Criminal Law and Procedure B Notes
Burden of Proof



Presumption of innocence => Woolmington
Prosecution
o Woolmington
 Subject to defence of insanity [s 27 QCC] and statutory exceptions,
the prosecution must prove the defendant’s guilt beyond a
reasonable doubt
 Exceptions:
 Provocation (assault): ss 268, 269 QCC
 Self-defence: ss 271, 272 QCC
 Diminished Responsibility: s 304A QCC
 Accident: s 23(1)(b) QCC
 Mistake of fact: s 24 QCC
 (Sane) automatism: s 23(1)(a)
 Others…
o Woolmington adopted in Australia in Mullen v The Queen
 Evidentiary and legal/persuasive onus (only legal vis-à-vis defences)
o Threshold: Beyond a reasonable doubt => Dawson v The Queen; (re murder:
Weisz)
 ‘Time-honoured formula’ and should be left to jury without further
explanation => Dawson v The Queen
 ‘Absolute certainty’ not appropriate => Gonclaves v The Queen
 The words mean what they say => R v Punj
 Judges should not illustrate or explain the phrase => R v Wilson,
Tchorz and Young
 Cannot even build upon the basic words => Green v The
Queen
 Even a small error can affect the fairness of trial => Robinson v The
Queen
o Prosecution must present appropriate evidence to the court
 If judge considers evidence appropriate, will direct jury that they can
consider it => R v Menniti
 However, vis-à-vis defences, the prosecution need not produce
evidence for every defence that could possibly be raised => R v
Youssef
Accused
o Accused has right to silence and privilege against self-incrimination => RPS v
The Queen
o Has evidential burden for defences
 ‘Sufficient foundation’ (BoP) => R v Menniti; CTM v The Queen
 Evidence can be called indirectly (e.g. cross-examine prosecution
witness) => R v Buttigieg
 Evidence can be adduced from prosecution’s case => He Kaw Teh v
The Queen
 Accused doesn’t need to testify => Lee Chun-Chuen v The Queen
o Judge and Defence
 Judge must decide whether defence raised on facts


Judge required to consider version of events most favourable to the
accused => Stingel v The Queen
 If judge thinks evidence could not create a reasonable doubt
– withhold from jury
 If in doubt, leave to jury
 Even if accused doesn’t raise a defence, if it is apparent on the facts,
judge has duty to refer to jury => Stingel v The Queen
 Even if contradictory with other defences the accused has
raised => Fingelton v The Queen
o Reverse onus
 Where stated expressly (e.g. ‘it is a defence to prove…’)
 Only balance of probabilities => Carr-Briant; R v Nuttall
Jurisdiction
o S 12(2) QCC: The Code applies to acts, omissions or events in QLD that
constitute an offence
o If in doubt, prosecution need only prove jurisdiction on the balance of
probabilities => Thompson v The Queen
o An offence started in one state and completed in another can be charged by
either state => s 70, Judiciary Act 1903 (Cth)
Police Powers


Key concepts
o Reasonable suspicion
 George v Rockett: less than what is needed to ground a belief, but
must have some factual basis
 Queensland Bacon v Rees: ‘more than mere idle wondering…
positive feeling of actual apprehension… slight opinion’
 Dobbs v Ward and Anor: may come to nothing (result does not
vindicate or invalidate the use of the power)
 Forrest v Normandale (SA case): behaviour of the suspect may give
rise to a suspicion
 Rowe v Kemper: suspicion must have been held by the relevant
officer/s at the relevant time
o Reasonably necessary
 Thomas v Mowbray: appropriate and adapted => linked to
proportionality
Pre –arrest search powers
o Persons
 Without a warrant: a police officer who reasonably suspects any of
the prescribed circumstances may stop and detain the person (s
29(1)(a) PPRA)
 That person can then be searched (s 29(1)(b) PPRA)
 Police officer can seize anything providing evidence of the
commission of an offence (s 29(2)(a) PPRA), or anything the
person intends to cause harm to themselves or others with
(s 29(2)(b) PPRA)

o
o
o
o
Prescribed circumstances => s 30 PPRA

Vehicles
 Similar to persons => s 31 PPRA
 Prescribed circumstances => s 32 PPRA
Public places => need consent of occupier (s 33(2)(a) PPRA) or warrant (s
33(2)(b)PPRA)
 Power to enter a public place and stay for a reasonable time to
execute powers (s 33(1)(a) PPRA)
 Power to search for (s 33(1)(b) PPRA) and seize (s 33(1)(c) PPRA)
anything that may be evidence of the commission of an offence
 Power to photograph (s 33(1)(d) PPRA)
 Power to dig up land (s 33(1)(e) PPRA)
 Power to open anything locked (s 33(1)(f) PPRA)
Warrants
 Generally necessary to search a private place (s 150(1) PPRA)
 Application must be made to a ‘justice’ (s 150(2) PPRA)
 s 151 PPRA: The issuer may issue warrant only if satisfied there are
reasonable grounds for suspecting evidence (a) is at the place; or (b)
is likely to be taken there in the next 72 hours
 Search warrant under s 151(a) expires after 7 days (s 155(a))
 Search warrant under s 151(b) expires after 72 hours (s
155(b))
 What search warrant must state (s 156 PPRA)
 Power under warrant (s 157 PPRA)
 Police officer executing warrant must leave a copy of the warrant
with the owner (s 158(1)(a) PPRA), or at the place if owner not
present (s 158(1)(b) PPRA)
 S 158(2) PPRA: If officer reasonably suspects giving the copy
may frustrate or hinder the investigation or another
investigation, may delay complying with subsection (1), but
only for so long as (a) the police officer continues to have
the reasonable suspicion; and (b) that police officer or
another police officer involved in the investigation remains
in the vicinity of the place to keep the place under
observation
Search w/o a warrant
 s 160(1) PPRA: Police officer can conduct search of a place if they
reasonably suspect that (a) the evidence is at the place; and (b) the
evidence may be concealed/destroyed unless the place is
immediately entered and searched
 May exercise all powers under a normal search warrant,
except anything that would cause structural damage (s
160(3) PPRA)


Officer must seek post-search approval in writing from a magistrate
as soon as practicable (s 161(1) PPRA)
 Magistrate can only grant if satisfied the officer had a
reasonable suspicion (s 162(1)(a)(i) PPRA); there was a
reasonable likelihood the evidence would have been
concealed/destroyed (s 162(1)(a)(ii) PPRA); and that, given
what was found, it would be in the public interest to grant it
(s 162(1)(b) PPRA)
Arrest
o Definition
 Physical restraint with or w/o words or use of words coupled with
submission (Alderson v Booth)
 Alderson v Booth (Eng case): Words should be used but
aren’t necessary
 Delit v Small: Don’t have to be touched to be under arrest
o Without warrant
 s 365(1) PPRA: to be lawful, must reasonably suspect has
committed/is committing an offence and is reasonably necessary
(list of reasons in section)
 Arrest not necessarily unlawful if found not to have
committed/been committing an offence (Coleman v Power; Ghani v
Jones (Eng case))
 s 365(2) PPRA: lawful to arrest, vis-à-vis an indictable offence
(reasonable suspicion) for questioning
o With a warrant
 ss 369-372: similar process to search warrants
o Info to be provided upon arrest
 Must state, as soon as practicable, that person is under arrest and of
nature of purported offence (s 391(1) PPRA)
 Same with a warrant (s 391(2) PPRA)
 Before release, officer must give to the person, in writing, the name,
rank and station of the arresting officer (s 391(3) PPRA)
o Lawfulness may fluctuate
 Michaels: Didn’t know was under arrest and left station, charged w/
escaping custody
 Arrest a continuing act => if unlawful, everything following is
assault, false imprisonment etc.
o Alternatives
 Notice to Appear
 s 382(2) PPRA: officer may serve on a person if they (a)
reasonably suspect person has committed/is committing an
offence; or (b) is asked to do so by another officer with said
suspicion
 Must be served personally on a person (s 382(3) PPRA)
 Must state (s 384(1) PPRA):
o




o

(a) substance of the offence allegedly committed
 Only needs to be the general particulars ((s
386(1) PPRA))
o (b) name of person alleged to have committed it
o (c) clearly state whether person a child or adult at
time of offence
o (d) require person to appear before a court of
summary jurisdiction vis-à-vis the offence at a
stated time and place
 s 384(2): court must be sitting at this time
o (e) particulars of requesting officer if applicable
o (f) signature of serving officer
 Time set for appearance must be within 14 days (for an
adult) unless a shorter time is agreed (s 384(3)(a) PPRA)
 If fail to appear:
o Court can hear matter in person’s absence (s
389(1)(a) PPRA)
o Court can issue warrant for their arrest (s 384(1)(b)
PPRA)
 Can strike out notice if person doesn’t show up and court
not satisfied that the notice was served properly (s 390(1)
PPRA)
Complaint and summons
 ss 53-54 Justices Act
Discontinue arrest
 ss 375-380 PPRA
Infringement notice
Move on powers
 ss 44-49 PPRA
Release
 Must release or bring before a court as soon as reasonably
practicable (s 393(1), (2))
 What is reasonable will vary
Interviews
o Ch 15, pt 1 and 2 protections
 s 398 PPRA: right to silence and time limits applies to persons
arrested for an indictable offence, including for questioning (a),
persons in custody on a charge (b), a person in custody on a term of
imprisonment (c)
 Right to remain silent => s 397 PPRA; Petty and Maiden v The Queen
 Exception: must provide name and address in prescribed
circumstances (s 40(1) PPRA => circumstances in s 41)
 Officer may ask for evidence of these things if reasonable to
suspect person would have said evidence (s 40(2))

o
Offence not to comply (s 791 PPRA), except in certain
circumstances (s 40(3) => reverse onus)
 Time limits
 Right to liberty most important common law right
(Trobridge v Hardy)
 Persons can only be detained for a reasonable time (s 403(1)
PPRA)
o Not more than 8 hours (s 403(2))
o Can be extended on application to a justice (s 405406)
o Questioning can go for no longer than 4 hours (s
403(4)(a))
o Rest time can be for more than 4 hours (s 403(4)(b))
Ch 15, pt 3 protections
 Application: indictable offences (s 414 PPRA) and to only to persons
in company of police for questioning as a suspect (s 415(1) PPRA)
 R v Kingston: police spoke to man on his doorstep, no
warning or recording and was not subject of a complaint.
Victim later complained and unrecorded conversation could
be used – not a relevant person
 Support
 Before starting interview, police must inform person they
can:
o Call and talk to friend/relative (s 418(1)(a) PPRA)
o Call lawyer (s 418(1)(b) PPRA)
 Driscoll v The Queen: up to detainee to
arrange for legal assistance => no duty on
the police
o Must delay questioning for reasonable time to allow
call (s 418(2) PPRA) and allow person to arrive (s
418(3) PPRA)
o Reasonable time will depend on circumstances (s
418(4), (5) PPRA)
 Outside of special circumstances, more than
2 hours may be unreasonable (s 418(6))
o When person arrives:
 Police must provide room for persons to
speak (s 419(1)(a) PPRA)
 If a lawyer, room where can’t be
overheard (s 419(1)(b))
 Must be allowed to be present during
questioning (s 419(2) PPRA)
 Officer can exclude if considers
other person unreasonably
interfering (s 419(3) PPRA)
o







Unreasonable interference
(s 424)
ATSI people => s 420 PPRA
Children => s 421 PPRA
People with impaired capacity => s 422 PPRA
Intoxicated persons => s 423 PPRA
Interpreter
o Applies to persons reasonably suspected of being
unable to speak English with reasonable fluency (s
433(1) PPRA)
o Before questioning, officer must arrange for
interpreter and delay until they arrive (s 433(2)
PPRA)
Recording
 Kelly v The Queen: Lack of recording raises doubt vis-à-vis
reliability
 McKinney v The Queen: Jury directions to be cautious if no
recording
 Nicholls v The Queen: Alleged confession in break in
interview, police made no attempt to clarify once recording
restarted => conviction quashed
 Requirements:
o Questioning must, if practical, be electronically
recorded (s 436(2) PPRA)
 Examples of where not practical in section
 R v Batchelor: confession to police
negotiator over phone => was ok not to
record
o Confession admissible if recorded (s 436(3) PPRA)
o Can still be admitted if not recorded (s 439(1) PPRA),
but only if in the interests of justice (s 439(2) PPRA)
 R v McMillan: police deliberately did not
record => inadmissible
o Copy of recording must be given to interviewee or
their lawyer (s 438 PPRA)
Warning/Caution
 Before questioning, person must be cautioned (s 431(1)
PPRA)
o Must be in language person can understand (s
431(2))
o Officer must further explain if necessary (s 431(4))
o If practical, caution must be recorded (s 435)




Two limbs: person has right to remain silent (don’t have to
say or do anything); anything they say or do will be recorded
and may be used in evidence later (Marshall v Western
Australia)
Post-arrest searches (Ch 16 PPRA)
o Application: to those lawfully arrested or in lawful custody on a charge for
an offence (s 442(a), (b) PPRA)
o Police officer may search person in custody (s 443 PPRA)
o General protections => ss 624-632 PPRA
o Courtney v Thomson: search can become an assault
DNA
o DNA evidence can be rejected because of contamination (R v Butler)
o Other explanations for the presence of DNA are entertained
 R v Rowe: Accused of robbing a bank, the defendant argued the DNA
on the teller’s shirt could have gotten there innocently days before –
analyst agreed this was possible
o R v Bropho: Man charged with rape which led to conception of child. DNA
could not exclude him, but there were four other potential fathers in
database – evidence excluded
Force
o Not against an individual
 Police and anyone assisting entitled to use force that is reasonably
necessary to exercise powers under the Act or warrant (s 614(1)(a)
PPRA)
o Against an individual
 Police and anyone assisting exercising powers may use reasonably
necessary force (s 615(1) PPRA)
 May use reasonably necessary force to stop an escape from custody
(s 615(2) PPRA)
 Generally must not include force likely to cause gbh or death (s
615(3) PPRA)
o Force likely to cause gbh or death
 Can use (s 616(4) PPRA), but:
 Must first, if practicable, call on person to cease and desist
(s 616(5) PPRA)
 Applies to situations where officer reasonably suspects:
 Person has committed/is committing/is about to commit an
offence punishable by life imprisonment (s 616(1)(a) PPRA)
 Person has committed an offence punishable by life
imprisonment and is trying to or has escaped arrest (s
616(1)(b) PPRA)
 Person is doing or about to do something likely to cause gbh
or death to another and force likely to cause gbh or death is
reasonably suspected by officer as only way to stop person
(s 616(2)(a), (b) PPRA)



Purpose of force must be to (s 616(3) PPRA):
 (a) To prevent continuation or repetition of relevant offence
or of another like offence (punishable by life imprisonment)
 (b) Apprehend person
 (c) To prevent escape of person from arrest or custody
 (d) to prevent violence likely to cause gbh or death
o R v Hardy: only handcuff if reasonable
Contravention of police directions
o Right to silence (R v Lee; Van der Meer v The Queen)
o Offences => ss 790-791 PPRA
Exclusion of evidence
o Breach of police procedures can lead to the exclusion of any evidence
obtained (R v Davidson)
o Prejudicial value exceeds probative value (Tofilau v The Queen)
o Voluntariness
 Confession only admissible if made voluntarily (McDermott v The
King)
 Justification => reliability, jury danger, police discipline and free
choice/privilege against self-incrimination (Tofilau v The Queen)
 Tofilau: disguised cops as gang bosses interviewing criminals,
getting them to confess with promise their problems will ‘go
away’
 Person in authority
 A perception by the suspect that the coercive power of the
state is being used (Tofilau v The Queen)
o Includes police officers, prosecutors and others
proffering the charge (McDermott v The King)
o Doesn’t matter if message conveyed by suspect’s
lawyer, so long as they believe it comes from an
authority figure (R v Naylor; Ex parte AttorneyGeneral (Qld))
 Police must not obtain a confession through a promise or
threat (s 416 PPRA)
 Confessions attained by inducements are to be excluded
(McDermott v The King)
 Oppressive cross-examination-style question may support a
claim that confession was involuntary (Foster v The Queen)
o Bad quality recordings may also support such a
claim (R v Mondon)

 Basal voluntariness (for when confession not made to a person in
authority)
 Threat or promise? (s 416 PPRA)

o
More likely to exclude evidence if police the overbearing
ones (R v Griffiths)
 Ultimate question: was the will overborne so that the
person did not exercise a free choice to speak or remain
silent? (Tofilau v The Queen)
 R v Burnett: confession excluded because given late at night
when suspect was in a ‘dopey condition’ and had fainted
twice
 R v Williams: confession excluded because gotten in hospital
after self-poisoning and black out
Discretion to exclude
 Unfairness
 Were the accused procedural rights protected? (R v
Swaffield and Pavic)
o Swaffield and Pavic: both silent in interview, S
confessed to plain clothes cop and P to a friend
(both wired) => S’s confession excluded, P’s wasn’t
(‘natural conversation distinction’)
o Police procedures a yardstick vis-à-vis unfairness (R
v LR)
 Would a confession have been made if the interview was
properly conducted? (Duke v The Queen)
 Would the level of unfairness shock the community? (Em v
The Queen; Tofilau v The Queen)
o Em: Em said wouldn’t talk to police if they were
wired up. Took him to park, said he didn’t have to
say anything, but never told him they had covert
recording devices – majority said was not unfair
(police did nothing illegal and admission was reliable)
o Tofilau v The Queen: would be too shocking if a
chaplain or legal aid lawyer were impersonated, for
example
 ‘Dirty tricks’ (Carr v Western Australia)
 Public policy (evidence illegally obtained, e.g. improper search)
 Ridgeway v The Queen: Consider seriousness of offence and
whether, but for police breaches, the accused would have
been a law abiding citizen
 R v Martin: 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 justice to those who commit offences
Complaints about Police

Crime and Misconduct Act
o
o
o
Police officers are public officials for the purposes of the Act (ss 20, 21 CMA)
Making a complaint
 Complaints about police can be made to the QPS or CMC (ss, 36, 41
CMA)
 Official misconduct
 Most serious type of misconduct
 Refers to ‘conduct’ that justifies dismissal or that could, if
proved, be a criminal offence (s 15 CMA)
o Conduct (s 14 CMA): Can involve dishonest or
impartial performance of powers, breach of trust or
misuse of info obtained in the course of
performance of the person’s position
 Can be complained of directly to the CMC (s 36 CMA)
o CMC has primary responsibility to investigate (s
45(1))
o If complained to QPS, Police Commissioner has duty
to refer to CMC if they reasonably suspect official
misconduct occurred (s 38)
 CMC can refer back to police commissioner (ss 41, 42(5)
CMA)
o CMC plays monitoring role (ss 47, 48)
 Police misconduct
 Conduct, other than official misconduct, that is (CMA Sch 2):
o Disgraceful, improper or unbecoming of an officer;
or
o Shows unfitness to be or continue as an officer; or
o Does not meet the standard or conduct the
community reasonably expects of a police officer
 Can be complained of directly to CMC (s 36 CMA) or to QPS
 QPS can refer complaint to CMC (s 37 CMA)
 Commissioner of Police will usually investigate (ss 41, 42
CMA)
o CMC responsible for monitoring (s 45(2))
 Minor misconduct
 Can be about rudeness of inefficiency
 Made to officer in charge of station where subject of
complaint works
o If not resolved by that officer, can refer to
Commissioner
 Done by filling out form, by telephone, writing in or in
person
 Dealt with by QPS, rarely referred to CMC
Resolution of complaint
 CMC and Police Commissioner have broad discretion on responses
 Include, but not limited to:
 Criminal charges (ss 49-51 CMA)
 Disciplinary charges (Ch 5, Pt 2 CMA)
 Dismissal of officer
 Mediation
 Apology

o
Commissioner may reject frivolous complaints (Police Service
Administration Act, s 10.4)
 CMC will monitor how Commissioner deals w/complaints (ss 45, 47
CMA)
False complaints
 To police may be prosecuted (Police Service Administration Act, s
10.21)
 Same with to CMC (s 216 CMA)
Charge and Bail


