WEEK 1 – Administration, Assessment, Context, Sources, Proof
Professor Heather Douglas – h.douglas@law.uq.edu.au
Kerstin Braun – k.braun@uq.edu.au
Aims and Objectives
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Aim for students to gain an understanding of:
1. The operation of the criminal law from charge to trial, conviction, sentencing and
appeal; and
2. The legal safeguards for, and rights and responsibilities of those involved in the
criminal justice process
After successfully completing this course you should be able to:
1. Identify and classify criminal offences
2. Identify, interpret and apply relevant statutes related to criminal procedure
3. Critically analyse aspects of criminal procedure; and
4. Understand the role of discretion in criminal procedure (in many cases the police do
not need to arrest, the prosecution does not need to charge, the judge doesn’t need to
give a certain sentence; they are discretionary decisions informed by guidelines)
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Majority of crimes dealt with in Magistrate’s Court – a result of recent reform
o Implications:
 No jury, not tried by peers but by a magistrate sitting alone
 Legal Aid is more likely to fund jury trials, so defendants in Magistrate’s
Court are more likely to appear unrepresented
Resources
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Deciding to charge: Director’s Prosecution Guidelines Qld (2003)
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Policing: Police Powers and Responsibilities Act 2000 (Qld)
Procedure in the Magistrates Court: Justices Act 1886 (Qld)
Bail: Bail Act 1980 (Qld)
Procedure in the Higher Courts (and disclosure in all courts): Criminal Code (Qld)
Selecting a jury: Jury Act 1995 (Qld)
Sentencing: Penalties and Sentences Act 1992 (Qld)
Victim compensation: Victims of Crime Assistance Act 2009 (Qld)
Post-sentence detention: Dangerous Prisoners (Sexual Offences) Act 2003 (Qld)
Parole: Corrective Services Act 2006 (Qld)
DISCRETION
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Warnings instead or charges?
Which charge?
Whether to retry?
What sentence?
Patel v R [2012] HCA 29
 FACTS: Patel was charged with manslaughter. Prosecution could have charged him with
murder, but intention is very difficult to prove, more likely to successfully prove
manslaughter. Trial also more likely to be shorter and more likely to lead to a more
successful outcome. Patel was charged with 3 counts of manslaughter and 1 count of
GBH. Jury members heard evidence on all offences, all matters tried in the same trial.
Successfully prosecuted in the first instance, but this was overturned by the HC.
Prosecution thought it was in the public interest to retry
 Hearing multiple matters in the same trial is potentially very prejudicial for the accused.
o Analysis of one charge will influence jurors decision on other charges
o HC thought that this process was very prejudicial, confusing to the jury,
evidence incorrectly admitted
R v AAM ex parte A-G (Qld)
 FACTS: AAM stole greeting cards, had cognitive disability. Charged by the police, found
guilty. She had stolen so many cards that she could face imprisonment. Convictions
quashed on account of her disability (was a miscarriage of justice).
Burden of Proof and Proof Rules
Notions of Innocence and Guilt
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Proof rules linked to jury trials which developed in the 13th century to protect jurors
from damnation
After 1640 accused allowed to call witnesses
1700s questioning of accused ceased
1836 counsel for accused
Jury decides questions of guilt except in magistrates court
21st century reverse burdens
2008 judge alone option – necessary with the advent of social media
Core Principles
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Innocent until proven guilty – the presumption of innocence underpins the rules about
proving most crimes in all Australian jurisdictions
Blackstone: ‘better that ten guilty persons escape than that one innocent suffer’
o Originated when serious crimes were punishable by considerably serious
penalties (capital punishment)
Theoretically Modern Courts
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Jury decides fact
Judge manages law
‘Adversarial process… truth in dispute… relative… This fact-finding function emerges
from the consideration of competing stories and contested information. Facts in this
respect are those claims that appear to be most plausible, the most convincing, or the
least fallible’
BUT increasing jurisdiction of the magistrates court where there is no jury
o Most people charged with criminal offences plead guilty and many are
unrepresented in the Magistrates Courts. If they do contest the charge, the
magistrate, sitting alone, will decide on both the law and facts of the case.
AND possibility of judge alone trials in the higher courts
Finding the Proof Rules
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The proof rules:
1. What must be proved?
2. Which party must prove it?
3. What is the requisite degree of proof?
Rules of interpretation
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The code was intended to replace the common law and ‘its natural meaning should be
construed without any presumption that the code intended to do any more than restate
the existing law’ (Brennan v The King)
If the text of the code is clear, the common law (previous versions of the law that the
Code had been written to encapsulate) is of no relevance (Stuart v The Queen per Gibbs
J)
If the meaning of a word or provision is ambiguous, a particular word has a technical
meaning or there is a gap in the code, it is appropriate to look to the common law,
including decisions in non-code jurisdictions, to ascertain the legal position (Barlow;
Mullen)
Where quandaries about interpretation arise, the Code provision should be read in a way
that favours consistency with other jurisdictions as well as in context and with justice in
mind (R v Barlow per Kirby J)
QCC silent on burden and level of proof required, so the rules are found at common law
Prosecution – General Rules
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The prosecution generally has the legal/persuasive burden (onus) of proving all of the
elements of the criminal offence and of disproving any defences raised by the defence
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However, sometimes the burden of proving a defence shifts, either expressly or by
construction, to the accused; ‘reverse onus defences’
A person cannot be held criminally responsible unless the prosecution proves its case
(and disproves any defence) beyond reasonable doubt.
o Arises from the presumption of innocence
Woolmington v Director of Public Prosecutions (UK)
 FACTS: Accused charged with the murder of his ex-wife. Allegedly W went to victim’s
house with a gun hidden inside his coat and shot her. No witnesses, accused contended
shooting was as accident. Trial judge directed jury that unless the accused could satisfy
them that the killing was an accident, he should be found guilty. W was convicted of
murder and sentenced to death. W appealed on the basis that the judge’s direction
suggested he was required to prove the defence. He successfully argued that the
accused was not required to prove either the elements of the offence or the
defence.
 At 481-2, per Viscount Sankey
o ‘Throughout the web of the English criminal law one golden thread is always to
be seen, that it is the duty of the prosecution to prove the prisoner’s guilt,
subject to what I have already said as to the defence of insanity and subject also to
any statutory exception… If at the end of and on the whole of the case there is
a reasonable doubt, created by the evidence given by either the prosecution or
the prisoner, as to whether the prisoner killed the deceased with a malicious
intention, the prosecution has not made out the case and the prisoner is entitled
to an acquittal. No matter what the charge or where the trial, the principle that
the prosecution must prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained’
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Thus as a result of Woolmington via Mullen v R:
1. Prosecution carries the evidential onus with respect to the elements of the criminal
offence
 Must prove all the elements of the crime being prosecuted – must present
evidence to support each element of the crime.
2. Prosecution carries the persuasive onus (or ‘legal burden’)
 Must prove each element of the offence is established beyond reasonable
doubt
3. Must disprove defences beyond a reasonable doubt
 Consider murder, e.g. R v Weisz
Which Defences Must the Prosecution Disprove?
 In ordinary cases the onus is on the crown to disprove defences beyond reasonable
doubt
 But: ‘the legal onus upon the Crown does not mean … that the Crown must bring
evidence to meet every such ‘defence’ which could possibly arise in relation to the
offences charged…’
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The judge must decide whether there is evidence fit to go to the jury or
evidence that warrants the attention of the jury (see Youseff per Hunt J)
o
If the matter is not raised on the evidence, the judge will not allow it to go to
the jury. If there is appropriate evidence, the judge will direct the jury that
they can consider it (R v Menniti)
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 The prosecution will need to negative only those defences that arise on the evidence:
consider Falls Case
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In order to satisfy the burden of negativing defences, the prosecution must
negate only one element of a relevant defence in order to negative the whole
defence
Standard of Proof - Beyond Reasonable Doubt
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Standard of proof for the prosecution is beyond reasonable doubt
The phrase is a ‘time-honoured formula’ and should be left to the jury without
explanation (Dawson, per Dixon J)
Judges should not illustrate or explain the phrase (Wilson, Tchorz & Young; also
Darkan v R)
‘Absolute certainty’ not an appropriate definition (Gonclaves)
The words mean what they say; the question of whether there is a reasonable doubt is a
matter for the jury, ‘the vital point is that the accused be given the benefit of any doubt
considered reasonable’ (Punj (2002) 132 A Crim R 595)
Despite the fact that a judge’s direction on proof may be correct, one small error may be
enough to constitute grounds for appeal, because the ‘small error’ may be enough to
impair the fairness of the accused’s trial (e.g. Robinson (1994) 190 CLR 531)
For struggling juries:
o ‘A reasonable doubt is such as you, the jury, consider to be reasonable on a
consideration of the evidence. It is therefore for you and each of you whether you
have a doubt that you consider reasonable. If at the end of your deliberations you
as reasonable persons, are in doubt about the guilt of the defendant, the charge
has not been proved beyond a reasonable doubt’
 Queensland Supreme Court Bench Book p 57 ( a guide for judges)
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A judge not following the text of the Bench Book directly is not grounds for appeal,
Bench Book is merely a guide and there is room for movement (it is not an ‘inflexible and
all-encompassing code’)(Clarke (2005) QCA 483; Hayes (2008) QCA 371)
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Should it be defined? See Loewy, ‘Taking Reasonable Doubt Seriously’ (2010) ChicagoKent Law Review 63.
Accused – General Rules
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Accused has a right to silence and privilege against self-incrimination and is
generally not required to prove or disprove anything.
o The right usually extends from initial contact with police through to the trial
Strongly protected, see RPS v R: The Resilience of the Accused’s Right to Silence (2000)
22 Syd LR 699.
Accused carries the evidential onus with respect to their defence.
1. Must present evidence that provides ‘sufficient foundation’ or ‘prima facie raises the
issue’ (see Menniti; CTM v R)
2. Evidence can be called by the accused giving or calling evidence or indirectly
through cross-examination of the prosecution’s evidence (R v Buttigieg)
3. The evidentiary burden of raising the defence can occur through the prosecution’s
case (He Kaw Teh)
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4.
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The accused person does not neccesarily need to testify in order to raise a defence
(Lee Chun-Cheun v The Queen)
Judge will consider the position most favourable to the accused (Stingel at 333-334;
Muratovic)
 If the judge finds that no reasonable jury could hold the evidence sufficient
to raise a reasonable doubt, the judge should withhold the defence from the
jury’s deliberations (Stingel)
 The judge should leave the issue to the jury if they are in the least doubt
about whether the evidence is sufficient (Stingel)
Contradictory defences (inconsistent with defences already raised) not raised by
accused but raised on evidence must be directed by the judge to be left to the jury
(Stingel; Stevens v the Queen; Fingelton v The Queen at [77]-[80]; Bench Book at 61B)
Exceptions – Reverse Onus Defences
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Insanity (s 27QCC) and other statutory exceptions to the general rule from
Woolmington
Where the accused decides to raise a reverse onus defence, they will have both the
evidentiary burden (presenting evidence to support their defence) and the
legal/persuasive burden.
Where the accused has the onus of proving a matter, they must prove on the balance of
probabilities (the civil standard)(Carr-Briant; R v Nuttall)
Insanity
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Insanity: must rebut the presumption of sanity (codified in QLD: s 26 QCC)
o Every person is presumed to be of sound mind (s 26)
o The accused will have a defence if they can prove that their mind is not sound (s
27)
o Section 27 provides for a reverse onus defence of insanity because it requires
the rebuttal of the presumption of sound mind (s 26)
Insanity is often raised by the prosecution, especially where the accused is perceived to
be dangerous and it is thought that their incapacitation is necessary for the community’s
protection.
The prosecution may raise insanity in order to respond to the accused’s claim to a
particular defence. Generally, when raised by the accused, insanity must only be proven
on the balance of probabilities. The weight of authority supports this standard being
applied when the prosecution raises insanity.
Falconer’s Case
 The accused argues that the shooting of her husband was an act independent of her will,
or automatism (s 23(1)(a) QCC)
 In order to negative the defence beyond reasonable doubt, the prosecution argued that F
was insane (s 27 QCC)
 The prosecution needed to negative sane automatism beyond reasonable doubt and this
endeavor may be assisted if the prosecution can prove insanity on the balance of
probabilities.
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Statutory Exceptions
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Statutory exceptions: e.g. ‘it is a defence to prove…’; ‘the proof of which lies upon the
person’
Criminal Code (Qld)
304A Diminished responsibility
(1) When a person who unlawfully kills another under circumstances which, but for the
provisions of this section, would constitute murder, is at the time of doing the act or
making the omission which causes death in such a state of abnormality of mind …as
substantially to impair the person's capacity to …the person is guilty of manslaughter
only.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is
by virtue of this section liable to be convicted of manslaughter only…..
Drugs Misuse Act
124 Defence of supply of lawfully prescribed drug in a small quantity
(1) A person is not criminally responsible for an offence defined in section 6 if the
dangerous drug is one specified in the Drugs Misuse Regulation 1987, schedule 5 and if
the person proves that—
(a) it was prescribed for the person by a medical practitioner for a condition with
which the person was suffering at the time it was prescribed...
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Also s 215(5) (‘carnal knowledge with children under 16’ – a defence to prove that the
accused believed that the child was of or above the age of 14); s 207 (‘disturbing
religious worship’)
Presumptions
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Reverse onus defences arise where the accused must disprove a presumption
Presumptions of law
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E.g. age of criminal responsibility:
1. irrebuttable (e.g. s 29(1) QCC)
2. rebuttable (e.g. s 29(2), s 26 QCC)
See R v F
Presumptions of fact
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Legislated e.g. s 129(1)(c) Drugs Misuse Act (Qld)(occupier and possession)
Some provisions state that material is assumed to be evidence of a matter. It is then for
the accused to present evidence that contradicts the assumption.
Justifying Reverse Onus
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Interests of the community – the balance between D’s right not to be wrongly convicted
and the community’s broader interest in law enforcement is made when the onus is
reversed.
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Seriousness of the offence – more appropriate for very serious offences (e.g. terrorism
and human trafficking)
o BUT where deprivation of liberty is a possible result, the presumption of
innocence should be protected, so it is arguably more important that the onus is
not reversed in regards to more serious offences because the attract harsher
penalties
o More easily justified in relation to lower level crimes where the implications for
the accused are not so great.
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The ease/difficulty of proof
o Particular difficulties for the prosecution to prove an element of an offence or
disprove an element of a defence, especially where some matter is peculiarly
within the accused’s knowledge
General rules
 See QLRC on provocation reform
Legal burden
(Persuasive Onus)
Evidential burden
(Evidential Onus)
Elements
Prosecution BRD
Prosecution
Defences
Prosecution BRD
Accused
Statutory Defence BoP
exceptions
Accused
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Whittling Down Woolmington?
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Increasing number of situations where the privilege against self-incrimination is
abrogated; increasing number of exceptions to the Woolmington rule.
The proof rules in practice (effect of rules in magistrates court) – see Brown (footnote)
417 – 422, references to studies by McBarnett and Carlen
Considering that most criminal matters are finalised in Magistrates Court pursuant to a
guilty plea, it seems clear that the high threshold assumed by the Woolmington
principles is rarely tested
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Terrorism legislation
o A person who is intentionally a member of a terrorist organisation and who
knows the organisation is a terrorist organisation, commits an offence.
o A defence is provided where the person proves he or she took all reasonable
steps to cease to be a member of the organisation as soon as practicable after
the person knew that the organisation was a terrorist organisation.
o The defendant bears the legal burden – D must prove on balance of probabilities
that they took steps to end their membership.
o (Terrorism (Commonwealth Powers) Act 2002 (Qld) s 102.3(1))
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Increasing departure from Woolmington principles in part explained by a policy shift
focused increasingly on the victim and community protection that has been reflected in
criminal justice responses
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Jurisdiction
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The QCC applies to acts, omissions or events occurring in Queensland that constitute an
offence (s 12 QCC)
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Jurisdiction has to be proven by the prosecution on the balance of probabilities
Thompson (1989) 169 CLR 1
 HC decided jurisdiction is a matter properly decided on the balance of probabilities
 Prosecution case will not fail simply because it cannot prove, beyond reasonable doubt,
that crimes occurred within the particular jurisdiction
 An extension of the Woolmington principles to jurisdiction would adversely affect the
public interest – the wrongdoer, who may be subject to the laws of more than one
jurisdiction, would escape conviction because it is doubtful which jurisdiction the crime
occurred in
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WEEK 2 – Policing And Police Accountability
A Short History
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Flashback Fitzgerald Inquiry on Queensland Government Corruption
o In 1987 cover blown on decades of police corruption
o Illegal casinos, brothels
o Police claimed ignorance
o Journalist uncovered two brothels run by rival syndicates – police kept the
peace and collected payments
o Four Corners exposed the corruption nationally
o Fitzgerald Inquiry Report recommended corruption watchdog and widespread
reform
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Fitzgerald Inquiry
o 1989
o Response to police corruption exposed by the media
o Planting evidence, fabricating admissions and charges, receiving bribes
o Prosecution of police commissioner and Premier Bjelke-Petersen
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Criminal Justice Commission
o ‘Report on a review of police powers in Queensland’
o Commission’s proposals resulted in the enactment of legislation formulated
over several years and culminating in the Police Powers and Responsibilities Act
2000 (Qld)(PPRA)
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Crime and Misconduct Commission
o Note recent review but not focused on policing issues
o Gold Coast Armed Robbery squad involved with police informant Lee
Hendersen
 Hendersen not credible – fabricating claims
 Resulted in dangerous liaisons report
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PPRA 1997 -> 2000
o Findlay and importance of policing
o Purposes of the Act (s 5):
 Consolidate and rationalize police powers and responsibilities
 Provide powers necessary for effective policing
 Provide consistency
 Standardize the way powers and responsibilities are exercised
 Ensure fairness and protect the rights of persons against whom powers
are exercised
 Enable the public to better understand the nature and extent of police
powers and responsibilities
Key Terminology
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PPRA Schedule 6
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Reasonable
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Objective standard (CJC report)
Look at what police is doing with information - is it reasonable to rely on the
information?
Whatever the police officer relies upon, it must be reasonable to rely on it and the officer
may need to verify information in some circumstances before acting on it (CJC report)
On the one hand need police discretion to allow flexibility, but on the other hand need
structure to ensure consistency and fairness
Reasonable Suspicion
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Often what activates (makes applicable and available) a police power
If police cannot explain why they had a reasonable suspicion the information they
collected or their actions may become unlawful
o Must be able to explain what they are basing their suspicion on
o Less than what’s needed to ground a belief but some factual basis must be
shown (George v Rockett)
o No need for certainty
More than mere idle wondering…positive feeling of actual apprehension or mistrust
amounting to a slight opinion (Queensland Bacon v Rees)
The material that leads a PO to be suspicious should be sufficient to induce suspicion in
the mind of a reasonable person
May come to nothing, but does not mean there were no reasonable grounds for having
the suspicion (Dobbs v Ward & Anor)
More than imagination or conjecture (LRCWA)
Reasonably Necessary
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Appropriate and adapted, linked to proportionality (Thomas v Mowbray)
Proportionality requires an assessment as to whether the measure in question is the
least restrictive means to achieve a legitimate end.
Pre-Arrest Search Powers
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Police have wide powers, but limited by accountability measures
o The need for an effective justice system must be balances against the need to
protect the individual from the arbitrary invasion of privacy and property
(George v Rockett)
o Specific requirements enacted in relation to applying for and issuing warrants in
relation to search have been established to protect those interests
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Warrant: a document that gives police the authority to carry out a particular power
such as a search or arrest.
o May be issued by a JP, magistrate or higher court judge
o Why do you want a warrant? To ensure evidence is admissible.
o Operates as a check on the misuse and limits of police powers
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Search Without a Warrant
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Persons: where police officer (PO) reasonably suspects that certain prescribed
circumstances exists, the PO may stop and detain or search a person, and anything in the
person’s possession, and seize anything that might cause harm or be evidence (s 29)
Evidence: see schedule 6
Prescribed circumstances: include where the PO has a reasonable suspicion that the
person has dangerous weapons, drugs, stolen property, evidence, or has committed a
certain offence (ss 29 and 30)
Vehicle: power to search and seize, similar as for persons (ss 31-32)
Public places: may search public places without and warrant and stay at the place for as
long a period of time as is reasonably necessary to carry out the search. Police have
power to seize things found at the place or on a person at the place in circumstances
where PO reasonably suspects that the things will provide evidence of an offence (s 33)
Search With a Warrant
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Especially applies to private place
Apply to a justice, who may issue the warrant only if satisfied there are reasonable
grounds for suspecting evidence:
Is at the place
Likely to be at the place within the next 72 hours 9s 151)
Ends after 7 days (more likely specified to end before this)(s 155)
Various requirements of what warrant must state (s 156)
Various powers (s 157)
Copies to occupier, or leave in conspicuous place (s 158)
NSW v Corbett 2007 HCA 32
 FACTS: HC examined the validity of a warrant that allowed police to look for firearms.
Warrant referred to suspicion of an offence that no longer existed under firearms
legislation
 ‘The statement of the offence in a search warrant need not be made with the precision of
an indictment’
 ‘The purpose of the statement of the offence in the warrant is to set bounds to the area of
search which the execution of the warrant will involve, as part of the investigation into a
suspected crime’
 Need not be precise, so long as it broadly relates to the object of the search
Wright et al v Queensland Police Service et al
 In George v Rockett held that warrant requirements should be interpreted strictly
 However, court in this case observed that there is also a need to protect public security,
and if there is ‘excessive insistence on correctness of every detail’, the balance may be
struck too far in favour of the individual
 Balance between public interests in crime prevention and fair police procedures
Post-Search Approval
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May be insufficient time to obtain a search warrant
Limited to indictable offences (and some others) (s 159)
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Where the PO reasonably suspects that evidence may be destroyed or concealed if an
immediate search is not carried out (s 160)
Later approval (as soon as reasonably practicable after the search) (s 162)
Would have to show that time was of the essence – were not reasonably able to get a
warrant beforehand
Covert Investigation (Not Assessed)
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Monitoring orders (ss 198 – 204)
o Directs a financial institution to provide information to the PO about a named
person
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Covert searches (ss 211 – 220)
o Enter and search property for evidence of a ‘designated’ offence (may be
sentenced to life imprisonment, involves serious risk of death or serious injury),
organised crime or terrorism
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Controlled activities (ss 221 – 227)
o Involve one or more meetings between a PO and a person where the PO
deliberately conceals the true purpose of their communication with the person
o May only be carried out where the PO considered it is reasonably necessary to
obtain evidence about ‘controlled activity offences’ (e.g. brothel offences,
objectionable films or computer games, stealing, fraud)
Arrest
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Involves the deprivation of an individual’s freedom
Physical restraint with or without words or use of words coupled with submission
Alderson v Booth
 Arrest does not require physical restraint in order to be affected
 Words may be sufficient to constitute arrest, but they are not always necessary
Dellit v Small
 FACTS: Court found that person was under arrest even though PO did not touch offender
– touching not essential
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Within the interests of the person under suspicion to be under arrest – certain
safeguards come into play
A continuing act – not always clear when it begins and ends
Michaels
 FACTS: Not clear that M was arrested, thought he wasn’t, left the police station and was
charged with escape.
 Lawfulness of arrest may fluctuate
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Arrest Without a Warrant
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Lawful for a PO to arrest an adult without a warrant where the PO reasonably suspects
the adult has committed, or is committing, an offence. Arrest must also be reasonably
necessary for one of the specific reasons listed in s 365(1)
o Reasonable suspicion of prescribed circumstance + reasonably necessary to
affect arrest
If later found not to have committed or was not committing an offence the arrest is not
necessarily unlawful (Ghani v Jones)
Coleman v Power (esp 263 – 264)
 Power not necessarily improperly exercised if PO makes a mistake
Norton
Arrest for Investigation or Questioning Purposes
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s 365(2)
Relevant to indictable offences only
Avoids difficulties associated with consent
Once under arrest, various protections exist under the PPRA to ensure the police
perform their functions appropriately and within limits
Arrest with A Warrant
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ss 369 – 372
Similar to search warrants
o Must apply to a justice who may issue the warrant only if they are satisfied that
there are reasonable grounds for suspecting the person has committed an
offence
o If the relevant offence is non-indictable, justice must also be satisfied that
alternatives to arrest (complaint and summons, notice to appear) would be
ineffective (s 371)
Must state that any PO may arrest the named person and the offence the person is
alleged to have committed (s 372)
Alternatives should be preferred
Safeguards
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Information (s 391)
o Arresting PO must advise person that they are under arrest and the offence for
which they are arrested
o On release PO should provide their own details in writing (name, rank and
station) – accountability matter
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Release or bring before court as soon as reasonably practicable (s 393)
Williams v R
 What is reasonably practicable is a question of fact
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As soon as reasonably practicable depends on the circumstances and will be related to
the time period necessary for investigation of the offence
Personal liberty of the suspect must be balances with criminal investigation and
community protection (Mason and Brennan JJ)
Will have to convince court that arrest did not become unlawful because accused held
too long – if arrest becomes unlawful evidence collected may become inadmissible
Important because:
o Liberty being impinged
o Avoid police harassment
Alternatives To Arrest
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The trifecta (Feerick; Mulrunji)
o Situation where person is doing something relatively benign (offensive
language, public urination, public order offences) which attracts police
attention, person resists
o Charged with minor charge + contravening police direction + assaulting a police
order
o When arrest is unnecessarily and inappropriately exercised, the consequences
are ‘often anger on the part of the person arrested and an escalation of the
situation leading to the person resisting arrest and assaulting police’ (DPP v
Carr)
Notice To Appear (NTA)




ss 382-390
Where PO reasonably suspects that a person has committed or is committing an offence,
they may issue and serve on the person a NTA
Signed by the PO, sets out details of the alleged offence and the time and place for the
associated court appearance
Notice lodged with the court and proceeds in the same way as a matter initiated by
arrest
Coleman v Power
 Arrest and public order offences
 NTA may be inappropriate if police suspects offender will not be able to appear
Complaint and Summons




ss 53-54 Justices Act
Note mediation powers
PO make written complaint and, in response, Justice may issue a summons requiring the
person complained about to appear before the court
Cumbersome and time consuming – NTA preferred
Discontinue Arrest

ss 375 – 381, Ch 14 Pt 4
15

Decide not to charge, charge associated with arrest is discontinued
o When arrested person was drunk and in a public place and police have
delivered them to a hospital
o No longer a reasonable suspicion that justifies arrest (e.g. after interview, s 376)
o May decide arrest is not the best way to pursue the matter (s 377)
 Go with NTA

Arrested on drug offence may be diverted to a drug diversion assessment program (s
379)

Limit on re-arrest (s 381)
o Need more evidence
o Incentive to deal with everything in the first instance

Infringement notices and on-the-spot fines
Move On Powers



ss 44 – 49
If the person is in a public place (or prescribed place) and the PO reasonably suspects
the persons presence has been causing anxiety, interfering with business, obstructing
movement or disrupting the peaceable and orderly conduct of any event.
Must be reasonably necessary in the circumstances in the interests of public safety,
public order or the protection of rights and freedoms of other persons
The Right To Silence

No such thing as an ‘off the record’ conversation with police

Right to remain silent in dealings with police (s 397)
o Police cannot force people to speak
Petty & Maiden v R
 Where the person remains silent the jury have to be directed that no inferences can be
drawn about their guilt or otherwise from the fact that they remain silent

Various reasons for remaining silent (Swaffield per Kirby J)
o E.g. shock, language difficulties, instructed by lawyer, suspicious of police,
fearful of self-incrimination

Exception: name and address (ss 40 – 41)
 Police can ask – if refuse can be charged with contravention of police direction
(s 791)
 Can defend the charge
 Note reverse onus – person charged has to demonstrate on balance of
probability that they were never suspected and there was no reason for the
police to think they were

Application of chapter 15 PPRA (s 398)
o Applies to those who are arrested pursuant to s 365
16
o
o
Establishes a number of safeguards for certain suspects in the interrogation
context
Right to personal liberty needs to be balanced against the need for efficient
investigation of crime
Kingston
 FACTS: K was at home when police came to collect wife’s goods. K admitted to beating
wife. K was not under arrest – just ‘chatting’ with police. Police did not have to
recognise chapter 15 protections.

Time limits for questions (s 403 – 410)
1. reasonable time

May be very short if accused exercises right to silence
2. not in excess of 8 hours – at least 4 hours ‘time out’
 See schedule 6 for definition of ‘time out’

Interview support – friend or relative and lawyer (s 418 – 419)
 Police have to facilitate contact with support person
 Can wait a reasonable time for the person to arrive – at least 2 hours (s 418)
 Discussion between lawyers and suspect should not be able to be overheard
Bachard
 May not always be practical to require consultation with lawyer to be in complete
privacy
 Interview in a casino, lawyer and accused in only room available, they could be
overheard by police

Failure to allow access to a lawyer considered more important than failure to facilitate
access to support person, but nevertheless may not lead to the exclusion of any
confession made – this will be a matter of discretion for the exercise of the trial judge
Recording
Driscoll v the Queen
 Problems with lack of recording: ‘it is very common for an accused person to deny that
he made an oral confession which police witnesses swear he made. The accused has an
obvious motive to claim that police testimony of this kind is false. On the other hand it
would be unreal to imagine that every police officer in every case is too scrupulous to
succumb to the temptation to attempt to secure the conviction of a person whom he
believes to be guilty by saying that he has confessed to the crime with which he is
charged when in fact he has not done so.’
Kelly v the Queen
 No excuse for not having a recording device, so widespread and easily obtained
 Not having a recording may raise doubt about legitimacy of confession
McKinney v the Queen
17



‘McKinney Direction’ will be given to the jury in cases where there was uncorroborated
and disputed police evidence of confessional statements allegedly made by an accused in
police custody
‘once it is accepted that a record of interview may be fabricated, it must also be accepted
that the atmosphere, including the isolation and powerlessness of a suspect held in
police custody, which allows for its fabrication may also be conducive to the suspect
signing a false document’
In the interest of the prosecution and police to record if they do not want the direction
made

Caution (s 431, 2 limbs)
o Not obliged to talk, but anything said may be used as evidence (Marshall v
Western Australia)
o If practicable, the caution must be recorded (s 435)

If a PO reasonably suspects that a relevant person is unable, because of inadequate
knowledge of English or a physical disability, to speak with reasonably fluency in
English, the PO must arrange for an interpreter to attend and the interrogation must be
delayed until the interpreter arrives (s 433)

Must if practicable be recorded (s 435 – 441)
 Generally practical due to the accessibility of recording devices

If not recorded and admitted into evidence:
 McKinney warning is given – jury warned about dangers of accepting evidence
Nicholls v the Queen
 FACTS: Nicholls and Coates two suspects to murder case. Break in the interview,
Nicholls confessed during break in recording. Court held that police should have put the
confession back to the accused when the recording recommenced. Conviction quashed
on basis that the evidence had been wrongly admitted.

In deciding whether to admit unrecorded material, the court may consider the reasons
police did not comply with the recording requirement and may admit the material if it is
in the interests of justice (s 439).
o When recording is not practical, may be admitted if in the interests of justice
R v Batchelor
 FACTS: No recording. Made confession to police negotiator trying to diffuse the
situation. Court held there had been no unfairness and confession could be admitted.

Written confession may be taken, but in such circumstances the confession must be read
back to the accused and the ‘read back’ must be recorded (s 437; R v Smith)

Copy of recording should be provided to the accused (s 438)
R v McMillan
 FACTS: Police refusal to record deliberate. Confession excluded because unrecorded.
18
Interviews In Particular Cases
Aboriginal And Torres Strait Islanders (ATSI)

Why special case?
o Long history of unequal treatment
o Bad relationship between ATSI and police
o Gratuitous concurrence – more likely to agree to whatever police says on
account of power imbalance

Anunga Case - Foster J developed the Anunga Guidelines, set out in the Equal Treatment
Benchbook
o Must have support person and interpreter present at interview
o Notify legal aid
Special requirements may be unnecessary where the PO reasonably believes that the
person is not at a disadvantage compared to others in the community more generally

R v Sailor
 FACTS: Record of interview allowed even though no support person/lawyer present.
Had good command of English, ethnicity presented no significant disadvantage.
Impaired Capacity



Why special case?
Must allow the person to contact a support person and talk to the support person in
circumstances where they will not be overheard by the PO (s 422)
Support person must be present during interview
INTOXICATION


Must delay until no longer intoxicated or can understand their rights and the caution
(can decide whether or not to answer questions)(s 423)
Being ‘affected’ by alcohol enough if it impacts the person’s ability to understand their
rights and the questions being put to them (R v LR per Keane JA)
Post Arrest Searches



Frisk searches/strip searches (ss 442-443)
o See schedule 6 for definitions
Purposes:
o Should not have anything on their person that is risk to safety of self or others
o Evidence
o Can seize
Legality?
o Whole chain of events must be lawful, powers must always be lawfully exercised
o Any evidence collected as a result of inappropriate processes used in searches
or collecting forensic evidence may be excluded on this basis
Courtney v Thomson
19

FACTS: Searched for material, but it was questionable whether the suspect was under
lawful arrest and whether the searches were lawful

Safety and dignity should be protected (ss 624 – 632)
o Minimise embarrassment
o consider dignity
o limit search
o Same gender
Identifying Material and Forensic Procedures


ID material –> identification of suspect
Forensic –> investigation of crime

Identifying particulars (ss 467 – 474)
o See schedule 6
o E.g. finger/hand/voice/footprints; writing sample; photos of scars, tattoos, etc.
o When can they be taken? (s 467)
 ID particulars offence – maximum penalty at least 1 year prison (e.g.
assault and stealing)
o Can the person refuse to supply? (s 471)
 Yes, but court may order that ID particulars be taken in order to
identify a suspect and to find out their criminal history
 PO can hold a person for a reasonably necessary amount of time to take
particulars and may use reasonable force (S 517)
o When should they be destroyed? (s 474)
 Destroy when: not guilty, not proceeded against with the offence
 BUT: if already been found guilty of another indictable or acquitted on
insanity grounds do not destroy
More Forensic Procedures (Not Assessed)



Forensics by doctors and dentists
Safeguards about forensic procedures
DNA
Police Force

PO may use reasonably necessary force to exercise, or attempt to exercise, a power (s
615)

POs may use force in certain circumstances regarding property
o Should be reasonably necessary force (s 614)
 Proportionate to the power being exercised and the context in which it
is being exercised
o E.g. to force locks open

POs may use force in circumstances regarding persons
o Should be reasonably necessary force
20
o
o

Should not be likely to cause GBH or death (s 615) (Whitelaw v O’Sullivan; R v
Hardy)
Critical situations (i.e. high level offending)
 PO may use GBH/death level force, but must first warn to give offender
a chance to desist (s 616)
 E.g. person about to cause GBH or death to somebody else
Contravention offences (ss 790 – 791)
o An offence to contravene or fail to obey a direction or order made by a PO under
the PPRA
Failure to Observe PPRA Procedures






Police generally observe procedures because they want charges to be successfully
prosecuted (want evidence collected to be admissible)
Common law applies where there are gaps, such as what to do when police do not
observe procedure (s 10)
o A complaint may be made to the CMC
o A stay of proceedings may be ordered
o May be criminal or civil actions available
A breach of PPRA procedures or an unfair exercise of procedure may lead to the
exclusion of evidence obtained
The accused should exercise a free choice to speak or be silent (R v Lee; Van der Meer v
the Queen)
Persons in custody should not be subjected to improper pressure, ill-treatment or
improper methods (Tofilau) Confessions obtained in ‘the shadow of impropriety’ will
be excluded, to protect the accused and to deter police from using such methods.
Can we exclude evidence collected?
1. voluntariness – must be excluded if involuntary
a. threat or promise made by a person in authority that induces person to
confess
 see s 10 Criminal Law Amendment Act 1984 (Qld)
b. will overborne via other matters
 ‘basal voluntariness’
 E.g. torture
2. the discretion to exclude
a. fairness … reliability (general)
b. public policy (general)
c. probative value
Tofilau v the Queen
 FACTS: Major police operation where police disguised themselves as gang bosses.
Criminals wanted to join gangs, had interviews with gang bosses. Gang bosses said they
needed to confess what they had done if they wanted to join the gang. Confessed, but
confessions still admissible even though induced by promise – were not made to a
person in a position of legitimate authority.
21
Voluntariness
 Justification for rule? (Tofilau)
o Confessions need to be reliable because they are highly prejudicial (persuasive
to juries)
o Ensure offenders are speaking freely
Person in authority



Was the confession induced by threat or promise? (s 416 PPRA)
Who is a person in authority?
o A perception by the suspect that the coercive power of the state is being used is
central (Tofilau)
o Includes ‘officers of the police and the like, the prosecutor and others preferring
the charge’ (McDermott)
What if police threat conveyed to accused by the person’s lawyer ?
R v Naylor ex parte AG
 Does not matter who threat made to, irrelevant that it is conveyed by lawyer
 Some link needs to be established
Basal voluntariness


Ultimately the question is: was the will overborne so the person did not exercise a free
choice to speak or remain silent? (Tofilau)
o E.g. held too long, not fed
o High threshold
Relevance of the role of police e.g. in lack of sleep
R v Griffiths
 More likely that confession excluded if reason of overbearing of will is a result of police
activity
 More compelling for court if police cause the overbearance
Burnett
 FACTS: Fainted and dopey, confession excluded
R v Williams
 FACTS: Accused attempted suicide. Taken by police to hospital. Confessed, but held that
will had been overborne.
The Discretion to Exclude
Unfairness


Considering how the evidence was collected, it would be unfair to admit it
Concerns both reliability and procedural fairness
1. Were the accused’s procedural rights protected? (Swaffield & Pavic)

Right to lawyer/release after reasonable time/warnings
22

If insufficiently protected may be grounds for a claim of unfairness, judge may
exclude confession
2. Would a confession have been made if the interview was properly conducted? (Duke)

If not, judge may exclude
3. Would the level of unfairness shock the community? (Em; Tofilau)
4. Were the tricks used OK or were they ‘dirty’ tricks? (Swaffield; Carr)

Some form of trickery that community will tolerate, but others go too far (e.g.
dress as a chaplin or legal aid lawyer)
Public policy




Usually the evidence will be reliable
But incentive not to breach PPRA rules
Consider seriousness of the offence
Consider whether, but for police breaches, the accused would have been a law abiding
person (Ridgeway)
R v Martin (McMurdo P at [20]-[21])
 (Intoxication and aboriginal)
 …..in deciding this issue, must consider the public interest in maintaining an
individual's right not to be unlawfully or unfairly treated by law enforcement
officers. Unlawfully obtained evidence should be excluded where the public interest
in the protection of the individual from unlawful or unfair treatment outweighs
the public need to bring to justice those who commit offences; convictions achieved
with the aid of unlawfully obtained evidence may be achieved at too high a price.
23
WEEK 3 – Police Complaints, Bail and Charge
Charges


Police powers under the PPRA generally require reasonable suspicion (e.g. reasonable
suspicion of a criminal offence for arrest) but to charge requires something more
How does a suspect know if they are charged?
1. will receive NTA (ss 382 – 390 PPRA) or
o Bail is not an issue – the person is free to go before their court appearance
o Lower level offences
2. will receive a complaint and summons (ss 53 – 54 Justices Act) or
o Time consuming, not often used
o Bail is not an issue – no conditions placed on their liberty at this stage
3. Arrest and charge - will receive a copy of the bench charge sheet (s 42 Justices Act)
o Used in where PO wants person held on remand
o Arrest may be discontinued and person may be given a NTA
Bench Charge Sheet and QP9


In all cases magistrates court (MC) will receive a copy of the bench charge sheet and QP9
All charges will go (first mention) through a MC (‘the filter court’)
Bench charge sheet



ss 12 - 14 Justices Regulations (Qld)
must be completed by PO before offence is mentioned before a magistrate
What must it include:
o Defendant’s name
o Offence
o Particulars, including property and victim info
QP9 (Court brief)





Queensland Police Form 9 is a form that the police fill in when they charge a person.
Provided to the accused
It lists the exact charge with a brief description of the facts which they allege against the
person (will be read out to the court)
Accused may seek amendments
The QP9 is usually picked up at the first mention at court
The Discretion to Charge

The Director’s (ODPP) Guidelines (Qld) (esp. GL 1-4)
o Does not have force of law
o Developed to assist police and ODPP staff in the exercise of their discretion
o Aims to encourage consistency, efficiency, effectiveness and transparency in the
administration of justice
24
o
o
Reflects the balancing exercise involved in the decision to prosecute, between
the interests of the community in prosecuting the guilty and ensuring that the
innocent are not convicted.
Relevant for police, police prosecutors and for officers of the Office of Public
Prosecutions.

Police generally issue initial charge, may then be reviewed by the ODPP

GL 1: duty to be fair [to the accused]
o Duty of prosecution to prosecute case fairly against the accused
 The prosecution has significantly greater access to investigatory
resources and services
 If in the course of an investigation they become aware of evidence that
supports the accused’s case, they must disclose this to the accused
 If fail to disclose, could result in claims of misconduct, review by the
CMC
o Duty of prosecution to present the whole case against the accused at once
 No ‘case-splitting’ (R v Soma)

GL 2: fairness to the community
o May be appropriate to delay proceedings because prosecution needs to collect
more evidence to secure a successful prosecution in the interests of the
community
o Although general duty to expedite (GL 3), delay may be appropriate in fairness
to the community

GL 3: expedition
o Duty to prosecute as quickly as possible

GL 4: Two tiered test.
Guideline 4: The Two-Tiered Test
1. Is there sufficient
evidence to charge?
NO: No
charge
YES
2. Does the public
interest require
prosecu on?
YES: Charge
NO: No
charge
GL 4: The two-step test.
5
25

4 (i) Is there sufficient evidence?
o ‘a prima facie case is necessary but not enough’
o ‘a prosecution should not proceed if there is no reasonable prospect of
conviction before a reasonable jury (or magistrate)’
o Even if a magistrate decides to commit an accused for trial, the prosecution still
has a duty to reassess the prospects of the case in light of the guidelines
o Consider a number of matters
 Availability, competence and compellability of witnesses and their
likely impression on the court
 Any conflicting statements by a material witness
 The admissibility of evidence, including any alleged confession
 Any lines of defence plainly open
 Any other factors relevant to the merits of the prosecution case

4 (ii) Does the public interest require prosecution?
o If there is sufficient evidence do discretionary matters dictate that the matter
should not proceed in the public interest?
o Consider a number of factors
 Seriousness or triviality of the offence
 The youth, age and health of the offender (may be better ways to
process other than criminal justice intervention)
 Availability and efficacy of alternatives to prosecution
 Staleness (time-lapse)
 Culpability of the offender
 Victim’s wishes
 Expense and length of trial
 Effect on public order and morale

4 (iii) Impartiality
o Decide without being influenced by race, religion, politics, personal feelings,
perceived political advantage or the possible effect on the prosecutor’s career


The decision to prosecute is ultimately made at the discretion of the prosecutor
Decisions about whether to prosecute can be reviewed by the CMC (e.g. Volkers; Hurley)
Breaching the Guidelines

Courts will rarely ‘throw the charge out’ for a breach of guidelines, only when there has
been an abuse of process
o A separation of powers issue – reluctant to interfere with the discretion of the
police or ODPP (the executive)
o ‘the integrity of the judicial process – particularly its independence and its
impartiality and the public perception thereof – would be compromised if the
courts were to decide or were to be in any way concerned with decisions as to
who is to be prosecuted and for what’ (Gaudron and Gummow JJ in Maxwell v
R)
Maxwell v R
 FACTS: Accused charged with murder. Resolved on plea negotiation on the basis of
diminished responsibility, charge reduced to manslaughter. HC asked whether the trial
judge, when the prosecution had accepted a plea in full satisfaction of an indictment, had
26


any power to reject the plea. Answered in the affirmative in situations of abuse of
process, but otherwise in the negative if it involved a review of the prosecutor’s
decision.
Trial judge can reject a plea accepted by the prosecution if there has been an abuse of
process.
What is an abuse of process?
o Prosecuting for ulterior purposes
o The 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)
o If a prosecution launched for any other purpose this may be improper and an
abuse of process
R v Moti
 To determine whether an abuse of power has occurred, ask whether it is an affront to
the public conscience
Oppressive Prosecution

May be an abuse of process

Lack of charge particularity
Patel v R
 FACTS: Claimed at the HC that the prosecution were ‘throwing mud at him hoping it
would stick’. Unclear what evidence related to which charges, made it difficult for jury to
consider relevant defences. Lack of particularity regarding the prosecution’s case
amounted to an oppressive prosecution.
KRM


Accused needs to know particulars of their offence and the evidence that supports each
charge (e.g. where, when crimes were supposed to have occurred) in order to rebut the
prosecutions argument or raise defences
‘a high degree of specificity in the accusations, charges and evidence proffered by the
prosecution’ is required (Kirby J)
Rogers
 Accused needs to know what evidence the jury relied upon in order to appeal

Doomed to fail (Walton v Gardner)
o Core evidence missing

Double jeopardy (R v Carroll)
Bail

Bail Act 1982 (Qld) (BA)

Only relevant once charged with an offence, and only in certain contexts (e.g. arrest and
charge process used)
27

Police may not wish person to be released without conditions (flight risk)

What is bail?
 ‘granting of conditional liberty to someone who has been charged…’
 If a person is not granted bail they will be held ‘on remand’
 Disadvantages – limited contact with lawyers/family
 Different types of bail - Police bail or court bail?

S 7 police must consider bail when:

arrest and charge matter (excluding s 13 matters but not show cause matters)

where not detained for questions under PPRA (8hr limit)

cannot get to a court within 24 hours

Similar powers regarding court bail, including conditions
 If decide not to grant bail – must take person to court as soon as reasonably
practicable
 Most people released by police on police bail
Court Bail

s 9 presumption in favour of bail
 ‘prima facie right’ to bail prior to conviction, consistent with the presumption of
innocence.

In order to refuse bail generally onus on prosecution to show on the balance of
probabilities that the person is an unacceptable risk because (s 16(1); Williamson v
DPP):
 (i) accused would fail to appear
 (ii) accused would, while released:
 a) commit an offence
 b) endanger safety and welfare
 c) Interfere with witnesses / obstruct justice
 d) For defendant’s protection should remain in custody

Prosecution needs to satisfy court on the balance of probabilities that person is an
unacceptable risk for one of the listed reasons (Gardner v DPP)
In considering ‘unacceptable risk’

Consider nature and seriousness of the offence, character, history of bail, strength of
evidence (s 16(2))
‘Show cause’ situations (reverse onus)(s 16(3))




Commits offence while on bail
s 13 offence ( i.e. murder/indefinite sentence – Supreme court only)(Lacey)
Indictable offence with weapon (Williamson)
Bail Act offence

Onus shifts to accused, must show why should be released on bail (must convince court
on the balance of probabilities that they are not an unacceptable risk)
28
Type of bail

Cash bail – limited circumstances (non-indictable offences) (s14A)
o Rarely used

Bail application considers broad range of evidence (s 15)
o Factors that support grant of bail include:
 Lack of opposition by the prosecutor
 Specific personal responsibilities of the accused (e.g. employment or family
commitments)
 Risks to the physical or mental health of the accused if they were to be
remanded in custody
o A matter of weighing competing public interest considerations (ensuring accused
appears, public and witnesses protected) with the interests of the accused, who
should not be unnecessarily detained while it has not been proven that they are
guilty.

Bail on undertaking with or without conditions (s 11(1)).
o Undertaking – promise to attend, effectively a contract to appear at court at a later
date
o Conditions- wide ranging (ss 11, 20) (e.g. 11(1) security, surety)
o When a person has entered into an undertaking to appear and later fails to appear,
an offence is committed (s 33)
o A breach of any condition of bail is an offence (s 29)
o Any money paid as part of a bail condition will be forfeited and an arrest
warrant issued for the breach offence

Surety: a person who acts as guarantor for the accused’s appearance by providing a bail
deposit (s 21)
o If accused absconds, court can order payment of the surety amount (s 32A)
o A surety may apply to have a payment order revoked or varied (s 32B) but the
onus is on the applicant to prove that, in all the circumstances, the payment
would be against the interests of justice (s 32B(2)(a))
o Consider (Baytieh per McMurdo P, Davies JA and Jones J):
 Steps the surety took to ensure accused would attend
 Circumstances that should have alerted the surety that the accused was
likely to abscond
 Financial hardship for the surety that has arisen since giving the
undertaking
 Reasonableness of surety’s expectation that accused would comply with bail
 Nature of the relationship between surety and accused
 Level of control surety had over accused’s behaviour
 Assistance given by the surety in attempts to re-apprehend the accused
Baytieh v Queensland
 FACTS: Applicant surety (s 32B) was successful because the surety had done all he
possibly could to ensure the accused complied with bail conditions. Baytieh counselled
the accused, assisted with legal aid applications, accompanied him to meetings with legal
advisor and psychologist and remained in frequent contact. Accused disappeared from
the court on morning of bail hearing, after asking to buy a pack of cigarettes.
29
Mokbel v DPP (Vic) and DPP (Cth)
 FACTS: Sister-in-law put up a $1000000 surety, Tony Mokbel absconded, ordered to pay
surety. Mokbel was not a genuine surety as she did not possess assets worth $1000000
and had misled the court about this. Evidence did not establish Mokbel had taken all
reasonable steps to ensure accused’s appearance. Numerous reasons she should have
been alerted to the risk of absconding. Many family assets were acquired with profits of
crime.

Limitations and requirements exist about who can act as a surety:
o Must be reliable and solvent
o Must not be accepted as a surety if that person or their family would suffer ruin
or injury as a result of the undertaking being forfeited (s 21(8))
Which court?


Murder and indefinite detention matters can only be dealt with by the Supreme Court (s
13)
Otherwise all courts have a general power to grant bail (s 8)

Bail can be considered at any stage of the process (s 8)

An accused whose application for bail is refused or who is aggrieved by any conditions
attached to a grant of bail may apply again to a court for bail or for a variation of an
existing bail order (s 19)
o The applicant must demonstrate that new facts or circumstances have arisen
since bail was previously granted or refused
DPP (Qld) v Bakir
 FACTS: Clear that prosecution’s case not as strong as thought, new circumstance allowed
new bail application.
 Later bail applications may be successful due to a material change
Lacey v DPP (Qld)
 FACTS: Trial was later than expected, change of circumstance allowed new bail
application.
 Possible delay of a trial is an important factor to consider when determining bail, but is
not necessarily a critical factor
 Need to balance considerations such as strength of the Crown’s case and the risk of flight
with the likelihood that time in custody on remand will exceed any custodial sentence
which might be imposed after conviction

Can bail decisions be reviewed? (See 19B; s 10(2))
o Once a trial has commenced in the DC or SC, the trial judge decides any question
concerning whether bail should continue during the trial or be granted for any
adjournment (s 10(2))
o ‘Trial’ includes sentencing (s 6)
o In this context the Trial Judge’s decision is final
o Accused has a right to seek a review of that initial decision by the trial judge
30
Wotton v DPP (Qld)
 FACTS: Accused pleaded guilty in the DC and applied for bail pending sentence. His
application was refused by the trial judge, so he appealed to the SC.
 Aggrieved accused has a right to seek review of the initial decision by the trial judge

Can bail be granted after conviction but before an appeal is heard?
o No prima facie right to bail at this stage as the presumption of innocence has
been displaced by the outcome of the trial
o Possible, but only in ‘exceptional circumstances’ (Chamberlain)
 strong case for appeal
 if prosecution agrees
 any sentence imposed on conviction likely to have been served before
outcome of appeal
Ex parte Maher
 If it were otherwise:
o conviction would appear contingent until appeal
o Encourages people to make unmeritorious appeals
o Undermine public’s respect for the jury system
 Common examples of favourable exercise of discretion for applicants for bail after a
conviction:
o patent error in the proceedings below which indicate applicant has a good
chance of success on appeal
o where the accused may inevitably be required to serve an unacceptable portion
of his sentence before appeal can be heard (commonly occurs when the main
penalty is a short custodial term)
Crime and Misconduct Commission – ‘Who We Are and What We Do’

‘Fighting crime, promoting integrity, protecting witnesses’
History


Established 1 January 2002
o With merger of Criminal Justice Commission (CJC) and Queensland Crime
Commission (QCC)
Under Crime and Misconduct Act 2001 (The ‘CMA’)
o Independent, statutory authority
o Powers of a standing Royal Commission
Functions


Major functions (ss 4 and 5 CMA)
o Fight major crime
o Improve the integrity of the public sector (including police) and investigate
misconduct
Ancillary functions (ss 4 and 52 – 56 CMA)
o Civil confiscation
o Intelligence
o Research
31
o
Witness protection
Accountability



Parliamentary Crime and Misconduct Committee (PCMC)
o Investigate claims of misconduct against CMC
Parliamentary Crime and Misconduct Commissioner
Public Interest Monitor
o Power to put surveillance warrants into place
Major Crime Function


What is major crime (s 12 CMA)?
o Organised crime – networked criminal activity for profit or power
o Criminal paedophilia – serial offenders, networks
o Serious crime – punishable by prison term of at least 14 years e.g. murder, etc.
o Terrorism
Utilisation of unique coercive power (unavailable to police)
Coercive Powers

What unique powers does the CMC have?
o CMC has unique powers which compel provision of evidence
o CMC powers set out in Ch 3 CMA
o Also have powers ordinarily available to police (surveillance devices, controlled
operations, assumed identities per PPRA)
o Tool most frequently employed is coercive hearings
Coercive Hearings






What is a coercive hearing?
o Dealt with in Chapter 4 of CMA
 Most commonly used for crime investigations
 Note – slightly different provisions apply between Crime and
Misconduct hearings
 hearings are generally closed to the public (s 177)
 Procedures decided by presiding officer (s 180)
 No rules of evidence
Witness at hearing must answer questions (s 190)
o May not claim privilege, other than legal professional privilege
o In particular, no privilege against self-incrimination
o May refuse if “reasonable excuse” established (s 194)
Answers given may not be used in subsequent proceedings against a person (s 197)
Evidence given on oath or affirmation - false evidence is perjury (s 123 Criminal Code)
Most effective when evidence available to contradict the witness (forced to admit truth)
If evidence can’t be used against a witness, why bother?
o Hearings generally call witnesses (cf. suspects – although power to call them
under s.331 CM Act; Witness A v CMC)
32
o
o
o
o

Purpose is to progress investigation, not necessarily to obtain admissible
evidence (Accused A v Callanan)
May identify location of physical evidence, which can then be used – no
prohibition on derivative evidence
Can break ‘wall of silence’ for witnesses involved in their own criminality
Basis for application to A-G for immunity from prosecution
Case study: Murder investigation
o Investigation into murder in regional Queensland town
o Police identified that suspects and victim were involved in drug trafficking – as
were all their associates
o Unsurprisingly, witnesses were not forthcoming
o Investigations revealed that the victim and suspects all had contact with their
associates over the 24 hours preceding the murder, and therefore the associates
would have info of relevance
o When approached by police, witnesses were reluctant to disclose their
knowledge and activities
o Coercive hearings were sought by the CMC to avoid problems created by risk of
self-incrimination
o Witnesses’ movements and contact with suspects could be tracked through
phone records – this meant that witnesses who sought to ‘paint themselves out
of the picture’ could be challenged
o Ultimately, with protection of s197, witnesses were generally forthcoming about
their activities
 “How do you support yourself financially?”
 “Anything I say can’t be used, right?”
 “That’s right”
 “I’m a drug dealer”
o With a clear picture of the drug dealing network, the events leading up to the
murder became clear
o As a result of hearing, two prosecutions
Misconduct Function

CMC promotes public sector integrity through:
o Receiving, assessing, referring, investigating complaints of:
 Official misconduct
 Police misconduct
o Building capacity of government agencies to prevent and deal with misconduct
themselves

What is ‘official misconduct’? (s 15 CMCA)
o Corrupt conduct relating to an officer’s duties (including police officers) that:
 Could be a criminal offence, or
 A breach of discipline deserving dismissal
 Examples: accepting a bribe, stealing, conflict of interest, unauthorised
release of official information

A person may complain about, or give information involving, misconduct to the
commission (s 36(1))
CEOs must report suspected official misconduct to CMC

33



CMC refers most complaints back to relevant agency to deal with (unless sufficiently
serious or systemic)
o CMC then oversees agency response
Investigates certain matters itself
When does the CMC investigate?
o When a matter is particularly serious or systemic
o When the public interest is involved
o When the relevant agency is not able to conduct its own investigation
o Principles articulated in s34 CM Act
CMC and Police Integrity

What is ‘police misconduct’?
o Conduct that:
 Is disgraceful, improper or unbecoming
 Shows unfitness to be or continue as a police officer
 Does not meet the standard of conduct the community reasonably
expects
 Examples: discourtesy, abusive language
Police Misconduct


QPS takes care of:
o Most complaints of police misconduct
o Some complaints of official misconduct relating to police
CMC oversees QPS response
o CMC can take over the QPS investigation
o Issue guidelines for the QPS investigation
o Review outcomes
Police Complaints

Complaints procedure:
o Can be made to police or to CMC in first instance
o Devolution (send back to primary agency) principles apply if complaint to CMC
– usually dealt with by QPS in first instance, with guidance from CMC
 CMC has duty to notify QPS of complaints (s 37)
 Commissioner of police has primary responsibility to deal with
complaints about police misconduct (s 41)
o Investigation conducted, followed by decision as to whether to charge, and with
what
o QPS determines decision-maker, which in turn determines range of sanctions
available
Disciplinary Process



Police convene disciplinary hearing before decision-maker
Decision-maker considers evidence, and whether charges substantiated (Briginshaw)
Can substantiate, not substantiate or exonerate
34


If substantiated, can impose sanction
Sanctions can range from small fine to dismissal
Purpose of Discipline







Disciplinary process’s purposes are to:
o Maintain public confidence in the service;
o Self esteem of the service;
o Maintain confidence that the service can fulfil its statutory functions;
o Maintain proper standards for its members;
o Maintain the efficiency of the service; and
o Protect the reputation of the service
These purposes are consistent with the objectives of disciplinary proceedings in other
contexts
Dishonesty is a common aggravating feature
CMC or officer can seek to review decision-maker’s decision in QCAT (Queensland Civil
and Administrative Tribunal)(s 219G CM Act)
Can review substantiation or sanction
Review of QPS decision occurs in QCAT, governed by QCAT Act and CM Act Ch 5, Pt 2
Review is a hearing de novo on the original evidence before the decision-maker, and any
new evidence by leave
Misconduct Case Study 1

CMC v QPS & Chapman (No 2)
o Former Sgt Damien Chapman
o “Gratuitous, violent assault on a young offender” – caused ruptured spleen
o Outcome: “Disciplinary declaration” that Chapman was guilty of improper
conduct in using excessive force against another and order that QCAT would
have made is that he be dismissed from QPS.
o Confirmed on appeal: Chapman v CMC & Rynders
Misconduct Case Study 2


CMC v Flegg & Anor
Appeal from CMC v Flegg & Anor
o Review of disciplinary decision to suspend Sgt Flegg’s demotion for 2 yrs
o Sgt Flegg was Search and Rescue coordinator on duty in 2005 the night that the
“Malu Sara” sank, drowning 5 people on board.
o Flegg failed to alert search and rescue authorities until about 4 hours after he
received a call that the boat was sinking.
o On review – confirmed.
o Overturned on appeal - suspension lifted
o CMC disliked this result, unsuccessful at first review, appealed to QCAT and
currently being heard
Police Misconduct
35


CMC also conducts its own investigations of police misconduct, which tend to focus on
systemic misconduct
CMC has power to utilise covert and coercive tools for misconduct investigations
o Surveillance devices
o Telephone interception
o Coercive hearings
Case study

Operation Capri “Dangerous Liaisons”
o Large-scale CMC misconduct investigation;
o QPS officers formed an improper association with prisoner named Lee
Owen Henderson;
o Henderson was regarded as a valuable ‘human source’ (in fact, he rarely
provided information of use & manipulated police for his own ends);
o The investigation was protracted, and revealed concerning practices
between police and prisoners

Revelations re. Henderson (aka “the General”):
o serving two life sentences for murder but allowed privileges;
o could make unmonitored phone calls from prison by having them diverted
through police system (at a cost of over $2,000);
o Released to attend meetings with suspects, e.g. spent the day in an oceanview motel with a catered lunch to meet with a suspect in a drug
investigation;
o had mobile phones and ID in false names;
o Had his own “locker” at a police station;
o Money paid to Henderson for his “services” - some of these funds were then
transferred into police officers’ accounts, or used to buy presents for
officers’ children
Capri - outcomes


Disciplinary action recommended against 17 officers:
o 1 – no action taken;
o 5 retired/resigned before disciplinary proceedings were heard;
o 6 received managerial guidance;
o In 5 cases, charges of misconduct were substantiated, of whom:
 1 was dismissed (upheld on review by QCAT);
 1 resigned before a sanction was imposed;
 2 retired medically unfit before a sanction was imposed
 1 was given a pay-point reduction– confirmed on review by QCAT.
Resulted in a major overhaul of informant management practices/policies and informant
funds checks/balances.
36
WEEK 4 – 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 1985
2
Alternative to laying a charge of an indictable offence
Whether to charge a regulatory or indictable offence is a matter of prosecutorial
discretion
Can only be dealt with summarily, in the Magistrates Court (MC)
3 offences:
o s 5: unauthorised dealing with shop goods (shoplifting)
 value =/< $150 (cf Stealing QCC s391)
o s 6: leaving hotels and other venues without paying
 value =/< $150 (cf Fraud QCC s408C)
o s 7: minor property damage
 value =/< $250 (cf Wilful Damage QCC s469)
s 7 Unauthorised damage to property
Any person who wilfully destroys or damages the property of another and without the consent,
express or implied, of the person in lawful possession thereof and thereby causes loss of $250 or
less is guilty of a regulatory offence and, subject to section 9, is liable to a fine of $500.


Penalty restricted to fines
Is ‘mens rea’ necessary?
o Must be dishonest – defence to prove offence committed in ‘honesty’
o s36(2) QCC excludes application of Ch 5 defences to regulatory offences except
for:
 s 22(2) honest claim of right
 s 29 immature age
 s 31 compulsion

Can common law defences apply?
37
o
Common law defences, in particular the need for the prosecution to prove mens
rea, are available to an accused charged with a regulatory offence (Cameron v
Holt)
Simple (Summary) Offences

‘Everything other than’ offences – cover everything not specified as indictable or
regulatory, as well as those specified in the Summary Offences Act 2005 (Qld)
o If it is not a ‘crime’ or ‘misdemeanour’ under the code, it must be a summary
offence
Criminal Code Examples
s56A disturbing parliament
(2)(a) …summarily dealt with according to law…
(2)(b) …on summary conviction…
s56B armed in parliament
Any person who without lawful excuse being armed enters or is found in Parliament House …is
guilty of an offence and is liable on summary conviction …
Summary Offences Act 2005 Examples
7 Urinating in a public place
(1) A person must not urinate in a public place. Maximum penalty - 2 penalty units ($120).
10 Being drunk in a public place
A person must not be drunk in a public place. Maximum penalty - 2 penalty units.


Usually heard summarily in the MC (JA ss 19, 24, 30)
Look to Justices Act 1886 (Qld) (JA) for provisions on procedure in the MC
Summary Offences in Higher Courts


Summary offences can sometimes be heard in a higher court (District (DC) or Supreme
(SC)) subject to the following requirements (s 651):
o Prosecution, defence and judge agree that this is appropriate
o Accused person has legal representation
o Accused person intends to enter a plea of guilty
o Bench charge sheet is before the court
Why? If accused is also charged with a more serious offence it may be more convenient
and efficient to deal with all offences charged in the same context at once
Ex parte

Magistrates can hear a matter ex parte (in the absence of the defendant)
o But cannot disqualify licences or imprison in the absence of the defendant (ss
142(2); s 142A(6); s 143 JA)
Time Limit

Complaint must be made within one year from the time the matter arose (s 52 JA) (see
s388 PPRA regarding NTA)
o Contrast indictable offences which generally may be prosecuted at any time
38
Dismissal

magistrate may order prosecution to pay costs (ss 158, 158A JA)
o A matter of discretion for the Magistrate to determine
 Will consider the behaviour of the defendant
 Did D bring suspicion on themselves?
 Did D aid the prosecution?
 Was D forthcoming with information?
Latoudis v Casey
 Courts are not to be influenced in the exercise of their discretion to award costs against
the police or public officers by arguments that they will be deterred from prosecuting
cases for fear of costs orders being made, nor should they be influenced by arguments
that legal aid may be available to an accused
Conviction

magistrate may order defence to pay costs (unusual) (s 157 JA)
Indictable Offences

Crimes and misdemeanours
Criminal Code Examples
s 238 Contamination of goods
(1) A person who contaminates or interferes with goods, or makes it appear that goods have
been contaminated or interfered with, commits a misdemeanour. Maximum penalty - 3 years
imprisonment.
s 354 Kidnapping
(1) Any person who kidnaps another person is guilty of a crime. Maximum penalty - 7 years
imprisonment.

Procedure for indictable offences found in QCC

Crimes are generally more serious than misdemeanours.
o This claim does not hold up to close scrutiny – e.g. threatening a crime but
wounding a misdemeanour
The particular provision of the statute creating the offence will identify it as either a
crime or misdemeanour

Time Limit

No time limit for prosecution – can be commenced at any time (s 552F QCC)
o In the public interest to prosecute wrongdoers in respect of very serious crimes
even after a long time has passed
o Historically, time limit was imposed due to limited medical and scientific
knowledge which made it difficult to determine causal link between injury and
death
o Note: delay is a consideration for the DPP in deciding whether or not it is fair to
prosecute
39
Costs

Generally no costs or fees awarded (but see s 660 QCC).
o s 660 allows victim to apply for compensation from the defendant (now largely
superseded by Victims of Crime Assistance Act 2009 (Qld))
On Indictment

Prosecuted on indictment (s3(3) QCC)
o If any case is going to be heard and finalised in the DC or SC the matter must be
prosecuted on indictment
Crimes





Generally accused must be present at trial, but exceptions apply (s 617 QCC)
More likely that a trial will be adjourned than continue in the absence of the accused
o Accused should be able to hear and respond to more serious allegations made
against them as a matter of fairness
But court may continue in absence of the accused if they have actively frustrated the
progression of the trial
Where the accused’s misconduct in court makes it impracticable for the proceedings to
continue in their presence, court can order the accused to be removed and continue the
trial in their absence (s 617(2))
In a joint trial, where any or all of the accused are ill or infirm, the court may proceed in
their absence (s 617(3))
Stuart
 FACTS: Stuart was in custody before trial (no bail). Swallowed wire crosses, hospitalized
and unable to attend court. Held that in the circumstances it was in the interest of
justice that the trial carry on in Stuart’s absence. He voluntarily and intentionally
interrupted the proceedings. Stuart’s recalcitrance was not allowed to infringe upon his
co-accused’s (Finch) right to a fair trial.
Misdemeanours


Greater flexibility regarding the requirement for attendance at trial
s 617(4) QCC – court can permit absence.
Simple /Summary
Indictable
Commence w/in 1year
(s 52 Jus ces Act (JA) 1886 Qld; s388
PPRA re NTAs)
Generally no me limit (although
statutory excep ons and fairness)(see
s552F QCC; s52 Jus ces Act)
Generally heard in the Magistrates Court
(but see s651 QCC)
Prosecu on via indictment – so generally
can be heard in higher court (s3(3) QCC
but see chapter 58A QCC)
Can be heard ex parte (in absence of
accused) (ss142-142A JA)
Generally accused should be present –
although greater flexibility for
misdemeanour (s 617 QCC)
Costs may be awarded
(s157, 158, 158A JA)
Costs not awarded in higher courts .
9
40
ODPP Guideline 13

Summary jurisdiction will be preferred unless the conduct could not be adequately
punished other than on indictment having regard to:
o the likely sentence in the event of a conviction on indictment;
o the maximum penalty a magistrate may impose if the offence is dealt with
summarily;
o the antecedents (prior convictions) of the alleged offender; and
o 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 – Which Court?
Magistrate’s Court



Most indictable offences are dealt with summarily in the MC
Chapter 58A QCC provides for when indictable offences can be heard in the MC
Why would this be desirable?
o speed, cost, lower penalty limit (3 years - s 552H QCC), type of conviction
recorded (summary rather than indictable - s 659 QCC)


s 552A – if the prosecution elects, offences listed must be heard summarily
s 552B – heard summarily unless accused otherwise elects. The accused can elect to
have their matter heard by a judge with or without a jury in a higher court, or by a
magistrate.
s 552BA - heard summarily – no election required (unless excluded offence under s
552BB)
o Note prescribed value = $30,000
s 552BB - Excluded offences (a list of particular offences + circumstances, excluded if one
of the circumstances applies)
s 552D – above provisions subject to overall discretion of the magistrate
o if the magistrate is satisfied that the accused would not be adequately punished
on summary conviction, must refrain from hearing the matter summarily
s 552G magistrate decides value of property.
s 552H maximum penalty 3yrs
s 552I special procedure for s552B matters
Appeal grounds (s 552J QCC)







R v Hall
 FACTS: Magistrate exercised discretion to hear several matters of housebreaking
involving multiple offenders. In sentencing, the magistrate imposed cumulative
sentences for each of the offences to ensure the overall sentence of five years reflected
the seriousness of the matters (at the time the maximum penalty for housebreaking was
two years). Defendant successfully appealed against the sentence on the grounds of it
41
being an inappropriate exercise of discretion – magistrate should have abstained
because he could not impose an adequate punishment
Police v Warkton
 FACTS: Lawyer for the defence gave the plea to the court. Appealed on the basis of
breach of court procedure, was successful.
 Accused must deliver the plea
District and Supreme Court


If not heard summarily in MC, must be District or Supreme
ss 60 & 61 District Court of Queensland Act 1967 (Qld):
o = or < 20 yrs imprisonment matters (s 61(1))
o specific matters in list (including rape and sexual offences) (s 61(2))

However, prosecution has discretion to present the indictment to the SC after
consideration of factors including the complexity of the case, the seriousness of the
alleged offence and any particular importance attached to the case (s 560(4) QCC)
Highly complex, other offences to Supreme Court (homicide, drug trafficking large
amounts, corporate fraud).

Committal Hearings
History of the Committal

Historically a committal was held in relation to indictable offences in the MC prior to the
jury trial
Barton v the Queen
 Key functions of the committal hearing:
1. Filter out weak cases
2. a method of disclosing the prosecution case to the defence
3. an assessment of the case against the accused to determine whether a jury trial
is justified
4. an opportunity for the accused to explore the case against them and to call
evidence in rebuttal
 Committals an essential part of ‘fair trial’




The prosecution presents its evidence against the accused with the object of establishing
that there is a sufficient case for the matter to go to trial in a higher court
If sufficient evidence:
o Magistrate will commit the accused for trial (s 108 JA)
o see s 560 QCC - prepare ‘indictment’.
If insufficient evidence:
o Magistrate will discharge the accused (s 104 JA)
o prosecution may proceed via s 561 QCC (ex officio indictment) in certain
circumstances.
If the accused enters a guilty plea, the matter will be committed to the relevant higher
court for sentencing (s 113 JA)
42
Problems with Committal Hearings

Moynihan review:
o Committals are cumbersome, outmoded and expensive.
o Some allegations that the accused’s funds were ‘wasted’ on committal, leaving
the accused without representation for trial.
Disclosure in the Magistrates Court


An administrative agreement:
o s 706A QCC - between Chief Magistrate; Legal Aid Qld; Director of Public
Prosecutions; Queensland Police Service.
Introduction of Direction hearings (s83A Justices Act)
o A magistrate can order, or a party can request, a directions hearing
o Requests for, and directions about, disclosure.
o Requests and directions about cross-examination of witnesses
Examination of Witnesses


Magistrate has a supervisory role (s103B JA)
Use of tendered statements in lieu of oral testimony in committal proceedings (s110A
JA) (‘hand-up committal’; ‘committal on the papers’)
o Mandatory for the evidence of witnesses to be given in statement form
o Generally prosecution statements submitted by the prosecution or defence will
be admitted without the need for cross-examination ((2) & (3)).
o Accused must agree to ‘hand-up committal’ and be legally represented ((4))
o Can cross-examine where agreement between the parties ((5))
o Can apply to cross-examine ((6)) (see s 83A JA)
 Magistrate must be satisfied of the witness’s relevance
o The magistrate then formally charges and commits for trial or sentence ((6E))
 this does not require the magistrate to decide on sufficiency of evidence

Thus examination of witnesses possible regarding indictable offence (s104 JA)
o Defendant need not enter a plea or give evidence.

If all evidence considered magistrate can decide whether to commit for trial based on
sufficient evidence (s108 JA)
o Rare, will not usually apply s 110A(6E)
Doney v the Queen
 What is sufficient evidence? Consider whether a reasonable jury could convict
Applications to cross-examine witnesses


Under s 83A(5AA) JA a magistrate may give a direction that the maker of a written
statement should be called be made available for cross-examination.
This is subject to s110B Justices Act:
o ‘A magistrate at a direction hearing must not give a direction under s83A(5AA)
in relation to the maker of a written statement unless the magistrate is satisfied
there are substantial reasons why, in the interests of justice, the maker should
43

attend to give oral evidence or be made available for cross-examination on the
written statement.’
Note when granted leave to cross examine there are limitations (s110C JA)
o Magistrate cannot allow witness to be cross-examined about issues that are not
relevant to the reasons given by the magistrate for requiring the person to
attend (may be allowed if this is in the interests of justice)
o Prosecution may re-examine witnesses who are cross-examined
‘Substantial reasons’ under s 110B
Blacklidge v Police
 It is for the applicant to clearly define the purpose or purposes of the cross examination
which he seeks
o Avoid Basha inquiries (hearing that is conducted before the jury is empanelled
in order to provide the defence with an opportunity to hear and test evidence
that was not produced at a committal)
o Basha inquiry will only be permitted if the accused can establish that without
one it would be an unfair trial
 Substantial reasons requires reasons that are more than nominal or ephemeral and bear
in mind the purpose of the Act and its promulgation
 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
 Narrowing issues
 Avoid surprise
 Substantial undermining credit
 Above is non-exhaustive list – may be other reasons
Indictments



If the magistrate commits an accused to trial an indictment is required (s 3(3) QCC)
What is an indictment?
o s 1 QCC definition:
 it is ‘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 560 QCC
o Ordinarily, indictment prepared post-committal process (i.e. via s 110A or 108
JA) and recall s 560(4) (prosecution has discretion as to which court to present
the indictment to)
Ex Officio Indictments


An indictment where not committed to trial by a magistrate (s 561 QCC)
Can be presented ‘whether the accused has been committed for trial or not and against
any person for an indictable offence who with the person’s prior consent has been
committed for trial or for sentence for an offence before that court (s 561(1) QCC)
44


May be presented following a committal on one or more charges where the evidence
given at committal discloses the commission of further offences or an alternative offence
Accused may request a ‘Basha inquiry’ to hear and test evidence not presented at
committal
Use of ex-officio indictments


Webb


Although a magistrate may refuse to commit a matter to a higher court on the basis that
there is insufficient evidence, the prosecution may still present an ex officio indictment
(R v Grant-Taylor; Ex parte Johnson)
When appropriate
Where someone agrees to plead guilty to a charge which has not been the subject of
committal, the protective function of the magistrate is lost and there is no opportunity to
test any evidence against the accused
An ex officio indictment will usually be unfair unless there is an agreement to plead
guilty or the evidence has already been disclosed on another alternative charge
Siugzdinis
 The absence of a committal of itself will not necessarily lead to the staying of an ex officio
indictment - some distinct unfairness to the accused must be demonstrated

Could an ex officio be an abuse of process?
o Perhaps where lack of disclosure
o Perhaps where attempt to avoid the time limit set by 590 QCC (6 months to
present indictment) and extension of time refused
Barton v the Queen
 FACTS: Some charges did not get a committal, convictions of those charges were
quashed
 Where an ex officio has been presented, the court may stay or postpone the proceedings
to prevent an abuse of process
 A trial held without antecedent committal proceedings, unless justified on strong and
powerful grounds, must necessarily be considered unfair
Foley


Prosecution cannot circumvent s 590 QCC by presenting an ex officio indictment
Managing ex-officio indictments under s 23EB of JA
Indictments

Present indictment within 6 months of committal (s 590 QCC)
 The court can extend the time limit if satisfied that good cause is shown and no
miscarriage of justice is likely to result (s 590(2), (3); DPP v Cicolini)
 If the ODPP fails to comply with the relevant timeframe the accused is entitled
to be discharged from the consequences of the committal (Re Jenkin)
o Will not prevent ODPP proceeding again at a later stage
45
Particulars





sufficient information to identify and respond to the charge (s 564 QCC)
‘As a minimum requirement it is necessary that there be sufficient particularity in the
allegations to demonstrate one identifiable transaction which meets the description of
the offence charged, distinguishable from any other similar incidents suggested by the
evidence. There cannot be a trial in the absence of that degree of particularity (Rogers
per Dowsett J)
Difficulties to an accused where charges inadequately particularised (S v The Queen)
An absence of particulars will not of itself justify staying an indictment. The usual
remedy will be to seek a court direction for further particulars to be given to the accused
and, if necessary, the trial will be postponed until this has occurred (s 573 QCC)
Indictment may be amended at any time before the trial, and during the trial, as long as
the proposed amendment is not material to the merits of the case and the accused’s
defence will not suffer an injustice or prejudice as a consequence (s 572 QCC)
Fahey & Ors
 FACTS: Errors on the indictment (‘bodily harm’ rather than ‘unlawful bodily harm’).
Missing particulars were not fundamental to the charge and did not impede the
accused’s ability to answer to the charge, therefore no stay of indictment was ordered.

For Magistrates Court see ss42-43 JA


One count charged per indictment (s 567(1) QCC)
No overloading – should not include charges of a trivial nature
Ambrose
 Lawton LJ: ‘the ordinary man does not like, as he puts it, the book being thrown at
someone’
Joinder


Joinder of counts (s 567(2) QCC)
Charges for more than 1 indictable offence may be joined in the same indictment against
the same person if those charges:
o are founded on the same facts
o form part of a series of offences of the same or similar character
o form part of a series of offences committed in the prosecution of a single
purpose
Same facts
Collins
 FACTS: Collins had taken goods from a warehouse, burned the warehouse and run away.
Charged with breaking and entering, stealing and arson on the one indictment.
Series of the same or similar character
Iongi

FACTS: Raped a woman, later assaulted her and ongoing harassment
46
Single purpose
Cranston
 FACTS: Offender charged with attempted rape of a woman and the assault of another
who was trying to rescue the rape victim.

The decision to join counts is a matter for prosecution

Abuse of process? If the indictment included charges that did not fit the provision (e.g.
did not relate to the same facts/series/purpose)
Good summary of principles - JMP v R
Advantages of joinder?
o Reduces the time and cost associated with multiple trials


Danger – prejudice

Trial may be unfair if joining counts prejudices the accused (Patel; Phillips)
De Jesus
 There may be evidence on one count that, as a matter of law, is inadmissible on another
count, resulting in potential prejudice, as the jury may take the inadmissible evidence
into account.
 HC held that accused should have been tried separately on each count

Accused may apply for separate trials (s 597A/ 597B QCC)
o Essentially discretionary – court will take into account the prejudice posed to
the accused
o When indictment presented
R v KP
 Trial judge should consider whether or not, due to the evidence which would be led by
the prosecution on the various charges, the accused would suffer prejudice by a single
trial, and if that were the case, whether separate trials should be ordered.

Co-accused can be charged on one indictment if the charges arise out of the same or
substantially similar facts (s 568 QCC)
o Can apply for separate trials, but ultimately a matter of judicial discretion (s
597B QCC)
o The mere fact that evidence that is admissible against one accused may not be
admissible against another will not be a sufficient reason to order separate trials
(R v Ginger)
47
Extradition

24
Formal surrender of a person by one state to another state for the purposes of criminal
prosecution
From Interstate

Service and Execution of Process Act 1992 (Cth)(SEPA) ss 82, 83
o No provision affording magistrate the discretion to refuse an extradition order
on the grounds of unjustness or oppression. If the warrant is valid, the
legislation indicates that the order is to be made
o But, magistrate may be able to decline an order for extradition of the grounds of
abuse of process (exceptional cases)
Loveridge
 FACTS: Loveridge (L) apprehended in SA on a 24-yr-old WA warrant. In 1989 L’s
solicitor received a letter from the WA Crown Solicitor’s office indicating that the police
did not intend to extradite L, who therefore believed she was not required to return to
WA. Magistrate was entitled to refuse to make the order as there had been an abuse of
process.

Extradition is an administrative procedure
From Overseas

Extradition Act 1988 (Cth)
o Extraditable person (s 6)
 A warrant is in force for the arrest of the person for an offence against
the law of another country, or the person has been convicted of an
offence against the law of another country and a sentence is intended to
48
o
o
o
be imposed, or the outstanding part of a sentence already imposed
remains to be served
Extradition offence (s 5)
 An offence against the law of the requesting country with a maximum
penalty of 12 months imprisonment or more
Offence in Australia
No extradition objection (s 7)
 May be on the grounds that:
 The offence is a political offence
 Surrender is being sought on political, racial of religious
grounds
 On surrender, the person may be prejudiced at trial, punished
or detained on political, racial or religious grounds
 The person has already been acquitted, pardoned on punished
in the requesting country
DPP v Mokbel (Orbital & Quills Ruling No 1) [2010] VSC 331
 FACTS: SC of Greece ordered Mokbel’s (M) extradition. M applied to the European Court
of Human Rights (ECHR), claiming the extradition would violate rights afforded under
convention.. On arrival in Australia, applied to the VSC for a stay of proceedings because
there was an application being considered by the ECHR. The complaint to the ECHR was
groundless and the charges against him sufficiently serious that this application failed.
49
WEEK 5 – Pleas and Double Jeopardy
Charge Bargaining/Negotiation

Charges may be altered by prosecution at any time prior to plea (ss 48-49 JA; ss 571 572 QCC)
ODPP Guidelines:


‘Charge Negotiation’ is an agreement to plead guilty in return for some benefit from the
prosecutor, such as some charges being dropped or a lesser offence being charged
despite some evidence to support a more serious charge.
Prosecution should be approached by the defence in order to commence negotiations

GL 9(iii) and (iv): the charges must adequately and appropriately reflect the criminality
that can reasonably be proven and it is inappropriate to ‘overcharge’ to provide scope
for plea negotiations


GL 16: proceed with charges that represent the conduct the Crown can reasonably prove
Accept guilty plea if in the public interest
o ‘the public interest is in the conviction of the guilty. The most efficient
conviction is a plea of guilty. Early notice of the plea of guilty will maximise the
benefits for the victim and the community. Early negotiations are therefore
encouraged.’
GL 16(i): Negotiations encouraged if one or more of the following apply:
o The fresh charge adequately reflects the essential criminality of the conduct and
provides sufficient scope for sentencing
o The prosecution evidence is deficient in some material way
o The saving of a trial compares favourably to the likely outcome of a trial
o Sparing the victim the ordeal of a trial compares favourably with the likely
outcome of a trial
GL 16(ii): a guilty plea will be prohibited if:
o It does not adequately reflect the gravity of the provable conduct of the accused
o It would require the prosecution to distort evidence
o The accused maintains his or her innocence


Advantages






Certainty of results (guilty plea)
Reduced sentence (guilty plea)
Increased efficiency – timesaving
Reduction of costs to accused (both
financial and penal)
Reduction of costs to justice system
Spares the victim (the victim has
recently taken a much more central
role in the CJS)
Concerns







Accused under great pressure
Accused may be unrepresented
Accused may misunderstand the
agreement
Occurs in private – reduces confidence
in the system
Immune from judicial review
Less accountability
Are courts appraised of the ‘real’ facts?
50
Limits To Charge Bargaining

No judicial sentence indication
Marshall
 FACTS: Marshall’s lawyer was asking the judge for directions – client looking for
guidance as to the kind of penalty likely to get. Judge told the accused that, prima facie,
no more than 18 months to 2 years. Marshall pleads guilty, judge sentenced him to 4
years. Marshall appealed against the sentence on the basis that he should be able to
have a rehearing on the sentence (manifest excess). Held that the sentence was not
excessive, but that the judge should not have given an indication
 ‘Sentencing bargains’ (indications of a proposed sentence from the judge or magistrate)
are not appropriate and are generally not permitted

Counsel should not meet privately with the judge to discuss penalty
McQuire & Porter
 FACTS: Two accuseds pleaded guilty to a number of fraud offences (M & P). M agreed to
provide information to the prosecution about P’s involvement in exchange for the
prosecutor submitting to the sentencing judge that a five-year wholly-suspended
sentence would be appropriate. Sentence increased to 7 years on appeal by the A-G. M
not allowed to withdraw guilty plea because there had been no miscarriage of justice
(Meissner)
 Inappropriate for judge to engage with counsel in private about sentences, prior to the
hearing in open court

Agreement should be reduced to writing (GAS and SJK)
o Protective function
o Ds often appeal convictions on account of their lawyers’ incompetence –
proceedings expedited if there is a written record
Roles of participants in the justice system
GAS and SJK
 FACTS: Ds charged with murder of an elderly woman in her home. Agreed to plead
guilty to manslaughter, but received penalty much lower than expected. ODPP appealed
on the grounds that the sentence was too low. HC held ODPP should not be able to
appeal sentence because they agreed to the plea bargain, and sentencing is a matter of
judicial discretion
 Highlighted the desirability of recording agreements of ‘every substantial matter …
which may later be said to have been relevant to the decision of an accused person to
plead guilty’
 Key principles:
1. the prosecutor alone has responsibility for deciding the charges
2. the accused person alone must freely decide whether or not to plead guilty to
the charge
3. the sentencing judge alone decides the sentence to be imposed
4. while there may be an understanding between the prosecution and the defence
on the evidence that will be led or any admissions that will be made, the
understanding will not bind the judge. The conduct of counsel cannot
circumscribe the judge’s responsibility to apply the relevant law.
51

Prosecution default/renege on agreement – possibly result in a stay of proceedings
Wentworth
 FACTS: Prosecution accepted a guilty plea to 2 charges on an indictment containing
numerous charges, entered a ‘nolle prosequi’ on the remaining charges, but then
presented a further indictment charging Wentworth (W) with 2 additional offences
(misunderstanding between two different prosecutors). W successfully appealed for a
stay of the later indictment.
 The process where the ODPP accepts pleas to some offences but does not proceed on
others is in the public interest, but that process would be put at risk if the ODPP could
later rescind its decisions
Pleading Guilty

Most matters resolved via guilty plea

In the Magistrate’s Court:
o Charge(s) will be read out to the accused and they will be asked to enter a plea
(s145, 146 JA)
o An accused may choose to enter a plea during or at the end of the committal, but
is under no obligation to do so (ss 104(2)(b), 113 JA)
 Note: maybe consideration of chapter 58A QCC
o If the accused pleads guilty they will then be convicted (s 145(2) JA)

In the Higher courts:
o Accused called upon to enter plea (s 597C QCC)
o Plea options (s 598 QCC)
o Once committed for sentence (s 600 QCC)
o Entering a guilty plea mid trial (s 631A QCC)
 Plea of guilty can be entered by the accused at any time, however the
later it is entered the less helpful it is in reducing sentence (but always
helpful in saving time and resources for the CJS)
o Accused ‘stands mute’- assume plea of not guilty (s 601 QCC(

*allocutus; see s648, 649, 650 QCC
o Point where the judge asks ‘is there any reason why I should not sentence the
accused?’
o Implications for when a person can enter a plea – can change easily beforehand,
more difficult afterwards
Why Plead Guilty?

Accused may experience sense hopelessness about trying to rebut evidence and the
severity of the sentence if they were to fail and anxiety about a long and costly trial

Advantages:
o Sentence reduction (s 13 Penalties and Sentences Act 1995)
o Clear the books
52
Offering to an accused charged with several offences a deal to plead
guilty to one offence, and at the same time plead to outstanding similar,
but unrelated charges, enables a single sentencing hearing for a number
of offences.
Reduce culpability via charge negotiation (less serious charge)
Assist justice process (Cameron)
‘…to avoid worry, inconvenience or expense; to avoid publicity; to protect his
family or friends; or in the hope of obtaining a more lenient sentence…’ (Dawson
J in Meissner v R)

o
o
o

Concerns:
o Pressure to plead
 Can appeal against a conviction on the basis that the plea was not
entered freely and voluntarily, but because of pressure from lawyers
Allison
 FACTS: Allison (A) appealed his conviction for an offence of assault occasioning bodily
harm on the basis that he was not given timely information about incentive to plead
guilty. He had maintained his innocence at all times. Became aware while the jury was
considering its verdict that P had told the D counsel, before the trial began, that if A
pleaded guilty, P would not press for a custodial sentence. However, evidence that D
counsel had discussed the offer and told A that it could not guarantee that the judge
would not impose prison time. The appeal was dismissed.
 An accused must plead guilty understanding and intending that they are admitting guilt
of the offence
 Imperative that defence counsel has written instructions indicating that the accused
wishes to plead guilty and understands that a plea constitutes a full admission of guilt.
Gagaloff
 FACTS: Lawyer represented G, charged with stealing. CCTV footage of G stealing.
Lawyer recorded advice given to G to plead guilty.
 Court held plea given freely and voluntarily, not inappropriate for advice to be given
‘strongly’
Guilty Plea and Sentencing
Penalties and Sentencing Act 1992
s 13 Guilty plea to be taken into account
(1) In imposing a sentence on an offender who has pleaded guilty to an offence, a court—
(a) must take the guilty plea into account; and
(b) may reduce the sentence that it would have imposed had the offender not pleaded guilty.
(2) A reduction under subsection (1)(b) may be made having regard to the time at which the
offender—
(a) pleaded guilty; or
(b) informed the relevant law enforcement agency of his or her intention to plead guilty.
(3) When imposing the sentence, the court must state in open court that it took account of the
guilty plea in determining the sentence imposed.
(4) A court that does not, under subsection (2), reduce the sentence imposed on an offender who
pleaded guilty must state in open court—
(a) that fact; and
(b) its reasons for not reducing the sentence.
53
(5) A sentence is not invalid merely because of the failure of the court to make the statement
mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an
appeal against sentence is made.
Discount for Guilty Plea

Must be taken into account (s 13 PSA)

Why sentence reduction?
o shows remorse
o facilitates justice process
Cameron
 FACTS: C arrested and charged for drug possession (ecstasy), but when analysed it was
found to be a different drug (speed). D counsel submitted that C should have been
treated as having pleaded guilty at the earliest possible time. C appealed sentence on the
ground that a greater reduction should have been made. Appeal to the HC successful – C
could not be expected to plead before the initial charge was amended to reflect the
correct drug
 Accused easier to rehabilitate on account of being more remorseful (theory)
 ‘Issue is to what extent is the plea indicative of remorse, acceptance of responsibility and
willingness to facilitate the course of justice’

May reduce sentence (s 13)(not necessarily, consider seriousness of the offence)
Baker & Bates
 FACTS: Baker got boyfriend (Bates) to go after another man, kicked him to death.
Charged with murder, reduced to manslaughter following negotiation, pleaded guilty.
No reduction in sentence because the crime was so serious.

BAY


Stuck


Timing relevant
FACTS: BAY was a stepfather, confessed to sexually assaulting stepdaughter. Attempted
to keep record of interview out of evidence. Pleaded guilty once it became clear that the
record of interview would not be excluded
‘Early’ enough to support some reduction, although not indicative of remorse
‘Timely’ but not ‘early’
The earlier in the process, the greater the reduction to the sentence
When can the court accept a guilty plea?

‘A court will act on a plea of guilty when it is entered in open court by a person who is of
full-age and apparently of sound mind and understanding, provided the plea is entered
in exercise of a free choice in the interests of the person entering the plea. There is no
miscarriage of justice if a court does act on such a plea, even if the person entering it is
not in truth guilty of the offence.’ (Meissner v R)
54
Meissner v R
 FACTS: Meissner owned a yacht. Engaged a prostitute to entertain politicians on the
boat and to take photos. Prostitute charged, intended to plead not guilty. Meissner
persuaded her to plead guilty (deposited $15000 in bank account). Meissner charged
with perverting the course of justice.
Can the court set aside a conviction once a guilty plea entered and allocutus
stated?



The entry of a plea constitutes admission of the elements of the offence.
Usually a guilty plea can be withdrawn by the accused with the court’s leave anytime
before sentence
May set aside a conviction (or refuse to accept plea) where the accused pleaded guilty
and there would be a miscarriage of justice because the accused (Dawson J in Meissner v
R):
1. does not understand the nature of the charge
2. did not intend to admit guilt in relation to charge or
3. upon the facts admitted by the plea could not in law be guilty of an offence
4. was induced by intimidation, fear or fraud
Maxwell v R
 FACTS: Pleaded guilty to manslaughter. Problems reconciling medical evidence to guilty
plea to manslaughter (diminished responsibility). Possible to reject the plea in the
circumstances, would be an abuse of process to deal with a plea that is improperly
entered.
When can a guilty plea be withdrawn by the accused?
R v Nerbas
1. The guilty plea does not constitute conviction
2. The administration of the allocutus is the court’s acceptance that a plea has been
established.
3. A plea may, with leave of court, be withdrawn after the allocutus has been
administered and before sentencing
4. In order to obtain leave to withdraw applicant must show a miscarriage would occur
if leave not granted
R v Verrall ( per Homes J)
 The allocutus is the ‘end of the line’, beyond that point there must be leave of the court
granted to withdraw the plea
Double Jeopardy
4 rules:
1.
2.
A person cannot be tried for an offence of which they have earlier been convicted or
acquitted — that is, ‘autrefois convict’ or ‘autrefois acquit’ (s 17 QCC and common law)
Where a judge excludes confessional evidence at a trial, that evidence cannot be relied
on at a later trial for a different offence (common law)
55
3.
4.
An earlier acquittal cannot be undermined or controverted in later proceedings, even for
a different offence (common law)
A person cannot be punished twice for the same criminal act (s16 QCC and common law)
1. s 17 QCC and Alternative Verdicts



Limited to: already convicted/acquitted (i.e. matter completed) for same offence or
alternative verdict of that offence - cannot be tried again.
What is an alternative verdict? See ss 575-589 QCC.
o s 575 – aggravated offences
o s 576 – murder/manslaughter
o s 578 – range of alternative sexual offences
o s 579 – specific intent offences
Judicial directions on alternative verdicts:
o ‘…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’ (Rehavi; Willersdorf)
o The judge is obliged to raise any issue in regard to an alternative verdict where
it fairly arises
Willersdorf
 A judge does not always have to direct on an alternative verdict – it depends on the
evidence in the particular case and the test is whether or not the alternative verdict
arises fairly for consideration on the whole of the evidence.
Rehavi
 FACTS: Accused (A) charged with GBH with intention (s 317), an offence more serious
than simple GBH (s 320). s 317 is an alternative to s 320. The judge did not leave simply
GBH to the jury and A was convicted of the more serious offence A successfully appealed
on the basis that the judge should have left s 320 to the jury. Held that a jury should be
permitted to return any verdict available on the evidence that was consistent with
justice to the accused
Common law – already acquitted/convicted


Viers

May be appropriate to grant a permanent stay of proceedings where continuing the
prosecution would be oppressive or constitute an abuse of process
May occur where the prosecution on a later occasion concerns an offence which is
substantially the same as an offence dealt with on an earlier occasion, or which deals
with substantially the same facts
FACTS: Charged under the then Health Act for possession of cannabis (‘a prohibited
plant’). Pleaded guilty to the charge in MC, immediately after leaving courtroom was
arrested for possession of a ‘dangerous drug’. The indictment stayed as an abuse of
process because the police had never indicated that they would proceed with the further
charge.
Waltons v Gardiner
56



FACTS: Two doctors prosecuted, prosecution stayed due to problems with evidence.
Later, as a result of a Royal Commission, doctors charged again. HC agreed form of
double jeopardy, CL protects even where there has been a stay of proceedings
Features of oppression and unfairness in the case that the principles against double
jeopardy were designed to protect
Magistrates courts matters see s 700 QCC
2. Where a judge excludes confessional evidence at trial, that evidence cannot
be relied on at a later trial for a different offence (abuse of process)
Rogers
 FACTS: Rogers had been interviewed by police, ultimately charged for four robberies,
managed to have record of interview excluded in relation to robberies. Later charged for
other matters, Prosecution attempted to admit previously excluded evidence.
Could not be readmitted, had already been excluded by a court. Tendering the material
was a direct challenge to the final determination made by the earlier court, a challenge
which invited ‘the scandal of conflicting decisions’ and ‘jeopardised public confidence in
the administration of justice’.
3. An earlier acquittal cannot be undermined or controverted in later
proceedings, even for a different offence
Carroll
 FACTS: Carroll charged with a murder of a toddler, whom he had sexually assaulted and
disposed of in a toilet block. Found guilty by a jury, but conviction quashed on appeal.
Gave an alibi in the earlier trial, later discovered to be false. New DNA technology
matched bite marks on victim’s leg to Carroll’s dental records. Prosecution charged
Carroll with perjury. HC found it would be a breach of the double jeopardy principle to
allow the new charge, undermined a key part of the original case.
 Particular attention drawn to the fundamental differences in power between the state
and an individual accused of a crime, and the serious consequences for an individual
who is convicted
 ‘An exception for fresh evidence, whether substantial or otherwise, removes an
encouragement to thorough investigation in the first instance’
4. A person cannot be punished twice for the same criminal act (s 16 qcc and cl)
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
 Accused (A) convicted of DUI and received sentence comprised of a fine and licence
disqualification. Later charged with dangerous driving causing death while being
adversely affected by alcohol – A pleaded guilty and was sentenced to 2 years
57
imprisonment and 2.5 years disqualification. Both offences arose from the same
circumstances. A appealed sentence on the grounds that he was being punished twice
for the same conduct. This was dismissed, the first act constituting the first offence was
‘drink-driving’, the second ‘dangerous driving’.
Popa v Austin
 FACTS: 12 years imprisonment for heroin trafficking. Part of the evidence was $8000
stashed at house. Later charged with possessing stolen property ($8000).
 Can be punished twice for separate offences arising from the same circumstances, when
the offences are applied to different aspects of the facts
R v NG
Pearce v R
 ‘…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…’ ([86])
 Two offences each required proof of a different essential fact, therefore no double
prosecution
Longbottom (four-step approach)
1. consider the offences of which the offender has been convicted, and dissect out from
them any conduct which may be common to more than one of the offences
2. 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.
3. Consider questions of cumulation and concurrency
4. Consider questions of totality
Double Jeopardy Exceptions Since 2007



Introduced 25/10/2007, but with no retrospective application
678B - retrial for murder on the basis of fresh and compelling evidence…must be just to
proceed (re: just, see s 678F)
678C - retrial for 25 year offence on the basis of tainted acquittal.
o 25 year offence = 25 yrs or moreo Offences include serious riot, rape, intended GBH, robbery, serious drug
offences, murder (s 678)
678D: What is ‘fresh and compelling’ evidence?


ss(2) fresh:
o Not adduced at original proceedings
o Could not have been adduced with exercise of reasonable diligence.
o E.g. new scientific/technological developments; witnesses recently prepared to
give evidence
ss(3) compelling:
o Reliable
o Substantial
o Highly probative
58

RvD

Not precluded if inadmissible in earlier proceedings
FACTS: Man murdered woman, acquitted. After acquittal confessed to many people.
Confessions were considered fresh, reliable and compelling evidence
RvG&B
 FACTS: Third party convicted, G & B acquitted. Third party decides to inform on G & B.
Court found information given unreliable and uncompelling (vindictive)
Wendell Baker
 FACTS: Acquitted in 2002 of rape, woman subsequently died. At first trial DNA ruled
inadmissible. Subsequent developments saw DNA admissible
What is a tainted acquittal?
 Circumstances where the accused person or another person has been convicted of an
administration of justice offence in relation to the original proceedings where the
accused was acquitted, and ‘it is more likely than not, but for the commission of the
administration of justice offence, the accused person would have been convicted’ (s 678E
QCC)
 administration of justice offence: see ch 16 QCC (e.g. perjury, corrupting a witness)
Exceptions and protections (678F)

Considerations regarding the interests of justice:
o The retrial is likely to be a fair trial
o The court must regard time between the alleged commission of the offence and
the trial
o Reasonable diligence of investigators/expedition in relation to:
 Initial investigation and prosecution and application for retrial


Retrospectivity?: see s678A(1)
Gaps?...see Hamer (Course profile resources).
59
WEEK 6 – Trial Process
Disclosure
Prosecution Disclosure

Pre-trial directions and rulings (s 590AA QCC)
o s 83A Justices Act – can seek disclosure obligation direction at a direction
hearing (ss 83A, 83B JA).
o Various applications can be made:
 Disclosure application
 Defence may request separate trials if facing joint indictment
 Apply for no-jury order
 Application made for expert evidence
o Would occur after indictment presented to the court, but before the trial
commences

Non-compliance with disclosure direction can attract penalties (s 590AAA QCC)
o orders, adjournments, charged with contempt offence
The duty of prosecutorial disclosure in Queensland



Prosecution has an ongoing duty to give full and early disclosure of all the evidence the
prosecution proposes to rely upon and all things that are in the prosecution’s possession
to the accused and their lawyer (s 590AB QCC)
‘Possession of the prosecution’ includes:
o anything in the possession of the arresting officer or someone appearing for the
prosecution (s 590AE(2))
o anything in the possession of the SPP where the ODPP is conducting the
prosecution
o anything in the possession of the police service where the police are prosecuting
the matter (s 590AE(3)(a))
o anything that the arresting officer or person appearing for the prosecution is
aware is in existence and would be locatable without unreasonable effort (s
590AE(3)(b))
No particular consequences if non-disclosure comes to light after accused is convicted (s
590AC QCC)
o Failure to disclose by the prosecution does not effect the validity of proceeding
o May, however, lead to a successful appeal on the basis of a resulting miscarriage
of justice and unfair trial (Grey v the Queen)
R v OL
 FACTS: Concerned medical evidence pertaining to a sexual assault against a young
person. Prosecution had a medical report about the victim which was not disclosed to
the defence. Defence were not well-prepared to cross examine medical expert
 Held that non-compliance with disclosure requirements does not necessarily lend itself
to a miscarriage/retrial
 Ask: did the failure to disclose lead to the loss of a real chance of acquittal? If yes, may be
grounds for appeal.
60
R v HAU
 FACTS: Victim impact statement (VIS)(tool usually relevant to sentencing) contained
different information to testimony. Appealed on the grounds that failure to disclose VIS
denied accused a real ground of acquittal. Conviction was quashed.
Mallard v R
 FACTS: Accused convicted of murder in 1994, always maintained innocence. Issues with
how police conducted record of interview. Police conducted analysis of evidence, the
results of which cast doubt on Mallard’s guilt, but did not disclose results to the accused.
 ‘where the material evidence may cast a significant light on the credibility or reliability
of material prosecution witnesses or the acceptability and truthfulness of exculpatory
evidence by or for the accused and where that material is in the possession of or
available to the prosecution, then such evidence must be provided to the defence’ (Kirby
J).
 Emphasised the importance of prosecution disclosure as a fundamental aspect of
ensuring a fair trial
 May be unfair if material suppressed is consistent with innocence
 ‘Fruits of the investigation … are not the property of the Crown for use in securing a
conviction, but the property of the public to be used to ensure justice is done’ (quoting R
v Stinchcombe)
 Definitions (s 590AD QCC):
o A ‘relevant proceeding’ – committal,‘prescribed summary trial’ or trial on
indictment.
o Prescribed summary trial includes indictable offences that must be heard
summarily, election made under s552A or when accused elects for jury trial
s552B.
o ‘Arresting officer’ includes PO involved in initial arrest and investigation
 evidence collected early by police must also be disclosed

Two categories of prosecution disclosure: (1) mandatory information to be disclosed;
and (2) must be disclosed on request from the accused.
Must always disclose

Includes (s 590AH QCC):
o Bench charge sheet
o Accused criminal history
o Statement made by an accused
o written notice of any affected child witness (including reasons why they are an
affected child witness)
o notice of intention to rely upon certain types of hearsay evidence (i.e. evidence
adduced under s 93B Evidence Act 1977 (Qld))
o Witness statements
o Forensic test reports
Must disclose on request

Includes (s590AJ QCC):
61
o
o
o
o
o


certain particulars of sexual offences or offences of violence about which an
‘affected child witness’ is to testify
Particulars if a proposed witness is an “affected child”
witness criminal history (may be relevant, for example, if witness convicted of
fraud, indicates dishonesty)
Material adverse to a witnesses reliability/credibility/competence
anything in possession of the prosecution, but that the prosecution does not
intend to rely upon.
No requirement that disclosed material be relevant to prosecution case
Generally defence will always request – have a standard requesting letter
Limits on prosecution disclosure

The prosecution is not required to disclose (see QCC, ss 590 AN-AQ):
o material already disclosed
o ‘sensitive evidence’
 anything that contains or displays an obscene or indecent image of a
person, or anything which would interfere with that person’s privary if
it was disclosed without their consent (s 590AF)
 Prosecution decides whether or not material is ‘sensitive evidence’ (s
290AO(1)
 Accused must be given written notice describing the evidence, and the
defence should be able to organise a time to view the material
(s590AO(2)-(8)).
o ‘s 93A Statements’ (s 590AOA)
 Sexual offence victim statements
 Prosecution must give the accused written notice describing the
statement (s 590AOA(1), (2))
 If accused is legally represented, accused’s lawyer can be given a copy
of the statement on conditions including that the accused not be given
access to it (s 590AOA(3))
 If accused not legally represented, an ‘appropriate person’ (includes the
accused) may be able to view it (s 590AOA(6))
o Witness contact details (s 590AP)
 Exception for offences where these details are materially relevant (e.g.
stalking, victim’s address)
o material contrary to public interest to disclose (unusual)(s 590AQ)
 E.g. may prejudice national security or ongoing investigations

Waiving the entitlement/requirement
o Accused can waive but must be in writing (s 590AT)
o Court can waive if it has ‘good reason’ to and there will be no resulting
miscarriage of justice (s 590AU)

When mandatory disclosure must be made (QCC s 590AI)
o Defence should have time to respond to evidence
o disclosure must be made to the accused at least 14 days prior to the date for
hearing in Magistrates Court (committal or summary trial)
o for trial on indictment, no more than 28 days after the presentation of the
indictment
62

Requested disclosure must be made as soon as reasonably practicable after request is
made (QCC s 590AK)

An on-going obligation (QCC 590AL)
o Does not end when accused person convicted and in custody – new evidence
may lead to a pardon (exculpatory)
o duty applies to new and relevant evidence that becomes available to the
prosecution even after conviction
o post-conviction disclosure obligation relates to reliable evidence that may cause
a jury to entertain a reasonable doubt about the accused’s guilt (s 590AD)
o Extends throughout the life of the accused, only ends with death
o Prosecution must disclose as soon as reasonably practicable after the evidence
comes into their possession (s 590AL(1), (2))
Defence Disclosure

Rationale: this evidence is difficult to rebut by prosecution without adequate time for
preparation
o time and cost savings – situations relate to where the prosecution would need to
call extra witnesses to rebut the accused’s claim

Defence must give Prosecution notice of intended alibi evidence (s 590A QCC)
o An alibi is evidence that demonstrates that the accused was not at the place of
the offence at the relevant time (s 590A(7))
o Where the accused is to be tried on indictment and wants to rely on an alibi,
they must provide particulars of the alibi to the prosecution within 14 days of
their committal to trial (s 590A)
o Non-compliance may result in the accused not being able to call any evidence in
support of an alibi (s 590A(1), (2))(rarely used in practice)
o More likely that leave will be obtained from the judge to call the evidence at trial
– evidence can be presented, but late notice will damage credibility
R v Erasmus
 FACTS: Accused (E) charged with murder of de facto spouse. E’s case at trial was that he
had nothing to do with the death because he was with a friend (F) at the time. When
interviewed by police E suggested they get a statement from F, but F refused to speak
and died before E’s trial. E was aware of his obligation to give notice of alibi evidence.
During deliberation, jury asked the judge whether it was possible to confirm that E was
with F by evidence from F’s wife (W). E had referred to W’s presence at various times
when he claimed he was with F. The judge indicated that it was not possible to confirm
E’s alibi through W because:
o (a) no notice of alibi had been given in relation to W
o (b) no application for leave to call alibi evidence from her had been made, and
o (c) no application had been made for an adjournment to ascertain if she was
available to give evidence.
R v Kerma
 FACTS: K part of a group growing cannabis, had a campsite near the crop. Prosecution
case was that K’s personal belongings were at the campsite. K argued he was not there.
63
K’s wife gave alibi evidence late in the trial. Judge directed the jury that the wife was not
credible.

The accused is required to give the prosecution advance notice of an intention to adduce
expert evidence (s 590B QCC)
o Especially important where accused relies on medical evidence to support a
defence (e.g. diminished responsibility)
o Accused must, as soon as practicable, provide notice to the prosecution of the
expert’s name and of any finding or opinion of the expert which will be led at
trial
o Must provide a copy of the expert’s report before the trial begins
R v de Voss
 FACTS: Appellant’s (dV) murder conviction was set aside and substituted by a conviction
for manslaughter on the basis that the jury’s murder verdict was unsafe and
unsatisfactory. No dispute that dV killed the victim, but the defence case at trial was that
he was suffering from diminished responsibility. At the trial 2 expert psychiatrists gave
expert opinion evidence that supported this defence, and was in turn supported by a
great deal of other evidence. The appeal court held that in light of this no rational jury
could have brought back a murder verdict. The prosecution had not received the two
reports until the trial was underway.
 Decided before the provision regarding expert evidence was enacted, the state of the law
at the time was considered ‘unsatisfactory’

Certain hearsay evidence permitted under s 93B Evidence Act 1977 (Qld) (s 590C QCC)
Hearings in the Magistrates Court


Justices Act
Magistrate decides all questions of fact and law

Commencing proceedings
o Notice to appear, arrest and charge, or a complaint and summons
o Bench charge sheet and QP9 should be presented to the court and the accused
o All proceedings generally commenced by a complaint in writing (s 42 JA)

Directions hearing in the MC (s 83A JA)
o Allow magistrates to make directions about certain matters (such as disclosure
or the provision of expert reports) before the hearing proper
o A direction is binding on the parties (s 83A(6))
Brown v Owen [2005] QDC 40
 FACTS: D was charged with DC offences and summary offences in relation to weapons. D
wanted to wait until the DC matters were finished to deal with the summary matters.
Sought disclosure from the prosecution of particulars about summary offences, but
never received them. Magistrate dismissed the complaints against D because of the
prosecution’s non-compliance. On appeal held that the magistrate should not have
dismissed the matter, but rather should have stayed it pending compliance or heard
argument about whether continuation of proceedings in the circumstances would have
been an abuse of process.
64

Consider issues of joinder/particulars/previous convictions:
o Complaints should be for 1 matter only, unless rules relating to joinder apply (s
43 JA)
o Complaint must contain such particulars as sufficient in an indictment (s 46)
o If defendant has been previously convicted of an offence, the alleged previous
conviction must be stated in a notice served with the complaint (s 47)
Washband v Queensland Police Service
 Emphasised that prior convictions should be disclosed to the defendant





Magistrate can make orders to amend the charges on the complaint if necessary in the
interests of justice (ss 48-49 JA)
After the charge is read out the defendant is asked how they plead (ss 144, 145).
If the defendant pleads guilty:
o the Magistrate convicts and, if the accused is present in court, hears
submissions on the appropriate sentence (s 145).
If the defendant pleads not guilty (s146):
o same process as higher courts (s 148)
o magistrate will adjourn the matter for a summary hearing/trial where evidence
will be heard and the case decided
o Prosecution opens the case by first providing an outline of the evidence, and
then calling its first witness
o The first witness gives their evidence-in-chief; the accused may cross-examine;
prosecution may re-examine (procedure applied to all witnesses)
o At the conclusion of the prosecution’s evidence, the accused may make a ‘no
case submission’ to the court, meaning that the prosecution has failed to
established through its evidence that a reasonable arbiter of fact could
determine, beyond reasonable doubt, that the charge has been made out against
the accused
o If magistrate decides there is no case to answer the matter will be dismissed (s
149 JA)
o If the no case submission fails the accused is asked whether they wish to give or
call evidence (s 618 QCC)
 no obligation - right to silence (Dyers v The Queen))
o If accused chooses to give evidence it is presented following the same procedure
as for the prosecution
o Final addresses:
 Prosecution summarises its case and makes submissions on law to the
court, followed by defence’s submissions and closing arguments
 If accused called/gave evidence, the defence gives its closing address
first (s 619 QCC), otherwise defence goes last
o After all the evidence heard, Magistrate decides whether or not charge has been
proved to the requisite standard of proof
 If not, the case is dismissed (s 149 JA)
 If the charge is made out, the magistrate convicts and proceeds to hear
submissions on appropriate sentence (ss 150 – 152 JA)
Magistrate may order costs (ss 158 and158A)
65
Trials in the District and Supreme Court



Proceedings are commenced:
o indictment presented following committal
o ex-officio indictment presented
Directions / pre-trial rulings (s 590AA)
o e.g. Stay of the indictment, application for separate trials (in cases of joint
accused or joined offences), disclosure, issues questions of law, admissibility of
confessional or expert evidence, application for trial by a judge without a jury
etc.
Trial formally commences with arraignment on the indictment (s 597C)
o charge is read out in front of the court and the accused asked to respond with
their plea
o Guilty plea – proceed to sentencing, prosecution and defence make submissions
as to appropriate penalty
o Not guilty plea – trial by jury (s 604(1) QCC)(or not? s 614 QCC application)
Judge Alone Trials

Developed since 2008

s 614 QCC
o prosecution or defence may make an application to the court that the accused be
tried by a judge sitting alone (before the trial begins or identity of judge is
known, pre-trial direction hearing - s 590AA)
o Must have special reasons to justify judge alone trial – do not want accused to be
perceived as having an unfair advantage
R v Prisk and Harris
 FACTS: Accused knew judge, needed to present special reasons for judge-alone trial.
 The case needs to construed in its context
 Special reasons are not confined by strict limits or rules
 Out of the ordinary, distinct, particular, some factor over and above the interests of
justice
 Do not need to be extremely unusual, exceptional or uncommon

s 615 QCC
o Defendant must consent
 Losing right to be tried ‘by their peers’
o No jury order will only be made when it is ‘in the interests of justice’ to do so.
May be justified in the following in light of the following circumstances:
 complexity and length of trial may be unreasonably burdensome on a jury
(s 615(4); R v SAA
 real possibility of acts constitution retaliation against a juror being
committed (s 615(4))
 Pre-trial publicity
o Court may refuse the application if ‘it considers the trial will involve a factual
issue that requires the application of objective community standards including,
for example, an issue of reasonableness, negligence, indecency, obscenity or
dangerousness’ (s 615(5)).
66
o
No jury order cannot be made in relation to some of several charges or
defendants; must be made to all offences and defendants (s 615A)
R v Clough (2008) QSC 307
 Judicial discretion to order a judge alone trial is unfettered, having regard to the
particular circumstances of the case (per Mackenzie J)
 Views of the defendant just one factor to consider
 Special reasons listed in s 615 not exhaustive
R v Ferguson [2008] QDC 158
 FACTS: Ferguson (F) was ordered to stand trial on a charge of indecent treatment of a
child under 16. Original DC judge threw case out due to pre-trial publicity (impossible to
receive fair trial). Prosecution appealed to have stay overturned and succeeded. F was
able to have judge alone trial (provision passed during the stay of proceedings),
acquitted.
 Balance desirability of juries in matters requiring ‘reasonable/ordinary person’
assessments against desirability of judicial independence/impartiality
Juries


Jury Act 1995 (Qld)
Jury’s role: to decide questions of fact, based on the evidence and ultimately to decide
whether or not the accused is, beyond reasonable doubt, guilty (ss 50 – 51).
Kingswell v R
 Benefits of having a jury:
o Juries are the CL bulwark against the tyranny of arbitrary punishment (Deane J)
o Provides protection of citizen against those who exercise authority against them
o Jury presence ensure plain language is used in court, parties are polite and civil
Arguments for juries:







able to reach just, objective and fair
verdicts that align with greater
community’s evolving standards and
values
offenders more likely to feel that
justice done if judged by their peers
encapsulates democratic ideals
group decision-making processes
overcome individual frailties
Arguments against juries:
 often not representative of wider
community
 trials often result in hung juries
(where issues are complex)
 secrecy and unpredictability of
deliberations
 costly and time consuming
 can be influenced by external factors
such as pre-trial publicity and
inadmissible evidence,
notwithstanding judicial warnings and
directions.
Twelve people plus reserves (ss 33, 34) ultimately selected from a panel of prospective
jurors randomly selected from the electoral role.
Jurors must disclose information relevant to their suitability (s3 5)
Before the selection process begins, the accused is informed of their right to ‘challenge’ a
potential juror (s 39)
67

Limits to who can serve – e.g. not lawyer actually engaged in legal work, corrections
officers, MPs, people over 70, people convicted of indictable offence (s 4)
o
Broad exclusions – will the jury be truly representative?

Criteria to exclude (s 21)
o
Prejudicial to the accused
o
Member of a class listed in s 4

Both prosecution and defence have the right to make 8 pre-emptory challenges (s 42)
o
Do not need reasons for challenges
o
(See Horan and Goodman-Delahunty ‘Challenging the peremptory challenge
system in Australia’ (2010) 34 Crim LJ 167)
o
Benefit – defendant has some influence over the jury, feels more accountable
for the final result

Challenge for cause may be made on the basis that an individual juror is not qualified or
not impartial (s 43)
o
Reason must be given
o
questions will be put to the juror in question

Challenge to whole panel (s40)
o
Administrative error (McCosker)

Judicial discretion to discharge (s46)

Special challenges (s 47)
o
judge may allow jurors to be questioned about what they know about the case
o
requires ‘special reasons’
o
An important provision since Ferguson, ascertains impact of pre-trial publicity

Discharge the whole jury (s 48)
R v Stuart
 FACTS: Only allowed to cross-examine one juror. On appeal, held that the trial judge had
exercised their discretion correctly and had taken appropriate steps in warning and
directing the jury about pre-trial publicity. Defence failed to present sufficient factual
foundation to justify cross-examining prospective jurors.
R v D’Arcy
 FACTS: Accused made unsuccessful application to challenge the entire jury (s 47),
‘special reasons’ had not been established and Douglas J considered the normal process
of informing a jury about their obligation to cast aside any views outside the courtroom
and only act on the evidence was sufficient.
 ‘A sufficiently exceptional case is not made out simply by pointing to adverse comments
made in the media and suggesting that such comments have a general tendency to lead
jurors to develop prejudicial feelings against an accused … to go only so far foes not
establish a risk that individual jurors may not be ‘impartial’ in the sense that they may
actually be biased against the accused, or unable or unwilling to comply with the
directions of the trial judge to ignore prejudicial comments in the media about him.’
68
R v Patel (No 4) [2013] QSC 62, [16] and [20] (per Fryberg J)
 ‘s 47 of the Jury Act seems first to have come before the Court of Appeal in the first
D’Arcy case. At first instance the accused had formulated four specific leading questions
for the jury for which he sought authorisation. The questions referred specifically to the
issues which were the subject of substantial pre-trial publicity. None of them related
directly to matters in issue at the trial. The primary judge concluded that raising these
matters before the jury would only serve to remind them of the criticisms. Referring to
that fact and to the irrelevance of the pre-trial publicity, the Court of Appeal held that the
discretion under s 47 had not miscarried.’
 ‘prejudicial pre-trial publicity may, without more, amount to a special reason for
allowing an application under the section … s 47 does not classify the ground for the
application any more precisely than is connoted by the words ‘special reasons’. There is
no explicit requirement to show that the prejudicial publicity produced, was likely to
produce, or might have produced partiality among the jurors.’
 s 47 confers a stand-alone right on an accused that is heavily subject to trial judge
discretion
 prejudicial pre-trial publicity may without more justify an order under s 47
 considerations bearing upon the exercise of discretion include:
o nature and quantity of the publicity
o time which has elapsed since it occurred
o the extent to which it might be seen by jurors as relevant to the trial
o the extent to which evidence will be given at the trial to like effect as the
publicity
o the impact which judicial warnings may have in countering any possible
prejudice
 any procedure adopted pursuant to s 47 should avoid an unduly lengthy or vexatious
process of questioning
Jury Irregularity


Juries told not to research case/accused (ss 50 and 69A) – if they do, may result in an
‘irregularity’ which, if material, may form grounds for appeal
Is it a material irregularity, so as to lead to quashing conviction/discharging jury?
o
Was it relevant to issues before the jury?
o
Was it prejudicial, and to what extent?
o
Did it influence the verdict?
o
How strong was the evidence against the accused?
o
Was there an unacceptable appearance of unfairness?
R v Brown
 FACTS: Jury had researched difference between indictable and summary offences. The
Court held that the information obtained by the Juror was not relevant to the issues to be
decided upon in the case, thus a material irregularity had not been established as such a
miscarriage of justice had not occurred.
 not every irregularity can constitute a miscarriage of justice, a miscarriage will only
occur if the irregularity is material depriving the accused of a fair trial
Webb & Hay v R
 FACTS: Juror took a bunch of flowers to court and asked that they be passed to the
victim’s mother. Appellant argued that jury should have been dismissed. Appeal
dismissed, Court concluded that a fair-minded and informed member of the public would
69

not have a reasonable apprehension or suspicion that the jury did not discharge its task
impartially. Alone, the individual juror’s action would have that effect, but when taken
with the individual’s personality, explanation for her conduct and the judge’s directions
to the jury at the end of the trial, the effect was dispelled.
Ask: Would a fair-minded and informed observer have a reasonable apprehension of a
lack of impartiality on the part of the juror?
Tichowitsch
 FACTS: Juror sent a note to a judge informing them that their daughter was a victim of
sexual assault. No material irregularity, because there is no general rule that friends and
family of crime victims cannot be jurors.
Edwards & Ors
 FACTS: Juror went drinking, had to spend the night in a police cell
R v McCosker
 Considered s 40
 FACTS: Small country town, accused knew one of the jurors but did not object to original
empanelment. Appealed conviction, but court held accused had waived his right to
challenge by not objecting at the initial trial.
R v Metius
 FACTS: Juror felt threatened by other juror. Accused appealed on the grounds of jury
irregularity, but was unsuccessful.

See Boniface, ‘Juror Misconduct, Secret Jury Business and the Exclusionary Rule’ (2008)
32 Crim LJ 18

Jury may request views (of relevant scenes) (s 52)
Myles and Myles
 FACTS: Jurors researched ‘scenes of the crime’. Court emphasised that organised views
are the only appropriate way for jurors to view the scenes of the crime, but here the
irregularity was not material
Verdicts


Usually must be a unanimous verdict (s 59)
BUT in certain circumstances a majority verdict permissible (11 out of 12)(s 59A)
o
Judge must be satisfied that after the ‘prescribed period’ for deliberation the
jury is unlikely to reach a unanimous verdict (after 8 hours not including
breaks, or such time that the judge considers reasonable in light of the
complexity of the case)
R v McClintock
 FACTS: After the expiration of the 8 hours, the trial judge asked the jury to continue
deliberations in order to reach a majority verdict. Very shortly afterwards the jury
reached their verdict. On appeal, McClintock (M) argued that the trial judge had not
given appropriate consideration to allowing a majority verdict. Court of Appeal
dismissed this argument.
70




Trial judge’s assessment that a unanimous verdict would not be reached if the jury were
given more time is vindicated by the rapidity with which the jury reaches a majority
verdict
‘Majority verdict may not be taken unless there is sufficient evidence of the unlikelihood
of a unanimous verdict’, this can be ascertained by:
o questioning the jury about the likelihood of a unanimous verdict
o issuing a Black direction
Ideally ‘black direction’ issued before majority verdict allowed
A ‘Black direction’ is given when the jury indicate that they are unable to reach a verdict.
It encourages the jury to reconsider their points of difference and uses terms that make
it clear that juries can be discharged if a verdict is unable to be reached (Black v The
Queen)
R v Royal
 No concern about jurors taking only 4 minutes to form majority verdict

If jury cannot come to a unanimous verdict (‘hung’) they will be discharged (s 60)
o
But only after a ‘Black Direction’ (Black v the Queen)
o
Supreme Court Benchbook #52

Contemporaneous ‘black direction’ and majority verdict direction can be given at the
same time (R v Millar (No 2))
Other Aspects of Higher Court Trials

Prosecution opens and calls evidence first

Voir dires
o
Jury dismissed while counsel and judge work out whether particular evidence
can go before the jury (is admissible)

‘no case submission’
o
After all prosecution evidence before the court, defence submits that they have
no case to answer
o
If successful, jury directed to acquit (acquittal desirable so accused protected
by double jeopardy principles)
o
Judge will only direct an acquittal where there is a defect in the evidence such
that a verdict of guilty cannot be sustained (Doney v the Queen)
o
If fails, accused can elect whether or not to call evidence (s 617 QCC)
Antoun

Ask: Is there sufficient evidence upon which a jury properly directed could convict?
R v James, Tappin and Thomas

FACTS: Medical evidence inconclusive about cause of death. Successful no case
submission

Supreme Court Benchbook #14
71

Once the prosecution has finished calling its evidence, accused is asked whether they will
adduce evidence in their defence (s 618 QCC)
Speeches by counsel (s 619 QCC)
o
Closing addresses: defence last unless adduces evidence and if so, prosecution
last
Judges sums up (s 620 QCC) (Taiters)


Nolle Prosequi
 Means ‘unwilling to proceed’ – prosecution elects not to proceed on a particular count in
the indictment or the entire indictment (s 563 QCC)
 Prosecution effectively withdraws charge from circulation, brings the charge to an end
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.




Entered by Crown anytime before verdict (R v Ferguson; Ex parte Attorney-General)
o See ODPP GL 23
o Prosecution supposed to represent interests of the State, not itself in achieving a
successful conviction
o More often, a directed acquittal will be the most appropriate outcome in the
interests of justice
Brings the prosecution to an end, but can be restarted at a later time, it is NOT an
acquittal (no protection from double jeopardy)
Does not establish innocence and a further indictment can be presented to the court in
relation to the same offence on the indictment (s 563(3)).
Issues of fairness and abuse of process:
o The closer to a verdict, the less likely the judge is to accept a nolle prosequi
o Courts may refuse to accept a nolle prosequi in circumstances of patent
unfairness
R v Saunders
 FACTS: S charged with murder, had hired a hitman to kill an ex. Recorded interview
turned out to be fabricated, discovered very late in the trial. Prosecution attempted to
enter a nolle prosequi. Shepherdson J refused to accept the nolle on grounds that S had
already been through the trial and it would be unfair to expose her to continued
uncertainty as to whether she would be put through a further trial. Nolle prosequi held
to be an abuse of process, Shepherdson J directed an acquittal.
 ‘Crown’s power to enter a nolle prosequi is … now subject to the court’s inherent power
to prevent abuse of its process’
72

Where the prosecution’s case consists of corrupt evidence it may be unfair and
inappropriate to accept a nolle.
R v Jell; Ex parte Attorney-General
 Approved Saunders
 Prosecutor has an unrestricted right to enter a nolle, but the court also has an inherent
right to refuse to accept a nolle when it would amount to an abuse of process.
 ‘the entry of a nolle prosequi at the final stages of a trial is effectively an abortion of that
trial and a unilateral preservation of rights by one party – the Crown … The power of the
court to prevent this happening when it is plainly intended as a means of enlivening an
almost dead prosecution, and where the further prosecution must be regarded as an
oppressive abuse, is simply an aspect of the court’s duty to control his own process and
to ensure that the accused receives a fair trial.’ (Thomas J)
DPP (SA) v B (1998) 194 CLR 566
 FACTS: Complainant failed to attend the trial to give evidence. Prosecution counsel
indicated that they wanted to enter a nolle, but the trial judge did not permit it. The
prosecution had no evidence to put before the court and the judge entered a verdict of
not guilty.
 the judge was ‘defending [the court’s] process and ensuring that minimum requirements
of a fair trial … are observed in the courts of this country.’
 Where unfairness arises from another prosecution for the same matter that was nolled,
it may be open to seek a permanent stay of the proceedings (Kirby J)
 Circumstances where it may be unfair to accept a nolle:
o where the prosecutor seeks to enter a nolle after the jury asks for assistance and
their request signals a possible not guilty verdict
o where a case has not gone well for the prosecution and they are seeking the
opportunity for a re-run
o where a witness was not available and their evidence was not covered, as
hoped, by other witnesses
73
WEEK 7 – Fair Trial And Abuse Of Process


Two different but related principles – fair trial the overarching principle, abuse of
process an aspect of fairness
‘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; (Jago v District Court (NSW)) per
Toohey J at 117)
What is a Fair Trial?

Radical HC of the early 90s (Mason CJ, Deane and Gaudron JJ) implied rights into the
constitution, arguably including the right to a fair trial

Fair trial requires that processes occur according to law – but not necessarily fair even
though all processes carried out according to law (Gaudron J, Dietrich v the Queen at
362)
‘Fairness’ will depend on the facts of the case and will change in accordance with shifting
values and standards (Dietrich)
Right not to be tried unfairly (Deane J, Jago at 56)
Generally understood as an individual right, but argument that the right is
Constitutionally entrenched suggests it is more focused on maintaining judicial
independence
The right to a fair trial is one of several (right to trial by jury (s 80 Constitution), right to
remain silent) that are heavily guarded by the CJS in the interests of seeking to ensure
the innocent are not convicted of criminal offences (Jago)





But the availability of resources limits what we can consider essential for a ‘fair trial’
(resource scarcity hinders implementation of ‘ideals’)(Brennan J, Dietrich at 325)
o Brennan J in Dietrich argued that ‘fairness’ is not measured against community
values, but the question is whether it is unfair ‘in the sense that it has not taken
place according to law’
McKinney v R
 Record of interview – accepted that police officers in general will have access to
recording equipment, so in most cases expect confessions to be recorded
 Example of how what we can expect in terms of fairness will change over time in
accordance with changing values and resources (not a static concept)

Enshrined in international conventions, offer legitimate guidance to the courts but only
binding once given effect by domestic legislation.
o European Convention for the Protection of Human Rights and Fundamental
Freedoms
 Article 6 – accused has basic minimum rights including adequate time
and facilities for the preparation of their defence and the free assistance
of an interpreter when required
o International Covenant on Civil and Political Rights
o Universal Declaration of Human Rights
74

Article 10 – in criminal matters everyone is entitled to ‘a fair and public
hearing by an independent and impartial tribunal’

Arguably no need for a bill of rights because existing legislation and common law
incorporates rights related to fair trial
o Liberty (Bail Act)
o Silence (PPRA)
o Impartial tribunals (Jury Act)
o Presumption of innocence (common law)

Constitutional support
o Some HC judges have found that the fair trial principle is entrenched in s 71 of
the Cth constitution
o Gaudron and Deane JJ have found that there is an implicit requirement of fair
trial in s 71, because it requires that judicial power be exercised in accordance
with the judicial process (Dietrich)
Appearance of Fairness


Pre-trial procedures and processes must be fair in order for trial to be fair
Not just about actual fairness to the accused, also about community perception of
fairness
The importance of the judge’s behaviour




Fair trial requires that the judge appears impartial
‘Impartiality and the appearance of impartiality are necessary for the maintenance of
public confidence in the judicial system’ (Nth Aust Legal Aid v Bradley)
‘whether 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..’ (Johnson v Johnson)
Interrupting trial judge
RPS v R
 FACTS: Judge interjected to the extent that even if not actually biased would appear
biased to an ordinary observer.
 If there is a tension between a judge and counsel, they should take their frustration out
on counsel out of sight and hearing of the jury
R v Copsey
 FACTS: trial judge interrupted the defendant’s evidence 92 times and described it as
‘bizarre’. Trial considered unfair and conviction set aside.
 Role of the judge is to manage behaviour in the courtroom
 Sometimes judges will ask witnesses questions, but must take care not to go beyond the
role of a ‘referee’

Sleeping judge (Galea)
75
Cesan v The Queen
 FACTS: Trial judge was frequently noticeably asleep during the trial. The trial was
considered unfair and the conviction quashed.
 French CJ emphasised that the role of the trial judge is to manage the conduct of the trial
 Where the judge is noticeably and repeatedly asleep or inattentive, there may be a
miscarriage of justice, that is, the trial may be flawed in a fundamental respect even
though the evidence against the accused is strong (cannot be said with confidence that
there has not been a miscarriage of justice)
Mas Rivadavia v The Queen [2008] HCA 52
Examples of What Makes a Trial Unfair





Failure to exclude evidence (Nicholls & Coates)
Refusal to separate trials to avoid prejudice (De Jesus; Phillips)
Lack of pre-trial disclosure or committal hearing (Barton)
Jury irregularities (Tichowitsch; Edwards)
Prosecution behaviour/remarks/address to jury improper (R v Wheatley)

Prosecution has a duty to proceed fairly (representing the state)
Livermore
 FACTS: Prosecution made extravagant remarks at the end of the trial including
inappropriate, demeaning comments about rape victim and witnesses (‘idiots’).
 Prosecution should present their case without prejudice or emotion (should be
moderate in the way they present their remarks)
 Should not tip the balance too far against the accused – could cause an unfair trial
 Should not present ideas to the jury that are not based on evidence
 Should not make comments that belittle or ridicule the accused’s case
 Should not impugn the credit of witnesses who have not been cross-examined
 Should not suggest personal opinions to the jury
R v KP
 FACTS: Jury was discharged because of prejudicial statements in the Prosecutor’s
opening (said that the accused ‘could write a paedophiles’ handbook’ and suggested
criminal behaviour that was not the subject of any charge, which was reported in the
Courier Mail). The fresh jury was given the usual instruction to disregard anything read
in the papers of heard about the case outside court.
 The discharge of an existing jury who have been privy to prejudicial information and the
empanelling of a new jury maybe necessary to ensure that the accused receives a fair
trial.
R v Szabo
 FACTS: Defence and Prosecution counsel had been in a relationship, were seen ‘visiting
each other’ in a motel during the trial. Szabo appealed against conviction on the basis of
the appearance of unfairness. Relationship was sufficient to raise concern of fairness –
should have been disclosed prior to trial to give accused opportunity to find new
counsel.
76

Lack of interpreter – accused should be able to understand what is going on in the
courtroom

‘If the defendant does not speak the language in which the proceedings are being
conducted, the absence of an interpreter will result in an unfair trial’ (Ebatarinja v
Deland)
Re East ex parte Nguyen (1998) HCA 73
 FACTS: Nguyen (N) found guilty, convicted, sentenced. All throughout process there was
no interpreter. N made no indication that he needed an interpreter. N breached
community service order, and was sentenced to imprisonment. N appealed on the
grounds that he did not understand the original order.
 Held that accused’s presence is important, and this requires that they understand the
proceedings. In circumstances where they do not understand the proceedings, they
should have an interpreter.
De La Espriella-Velasco v the Queen [2006] WASCA 31
 FACTS: Accused appealed on the grounds that interpreter was not competent. Court
inquired into whether what was provided was an ‘adequate’ or ‘sufficient’ translation
 Presence of the accused is essential, and presence involves not merely being physically
in attendance, but also being capable of understanding the proceedings.
Ebatarinja v Deland
 FACTS: Accused was a deaf, mute, illiterate indigenous man who had developed his own
form of sign language between a few people in his community and himself. Only people
who could interpret for him were his closest friends and family (not impartial) –
impossible for him to get a fair trial.
R v Watt
 FACTS: Indigenous language interpreter was not accredited, lower level skill. Watt was
convicted, appealed on the basis that he did not properly understand the interpreter.
 High levels of error in interpretation (not ‘sufficient’) can result in an unfair trial.
What is Abuse of Process?

‘An abuse of process occurs when the process of the court is put in motion for a purpose
which, in the eye of the law, it is not intended to serve or when the process is incapable
of serving the purpose it is intended to serve … 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 will generally be found in the use of criminal process inconsistently
with some aspect of its true purpose, whether relating to the hearing and determination,
its finality, the reason of examining the accused’s conduct or the exoneration of the
accused from liability to punishment for the conduct alleged against him’ (Jago per
Brennan J at [24])

Abuse of process may result in unfair trial – can be avoided by stopping and rectifying
the abuse mid-trial
77


Courts duty to protect itself against abuse of its own processes (Connelly v DPP; R v
Sang; R v Lowrie)
o Rationale is two-fold (Moevao v Department of Labour per Richardson J):
 there is a public interest in the administration of the law and that its
processes are used fairly by the state and by its citizens
 unless the court does protect its processes from abuse, public
confidence will be eroded
An abuse of process need not involve unfairness in the sense of an unacceptable risk of
wrongful conviction
o Court may order a stay if prosecution has been instituted for an improper
purpose without being satisfied that unfairness to the accused would ensue
(Williams v Spautz)

The onus on proving an abuse of process lies with the party who alleges it (Williams v
Spautz)

Abuse of process will exhibit at least one of three characteristics (PNG v The Queen):
(a) the invoking of a court's processes for an illegitimate or collateral purpose;
(b) the use of the court's procedures would be unjustifiably oppressive to a
party; or
(c) the use of the court's procedures would bring the administration of justice
into disrepute
Examples of Abuse of Process








Lack of offence particularity (Rogers; KP; Patel v R)
prosecution for improper purpose (Motif; William v Spautz)
Inappropriate use of ex officio indictment (Barton)
Resubmitting previously excluded evidence (Rogers)
Double jeopardy/controversion of earlier acquittal (R v Carroll)
tender of nolle prosequi in circumstances which may make later prosecutions
oppressive (R v Leece; R v Saunders)
Multiple or repetitive charges (Walton v Gardiner)
Unlawful or improper extradition (Lavelle v the Queen)
R v Saunders
 FACTS: Prosecution attempted to enter a nolle prosequi after their case was found to be
groundless. Would have been unfair because it left accused open to future charges,
instead judge directed an acquittal.
Delay

In essence then, the power to prevent an abuse of process in this context is derived from
the public interest, first that trials and the processes preceding them are conducted
fairly and, secondly, that, so far as possible, persons charged with criminal offences are
both tried and tried without unreasonable delay. In this sense, fairness to the accused
is not the sole criterion when a court decides whether a criminal trial should proceed.
…The continuation of processes which will culminate in an unfair trial can be seen as a
"misuse of the Court process" which will constitute an abuse of process because the
78


public interest in holding a trial does not warrant the holding of an unfair trial. (Jago per
Mason CJ at 12)
Why is delay a problem?
o Increased costs, wasted preparation, heightened stress for both accused and
victims
ICCPR article 14(1)(c): ‘everyone charged with a criminal offence … shall have the right
to be tried without undue delay’.
Jago v District Court (NSW)
 FACTS: Jago (J) charged with numerous fraud offences, alleged to have occurred between
1976-9. Committed for trial in 1982, indictment eventually prepared in 1986. Listed for
hearing in 1987. When the matter eventually heard in 1987, J sought a stay of
proceedings, which was refused. J appealed to the HC after an appeal to the Court of
Appeal failed. HC held that to try J would not be oppressive or unfair.
 Held that the common law neither recognises a right to a speedy trial nor a right to a
trial within a reasonable time
 The issue of delay is an aspect of the fair trial principle, rather than an independent right
(delay itself is not the central concern, rather the effect of the delay is relevant to the
overall fairness of the trial)
 The effect of delay may mean that a subsequent trial may be unfair or that continuing
proceedings would be unjustifiably oppressive and an abuse of process (Deane J).
 5 factors that should be considered in determining whether delay amounts to abuse of
process (Deane J):
o Length of delay
o reasons for delay,
o accused’s responsibility and attitude to the delay
o proven or likely prejudice to accused (most important)
o public interest
 Generally an argument on the basis of delay will succeed if based on prejudice to the
accused
 Prejudice arising from delay can often be remedied by rulings on the evidence and
directions to the jury in relation to the evidence, but in some situations delay may be so
great and so prejudicial that such measures would not ensure a fair trial and the only
appropriate remedy is a stay (Toohey J)
 Some delay is an inescapable reality due to limited resources (Brennan J)
 ‘…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…’(Mason CJ; also NAIS v Minister for
Immigration and Multicultural and Indigenous Affairs per Gleeson CJ)
 In cases of undue delay courts possess a general power to stay criminal proceedings in
order to prevent injustice to the accused
R v Edwards [2009] HCA 20
 FACTS: Incidents of reckless operation of an aircraft in 2001, complaints not lodged until
2004, trial listed for 2006 which was adjourned, in 2007 an application for stay entered
because of abuse of process as a result of delay. Evidence of unknown content had been
lost by prosecution. Lower court allowed the stay, HC overturned this because there was
no obvious prejudice to the accused because the content of the evidence was unknown.
 ‘…whether in all the circumstances the continuation of the proceedings would involve
unacceptable injustice or unfairness.’
79
R v Khoury
 FACTS: D charged with arson, alleged he burned down a building in 1997. By 2004,
matter have not gone to trial and 5 trial listings had not proceeded. Defence had
requested an adjournment on only one occasion because the accused was not financially
able to retain a lawyer. The matter had been dealt with by a number of prosecutors.
Held that the delay was inexplicable and inexcusable and had impacted the accused’s
ability to fund lawyers; Shanahan DCJ ordered a permanent stay.
Gill

FACTS: Death of key defence witness during delayed period, stay allowed.
R v Wrigley
 FACTS: Appellant requested a stay on the basis that the trial would be unfair because
the delay meant that potential witnesses were not locatable and memories would be
dimmed. Stay refused.
 ‘Dimmed memories’ not enough to warrant a stay – ‘fading of recollection normally a
benefit to the defence, not a disadvantage’ (Chesterman J)
 Delay is not enough to justify a stay of criminal proceedings
Prejudicial Publicity

Fair trial requires a jury that is not prejudiced by the media

Clash of principles:
o Public’s right to know vs. fair trial
o Tolerate some publicity for open justice vs. closed courts/secret justice
o Problem caused by media saturation and internet
R v Glennon
 FACTS: Catholic priest (G) charged with sexual offences against a minor. Before G
appeared in court Derryn Hinch aired radio broadcasts detailing G’s prior convictions
from 3 years before and making other allegations. Hinch was found guilty of contempt
(Hinch v A-G (Vic)). On the basis of Hinch’s reporting and the surrounding publicity, G
argued that his matter should be stayed because it would be impossible for him to
receive a fair trial. G was convicted and appealed against convictions, convictions
quashed in Court of Appeal, Crown applied for special leave to appeal to the HC. HC
granted the crown special leave to appeal, allowed the appeal and set aside the order for
the stay.
 The possibility a juror may acquire irrelevant and prejudicial information is inherent in a
criminal trial, and mere conjecture about the information a juror may have is not a
sufficient ground on which to conclude that a fair trial is not possible (Mason CJ and
Toohey J).
 Some degree of risk to the integrity of the administration of justice is accepted as the
price which has to be paid to allow some freedom of public expression in relation to
crimes of public interest (Brennan J).
 A number of approaches possible to protect the integrity of the trial in light of significant
publicity (Brennan J):
o application of the law of criminal contempt
o adjourning the trial until publicity subsides
80
directing the jury that their verdict must be based on evidence given at court
and that they should not be influenced by any revulsion or sympathy for the
accused
The wrongful reception or transmission of information about prior convictions for a
similar offence by or to the jury may place fair trial at risk so that it is necessary to
discharge the jury (Brennan J).
o

R v Purdie [2008] TASSC 15
 Journalist reported on offences committed by an accused on the same day that the
accused was being tried for different offences
 Adjourned trial to a different day so the jury would not be influenced by recent
publications

See also Keyzer et al (2013), ‘The courts and social media: what do judges and court
workers think?’
Dealing With Pre-Trial/Trial Publicity

‘community's right to expect that a person charged with a criminal offence be brought to
trial…’ (Glennon per Mason and Toohey JJ)
Possible solutions:
1.
Jury directions: ‘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.’
(Jago per Brennan J)
Dupas [2010] HCA 20
 Judge directs jury throughout trial
 Opportunity during trial for evidence to be tested by both parties
 Jury members have conscientious commitment to fairness
 Shown that citizens have a robust ability to act fairly
R v Ferguson; Ex parte A-G (Qld)
 Judge can give directions as often as necessary
2.
Cross-examine potential jurors under oath to test their impartiality (special procedure
allowed under s 47 Jury Act)
 Emphasised in Ferguson that courts should consider this option
R v Kaddour [2005] HSWCCA 303
 Defence lawyer on front page of SMH regarding allegations of fraud and being delisted
 Prejudicial pre-trial publicity focused on lawyer rather than accused
 Jury directions sufficient
3.
Adjournment until the media interest has subsided
4.
Forum change (s 557 QCC) (multiple DC and SC across Queensland, move the trial)
81
R v Long
 FACTS: Trial to occur in Bundaberg, the crime (arson at backpacker’s hostel killing 15)
was notorious and local community was very excited. Accused applied to move trial to
Brisbane, where there would be a greater chance of an impartial jury
 Possible in exceptional cases to be granted a forum change
 Preferred to have trial near where incident took place – close to witnesses, reduced costs
Walters (2007) QCA 140
5.
Judge alone trial (ss 614/615 QCC)
6.
Permanent stay
 If pre-trial publicity renders a fair trial impossible
 will only be granted in exceptional circumstances (Glennon)
Responding to Unfairness or Abuse of Process



Duty of the trial judge to avoid unfairness in the trial, discharged by ‘controlling
procedures of the trial’ (Jago)
During the trial the judge has several powers that can be exercised in order to prevent
abuse of process and unfair trial:
o Adjourn so the problem can be fixed (s 88 JA; s 592 QCC);
o Refuse to accept a plea;
o Ensure appropriate procedures followed such as notice and disclosure;
o Make appropriate rulings on evidence;
o Appropriately direct the jury;
o Change the venue of the trial
o Discharge jury members if necessary.
After the trial:
o Appeal - this may result in a new trial being ordered
 Note: the ordering of a retrial may itself constitute an abuse of process
if there have already been previous trials of the matter and thus a stay
may be the appropriate response (R v Donald)
o Order a ‘stay’ of proceedings
Stay Proceedings




‘The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse
of process extends to all those categories of cases in which the processes and procedures
of the court, which exist to administer justice with fairness and impartiality, may be
converted into instruments of injustice and unfairness.’(Walton v Gardiner)
Can be granted at any time, may be the result of:
o 590AA pre trial application; or
o order during the trial; or
o 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)
Effect of a stay:
82
o
o
proceedings are stopped, matter lies ‘dormant’
not an acquittal because matter can be reinvigorated at some future time (e.g.
Nicholas v The Queen)
Permanent Stay






May be appropriate where:
o there is an exceptional risk that a trial will be unfair and result in wrongful
conviction
o the prosecution would be oppressive
o necessary to prevent an abuse of process which will result in an unfair trial
(Williams v Spautz)
Only as a last resort in exceptional circumstances (Jago)
Can be appealed by the A-G (s 669A(1A) QCC).
Problems:
o ‘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.’ (Jago, Brennan J
[13])
o may damage public confidence in courts
o against the interests of victims, the community and sometimes the accused (lose
chance of acquittal)
‘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 do in the conduct of the trial can relieve against its unfair
consequences…’(Jago, Mason CJ, [21])
Court must be satisfied that there are no other available means, such as directions to be
given by the trial judge, of bring about a fair trial (Williams v Spautz)
R v O’Rourke
 FACTS: Fundamental in defects of evidence (several witnesses no longer available,
various documents lost, layout of relevant building had changed) went ‘to the root of the
trial’ – permanent stay ordered.
Oppressive Prosecution



Prosecution may be considered oppressive where:
o charge is too vague (R v S)
o prosecution is considered doomed to fail (Walton v Gardiner)
o specific charge may not be appropriate to the allegations made
o charge is a duplication of other charges
o charge may be in relation to actions already dealt with by the criminal process
(double jeopardy)
Continuing prosecution in such circumstances may be considered an abuse of process
o necessary to consider whether prosecution has a real prospect of success (R v
Noyes)
Improper purpose
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Williams v Spautz
 FACTS: Spautz (S) was an academic at the University of Newcastle, where Williams (W)
was appointed a professor. S and W became involved in a conflict, S claimed that W
plagiarized his doctoral thesis and questioned W’s fitness for his position. After being
warned to stop his behavior and subsequently persisting, S was dismissed. S
commenced over 30 proceedings against members of the university. HC was concerned
with claims made against W and others for criminal defamation. At the initial hearing a
permanent stay was ordered for abuse of process. NSW Court of Appeal set aside the
stay. HC allowed an appeal and held that a stay was appropriate in the circumstances.
Even though S had a prima facie case for defamation, the predominant purpose of his
action was to use the threat of proceedings to secure his reinstatement, and this was
improper.
 Where the prosecution is brought as a means of obtaining some advantage rather than to
carry the prosecution through to a conviction, the prosecution would be improper.
 A prosecution may be brought for multiple purpose, but the predominant purpose is the
criterion against which the question of ‘improper’ will be measured.
 Even though there may be substance to a claim, if the predominate purpose is improper
it will have been an oppressive prosecution
 Not necessary for the court to be satisfied that as a result of the oppressive prosecution,
the ensuing trial would be unfair
o ‘if a stay is sought to stop a prosecution which has been instituted and
maintained for an improper purpose, it by no means follows that it is necessary,
before granting a stay, for the court to satisfy itself in such a case that an unfair
trial will ensue unless the prosecution is stopped’
Malicious Prosecution


A tort which allows the prosecutor to be sued in certain cases
Elements (A v NSW):
o Relevant proceedings were initiated
o the proceedings were terminated in favour of the plaintiff
o the defendant (to the tortious action, the prosecutor in the criminal trial), in
initiating and maintaining proceedings, acted with malice
o the defendant acted without reasonable or probable cause
A v NSW
 FACTS: A married to S, who had three children. One of the children disliked A, and along
with his brother made various complaints that A had sexually interfered with them. The
allegations were essentially the principal evidence for the subsequent charges, and led to
the children being placed in foster care. At the committal hearing one of the children
admitted in evidence that he had lied. Magistrate discharged A, finding that there was no
reasonable prospect of jury conviction on the evidence. A commenced action suing for
malicious prosecution. HC affirmed the trial decision that the tort was made out.
 In relation to ‘reasonable and probable cause’: ‘unless the prosecutor is shown either not
to have honestly formed the view that there was a proper cause for prosecution, or to
have formed that view on an insufficient basis, the elements … is not established.’
 ‘to constitute malice, the dominant purpose of the prosecutor must be a purpose other
than the proper invocation of the criminal law – “an illegitimate or oblique motive”. That
improper purpose must be the sole or dominant purpose of the prosecutor’
 Where the prosecution is not for a proper purpose it is necessarily malicious
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Beckett v NSW
 Nolle prosequi is a ‘termination in favour of the plaintiff’ for the purposes of malicious
prosecution
85
WEEK 8 – Ethics and Legal Representation

Stafford Shepherd, Senior Ethics Solicitor, Queensland Law Society
Legal Ethics



Rules (professional standards) + personal standards and values
Legal Profession Act 2007
Australian Solicitors Conduct Rules
o Adopted in Queensland and SA, soon to be adopted in NSW and Victoria
o May become the first national framework
o Does not give prescriptive rules, but guiding principles


Owe duties to the court that arise from the status of being an officer of the court
Responsibility to ensure that proceedings will do justice according to law, to respect the
independent arbiter
Responsibility is NOT to win at all cost, but to serve justice, and to ensure our client’s
case is well articulated and presented, so that the independent arbiter can decide it
according to law

The
Lawyer’s
The Lawyer’s
Compass
Compass
Centre ring – stakeholders we
owe duties to
Inner ring – ethical principles that
drive duties we owe
Outer ring – context of the work
we do
Giannarelli v Wraith
 ‘The purpose of court proceedings is to do justice according to law… According to our
mode of administering justice, parties with inconsistent interests are cast in the role of
adversaries and the court or judge is appointed to be an impartial arbiter between
them. Counsel may appear to represent the adversaries, but counsel’s duty is to assist
the court in the doing of justice according to law.'
 A client – and perhaps the public – may sometimes think that the primary duty of
counsel in adversary proceedings is to secure a judgment in favour of the client. Not so.
 …Lord Eldon in Ex parte Lloyd (5 November 1822, reported as a note in Ex parte Elsee
(90)):
“He lends his exertions to all, himself to none. The result of the cause is to him a
matter of indifference. It is for the court to decide. It is for him to argue. He
is…merely an officer assisting in the administration of justice, and acting
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
under the impression, that truth is best discovered by powerful statements
on both sides of the question.”
‘By a paradox which is obvious to any who have experience in our courts, the client is
best served by a counsel who is manifestly independent.’ (per Brennan J at 578 – 9)
The Stakeholders




Administration of justice – first duty
o Officers of the court have a fundamental responsibility to assist and promote the
administration of justice and the rule of law
Defend and advance the best interests of the client
Colleagues – working relationship
Community – protect confidence in the rule of law
o E.g. pro bono and duty solicitor schemes, important for those who cannot afford
legal services to be able to access the system
Fundamental Duties Of Solicitors








Rule 3.1 – duty to the court and the administration of justice is paramount
Rule 4.1.1 – act in the best interests of a client
o Subject to the paramount duty – prevails to the extent of inconsistency with any
other duty
Rule 4.1.2 – be honest and courteous
o Fundamental to being a fit and proper person to practice law
Rule 4.1.4 – avoid compromise to integrity and professional independence
Rule 4.1.5 – comply with the ASCR and the law
Rule 5.1 – remain fit and proper to practise law
o Rule 5.1.1 – do not diminish public confidence in the administration of justice
o Rule 5.1.2 – do not bring the profession into disrepute
Rule 6 – honour undertakings to colleagues and third parties
Sir Gerard Brennan AC on ethics (address to Queensland Bar Association 3 May 1992)
o ‘cannot be reduced to rules’
o ‘not so much learnt as lived’
o ‘hallmark of a profession’
o ‘if ethics were reduced merely to rules, a spiritless compliance would sson be
replaced by skillful evasion
Case Studies
Case Study 1
You are appearing before the Magistrate for a client formally charged with drink driving. Your
client pleads guilty. In the course of providing the facts to the magistrate the Police Prosecutor
informs the Court that:
1. Your client has no previous convictions
2. Your client is in regular employment
You are aware that your client was, shortly prior to the commission of the drink driving offence
summarily dismissed by his employer for stealing. You are also aware that your client has two
87
previous convictions for drink driving and is liable to be imprisoned if that fact is known to the
court.
Do you…
1. Adopt what the Police Prosecutor has said as to employment and a lack of previous
convictions and urge the Magistrate to deal with your client as leniently as possible?
2. Remain silent on both issues and allow the Court to proceed on the basis of what the
Prosecutor has said?
 Consistent with duty of confidence (obligation to retain confidence of client),
client-practitioner privilege
3. Disclose the facts as they are known to you?
Key principles



For the prosecution to prove their case - no obligation to assist the prosecutor, indeed
should not do so unless the client instructs to do so after fully understanding the
consequences - BUT care must be taken not to mislead the Court (rule 19.1 ASCR)
An advocate will not make a misleading statement to a Court by failing to correct an
error in a statement to the Court by the opponent (rule 19.3 ASCR)
o Compare rule 19.3 with rule 30 ASCR (taking advantage of error)
Dividing line between failing to correct an error and contributing to the making of that
error can be fine
Rule 30 – Another Solicitor or Another Peron’s Error

Rule 30.1 – do not take unfair advantage of the obvious error of another if to do so would
obtain for a client a benefit which has no supportable foundation in law or fact.
Relevant Cases
R v Rumpf [2988] VR 466
 “…[a] court is bound to decide a case on the evidence, and only on the evidence before it.
The penalty that was imposed was entirely in conformity with both the facts and the law.
All that happened was that the prosecutor failed to provide evidence to the court of a
relevant fact. The consequence of this should be no different from that in any other case
where a party fails to call relevant evidence. It makes no difference whether the
proceedings follow a plea of guilty or not guilty. The court is to decide the case on the
evidence before it.” (per McGarvie J, 472)
Vernon v Bosley (No 2) [1999] QB 18 (per Stuart-Smith LJ, 38)
Boyd v Sandercock [1990] 2 Qd R 26 (per Thomas H, 28)
 Prosecutor had failed to raise issue of prior convictions, Solicitor was aware of prior
convictions, but failed to disclose.
 Held that the solicitor was not obliged to disclose, because it is for the Crown to prove
their case
Case Study 2
You have a client in jail. The client’s wife called you yesterday and said that she found a firearm
and drugs hidden among your client’s belongings.
She asks you, “What do I do with them? I don’t want to get my husband into more trouble!”
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Do you…
1. tell the client to dispose of the firearm and drugs?
2. arrange for them to be dropped into the police?
3. not act on the wife’s request for assistance?

Tell the wife she is not your client and you do not act on her behalf. May advise that she
gets her own advice.
Relevant rules



Rule 8.1 – follow a client’s lawful, proper and competent instructions
Rule 5.1 – must not engage in conduct which demonstrates solicitor is not a fit and
proper person to practise law, or which is likely to material degree to:
o 5.1.1 – be prejudicial to, or diminish public confidence in, the administration of
justice; or
o 5.1.2 – bring profession into disrepute
Rule 4.1.5 – must also comply with … the law
Rule 9.1 – must not disclose information which is confidential to a client and acquired
during client’s engagement … except as permitted by Rule 9.2
o Rule 9.2.1 – client consent
o Rule 9.2.4 – discloses information for the sole purpose of avoiding probable
commission of a serious criminal offence
o Other exceptions – if client threatens to take their own life you can disclose,
permissible if there is likely imminent physical harm or injury to the client
Rule 13 – for a client matter, must ensure completion of the legal services for that matter
unless
o 13.1.2 – the law practice terminates the engagement for just cause and on
reasonable notice
 Just cause may be client requesting something unethical
Rule 22.1 – must not knowingly make a false statement in relation to the case

Duty to foster respect for the law and its administration



Re B [1981] 2 NSWLR 372
 “…his duty to his client is tempered and indeed overridden by his public duty to uphold
the law and neither break the law himself nor participate or encourage its breach and in
other well-known ways to conduct himself in a manner which will serve the proper and
fair administration of the law” (per Moffit P at 382)


Rule 5.1 – must not engage in conduct that is dishonest, illegal, unprofessional
Rule 16(1) Legal Professional Conduct Rules 2010 (WA) – must not seek to further a
client’s cause by unfair or dishonest means

Should not knowingly assist or seek to induce a breach of the law by clients, other
solicitors and third parties generally
Legal Practitioner Complaints Committee v Segler (2009) 67 SR (WA) 280
 Solicitor in advising the client that he could carry out building projects despite being
unregistered as a builder, was found to have committed professional misconduct
89




This extends to instructing agents to commit an illegal act or to do something that would
improper for us to do
If we become aware a client is engaging in unlawful conduct – the appropriate response
is to counsel the client against it and to eschew any involvement in that conduct,
whether by assisting or being seen to condone that activity
May be required to refuse to perform an act the client directs, and to terminate the
retainer
Reason to believe client will disregard advices and thereby contravene the law, counsel
client as to your responsibilities and if client persists, terminate retainer
What if your client admits guilt and wants to plead not guilty?


Is it dishonest for a solicitor to represent their client when they know their client is
guilty, but wants to plead not guilty?
What is your duty?
o Obligation to ensure the prosecution proves its case beyond reasonable doubt
o You can represent your client
o You can put the Crown to proof (argue that the prosecution case doesn’t prove
your client’s guilt beyond reasonable doubt)
Emerson v Sparrow (1871) LR 6 Ex 3929 (per Brambell B, 371)
 “A client is entitled to say to his [solicitor], ‘I want your advocacy and not your judgment;
I prefer that of the court’”.

You cannot:
o Mislead the court
o Suggest someone else committed the crime
o Set up an argument inconsistent with the confession (see rule 20.2 ASCR)

Rule 20.2 - A solicitor whose client in criminal proceedings confesses guilt to the
solicitor but maintains a plea of not guilty:
o 20.2.1 - may cease to act, if there is enough time for another solicitor to take
over the case properly before the hearing, and the client does not insist on the
solicitor continuing to appear for the client;
o 20.2.2 - in cases where the solicitor continues to act for the client:
(i) must not falsely suggest that some other person committed the offence
charged;
(ii) must not set up an affirmative case inconsistent with the confession;
(iii) may argue that the evidence as a whole does not prove that the client is
guilty of the offence charged;
(iv) may argue that for some reason of law the client is not guilty of the
offence charged; and
(v) may argue that for any other reason not prohibited by (i) and (ii) the
client should not be convicted of the offence charged;
o 20.2.3 - must not continue to act if the client insists on giving evidence denying
guilt or requires the making of a statement asserting the client’s innocence.
What if your client isn’t guilty and wants to plead guilty?

It happens often for reasons of convenience or finance (cost/benefit analysis)
90

Obligation to advise client of consequences of pleading guilty and that they should
carefully consider their decision – ensure instructions are witnessed by an independent
third party
R v Allison [2003] QCA 125 per Jerrard JA
 Citing with approval McPherson J in R v MacKenzie [2000] QCA 324 that "...counsel of
course will emphasise that the accused must not plead guilty unless he has committed
the offence charged” (at [25]).
 “…some people charged with serious offences…wish both to maintain to their lawyers
that they are actually innocent, and also to plead guilty. In those circumstances it is
imperative that these lawyers ensure that no plea be taken until (written) instructions
have been obtained in which the person charged describes a wish or willingness to plead
guilty, and an understanding that by so doing, he or she will be admitting guilt. If those
instructions are obtained and adhered to a lawyer may properly appear on the plea (at
[26]).”
•
A practitioner in such a circumstance retains the discretion to withdraw and allow the
accused to present his own plea or seek alternative legal representation. Should you
choose to proceed, however, the case sets out the following advice:
o Advise the client not to plead guilty unless they have committed the offence;
o Ensure the client is fully informed of the consequences of a guilty plea and that
the Court is bound to accept such a plea without any further evidence of guilt;
o Ensure the client’s instructions regarding the plea are provided in writing and
are witnessed by a third party.
Case Study 3
You’re in a pub on a Friday evening and you overhear some local constabulary discussing a police
raid for the following morning.
Your ears prick up when you hear the raid is on one of your clients.
Do you warn the clients?
*Legal Services Commissioner v Winning [2008] LPT 13
 Where there is a solicitor-client relationship there could be a duty (or a discretion) to
inform the client of sensitive information obtained
 Solicitor cannot go beyond the scope of providing information (cannot instruct or
otherwise make themselves a participant in the crime)
 Circumstances where solicitors have an obligation to inform clients of rights and
possible courses of action
Case Study 4
John is charged with 2 counts of importing cocaine, 1 count of possession of cocaine and 1 count
of attempting to possess cocaine. The case involves the alleged importation of 100 kg of cocaine.
John pleads not guilty to all charges.
The case at trial against John relied heavily on the evidence of an alleged accomplice Bill, who had
already pleaded guilty to similar charges and been sentenced. John’s counsel cross-examined Bill
on the basis of instructions that John had not made some computer searches which the Crown
relies on as evidence of John’s guilt, and John further alleges that Bill must have made them.
91
Later in the trial a computer expert gives evidence that, in combination with undisputed evidence
about computer settings meant that Bill could not have made the relevant searches.
John gives new instructions to his solicitor that he now recalls that he made the searches, for an
innocent purpose.
What are the options the solicitor needs to consider?
Does John’s change of instructions cause the solicitor to have an ethical conundrum?
On appeal, John argues that:
 he was poorly advised by his solicitor and counsel at trial
 he did not understand the charges
 he was mentally unstable, and
 his lawyers intimidated and threatened him, making the plea an induced or involuntary
one.
Relevant Cases
R v Uclay [2007] EWCA 2379
*R v Nerbas [2011] QCA 199
 “They were precluded from conducting his case on any factual basis that they knew to be
false. But they would not have been placed in that position by this change of instructions.
They would have been understandably sceptical about the appellant’s new instructions.
But it was not for them to adjudicate the truth.” (at [50])
 “I agree that the strong advice as to prospects, of itself, did not make these pleas of guilty
involuntary ones. However there was also the unjustified threat by the lawyers to
withdraw if he changed his instructions…it is inherently likely that this threat, at least in
part, induced him to plead guilty.” (at [54])
Tuckiar v The King [1934] 52 CLR 335 (346 – 7)
 FACTS: HC believed solicitor had not discharged their obligations to their client (an
indigenous man charged with murder). Counsel, at trial, had said before the jury
statements outside his instructions and that clearly attempted to jeopardise the integrity
of the deceased.

“Whether he be in fact guilty or not, a prisoner is…entitled to acquittal from any charge
which the evidence fails to establish that he committed, and it is not incumbent on his
counsel by abandoning his defence to deprive him of the benefit of such rational
arguments as fairly arise on the proofs submitted….(the solicitor has a) paramount duty
to respect the privilege attaching to the communications made to him as counsel, a duty
the obligation of which was by no means weakened by the character of his client….(at
346)”
Case Study 5
A solicitor’s former client is appealing conviction, one of the grounds of which is the
incompetence of the solicitor. The Crown asks the solicitor to provide documents from the
former client’s file to assist in defending the appeal.
What documents can the solicitor provide?
Would it make a difference if the allegations of incompetence were against the defence
counsel who had been retained by the solicitor, but not the solicitor personally?
92
Relevant Cases
R v Paddon [1998] 2 Qd R 387
 “[62] In cases where a retrial is sought on the ground raised there is waiver of legal
professional privilege attaching to the communications between an appellant and
his trial representatives…The waiver does not operate with respect to all
communications. It is limited to communications which concern those aspects of the
conduct of the trial which are said to be indicative of, or the product of,
incompetence…” (398-9 per Chesterman J)
 …The Crown is free to interview the legal representatives about those communications
and put before the Court of Appeal anything of relevance concerning the impugned
conduct… It is a matter for the Crown whether or not it approaches the appellant’s
former legal representatives. If an approach is made caution must be exercised not to
enquire into matters in respect of which legal professional privilege has not been waived
so as not to elicit information which might make it difficult to ensure that the retrial is
fair. Notwithstanding these monitions there will be occasions when it is appropriate for
the Crown to take a statement from the former legal representatives…
 …It is unsatisfactory that arguments should be addressed that there must have been
“flagrant incompetence” when there may be a satisfactory explanation for what is
complained of but no approach is made to those who can provide the explanation.”


“God works wonders now and then; Behold! A lawyer and an honest man!” (Benjamin
Franklin)
“Regard your good name as the richest jewel you can possibly be possessed of - for credit
is like fire; when once you have kindled it you may easily preserve it, but if you once
extinguish it, you will find it an arduous task to rekindle it again. The way to gain a good
reputation is to endeavor to be what you desire to appear.” (Socrates)
Fair Trial And Legal Representation

International Covenant of Civil and Political Rights, paragraph 14.1(b)
o ‘Everyone charged with a criminal offence shall have the right to have adequate
time and facilities for the preparation of his defence and to communicate with
counsel of his own choosing…to be tried in his presence, and to defend
himself in person or through legal assistance of his own choosing; to be
informed, if he does not have legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the interests of justice so require,
and without payment by him in any such a case if he does not have sufficient
means to pay for it.’
o Australia a signatory, but does not have the force of law until introduced into
domestic law
o Legal representation is a requisite for a fair trial


An accused person is entitled to be represented by counsel (s 616 QCC)
BUT neither Australian statute law or common law recognise an express right to legal
representation at public expense.
McInnis v the Queen
 FACTS: an unrepresented accused (M) sought an adjournment in order to secure legal
representation. The application was refused and he was convicted of various offences,
93


including rape. M appealed on the basis the refusal to adjourn proceedings had
seriously prejudiced him in his trial and constituted a miscarriage of justice.
Majority decided that there was no issue with a lack of legal representation
Murphy J dissented:
o In serious cases (like rape), where a person is unrepresented they may face an
unfair trial
o ‘Fundamental to the administration of justice in serious cases that an accused
has the right to legal representation even if he has no means to engage counsel.’
o If an accused cannot afford legal representation, it should be provided to them
from the state, and the trial should be postponed until legal assistance can be
provided.
Dietrich v the Queen
 FACTS: Dietrich (D) was charged with various drug importation offences. Sought legal
aid but was refused because his defence lacked merit. He unsuccessfully appealed the
decision of the Legal Aid Commission and unsuccessfully applied to the Cth A-G for funds
for representation. Application for an adjournment of trial proceedings to secure legal
representation was denied. D pleaded not guilty, after a trial he was found guilty.
Application for leave to appeal to the Victorian Court of Criminal Appeal was refused, D
appealed against this decision to the HC. The sole ground of appeal was that the trial
had miscarried because of lack of legal representation. HC unanimously rejected the
argument.
 The absence of representation for an accused who cannot afford to engage counsel does
not necessarily mean that the trial is unfair and that any conviction should be quashed.
 ‘… a trial judge who is faced with an application for an adjournment or a stay by an
indigent accused charged with a serious offence who, through no fault on his or her
part, is unable to obtain legal representation, … in the absence of exceptional
circumstances, the trial … should be adjourned, postponed or stayed until legal
representation is available. If … an application that the trial be delayed is refused and, by
reason of the lack of representation of the accused, the resulting trial is not a fair one,
any conviction of the accused must be quashed by an appellate court for the reason that
there has been a miscarriage of justice in that the accused has been convicted without a
fair trial … (Mason CJ and McHugh J)
 Trial may be unfair because of lack of legal representation, but there is no right to legal
representation at public expense
 trial of an unrepresented accused might need to be stayed where, as a result of the lack
of legal representation, the trial would be unfair
o E.g. where the accused lost a real chance of acquittal (Mason CJ and McHugh J)
‘Indigent’




Lack of means to pay for, or be unable to afford, legal representation at their trial
(Dietrich)
Unable to attain appropriate legal representation to conduct a defence, not necessarily
living in poverty (R v Marchi, Marchi and Mead
Related to the costs incurred with respect to the specific case, some cases necessarily
more expensive than others (R v Fuller)
Court will consider a variety of revenue sources (R v Rich and Hynes)
o Assets and sale of assets (car, house, superannuation)
o Relatives/defacto assets
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


Court will consider whether the accused has used their initiative to get sufficient funds
(R v Rich and Hynes)
No snapshot test, court will look back in time, assessing the accused’s behavior in
preparing for the trial (Rich and Hynes)
Financial position and defences relevant (Ex parte Roddan)
‘Serious Offence’







Indictable (Dietrich per Mason CJ and McHugh J)
Judge and jury setting, does not apply to proceedings before a magistrate (summary
offences) or judge alone (Dietrich per Deane J; Khalifeh v Job)
o Questionable following expansion of the jurisdiction of the Magistrate’s Court
Threat to liberty, punishable by imprisonment (Dietrich per Deane J; King v Lankford)
o More persuasive than ‘judge and jury’ requirement, court will be more
concerned if accused is facing a period of imprisonment
Fined $300 not serious (R v Essenberg)
Not applicable to committals, limited to trials (R v Matterson; Ex parte Helfenbaum)
o Worst consequence is that the accused would be committed to trial, not in
jeopardy of conviction or imprisonment until indicted
Not applicable to inquiries (e.g. investigation of a death), or the protection of a witness
(NSW v Cannellis)
Not applicable to appeals (Sinanovic v the Queen; Crampton v the Queen)
‘No Fault’








Accused cannot be at fault in relation to their own lack of legal representation (Dietrich)
o May be at fault if persistently refuse legal representation (Dietrich)
Refusal of legal representation need not be deliberate or willful for their to be fault (R v
Small)
The test for fault focuses on (Craig v South Australia):
o ‘the reasonableness of the conduct of an accused in all of the circumstances; and
excluded situations in which it could be fairly said that the accused, by his
gratuitous and unreasonable conduct, had been the author of his own
misfortune.’
o Will not be excluded from arguing the Dietrich principle if they made a mistake,
so long as their overall behavior is reasonable
It is for the accused to take the initiative to secure funds for legal representation, will be
at fault if fail to do so (R v Rich and Hynes
Question of fault resolved by reference to the circumstances surrounding the reasons the
person is unrepresented (R v Batiste)
Important for the trial judge to hear from the accused before making a decision that the
accused is at fault (R v East)
‘Ordinarily, an accused who rejects the legal assistance offered or dismisses his or her
appointed lawyers and conducts his or her own defence will not escape the
consequences of such a decision or steps subsequently taken in the trial.’ (R v Wilson;
also R v Promizio; R v Crothers & Ors)
‘He elected to appear without counsel although the provision of skilled legal
representation was effectively his legal right. By electing to represent himself, the
applicant placed considerable additional burdens on the trial judge in a trial that was
already large and complex.’ (Gassy)
95

Commonly Dietrich principle successfully applied where early request for a stay in order
to give accused time to get legal representation is rejected
‘Exceptional Circumstances’



Court must be satisfied that there are no exceptional circumstances that would justify
the trial proceeding in spite of the lack of legal representation
Accused is a skilled litigant (could represent themselves)(Dietrich; R v Fuller)
Mental illness
R v Wilson
 FACTS: Accused (W) had severe mental illness, needed treatment before being
considered fit to plead. W had not met his barrister until the morning of the trial and
had dismissed the barrister soon after. Unrepresented at trial and found guilty of
attempted murder. Successfully appealed.
 Decision to dismiss lawyers cannot be separated from mental condition and the effect it
had on behavior – mental illness can create sufficiently exceptional circumstances
Quality of legal representation









Legal representation need only be competent (Dietrich)
o ‘adequate’ (R v Page)
o ‘appropriate to the demands of the particular case’ (R v Souter)
o ‘adequate’ legal representative may be one who appears in the criminal
jurisdiction regularly (A-G (NSW) v Milat)
o mere fact that accused cannot be represented by particular counsel or his
chosen counsel will not necessarily mean they are unrepresented (R v
Gudgeon)
Not unrepresented merely because defence lawyers do not match the skill of the
prosecution (A-G (NSW) v Milat)
Legal aid package need only be sufficient to secure competent representation (A-G
(NSW) v Milat; R v Grosser)
If the legal representation was ‘manifestly inadequate’, or the level of legal aid
insufficient, the accused may be appropriately considered unrepresented (A-G (NSW) v
Milat; R v Souter)
o E.g. if a complicated case and impossible to secure legal representation for the
designated sum (R v Souter)
Unlikely that Dietrich principle applies where lawyer is merely incompetent
‘An accused may be denied a fair trial because his or her counsel is flagrantly
incompetent (R v Birks) or because he or she does not have any legal representation
(Dietrich)’(Eastman per Callinan J)
Lawyer decides how to run the case, accused usually held to the way their legal
representative decides to proceed at trial (R v Birks)
Trial is a dynamic environment in which mistakes are easily made and even expected (R
v Birks), a high threshold is applied to decide whether lawyer was ‘incompetent’
Where the applicant can show that the conduct of the legal representative resulted in a
material irregularity in the trial and that the material irregularity affected the outcome
96
of the trial, the trial may be considered unfair. May be appropriate to set aside
conviction in such circumstances (TKWJ v The Queen)
o Difficult to discharge the ‘heavy burden’ associated with this argument (Nudd v
The Queen)
o Not always necessary to satisfy the court that incompetence changed the
outcome of the trial – even where Prosecution’s case is strong the accused is
entitled to a fair trial (TKWJ per McHugh J)
o Not every error makes the trial unfair; not enough that a decision is erroneous –
error needs to have led to a loss of a real chance of acquittal (TKWJ)
o Fundamental error that undermines community confidence in legal service
Tuckiar (1934) HCA 49
 FACTS: HC held fair trial had been denied for multiple reasons, including that counsel
were incompetent. T’s counsel had divulged privileged information to the court,
inappropriately failed to object to certain evidence presented by the prosecution, failed
to make submissions on the law, and concurred with judicial discretions that were
wrong.
R v Paddon
 ‘Flagrant incompetence’ may give rise to the apprehension that an accused was not tried
fairly
 ‘Flagrant incompetence, in the sense of the obvious, shocking ineptitude, will not be
demonstrated by an error in judgment in the conduct of a criminal defence. There must,
at the least, be something in the conduct of the defence which could never be thought by
competent counsel in the circumstances of the trial to be of any possible advantage to
the accused.’ (Chesterman J)
Nudd (2006) HCA 9
 FACTS: Nudd (N) wanted to plead not guilty, lawyer did not follow instructions, failed to
properly advise the accused of the elements of the offence he was charged with, gave
incorrect advice in relation to evidence, inappropriately conceded certain matters, failed
to object to certain evidence and introduced prejudicial information in the closing
address. N appealed on the basis of the lawyer’s incompetence. The HC accepted that
the lawyer was incompetent, but did not order the conviction to be quashed because N
had not lost a real chance of acquittal; there was no real doubt about N’s guilt and the
process had ultimately not departed from the essential elements of a fair trial.
Legal Aid (Non Examinable)

Two pronged test applied to determine which cases will receive legal aid, and how much
state funding will be allocated to particular cases:
o Means test
 assesses a person’s income, assets and potential contributions
o Merits tested
 Reasonable prospects of success – legal aid more likely to be granted
where the case has legal and factual merit
 Prudent self-funding litigant – asks whether a privately funded person
with ‘deep pockets’ would be prepared to fund the litigation
 Appropriateness of spending limited public legal aid funds – examines
the benefit of funding the litigation for the individual and the
community
97


Serious crimes, especially matters heard in DC and SC, are prioritised
Issues:
o reduced choice of practitioners for disadvantaged litigants – senior lawyers
often unprepared to represent legally aided clients, so they must resort to junior
practitioners (lack of experience)
o More serious matters increasingly heard summarily in the MC – likely to have
implications for how legal aid funding distributed
Unrepresented Defendants


36% criminal cases trial division SC have unrepresented defendants
Judge has duty give the accused information and advice as necessary to ensure a fair trial
(MacPherson v the Queen per Mason J; King v the Queen)
o duty of the judge to provide the accused with such information and advice
concerning his rights as is necessary to put them in a position where they can
make ‘an effective choice as to whether he should exercise those rights, make
accused aware of important choices that need to be made (King v The Queen
per Kirby J)

Can go too far – need to balance interests of the accused and the community, and must
remain impartial (or maintain appearance of impartiality)
Limits:
o Judge cannot investigate facts or advise and direct the defence (Dietrich per
Mason CJ and McHugh J)
o Judge cannot cross-examine the unrepresented accused and take on a
prosecutorial role (R v Zurek)
o ‘Once the judge resorts to extensive questioning, particular the kind that
amounts to cross examination in a criminal trial before a jury, then he is
treading on thin ice. The thinness of that ice will depend upon the identity of
the witness being examined … and on whether the questions appear to be
directed towards elucidating an area of evidence that has been overlooked or
left in an uncertain or equivocal state, or directed towards establishing a point
that is favourable or adverse to the interests of one or other of the parties’ (R v
Esposito per Wood CJ)


SC Equal Treatment Benchbook (pp 178 – 186)
o includes specific directions and information that can be given to unrepresented
accuseds, including advice on their entitlements to challenge jury members, to
cross-examine witness and to object to questions asked by the prosecutor
McKenzie Friend


Someone who assists an unrepresented person in court
o A friend of the party (a de facto lawyer)
o does not represent the person
o cannot address the court unless invited to do so by the presiding judicial officer
o can give advice and suggestions
Court’s discretion to allow or exclude (Smith v the Queen), some matters that may lead
to the decision to allow include:
o the complexity of the matter
98

o difficulties for unrepresented person
o the fact that its heard in a lower court (Damjanovic v Maley)
Ultimately, the ‘guiding principle’ will be the question of what is in the interests of justice
(Damjanovic v Maley)
Amicus Curiae



People who seek permission to intervene in a case in which they are acting neither for
the prosecution nor the accused
o Friend of the court (not aligned to a particular party)
o will usually present information to the court or their own point of view
Court has discretion to hear from an amicus curiae (Australian Railways Union v
Victorian Railways Commissioners)
E.g. Levy v Victoria
99
WEEK 9 – Considerations Underlying Sentencing
What Is Punishment?




Hart’s formulation of punishment consists of 5 elements:
o It must involve pain or other consequences normally considered unpleasant
o It must be for an offence against legal rules
o It must be of an actual or supposed offender for his offence
o Person(s) other than the offender must intentionally administer it
o It must be imposed and administered by an authority constituted by a legal
system against which the offence is committed
Wilson’s formulation
o Ultimately the symbolic effect of a penalty is significant, not the effect it has on a
particular offender
o Punishment represents the ‘social clout of the norm’
Policy/fashion – what is appropriate for who?
o Conceptions of punishment change, follows trends
o post-WWII, community-based, rehabilitative options were more ‘fashionable’
o ‘Incarceration coming back into vogue’ – ‘populative punitiveness’, community
protection and incapacitation
Privatising punishment
o Punishment generally considered a role of the State
o Prisons increasingly privatized
Media and Sentencing




The ‘bark and bite’ effect (Casper and Brereton)
o ‘bark’ – legislative reform, usually focused on creating harsher penalties
o ‘bite’ – the role of the judiciary, which has broad discretion to impose the
sentence in each case and rarely imposes the maximum
Sentencing commissions (Vic, NSW)
Law and order and increased punitiveness – trends
o Increasingly incarceration being associated with sexual assault (especially
against minors)
o Shifts occur in terms of what is considered the ‘worst types’ of crimes, and thus
what crimes are deserving of imprisonment
Public understanding and the media as drivers for sentencing reform
o Public engagement usually ill-informed, largely as a result of poor,
sensationalizing media reporting
o Research suggests that the more the public understands the sentencing process,
the more likely they are to accept sentences that are handed down
The Sentencing Hearing

If the person pleads guilty, or after the person is found to be guilty, the appropriate court
officer administers the allocutus (s 648 QCC)
o If not given is not a guaranteed appeal point
o Is important in terms of whether accused allowed to withdraw a plea
o Marks the beginning of the sentencing hearing (as distinct from the trial)
100

Post-allocutus, submissions are made by counsel for both the offender and the
prosecution in order to give the court all the information necessary for decising the
appropriate sentence to be imposed.
o Both prosecution and defence will usually make submissions about appropriate
penalties (DPP v Bulfin)

Presentence report (s 15 PSA)
o Something that all the parties can use
o Can be ordered by the court (s 15(1))
o Hearing will be adjourned until report is ready
o Will include discussion of matters relevant to sentencing the particular offender
we well as medical, psychiatric or other details
o Written by probation and parole boards
o Make recommendations about appropriate sentence
o Just one of many pieces of information the judge can use to decide on
appropriate sentence

Prosecution goes first presenting their submissions
o May include statistics and examples
o If prosecution misbehaves at this point, may cause concern
R v Ku et al [2008] QCA 154 [18] - [21]
 FACTS: Number of young men raped a young girl. Prosecution agreed with defence that
accused’s should receive non-custodial sentences. Prosecution appealed sentence
handed down. Defence argued prosecution should not be able to appeal because they
recommended non-custodial sentence. Held appeal valid.
 Recommendations by counsel for either party irrelevant, what must be considered is
whether sentence is just.

Defence raises arguments for mitigation of sentence
o Defence usually trying to achieve the lowest possible sentence

Ultimately, it is a matter of the court to decide on the appropriate sentence (GAS and SJK
v The Queen)
o Judge decides based on facts

Only necessary for defence or prosecution to call evidence about an aggravating or
mitigating circumstance if the asserted matter is controverted by the other party, or if
the judge is unwilling to act on the assertion (even if uncontroverted by the other
party)(Evidence Act 1977 s 132C)

Different burden of proof applies (s 132C Evidence Act)**
o Prosecution and defence make submissions as to relevant facts
o If counsel for prosecution or defence wish to rely on a particular fact, and that
fact is not admitted by the other party, or is challenged by the other party, the
party seeking to rely on it must satisfy the judge or magistrate on the balance of
probabilities
o Judge has to be satisfied on the balance of probabilities of the facts on which
they sentence
o Will decide in favour of the accused if equally satisfied by both sets of facts
101

Judge may also consider victim impact statement (s 15 Victims of Crime Assistance Act
2009 (Qld))

Judge should avoid emotive remarks during sentencing (R v Porter)
o May support the argument that the proceedings were not fair (did not appear to
be fair)
o May be a point of appeal

Accepted facts must be consistent with jury findings (Cheung v the Queen)
Cheung v the Queen
 FACTS: A drug trafficker was sentenced on the basis that he is heavily involved, appealed
on the basis that he was not heavily involved. Held that the sentence was justified
because there was sufficient evidence that he was heavily involved.

If a sentence of imprisonment or suspended sentence imposed, court must give reasons
(s 10 PSA)
Judicial Discretion
Staged Process


Two-stage (Wong v The Queen)
1. determine the outer limit
2. make appropriate increments and decrements
Rejected in Markarian: ‘cannot now be doubted that sentencing courts may not add and
subtract item by item from some apparently derived figure, passages of time in order to
fix the time which an offender must serve in prison’
Instinctive Synthesis

‘after weighing all the relevant factors reach a conclusion that a particular penalty is the
one that should be imposed’ (Markarian)
Markarian v The Queen
 HCA preferred instinctive/intuitive synthesis approach over two-stage process
 Allowed that staged process may be appropriate for simple matters
Limits On Discretion

Statutory limits
o Maximum (upper limit, judges cannot go beyond
o Minimum (not in the QCC, apply to some traffic offences
o Mandatory
 Increasing in Queensland
 E.g. s 305 QCC murder - life
o Note: aggravated versions carry higher penalties (listed in the QCC)
 E.g. s 320 vs. 317 QCC
102

Numerical guidelines/guideline judgments
o See part 2A PSA (2010 – Court of Appeal)
o Court of Appeal can be requested to make a guideline judgment to inform of
general approach to a particular charge
o Directory and not binding


Follow sentencing principles developed in previous cases (R v Pesnak)
Take into account sentences handed down in comparable cases (R v Tabokovic; R v KU)

Sentencing decisions can be appealed, the possibility of which acts as a constraint on
discretion (‘judicial self-regulation’, Ashworth)
o Both prosecution and defence can appeal against sentence

Using statistics
o Can be useful, but be cautious, a guide only
o ‘raw statistics may afford impression as to the range and patterns of sentencing,
but they can sometimes mask a great variety of facts concerning an offence and
an offender which only the study of the detailed reasons in each case would
unveil’ (Wong, per Kirby J)
o ‘judicial air is thick with trends, statistics, appellate guidance, and often enough
these days, statutory guidance’ (Markarian per Kirby J)
R v Morton
 Reasonable for judges to expect prosecution authorities to have collected relevant
statistics and comparable cases
Totality

The aggregate sentence must be just and appropriate overall
Mill v The Queen
 Totality is a limiting and reductive principle, sentences should not be crushing
R v Schmidt
 Crushing is a pejorative adjective – sentences should not be pejorative (expressing
contempt or disapproval)




Where two or more offences form part of a series, concurrent sentences should be
imposed (s 155 PSA; Crofts)
o Generally, the sentence imposed for the most serious offence will be adequate to
punish the criminality involved (Crofts)
Separate penalties should be applied to each offence charged and they may be
specifically ordered to be served cumulatively (s 156)
Cumulate sentence for SVOs or where offences committed while in prison (s 156/156A
PSA)
Judge will consider remand period (s 159A PSA)
o May backdate or shorten sentence
103
Maximum

Maximum is rare and reserved for the worst case (R v Fernando)
Veen (No 2) at 10
 Cases falling within the worst category of cases deserve the maximum, but this does not
mean that a lesser penalty should be imposed if it is possible to envisage a worse case
R v Murdock (1980) Qd R 504)
 Maximum justified if:
o offence is grave enough to deserve the harshest sentence
o an examination of the offender’s history suggests they are of ‘unstable character’
and likely to reoffend
o if they do reoffend, the injury to others is likely to be particularly serious
Parity

Similar treatment amongst co-offenders
Postiglione v R
 ‘like as like’ should be the starting point, but the quest for perfect consistency is a quest
for the unattainable
 Co-offenders may be different, and deserving of different penalties
 ‘Equal justice requires that like should be treated alike but that, if there are relevant
differences, due allowance should be made for them’ (Gaudron and Dawson JJ)

Consider following factors:
o Culpability of each offender
o Guilty pleas (R v McQuire & Porter)
o Different personal characteristics of each offender (R v McQuire & Porter; R v
Ku et al)
Consistency



One of the purposes of the PSA is to promote consistency of approach in sentencing (s
3(c))
Promotes public confidence
Wong (2001) 207 CLR 584
Aims of Punishment


s 9(1) PSA
See Veen (No 2) – aims are only ‘guideposts’
o Aims can conflict or pull in different directions (e.g. community protection and
rehabilitation)
o Judges are required to determine which are the most important in the case at
hand
104

Do not punish to dispose of social problems (courts not ‘dustbins’ into which social
services can sweep difficult members of the public) or to achieve vengeance (R v Clarke;
Dooley v Polzin).

Only permissible justifications for punishment (s 9(1) PSA):
o just punishment
o rehabilitation
o deterrence
o denunciation
o community protection
Just Punishment





s 9(1)(a) PSA
Just deserts, proportionality, punishment should fit the crime
Operates to ensure penalties are neither too lenient nor too excessive
Sentence should not be increased beyond what is proportionate to the crime in order to
merely protect the community from the risks posed by the offender (Veen (No 2))
Not purely logical, sentencing is more of an art than a science (Veen (No 2))
Rehabilitation




s 9(1)(b) PSA
Promoted by community-based penalties
Declining as a prominent aim in sentencing, in light of increasing popularity of
incapacitation
Community-based sentences preferred for young offenders and first offenders
o better prospects of rehabilitation for younger people
Taylor & Napatali
 Rehabilitation is the primary aim for youthful first offenders
Fernando
 Where a crime is particular serious and the young offender has a relevant criminal
record, other sentencing principles may take precedence.

Minor drugs – special provisions (ss 15B – s 15F PSA)
o Diversion for treatment and education an option for certain eligible offences
Deterrence



s 9(1)(c) PSA
Assumes that offenders are rational and weigh their options before acting (Beccaria)
Make the cost of offending outweigh any benefit, create in offenders a fear of punishment
Specific Deterrence


Focused on the individual, and deterring the particular offender from reoffending
Does it work?
o Probably not for impulsive offending
105
o
o
More successful for a person with no/little criminal history
Irrelevant in cases of mental illness
General Deterrence





Focused on society/group deterrence
Very effective for traffic offences (drink driving)
May deter planning-oriented crimes (e.g. armed robbery)
Especially important in administration of justice offences
Increasing penalty for a particular offender on the basis it may deter others conflicts
with notion of ‘just punishment’
Amituani
 FACTS: Sentence higher to deter ‘loutish’ brawling by young men
 Where particular offence is prevalent, deterrence may be considered important
R v Pangallo
 FACTS: Solicitor guilty of bribing public prosecutor.
 Bribery needs to be deterred because it ‘strikes at the heart of the CJS’, deterrence needs
to be at the forefront of considerations (Lee CJ)
R v Sabanovic; ex parte A-G (Qld)
 Perjury – need to protect justice calls for response aimed at general deterrence
Denunciation


s 9(1)(d) PSA
Statement by the court of the undesirability of the behavior, conveys a message to the
community and the offender that the behavior is wrong and will not be tolerated
Ryan v the Queen
 Fundamental purpose of criminal law and sentencing is to denounce certain behaviours,
this requires that a sentence should communicate society’s condemnation of the
particular conduct
 Denunciation inherent in punishment itself, should not be additionally punished
R v Ku et al
 Court concerned to publicly denounce sexual abuse of young women in indigenous
communities to communicate to such women that they are protected
R v Nguyen
 Criminal behavior by police needs to be strongly denounced – fact that an offender is a
person directly involved in the administration of justice is important and makes offence
particularly deserving of denunciation.
Community Protection


David Garland – victim coming to centre stage, community protection becoming central
to the idea of punishment
s 9(1)(e) PSA
106



Relies on future harm and risk assessment – problems about reliability, ‘false positives’
o Risk is generally over-predicted
Difficult to reconcile community protection with proportionality (Veen (No 2))
Community protection generally associated with incapacitation, and incarceration
(‘punitive segregation’)
o Will often be counterproductive to rehabilitative aspirations
o Sentences focused on community protection may be excessively punitive
Factors



s 9(2) PSA
Aggravating (about offender or offence) increase culpability
Mitigating (about offender or offence) decrease culpability
Colless
 FACTS: C sexually assaulted women on bike paths.
 Many mitigating factors – cooperated with authorities, did not use weapons, did not
threaten, remorseful, psychologist reports said he was a good candidate for
rehabilitation, only digital penetration.
 Many aggravating factors – many instances (18), all involved violence, significant
planning

Where sentencing judge believes something is relevant should make sure parties can
address it (procedural fairness)
R v Lui
 FACTS: Judge made statements about prevalence of particular offending, drew on
statistical information that had not been put before the parties. Defence appealed on the
basis of lack of procedural fairness – defence counsel could have found statistics to
challenge the data relied on by the judge.

‘Extra-curial punishment’ will be taken into account, and may be a mitigating factor if
caused serious detriment to the accused (R v Hannigan)
o E.g. loss of job


See s 9(2) PSA
Any relevant matter (s 9(2)(r))
Character



s 11 PSA
Relevant (similar to the current offence) or recent prior convictions are aggravating
factors (Veen (No 2))
o Generally, a person who has been convicted of previous offences will receive a
higher sentence than a person who has no prior convictions (R v TL)
‘Good character’ may refer to an absence of prior convictions or general community
perception (Ryan)
107
Ryan


FACTS: Community perception of priest was inconsistent with prior convictions of
sexual assault
Prior convictions given greater weight than community perception
Age



s 9(2)(f) PSA
Youthful offenders (especially first time) will generally receive more lenient penalties
(Taylor & Napatali)
Older age and illness relevant – mercy sometimes extended to older people on the basis
that sentence will have a greater cost on offender if they are old or ill (Gulyas)
Gulyas v Western Australia
 ‘no uniform approach in respect of a plea for mercy on account of advanced age’
(Steytler J)
 Serious crime – age not a mitigating factor
Sopher
 FACTS: court reduced sentence because jail would be particularly difficult for the
accused on account of his old age and infirmity
 Offenders of older age, when they also have health issues, are more likely to receive
more lenient treatment
Intellectual Capacity



s 9(2)(f) PSA
Assume most people rational and intellectually capable
Reduced intellectual capability generally likely to reduce the offender’s culpability in
relation to the offending
Verdins
 Intellectual capacity is a relevant consideration in sentencing
 May result in a reduction of the accused’s moral culpability and have bearing on the kind
of sentence imposed (denunciation less likely to be a relevant sentencing objective)
 General deterrence not an appropriate aim in sentencing a person with intellectual
capacity issues
 Specific deterrence needs to be moderated because it will only be effective to the extent
that the person can understand the link between their offending and the punishment
 Serious risk of imprisonment having a significant adverse effect on the offender’s mental
health will be a mitigating factor
Damage/Injury/Loss



s 9(2)(e) PSA
Higher impact on the victim or the community may operate to increase the penalty
Victim impact statements tell the court exactly what damage/loss has been suffered (s
15 Victim of Crime Assistance Act 2009 (Qld))
o Victim can be cross examined by the defence lawyer
108
o
o
Concern that cross examination is secondary victimization, and defence lawyers
are discouraged from doing this
Material in VIS may be considered as fact for the purpose of sentencing if not
controverted by the other party
R v Singh
 Would be unfair to give weight to the unchallenged VIS
 ‘If they contain material damaging to the accused which is neither self-evidently correct
nor known by the accused to be correct they should not be acted on. The prosecution
should call appropriate supporting evidence. It is unfair to present the accused with the
dilemma of challenging a statement of dubious probative value, thereby risking a finding
that genuine remorse is lacking, or accepting that statement to his or her detriment’
(Fryberg J)
Cooperation With Authorities

Actual assistance and promised assistance rewarded with mitigation
o Co-operation is a tangible expression of remorse
o May encourage others to assist police
o Cost-savings
Wong v the Queen
 Related to other mitigating factors, like remorse and guilty plea
York

FACTS: extentsive cooperation led to significant sentence reduction (included full
admissions in a record of interview, plea of guilty, providing evidence, submitting to
necessary procedures)
AB v The Queen
 When the crown sets out facts surrounding the charge, if they have drawn on
information that has been given to them by the accused, this will be looked on
favourably for the accused
 Disclosure of information by the accused to the crown may be a mitigating factor

Relevance of injury inflicted by police
R v Galeano
 FACTS: Accused did not cooperate, but had goods reasons not to cooperate (was caught
unaware, police not clearly identifiable, fled in terror). Fact that accused did not
cooperate was ‘neutralised’ by inappropriate conduct by police.

Promised assistance with authorities by accused (s 13A PSA)
o Take details of what assistance is promised
o If offender fails to fulfill their promise of assistance they may be resentenced (s
188(2) PSA)
R v Webber
 Discount for assistance should be discernible and worthwhile
 Assistance is encouraged
109
Culture

Equality principles
Fernando (1992) 76 A Crim R 58
 The sentencing judge must avoid any hint of ‘racism, paternalism or collective guilt’
Neal v The Queen
 Sentencing should not be discriminatory
 In imposing sentences courts are bound to take into account all material facts, including
those facts which exist only reason of the offender’s membership of a particular ethnic or
other group (Brennan J)


Royal Commission into Aboriginal Deaths in Custody (RCADIC)
Community Justice Groups (s 9(2)(p))
o Where the offender is ATSI, court must have regard to any submissions made by
a representative of a community justice group in the offender’s community
o Submissions may relate to the offender’s relationship to their community or any
cultural considerations
R v Roberts
 Sentencing court not required to follow directions in community justice group
submission, but must consider

Murri Courts had a different sentencing process
Impact on Self and Others

Impact of the sentence on the offender themselves only considered if exceptional
o More likely to be considered than impact of statement on others
York v the Queen
 FACTS: Sentencing judge took into account evidence that the offender had assisted
authorities, which would put her life at risk were she to be imprisoned, reduced penalty
accordingly.
 ‘The effect of serving a term of imprisonment, and the conditions under which an
offender would serve that sentence, are relevant matters that may be taken into account
by a sentencing judge – at least when that effect and those conditions are shown to be
different from, and more onerous than, the effect on and conditions undergone by other
prisoners’ (Hayne J)

Impact of the sentence on others only considered if exceptional
R v Tilley
 Important to preserve family unit wherever possible, but must also be balanced with
community interests and the family lives of ordinary people (arguably better served by
criminal going into custody)
110
Burns v The Queen
 FACTS: accused submitted that a lengthy prison sentence would be particularly harsh
because it would separate her from her children
 Effect of sentence on dependents must be truly exceptional before it will affect the
sentence
 Interests of family and dependents are relevant in relation to the choice between
custodial and non-custodial options (Anderson J)
R v Chong; ex parte A-G (Qld)
 FACTS: Court informed that accused would be imprisoned 600km from children, would
not be able to take breast feeding baby into prison (sufficiently exceptional)
Community Based Sentences Preferred


s 9(2)(a) PSA
Rationale:
o Imprisonment impacts many facets of offender’s life – loss of employment,
disconnection from family and social support networks
o Likelihood of reoffending increases once incarcerated
o Imprisonment expensive for the community and does not rehabilitate

Exceptions to the rule that imprisonment is a last resort:
o Violent offenders (s 9(3) and (4) PSA)
 Violent has a broad meaning (R v Barling; R v Breeze)
o Sexual offences against children under 16 (s 9(5) and (6) PSA)
 Given broad scope, sufficient that offender merely had the subjective
intention to commit an offence, even if not actually committed (R v
McGrath)
o Offenders charged with certain offences associated with computer games and
images (s 9(6A) and (6B))
Effect – focus primarily on community protection (s 9(2)(a) PSA does not
apply)(privileges protective, incapacitative aim of punishment)

111
WEEK 10 – Punishment And Penalty
 Penalty and Sentences Act 1992 (Qld)
Penalty Hierarchy (Inferred From PSA)
Is there a penalty hierarchy? Inferred (PSA).
Lower level penalty
->
Intermediate penalty
->
Higher level penalty
•Convic on not
recorded / convic on
recorded (s12 PSA)
•Convic on not
recorded / convic on
recorded (s12)
•Bond / recognisance
(Part 3)
•Community Service
Orders (CSO) (Part 5)
•Fines (Part 4)
•Proba on (Part 5)
•Convic on recorded
•Intensive Correc on
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)
2
Recording a Conviction
 s 12 PSA
 A penalty of itself
 Less likely to be recorded where the crime is trivial (s 12(2)(a)), victimless, where there
is only minor criminal history or no prior convictions (R v Briese; Ex parte A-G)
 Judge or magistrate is required to consider the nature of offence, character and age of
offender, impact of recording conviction on social/economic wellbeing and chance of
employment (s 12(2)).
Walden v Hensler
 Consider triviality of the offence
 Cannot be determined by reference to the maximum penalty applicable for the offence
(Brennan J)
 Consider the conduct that constituted the offence and the actual circumstances in which
the offence was committed (Dawson J)
R v Briese; Ex parte A-G
 Appropriate to consider public interests: the more serious the offence, the greater the
public interest in knowing about it.
 May be appropriate to consider: use/extent of violence, exploitation/abuse of trust, loss
to victim, propensity/risk of reoffending, seriousness of the offence
112
R v Ndizeye [2006] QCA 537
 Consider employment prospects
R v Dodd at [18]
 McMurdo P: ‘The question of whether or not to record convictions in this case is finely
balanced because of the serious nature of Dodd's offending on the one hand, and the
many factors in Dodd's favour on the other. The discretion could quite properly be
exercised either in recording or not recording convictions. I am finally persuaded that
Dodd should be given the benefit of not having convictions recorded against him, despite
the seriousness of the offences. His commission of these offences seems completely out
of character and at a time when his life was at a low ebb. To his credit, he has since
turned his life around and made impressive efforts at rehabilitation. Convictions are
likely to detrimentally impact upon his economic and social well-being. Should he lose
his present employment, convictions would detrimentally affect his chances of finding
employment in the future. If the decision to not record convictions turns out to be
misplaced and Dodd re-offends in any significant way during the two year probation
period he is presently undertaking, he will be dealt with by the courts with the likely
consequence of then having convictions recorded for these offences.’
R v SAT
 Record sexual offences against children unless exceptional circumstances
R v Mirza; ex parte AG at [28]
 FACTS: Offender pleaded guilty to attempted indecent treatment of a child under 12,
sentenced to 12 months’ probation without conviction recorded. A-G’s appeal against
the sentence refused.
 McMurdo P held the following factors had to be considered: Pre-meditation, actual
physical indecent contact, victim impact, guilty plea, history of employment and
community service, excellent rehabilitation prospects, impact of conviction on
social/economic wellbeing and chances of future employment
Releases

Part 3 PSA provides range of alternative responses that can be applied to offences alone
or in conjunction with other penalties
o ‘Admonish and discharge’ (s 19(1)(a))
 Court may release offender absolutely, with no further requirements
o Good behaviour bond (with recognisance/sureties/drug assessment &
education/compensation/restitution)(s 19(1)(b))
 Court must not record conviction (s 16)
 3 year maximum

Court should consider:
o whether leniency appropriate
o offender’s age, character, health, mental condition (s 18(a))
o Nature of offence (s 18(b))
 trivial? - Walden v Hensler
o Circumstances of offence which may make it less serious (s 18(c))

If offender does not contravene the order it terminates when the specified period
expires
113

If offender contravenes the order (reoffends, fails to fulfil any conditions)(s 20):
o Court may order recognisance forfeited
o Court may make a new order
Other Minor Penalties

Recognisance for minor property related offences (no conviction) (ss22-28)
o Recognisance: offender will be indebted to the court for an amount of money
specified by the court and the debt will be extinguished if the offender remains
on good behaviour until the completion of the order.

Orders for restitution or compensation (with other penalties…) (ss34-43)
R v Ferrari
 FACTS: Woman was a passenger in a stolen vehicle, charged along with the driver for
unlawful use of a MV. Placed on good behavior bond and ordered to pay $1000
restitution for the car. Appealed, higher court held it should be a compensation order.
R v Civoniceva
 FACTS: Accused given a restitution order as well as a bond, argued it was excessive
 Restitution not relevant to assessing whether sentence is ‘ manifestly excessive’
Fines
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Part 4, ss 44 – 51 PSA
The outcome in over 70% of cases before the courts
A fine is an amount of money usually paid into state revenue.
Court can impose a fine whether or not conviction recorded (s 44)
No consent of the accused needed (unlike CSO or probation order)
May be in addition to, or instead of, any other sentence (s 45(2))
Penalty unit - $110 (most cases) (s 5)
The court must take into account the financial circumstances of the offender and the
burden on the offender (s 48)
o Ensures substantive justice and equal impact
o Defence strategy – make dire financial circumstances known to the court
o See Woolard v Ellis
Maximum and limits (s 49)
o Single fine can be ordered for multiple offences, but cannot be more than the
total of the maximum fines that could be imposed for each offence (s 49(2))
Sentencing judge/magistrate can order that the fine be paid in instalments (s 50) or that
the offender be given a certain amount of time to pay (s 51)
Offender can apply for a fine option order which allows the fine to be converted to
community service (Pt 4, Div 2)
o Granted where the court satisfied that the offender cannot pay, the offender’s
family will suffer hardship if it is paid, or that the offender is suitable for
community service (s 57)
o Up to 5 hours work can be ordered for each penalty unit
If fines are not paid (community service not completed), range of responses available:
o Seize property
o Direct debits from social security accounts
o Arrest and imprisonment (last resort)
114
Woolard v Ellis
 Discussion of burden of the fine on the accused
 FACTS: accused had no savings, ongoing obligation to pay board, physical impairment
limited capacity to work. Argued fine was manifestly excessive, it was reduced on
appeal.
R v Meid
 FACTS: Accused grew marijuana in her backyard, put some in an esky and drove from
Victoria to Queensland, shared with friends. Charged with possession and supplying,
fined approximately $1000. Would have preferred to convert to a CSO, but because not a
Qld resident could not. Appealed amount of the fine, argued it was excessive because
she did not have the option to convert it to CSO. Dismissed.
R v Prentice
 FACTS: Accused owned a car dealership, fixed used cars (wound back odometers).
Charged under the Fair Trading Act for 34 counts, maximum amount for each offence
$40 000. