guilty plea entered early enough to be helpful: BAY (B a stepfather, made recorded
confessions of guilt and was cross-examined. He failed to get the recorded interview out of evidence, so he
pleaded guilty. Not remorseful, but still helpful - saved sexual assault victim from giving evidence, facilitated
quick trial, accepted responsibility. Early enough to reduce sentence), Stuck (Not until higher court that he
entered guilty plea. Early? Timely, but not early? The earlier in the process, the more discounted the
sentence should be)
MUST be taken into account when sentencing (Penalties & Sentencing Act 13(1)(a)) and MAY result in a
discount (13(1)(b)) based on a number of factors:
o Remorse (McQuire & Porter – harsher sentence for McQuire than Porter due to lack of remorse) –
but not a requirement for a discount (Joint Majority HC in Cameron)
o Acceptance of responsibility (also discussed in Cameron)
o Timeliness (13(2), Cameron – reasonable when correct charge made, not reasonable to expect plea
to wrong charge. Based on remorse and ‘willingness to facilitate justice’, not savings)
o Sparing witnesses from giving evidence (particularly child re: sex offences – R v BAY)
A late plea won’t necessarily lead to a discount, particularly if not coupled by any evidence of remorse or
willingness to facilitate the course of justice (Baker & Bates – charged with murder, maintained innocence,
1st trial abandoned, plead guilty to manslaughter start of 2nd – majority permitted very minor discount on
appeal for Bates, reduced life to 18 years, but none for Baker)
Full cross-examination during committal reduces discount (Stuck)
Can revoke/vary plea PRIOR to allocutus (648) - Nerbas:
o The guilty plea does not constitute conviction [7].
o The administration of the allocutus is the court’s acceptance that a plea has been established.
o A plea may, with leave of court, be withdrawn after the allocutus has been administered and before
sentencing [11].
o In order to obtain leave to withdraw applicant must show a miscarriage would occur if leave not
granted [12]
Verral - the allocutus is the end point, where the court can act on the plea
May set aside a conviction after guilty plea entered and allocutus stated (or refuse to accept plea) where the
accused pleaded guilty and there is a miscarriage because (Meissner):
o does not understand the nature of the charge
o did not intend to admit guilt in relation to charge or
o if upon the facts admitted by the plea the person could not in law be guilty of an offence
o if induced by intimidation or fraud….
Allison, Gadaloff
o D pleaded guilty and then appealed guilty verdict claiming they were under pressure and the plea
was not made freely and voluntarily
o Courts are not supportive of these arguments?
o In G's case court found that plea was voluntarily given
o A's case - A maintained innocence throughout process
o Suggestion from prosecution to A's lawyer that guilty plea could reduce sentence
o A pleaded not guilty, was convicted and sentenced, then found out about discussion and appealed
o Lawyer was protected - A maintained innocence throughout
Difficult to accept a plea that is improperly entered (Maxwell)
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Discretion to accept a plea: ‘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.’ (Meissner)
(4) Alternative Verdicts (QCC)
- Can also convict of non-aggravated versions of offences (575), such as manslaughter if indicted on murder
(576), or lesser sexual offence if charged with one of the more serious ones (578). Can also be convicted of
non-intent alternative (579), or lesser property (580) or fraud (581) offences, including attempts (583) if the
evidence establishes (584), with same effect (585)
- Failure by judge to leave alternative verdict open to the jury if it is ‘open on the evidence’ can constitute
solid grounds for appeal due to an ‘unfair trial’ as it deprives of chance of acquittal of charged offence
(Willersdorf, Rehavi) – but don’t need EVERY offense available – murder-manslaughter definitely, but lesser
offences only if appropriate/reasonably open on evidence (Willersdorf)
(5) Double Jeopardy (QCC)
- Cannot be punished twice for the same act UNLESS it causes death, in which case can still be charged with
that death (16, Tricklebank – drink driving + dangerous driving causing death two different acts, even
without the death exception, which applies even if death instantaneous)
- Cannot be charged with an offence you have already been convicted or acquitted of (17) – defences of
‘autrefois convict’ and ‘autrefois acquit’ available (common law equiv. of 17)
o Can plead not guilty by reason of past conviction (598(2)(c)) or acquittal (598(2)(d))
o INCLUDES alternative verdicts - can’t later be prosecuted for any similar offence arising on evidence
(584)
o Even when not an alternative verdict, bringing similar charge later on the same facts can be stayed
for abuse of process (Viers – charged with small amount of cannibis, later charged with larger
amount – both found in same search, later charge stayed; Walton v Gardiner – both medical tribunal
hearings stayed for delay – couldn’t re-open a second time)
- Magistrates MAY issue certificate of dismissal when dismissing to bar future prosecution (700)
- Evidence excluded from one trial cannot be raised again at another – this would constitute an abuse of
process (Rogers – confessions not admissible in first trial held not admissible in later trial for new counts of
armed robbery either – to do so would jeopardise public confidence in the administration of justice. Brennan
J: Based on issue estoppel, not abuse of process)
- Cannot bring different charges that would undermine an earlier acquittal if successful (R v Carroll – perjury
charges that would undermine accepted alibi at murder trial)
- Also relevant for sentencing (16) cannot punish twice for the same act, even if technically separate offences,
but primary question whether totality of sentence is proportionate criminality of offender (HC in Pearce –
intentional GBH and GBH while breaking/entering different offences – but held that wholly concurrent
sentences for different offences inappropriate – no duplication of penalty for substantially the same act)
- Cant punish twice for same act, but can punish for further elements of further offences (Tricklebank, Popa v
Austin)
- 4 Step Pearce approach (as set out in Longbottom):
1. Consider the parts of the offences which are being charged
2. Where conduct is common to more than 1 offence, must be taken out of sentence
3. Consider whether sentences should be cumulative or concurrent
4. Is the totality of sentence proportionate to overall criminality?
(5) Exceptions to Double Jeopardy (QCC)
- Initial charge for same act wasn’t related to a death, second one was (16)
- Chapter 68 – only applies to acquittals occurring after 19/04/2007 (678A(1)) where not convicted of a lesser
alternative verdict (678A(2))
- Retrial for murder (678B) if fresh and compelling evidence (678B(1)(a) and in the interests of justice
(678B(1)(b)) even if acquitted of it or lesser offense (678B(2))
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Fresh (678D(2) )- not adduced in original proceedings (678D(2)(a)), could
not have been adduced despite reasonable diligence (678D(2)(b)) –
Dunlop – made confessions post acquittal, was fresh evidence
o Compelling (678D(3)) – reliable (678D(3)(a)), substantial (678D(3)(b)) and highly probative in the
context of the acquitted case (678D(3)(c) – G&B – disgruntled prisoner accused former friends, held
not be sufficiently reliable/probative due to lack of crediblity)
o Only case law is UK – (Dunlop – acquitted of murder, later admitted he did it while in prison on other
charges, held was ‘fresh and compelling’ and in interests of justice; Wendell Baker – new DNA match
was fresh and compelling)
o Also allows evidence ruled inadmissible in earlier cases (678D(4))
Can retry for any 25 year offence (defined in 678(1) as any offense with maximum penalty of life/25+) if
tainted (678C(1)(a)) and in interests of justice (678C(1)(b)) even if acquitted of a lesser offence during the
original trial (678C(2))
o Tainted defined (678E) as the accused OR ANOTHER PERSONS conviction of an administration of
justice offence (Ch 16) relating to acquittal proceedings (678E(2)(a) – eg Dunlop) and it being more
likely than not they would have been convicted otherwise (678E(2)(b)) AFTER all avenues of appeal
fail (678E(3))
Interests of Justice considerations set out in 678F – must be satisfied that a fair trial will be held (678F(2),
Dunlop – publicity considerations) and factor in length of delay (678F(3)(a)) and any failure to act with
diligence/expedition during original investigation or retrial (678F(3)(b))
Indictment must be presented within 2 months of the original acquittal being quashed (678H(1)
DPP must specifically authorise post-acquittal investigations (678I(3))
Limits on publication of retrials (678K) to help ensure fair trial
(6) Prosecution Disclosure (QCC)
- General disclosure obligation in relation to relevant proceedings – ‘full and early disclosure’ of all evidence
prosecution plans to rely on (590AB(2)(a)) and all things that could help accused’s case (590AB(2)(b)) – BUT
failing to disclose does not necessarily have any particular consequences (590AC(2))
- Disclosure obligations are applicable to committals, trials on indictment, or a ‘prescribed summary trial’ for
an indictable offense heard summarily (590AD)
- Can seek a disclosure order at any stage if prosecution not complying under 590AA(2)(ba) (or, if a
Magistrate, under Justices Act 83A(5)(aa) & 83B(1), punishable by 83B(4)) – court will usually grant
disclosure of anything that ‘would tend to help the case of the accused’ (Rollason)
- Court can order compliance with disclosure/ pre-trial direction as a result of non-disclosure, including
adjournment (590AAA(4)(a)) and even costs (590AAA(4)(b)), or can charge with contempt of court
(590AAA(5))
- Non-disclosure by prosecution does not render proceedings invalid (590AC(2)) but failure to disclose could
result in unfair trial (R v OL - Prosecution had medical report relating to victim, not disclosed to accused.
Accused not properly equipped to cross examine expert evidence, Court looked at law similar to 590AC non-disclosure doesn't necessarily render the trial invalid - but perhaps if it removed a real chance of
acquittal to the accused - it must really affect the fairness of the trial; R v HAU - Victim statements were
inconsistent, HAU convicted, only heard of statements in sentencing hearing, Appealed on basis that failure
to disclose statements lost him real chance of acquittal, Conviction quashed and retrial - if you can prove
victim unreliable, you could win; Mallard - D prosecuted for murder offence and convicted, Always pleaded
innocence, Many issues with interview and charge process, Pseudo-scientific analysis and evidence analysis
not disclosed)
- Anything in possession of arresting officer/ person appearing for prosecution considered to be in possession
of prosecution (590AE(2)) or that they’re aware of and could locate without unreasonable effort
(590AE(3)(b)). General case: Mallard – police tests with pigs head unable to duplicate wounds, found rust in
wounds despite type of wrench drawn by Mallard not rusting – ultimately granted royal prerogative of
mercy 8 years into sentence. Similarly, R v OL – awareness plus lack of unreasonable effort included evidence
in the possession of the doctor.
- Prosecution MUST disclose (590AH) – bench charge sheet/complaint/indictment (590AH(2)(a)), accused’s
criminal history/statements (590AH(2)(b)-(c)), notice of affected child statement (590AH(2)(d)), copies of
witness statements for adult witnesses, or witness names if no statement exists (590AH(2)(e)), and a notice
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describing any original evidence they intend to rely on (590AH(i)) or anything else
they intend to rely on (590AH(2)(j)) at least 14 days before committal/summary
trial (590AI(2)(a)) or no more than 28 days after presenting indictment, but before the trial (590AI(2)(b))
Must disclose ON D’ REQUEST: witness criminal records (590AJ(2)(b)), anything adverse to witness credibility
or competence in prosecution possession (590AJ(2)(c-d), any other statements or things that is relevant but
that they don’t intend to rely on (590AJ(2)(e-f)) as soon as is reasonably practicable (590AK(2))
Ongoing obligation to disclose late/new evidence as soon as reasonably practicable (590AL(1)) echoed in
Directors Guidelines (26(xiii)); must continue to disclose exculpatory evidence until accused acquitted/ dead
(590AL(3))
Limitations on disclosure obligations:
o No need to disclose things accused/their lawyer already has (590AN)
o No need to provide a COPY of sensitive evidence (590AO(1)), but if they would otherwise have to
provide it, they still need to provide written notice (590AO(2)))
o No need to provide witness contact details (590AP(1)) UNLESS it is materially relevant (590AP(2) eg.
address of place supposedly broken into)
o No need to disclose anything contrary to the public interest/prohibited by law (eg. Rape victim
‘section 93’ statements) (590AQ(1)) provided written notice is given (590AQ(1)(b)), unless the court
orders otherwise (590AQ(3)) based on importance/effect (590AQ(6)) – examples of public interest
(590AQ(2)(a))
o Accused can waive in writing (590AT), as can court (590AU)
(6) Defence Disclosure (QCC – no general duty, but 2 exceptions)
- Alibi evidence for trial on indictment (590A(1)) must be disclosed within 14 days of committal (590A(7)) (as
the committing magistrate must instruct (104(5)) – failure to do so removes time limit (590(3))) unless court
gives leave (590A(2)) (Erasmus – failure to notify or file alibi prior to death of alibi witness precluded
admissibility – extended to precluding deceased’s wife, but cf Kerma – unrepresented accused allowed a late
alibi, but raised potential credibility issues of doing so)
- BUT if Alibi evidence could not be obtained until later, will almost certainly be allowed (Martens – CAA &
DPP denied flight records existed, Martens wife had to get herself)
- If prosecution responds to alibi by arbitrarily increasing date range, will probably be stayed (ZSK – increased
from January to “January through March”, stayed as abuse)
- Expert evidence – as soon as practicable identify name, findings, and reports and copy (590B(1)) – includes
all material, even before determining what expert will say (R v Ward)
- De voss
o Led to intro of s590B
o Psychiatric history expert evidence brought in at last minute
o Not fair, hard for prosecution to rebut
o Now you must give notice of expert evidence
Disclosure also important in summary offences

Brown v Owen

o
Summarily charged with offences and also charged with indictable offences
o
He kept putting off summary trial because he couldn't get disclosure of particulars for summary
offences
(6) Trial Process (QCC, JA)
- Magistrates Court:
o Finalise charges/charge sheet (42)
o Ensure only 1 charge unless appropriate (43(1))
o Ensure appropriate particulars of persons/property (46) and offense (47) had been served within a
reasonable time (47(2)) Washband v QPS
o Amend complaint/charges as necessary to fix defects (48) and adjourn if necessary (49)
o Can be directions hearing for disclosure (83A) Brown v Owen
o Defendant asked to plead (145(1)) and if they don’t plead guilty, trial proceeds (146)
o Default practice for witnesses/addresses in line with Supreme Court (148 – see below)
o If dismissed, can issue certificate of dismissal (149)
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o Costs can be awarded (157 if convicted, 158/158A if dismissed)
Higher Court:
o Committal (114-110A JA) OR Ex Officio Indictment (QCC 561)
o Can seek pre-trial direction for stay (590AA(2)(a)), joinder (590AA(2)(b)), disclosure (590AA(2)(ba)),
etc. at any stage after indictment (590AA(1))
o Arraigned and asked to plead (597C) – if guilty, sentence, if not, either party can apply for a no jury
order (614) prior to judge’s identity being made known unless special reasons (614(3)) if it is in the
interests of justice (615(1)) and the accused consents (615(2)) based on:
 Complexity (615(4)(a), Clough – insanity/diminished capacity and their interaction with
voluntary drug consumption and a pre-existing mental illness)
 Danger of jury tampering (offence under QCC 119B)
 Pre-trial publicity (615(4)(c), Ferguson – s 47 jury Act challenge first)
 IF granted, follows same procedure as a jury trial (615B)
 Special reasons (614(3)) – Prisk & Harris - step through s615 first to see if in interests of
justice, then special reasons; must construe reasons in context, not confined by strict limits
or rules, normal circumstances aren't special circumstances - special reasons are particular
and distinct, some factor over and above; but They don't have to be extremely unusual,
uncommon
Crown opens first (619(1)) then accused (619(3)) (unless they make a ‘no case’ submission that prosecution
evidence does not support a finding of guilt beyond reasonable doubt (619(2), James, Tappin & Tait –
ordered jury not guilty verdict – but Doney notes that judge can only make that order if SO defective that
there is no possibility of guilt; Antoun: Same test as committal - no case submission, Whether there is any
possibility that an accused could be convicted/ acquitted, Prosecution medical evidence was unsure of
whether D's conduct killed V - heart attacks
Could have a voir dire – points on evidence admissibility may be considered without the jury
Prosecution then Defendant then presents evidence (618)
Judge then sums up the law and questions for the jury to decide on (620) – must be fair and balanced, and
not deprive accused of possibility of acquittal (Taiters)
(6) Nolle Prosequi (QCC 563)
- Terminates/discharges criminal proceedings at ANY stage prior to jury verdict, but does NOT act as a bar to
future prosecutions
- BUT subject to unfairness/courts inherent ability to prevent abuse of process (Saunders – entire case built on
one fake voice recording – refused to accept nolle, ordered trial continue)
- Kirby in DPP v B set out possible abuses of process:
o Jury assistance request signalling not guilty verdict
o Case has gone badly, and they want it re-run (eg. Saunders)
o Witness was unavailable, and they want another try
(6) Jury (Jury Act)
- Not qualified if in currently in government, current lawyer, current/former police officer, or convicted of
indictable offense and/or imprisoned (4)
- Can excuse due to hardship, inconvenience, dependents, or health (21)
- 12 jurors (34) plus up to 3 reserve jurors (34)
- Challenges/Dismissals
o Must share information regarding unsuitability as soon as practicable (35)
o Defendant must be notified of their right to challenge (39)
o Can challenge the panel as a whole PRIOR to finalisation (40)
o 8 Peremptory challenges (42(3)) plus more if reserves (42(4)) per defendant (42(5))
o Unlimited challenges for cause (43(1)) on qualifications or impartiality (43(2)) – but must give judge
reasons/information (43(3)) – judge’s discretion (43(6)) but potentially relevant on appeal if declined
(43(7))
o Judge can also discharge juror if they doubt impartiality, even absent challenge prior to jury being
sworn in (46) or even during the trial (56)
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Can challenge entire jury for special cause, at least 3 days before trial or
with leave (47(2)) on special questions approved by the judge (47(3-4)),
and give parties cross-examination leave regarding impartiality if they choose (47(5)), then permit
any challenge for cause to be made (47(6)) as per usual (47(7-8)).
o Questioning jury members for special reasons: quite strict. Stuart - sought to cross examine jury
members before trial, was only allowed to question 1. D'Arcy - convicted of sexual assault, politician,
media storm - questions allowed to be posed to jurors about pre-trial publicity Patel
o CANNOT stay proceedings due to it being impossible to find a fair-minded jury until AFTER a section
47 challenge has been made (Ferguson: stay re: unfairness overruled)
o Judge has discretion to discharge entire jury on unfairness grounds prior to trial (48)
After jury have been sworn in (50) and trial commences, they should not separate until verdict delivered
(53(1)) and may be punished by contempt for doing so (53(3)) – outside parties are also restricted from
communicating with jurors (54) – BUT breaching these does not affect validity of proceedings (53(4), 54(4))
unless found to constitute an unfair trial (Edwards)
Judge can arrange for special viewing session of a place by entire jury if desirable (52) – individual
investigations prohibited, but chance of acquittal must be affected to ground appeal (Myles & Myles – 3 or 4
jurors visited site during trial, conducted irrelevant investigations but no material iregularity, cf R v K –
internet searches by multiple jurors uncovering earlier offences justified retrial)
Juror Impartiality:
o Can appeal on basis of jury irregularity: Brown
 Was it relevant to issues before the jury?