Charge
o Arrest and charge (s 42 Justices Act) => bench charge sheet
 Separate bench charge sheet for each charge to be given to clerk of
the relevant court (s 12(1) Justice Regulations Qld)
 Applies to all charges where defendant is arrested on the
charge, with or without a warrant, or is served with a NTA (s
12(2)(b) JRQ)
 Charge sheet must state (s 13(1) JRQ):
 a) Names of defendant and plaintiff
 b) The offence charged with adequate particulars to inform
the defendant of the nature of the charge, including:
o (i) particulars of the alleged time and place of
committing the offence;
o (ii) particulars of the person, if any, alleged to be
aggrieved;
o (iii) particulars of the property, if any, in question
 (c) Any circumstances of aggravation on which it is intended
to rely
 Sufficient to describe offence as defined in parent act, e.g.
QCC (s 13(2))
 Description of persons sufficient for an indictment sufficient
for charge sheet (s 13(3))
 Plea of defendant must be recorded (s 14(3))
 Decision on charge must be recorded (s 14(4))
 Court may include anything else it considers appropriate (s
14(5))
 If defendant doesn’t object, further charges can be added or
amended without written presentation (s 42(1A) Justices
Act)
Discretion to charge
o The Director’s Guidelines (Qld)
 Guideline 1: Duty to be fair
 No case-splitting (R v Soma):
o Must ensure all evidence available to accused, even
if harmful to prosecution
o Prosecution has duty to act impartially
o Prosecution must put entire case forward at once
before the defence puts forward their own
 Guideline 2: Fairness to the community
 Guideline 3: Expedition (efficiency)

Guideline 4: Test for decision to charge
 (i) Is there sufficient evidence to charge?
o A prima facie case is necessary, but not enough
o Should not proceed if there is no reasonable
prospect of conviction
o Considerations vis-à-vis evidence:
 (a) Availability, competence and
compellability of witnesses and likely
impression on court
 (b) Conflicting statements by material
witnesses
 (c) Admissibility of evidence
 (d) Open lines of defence
 (e) Any other relevant factors
 (ii) Does the public interest require prosecution?
o Consider:
 (a) Level of seriousness/triviality or whether
offence of a ‘technical nature’ only
 (b) Any mitigating or aggravating factors
 (c) Youth, age, physical or mental health or
special infirmity of accused or necessary
witness
 (e) staleness of alleged offence
 (f) Culpability of alleged offender
 (h) Availability and efficacy of alternatives to
prosecution
 (l) Attitude of victim to prosecution
 (m) Likely length and expense of trial
 (t) Effect on public order and morality
 (iii) Impartiality
o No profiling based on sex, race, religion etc.
o No regard to prosecutor’s personal feelings
o No regard to possible political or career advantage
 Maxwell v The Queen: Court will not interfere in discretion
unless an abuse of process (same with acceptance of
accused’s plea)
 Purpose of criminal proceedings ‘is to hear and determine
finally whether the accused has engaged in conduct which
amounts to an offence…’ (Jago v District Court (NSW); R v
Moti)
o If launched for any other purpose, an abuse of
process (Williams v Spautz)
 Oppressive prosecution (abuse of process):
o Charges lack particularity (Patel v The Queen; R v
Rogers; KRM v The Queen)
 Difficult for accused to answer (S v The
Queen)
o Prosecution is doomed to fail (Walton v Gardiner)
 Does prosecution have a real prospect of
success? (R v Noyes)
o Double Jeopardy (R v Carroll)

Bail (only relevant once charged)
o s 9 Bail Act: Prima facie right to bail
o s 7 BA => Police officer must consider bail when
 Arrested person in police custody and cannot be taken promptly
before a court (s 7(1))
 Promptly before a court = within 24 hours (s 7(2)(b))
 If refuse, must give reasons (s 7(4) BA)
o Court has similar duties under s 8 BA
o Bail applications
 Process in s 15 BA
 Which court?
 All courts have general power to grant bail (s 8); but
 Murder and indefinite detention matter = Supreme Court (s
13 BA)
 Can apply to presiding Magistrate for bail at conclusion of
committal (s 108 Justices Act)
 Bail can be considered at any stage of proceedings (s 8)
 Can make subsequent applications where there are new facts (DPP v
Bakir)
 Appeal over bail? Not in middle of sentencing or jury trial – trial
judge’s decision final (s 10(2) BA; Wren)
 Bail for appeal?
 Yes, but only in exceptional circumstances
 Ex parte Maher: Must maintain public confidence and
discourage frivolous appeals
 Chamberlain: Key consideration is the strength of the appeal
case => helpful if prosecution agree
 United Mexican States v Cabal: Will only grant where strong
grounds for appeal and any sentence imposed on conviction
is likely to have been served before appeal decided
o In order to refuse bail, onus on prosecution to show person is an
unacceptable risk (s 16(1)(a) BA) => factors to consider:
 (i) Risk defendant would fail to appear and surrender into custody;
or
 (ii) Would, while released on bail (A) Commit an offence
 (B) Endanger a victim of the alleged crime or others
 (C) Interfere with witnesses or obstruct the course of justice;
or
 s 16(1)(b): the defendant should remain in custody for their
own protection
o Court can impose conditions it sees fit to ensure not an unacceptable risk
(s 11(2) BA)
 Can’t be more onerous than necessary vis-à-vis offence, accused’s
circumstances and public interest (s 11(5))
 DPP v Bakir: charged w/ attempted murder, robbery and
dangerous use of weapon, had to surrender passport, reside
interstate, maintain curfew, refrain from contact w/
witnesses and co-accused, and report to police
 s 16(3): As special conditions, court may prohibit person from doing
or attempting-

o
o
o
(a) entering or remaining in stated licensed premises or a
stated class of licensed premises;
 (b) entering or remaining in, during stated hours, a stated
area that is designated by its distance from, or location in
relation to, the stated licensed premises in (a);
 (c) attending or remaining at a stated event, to be held in a
public place, where liquor is available
 Bail conditions can be varied (s 10 BA)
 Re Scott Andrew Price: surety of $60,000 deleted from bail
as accused had already been held for 2 ½ years and unlikely
sentence would be longer than a couple of months
In assessing unacceptable risk, should have regard to (s 16(2) BA):
 (a) Nature and seriousness of offence
 (b) The character, antecedents, associations, home environment,
employment and background of the defendant;
 (c) The history of any previous grants of bail to the defendant;
 (d) The strength of the evidence against the defendant;
 (e) If the defendant is an Aboriginal or Torres Strait Islander person-any submissions made by a representative of the community justice
group in the defendant's community, including, for example, about- (i) The defendant's relationship to the defendant's
community; or
 (ii) Any cultural considerations; or
 (iii) Any considerations relating to programs and services in
which the community justice group participates.
Show cause (s 16(3) BA):
 Reverse onus => Balance of Probabilities (Gardner)
 Where the defendant is charged- (a) With an indictable offence alleged to have been
committed while the defendant was at large with or without
bail between the date apprehension and of committal for
trial or while awaiting trial for another indictable offence; or
 (b) With an offence to which section 13 applies (life without
mitigation or indefinite sentence); or
 (c) With an indictable offence where defendant is alleged to
have used or threatened use of firearms, offensive weapons
or explosives; or
o Williamson: Didn’t have a weapon, but co-offender
did
 (d) With an offence against this Act; or
 (f) With an offence against the Criminal Code, section 359
with a circumstance of aggravation mentioned in section
359(2);
 The court or police officer shall refuse to grant bail unless the
defendant shows cause why the defendant's detention in custody is
not justified and must include a statement of the reasons
Types of bail
 Cash bail for non-indictable offences, except drink driving (s 14A, (1)
BA)
 Bail as an undertaking, with or without conditions (contract to
appear before the court) (s 20(1) BA)




Surety





An offence to breach an undertaking (s 33 BA)
Breach of a bail condition also an offence (s 29 BA)
Exception where person has impairment of mind (s 11A BA)
Another as guarantor
Must be (s 21(1) BA):
o (a) 18 years or older
o (b) Has not been convicted of an indictable offence
o (c) Is not and is not liable to be an involuntary
mental patient or someone for whom a guardian or
administrator has been appointed
o (d) Is not insolvent/under administration
o (e) Has not been and is not likely to be charged
o (f) Is worth not less than the bail value, in real or
personal property
In determining surety’s suitability, consider (s 21(3) BA):
o (a) The person’s financial resources
o (b) The person’s character and antecedents
o (c) The person’s proximity to the defendant
Person must not be made a surety if breach would lead to
them or their family suffering ruin or injury (s 21(8) BA)
If bail breach, surety liable to pay (s 21(2) BA)
o Can oppose forfeiture if surety can establish it is
against the interests of justice (s 32B(2)(a))
o Baytieh v Queensland: Religious minister surety,
counselled accused, assisted in legal aid applications,
accompanied him to meetings with legal advisor and
psychologist and remained in frequent contact.
Despite breach of bail, surety did everything
reasonable => forfeiture successfully opposed
 Factors:
 Hardship on surety
 Steps taken to ensure accused
would comply with conditions
 Circumstances that would alert
surety that accused likely to
abscond
 Circumstances in which surety took
on the undertaking
 Nature of accused/surety
relationship and level of control and
influence
 Assistance from surety in reapprehension of accused
o Mockbel v DPP (Vic) and DPP (Cth): Surety D’s sisterin-law, did not possess proper assets (not a genuine
surety), evidence did not establish reasonable steps
taken to ensure accused fronted court, did not
reveal true financial position and many assets
criminally acquired => forfeited
Commencing Proceedings
Offences
Regulatory offences
(Regulatory Offences
Act)
Criminal offences
(s3 Criminal Code)
Summary /
Simple offences
Indictable offences
(s3(3) QCC)
Misdemeanours


Crimes
Regulatory offences (Regulatory Offences Act)
o Always dealt with in Magistrates
o 3 offences- (all summarily dealt with)
 s 5:shoplifting: value =/< $150 (cf Stealing s 391 QCC)
 s 6: fail to pay: value =/< $150 (cf Fraud s 408C QCC)
 s 7: damage: value =/< $250 (cf Criminal Damage s 469 QCC)
o Only penalty is fines
o Mens rea necessary
 s 36(2) QCC excludes regulatory offences except for defences of s
22(2) honest claim of right; s 29 immature age; s 31 compulsion
 Cameron v Holt: Mens rea necessary to prove offence
Summary/Simple offences
o Prosecution must generally be brought within 1 year of commission of the
offence (s 52(1) Justices Act)
o Most things in QCC are indictable except…
 s 56A disturbing parliament
 s 56B armed in parliament
o Summary Offences Act has more
o Procedure (Justices Act)
 Dealt with in Magistrates (ss 19, 24, 30 Justices Act), except for
under s 651 QCC
 Higher court may decide summary offence alongside a
charge on indictment (s 651(1))

o

Costs


s 651(2): court must not hear and decide the summary
offence unless—
o (a) The court considers it appropriate to do so
o (b) Accused is represented by a legal practitioner
o (c) The Crown and the accused both consent
o (d) The accused person states his or her intention of
entering a plea of guilty to the charge
o (e) The complaint or bench charge sheet for the
offence, or a copy, is before the court

s 651(4): On conviction for summary offence, the court
may make any order a Magistrates Court may make
If defendant doesn’t show up => s 142, 142A, 143 Justices Act
 Basics of ex parte hearing (in D’s absence)
o Court must first be satisfied D served with summons
or notice to appear (ss 142(1), 143)
o For some offences, accused may notify court in
writing they wish to plead guilty and have matter
dealt in their absence (s 146A)
o If hearing takes place ex parte, magistrate cannot
impose prison sentence or
cancel/suspend/otherwise affect a
license/permit/similar (s 142(2))
o Diplock v Bennett: D charged w/traffic offences and
told hearing would take place a 9am, started at
8:53am and went to 8:58am, he arrived at 8:56am
but sign said courtroom not open => Matter
remitted on appeal for rehearing
For dismissal of charge (P pays D) – s 158, 158A Justices Act
 Latoudis v Casey: Fact that police/ODPP may be less likely to
prosecute not a relevant consideration
 For conviction (D pays P) – s 157 Justices Act
 Unusual
Indictable offences
o Crimes and misdemeanours – generally to be prosecuted on indictment (s
3(3) QCC)
o No time limit
 Extends to indictable offences heard summarily (s 552F QCC)
o Generally accused must be present at trial (s 617(1) QCC)
 BUT:
 Accused can be removed from court if they conduct
themselves in such a way that continuance in their presence
becomes impractical (s 617(2))
o R v Stuart: Swallowed wire to avoid court =>
Continued in his absence
o R v Hill; Ex parte A-G: D ODed on prescription meds,
had to go to hospital, trial was ex parte =>
Conviction overturned as not enough evidence of
misbehaviour
 Person charged with a misdemeanour may be allowed to be
absent if the court sees fit (s 617(4))

o
In a joint trial of 2 or more persons, any or all of whom are
ill/infirm, the court may proceed in their absence (s 617(3))
o Subject to (a) considerations of prejudice and (b) the
interests of justice
Where are indictable offences heard?
 Unnecessary for all elements of an offence to occur in Qld to be
prosecuted in Qld (s 12 QCC)
 Except with death as only material element (s 12(5))
 Prosecution guidelines
 Gl 13:
o Summary jurisdiction will be preferred unless the
conduct could not be adequately punished other
than on indictment having regard to:
 The likely sentence in the event of a
conviction on indictment;
 The maximum penalty a magistrate may
impose if dealt with summarily;
 The antecedents of the accused; and
 The circumstances of the alleged offence,
including:
 The harm or risk of harm to the
environment caused by the offence;
 The culpability of the offender;
 Whether a comparable offender has
been dealt with for a similar offence
on indictment; and
 Any other mitigating or aggravating
circumstance
 Indictable offences heard summarily (Chapter 58A QCC)
 When indictable offences can be heard magistrates court
 If convicted on indictable offence heard summarily, only
counts officially as conviction for a simple/summary offence,
not an indictable one (s 659 QCC)
 s 552A - prosecution election for summary jurisdiction
o Subject to s 552D (s 552A(3))
o Must be heard summarily if prosecution elects (s
552A(2))
o s 552A(1): This section applies to a charge before a
Magistrates Court of any of the following indictable
offences—
 (a) an offence against any of the following
provisions—
 s 141
 s 142
 s 143
 s 340
 (b) any offence involving an assault, not of a
sexual nature or accompanied by an
attempt to commit a crime, if the maximum
term of imprisonment is more than 3 years
but not more than 5 years;


(c) the offence of counselling or procuring
the commission of an offence mentioned in
paragraph (a) or (b)
s 552B - must be summary unless defence elects jury trial
o Subject to s 552D (s 552B(3))
o Must be heard summarily unless D elects for jury
trial (s 552B(2))
o s 552B(1): This section applies to a charge before a
Magistrates Court of any of the following indictable
offences—
 (a) an offence of a sexual nature without a
circumstance of aggravation if—
 (i) the complainant was 14 years of
age or over at the time; and
 (ii) the defendant has pleaded
guilty; and
 (iii) the maximum term of
imprisonment is more than 3 years;
 (b) an offence against section 339(1);
 (c) an offence involving an assault, other
than an offence against section 339(1), if—
 (i) the assault is—
o (A) without a circumstance
of aggravation; and
o (B) not sexual in nature; and
 (ii) the maximum term of
imprisonment is more than 3 years
but not more than 7 years; and
 (iii) a charge of the offence is not a
charge to which section 552A
applies;
 (d) an offence against section 316A;
 (e) an offence against section 328A(2);
 (f) an offence against section 359E if the
maximum term of imprisonment is not
more than 5 years;
 (g) an offence against chapter 14, chapter
division 2, if the maximum term of
imprisonment is more than 3 years;
 (h) an offence against chapter 22A, if the
maximum term of imprisonment is more
than 3 years;
 (i) an offence against chapter 42A;
 (j) the offence of counselling or procuring
the commission of an offence mentioned in
any of paragraphs (a) to (i);
 (k) the offence of attempting to commit an
offence mentioned in any of paragraphs (a)
to (i), unless the offence is a relevant
offence under section 552BA(4), definition
relevant offence, paragraph (a);








(l) the offence of becoming an accessory
after the fact to an offence mentioned in
any of paragraphs (a) to (i), unless the
offence is a relevant offence under section
552BA(4), definition relevant offence,
paragraph (a)
s 552BA- heard summarily – no election required (unless
excluded offence under s552BB)
o Subject to s 552D (s 552BA(3))
o Must be heard summarily (s 552BA(2))
o Applies to relevant offence (s 552BA(1))
o s 552BA(4): relevant offence means—
 (a) an offence against QCC, if max term of
imprisonment is not more than 3 years; or
 (b) an offence against part 6, other than—
 (i) an offence mentioned in
paragraph (a); or
 (ii) an offence against chapter 42A;
or
 (iii) an offence that, under section
552BB, is an excluded offence
s 552BB - Excluded offences (a list of particular offences +
circumstances)
o Excluded offences those listed in table (s 552BB(1))
o Prescribed value means $30,000 (s 552BB(3))
o See table in section
s 552D(1) – Magistrate must abstain from hearing matters
vis-à-vis s 552A, s 552B and s 552BA if, because of nature
and seriousness of offence, they believe it could not be
adequately punished upon conviction
o Magistrate must abstain from hearing s 552BA
matter if satisfied, on D’s application, that there are
special reasons to not hear it (s 552D(2))
s 552G magistrate decides value of property
s 552H(1)(a) maximum penalty 3yrs
s 552I(1) applies to special procedure for s552B matters
o See section if detail required
Can appeal against matters heard summarily under ss 552A,
552B, 552BA (s 552J(1))
o Grounds can include Magistrates Court erred in
deciding matter summarily (s 552J(2))
 Same for A-G appeal (s 552J(3))
o If resentencing sentence, appeal court can use
maximum penalty as if it were heard on indictment
(s 552J(4))
o R v Hall: Magistrate heard several housebreaking
matters and gave overall cumulative sentence of 5
years => On appeal, found magistrate should have
refused to hear because unable to adequately
punish (max for housebreaking at time 2 years, plus
magistrate can only give max 3 years)


Heard on indictment
 District Court (District Court of Queensland Act)
o District Court has jurisdiction to hear all indictable
offences (s 60 DCA)
o District Court doesn’t generally have jurisdiction to
try offences if max penalty more than 20 years (s
61(1) DCA)
o Exception to s 61(1) is where (s 61(2) DCA) (a) an offence against the Corrective
Services Act, s 122 (prisoner wilfully and
unlawfully damages or destroys (or
attempts) property part of corrective
services facility during a riot or mutiny and
facility security is endangered;
 (b) an offence under the Criminal Code,
section 61, 208, 213, 215, 216, 219, 222,
229B, 315, 316, 317, 318, 319, 349, 352,
411, 412, 415, 419, 421, 461, 469 or 469A
o Aggravations irrelevant (s 61(3) DCA)
 In deciding where to present indictment, prosecution must
also consider complexity, seriousness, importance, and any
other relevant considerations (s 560(4) QCC)
Extradition
o Interstate
 Service and Execution of Process Act
 Warrant from one state can be executed in another (s 82(1)-(3)
SEPA)
 See s 83 SEPA for process
 No provision that allows magistrate to refuse extradition order on
the basis of unjustness or oppression
 BUT, Loveridge v Commissioner of Police (SA)
o SASC said magistrate can use inherent power of
Magistrates Court to decline to make an extradition
order on the basis of abuse of process
o Loveridge was pursed by WA on drug charges years
after the fact and after assurances were given that
she would not be pursued => Abuse of process
o International
 Extradition Act
 Extradition country is any country bar New Zealand declared as such
by regulation (s 5 EXA)
 Application received by extradition country for surrender of person,
leading to provisional arrest warrant ordered by magistrate (s 12(1)
EXA)
 Once apprehended, taken before Magistrate to assess
eligibility for surrender (s 15 EXA)
 Person can consent to extradition and forgo hearing (s 18
EXA)
 If person challenges extradition, must have hearing (s 19
EXA)
 Appeal possible within 15 days (s 21 EXA)





Where appeal avenues exhausted, Attorney-General to
make final decision (s 22 EXA)
Attorney-General must order hearing to assess suitability of person
for surrender (s 16 EXA)
 A-G must be satisfied that:
o Person is an extraditable person
o Extradition sought vis-à-vis an extraditable offence
o Alleged offence would also amount to an offence in
Australia
o There is no extradition objection
Extraditable person (s 6 EXA)
 (a) Person is either the subject of a warrant of arrest for an
offence in the extradition country or has been convicted for
said offence in said country and there is intention to impose
sentence on that person or have them serve an already
standing sentence
 (b) The offence is an extraditable offence
 (c) The person is believed to be outside the country
Extradition offence (s 5 EXA)
 An offence against a foreign country where
o The max penalty is death, or imprisonment or
deprivation of liberty for at least 12 months; or
o An offence, while not carrying above punishment, is
included in relevant extradition treaty
Extradition hearing on extradition objection
 For magistrate to make determination that the person is
eligible for extradition, must be satisfied of three conditions
(s 19(2) EXA)
o (a) Supporting documents relating to offence must
be produced
o (b) Must be satisfied of dual criminality (also an
offence in Australia)
o (c) The person hasn’t been able to show substantial
grounds for believing extradition objection
 Extradition objection (s 7 EXA)
o (a) Offence is a political offence
 s 5: offence that is political in character
o (b) Surrender of person actually sought to punish
them on basis of their race, religion, nationality or
political opinions
o (c) In trial in extradition country, person would be
prejudiced or detained on basis of race, religion,
nationality or political opinions
o (d) Offence would be under military, but not
ordinary criminal law in Australia
o (e) Person has been acquitted or has served
punishment for that offence already
 Snedden v Republic of Croatia: D accused of war crimes,
claimed s 7(c) objection => No good

DPP v Mockbel: Argued should not have been extradited
because there was a pending ECHR decision on matter =>
Court said was overridden by seriousness of charges
Committals and Indictments

Committals
o Principles
 Barton v The Queen:
 A method of disclosure
 As assessment of the case against the accused to determine
whether a jury trial is justified
 An opportunity for the accused to explore the case against
them (before plea entered)
 Committal will result in reduction of charge to indictment (s 560(1)
QCC)
 Don’t need a committal though => ex officio indictment (s
561(1) QCC)
o New scheme post-Moynihan Review
 Full committals now uncommon
 Now an administrative arrangement between Chief Magistrate, DPP,
QPS, Legal Aid etc. to be more open in directions hearings etc. (s
706A QCC)
 Directions hearings (s 83A Justices Act)
 s 83A(10): Direction hearing means a hearing before the
court for a direction about the conduct of the
proceeding


Magistrate can order directions hearing on own motion (s
83A(2)) or either party can apply for one (s 83A(3))
At the hearing, magistrate can give directions regarding (s
83A(5)):
o (aa) disclosure under the Criminal Code, chapter 62,
chapter division 3;
o (a) a party providing a copy of—
 (i) a medical, psychiatric or other expert
report; or
 (ii) a statement, report or other stated
information relevant to the proceeding;
o (b) psychiatric or other medical examination of the
defendant;
o (c) joining complaints;
o (d) receiving evidence or submissions by telephone,
video link or other form of communication;
o (e) issuing a summons or warrant;
o (f) changing the usual practice of the court in a way
that helps an alleged victim of the offence to give
evidence in the proceeding;
o (g) if the proceeding is a committal proceeding—




(i) the arrangements necessary for the
giving of evidence by an affected child
witness under the Evidence Act 1977; or
(ii) cross-examining a protected witness
under the Evidence Act 1977
s 83A(5AA): Magistrate may also order person who has
given a written statement for the prosecution to (a) attend
as a witness to give oral evidence or (b) be made available
for cross-examination
o Subject to s 110B:
 (2) Can only make application once
 (1) Magistrate must be satisfied there are
substantial reasons why, in the interests of
justice, the person should give oral evidence
o Substantial reasons
 Blacklidge v Police:
 For the applicant to clearly define
purpose/s of cross examination
 Avoid Basha enquiries
o R v Basha: D can test
evidence not raised at
committal before jury
empanelled
 Substantial reasons are more than
nominal or ephemeral and bear in
mind the purpose of the Act
 Critical witness who has made
inconsistent statements
 Eye to the exercise of a discretion
by a trial judge, even though the
magistrate has no such discretion
 Police v K:
 Likely discharge by demonstrating
evidence insufficient
 Narrowing issues
 Avoid surprise
 Substantial undermining credit
 NO fishing expeditions
 Magistrate direction cannot be subject of interlocutory
appeal, but can be raised as a general ground on appeal
against conviction/sentence (s 83A(7))
Hand-up committal (typical post-Moynihan) => s 110A JA
 Witness statements can be proffered in writing and not
have witnesses show up to have it admitted as evidence (s
110A(2))
 s 110A(3): If witness statement tendered by prosecution,
general magistrate must
o (a) Admit to evidence
o (b) Must not require witness to appear


s 110A(4): If D unrepresented, s 110A(3) doesn’t apply
unless justice satisfied that
o (a) D understands proceedings and consequences;
and
o (b) Is aware that they are
 (i) Entitled to be legally represented
 (ii) May apply for legal assistance
o (c) D is aware they can apply under s 83A(5AA) for
witness to be present
o (d) D is aware of requirements for (c)
 D and prosecution, notwithstanding s 83A(5AA), can agree
that witness will appear for cross-examination (s 110A(5))
 Can apply to cross-examine and if this occurs, magistrate
must consider both written and oral statements (s 110A(6))
 The magistrates then formally charges and commits for
trial or sentence (s 110A(6E)) (Most Common)
o This does not require the magistrate to decide on
sufficiency of evidence
o Only applies where all evidence before the
magistrate comprise witness statements and D’s
lawyer consents to committal for trial (s 110A(6D))
 Where all evidence comprises witness
statements and D is unrepresented or their
lawyer doesn’t consent to committal for
trial, magistrate must decide on sufficiency
of evidence (s 110A(10))
Witness examination (for indictable offence)
 Magistrate has supervisory role (s 103B(1) JA)
o Does not erode power to make orders under s 83A
JA (s 103B(3))
 Procedure
o Must generally be in presence of D or D’s lawyer (s
104(1)(b) JA)
o After examination of evidence, if justice must decide
if it is sufficient to put accused to trial, if not
discharge, if so commit (s 104(2))
o D has right of reply including evidence (s 104(3)-(5))
o When this has finished, magistrate makes final
determination on sufficiency of evidence, on
consideration of ALL the evidence(s 108(1))
 Doney v The Queen: Whether a reasonable
jury, properly directed, could convict
 Affirmed in Antoun v The Queen
 Limits on cross-examination (s 110C JA)
o (1) Justice must not allow person to be crossexamined on issues not relevant to the reasons
given by magistrate for requiring them to attend
 (2) But, can allow if satisfied substantial
reasons, in the interests of justice
o (3) Prosecution may re-examine



Registry committals (all evidence in document form, doesn’t go via
magistrate)
 s 114(1) JA: The clerk of the court at a place may order a
defendant to be committed to be tried or sentenced for an
indictable offence, if all of the following apply—
o (a) Indictable offence not to be heard and decided
summarily;
o (b) All evidence of witnesses for the prosecution is
intended to be given in written statements;
o (c) Written statements have been filed in the court
and copies given to the defendant;
o (d) Defendant (individual) not in custody and not in
breach of conditions of bail undertaking;
o (e) Defendant is represented by a lawyer;
o (f) Lawyer has, by written notice/email/some other
electronic form of written communication, given a
notice to the clerk of the court—
 (i) Stating defendant does not intend to give
evidence or call witnesses vis-à-vis
committal for the indictable offence; and
 (ii) Acknowledging the functions of the clerk
of the court for a registry committal do not
include considering whether the evidence is
sufficient to put the defendant on trial; and
 (iii) Stating whether the defendant wishes to
be committed for trial/sentence;
 (g) Notice given under (f) is given to the clerk of the court
not later than the date set by the court or practice direction;
 (h) Defendant has given the prosecution a copy of the notice
under (f) not later than the day it is given to the clerk
Once committed in this way, there is to be no examination of any
anyone vis-à-vis committal of D to trial/sentence (s 114(3) JA)
Indictments
o Definition: ‘a written charge preferred against an accused person in order to
the person’s trial before some court other than justices exercising summary
jurisdiction’ (s 1 QCC)
o Indictment prepared post-committal (whatever form it takes) (s 560(1) QCC)
o Must be presented within 6 months of committal to trial (s 590(1) QCC)
 Can apply for extension if (s 590(2)) (a) Indictment not presented
 (b) Becomes apparent that evidence necessary to establish
the offence is not going to be available
 (c) Accused has absconded and is not likely to be found
before the expiry of the period
 (d) for any other reason it is impracticable to present the
indictment
 Court can grant extension if satisfied that good cause is shown and
no miscarriage of justice is likely to result (s 590(3); DPP v Cicolini)
 If time limit not met and extension (if any) expires, accused is to be
discharged from consequences of committal (s 590(4))

o
o
o
Does not generally bar re-prosecution at a later date (Re
Jenkins)
Particulars
 s 564(1) QCC: Particulars as may be necessary to inform the accused
of the nature of the charge
 Description of the offence
 Alleged time and place of committing the offence
 The person (if any) alleged to be aggrieved
 The property (if any) in question
 Any circumstances of aggravation (s 564(2); R v De Simoni)
 Place of trial (s 564(4))
 Sufficient to describe an offence in the words of the QCC or relevant
statute (s 564(3))
 Indictment must allege each essential ingredient/element of the
offence (R v McGoldrick)
 R v Rogers: Must be sufficient particularity to demonstrate an
identifiable transaction which meets the description of the offence
 S v The Queen: Difficulties cause to accused by lack of particularity
 Risk that various offences could fall within description of
relevant offence
 Accused may have to answer charges on unspecified
occasions
 Individual jurors might convict on various different readings
of the relevant charge (conviction for ‘general disposition’)
 Double jeopardy becomes difficult to raise subsequently
 Lack of particularity not enough in itself to stay proceedings (R v
Smith)
 Usually seek further particulars and get adjournment while
waiting (s 573 QCC)
Amendment of indictment
 Can amend indictment if court considers that the variance, omission
or insertion, is not material to the merits of the case, and that the
accused will not be prejudiced their defence (s 572(1) QCC)
 Can be done at any time in trial if court satisfied no injustice
will be done (s 572(3) QCC)
 R v Fahey and Ors: Indictment omitted ‘unlawfully’ from charge of
‘unlawfully doing gbh with intent’. Three Ds had clearly intended to
plead guilty and charge was read out properly on arraignment
anyway (was recorded properly in records) => Amendment OK as
while omission was not a minor one (was an element of the offence),
Ds had not suffered any disadvantage or unfairness
Joinder
 Generally, only one count per indictment (s 567(1) QCC)
 Indictments should not be overloaded
 R v Ambrose: Can’t throw everything and the kitchen sink at
the accused
 However, can join charges to a single indictment in certain cases
 Joinder specifically provided for in various property and dishonesty
offences (s 568 QCC)
 s 567(2) QCC: Charges for more than 1 indictable offence may be
joined in the same indictment against the same person if they are



founded on the same facts, are or form part of a series of offences
of the same or similar character or a series of offences committed in
the prosecution of a single purpose
 Applies even to multiple charges of murder (R v Andrews)
o R v Fraser: Four murders on one indictment, all
alleged to be of similar character as all were women
attacked in same area over 4 months, all were
sexually motivated with a similar modus operandi
 Same facts
o R v Collins: D charged w/breaking and entering,
stealing and arson in one indictment, found in
possession of goods stolen from torched warehouse
 Need a common factual origin
 Series
o R v Cranston: Must take time, place, circumstances
and character of offences into account
 However, test is imprecise, so sever charges
if joinder where level of prejudice to
accused is sufficiently strong
o R v Iongi: Two offences committed 12 years apart
held as part of a series as one was a rape in 1980
and the other a sexual assault in 1992 against same
victim with D harassing victim during entire period
 Single purpose
o R v Cranston: D charged w/rape of a woman and
assault of the man who tried to stop him => All
committed in prosecution of a single purpose ( the
rape)
Joinder and prejudice
 De Jesus v The Queen: Two counts of rape, two different
victims, convicted for both => Appeal successful as evidence
on one count inadmissible on the other, the two charges
should not have been joined and was thus highly prejudicial
 Phillips v The Queen: 5 rape charges, successful appeal => If
the jury convicts on one (esp. sexual offences) they are likely
to convict on others as well
 Similar fact/propensity evidence should only be admitted
where it has a strong degree of probative force and the
probity outweighs potential prejudice (HML v The Queen)
 R v KP: Even if judge dismisses an objection to joinder, still
needs to consider whether charges should be heard
together
Application for separate trials
 D can apply pre-trial under s 590AA(2)(b) QCC (see Trial
Process section)
 If court of the opinion 2 or more charges on 1 indictment
will prejudice or embarrass accused in their defence, or for
some other reason the court may order separate trials (s
597A(1) QCC)
Co-accused on same indictment

o
More than one person can be charged and tried on the one
indictment, for the same of different offences, if the charges
arise out of the same or substantially similar facts (s 568(12)
QCC)
 Where prosecution alleges one or more people are
secondary participants/parties to an offence, indictment
may charge more than one person (s 569 QCC)
 Ds can apply for separate trials – judicial discretion (s 597B
QCC)
o Unlikely court will grant separate trials where
charged for offences under a common purpose (R v
Lewis and Baira)
o Mere fact that evidence admissible against one
accused but not the other will be presented is not
sufficient for separate trials (R v Ginger)
Ex officio indictments
 Indictment that can be presented to a superior court regardless of
whether a committal process occurs or not (s 561(1) QCC)
 Must be presented by Crown Law Officer (s 561(2))
o Attorney-General or DPP (s 1 QCC)
 Where appropriate?
 Discretion of prosecutor and not subject to review, BUT
court may stay for abuse of process (Barton v The Queen)
o Key for a stay is a lack of disclosure
o Balance of community and accused’s interests
 R v Webb: If extra charges arise from evidence already
heard/presented as part of committal, then OK (accused
theoretically has had chance to review it), but where charge
was not on evidence presented, potentially problematic
 R v Cooney: Absence of committal itself will not necessarily
lead to a stay
 R v Siugzdinis: Committal on 8 charges, ex officio on 21
counts. Two accused sought to have 13 extras quashed, got
stays on 12
o Extra charges post-committal can be prejudicial
o Power to charge extra post-committal is corrective
in nature rather than a way for the prosecution to
substitute its view for the magistrate’s
o Ex officios should be confined to cases where they
are required by the interests of justice
o Court must be guided by principles of fairness
 R v Haslett: Two accused charged w/perjury and obstructing
justice, one of their solicitors applied for particulars of
charge before committal date, got trial transcript which only
covered perjury. Applied for further particulars and
adjournment at committal, got them, prosecution presented
ex officio during adjournment => Stayed for unfairness
 R v Foley: Prosecution didn’t meet 6 month deadline and
was refused extension for inefficient management. Ex officio
used to circumvent this => Abuse of process
o

Court interpreted s 561(1), specifically whether or
not accused committed to trial, as referring some
other offence, rather than the offence the accused
was already committed for
o Ex officio cannot be used to circumvent time limits
 R v Boulle: Number of drug and fraud offences, D apparently
got prescriptions for drugs off 11 separate doctors, saying
he needed to stock up for an overseas trip. Prosecution told
D’s lawyer that they would not proceed because one of the
substances was not a dangerous drug (found on
consultation). Later, another consult let prosecution know
substance was a dangerous drug and an ex officio was
presented => Unlawful under Foley and because notice to
D’s lawyers discharged D
Procedure for managing ex officios via Magistrates Court
 s 23EB Justices Act
o (1) A court may refer to the clerk of the court a
charge, but only if D 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
bail undertaking
o (2) The relevant charge may be referred if—
 (a) It is a charge for an indictable offence;
and
 (b) The prosecution and the defendant
advise the court they are agreed that—
 (i) The relevant charge has been or
is to be presented via ex officio
indictment; or
 (ii) An indictment for another
indictable offence, arising out of the
same circumstances alleged vis-à-vis
the relevant charge, has been or is
to be presented via ex officio
indictment
o (3) If the relevant charge is referred under this
section—
 (a) The clerk of the court has the following
functions—
 (i) Keeping the relevant charge
under review;
 (ii) Referring the relevant charge
back to the court if—
 (A) Considers this should be done to
ensure hearing not unnecessarily
delayed; or
 (B) The prosecution or the
defendant asks the clerk of the
court to do so; and

o
o
o
(b) The registrar of the court in which the
indictment mentioned in subsection (2)(b)(i)
or (ii) is presented must, within 1 month
after the relevant charge or the charge for
the other offence is disposed of in that
court, advise the clerk of the court of the
fact
(4) If the clerk of the court is advised under
subsection (3)(b), no further appearance is required
in the Magistrates Court by any party to the
proceeding for the relevant charge
(5) The functions of the clerk of the court under this
section do not include any function vis-à-vis bail
(6) If the relevant charge is referred back to the
court under subsection (3)(a)(ii), the clerk of the
court must give reasonable notice, in writing, to all
parties to the proceeding—
 (a) Advising that the relevant charge has
been referred back to the court; and
 (b) Stating the time and place for the next
hearing of the proceeding in the court.
Charge Bargaining


Amendment of indictments/complaints
o District/Supreme Court (indictment)
 Indictment can’t be challenged because it got wrong (s 571(1) QCC):
 A person’s title
 The time of the alleged offence (unless essential element)
 Specific timing of offence
 By stating offence occurred on an ‘impossible day’ or a day
that never happened/hasn’t happened yet
 Indictment can be amended at any time if the court is satisfied that
the amendment is not material to the merits of the case and the
accused person will not be prejudiced (s 572(1) QCC)
 Court may make an order at any time, even after verdict, if
satisfied that no injustice will be done (s 572(3))
o Magistrates Court (complaint)
 Justice may amend (if no objection)/shall amend (if objection) any
mistake or variance contained in a complaint that is necessary or
desirable in the interests of justice (s 48 Justices Act)
 If, upon amendment, the justice believes the defendant has been
misled by the original document, they may (or must if the defendant
requests) order an adjournment (s 49 Justices Act)
Charge negotiations
o ODPP Guidelines, Gl 16:
 The prosecution should not overcharge in order to entice a plea
bargain – charge only what the crown can reasonably prove
 Accept guilty plea if in the public interest
 Considerations:
o

o

Charges reflects ‘essential criminality’ and provides
‘sufficient scope for sentencing’
o Prosecution evidence deficient in some way
o Saving of trial cf outcome
o Sparing the victim
Negotiation encouraged, but inappropriate where the accused
maintains innocence or the prosecution case is particularly weak
Limits
 GAS and SJK v The Queen: Two juveniles killed an elderly lady,
negotiation mitigated murder to manslaughter. Got lower sentence
than expected and prosecution appealed successfully, then D’s
appealed to HCA
 Appeal dismissed => charge bargaining relates to pleas, not
to sentence, which is the domain of the judge
o Prosecutor alone has responsibility for deciding
charges
o For the accused, and the accused alone to choose
whether or not to plead guilty
o Sentencing judge alone to decide on sentence
o Despite any understanding between the defence
and prosecution, the judge is not bound by it
 Agreement should be reduced to writing where it
negotiations are successful (signed by accused)
 R v Marshall: Case of gang rape, defence looking for guidance on
potential sentence for plea advice, judge said likely 18 months,
counsel then advised the accused => sentence of four years
 Inappropriate for judge to give this indication, but the
sentence was fine as judge sentences on facts before them
 Would also be inappropriate for judge to confer privately
with counsel vis-à-vis sentencing before a plea is entered
(see also R v McQuire and Porter)
 Wentworth: Two different prosecutors – P1 =5 charges, 2 dropped;
P2 = 5 charges, none dropped. P2 changed charges after
negotiations => trial stayed for inappropriate conduct
Pleas of guilty
o R v Allison: An accused who enters a plea of guilty must do so understanding
and intending that they are admitting guilt
 Good to have written and signed instructions to counsel
o Magistrates Court
 At initial hearing, D is asked how they plead and if guilty judge will
convict (s 145(1), (2) Justices Act)
 At or after committal (ss 104(2), 113 Justices Act)
 If plead not guilty, court can proceed to hear or adjourn matter (s
146(1)(a), (b) Justices Act)
o District/Supreme Court
 Accused called upon to enter plea upon presentation of indictment
(can enter plea at any time after this too) (s 597C QCC)
 Plea options (s 598 QCC)
 Must either move to quash indictment, go for separate trials
or plead (s 598(1))
 May plead-
o
o
o
o
o
o
o
(a) guilty; or
(b) not guilty; or
(c) that the person has already convicted of the
offence with which the person is charged, or has
already been convicted of an offence of which the
person might be convicted; or
o (d) that the person has already been acquitted of
the offence with which the person is charged, or has
already be en acquitted of an offence of which the
person might be convicted; or
o (e) that the person has already been tried and
convicted or acquitted of an offence committed or
alleged to be committed under such circumstances
that the person can not under the provisions of this
Code be tried for the offence charged in the
indictment; or
o (f) that the person has received the Royal pardon for
the offence charged in the indictment; or
o (g) that the court has no jurisdiction to try the
person for the offence
 Once committed for sentence (s 600 QCC)
 Can enter a guilty plea mid trial (s 631A(1) QCC)
 Jury doesn’t need to be present (s 631A(1A))
 Accused ‘stands mute’- assume plead not guilty (s 601 QCC)
 s 648 QCC (Allocutus): Where a person pleads guilty, the relevant
court officer must ask the defendant whether there is any reason
the court should not pass sentence => failure to do so does not
invalidate the judgement
Discount
 Penalties and Sentences Act, s 13:
 (1): (a) court must take guilty plea into account, and (b) may
reduce sentence that would have been imposed
 (2): may have regard for (a) time D pleaded guilty, or (b)
informed court about intention to plead guilty
 (3): when sentencing, court must state openly that it took
the plea into account
 (4): if no reduction in sentence, court must state openly (a)
the fact of no discount, and (b) the reasons for this
 (5) failure in (4) does not invalidate sentencing, but may be
taken into account on appeal
No sentence reduction
 Baker and Bates: Murder by kicking, negotiated to manslaughter =>
no reduction as crime so serious
Timing of plea
 BAY: Tried to get evidence excluded, failed, then pleaded guilty =>
lack of remorse but helped justice process, so early enough for
discount
 Stuck: Didn’t plead guilty until higher court (McMurdo P = early;
Fryberg J = timely, but not early)
Why reduction?
 Cameron: remorse, taking responsibility and facilitation of justice
o
Accepting guilty plea (prosecution)
 Prosecution may withdraw acceptance vis-à-vis lesser charge (e.g.
manslaughter cf murder) with leave of the court (Maxwell v The
Queen)
 Qualifications
o Circumstances affecting fair trial vis-à-vis more
serious charge (e.g. unavailability of witnesses)
o Broader issues of fairness (e.g. where accused has
made admissions they would not have but for the
plea agreement)
o
Accepting guilty plea (courts)
 Meissner v The Queen: ‘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.’
 Per Dawson J: May set aside a conviction (or refuse to
accept plea) where the accused pleaded guilty and there is a
miscarriage because ….
o 1. Does not understand the nature of the charge
o 2. Did not intend to admit guilt in relation to charge
or
o 3. If upon the facts admitted by the plea the person
could not In law be guilty of an offence
o 4. If induced by intimidation or fraud….
 Maxwell v The Queen: (example of #3 in Meissner) Murder, pleaded
guilty to manslaughter, court found problem with facts supporting
diminished responsibility
 If it appears as though plea is not genuine, judge must
obtain an unequivocal plea of guilty or direct that a plea of
not guilty be entered
Withdrawing guilty plea
 Can do at any time with leave of court (Maxwell v The Queen)
 R v Mundraby: To get leave, helpful to show a miscarriage of justice
would occur otherwise => In this case, appeal over refusal of leave
rejected as nothing was wrong with original plea (was exercise of
free will, no fraud or intimidation etc.)
 R v Nerbas: Can be withdrawn if The guilty plea does not constitute conviction
 The administration of the allocutus is the court’s
acceptance that a plea has been established
 A plea may, with leave of court, be withdrawn after the
allocutus has been administered and before sentencing
 In order to obtain leave to withdraw applicant must show a
miscarriage would occur if leave not granted
 R v Verrall: Allocutus is the end of the line (normally)
o
Double Jeopardy

Basic rules
o A person cannot be tried for an offence of which they have earlier been
convicted or acquitted on indictment — that is, ‘autrefois convict’ or
‘autrefois acquit’ (s 17 QCC and common law)
 Viers: Cannabis – walked out of court after acquittal and was
rearrested on similar charge => possible to claim abuse of process
even if charge not the exact same (includes alt. verdicts)
 Applies to stays as well as acquittals and convictions (Walton v
Gardiner)
 Certificates of dismissal from Magistrates vis-à-vis summary matters,
whether or not an indictable offence (s 700(1) QCC)
 Ensures can’t be tried again (s 700(2) QCC)
 Alternative verdicts => s 575-589 QCC
 Judicial directions
o Willersdorf: ‘…whenever an alternative
verdict fairly arises for consideration on the whole
of the evidence then failure to leave it to the jury
prima facie deprives the accused of a chance of
acquittal of the principal offence’
o Rehavi: Beer bottle – intent to cause GBH => regular
GBH should have been put before jury (appeal
point)
o Where a judge excludes confessional evidence at a trial, that evidence
cannot be relied on at a later trial for a different offence (via abuse of
process- common law)
 R v Rogers: Interviews excluded at first trial as involuntary, were
used at a later trial on a completely different charge => could not be
used for this trial, regardless of the charge. Got permanent stay
o An earlier acquittal cannot be undermined or controverted in later
proceedings, even for a different offence
 R v Carroll: Acquitted of murder w/ alibi, tried later for perjury on
the alibi => conviction for perjury would controvert the acquittal for
murder and so would controvert double jeopardy rule. Permanent
stay
o A person cannot be punished twice for the same criminal act
 s 16 QCC: A person can not be twice punished either under the
provisions of this Code or under the provisions of any other law for
the same act or omission, except in the case where the act or
omission is such that by means thereof the person causes the death
of another person, in which case the person may be convicted of the
offence of which the person is guilty by reason of causing such death,
notwithstanding that the person has already been convicted of some
other offence constituted by the act or omission.
 Tricklebank: DUI and killed a pedestrian => separate enough for s 16
not to apply
 Papa v Austin: Heroin trafficking and possessing stolen property in
course of entire criminal act => OK as was only punishing separate
aspects of the criminal act


R v NG: Punishment must be through courts (home, school etc.
punishment does not count)
 Pearce v The Queen: …the principles involved in the notion of
"double jeopardy" also apply at the stage of sentencing. They find
expression in the rule of practice, "if not a rule of law", against
duplication of penalty for what is substantially the same act…
 Longbottom: ‘Prima facie, the steps which Pearce requires,
in cases where a single act can be identified as common to
two offences, are as follows:
o (i) Consider the offences of which the offender has
been convicted, and dissect out from them any
elements or conduct which may be common to
more than one of the offences;
o (ii) where conduct is common to more than one
offence, take that conduct into account in
determining the appropriate sentence in respect
only of one of such offences, fixing the sentence
accordingly. For the other offences, fix a sentence
proportionate only to the criminality revealed by
those elements which are not common;
o (iii) consider questions of cumulation and
concurrency; and
o (iv) consider questions of totality’
Double jeopardy exceptions (QCC)
o s 678B: retrial for murder on the basis of fresh and compelling
evidence…must be just to proceed
o s 678C: retrial for 25 year offence on the basis of tainted acquittal.
 25 year offence = 25 yrs or more- offences include serious riot, rape,
intended gbh, robbery, serious drug offences, murder
o s 678D (fresh and compelling evidence):
 s 678B(2) ‘fresh’:
 Not adduced at original proceedings
 Could not have been adduced with exercise of reasonable
diligence.
 s 678B(3) compelling:
 Reliable
 Substantial
 Highly probative
 Not necessarily precluded if inadmissible in earlier proceedings
 R v D [UK Case]: Murder of nurse, found guilty at retrial =>
effectively confessed to people after initial acquittal
 R v G and B [UK Case]: Bitter co-accused gave evidence =>
not reliable
 Wendell Baker [UK Case]: Rape. DNA not admissible at first
trial but became admissible at second
o Tainted acquittal (s 678E QCC)
 s 678E(2):
 (a) The accused person or another person has been
convicted of an administration of justice offence in relation
to the proceedings where acquitted AND

o
(b) it is more likely than not, but for the commission of the
administration of justice offence, the accused person would
have been convicted’
 Administration of justice offence => Ch 16 QCC (e.g. perjury)
 BUT, Carroll still applies, so the offence would probably
need to be by another person
Interests of justice (s 678F QCC)
 (2) It is not in the interests of justice to make an order for the retrial
of an acquitted person unless the Court is satisfied that a fair retrial
is likely in the circumstances
 (3) The Court must have regard in particular to—
 (a) the length of time since the acquitted person allegedly
committed the offence; and
 (b) whether any police officer or prosecutor has failed to act
with reasonable diligence or expedition in relation to—
o (i) the investigation of the commission of the
offence of which the person was acquitted and the
prosecution of the proceedings in which the person
was acquitted; and
o (ii) the application for the retrial of the acquitted
person
Trial Process

Pre-trial directions and rulings
o Court may, on own motion or on application, make directions or rulings as
to the conduct of the trial (s 590AA(1) QCC)
 Binding unless judge otherwise states (s 590AA(3) QCC)
o s 590AA(2) QCC: Court can make order relating to
 (a) Quashing or staying of the indictment
 (b) Joinder of accused or joinder of charges
 (ba) Disclosure under chapter division 3 or 4
 (c) Provision of a statement, report, proof of evidence or other
information
 (d) Noting of admissions and issues the parties agree are relevant to
the trial or sentence; or
 (da) Application for trial by a judge sitting without a jury (s 614(2)
QCC)
 Both prosecution and defence can apply (s 614(1))
o If prosecution applies, defence must consent (s
615(2))
o If accused unrepresented, court must be satisfied
that application properly understood (s 615(3))
 Must be in the interests of justice to make order (s 615(1))
 If trial judge identity known, need special reasons (s 614(3))
o R v Prisk and Harris: Knew who judge was and
applied for judge-alone trial => Case should be
construed in context, no limits or rules, routine
consequences aren’t special reasons, must be
‘unusual, uncommon or exceptional’ but not
necessarily extreme



Court can inform itself any way it sees fit (s 614(5))
s 615(4): instances where no jury order can be madeo (a) Complexity/length unreasonably burdensome on
potential jury
o (b) Jury intimidation likely to occur (offence against
s 119B)
o (c) Pre-trial publicity may affect jury
o s 615(5): Court may refuse order if case to include
factual issues requiring application of objective
community standards
 Courts tend to follow this (R v Ferguson; R v
Pretorius)
o R v Clough: Court discretion unfettered
 Judge’s verdict has same effect as jury verdict (s 615C(1))
 Trial w/o a jury is exceptional (R v Fardon [per Chesterman
JA]; R v Kissier)
 (e) Deciding questions of law including the admissibility of
evidence and any step that must be taken if any evidence is not to
be admitted
 (f) Ascertaining whether a defence of insanity or diminished
responsibility or any other question of a psychiatric nature is to be
raised
 (g) Psychiatric or other medical examination of the accused
 (h) Exchange of medical, psychiatric and other expert reports
 (i) the reference of the accused to the Mental Health Court
 (j) the date of trial and directing that a date for trial is not to be fixed
until it is known whether the accused proposes to rely on a defence
of insanity or diminished responsibility or any other question of a
psychiatric nature
 (k) the return of subpoenas
 (l) the Evidence Act 1977, part 2, division 4A or 6
 (m) encouraging the parties to narrow the issues and any other
administrative arrangement to assist the speedy disposition of the
trial
o If non-compliance with disclosure order under (ba), court may order
directed party to file an affidavit justifying lack of compliance (s 590AAA(1)
QCC)
 If court not satisfied, may adjourn proceedings (s 590AAA(4)(a))
 If satisfied noncompliance was unjustified, unreasonable or
deliberate, may order just and reasonable costs (s 590AAA(4)(b))
 May also punish for contempt of court (s 590AAA(5))
Disclosure
o Prosecution
 Fundamental obligation that prosecution ensure proceedings are
fair with single aim of establishing the truth (s 590AB(1) QCC)
 Definitions (s 590AD QCC):
 Relevant proceeding = committal, summary trial or trial on
indictment
 Arresting officer = police officer who arrested/charged D or,
if that person unavailable, another officer the police





commissioner, or delegate of police commissioner,
designates as the arresting officer
 Possession of the prosecution (s 590AE QCC):
o (2) A thing is in the possession of the prosecution if
it is in the possession of the arresting officer or a
person appearing for the prosecution
o (3) A thing is also in the possession of the
prosecution if—
 (a) the thing is in the possession of—
 (i) for a prosecution conducted by
the director of public prosecutions-the director; or
 (ii) for a prosecution conducted by
the police service--the police
service; and
 (b) the arresting officer or a person
appearing for the prosecution—
 (i) is aware of the existence of the
thing; and
 (ii) is, or would be, able to locate
the thing without unreasonable
effort
Obligated to disclose in a relevant proceeding (s 590AB(2) QCC)
 (a) all evidence the prosecution proposes to rely on
 (b) all things in the possession of the prosecution, other
than things the disclosure of which would be unlawful or
contrary to public interest, that would tend to help the case
for the accused person
BUT, failure to comply doesn’t invalidate proceedings (s 590AC(2)
QCC)
 R v OL: Medical evidence vis-à-vis sexual assault victim (not
disclosed to accused) => Failure to disclose not necessarily
cause of trial invalidity
MAY affect fair trial
 R v HAU: Victim impact statement inconsistent w/testimony
(not disclosed) => Last chance for acquittal, conviction
quashed
 Mallard v The Queen: Pardon application, problem
w/evidence analysis not disclosed => Conviction set aside
Must always disclose (s 590AH(2) QCC)
 (a) Bench charge sheet
 (b) Accused criminal history
 (c) Statement made by an accused.
 (d) Notice re affected child
 (e) Witness statements
 (g) Forensic test reports
Must disclose on request (s 590AJ(2) QCC)
 (a) Particulars if a proposed witness is an “affected child”
 (b) A witnesses criminal history
 (c), (d) Material adverse to a witnesses reliability / credibility
/competence


o
In possession of the prosecution, but not intended to be
relied upon
o (e) Witness
o (f) Other evidence
Limits
 Prosecution not required to disclose things the defence
already has or is available to them (s 590AN QCC)
 See provisions for other limits
o Sensitive evidence (s 590AO QCC)
 Definition (s 590AF QCC)
o Witness contact details (s 590AP QCC)
o Anything that would be contrary to the public
interest (s 590AQ QCC)
 Timing
 When mandatory disclose must be made s 590AI(2) QCC
o (a) At least 14 days prior to the date for a hearing in
Magistrates Court (committal of summary trial)
o (b) No more than 28 days after the presentation of
the indictment
o Does not include things that must be disclosed on
request (s 590AI(1))
 When request made under s 590AJ (s 590AK(2) QCC)
o As soon as practicable
 If time limit for disclosure not met because thing not in
prosecution’s possession, must still disclose as soon as
practical after it comes into prosecution’s possession
(590AL(1) QCC)
 On-going obligation – until prosecution ends(590AL(2) QCC)
 Waivers
 Accused can waiver disclosure entitlements (s 590AT(1)
QCC)
o Must be presented to prosecution in writing (s
590AT(2) QCC)
 Court can waive disclosure requirements if satisfied there is
a good reason and that there will not be a miscarriage of
justice (s 590AU QCC)
Defence
 Alibi evidence (s 590A QCC)
 Must notify court of alibi evidence, otherwise can only
adduce with court’s leave (s 590A(1))
 Notice must be given to DPP (s 590A(6)(b))
o Must be in writing (s 590A(6)(a))
 If calling alibi witness
o Must include name in address or anything that can
help in their location in the notice (s 590A(2)(a))
o If can’t find name and address, must take all
reasonable steps (s 590A(2)(b))
o If defence finds info subsequently, must provide
forthwith (s 590A(2)(c))
o Must give all other details if DPP tells them can’t
find the witness (s 590A(2)(d))


Court shall not refuse leave if it appears to the court that
the accused person was not, upon the accused person's
committal for trial, informed by the justices of the
requirements of this section (s 590A(3))
 R v Erasmus: Charged w/killing spouse and said friend could
give alibi, friend refused to talk and later died. Accused at
trial tried to use friend’s wife w/o notice => Allowed, but
judge gave adverse directions to jury
 R v Kerma: Cannabis grower, wife gave alibi late in trial =>
Judge gave adverse jury direction (direction validated by
QCA)
 Expert evidence (s 590B QCC)
 Must give notice of expert evidence to other parties,
including name of expert and their findings (s 590B(1)(a))
 Must give other parties copy of report evidence is based on
(s 590B(1)(b))
 Both as soon as practicable
 R v de Voss: Accused led uncontradictable psychological
evidence late in trial => Non-disclosure an unsatisfactory
process (before obligation created in QCC)
 R v Ward: Accused charged w/negligent manslaughter, trial
estimated to go for 10-12 weeks => Defence was directed to
disclose all expert evidence to be used at trial
Hearings in Magistrates Court
o Proceedings commenced
 NTA, arrest and charge or complaint and summons
 Bench charge sheet and QP9
o Directions hearing, s 83A Justices Act
 Brown v Owen: D charged w/summary matters, sought particulars of
charges, didn’t get them and was convicted
o Consider issues of joinder /particulars /previous convictions:
 ss 43, 46 – 47 Justices Act
 Washband v Queensland Police Service: previous convictions
o Amending charges if necessary: (ss 48-49 Justices Act)
o Entering a plea of guilty: procedure (s 145 Justices Act)
o Entering a plea of not guilty: procedure (s 146 Justices Act)
o Hearing follows same process as higher court trials (s 148 Justices Act)
o After prosecution case – no case submission.
o Final addresses: if no evidence from defence – they go last; if evidence from
defence they go first
o Court may dismiss complaint (s 149 Justices Act)
o Costs?
 Court can order complainant pay D’s costs if:
 Matter dismissed (s 158(1) Justices Act)
 Magistrates Court does not have jurisdiction to hear (s
158(2) Justices Act)
 Can only make order if judge satisfied it is proper to do so (s 158A(1)
Justices Act)
 Must have regard to all relevant circumstances, including (s
158A(2) Justices Act):
o
o
o
o
o
o
o
o


(a) Whether proceeding brought and continued in
good faith
(b) Whether failure to take appropriate steps to
investigate a matter coming to, or within, the
knowledge of a person responsible for bringing or
continuing the proceeding
(c) Whether the investigation into the offence was
conducted appropriately
(d) Whether order of dismissal was made on
technical grounds and not on a finding of
insufficient evidence
(e) Whether the defendant brought suspicion on
himself or herself by conduct engaged in after the
events constituting the commission of the offence
(f) whether the defendant unreasonably declined an
opportunity before a charge was laid—
 (i) to explain the defendant's version of the
events; or
 (ii) to produce evidence likely to exonerate
the defendant;
 and the explanation or evidence could have
avoided a prosecution
(g) whether there was a failure to comply with a
direction given under section 83A
(h) whether the defendant conducted defence in a
way that prolonged the proceeding unreasonably
(i) whether the defendant was acquitted on a
charge, but convicted on another
Trials in District/Supreme Court
o Proceedings are commenced – indictment presented following committal /
ex-officio indictment presented
o Directions / pre-trial rulings (s 590AA QCC)
o Arraignment on the indictment (s 597C QCC)
 Official start of trial – D asked to respond to charges (plead)
o Entering a plea of guilty – proceed to sentence (s 600 QCC)
o Entering a plea of not guilty – trial by jury (or not? s 614 QCC application)
Juries (Jury Act)
o Who can serve?
 s 4(1): A person is qualified to serve as a juror at a trial within a jury
district (qualified for jury service) if
 (a) the person is enrolled as an elector
 (b) the person's address as shown on the electoral roll is
within the jury district
 (c) the person is eligible for jury service (eligible unless
excluded – s 4(2))
 Excluded persons (s 4(3))
 (a) the Governor
 (b) a member of Parliament
 (c) a local government mayor or other councillor
 (d) a person who is or has been a judge or magistrate (in the
State or elsewhere)

o
o
o
(e) a person who is or has been a presiding member of the
Land and Resources Tribunal
 (f) a lawyer actually engaged in legal work
 (g) a person who is or has been a police officer (in the State
or elsewhere)
 (h) a detention centre employee
 (i) a corrective services officer
 (j) a person who is 70 years or more, if the person has not
elected to be eligible for jury service under subsection (4)
 (k) a person who is not able to read or write English
 (l) a person who has a physical or mental disability that
makes the person incapable of effectively performing the
functions of a juror
 (m) a person who has been convicted of an indictable
offence, whether on indictment or in a summary proceeding
 (n) a person who has been sentenced (in the State or
elsewhere) to imprisonment
 Judge or sheriff can excuse jury members having regard to (s 21(1)):
 (a) Whether jury service would result in substantial hardship
to the person because of the person's employment or
personal circumstances
 (b) Whether jury service would result in substantial financial
hardship to the person
 (c) Whether the jury service would result in substantial
inconvenience to the public or a section of the public
 (d) Whether others are dependent on the person to provide
care and suitable alternative care is not readily available
 (e) The person's state of health
 (f) Anything else stated in a practice direction
Jury composition
 Twelve on serving jury (s 33)
 Judge may direct that no more than 3 people be sworn in as
reserves (s 34(1))
 Reserve jurors same as normal ones (can be challenged in
same way, same oath etc.) (s 34(2))
 Reserve juror takes vacancy (juror dies or is discharged) if
becomes available after start of trial but before jury retires
to consider verdict (s 34(3))
Juror information
 If a either party finds info that suggests a juror is unsuitable, must
disclose to other party as soon as practicable (s 35(1))
Challenging jury members
 s 39: Before jury selection begins, court must inform D that
 (a) The persons whose names are to be called may be sworn
as jurors for the trial; and
 (b) If D wants to challenge any of them, they or their
representative, must challenge before person is sworn in
 In crim trial, prosecution and defence have 8 peremptory
(completely free and reason-free) challenges (s 42(3))
 For reserve jurors (s 42(4)):
o (a) One extra challenge if 1-2 selected






o (b) Two extra challenges if 3 selected
Challenge for cause (s 43)
 Unlimited challenges for cause (s 43(1))
 Doesn’t reduce number of peremptory challenges (s 43(8))
 s 43(2): Reason of either (a) person not qualified to serve as
juror or (b) person is not impartial
 Must inform judge of reasons and give relevant info (s 43(3))
o If judge satisfied (s 43(4)):
 (a) May permit questioning of juror (judge
decides on form of questions)
 (b) If answers support challenge, may allow
further cross-examination under oath
 Judge can allow or dismiss challenge (s 43(6))
o Not appealable in and of itself (interlocutory), but
may be relevant to appeal against final judgement (s
43(7))
 Pre-trial publicity
o R v Stuart; R v Murphy: In both cases, unsuccessful
appeals against failure of challenges as judge had
appropriate directed jury and not enough evidence
for challenges to succeed
Can challenge entire panel, but must be before any juror is sworn in
(s 40)
Judicial discretion to exclude
 At final stage of selection process, judge can exclude
selected juror (or reserve) if reason to doubt impartiality (s
46(1))
 Can do whether or not challenge for cause made (s 46(2))
Special challenges
 Judge may, on application in final stage of selection, allow
questioning of jury member if satisfied there are special
reasons (s 47(1))
 Application must be made at least 3 days before date fixed
for trial, unless special reasons (s 47(2))
 In application, applicant may suggest, and judge may decide,
questions that are to be put to selected persons (s 47(3))
o Judge to word questions how they want (s 47(4))
 Based on answers, may order cross-examination (s 47(5))
 When questioning finished, a party may make challenge for
cause (s 47(6))
o Must inform judge of reasons and provide
additional info/material if necessary (s 47(7))
 Judge may allow or dismiss challenge (s 47(8))
 Decision not subject to interlocutory appeal but may be
relevant to appeal against final judgement (s 47(11))
Judicial discretion to discharge entire jury
 Judge can discharge entire jury before end of final selection
stage if challenges made have resulted in jury that makes
trial unfair, or appear to be unfair (s 48(1))
R v D’Arcy: Failed appeal against failed special challenge vis-à-vis
publicity => Not enough to point to pre-trial publicity to establish
o
o
o
lack of jury impartiality, judge directions can easily fix this – need
something more (per Keane JA)
Jury irregularity
 R v 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?
 Webb and Hay v The Queen: Murder trial, mother of victim present
and jury member brought her flowers => Would a fair-minded and
informed observer have a reasonable apprehension of a lack of
impartiality on the part of the juror?
 Tichowitsch: Sexual assault case, jury member informed judge that
daughter had been sexually assaulted (unrelated to case) => Was OK
to keep juror as they offered an assurance to judge
 Edwards v Ors: Juror went drinking and had a breakdown, ended up
in drunk tank => Successful appeal against
 R v McCosker: D knew jury member but didn’t challenge until after
conviction => Waived right to challenge by silence
 R v Metius: Jury member felt threatened and was discharged => No
actual irregularity found
Jury deliberations and activities
 Inspections and views
 Judge can order jury view a particular place or object (s
52(1))
 Must be in presence of judge, parties and representatives
entitled to attend (s 52(2))
 The validity of proceedings not affected by contravention of
a direction, but if contravention discovered before verdict
given, judge may discharge the jury if contravention appears
likely to prejudice a fair trial (s 52(3))
 Myles and Myles: Transporting cannabis, pleaded ignorance.
Jurors visited pot drop-off sites w/o judge => Was OK, but
jury warned to not do on their own
 s 50: Jurors must be sworn to give true verdict, according to
evidence, on issues to be tried, and not to disclose anything about
the jury's deliberations except as allowed or required by law
 Jury can’t make inquiries about accused (e.g. internet
searches
 R v K: Jurors did net search and found D had been acquitted
of murdering second wife (trial was about murder of first
wife) => New trial ordered
Verdicts
 With certain offences (List in s 59(1)(a)) or when only 10 jurors (s
59(1)(b) => doesn’t matter if more than 10 at a previous point in the
trial (s 59(2)) verdict must be unanimous (s 59(3))
 Majority verdicts for non-s 59A(1) circumstances
 If judge, after the prescribed period, satisfied that jury
unlikely to reach unanimous verdict, may ask the jury to
reach a majority verdict (s 59A(2))


Definitions (s 59A(6))
o Majority verdict: 11 out of 12 or 10 out of 11
o Prescribed period: At least 8 hours following jury
retirement, not including meal breaks, separations,
overnight accommodation
 s 59A(4): Excepted periods are however
long judge thinks reasonable
 Not subject to appeal (s 59A(5))
 Can include further period judge considers
reasonable regarding complexity of trial
 R v McClintock: Jury couldn’t reach unanimous verdict, after
8 hours judge directed them to reach majority verdict, jury
came back quickly with majority verdict. No problems =>
Judge must have sufficient evidence of unlikelihood of
unanimous verdict to direct for majority verdict. Can
question jury about unanimity or give Black direction and
wait a bit
 R v Royal: Concern about quick change by one juror => Court
said was OK, no time requirements
 No verdict and discharge
 If jury can’t agree on verdict, or judge considers other
proper reasons for discharging jury without a verdict, judge
may discharge the jury without giving a verdict (s 60(1))
o Decision not appealable (s 60(3))
 Black direction
o Black v The Queen: Where jury indicate to court
they can’t reach verdict and prerequisites for
majority verdict haven’t arisen => Encourages juries
to reconsider points of difference and suggests to
jury that they will be discharged if the don’t reach a
verdict
 R v Millar (No 2): Black direction and majority verdict
direction given at same time => Was after 8hrs so was OK,
but Black direction should generally come first
Other aspects of in superior courts trials
o No case submissions at conclusion of prosecution evidence
 Same process as committal => Sufficient evidence for jury to convict
(Antoun)
 Judge can only direct an acquittal where there is a defect in the
evidence such that taken at its highest it will not sustain a verdict of
guilty (Doney v The Queen)
 Example => R v James, Toppin and Thomas: Bouncers
accused of killing a patron, cause of death uncertain => No
case submission accepted – acquittal
 If no case submission fails or is not made, defence can elect whether
or not to call evidence (s 618 QCC)
o Voir dire
 Mini trial during a trial w/jury out of courtroom => usually about
admissibility of evidence
o Speeches by counsel and judge





Prosecution allowed to address jury before leading evidence (s
619(1) QCC)
If defence doesn’t lead evidence, prosecution allowed to sum up to
jury (s 619(2) QCC)
 Defence then allowed to address jury (s 619(3)QCC)
If defence adduces evidence, prosecution will speak last in reply (s
619(4) QCC)
After both parties have finished addressing jury, judge to direct jury
on their verdict etc. (s 620(1) QCC)
 Jury then to leave and consider verdict (s 620(2) QCC)
Nolle Prosequi
o s 563 QCC:
 (1) A Crown Law Officer may inform any court, by writing under the
officer's hand, that the Crown will not further proceed upon any
indictment, or in relation to any charge contained in any indictment,
then pending in the court
 (2) A Crown prosecutor or a person appointed by the Governor in
Council to present indictments in any court of criminal jurisdiction
may inform that court, by signed writing, that the Crown will not
further proceed upon any indictment, or in relation to any charge
contained in any indictment, then pending in that court
 (3) When such information is given to the court the accused person
is to be discharged from any further proceedings upon that
indictment or charge
o Nolle does not = acquittal, charges can be brought again later for same
offence (Davis v Gell; R v Saunders)
o Prosecution, generally, can enter a nolle at any time before a verdict (R v
Ferguson)
o Fairness/abuse of process and nolle prosequi
 Courts will reject nolle in circumstances of patent unfairness
 R v Saunders: Saunders accused of hiring hitman, prosecution relied
on tape-recordings and became apparent late in trial that they were
fabricated. Prosecution tried to enter a nolle => Rejected – D had
already gone through trial, unfair to subject her to uncertainty (nolle
not an acquittal), prosecution’s only evidence corrupt
 R v Jell; Ex parte A-G (approved Saunders): D charged incorrectly
w/fraud, one element did not exist on facts, prosecution attempted
to nolle while jury was considering its verdict => Rejected, court has
right to do so to avoid abuse of process. Court has power to reject
where nolle is being used to save a dead prosecution case
 DPP (SA) v B: D accused of sexual offences, complainant didn’t show
up to testify, prosecution’s nolle rejected => Reject nolle where
prosecution has no evidence to present
 Kirby Jo Court must ensure fair trial, permanent stay an
option if second prosecution after an abusive nolle
o Examples of clear cases of abusive nolle
 Where trial judge refuses an adjournment
because of incompetent/inadequate
preparation by prosecution



Attempted nolle after jury seeks assistance
and their request signals a possible not
guilty verdict
 Where prosecution has had a bad trial and
they seek an opportunity for a re-run
 Where a witness was not available or their
evidence not covered, as hoped, by other
witnesses
R v Ming Yeuk Lam: Reject nolle where prosecution’s case does not
disclose the commission of the offence as alleged on the indictment
Gipp v The Queen: Where a matter is incorrectly nolled and the
Crown attempts to re-prosecute it, there is no alternative but for
the court to stay the matter as abuse of process
Fair Trial and Abuse of Process


Jago v District Court (NSW) (per Toohey J): ‘To treat abuse of process and fair trial
as entirely distinct concepts carries the risk that the remedies in each case will be
seen as necessarily different. That will not always be the case. Greater flexibility and
in the end greater justice will be achieved if the two notions are understood as
bearing on each other’
Fair trial
o What is a fair trial?
 Dietrich v The Queen (per Gaudron J): Trial in accordance with the
law required, but no fair simply because in accordance with law
 Per Brennan J: But, limits on resources a relevant factor =>
what is fair will vary depending on the circumstances
(requirements for a fair trial are dynamic)
o McKinney v The Queen: Vis-à-vis police powers, tech
has advanced enough to give rise to expectation of
recorded interviews
 Jago v District Court (NSW) (per Deane J): Right not to be tried
unfairly
 Per Deane J: test is whether the ‘irregularity or prejudicial
occurrence has permeated or affected proceedings to the
extent that the trial has been rendered unfair.’
o Appearance of fairness
 Judge behaviour
 North Australian Legal Aid v Bradley: ‘Impartiality and the
appearance of impartiality are necessary for the
maintenance of public confidence in the judicial system’
 Johnson v Johnson: ‘whether a fair-minded lay observer
might reasonably apprehend that the judge might not bring
an impartial and unprejudiced mind to the resolution of the
question the judge is required to decide...’
o RPS v The Queen: Judge interjected many times
during D’s case and raised issues with D’s counsel in
front of the jury => if tension between judge and
counsel it should not be expressed in front of jurors,
otherwise unfair
o
o


R v Copsey: Judge interrupted D’s evidence 92 times
and interjected, saying evidence was ‘bizarre’ =>
trial considered unfair and conviction set aside
Cesan v The Queen: Judge slept through several days
of a 17 day drugs trial. Set aside as unfair => duty of
judge to supervise and control trial and if judge is
inattentive and noticeably and repeatedly asleep
etc., then a chance of a miscarriage of justice
Prosecution behaviour
 Improperly addressing the jury
o Livermore: Implied rape victim had tried to discard
evidence => prosecution has to be moderate in their
address, can’t make statements about things not in
evidence and must avoid personal emotion, opinion,
insults and questioning the credibility of witnesses
who didn’t testify
o R v KP: Prosecution said D could write the
paedophile’s handbook in opening remarks => trial
stopped and jury discharged
 Conduct of opposing counsels
o R v Szabo: Opposing counsels had been in prior
relationship and shared hotel room at one point
during trial. D was convicted => was an appearance
of unfairness and conviction set aside
 Interpreter
 Court may provide if in the interests of justice (s 131A
Evidence Act)
 Re East; Ex parte Nguyen: D at no point had an interpreter,
judge had asked but lawyer said no and D said nothing.
Convicted and appealed => presence of accused at and
understanding of proceedings important, but on facts court
found D could understand
 De La Espirella-Velasco: Interpreter wasn’t spot on in
translations => doesn’t need to be perfect, but must be
sufficient for D to understand what’s going on
 Ebatarinja: Deaf, mute, illiterate Indigenous man who had a
for of sign language only a few people understood => fair
trial impossible as no appropriate interpreters were
available
 R v Watt: Interpreter at trial not court accredited and had
lower than ideal level of competency => trial unfair because
inconsistency too high
Prejudicial publicity
o Responses to prejudicial publicity
 Glennon v The Queen: Catholic priest…, conviction quashed and
prosecution appealed. Deryn Hinch broadcast highly prejudicial
material (previous charges) three years before trial => Hinch found
guilty of contempt of court at time, but publicity was too long
before trial for a stay
 Community expectation that accused be brought to trial


Always risk that jurors will come across prejudicial
information, and some risk to the integrity of the system is
required vis-à-vis freedom of public expression and
involvement in justice system
 Can combat publicity with jury directions, adjournment,
charges of contempt, judge alone trial, jury selections etc.
 R v Purdie: Prejudicial material published on day of trial =>
adjournment for things to ‘cool down’
 Dupas: Serial killer, sought stay over publicity, denied => each juror
has to swear to listen to evidence, judge directs the jury, evidence
can be tested during trial, jurors have a conscientious commitment
to fairness and can be trusted
 Long; Walters: Adjournment and change of venue
 R v Kaddour: D’s lawyer outed in paper for fraud, judge consistently
told jury to ignore this => directions good enough for fair trial and
court less worried where publicity not about D themselves
 Jago v District Court (NSW) (per Brennan J): ‘By the flexible use of
the power to control procedure and by the giving of forthright
directions to a jury, a judge can eliminate or virtually eliminate
unfairness.’
Abuse of Process
o Jago v District Court (NSW) (per Brennan J): ‘The purpose of criminal
proceedings, generally speaking, is to hear and determine finally whether
the accused has engaged in conduct which amounts to an offence and, on
that account, is deserving of punishment ... Although it is not possible to
state exhaustively all the categories of abuse of process, it [abuse of
process] will generally be found in the use of criminal process
inconsistently with some aspect of its true purpose’
o Williams v Spautz: onus for proving abuse of process falls on he/she who
alleges it
o PNJ v The Queen: Abuse of process will exhibit at least one of the three
characteristics:
 the invoking of a court's processes for an illegitimate or collateral
purpose;
 the use of the court's procedures would be unjustifiably oppressive
to a party; or
 the use of the court's procedures would bring the administration of
justice into disrepute
o Examples of abuse of process
 Lack of offence particularity (Patel v The Queen)
 Ulterior purpose for prosecution (Williams v Spautz; Moti)
 Williams v Spautz: Warring academics, predominant
purpose of prosecution was for Spautz to get his job back =>
improper
 Inappropriate use of ex officio indictment (Barton)
 Resubmitting previously excluded evidence (R v Rogers)
 Double jeopardy (R v Carroll)
 Improper nolle presequi (Saunders)
 Delay



Jago v District Court (NSW): Dual requirements that [1]
trials be conducted fairly and [2] alleged offenders are tried
and without unreasonable delay
o Per Deane J: Delay not, prima facie, an abuse of
process => 5 considerations
 Length of delay
 Reasons for delay
 Accused’s responsibility for the delay
 Prejudice to the accused
 Public interest
o Per Mason CJ: …an accused seeking a
permanent stay must be able to show that the
lapse of time is such that any trial is necessarily
unfair so that any conviction would bring the
administration of justice into disrepute…
 R v Edwards: Offence in 2001, complaint lodged 2004,
charged 2005, trial set for 2006, adjourned, applied for stay,
prosecution appealed. Evidence of unknown content lost
over time => Appeal allowed as evidence lost not
detrimental to accused
o ‘…whether in all the circumstances the continuation
of the proceedings would involve unacceptable
injustice or unfairness.’
 Khoury: Prosecution disorganised, D wasted $200K on
representation – 5 trial listings which didn’t go ahead over
several years – stay granted
 Gill: 20 year delay, key witness died, stay allowed for
prejudice
 Wrigley: 5 year delay, witness memory dimmed (usually a
benefit for the accused), not enough for a stay
 Owen v Edwards: Delay has to be looked at in context in
which it arose => Two year delay for three week trial in
regional area not unusual
Oppressive prosecution
 Charges too vague (R v S)
 Prosecution doomed to fail (Walton v Gardener)
 Specific charge inappropriate
 Charge a duplication of other charges
 R v Lewandowski: Police officer who fabricated evidence
and fled to Thailand. Agreed to return to given evidence at
appeal in return for undertaking that he would not be
prosecuted. He complied, DPP didn’t and he was arrested
and charged. Permanent stay granted for breach of
agreement (abuse of process)
Malicious Prosecution – A tort
 A v NSW: D accused of sexual abuse of partner’s children,
kids were lying => charges thrown out and D sued the state
o Factors:
 Relevant proceedings
 Terminated in favour of plaintiff (accused)



Defendant (prosecution), in
initiating/maintaining proceedings, acted
with malice
 Defendant acted without reasonable and
probably cause => malice = improper
purpose as sole/dominant purpose of
prosecution
Applies to nolle prosequi (Beckett v NSW)
Responding to unfairness and abuse of process
o During/commencing trial => judge must manage trial
 Adjournment
 District/Supreme Court: Court may, if it thinks fit, adjourn a
trial (s 592(1) QCC)
 Magistrates Court: Magistrate can adjourn to later date (s
88(1) Justices Act)
o Can only recommence after both parties have had
reasonable notice (s 88(1A))
o Adjournment on application, if both parties consent
(s 88(1C))
 Refuse to accept plea
 Ensure appropriate procedures followed
 Make appropriate rulings on evidence
 Jury directions
 Discharge jury members if necessary
o After trial
 Appeal
 Stay of proceedings
 S 590AA QCC pre trial application; or
 Ordered during trial; or
 On appeal
 Stay for a necessary time: ‘the courts do have a power to
postpone or stay the trial on such an indictment where
necessary to ensure that the accused receives a fair trial.’
Barton (per Stephen J)
 Williams v Spautz: Stays have a dual purpose, [1] avoid
abuse of process, and [2] avoid unfair trial
 Permanent stays:
o Jago v District Court (NSW) (per Brennan J):
‘tantamount to the refusal of jurisdiction to hear
and determine the matter arising on the
presentation of an indictment. Such a right would
impose a discretionary time limit on the
presentation of indictments.’
o Per Mason CJ: ‘To justify a permanent stay of
criminal proceedings, there must be a fundamental
defect which goes to the root of the criminal trial of
such a nature that nothing that the trial judge can
o
do in the conduct of the trial can relieve against its
unfair consequences…’
O’Rourke: Several key documents lost, crime scene
changed etc. => Permanent stay as fair trial
impossible
Legal Representation


s 616(1): Ever person charged with an offence is entitled to make their defence at
trial and to have witnesses examined/cross-examined by their counsel
o Means you can have a lawyer, but the state is under no obligation to provide
you with one
o McInnes (per Murphy J [dissenting]): in serious cases, an accused unable to
afford representation and desires it should not be forces to trial until legal
assistance can be acquired
Dietrich v The Queen
o Charged with drug offences and sought legal aid, but refused on basis his
defence had no merit
 Appealed unsuccessfully to Victorian Legal Aid and Cth A-G, and was
unable to get an adjournment
 Pleaded not guilty and was convicted, appealed unsuccessfully to
VCA and HCA
o High Court held:
 Absence of representation for accused who cannot afford it doesn’t
necessarily mean trial unfair
 Dietrich principle:
 Trial judge faced with application for adjournment by ano Indigent accused
o Charged with a serious offence
o Who through no fault of their own
o Is unable to attain legal representation
o In absence of exceptional circumstances
 Should adjourn/postpone/stay the trial until legal
representation can be attained
 If an application that the trial be delayed is refused and, by
reasons of lack of representation, the resulting trial is not a
fair one, any conviction should be quashed
o Not fair if there is a loss of a real chance of acquittal
o Indigent
 Meaning: lack of means to pay for legal representation
 R v Fuller: Depends on what individual trial requires
 R v Karounos: Not equated with Legal Aid guidelines
 R v Marchi, Marchi and Mead: Not necessarily living in poverty, but
lacking means to engage appropriate legal representation
 D had plenty of money, but not enough to pay for full trial
 R v Rich and Hayes: Not a snapshot test, up to accused to find funds
and their behaviour in lead up to trial relevant
 Assets and funds from spouse/de facto relevant
 Ex parte Rodden: Indigence can be hard to judge where financial
position of accused relevant to defence
 How expensive to raise the defence (e.g. evidence)?
o
o
o
Serious offence
 Mason CJ and McHugh J: Serious indictable matters
 Deane J: Doesn’t apply to trials w/o juries (i.e. summary matters)
and does not apply where no risk of deprivation of liberty
 Summary matters not usually included (Donnarchy v
Riegert)
o But, were included in Weinel v Fedcheshen [SA Case]
o Also, questionable given expanded role of QLD
Magistrates Courts
 No deprivation of liberty test applied in King v Lankford [WA
Case]
o Khalifeh v Job: Offence carrying max penalty of
$4000 fine and one year imprisonment upon
summary conviction not serious
 R v Essenburg: Charge of possessing an unlicensed weapon, got a
$300 fine => QCA looked at actual trial result
 R v Matterson; Ex parte Helfenbaum: Does not apply to committals
as no threat of punishment
 New South Wales v Cannellis: Doesn’t apply to civil proceedings or
witnesses at commissions of inquiry
 Sinanovic v The Queen (per Kirby J); Crampton v The Queen (per
Kirby J): Doesn’t apply to appeals
Fault
 Deane J: Accused who persistently refuses representation will likely
be held at fault
 Need not be deliberate or wilful => R v Small: Accused
forgot (distressed and on drugs) and Dietrich principle held
to not apply
 Craig v South Australia: Was the accused reasonable? (question of
fact)
 R v Batiste: Assessment made with respect to surrounding
circumstances
 Stay refused where D kept changing legal aid solicitors
without explanation
 R v Promizio; Wilson; R v Crothers and Ors: Rejection or dismissal of
legal representation may constitute fault (depends on circumstances
and reasons)
 R v East: Balance need for fairness and for efficient and effective
administration of justice
 Trial judge should hear from accused before deciding for or
against an adjournment
 Trial judge assumed accused was delaying when their lawyer
had pulled out day before trial, leaving very short time to
find replacement
 Gassy v The Queen: Accused must give notice they wish to be
represented, but can have lawyer for just one aspect of a trial (e.g.
voir dire)
 Accused elected to represent self at trial and later
complained
Exceptional circumstances

o
o
R v Fuller: D was indigent, but was a skilled corporations lawyer and
trial was on his area of expertise, so was an exceptional
circumstance
 R v Wilson: Accused mentally ill and met solicitor 2 days before trial,
barrister 1 day before and sacked both => QCA said dismissal
couldn’t be separated from illness and time before trial, so
exceptional circumstance
 Grosser: D heard a bogus rumour his lawyers were involved in
corruption. Adjournment denied
Quality of representation
 Mason CJ, McHugh, Toohey and Dawson JJ: Need only be
competent
 Attorney-General (NSW) v Milat: Representation need only be
sufficient => may be someone who practices regularly in given
jurisdiction
 Only unrepresented if representation is ‘manifestly
inadequate’
 Could only get a regular barrister against a QC, was
sufficient
 Cummings v The Queen [WA Case]: Need not be a ‘Rolls
Royce representative’
 R v Souter: Representation must be appropriate for the demands of
the particular case
 Legal aid available was totally unrealistic for a case with 63
counts of fraud and 85 witnesses => effectively
unrepresented
 R v Gudgeon: Accused doesn’t need to get their own chosen counsel
Competence
 Eastman (per Callinan J): Accused can be denied a fair trial because
counsel flagrantly incompetent (Birks) or because they were
unrepresented (Dietrich)
 Can argue effectively unrepresented because of
incompetence
 R v Birks [NSW Case] (per Gleeson CJ): Legal representatives will
usually decide how to run the case (tactics, witnesses etc.), some
level of error allowed
 TKWJ v The Queen (per McHugh J): Trial may be unfair if accused
can show a material irregularity affected the outcome of the case
(loss of real chance of appeal), even if prosecution’s case is strong
 But, not every error makes a trial unfair
 R v Tuckier: Counsel incompetent because divulged
privileged info to court, failed to object to some prosecution
evidence, failed to make submissions on law and concurred
with incorrect judicial directions
 R v Paddon: Not incompetent if satisfactory explanations for
conduct of representative can be provided
 Nudd v The Queen (per Kirby J): ‘Pragmatic consequences’ of lawyer
incompetence will not be sole consideration vis-à-vis fairness
 Lawyer incompetent (didn’t understand leg or case law,
didn’t take instruction), but prosecution’s case so strong
that incompetence had no bearing on result


Unrepresented accused
o MacPherson v The Queen (per Mason J): Judge under duty to give accused
information and advice, but only where necessary for fair trial
o Dietrich v The Queen: Judge cannot investigate facts or direct the defence
o R v Zurek: Conviction set aside as judge had cross-examined unrepresented
accused and had taken on prosecutorial role
 R v Esporito: Judge will be treading on thin ice in this case, but how
thin will depend on circumstances
McKenzie Friend
o McKenzie v McKenzie [Eng Case]: Any person who is a friend of either party
may attend as such and may take notes, make quite suggestions and give
advice
o Damjanovic v Maley [NSW Case]: McKenzie friend can only address the
court with judge’s/magistrate’s invitation
 McKenzie friend more likely to be allowed in lower courts
 Interest of justice test for allowance
o R v Bow County Court; Ex parte Pelling [Eng Case]: McKenzie friend should
be allowed unless judge thinks they are not required by interests of justice
or fairness
 Judge should give reasons if refusal
 McKenzie friend for benefit of litigant and, whether or not they are
paid, the friend has no right to provide these services
o Smith v The Queen: Decision to allow McKenzie friend is at the
judge’s/magistrate’s discretion
o Macartney v The Queen: Court has duty to ensure safeguards of legal
representation are not eroded by allowing representation by unqualified
persons without the responsibilities and duties of counsel
Amicus Curiae (‘Friend of the Court’)





Person who seeks permission to intervene in a case in which they act for neither the
prosecution or defence
Usually to present info, own point of view or that of an organisation or specialist to
court (Commonwealth v Tasmania (Tasmanian Dam Case))
Court has discretion to hear (Australian Railways Union v Victorian Railways
Commissioners)
Important where significant legal issues are at stake (A-G (Cth) v Breckler)
Kruger v Commonwealth: Refusal of amicus curiae application => Applicant couldn’t
show parties he was supporting were unwilling or unable to protect their interests
or assist the court
o Court should reject where parties before it are willing and able to provide
adequate assistance to the court
o Court must protect its own efficient operation
Ethics (Australian Solicitors Conduct Rules)

3. Paramount duty to the Court and the administration of justice
o 3.1. Duty to the Court is paramount and prevails vis-à-vis any inconsistencies
o Giannarelli v Wraith (per Brennan J): “Counsel may appear to represent the
adversaries, but counsel’s duty is to assist the court in the doing of justice
according to law”





4. Other fundamental ethical duties
o 4.1 A solicitor must also:
 4.1.1 act in the best interests of a client in any matter in which the
solicitor represents the client;
 4.1.2 be honest and courteous in all dealings in the course of legal
practice;
 4.1.3 deliver legal services competently, diligently and as promptly
as reasonably possible;
 4.1.4 avoid any compromise to their integrity and professional
independence; and
 4.1.5 comply with these Rules and the law.
7. Communication of advice
o 7.1 A solicitor must provide clear and timely advice to assist a client to
understand relevant legal issues and to make informed choices about action
to be taken during the course of a matter, consistent with the terms of the
engagement.
o 7.2 A solicitor must inform the client or the instructing solicitor about the
alternatives to fully contested adjudication of the case which are reasonably
available to the client, unless the solicitor believes on reasonable grounds
that the client already has such an understanding of those alternatives as to
permit the client to make decisions about the client’s best interests in
relation to the litigation
8. Client instructions
o 8.1 A solicitor must follow a client’s lawful, proper and competent
instructions
Other rules in ASCR Document
Also remember Legal Services Commissioner v Winning (per White J)
o Frustrating a police investigation could not be described as preventing the
course or the administration of justice (e.g. advise right to silence, resist
police search where there is no warrant etc.)
o Where a legal practitioner assists in the commission of a crime they will be
criminally responsible as a party to that crime
Considerations Underlying Sentencing



Sentencing hearing follows the allocutus (s 648 QCC)
o Allocutus a formal requirement (R v Holland)
Court may receive a pre-sentencing report (s 15 PSA)
Submissions
o Prosecution (goes first)
 R v Ku et al: Prosecution agreed w/ defence at trial on sentence,
then appealed => Despite agreement, court held that the issue was
whether the sentence was just, not whether everyone got what they
wanted
o Defence (follows prosecution)
o Burden of proof and evidence
 s 132C Evidence Act:
 (2) Judge may act on allegation if not challenged
 (3) If fact challenged, judge decides on BoP



(4) Degree of satisfaction required varies according to
consequences, adverse to the offender, of finding the
allegation to be true
 s 15 Victims of Crime Assistance Act: Victim impact statements only
a factor to consider, not determinative
 Judge may form own view of facts so long as it does not conflict with
the jury’s verdict (Cheung v The Queen)
 In stating the sentence, the judge should avoid emotive language
 R v Porter: Judge insulted accused => clear prejudice
If imposing a sentence of imprisonment, judge must give reasons (s 10(1)(a) PSA)
o Doesn’t invalidate sentence if none given (s 10(2))
Judicial discretion
o Wide discretion (R v Smith)
o Must sentence after considering all the particular circumstances of offender
and offence (Kable v DPP)
o Aim of consistency (s 3(c) PSA)
 Nevertheless, sentencing not a mechanical process (Ryan v The
Queen)
o Courts follow ‘instinctive synthesis’ – weigh all relevant factors and see what
you get (Markarian v The Queen)
 Staged process – determine min/max and make increments and
decrements as you go – only OK for minor offences
o
Limits
 Judges must be careful with statistics – only a factor (Markarian v
The Queen; Wong v The Queen)
 Like cases a useful tool (R v KU; R v Tabokovic)
 Judge to ask prosecution for like cases (R v Morton)
 Sometime hard to compare as case so unique (Pesnak –
health retreat manslaughter)
 Court must regard the max/min penalty for the offence (s 9(2)(b)
PSA)
 Maximum reserved for the worst case (Veen v The Queen
(No 2))
o Doesn’t mean you can’t give max if you can think of
worse (R v Fernando – young offender, but rape and
murder so needed max)
 Must take guilty plea into account (s 13 PSA)
 An order that would require involvement in crime is improper
 R v Rasmussen: Improper to force offender to pay back debt
to drug dealers
 Totality
 Important where sentencing for multiple offences (Mill v
The Queen) or where offender already serving a sentence
(DPP (Tas) v Farmer)
 Sentence must be just and appropriate overall (Mill v The
Queen)
 If already serving a sentence, should consider what sentence
would have been of offences heard together (R v F)
 Sentence should not be crushing (R v Schmidt)


Parity
 Postiglione v The Queen: Court should treat like as like, but
also needs to look at the specific characteristics of each case
=> Perfect parity not always possible or even desirable
o R v Onea: Guilty plea from offender gave them more
lenient sentence than their co-offender
o R v Crossley: Difference in sentences for cooffenders as one younger with different record
Aims of punishment (s 9(1) PSA) => Guideposts (Veen v The Queen (No 2))
o Do not punish for:
 Disposal of social problems
 Clarke: Serial offender who broke a flower pot => Prison not
OK
 Dooley v Polzin: Minor offences (evading taxi fares etc.) but
45 of them => 9 months in jail OK for string of offences
 Vengeance
o Just punishment/proportionality
 Punishment must be just in all the circumstances (s 9(1)(a))
 Punishment should fit the crime (Hoare v The Queen)
 Veen (No 1) and Veen (No 2)
 1: 20 y/o killed a man, convicted for manslaughter
(diminished resp.), got life to protect community, reduced
to 12 years on appeal => sentence should not be
disproportionate just for community protection
 2: Veen released and killed again, got life again => Upheld
on appeal as circumstances had changed => Principle of
proportionality firmly entrenched
o Rehabilitation
 Sentence can be imposed to provide conditions that will help
offender’s rehab (s 9(1)(b))
 One of the PSA’s aims to provide appropriate rehab (s 3(b))
 If long delay between offence and prosecution and no reoffending
has occurred, rehab can be inferred and act as a mitigating factor.
Courts divided over whether rehab can be proved in absence of
remorse (R v D’Arcy)
 R v Taylor and Napatali: 19-20 y/o, robbed a convenience store, no
priors, got an ICO. Upheld on appeal => Prospects for rehab seen to
be higher in young people and may act as factor to avoid
imprisonment. Goal to rehab young people
 R v Lovell: Youth remains relevant even w/violent offences
 R v Fernando: If young offender has history, other
sentencing principles may take precedence
 Special minor drug offence provisions (ss 15B-15F)
o Deterrence (s 9(1)(c))
 Specific and general deterrence often dealt with together (R v Riley)
 Specific
 Mental illness or cognitive defect can make specific
deterrence less relevant or even irrelevant (R v Verdins [Vic
Case])
 General



o

R v Pangello: D a solicitor convicted of bribing prosecutor =>
Crime stuck at heart of judicial system and was to be
severely punished, with deterrence at forefront of
sentencing judge’s mind
R v Amituani: Student martial artist who caused brain
damage to another while drunk => Need to deter drunken
brawling was in conflict with proportionality, but sentence
still raised
R v Sabanovic; Ex parte A-G: Deterrence a statement to the
community and public confidence
Denunciation
 Sentences to make it clear to the community that the behaviour is
denounced (s 9(1)(d))
 Ryan v The Queen: Key aim of crim law to denounce symbolically
the prosecuted behaviour => Though, inevitable that sentences will
denounce charged behaviour, so doesn’t justify double punishment
 R v Ku et al.: Clear statement against rape for protection of women
 R v Nguyen: Off-duty cop who perverted the course of justice =>
Denunciation important as offender a part of the justice system and
offence was against said system
o Protection (s 9(1)(e))
 Relevant to sentencing (Veen v The Queen (No 2))
 Conflicts with proportionality
 May included imprisonment, home detention, curfews, monitoring
etc.
 Curfew (A-G (Qld) v Francis)
Sentencing factors (s 9(2) PSA => see for list)
o Consider ALL factors (R v De Simoni)
o Colless: Bike path assaulter, no weapons or threats of death, remorseful, not
(legally) a rapist, BUT premeditated, many offences => Got ~12 years, lots of
competing factors
o R v Lui: Judge had own stats and didn’t tell parties so they couldn’t address
them => Successful appeal as, if judge believes something is relevant, should
notify parties for them to address it (procedural fairness)
o R v Hannigan: D claimed roughly handled by police => court should take
extra-curial punishment into account, looking at seriousness of detriment
(not enough on facts to reduce sentence)
o Factors
 Age, mental capacity and character (s 9(2)(f))
 Character (s 11)
 Relevant priors (Veen v The Queen (No 2))
o Relevant and recent priors (s 9(8))
o Person with priors will generally get a higher
sentence (R v TL)
o Prior convictions can overwhelm public perceptions
of a person (Ryan v The Queen)
 Younger age a mitigating factor – leniency (R v Taylor and
Napatali)
o Older offenders need other mitigating factors on
top of age to get reduction (R v Belbruno [Vic Case];
Gulyas)



 Mental health issues count (R v Sopher)
 Intellectual capacity
o Reduced intellectual capacity reduces culpability (R
v BBE; R v Goodger)
o R v Verdins [Vic Case]: Reduced capacity Reduces moral culpability
 Bears on type of sentence
 Impinges on general and specific deterrence
 May determine effect of type of sentence
on offender
 If serious risk imprisonment will
adversely affect person, becomes a
factor
Damage/injury/loss to victim and community (s 9(2)(e))
 Victim impact statements
o R v Singh: Judges should be very careful with VISs as
the defence can’t easily controvert them
o Up to judge to decide on weighting (s 15(8) Victims
of Crime Assistance Act)
 Victims vulnerability due to something like age a factor
(Royer v Western Australia)
Cooperation with authorities (s 9(2)(i))
 Wong v The Queen: Can be difficult to discern between
assistance and other factors like remorse and guilty plea
 York v The Queen: Helped police, death threats => Both
were relevant
 AB v The Queen: If D gives prosecution relevant info will be
looked upon favourably (disclosure to crown)
 R v Galeano: Resisted police (w/good reason) and was
injured => sentence mitigated
 Promised assistance
o s 13A PSA: Get details of promised assistance, tell
court, sentence given in open court saying what
would have been given otherwise (s 13A(7)), then
give private mitigated sentence => If assistance not
given, revert to public sentence (s 188(2))
o Webber: Discount should be discernable and
worthwhile
Cultural background
 R v Fernando: Sentencing judge must avoid any hint of
paternalism, racism or collective guilt
 Neal v The Queen: Court bound to account for all material
facts including those solely related to an offender’s
culture/ethnicity
 R v Daniel: Deterrence, rehab, community standards etc. all
central to sentencing => May be appropriate to reflect
considerations relevant to particular community in
sentencing
 Indigenous people and sentencing
o Community justice groups (s 9(2)(p)): Community
members advise court (e.g. elders)



Rogers v The Queen: Info for judge, not
more important than other factors
 Must advise the court about familial
relations to offender or any conflicts of
interests (s 9(7))
o Bugmy v The Queen:
 Background surrounded by alcohol abuse
and violence may compromise person's
capacity to mature and to learn from
experience
 Feature remains relevant to determination
of appropriate sentence, notwithstanding
long history of offending.
 Effects of profound childhood deprivation
do not diminish with the passage of time
and repeated offending
 Give full weight to offender's deprived
background in every sentencing decision
Hardship
o On self
 York v The Queen: Personal safety
 R v Bernier: Offender had severe depression,
couldn’t speak English and separated from
family in prison => Taken into account when
mitigating sentence
o On family
 Burns v The Queen: Drug trafficker,
sentenced to imprisonment and appealed
on basis she would be separated from kids
=> No deal, must be exceptional
circumstances for mitigation
 R v Tilley: Mother would have to leave her 3
y/o (father in custody). Not exceptional =>
Rehabilitation and preserving stable family
unit are factors, but not more important
than others
 R v Chang; Ex parte A-G (Qld): Jail 500km
away, breast feeding baby, no prior
convictions => Mitigation for exceptional
circumstances
Preference for community based sentences (s 9(2)(a))
o Not with violent offences (s 9(3), (4))
 R v Barling: Arson on a caravan => Violence
for emotional effect on owner’s mother,
who believed owner was in it
 R v Breeze: Violence interpreted broadly =>
Can be acts to which one strongly objects
o Not with sexual offences against children (s 9(5), (6);
R v Lovell)
 Children under 16 (R v Finch)

R v McGrath: Sting op on person attempting
to solicit child for sex => Don’t actually need
a victim for it to be a relevant offence
(broad meaning)
Punishment and Penalty
Penalty Hierarchy
 Lower level
penalty

->




Higher level
penalty
Conviction not
recorded /
conviction recorded
(s12)

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)
Intermediate
penalty
->
Conviction not
recorded /
conviction
recorded (s12 PSA)


Bond /
recognisance (Part
3)

Community Service
Orders (CSO) (Part
5)


Fines (Part 4)

Probation (Part 5)






Recording a conviction
o

s 12 Penalties and Sentences Act (PSA)
 Court has discretion to record or not record (s 12(1))
 A penalty of itself
 s 12(2): (a) Nature of offence, (b) character and age of offender and
(c) impact of recording conviction on (i) social / economic wellbeing and (ii) chance of employment
o Case law considerations
 Walden v Hensler: Two people killed a bush turkey and (ignorantly)
took chick as pet => consider triviality or lack thereof of offence
 Triviality not just offence itself but the conduct relating to
the offence
 A-G v Briese: 19 y/o pleaded guilty to burglary etc. No conviction
recorded and A-G appealed successfully => Consider violence,
exploitation / abuse of trust, loss to victim, risk of re-offending
 No recording allows concealment (not publically available
knowledge) – court should consider public interest;
seriousness
 Consideration of employment prospects
 R v Ndizeye: D lied to court, conviction recorded. Appealed
successfully saying employment prospects would be
impacted (was a Rwandan refugee with specific
qualifications)
 R v Dodd: Minor player in burglary, looked like D was trying
to rehabilitate => court didn’t want to harm employment
prospects
 R v SAT: Record sexual offences against children unless exceptional
circumstances (triviality irrelevant)
 17 y/o sexual contact w/15 y/o (reverend’s daughter) while
latter sleeping at a church BBQ (complaint didn’t come til 3
years later) => exceptional circumstances
 R v Mirza; Ex parte A-G (Qld): Offender pleaded guilty to attempted
indecent treatment of a child under 12, no conviction recorded as all
considerations in D’s favour
 Considerations: Pre-meditation, actual contact, impact,
guilty plea, employment and community service, rehab
prospects, impact of conviction
Releases (Part 3 PSA)
o s 16: If make a release, court can’t record a conviction
o s 19: (1) The court may make an order
 (a) releasing the offender absolutely; or
 (b) that the offender be released if the offender enters into a
recognisance, with or without sureties, in such amount as the court
considers appropriate, on the conditions that the offender must
 (i) be of good behaviour; and
 (ii) appear for conviction and sentence if called on at any
time during such period (not longer than 3 years) as is
stated in the order
o s 18: Court should consider (a) Offender’s age, character, health, mental condition
 (b) Nature of offence (trivial? Walden v Hensler)
 (c) Circumstances of offence which may make it less serious



o s 20: Forfeit recognisance/ bring before court and may make a new order
Other minor penalties
o Recognisance for minor property offences
o Orders for restitution or compensation
o R v Ferrari: Passenger in stolen vehicle => good behaviour bond and
restitution order for $1000, resentenced to compensation payment of same
amount (proper term)
o R v Civoniceva: Restitution/compensation order doesn’t relate to
excessiveness of sentence (separate)
Fines (ss 44-51 PSA)
o Penalty units => $110 (most cases) (s 5)
o Whether or not conviction recorded (s 44)
o Court has power to fine (s 45(1)) and may be in addition to or instead of
other penalties (s 45(2))
o s 45(3): The maximum fine that a court may impose is
 (a) the appropriate maximum applicable to the offence under a
provision of this or another Act relating to the offence
o s 48(1): When fining the court must when determining the amount, as far as
practicable, take into account
 (a) the financial circumstances of the offender; an and
 (b) the nature of the burden that payment of the fine will be on the
offender
 Can still fine if these aren’t known (s 48(2))
o s 49(1): Court can impose single fine for two or more offences found (a) on
same facts or (b) committed in a series
 Must not be more than max for both offences separately (s 49(2))
o R v Meid: D grew pot and was charged w/possession and supply (gave some
to friends). Was actually caught on roadtrip from Vic to Qld, didn’t have
much money and couldn’t convert fine to community service as not a
resident
 Inability to convert to community service not a consideration, only if
you can’t pay the fine will it be possible to reduce it
 Can convert fine to community service, though
 Amount of fine can be an appeal point
o Woodard v Ellis: $1100 fine, D had no savings, bills each week, physical
limitations on work => Court agreed fine too burdensome and reduced to
$500
 Can have different penalties for different people depending on
offender’s circumstances
 Courts don’t actually use penalty units, so can miscalculate
o R v Prentice: Car dealer fraudster, $40,000 fine, was bankrupt from trial
costs, crime cost him his job, would have had to pay $150 a week which he
couldn’t meet => Court found fine was crushing and reduced to $20,000
Probation (Part 5 – ss 90-99 PSA)
o Power to make if person liable to imprisonment for a regulatory offence (s
91)
o Can impose whether or not conviction recorded (s 90)
o Required offender’s consent (s 96)
o s 92(1): The effect of a probation order is



(a) that the offender is released under the supervision of an
authorised corrective services officer for the period stated in the
order; or
 (b) that the offender
 (i) is sentenced to a term of imprisonment for not longer
than 1 year; and
 (ii) at the end of the term of imprisonment the offender is
released under the supervision of an authorised corrective
services officer for the remainder of the period stated in the
order
o Length of order => starts on day order is made (s 92(2))
 Between 6 months and 3 years if s 92(1)(a) (s 92(2)(a))
 Between 9 months and 3 years if s 92(1)(b) (s 92(2)(b))
o Can make a single order for a group of offenders (s 97)
o Requirements of order (s 93)
o Court can require medical/mental treatment (s 94(a)) or impose other
requirements which it sees fit to (s 94(b))
o R v Hood: About a CSO for aggravated burglary (used a katana) =>
imprisoned to be suspended after 9 month and then move to probation
order for 12+ months
 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
 Probation can not be ordered at the same time as an Intensive
Correction Order
 No inconsistency suspended sentence on one offence and probation
on another offence
Community service order (CSO) (ss 100-108 PSA)
o Power to make if person liable to imprisonment for a regulatory offence and
if person suitable (s 101)
o Unpaid work (s 102)
o Can impose whether or not conviction recorded (s 100)
o Requires offender’s consent (s 106)
o Various conditions (s 103)
o Nieto v Mill: Stole tools, 80hr CSO and $100 fine, argued too long as his
hourly rate was $20 and that would make an equivalent fine of $1000
 Offender’s actual pay doesn’t matter as a factor
o R v Vincent: OK to have a suspended sentence and a CSO at same time on
different offences
 Court said need to be flexible with punishments
o R v Mathers: OK to have probation and CSO on same and different offences
at same time
o R v Grieg: Not OK to have CSOs and ICOs at same time
Intensive correction order (ICO) (Part 6 – ss 111-119 PSA)
o Court must record a conviction (s 111)
o For offences where there is a sentence of 1 year in prison or less (s 112)
 Substitute for prison (s 113)
 If breach of ICO, time on order counted as time served ((R v
Hesketh; Ex parte A-G (Qld)))
o Offence to breach an order (s 123)
o
o
o
o
o
o

For breach, a range of options exist, including
extension of order or fine (s 125)
 Creates a legal ‘fiction’ but characterisation stands vis-à-vis
breach (R v Skinner; Ex parte A-G (Qld))
 BUT, for the purposes of s 9(2)(a) PSA (imprisonment as last
resort), an ICO is not counted as imprisonment (R v Bagust)
Needs offender’s consent (s 117)
Conditions, e.g. reporting, work, curfew, 7 day rehab sessions, specified
living space, counselling (s 114)
 Other conditions like medical treatment can also be ordered (s 115)
 Tran: ICO for armed robbery, A-G appealed as too lenient =>
unsuccessful as D was to report to police twice a week, had to live in
a specific place etc. so quite onerous
On application, court can revoke or amend an ICO because the offender
can’t comply due to changed circumstances (s 120(1)(a)), because their
circumstances weren’t properly accounted for in the original order (s
120(1)(b)) or because the offender is no longer willing to comply (s
120(1)(c))
 Must have offender’s consent to amend (s 117)
 If order revoked, offender may be resentenced (s 121)
ICO for multiple terms of imprisonment can only be ordered if cumulative
total is not more than 1 year (s 118)
Can’t have an ICO and probation or a CSO at the same time (Hood)
Suspended sentence (Part 8 – ss 143-148 PSA)
o Must record a conviction (s 143)
o Court can suspend sentence of imprisonment if 5 years or less (s 144(1))
 Can suspend in whole or in part (s 144(3))
o Only if appropriate in the circumstances (s 144(2))
 Two step process – Dinsdale v The Queen:
 Imprisonment appropriate?
 Only if so, is suspension appropriate? (if first step has a no
answer, the second question does not arise – Kirby J)
 Appropriateness
 Dinsdale v The Queen: Sexual offence against a child over 13
y/o => Factorso Rehab prospects
o Chance of reoffending
o Nature of offence
o Impact on victim
o Impact of prison sentence on offender and family
o Social stigma following conviction
o All other relevant circumstances
 York v The Queen: Serious drug matters, but D helped
authorities to convict murderer and received death threats
(likelihood would be harmed if went to prison) => Safety of
offender a relevant factor
o Breach
 Court has jurisdiction if offence committed while on suspended
sentence (s 146)
 Court can:



Extend term (s 147(1)(a))
Order actual imprisonment over term of suspension, to
serve in whole (s 147(1)(b)), or in part (s 147(1)(c);
Summerlin)
o Court has to order serving whole of term under s
147(1)(b) unless unjust to do so (s 147(2); Holcroft)
o Court must have regard to (s 147(3))
 (a) whether the subsequent offence is trivial
having regard to
 (i) the nature and circumstances of
the offence; and
o Hurst
 (ii) the proportion between the
culpability of the offender and the
consequence of activating the
whole of the suspended
imprisonment; and
 (iii) the antecedents and any
criminal history of the offender; and
 (iv) the prevalence of the original
and subsequent offences; and
 (v) anything that satisfies the court
that the prisoner has made a
genuine effort at rehab, for example
o (A) the relative length of
any period of good
behaviour during the
operational period; and
o (B) community service
performed; and
o (C) fines, compensation or
restitution paid; and
o (D) anything mentioned in a
pre-sentence report; and
 (vi) the degree to which the
offender has reverted to criminal
conduct of any kind; and
 (vii) the motivation for the
subsequent offence; and
 (b) the seriousness of the original offence,
including any physical or emotional harm
done to a victim and any damage, injury or
loss caused by the offender; and
 (c) any special circumstance arising since the
original sentence was imposed
o Rehab efforts- Stevens: Tried to rehab but reoffence
so similar to original that activation of whole
sentence needed
Imprisonment (Part 9 PSA)
o Last resort (s 9(2)(a)(i))
o Must record a conviction (s 152)
o


Generally, imprisonment for multiple offences to be served concurrently (s
155)
 Can be cumulative (s 156)
 Must be cumulative if Schedule 1 offence while serving term of
imprisonment (s 156A(1), (2))
o Time served on remand before conviction counted as time served (s 159A)
o Even if serving concurrently, impose separate sentences for separate
offences (R v Crofts)
o What is life imprisonment? (s 181(2) Corrective Services Act)
 The prisoner’s parole eligibility date is the day after the day on
which the prisoner has served the following period of time—
 (a) if the Criminal Code, section 305(2) applied on
sentence—30 years or the longer time ordered under that
section
 (b) if the Criminal Code, section 305(4) applied on
sentence—25 years or the longer time ordered under that
section;
 (c) if the prisoner is serving a term of imprisonment for life
for an offence of murder and paragraphs (a) and (b) do not
apply—20 years;
 (d) otherwise—15 years
 R v Sica: Got 35 years for 3 murders, no remorse
Serious violent offenders (a declaration by the court) (Part 9A – ss 161A-161C PSA)
o Must serve 80% of head sentence or 15 years (whichever is shorter) before
parole (s 182(2) Corrective Services Act)
o s 161A: Schedule 1 offence
 Examples
 Riot (s 63 QCC)
 Threatening violence (s 75 QCC)
 Robbery (s 411 QCC)
 Rape (s 349 QCC)
 Attempted murder (s 306 QCC)
o If sentence is more than 10 years, must declare (s 161B(1))
o If sentence between 5 and 10 years, may declare (s 161B(3))
o R v Collins: Must be fully warranted in all the circumstances
o R v Orchard: Offender’s previous convictions not relevant
o R v Keating: Protection of community a factor
o R v Tilley: Where discretion, prosecution should request
 R v Moodie: If judge intends to declare, should ask for submissions if
none have been made
o McDougall; Collas: Does the offence deserve a declaration?
 Consider consequences…effect on parole; will require 80% serving
of term
 Reasons should be given and offender should be heard
 Violence is a significant factor, but does the declaration make the
sentence excessive?
 Appropriate in all the circumstances?
Repeat serious child sex offences (Part 9B PSA)
o Meaning: Schedule A1 offence against person under 16 y/o where offender
would be liable to life imprisonment (s 161D(a), (b))
o Schedule A1 offences:

s 208 unlawful sodomy; s 213 owner permitting abuse of children on
premises; s 215 carnal knowledge children u16; s 219 taking child for
immoral purposes; s 222 incest; s 349 rape; s 352 sexual assaults
o


s 161E:
 (1): convicted for at least a second time for relevant offence type
 (2): Mandatory life
Indefinite sentences (Part 10 PSA)
o Exceptional (Buckley v The Queen)
o Must be regularly reviewed (s 162)
o Must be a violent offence (s 162)
o s 163(1): Court can impose (a) on own initiate or (b) on prosecution request
o If imposing, court must state sentence it otherwise would have imposed (s
163(2))
o s 163(3): Before an indefinite sentence, the court must be satisfied
 (b) The offender is a serious danger to the community because of
 (i) the offender's antecedents, character, age, health or
mental condition; and
 (ii) the severity of the qualifying offence; and
 (iii) any special circumstances
o Not sufficient to merely show there is a risk of reoffending (McGarry v The
Queen)
o Standard of proof: Court must be satisfied that evidence is acceptable and
cogent (s 170(a)) and (s 170(b)) that there is a high degree of probability that
the evidence is of sufficient weight to justify the finding
 Very high standard (R v Stone)
 Specialist medical evidence not necessary (R v Stone), but is
expected (McGarry v The Queen)
Dangerous Prisoners (Sexual Offenders) Act 2003
Appeals
Initial hearing
Appeal
Magistrates
Court
District Court
s222 Justices
Act
Court of Appeal
via s118 District
Court Act &
s668D QCC
High Court s35 /
s35A Judiciary Act
1903 (Cth)
District Court
Supreme Court

Court of Appeal
s668D QCC
(chapter 67 QCC)
Appeals from Magistrates to District Court
o
o
o
s 222(1) Justices Act: If a person feels aggrieved as complainant, defendant
or otherwise by an order made by justices or a justice in a summary way on
a complaint for an offence or breach of duty, the person may appeal within
1 month after the date of the order to a District Court judge
 If pleaded guilty, appeal confined to sentence (s 222(2)(c) Justices
Act)
 BUTo Hall v Bobbermen: Charged w/unlicensed driving,
turned out he had a NSW license => Offence didn’t
exist at law so conviction overturned
o Ajax v Bird: Argued hadn’t properly entered guilty
plea, court disagreed => If plea not unequivocal
then can amount to plea of not guilty and is
appealable
o R v Samson: Can also appeal on cost (gap in leg.)
 If indictable offence decided summarily, prosecution can only appeal
sentence or costs (s 222(2)(b) Justices Act; McKinlay v Commissioner
of Police)
 Sentence can’t be increased here w/o advising the parties
(Lucey v QPS)
 Can’t appeal conviction made summarily under s 651 QCC (summary
offence heard in District or Supreme Court) (s 222(2)(a) Justices Act)
 Aggrieved
 McCarthy v Xiong: Victim sought to appeal => Must be a real
or direct interest, may include victim (not a mere busybody)
 1 month
 Can extend time (s 224(1)(a))
 Decision of a Magistrate to deal summarily with an indictable
offence is appealable (s 552J QCC)
Evidence that can be heard on appeal from Magistrates
 Generally a rehearing of the original evidence (s 223(1) JA)
 District Court may give leave to hear fresh evidence if it is satisfied
there are special grounds for doing so (s 223(2) JA)
 Original evidence
 Rowe v Kemper:
o Appeal judge should afford respect to magistrate’s
decision and bear in mind any advantage the
magistrate had in seeing and hearing the witnesses
give evidence
o But the judge is required to review the evidence, to
weigh the conflicting evidence, and to draw his or
her own conclusions
 New evidence
 Pavlovic v Commissioner of Police: Same test as for fresh
evidence for CA
o Available at first instance with due diligence?
o Would it have made a difference?
o Is it credible
o If D was unrepresented in Magistrates, court will be
lenient
Appeals against sentence


Relevant grounds => ‘Manifestly excessive/inadequate’ (Skinner v
The King)
 Defendant
 JRB v Bird: Magistrate ordered imprisonment saying there
were no alternatives when there were
o House principles apply in appeal on sentence to
District Court
 Complainant
 Can assume House principles apply (Lacey v A-G)
 Attorney-General
 Goes to CA and only on indictable offence decided
summarily (s 669A(1) QCC)
o Outcomes
 District judge can substitute or vary magistrates order or set it aside
and send the matter back (s 225 JA)
 Costs orders can be made, regardless of success of appeal (s 226)
 Further appeal available to CA (s 118(3) District Court of Queensland
Act)
o Attorney-General appeals from Magistrates Court
 A-G may appeal to Court on any decision made in trial court or any
court of summary jurisdiction (s 669(1)(a), (b) QCC)
 ‘Court’ refers to Court of Appeal – where all A-G appeals go
(s 668(1) QCC)
 A-G can also refer a point of law to the CA (s 669A(2A), (5) QCC;
Harrison v Wilkins)
Appeals from District and Supreme Court to Court of Appeal
o By right by defendant against conviction if on law alone (s 668D(1)(a) QCC)
 Fitzgerald: Home invasion, shot someone in head and killed them,
argued accident, judge shifted burden to D in jury directions =>
Point of law giving rise to right to appeal
o With leave of court by defendant against conviction on law and fact or fact
alone (s 668D(1)(b) QCC)
 R v Zischke: Incorrect judge explanation to jury and stuffed up a
factual issue => Needed leave as some fact elements
o With leave of court by defendant against sentence (s 668D(1)(c) QCC)
o Fact/Law distinction
 Ostrowski v Palmer: Distinction not always clear
o Appeal must be lodged within 1 month of conviction/sentence (whichever
is being appealed) (s 671(1) QCC)
 s 671(3) QCC: Time may be extended
 R v Tait: Generally whethero A good reason to account for delay
o Length of delay
o Viability
o Whether in the interests of justice
o Prejudice to respondent
 R v Riley: Two rape charges, claimed lesser culpability =>
Strength of appeal relevant, Tait considerations have no
hierarchy

o
o
R v Hatten: Young, borderline IQ, unrepresented, appealed
indefinite sentence, only found out about rights in jail =>
Court will take into account individual characteristics
Evidence on appeal
 The court and the parties are to have copies of the original trial
transcript (s 671A QCC) and of the judge’s sentencing remarks (s
671K QCC)
 May admit fresh evidence (s 671B(1) QCC)
 Mickelberg
 Is the evidence fresh (new)? (diligence question)
 Would it have made a difference?
o ‘when viewed in combination with the evidence
given at trial, it can be said that the jury would have
been likely to entertain a reasonable doubt about
the guilt of the accused if all the evidence had been
before it …. or, if there be a practical difference, that
there is a significant possibility that the jury, acting
reasonably, would have acquitted the accused’
 R v A: Subsequent witness (letter), was not available at trial with
reasonable diligence as person had made themselves scarce =>
Evidence allowed
 Gallagher v The Queen: Court will also assess credibility of evidence
=> Vis-à-vis jury, significant possibility and significant likelihood of
acquittal means same thing
Grounds for appeal against conviction in Court of Appeal
 s 668E(1):
 Jury verdict unreasonable or cannot be supported having
regard to the evidence
 Wrong decision on a question of law
 On any ground whatsoever there was a miscarriage of
justice
 Otherwise dismiss appeal
 Unreasonable jury verdict (VERY RARE TO SUCCEED)
 M v The Queen: Father accused of raping daughter, alleged
conflicting evidence and argued jury verdict unreasonable
=> Court held was possible to overturn on this basis, is a
question of fact
o Must look at the whole of the evidence
o Court must recognise jury’s advantage of seeing
evidence and witnesses first-hand
o Ultimate question is whether or not it was open to
the jury to decide accused was guilty BRD
 MFA v The Queen: 9 counts, only 2 convictions, different
evidence for the different charges so no inconsistency
o Reaffirms test of whether open to jury to convict
o Use statute wording => jury verdict ‘unreasonable’
in Qld
o Same test for judge alone trial (substitute jury with
judge)
 R v Sheppard: QCA use ‘open to jury’ test

o
R v Hansen; R v Ettridge: Conviction quashed as evidence
was insufficient
 R v Dally: Conviction set aside as victim’s evidence
contradicted by credible witnesses
 Wrong in law
 Nicholls v The Queen: Evidence wrongly admitted,
conviction quashed
 Ridgeway v The Queen: HCA stayed proceedings as police
interrogation techniques made confessions involuntary and
should have been excluded
 Fingelton v The Queen: Conviction quashed as D as a
magistrate had a statutory immunity to the offence – should
never have been prosecuted
 Bardsley v The Queen: Killing of child, judge incorrectly
explained WACC provisions, failing to leave manslaughter
open to jury => Wrong in law
 Miscarriage of justice (VERY broad, some examples below)
 R v Svabo: Counsel relationship => Sufficient to show even
an appearance of a miscarriage of justice
 Webb v The Queen: Juror brought victim’s mother flowers in
open court => Dismissed as, in context of juror’s stated
reasons, their personality and judge’s directions, a fairminded and informed observer would not have a reasonable
apprehension/suspicion that jury was not impartial
 Miscarriage if new evidence becomes available (Mickelberg)
The proviso
 s 668E(1A) QCC: ‘However, the Court may, notwithstanding that it is
of the opinion that the point or points raised by the appeal might be
decided in favour of the appellant, dismiss the appeal if it considers
that no substantial miscarriage of justice has actually occurred.’
 Substantial miscarriage of justice = Loss of a real chance of
acquittal/conviction was inevitable notwithstanding the
error/miscarriage (Festa v The Queen)
 Wilde v The Queen: Improper refusal of separate trials for sexual
offences, prosecution case so strong that proviso used (error not
fundamental)
 HCA:
o Substantial miscarriage occurs where loss of chance
of acquittal fairly open to accused (citing Mraz v The
Queen) or real chance of acquittal (citing R v Storey)
o Use proviso where, even with error, jury would have
inevitably convicted (citing Gallagher v The Queen)
 Appeal court to decide with regard to the
evidence
o Proviso cannot apply where there is a fundamental
error, regardless of strength of prosecution and to
what the jury would have done (citing Quartermaine
v The Queen)
 Weiss v The Queen: D’s de facto gave alibi but he left her (and got
together, allegedly, with a 14 y/o) and she changed her story, judge
allowed questioning in court, including reference to 14 y/o =>
Proviso applied
 HCA:
o Need a substantial miscarriage to avoid proviso
o What is a substantial miscarriage?
 Jury decision inevitable (Festa v The
Queen)?
 Loss of real chance of acquittal (R v Storey;
Mraz v The Queen)?
 NO => Keep to actual words in statute
(substantial miscarriage)
o Court must have regard to the whole of the
evidence and record of trial, accounting for jury
advantage of first-hand observation
o After this review, ask whether D was guilty BRD
 If no, new trial unless exceptional case
 If yes, proviso unless significant denial of
procedural fairness
 R v Navarolli
o An appellate court can’t be satisfied no substantial
miscarriage of justice occurred unless it is satisfied
beyond reasonable doubt the appellant is guilty
o Limitations on the appellate process may mean it is
impossible to be satisfied in the circumstances,
simply by reason of the nature of the process
o Satisfaction of guilt beyond reasonable doubt is
necessary, but may not be sufficient for 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
 Bounds v The Queen: Two convictions on child pornography
and indecency – one indictable, the other summary –
improperly joined => Conviction on summary count quashed
as District Court (where it was first heard) didn’t have
jurisdiction, but evidence problems re prejudice were not
substantial enough to quash other conviction
o HCA upheld WACA decision vis-à-vis indictable
offence as no substantial miscarriage had occurred
 Darkan, Deemal-Hall and McIvor v The Queen: Murder, jury
mis-directions, proviso on all three cases
o HCA majority:
 Jury misdirection can in some occasions
preclude the proviso
 Proviso applied because of strength of case
against all three defendants
 No substantial miscarriage and no
significant denial of procedural fairness
o Kirby J:

o
Misdirection was on an essential ingredient
of the offence and so should not have
merited the proviso
 Argued defendants had not received an
accurate trial according to law, which
especially necessary given the charges were
for murder (life sentences)
 R v Fischer: Proviso used as evidence against accused so
strong
o Convicted of trafficking meth
o Police had raided premises and found cooking
equipment and chemicals and a copy of a guide to
cooking meth
o Two key witnesses as well
o D’s evidence unconvincing
 Fundamental error
 No cases have actually identified one
 Wilde v The Queen: Irregularity goes to the heart of
proceedings so that the accused has not had a proper trial
 Green v The Queen: Fundamental error does not apply to an
incorrect ruling on evidence or a misdirection on a particular
point of fact or law (per Brennan CJ)
 Patel v The Queen: Where evidence is particularly damaging,
exercise caution vis-à-vis the proviso
Outcomes
 Can quash the conviction (s 668E(2) QCC)
 Can substitute a sentence (s 668F QCC)
 May grant a retrial (s 669(1) QCC)
 Prosecution will decide whether or not to actually proceed
(Dyers v The Queen)
 DPP (Nauru) v Fowler: Two steps
o 1. Is the evidence cogent (sufficient for a trial to
take place)?
o 2. Is it just to order a retrial?
 Gassy v The Queen
o When addressing justice of a retrial, consider D’s
age, health etc.
o Just because evidence is circumstantial, doesn’t
mean it isn’t cogent
 Saunders: Retrial inappropriate as prosecution had used
fabricated evidence (was not cogent)
 Parker v The Queen: No point in retrial if appellant has
already served all or most of sentence
 R v Condren; Ex parte A-G: More serious the offence, more
likely a retrial is
 Tuckiar v The King: Should also consider ability to have fair
trial vis-à-vis publicity
 Cornwell v The Queen: Subsequent trial court will not be
bound by the decision at the original trial
 Jackson: Generally, cannot get a second retrial


R v Taufahema: Crown can sometimes appeal against refusal
to order a retrial => Was an exceptional case (killed a cop)
o Good order to follow for question
 671 In time?
 668D Right or leave?
 671B Fresh evidence?
 668E(1) Grounds
 668E (1A)Question whether miscarriage substantial (loss of chance
of acquittal)
 (Wilde: Question whether fundamental error??)
 New trial?
o Appeals against sentence
 Must obtain leave of the court (s 668D(1)(c) QCC)
 s 668E(3) QCC: On an appeal against a sentence, the Court, if it is of
opinion that some other sentence, whether more or less severe, is
warranted in law and should have been passed, shall quash the
sentence and pass such other sentence in substitution there of, and
in any other case shall dismiss the appeal
 Relevant grounds => ‘Manifestly excessive/inadequate’ (Skinner v
The King)
 Defendant
 If CA intends to increase sentence, must give D time
opportunity to withdraw appeal (Neal v The Queen)
o R v Sheppard: Don’t need to warn if change in
sentence to some offence won’t make the overall
punishment more severe
 Defendant can appeal against a manifestly inadequate
penalty (R v Gardner (Snr))
 House principles (House v The King):
o Need to identify an error in sentencing before court
can determine excessiveness/inadequacy
o Examples:
 Some error made in exercising discretion
 Wrong principle
 Extraneous or irrelevant matters
 Mistakes the facts
 Does not take into account some material
consideration
 Unreasonable or plainly unjust
Attorney-General appeals from District/Supreme Court
o A-G may appeal as of right against a sentence or a stay (s 669A(1), (A1) QCC)
 Ferguson; R v Moti: In both cases, A-G successfully appealed against
a stay
o Can’t appeal against acquittal, but can refer point of law from a trial upon
indictment (can’t affect the acquittal) (s 669A(2), (5) QCC)
 Also for summary trial of an indictable offence (s 669A(2A) QCC)
 R v Rollason and Jenkins: A-G referred point of law regarding
disclosure provisions in QCC
o Sentence
 By right (s 669A(1) QCC)


Statements and attitude of prosecution not fatal to an appeal
against sentence
 Ku; Vincent: In both cases, prosecution agreed with defence
vis-à-vis sentencing => still able to be appealed
 House principle?
 s 669A(1)(b) QCC says ‘unfettered’ discretion
 Katia: House principles apply (per McMurdo P, dissenting)
 Lacey v A-G
o HCA:
 A-G’s right should be exercised sparingly
(second bite of the cherry)
 Equality before the law in terms of appeal
principles
 ‘Unfettered’ refers to new sentence, not to
whether to allow appeal => House
principles apply to A-G, must show error to
allow appeal
o Fresh evidence from A-G cannot lead to an increase
in sentence (also from s 671B(2) QCC)
 QCA has followed Lacey and applied House rules for A-G
appeals (R v Major; Ex parte A-G; R v Kuzmanovski; Ex parte
A-G)
o Can refer point of law
Appeals to the High Court
o Judiciary Act 1903 (Cth)
 HCA can hear appeals from Supreme Courts or any other courts that
can exercise fed jurisdiction (s 35(1)(a), (b))
 s 35(2): Must obtain special leave
 s 35A: basis for leaveo Proceedings involve a question of law of public
importance or that require the court to resolve
differences of opinions within one court or between
different courts and whether the interests of the
administration of justice require the court to
consider the judgment of the court below.
 Need ‘something special’ (White) or a point of law of
general application (Morris)
 Examples
o Conviction
 Dietrich v The Queen (fair trial)
 M v The Queen (interpreting s668E QCC)
 R v Carroll (double jeopardy)
 Tofilau v The Queen (Police ROI)
o Sentence
 Veen v The Queen (proportionality)
 Mill v The Queen (totality)
 Dinsdale v The Queen (suspended
sentences)
 Ryan v The Queen (character)
 Cameron v The Queen (guilty pleas)
 Gas & SJK v The Queen (plea agreements)



s 36 can order new trial
s 37 wide powers of the HCA in response to appeal:
 Can affirm, reverse or modify a judgement
 Can send back to lower court to carry out HCA judgement
o R v Taufahema: Prosecution can appeal to HCA over an acquittal (will have
been an acquittal given by an appeal court, not a trial court by this stage)
o Sentencing
 Pursuant to House principles
 Australian Sentencing => White v The Queen; Veen v The Queen (No
1)
 Great weight on original sentence
 Need to identify error
 Focussed on process of decision making
 Not enough to be ‘excessive’
 Radenkovic v The Queen: Leave to appeal against sentence will not
be given on the sole basis that it is excessive
 Dimozantos v The Queen: HCA allowed appeal on sentence because
judge mistaken about maximum for the offence, was resentenced
and appealed again => Exceptional circumstances given long history
of appeals and minor issue in sentencing, so HCA allowed second
appeal and resentenced themselves
Pardons and royal prerogative of mercy (common law powers)
o Criminal Code does not affect the prerogative (s 18 QCC)
o Pardon (Most often with fresh evidence)
 Has effect of discharging the convicted person from the
consequences of conviction (s 677 QCC; R v Martens)
 Constitution of Qld
 s 36 Power of Governor--relief for offender
o (1) This section does not limit the operation of
another Act.
o (2) In relation to an offence against a law of the
State, the Governor may grant the offender, in the
name and on behalf of the Sovereign- (a) a pardon, a commutation of sentence or
a reprieve of execution of sentence for a
period the Governor considers appropriate;
or
 (b) a remission of a fine, penalty, forfeiture
or other consequence of conviction of the
offender.
o (3) The grant may be unconditional or subject to
lawful conditions
 Process
 A-G, on application, can refer to CA and it will run as an
appeal (s 672A QCC)
 Examples
 Mallard v The Queen
 Kina
 R v Katsidis; ex parte A-G(Qld)
 R v Stafford
 R v Butler