 Was it prejudicial- and to what extent?
 Did it influence the verdict?
 How strong was the evidence against the accused?
 Was there an unacceptable appearance of unfairness?
o Would a fair-minded and informed observer have a reasonable apprehension of a lack of impartiality
on the part of the juror? (Webb & Hay)
o Merely having a family member suffer a similar crime doesn’t jeopardise impartiality of
friends/family of victims of crime (Tichowitsch – step-daughter raped)
o Test to be applied is whether a reasonable member of the community would question the fairness of
the trial (Edwards – juror ran off to a nightclub, picked up by police, raised unfairness to necessitate
acquittal, especially prolonged discussions with Police)
o Knowledge of impropriety coupled with a lack of complaint constitutes the waiver of any right
(McCosker – wife’s friend on jury, didn’t say anything, appeal failed)
o Mere dismissal of a juror does not necessarily give rise to unfairness, even absent proper reasons
(Metius – one juror felt intimidated by another juror and was discharged)
Jury Verdicts
o Must be unanimous (59(3)) if murder/54A(1)/Cth (59(1)(a)) or 10 jurors (59(1)(b))
o Majority (11/12 or 10/11 (59A(6))) for other offenses, AFTER prescribed period of 8 hours plus any
further time judge considers reasonable (59A(6)) if judge satisfied majority verdict unlikely (59A(2)) generally required to give a ‘Black’ direction that they can be discharged if they fail to agree on a
verdict (60(1)), but not a legal requirement – only needs to establish that majority verdict unlikely
(McClintock – no black direction given, but earlier jury enquiries sufficient to provide satisfaction)
McClintock
o
Black direction - where jury has expressed deadlock and court asks if there is a way they can come to
a unanimous decision
o
Ideally there should be a black direction first, followed by a majority verdict suggestion
Royal
o
Jury asked to consider majority verdict after 9 hours of deadlock 10/12, then came back with one
after 4 minutes 11/12
o
Appealed that the time indicated unfairness
o
No time limit - it was fine
Milliar
o
Representative said that they were wondering whether they had to come to a unanimous decision
o
Judge gave black direction and suggestion of majority verdict at same time
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o
o
Majority direction given later
No problem with this
(7) Fair Trial Requirement (links to grounds for appeals/proviso)
- Fair trial and abuse of process not entirely distinct concepts (Jago)
- Expectations of what is ‘fair’ or ‘unfair’ can change over time (McKinney) and must factor in the limited
resources of the state – not expected to be ‘perfectly’ fair, so much as ‘in accordance with the law’ (Brennan
in Dietrich, McKinney); but may not be fair even if according to law (Gaudron in Dietrich)
- Discretions must be appropriately exercised
o Exclusion of evidence balancing act (Nicholls & Coates)
o Decision to order/refuse separate trials (De Jesus, Phillips)
o Decision to permit committal to be skipped by ex officio (Barton)
o Decision to remove or retain jury during irregularities (Tichowitsch, Edwards)
- Judge’s behaviour must be appropriate
o Prejudice – would a ‘fair minded lay observer’ consider the judge impartial and unprejudiced?
(Johnson v Johnson) BUT the degree of legal knowledge imputed on the ‘lay observer’ includes
knowledge of specialist court processes (Smits v Roach)
o Impartiality and the appearance of impartiality are necessary for the maintenance of public
confidence in the judicial system’: Nth Aust Legal Aid v Bradley- Whether or not a magistrate should
get a job as a magistrate, Appearance of and actual impartiality is important)
o Tension between counsel and judge: RPS - Judge interjected in various statements, He didn't like the
defence counsel and had a lot to say to them in front of the jury - what did the jury think of the
defendant because of this? Accused appealed and argued that the judge was actually biased or at
least appeared to be bias. If there is a tension between the judge and counsel, they should take out
frustrations when not in front of jury
o Interruptions of counsel/accused – depends on frequency and type of interruptions (Copsey – 93
interruptions for one, 110 for the other, described key evidence as ‘bizzare’ – perceived by jury as
judge rejecting evidence, denied fair trial)
o Sleeping – depends on frequency and whether or not it interferes with supervision of the trial and
jury attention to evidence (Cesan, Mas Rivadavia) BUT the odd nap is okay - Where the judge is
noticeably and consistently asleep/ inattentive during trial, there can be miscarriage of justice Could be actually unfair or appear to be unfair
- Prosecution behaviour must be fair AND appear as fair to the public
o Inappropriate, insulting, emotional, and inflammatory comments (Livermore – includes attacking
witness credibility, airing personal opinions, ridiculing accused’s case)
o Raising unrelated charges (KP – ‘wrote the paedophile’s handbook, mentioned dealings with other
students against whom he had not been charged – discharged/replaced jury)
o ANYTHING the public/fair-minded lay observer might think would constitute unfairness (Edwards –
juror and police interaction, Szabo – prosecutor previously dated defence lawyer sufficient to raise
concerns of unfairness)
- Lack of an interpreter where it deprives the accused of a chance of acquittal (no statutory right, but can
order one provided under Evidence Act 131A)
o Must be ABLE to understand and communicate (Ebatarinja – deaf mute, only knew a special tribal
sign language, could not understand or communicate; prosecution gave up because only interpreters
were close friends/ family)
o Unlikely to be available if legally represented and did not request an interpreter, especially if capable
of communicating and if not raised until appeal (East ex parte Nguyen – had legal representation, did
not request interpreter, appeal rejected)
o Incompetent interpreter must be grossly incompetent to constitute unfairness, must be adequate
not exact (De La Espriella-Velasco – held mere inconsistencies insufficient, needs ‘gross’ departure)
o Indigenous language interpreters must have adequate level (Watt)
(7) Abuse of Process (common law discretion to stay)
- Purpose of trial is to hear and determine guilt of accused – Abuse of process could be where process is used
inconsistently with that purpose (Jago)
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Potential types of abuse of process set out in PNJ v R – must have at least one
element:
o Illegitimate/collateral purpose (Williams: can stay even if not substantial consequences)
o Unjustifiable oppression
o Capable of bringing ‘the administration of justice’ into disrepute
Can occur at any stage of the process, from bringing charges, double jeopardy, etc.
Examples:
o Lack of offence particularity Rogers / KP (week 4); Patel v R [2012] HCA 29.
o Purpose of proceedings Williams v Spautz; Moti [2010] QCA 178 (week 4)
o Inappropriate use of ex officio indictment Barton (week 4)
o Resubmitting previously excluded evidence Rogers [1994] HCA 42 (week 5)
o Double jeopardy / Controversion of earlier acquittal Carroll (week 5)
o Nolle prosequi Saunders (week 6)
Delay/Right to a prompt trial:
o 5 key considerations (Jago)
 Length of delay
 Reason for delay
 Degree to which the accused was responsible
 Degree of prejudice to the accused (Need not actually be proven prejudicial – in R v
Edwards, missing evidence *MAY* have been prejudicial, grounds for a stay)
 The ‘public interest’: fair trial without unreasonable delay
o Outcome depends on application of those factors to determine ‘unfairness’
 Jago: conviction with delay must be unfair and bring administration of justice into disreputeno unfairness demonstrated despite final trial 10 years after offenses
 Edwards: missing evidence, permanent stay granted because it may have been prejudicial –
whether continuation of proceedings would involve unacceptable injustice or unfairness
 Khoury: delays due to prosecutorial incompetence led to accused spending 200k on legal
representation and going bankrupt – permanently stayed
 Johansen: 20 year delay, key defence witness now dead, stayed permanently – also Gill
allowed permanent stay for dead key defence witness
 Wrigley: 5 year delay, witnesses still available, held not the fact that memories faded for
BOTH sides witnesses not sufficient for stay – not prejudical
 Owen v Edwards: Mere 2 year delay for lengthy regional trial not unusual
Publicity concerns – particularly relevant regarding child sex offences
o Glennon – permanent stay due to notorious and publicised criticism of Derryn Hinch overturned, as
‘mere conjecture on information’ not sufficient to deny – offending media was 3 years prior to trial.
Jury member might always be swayed by prejudicial information but jury can be directed and
supposed to decide fairly.
o Long – notorious fire, 15 backpackers died, 1.5 year delay + careful directions held sufficient to
prevent risk of unfair trial, no stay granted.
o Unlikely to justify a permanent stay any more
 Direct jury to disregard (Glennon)
- Directions can mean there is no prejudice (Kaddour)
- Jurors are sworn and should have robust capacity to disregard prejudicial info
(Dupas)
 Manage trial around publicity (Purdie)
 Question jury under s 47 to ensure not influenced (Ferguson)
 Adjourn until publicity fades (592 - mentioned in Glennon, applied in Long, Walters)
 Seek a forum change to another court under QCC 557(9) with accused consent (Long)
 Seek judge alone trial (614-615, though defendant must request)
 Adjourn so the problem can be fixed (s88JA; s592QCC);
 Refuse to accept a plea;
 Ensure appropriate procedures followed;
 Make appropriate rulings on evidence;
 Appropriately direct the jury;
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 Discharge jury members if necessary
Oppressive Prosecution
o Predominant purpose improper (Williams v Spautz – using proceedings as a threat, Saunders –
ulterior motive enough to justify throwing case out)
o Too vague: S v R – dates of child sex offences left so broad that ‘between 1st Jan and 31st December’
– led to fundamentally flawed trial
o ‘foredoomed to fail’ (obiter of the joint majority in Walton v Gardiner – eg. double jeopardy)
o Quasi double jeopardy – eg. Carroll – cannot bring perjury after earlier acquittal
o Excessive payments being made to witnesses (Moti)
o Tort of Malicious Prosecution (A v NSW) – elements:
 Criminal Prosecution were bought (relevant proceedings)
 Defendant acquitted (terminated in favour of D)
- Nolle prosequi is a termination in favour of P (Beckett)
 Prosecution bought with improper or malicious motive (sole or dominant purpose was
improper, not merely A purpose was improper)
 Acted without reason or cause
Will NORMALLY only result in directions being given, or a temporary stay to allow abuse to be rectified,
UNLESS it goes to the root of the trial, then permanent stay appropriate (Jago)
Can seek a stay during pre-trial application (590AA) or during/as part of an appeal
Temporary stays are allowed where necessary to preserve fair trial (Barton, Williams v Spautz)
(8) Legal Representation (The Dietrich Defence)
- Every person has a right to have counsel represent them, but not to have one provided (QCC 616)
- Unrepresented litigants have a right to a ‘McKenzie Friend’ at the courts discretion, based on complexity,
interests of justice, etc. (Damjanovic v Maley)
o Judges has obligation to give information and advice to unrepresented (McPherson) but can’t
directly aid accused or create the impression that they’ve taken the accused’s side in front of the
jury (Esposito) and shouldn’t directly cross-examine accused (Zurek)
- Courts cannot mandate representation, due to separation of powers
- BUT interests of justice will sometimes require a stay until representation is made available – HC in Dietrich
set out the test:
o Indigent
o Serious Offence
o Representation unavailable through NO FAULT of the defendant
o No Exceptional circumstances
- If test complete, trial must be adjourned, postponed or stayed until D can get representation
- If convicted and test fulfilled, and because of lack of representation, there was a miscarriage of justice,
conviction can be quashed
- Element 1: Indigence
o Based on whether the accused could afford appropriate representation – if long and complex trial,
even moderate assets may be insufficient (Marchi – no need to be living in poverty, Mead had $110k
in assets, but would cost $310k for defence - granted)
o Not a ‘snapshot’ test of current assets – based on activities done as part of leading up to trial - to
rely on defence, accused must have attempted to procure funds. More than mere inability to pay
with cash – assets that could be sold to cover expenses also relevant. (Rich v Hynes – moved into
more expensive house despite being declined legal aid, held), and potential support from
friends/family
o Financial position may depend on the defence raised (Roddan)
o Degree of funding provided from legal aid also relevant – if grossly inadequate, then indigence can
still be satisfied (Souser)
- Element 2: Serious Indictable Offense
o Must involve a real risk of actual imprisonment – common assault unlikely to be sufficient, or lesser
‘resisting arrest’ charges (Lankford), and a mere $400 fine clearly insufficient (Essenberg)
26
o
-
-
Does not apply for committals (Hefenbaum), enquiry (Cannellis), appeals
(Sinanovic – despite Kirby’s obiter lamenting this) BUT may apply for
summary judgements (Lankford considered it)
o Minor summary punishment, even if potential imprisonment, not serious (Khalifeh – held 1 year +
$4k max not serious)
Element 3: No fault of their own
o Need not deliberate or wilful, mere lack of diligence in seeking adequate legal preparation sufficient
(Small – distressed methadone addict, waited over 2 months until just 3 weeks prior before
contacting solicitor, lost legal aid, repeated delays, held circumstances constituted fault.)
o Failure to take reasonable steps also fatal (eg. Rich – not saving, moving house)
o Reasonable “a global assessment of behaviour” (Craig)
o Sacking/losing lawyers also considered fault/unreasonable (Batiste – repeatedly changing/sacking
lawyers and not providing explanation) unless valid grounds exist (East – requires POSITIVE finding
that they sacked to delay – here, lawyer left with judges permission, first change of counsel, had
legal aid, could have found replacement quickly, so deserved adjournment, Gassy – permitted in that
instance because judge erred in directing that if self representing during trial, then ALSO had to selfrepresent during voir dire) or exceptional circumstances (Wilson – inextricably linked to the
accused’s mental problems)
o Refusing competent counsel and demanding right to choose own legal team from legal aid NOT
grounds for a stay (Milat)
Element 4: No Exceptional Circumstances
o Defendant is actually a skilled litigant (Later Dietrich, Fuller – accused were also experienced
commercial solicitors)
o Not enough money provided to legal aid could mean inadequate representation (Souter)
(8) Legal Incompetence
- Flagrant incompetence has always been grounds for acquittal (Tuckiar – 1934 HC held that counsel who
made numerous errors over course of trial and afterwards inappropriately relayed confession of guilt
grounds for acquittal) – however it must be truly flagrant, and not a decision competent counsel could have
made (Paddon)
- Must be a material irregularity that affects the outcome
- BUT must result in substantial miscarriage of justice – mere failure to call a character witness may not meet
that threshold, particularly if tactical to keep character out of question ie. No material irregularity if merely
unstrategic (TKWJ) – even a completely incompetent counsel who didn’t know offense, object when
appropriate, or pursue open defences won’t matter in a truly open and shut case – no causal link between
incompetence and result (Nudd)
- Failure to cross-examine witness on an important issue is grounds for retrial (Birks)
(9) Sentencing – Proof Rules (Mostly Penalties & Sentencing Act, plus Evidence Act)
- Facts during sentencing: default burden of proof – balance of probabilities (Evidence Act 132C(3)) but degree
required increases according to adverse nature of consequences (132C(4)), and judges findings CANNOT
controvert jury findings (Cheung – no evidence of whether or not jury believed informant, judge found on
balance of probabilities he was telling the truth, more severe sentence imposed, not inconsistent with
original jury finding)
(9) Sentencing – Considerations for sentencing: (Penalties & Sentencing Act)
- Test for sentence is what is just, not what prosecution/ defence wanted (Ku)
- Sentence based exclusively (9(1)) on ‘just punishment’ (9(1)(a), Veen), rehabilitation (9(1)(b), Taylor &
Natapali – youth involved in service station holdup, young age relevant for rehabilitation), deterrence
(9(1)(c), Amituani –serious sentence to help deter ‘loutish brawling’, deterring lawyers from receiving bribes
Pangallo¸deterring perjury Sabanovic), denouncement (9(1)(d), Ku), community protection (9(1)(e), Veen) –
but frequently contradict (Veen)
- Should favour community based sentence over custodial if possible (9(2)(a))
27
-
-
-
-
-
-
-
-
-
Lengthy list of factors set out in 9(2) including ‘any relevant matter’ under 9(2)(r)
– can be mitigating or aggravating (Colless: more weight should have been given
to mitigating - co-operation, early guilty plea, prospects of rehabilitation)
If a factor considered relevant, the judge should give parties an opportunity to address it (Lui)
o Age (Youth relevant for rehabilitation (Taylor), but old age only a factor if coupled by ill health
(Gulyas: healthy 79 year old drug dealer, no discount))
o Intellectual Capacity (Verdins – risk of imprisonment having adverse effect on mental health,
reduced culpability, and inability to deter all relevant mitigating factors – but note community
protection considerations if unable to deter offender)
o Offenders character (11) – can include general community perception (Ryan)
o Damage, injury, or loss caused by offender (9(2)(c))
o Any co-operation with the authorities provided (13A, York)(disclosure to crown – AB v R) – but if
factoring in promised future co-operation, must impose dual sentences, setting out the alternative if
not fulfilled alternative (13A(7), Webber – assistance provided, but judge didn’t specify alternative)
o Injury inflicted by police (R v Galeano)
o Cultural considerations (relevant factors can be raised under 9(2)(r), but Fernando – notes that
judges must avoid racism/paternalism – only look at the specific facts) but NOT customary law (Hales
v Jamilmira)
o Hardship IF EXCEPTIONAL (self: York – potential of death. Others – Burns – young children + fragile
psychiatric state insufficient to prevent custodial, but potential there – balance rights of child against
community protection, being away from parents not enough Tilly)
Violent offenses (9(3) –preference for non-custodial under 9(2)(a) vanishes)
o Instead, look to factors in 9(4) – primarily geared around community protection
o Violence has a broad meaning, including threats of violence by accessories (Breeze – assisted
robbery of service station, another party threatened attendant with screwdriver)
o Must be aware declaration is ‘penal and prejudicial’ and must be warranted (Collins)
Sexual offences against minors (9(5) preference for non-custodial under 9(2)(a) also vanishes)
o Instead looks to 9(6) – primarily geared around community protection
o Broad meaning (McGrath – procuring children via the internet, but actually procured a police officer
– still held to be a sexual offence against children for 9(5))
General preference for instinctive synthesis, but no mandated method (Markarian)
Prosecution views are relevant, but should not be treated as gospel (Ku – indigenous gang rape of 10 year
old girl by mostly minors - prosecution didn’t press for custodial sentences, AG appealed, court overturned
sentences as manifestly inadequate)
Judges views should also avoid being overly emotive – can lead to perception of bias (Porter – repeated
insults and fault finding of lack of remorse justified minor sentence reduction)
Maximum penalties reserved for the worst of the worst, particular life sentences (Veen #2, Murdock
(manslaughter for life imprisonment) - looked at likelihood of re-offending and causing future special injury,
Fernando – not about ‘imagining worse’) – if no maximum specified, 5 years if indictable (153A(a)), 2 years if
summary (153A(b))
Consistency/parity also relevant (3(c)) - preference to impose similar sentences for similar offences /cooffenders, but must look at facts of each case (Pesnak – exceptional ‘breatharian’ manslaughter, looked at
effect of remorse sans guilty plea in other cases, held little relevance, Ku – compared other similar offenders)
while avoiding giving rise to a ‘justifiable sense of grievance’ (McQuire & Porter –degrees of remorse and cooperation relevant cf Postiglione – 13/18 year sentences based on cooperation held excessive, given they
were both equally culpable)
Totality principle – Goal is to match the totality of the crimes to the sentence, even if offences heard and
sentenced separately (Mill – one crime spree, sentenced 8 years in Victoria, then 8 more in Qld when
released – held second sentence should have been reduced). Sentence should not be crushing (HC obiter in
Postiglione – should be ‘in keeping with record and prospects’)
Should not be a ‘social dustbin’ (Dooley v Polzin – refusing to pay hairdresser repeatedly)
Victim impact statements can now be relevant to sentencing (Victims of Crime Assistance Act, 15), but they
come with their own dangers (Singh – late in piece, can’t be challenged, etc.)
Guideline judgements can be made to provide a ‘base’ sentence (15AA-15AL) but should only be used as a
rough guideline, not as specifying the sentence (Wong)
28
-
Custodial Sentence Rules:
o Judge MUST state reasons for sentence if custodial or suspended imposed
(10(1)), but failure to do so does not automatically invalidate, only relevant if appeal made (10(2))
o Custodial (and suspended, equal severity (Dinsdale)) only as last resort (9(2)(a)) unless violent
offence (9(3)) or child sex offence (9(5))
o Should be concurrent (155), but CAN be cumulative (156) and must be in special circumstances
(156A – escaping prison, breaching CSO, etc). Each offense must be given its own sentence, even if
served concurrently (Crofts)
(10) Recording Convictions (PSA)
- Court has discretion over whether or not to record for all but imprisonment or ICO’s (12(1))
- Depends on numerous factors, including nature of offence (12(2)(a) – less likely if trivial, few past offences,
no real community interest/danger in concealing truth (Briese – armed robbery and stealing – no real job
prospects, serious offences, recorded conviction), character/age (12(2)(b)), and impact on economic/social
wellbeing and employment prospects (12(2)(c)).
- Based on conduct of offender, rather than maximum penalty for the offense (Walden v Hensler)
- Consider what a recorded conviction would do to employment prospects: (Ndizeye, Dodd)
- Community interest factor – should always record sexual offences against children absent exceptional
circumstances (R v SAT – 17 year old boy touched 15 year old girl on the buttocks – church elders involved
with rehabilitation, placed on probation, record of conviction expunged on appeal) – but can extend to
jeopardising future prospects if mild enough (R v Mirza – stopped almost immediately, plead guilty, showed
remorse, in Aus on student visa that would be jeopardised)
- List of factors set out if Briese:
o To what extent, if any, was violence used?
o Was there exploitation or abuse of trust?
o Was there economic loss to the victims?
o Was there a history of past offences/high likelihood of reoffending?
o How serious/trivial was the offense?
(10) Types of Sentence (PSA)
Lower level penalty
->
Intermediate penalty
->
Higher level penalty
•
Conviction not recorded /
conviction recorded (s12 PSA)
•
Conviction not recorded /
conviction recorded (s12)
•
•
•
•
Bond / recognisance (Part 3)
Fines (Part 4)
•
Community Service Orders
(CSO) (Part 5)
Probation (Part 5)
•
•
-
Release (19)
o No conviction can be recorded (16)
29
Conviction recorded
Intensive Correction Orders
(ICO) (Part 6)
Suspended sentence of
imprisonment
(Part 8)
• Imprisonment (Part 9)
• Serious Violent offender
(Part 9A)
• Repeat child sex offences
(Part 9B)
• Indefinite imprisonment
(Part 10)
o
o
o
o
-
Fines
o
o
o
o
o
o
o
o
o
o
-
Can either release absolutely (19(1)(a)) or require offender provide such
sureties/obey such conditions as the court considers appropriate
(19(1)(b)) imposed under 19(2)
Court must consider offenders character, age, health, the nature of the offense (Walden v Hensler),
circumstances (18(c)) and anything else it ought to have regard to (18(d))
If reoffence, then D forfeits recognisance and may be brought before the court for resentencing (20)
Orders for restitution or compensation (with other penalties…) (ss34-43)
 Ferrari
 D a passenger in stolen vehicle
 Ordered to pay back $1000 for restitution of the stolen vehicle
 Not restitution - compensation for repair to damaged car
 Civoniceva
 Resititutionary order was appealed as manifestly excessive
 Bond (the sentence) and restitution orders are separate - not a question of a
manifestly excessive sentence
Discretion to record conviction (44)
Can be in addition to or instead of other sentence (45(2)) based on judicial discretion subject to
maximum for the offence (45(3)(a)) or if no maximum, based on the court (46(1) – 165 for Mag,
4175 for District??), or any lesser amount (47), taking into account financial circumstances and
degree of burden (48(1))
Penalty unit = $110 (5)
S48 allows court to consider the burden of a fine upon the accused - accused in a better financial
situation pays a heavier fine - Substantive rather than formal equality
 Woolard
 $1100 fine
 Discussion about the burden of the crime to the accused
Fines can be converted into community service orders - sper - works out service to try and pay off a
fine
Meid
 Grew cannabis in victoria, took esky of marijuana on a road trip and shared along the way
 Went to court in qld - fined and would have liked to convert into a community serviceorder,
but couldn’t because she lived elsewhere
 She appealed on manifestly excessive grounds
 Court dismissed - not whether they can do service, but whether the fine could be paid
Prentice
 $40 000 fine - appeal on manifest excess
 At time he was sentenced, he was bankrupt and had to sell house to pay for trial
 No job and couldn’t go back into selling used cars
Can be a single fine for multiple offences on same facts/series of similar offences (49)
Infringement notices on fines - no legal aid available to contest
Infringement notices don't turn up on criminal record
Probation
o Discretion to record conviction (90)
o Requires consent (96)
o Can be immediate (92(1)(a)) for 0.5-3 years (92(2)(a)), or following a term of imprisonment of up to 1
year (92(1)(b)) for 0.75-3 years (92(2)(b)).
o Cannot combine with a suspended sentence for that same offence (92(5)) but can for a separate
offence (R v Hood). Hood:
 Immediate probation can be imposed at the same time as actual imprisonment (of up to 12
mths- even where continues as suspended after that period) on other counts. [41]
 Probation can not be ordered at the same time as an Intensive Correction Order [41]
 No inconsistency suspended sentence on one offence and probation on another offence [48]
30
o
-
-
-
-
-
-
Requirements under (93) include not re-offending, reporting at ordered
times/places, visits, counselling, notification, and staying in Queensland,
and any additional conditions the court feels are necessary (94(b))
o Can merge multiple offences in single order (97) or combine with CSO (109, Mathers)
Community Service Orders
o Discretion to record conviction (100)
o Must be suitable (101) and consent (106)
o Requires unpaid community service (102) for 40-240 hours (102(2)(a)) within a year OR time allowed
by the court (102(2)(b)), plus probation style reporting/visitation requirements (103(1)(a-c))
o Can group multiple offences (107(1)) but cannot exceed 240 hours (107(2-3)).
o Can combine with wholly or partly suspended sentence for a different offence at the same time
(Vincent – Court can allow additional time if necessary) or Probation (109, Mathers) but not ICO
(Grieg)
o Hours worked are not proportionate to value worker could have earned, but rather a form of
punishment in the loss of leisure time. (Nieto v Mill)
Intensive Correction Orders
o MUST record conviction (111)
o Must be for a 1 year or less (112)
o Judicial fiction – whether it counts as imprisonment based on circumstances (113) – akin to
imprisonment, but not a last resort (Hesketh)
o Includes probation (114(a-d)) and community service (114(e)) requirements, in addition to
residential requirements (114(f-g)) – up to 12 hrs/week at programs/community service (114(2))
plus additional reqs considered necessary (115) – high requirements of an ICO akin to substantial
curtailment on freedom (Tran)
o Can group multiple offences in 1 order (118(3)), combine with imprisonment of up to 1 year (118(1))
or combine with suspended sentence, even if greater than a year (Skinner)
NB: Court can amend or revoke Probation, CSO, or ICO if circumstances materially change (120(1)(a)), were
not correctly reported (120(1)(b)) or offender refuses to comply (120(1)(c)), allowing resentencing (121(1))
factoring in degree of earlier compliance (121(3)), and contravening the orders is an offence under (123), in
addition to allowing numerous orders of payment (125(2)(a)), increasing hours with consent (125(2)(b)) or
extending period (125(2)(c)), or re-sentence them instead (125(4))
Suspended Imprisonment
o Must record conviction (143)
o Must be 5 years or less (144(1)), can be whole or partial (144(3)), but must be severe enough that it
would have been appropriate to imprison (144(4), Dinsdale – 2 step test: 1 imprisonment
appropriate, 2 suspension appropriate)
o Two parts – length of suspension (144(1)) and length its suspended for (144)(5)), which must be at
least length of suspension (144(6)(a)) and not more than 5 years (144(6)(b))
o If the court is satisfied that an offense is committed during the suspension period (146) the court
may either extend the period (147(1)(a)), or order that the imprisonment be wholly (147(1)(b)) or
partly (147(1)(c)) served, preferring wholly unless it would be unjust (147(2)) after factoring in
triviality of new offence (147(3)(a) – includes looking at rehabilitation (Stevens)), seriousness of
original (147(3)(b)), and any special circumstances that have since arisen (147(3)(c)) – if it DOES feel
it is unjust, reasons must be provided (147(4)), but failure to do so will not invalidate the order (149).
o Concept of ‘unjust’ is imprecise and value-laden, but the court will not lightly interfere with the
policy of a breach resulting in re-imprisonment (Holcroft – though there they only ordered 9/24
months be served) but flexible, and based on discrepancy between offences (Hurst – drink driving
offence not sufficient to activate child sex suspension) – can also order imprisonment + immediate
parole for greater severity (Summerlin)
Holcroft
o The full period of the sentence should be served on breach unless it is unjust
o But it should be served, otherwise it undermines the integrity of the suspended sentence
o A trivial offence committed late in the suspension may not activate sentence
Imprisonment
31
o
o
-
-
-
Must record conviction (152)
Starts - Indictment: day of conviction (154(1)(a)), summary: day of
custody (154(1)(b)), but time held in pre-sentence custody is to be conducted (159A(1))
o Default: Concurrent unless otherwise ordered or required (155) but can be cumulative (156) and
MUST be cumulative if serious violent while already imprisoned (156A)
Custodial Sentence Rules:
o Judge MUST state reasons for sentence if custodial or suspended imposed (10(1)), but failure to do
so does not automatically invalidate, only relevant if appeal made (10(2))
o Custodial (and suspended, equal severity (Dinsdale)) only as last resort (9(2)(a)) unless violent
offence (9(3)) or child sex offence (9(5))
o Should be concurrent (155), but CAN be cumulative (156) and must be in special circumstances
(156A – escaping prison, breaching CSO, etc). Each offense must be given its own sentence, even if
served concurrently (Crofts)
o Remand periods to be deducted (159A)
Parole (Only applies if imprisoned)
o If less than 3 years and not serious violent/sexual: RELEASE date set by court (160B)
o If more than 3 years, court MAY fix an ELIGIBILITY date, rather than release date (160C normally,
160D if serious violent or sexual offense)
o Serious Violent offenders declaration – automatic if sentenced to 10 years or more for a schedule 1
offence (161A) and optional if sentenced to more than 5 for a schedule 1 (161B(3)), or offense
involved violence and serious harm (161B(4)) – must serve 80% minimum before parole if declared a
serious violent offense (Corrective Services Act 2000 135(2)(c), McDougall) – but judge must be
aware of additional consequences
o Life sentence = 20 year parole limit (181 Corrective Services Act)
Indefinite Imprisonment
o Can be imposed instead of a fixed term (163(1)) at courts initiative (163(1)(a)) or prosecution
request (163(1)(b)), but must state the nominal term that would have been imposed (163(2)) and be
satisfied that the offender is a serious danger to the community (163(3)(b)), having regards to 163(4)
factors, including age, character, medical/psych reports, risk of harm to the community, and
community protection.
o Regular reviews must be conducted (162)
o Standard of proof for ‘serious danger’ only requires acceptable, cogent evidence to a ‘high degree of
probability’ (170)
o Must be grave/serious for the WHOLE of society, not only a small part (McGarry)
o Also available via the Dangerous Prisoners (Sexual Offenders) Act (eg. Fardon)
(11) Appeals from Magistrates Court to single District Court Judge (Justices Act)
Initial hearing
Appeal
Magistrates
Court
District Court
s222 Justices
Act
District Court
-
Court of Appeal
via s118 District Court Act & s668D
QCC
High Court
s35 / s35A Judiciary Act 1903
(Cmth)
Court of Appeal
s668D QCC
(chapter 67 QCC)
Supreme Court
-
Aggrieved person (complainant with a ‘real or direct interest, not mere busybody’ (McCarthy v Xiong) or
defendant) can appeal within month (222(1)) – but can extend time under 224(1)(a) – (Tait)
32
-
-
-
-
-
-
-
222 (2) However, the following exceptions apply—
o (a) a person may not appeal under this section against a conviction or
order made in a summary way under the Criminal Code, section 651;
 NB:s651 (2) QCC The court* must not hear and decide the summary offence unless—
 (a) the court considers it appropriate to do so; and
 (b) the accused person is represented by a legal practitioner; and
 (c) the Crown and the accused consent to the court so doing; and
 (d) the accused person states his or her intention of entering a plea of guilty to the charge;
and
 (e) the complaint or bench charge sheet for the offence, or a copy, is before the court,
whether or not returnable before another court.
o (b) if the order the subject of the proposed appeal is an order of justices dealing summarily with an
indictable offence, a complainant aggrieved by the decision may appeal under this section only
against sentence or an order for costs;
o (c) if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under
this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or
inadequate.
 Except if charge did not exist at law (Hall v Bobbermen) or plea was equivocal (Ajax v Bird)
 Can also appeal costs (Samson)
Mckinlay - any appeal of the police officer of an indictable matter heard summarily is only open to
sentencing or costs
Cannot increase sentence without first advising the parties Lucev
Can also appeal the decision to hear summarily (QCC 552J)
AG can appeal against sentence or refer a point of law (669A QCC, Harrison v Wilkins)
No appeal if summarily dealt with in a higher court (222(2)(a)) – straight to CoA (668D(1)(c))
Ordinarily a re-hearing on the ORIGINAL evidence (223(1)) but with leave, can include fresh, additional, or
new if satisfied of grounds (223(2) – Pavlovic - applies Gallagher test:
 evidence not available first instance with due diligence
 evidence is credible
 evidence could lead to a different verdict
The judge hearing the appeal should afford respect to the decision of the magistrate and bear in mind any
advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to
review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions see (Rowe v
Kemper )
Appeal judge has various other powers to make orders, amend, adjourn, etc. (224)
Can confirm, set aside, or vary order (225(1)) and if set aside, may send back to Magistrates with directions
(225(2)), and make any costs orders they think fit (226), and can also send any questions up to the Court of
Appeal as a special case stated (227, Harrison v Wilkins)
Costs: Possibility that judge awards costs - a discretionary decision by the courts - will depend on the
behaviour of the parties - were they acting reasonably?
o Murray v Redford
 M a local councillor, got into dealings that would have benefitted him
 Charged but found not guilty - he claimed costs against the police
 District court did not award costs against police - he was behaving erratically,
unreasonably
 He appealed, costs were then awarded against him for being a total pain
 Broad discretion, interests of justice
Appeals to CA under District Court Act s118 are for questions of law - so it is pretty tough to get from mags
court to CA
o Von Schultz v Durant
 Leave issue
 Court said it had to be a question of law of some weight to get leave to CA
NB: if AG appeals under 669A QCC, straight to court of appeal
33
(11) Appeals against conviction from District or Supreme Court (QCC)
- Process:
o 671 In time?
o 668D Right or leave?
o 671B Fresh evidence?
o 668E(1) Grounds
o 668E (1A)Question whether miscarriage substantial (loss of chance of acquittal)
o (Wilde Question whether fundamental error??)
o New trial?
- From District Court in their appellate jurisdiction – with CoA leave (118(3) District Court Act)
- Legal right to appeal on question of law alone (668D(1)(a), Fitzgerald – incorrect instructions by trial judge to
jury constitutes an error of law)
- Leave required for question of fact or mixture (668D(1)(b), Zischke – two questions, one fact, one law –
requires leave) or severity of sentence (668D(1)(c))
- Fact/law distinction frequently unclear (Ostrowski v Palmer – ultimately held that the defence of mistake of
fact could not apply for mistake that he could fish within a zone that had been specified by WA Govt, but
even High Court divided)
- Must be bought within a month (671(1)) even by the AG (671(2)) but can be extended for either by the court
(671(3)) – in deciding this, they look to the reason for the delay, though exceptional circumstances not
necessary (Tait – generally whether there is good reason to account for delay, viability and whether in the
interests of justice, no limit for extension to avoid prejudice, NI – over two year delay, only became aware of
grounds to appeal when in prison, not sufficient) and strength of appeal (Riley – 15 month delay, argued did
not intend to plead guilty to rape, held no substance, rejected ), personal circumstances (Hatten – young,
unrepresented, stupid)
- May admit fresh evidence (671B(1)(a)) or witnesses (671B(1)(b-c)) where it is necessary or expedient in the
interests of justice – but must have been unobtainable (R v A – younger sister of victim pressured to make
certain statements during testimony – only occurred during trial, not obtainable earlier, Gallagher –
confession only made afterwards) at the time of the trial, and be significant (eg. Mickelberg looked at Griffith
CJ’s ‘reasonable probability it would make a difference’, while R v A required a ‘significant possibility’ of
acquittal) as well as reliability (Gallagher – later confession by another Gallagher already imprisoned not
held to be reliable – not available before, credible, result in different jury verdict)
- Appeal against conviction: 3 possible grounds (668E(1)):
o Unreasonable and cannot be supported by the evidence (M v R – one uncorroborated witness,
inconsistent medical evidence, overturned – noted that jury in preferable position, but if any
reasonable jury would have had a reasonable doubt, must overturn. TU – for a decision to acquit on
some/convict on others, it must be inexplicable – jury may want to let defendant off on some
charges, or simply find some reasonable doubt on others, only question was it possible to convict on
the ones they did, held yes. Dally – complainant evidence different to multiple witnesses –
necessitated reasonable doubt; MFA - committal test –sufficiency – is different from unsafe test –
were the convictions proved/ are they unsafe?)
o Wrong decision on a question of law (Nicholls – error of law in permitting off-the-record confession,
Ridgeway – error in permitting evidence despite public policy grounds. Fingleton – error in bringing
claim despite magistrate’s protection)
o Miscarriage of justice OR appearance thereof (Apperance: Svabo – public appearance of
impropriety, Webb – juror delivering flowers to deceased’s mother, Festa – directions regarding
witnesses)
- BUT can ‘apply the proviso’ if it considers that no SUBSTANTIAL miscarriage occurred (668E(1A), Weiss –
detailed discussion of circumstances meriting the proviso by HC, Wilde – ‘real chance of acquittal’ (Festa), or
inevitable conviction? Darkan, Deemal-Hall & McIvor – mere error in summing up law not a fundamental
error – proviso still applies if conviction inevitable)
- ALTERNATIVELY, a fundamental error could have occurred that is so radical, it is not appropriate to apply the
proviso, as trial was so flawed (idea initially raised in Wilde, but has never been successfully established. eg.
Nudd – grotesque incompetence?)
- R v Navarolli [2009] QCA at 168
34
o
-
-
-
An appellate court cannot be satisfied that no substantial miscarriage of
justice has actually occurred unless it is satisfied beyond reasonable
doubt that the appellant is guilty of the offence.
o The limitations on the appellate process may mean that it is impossible for the court to be so
satisfied in the circumstances of the case, simply by reason of the nature of the process.
o Satisfaction of guilt beyond reasonable doubt is a necessary, but may not be a sufficient condition
for the application of the proviso .
o There may be some errors or miscarriages of justice which amount to such a serious breach of the
presuppositions of the trial as to deny the application of the appeal provision with its proviso
No need to satisfy the proviso where error goes to root of proceedings, but no rigid formula for determining
fundamental error (Wilde)
Appeal on conviction results in quashing (668E(2)) while appeal against sentence results in sentence
variation (668E(3)), but if only some charges quashed, can merely vary overall sentence (668F(1)), and if
alternatives WOULD have been found, can substitute and alter sentence (668F(2))
If quashed, MAY grant a new trial (669), but two stage test (DPP v Fowler)
o Is evidence cogent (ie not fabricated)?
o Is it just to order retrial? (Length of time imprisoned out of overall sentence (Parker). How serious
was the original offence? (Condren – murder almost inevitably retried). Would the trial be fair?
(publicity concerns – Tuckiar – lawyer publically confessed afterwards). Have additional retrials
already been ordered? (Wilson – had already been retried)) – if cogent evidence, must have a REAL
problem to prevent retrial (Gassy)
Crown may appeal against setting aside a conviction without retrial (Taufahema)
(11-12) Appeals against sentencing (QCC)
- Appeals against Mags Court sentencing
o (defendant or police officer) Where plead not guilty: s222(1)JA to District Court
o Where plead guilty: s222(2)(c)JA to District Court
o JRB v Bird – House principles apply, must demonstrate an error
o AG Appeals: Where indictable offence determined summarily: s669A(1)(b) QCC to Court of Appeal
(if defence are also appealing conviction and / or sentence effect here is to send entire appeal to
CA).
- Higher courts
- Must also apply for leave (668D(1)(c)) but AG doesn’t need to (669A)
- If ONLY convicted person appeals, procedural fairness requires chance to withdraw if increasing sentence
(Neal) but if functionally same sentence, not necessary (Sheppard)
- Both accused and AG when appealing under 669A (Lacey) must establish House Principles:
o Error in exercising discretion
o Wrong principle applied (Dinsdale)
o Extraneous or Irrelevant matters considered
o Mistake of fact
o Ignored material consideration
o Completely unreasonable/unjust (York)
o Manifestly inadequate/excessive (Gardner /Skinner)
- When AG appealing, original sentencing approach of prosecution relevant – can’t effectively allow ‘two
separate prosecutions’ due to double jeopardy considerations (Vincent) but if it would result in a manifest
injustice, will still be permitted – sentence deal between defence and prosecution doesn’t affect discretion
(Ku)
- AG must establish House principles in appeal, then Court’s discretion is unfettered to award another
sentence – equality of principle, not outcome (Lacey)
- House principle errors don’t need to be too specific (Major) but even if error identified, sentence must still
be manifestly inadequate/ excessive (Kuzmanovski)
- AG can also appeal against decisions to stay proceedings (669(1A), Ferguson, Moti) or refer a point of law up
to the Court of Appeal (669(2A) Folling)
- AG can also appeal against a Court of Appeal acquittal, though not a jury acquittal (Glennon, Taufahema)
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(11-12) Appeals from Court of Appeal to High Court (Judiciary Act)
- High Court has jurisdiction to hear them (35(1)) but must first grant special leave
(35(2)) having regard to: (35A(a))
o Is there a question of law of public importance, of general application or otherwise?
o Is it necessary to resolve an area where opinion differs between different courts?
o Is it in the interests of justice, generally or in this particular case?
o Something “special” is needed (White), principle of general application (Morris)
- Re: Sentencing appeals – even if principles are wrong, the sentence must ALSO be manifestly wrong to be
overturned (eg. Veen #1 – life sentence manifestly wrong)
- s36 wide powers of the HCA in response to appeal
- s37 can order new trial
- Examples conviction:
o Dietrich 1992 HCA (fair trial)
o M 1992 HCA (interpreting s668E QCC)
o Carroll 2002 HCA (double jeopardy)
o Tofilau 2007 HCA (Police ROI)
- Examples sentence:
o Veen 1988 HCA proportionality
o Mill 1988 totality
o Dinsdale 2000 suspended sentences
o Ryan 2001 character
o Cameron 2002 guilty pleas
o Gas & SJK 2001 plea agreements
- HCA – principle
- CA – principle and tariff
(12) Royal Prerogative of Mercy (Constitution of Queensland)
- Preserved under QCC 18
- May pardon, commute, etc. for any period the Governor feels is appropriate (36(2)) either unconditionally or
subject to lawful conditions (36(3))
- Does not actually result in acquittal or cleared name – only affects the sentence 677 QCC (Martens)
(12) Executive Pardons
- Also preserved under QCC 672A
- Can refer case to the court of appeal to hear the petition (672A(a)) who CAN quash conviction, or only assist
on one or more points (672A(b))
- Usually involves fresh evidence (eg. Mallard – discovery police suppressed evidence)
- Unless CoA involved, only affects sentence, not actually an acquittal (677)
(11) Appeal Considerations/Formalities
- Was it in time? (671)
- Is it by right, or must leave be sought? (668D)
- Is any fresh evidence admissible (671B)
- What grounds is the appeal being made on? (668E(1))
- Would it actually have made a difference? (668E(1A)) OR fundamental error? (Wilde)
- Would a new trial be ordered?
Restoring justice
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
Key legislation = Victims of Crime Assistance Act 2009 (Qld) (VOCA)
VOCA focuses on the ‘timely provision of financial assistance to victims for services they require as a result of
their injuries, rather than a compensation-based scheme.
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VOCA states fundamental principles concerning the treatment of victims and a
victim compensation scheme
Fundamental principles (similar to UN Declaration) are set out in Part 2 of the Act and include:
o Fair and dignified treatment (s8 VOCA)
o Information on services, investigation, prosecution and role as witness (ss10-13 VOCA)
o Minimising the contact between victim and accused (s14 VOCA)
o Giving details of impact of crime on victim during sentencing (s15 VOCA)
o Receive information about the convicted offender (s16 VOCA)
The fundamental principles are not rights – only principles (s7 VOCA)
o Can a victim complain if a principle is breached? Yes – can complain to a government entity or victim
service coordinator (s19 VOCA)
Giving details of the impact of the crime (s15 VOCA)
o The victim may give the prosecution details regarding the harm they have suffered due to the
offence in order for the prosecution to inform the court (this is not mandatory)
o The prosecution will decide what details (if any) are to be given to the Court (possibly considering
the victim’s wishes) (s15(3) VOCA)
o Details can be given in a victim impact statement (VIS) (s15(9) VOCA)
 Victim impact statement is a written statement that states the particulars of the harm
caused to a victim by an offence and may include documents supporting the particulars
(e.g. medical reports, photographs, drawings, etc)
 What happens with a VIS?
 The sentencing judge will consider the VIS
 The contents of the VIS may be considered as facts for the purpose of sentencing
when uncontroverted (disputed) by the other part
 The sentencing judge decides how information in the VIS are given to the Court and
to what extent it should influence the sentence
 Benefits and concerns of VIS:
 Can be helpful for victims to overcome trauma
 Violation of sentencing principles – objectivity, uniformity (different victims will
write different quality VIS’)
 May lead to an increase in the length of the sentence (however, no empirical
research to support this)
 Irrelevant (no influence on decision-making)
 “Sentencing judges should be very careful before acting on assertions of fact made in
victim impact statements. The purpose of those statements is primarily therapeutic. For that
reason victims should be permitted, and even encouraged, to read their statements to the
court. However, if they contain material damaging to the accused which is neither selfevidently correct nor known by the accused to be correct …they should not be acted on.
The prosecution should call the appropriate supporting evidence. It is unfair to present the
accused with the dilemma of challenging a statement of dubious probative value, thereby
risking a finding that genuine remorse is lacking, or accepting that statement to his or her
detriment.” – per Fryberg J in R v Singh
Victims are still not parties or ‘quasi parties’ to the trial and cannot exercise the same rights as parties at
trials (e.g. make submissions and statements, examine and cross-examine, etc)
victim assistance


Under VOCA, a victim of an act of violence, who has suffered and injury and who is deemed eligible may
apply to receive assistance
Who is a victim?
o A person who has suffered harm (s5 VOCA)
 Because a crime is committed against the person;
 Because the person is a family member or dependant of a person who has died or suffered
harm because a crime is committed against that person; or
37

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
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As a direct result of intervening to help a person who has died or
suffered harm because a crime is committed against that person
o There are different categories of victims in VOCA: (s26 VOCA)
 Primary victim = a person who is injured or dies as a direct result of an act of violence being
committed against them
 Secondary victim: two types –
 Parent Secondary Victim = a parent of a child who is injured as a direct result of
becoming aware that their child has been injured by an act of violence
 Witness Secondary Victim – a person who is injured as a direct result of witnessing
an act of violence
o Witness = directly witnessing or hearing the act of violence being committed
(Sch 3 VOCA)
 Related victim = a close family member or a dependant of a primary victim who has died
What is an act of violence?
o Act of violence = a crime committed against a person, or attempted to be committed against a
person, which directly results in death or injury to the victim (s25 VOCA)
o Crime must be committed in Queensland; however, the relevant death or injury does not have to
occur in Queensland
o The crime can be committed by one or more persons and may involve a series of related crimes
o Limited to acts of violence because property crimes should be covered by insurance
What is an injury?
o Injury is defined to include any one or more of the following: (s27 VOCA)
 A bodily injury
 Mental illness
 Intellectual impairment
 Pregnancy
 Disease
o An injury that results from a sexual offence is defined to include such things as a sense of violation,
reduced self-worth and any adverse impact on feelings
Who is eligible?
o The assessor must be satisfied on the balance of probabilities that the applicant is eligible for
assistance (s78 VOCA)
o To be eligible, the act of violence must ordinarily have been reported to the Queensland Police
Service
 Exception – in cases of ‘special primary victims’, it will be sufficient if the matter has been
reported to a counselor, psychologist or doctor.
 A ‘special primary victim’ is a primary victim:
o Of an act of violence involving and sexual offence; or
o Of an act of violence that was committed by a person who was, at the time
the act was committed, in a position of power, influence or trust regarding
the victim; or
o Who was a child at the time the act of violence was committed; or
o Who has an impaired capacity (whether or not the impairment existed when
the act of violence was committed); or
o Who is being threatened or intimidated by the person who committed the
act of violence, or by someone else
o A person will not be eligible for financial assistance if:
 Without reasonable excuse, they have not reasonably assisted the police or prosecution
and, as a result of their failure to do so, prevented an arrest or prosecution; or
 They were directly or indirectly involved in the commission of the act of violence
Assessment Process
o This is an administrative scheme (not through the court system)
 The victim will present a VIS. An administrative assessment will be made. If successful, the
victim will receive money though the scheme
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o

Applications are made to a statutory body – Victim Assist Queensland
(VAQ). Assessed by a government assessor with VAQ (assessor must
observe principles of natural justice and act as quickly as possible)
o An application must generally made within three years of: (s54 VOCA)
 The act of violence;
 The death of a victim; or
 A child victim turning 18
o An assessor can reduce the amount of assistance paid in a number of circumstances (e.g. if the
applicant directly or indirectly contributed o their injury) (s85(2) VOCA)
 If an assessor intends to reduce the amount of assistance or intends to reject the
application, the applicant must be notified and is entitled to make written or oral
o Once a final decision is made, the assessor must notify the victim of the decision in writing
 If the application is successful – the notice must include an outline of the amounts that are
payable (s90 VOCA)
 If the application is unsuccessful – the notice must include reasons for the decision and an
outline of how to apply for an internal review of the decision (s91 VOCA)
 An application for internal review is made to the scheme manager and must be
made before an external review is sought from QCAT
o A person will only receive payment after the assessor has been forwarded an invoice or receipt for
the expenses (s93(2) VOCA)
 Interim assistance of up to $6,000 for expenses occurred during the assessment of an
application (but before the final decision) may be granted (Pt 14 VOCA)
 submissions about the assessor’s proposed decision (s88 VOCA)
o The State can pursue the offender for the money
 The offender must be given notice of the intended recovery of money and is able to dispute
the claim
Amount of financial assistance available:
o The amount of financial assistance available and the type of expenses covered will depend on what
category of victim the applicant falls into (primary, secondary or related)
o The maximum amount of financial assistance available to primary victims is $75,000, including a
special assistance amount of up to $10,000 plus up to $500 for legal costs
o Type of expenses covered = reasonable counseling, medical expenses and loss of earnings ups to
$20,000 (ss38, 39 VOCA)
 In exceptional circumstances, assistance may extend to expenses that will significantly help
the victim recover (e.g. relocation costs) (s28 VOCA)
o This is not compensation; rather, more of a recognition that the person is a victim
o If the offender is wealthy, it may be more beneficial to the victim to sue through the civil system
(however, most offenders are poor)
Justice Mediation

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In Queensland, justice mediation is available for adults
Justice mediation usually occurs when the offender appears in the Magistrate’s Court (e.g. stealing, assault,
wilful damage. unlawful use of a motor vehicle, etc)
Face-to-face meeting between a person who has been harmed in an incident (the complainant) and the
person responsible for the incident (the defendant)
Justice mediation is voluntary and confidential (but also unaccountable)
The offender admits guilt  there is a referral in lieu of sentence
o Matters can be referred to mediation by the police, the ODPP or the Court
Participants in the mediation are encourages to discuss the consequences of the offence and the most
suitable outcome of the conference
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
Aim = work out ways the offender can make amends. Making amends means
being responsible for actions. It may involve:
o Returning stolen property
o Agreeing to do something for the complainant, such as paying money or repairing damage
o Making an apology
o Offender may agree to attend counselling/violence program, etc
Indigenous Justice
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Indigenous sentencing list:
Defs must be on bail.
Indigenous offenders ;plead guilty; offence that can be heard in Magistrates Court.
Elders, Respected Persons, Community Justice Groups and the offender’s family involved in the sentencing
process.
Magistrate makes final decision; imposes sentence (R v Roberts (2002) QCA)
S9(2)(p) PSA
Effect on recidivism?
Can be appealed: Baker v Queensland Police Service [2009] QDC 245
Brisbane, Ipswich, Caboolture, Rockhampton, Cairns, T/ville, Mt Isa.
Roberts
o
D pled guilty to 3 offences
o
Accumulated sentences
o
Community justice group recommended a non-custodial sentence
o
Appealed saying there was not consideration given to the elders' views
o
They had been considered, but judges have ultimate discretion
o
S9(2)(p) PSA
Baker v QPS
o
Violence/ assault offences against partner
o
Granted bail, attended numerous meetings with community
o
Quite onerous requirements by community
o
Appealed sentence based on rehabilitation during bail
o
Penalty was reduced to take into account his efforts on bail
Bugmy
o
Had deprived childhood, issues with cognitive development and dysfunctional behaviour
o
Violent offender
o
HcA recognised early experiences of disadvantage can have long term implications - can be taken
into account in sentencing process
Munda
o
Similar issues to Bugmy
o
Munda killed his wife
o
He claimed that traditional violent punishment by community should be relevant to proper
sentencing
o
Court did not come to solid conclusion, but they couldn't support vendettas or violent retributive
tribal law where that amounts to the commission of an offence
QLD Courts Referral
Bail-based process that enables defendants to engage with government agencies and non-government organisations
to address the causes of offending behaviour by assisting defendants who come into contact with the criminal justice
system as a result of:
 drug and/or alcohol dependency
 mental illness
 intellectual disability
 cognitive impairment
 homeless people or those at risk of homelessness.
40
The Queensland Courts Referral program operates at Arrest Courts of the Brisbane
Magistrates Court.
Who is ineligible?
 Indictable offences that must be dealt with on indictment;
 A defendant who does not wish to be referred;
 Insufficient service capacity.
Process:
 Referred for assessment.
 Becomes part of bail.
 Successful engagement may impact on sentence.
41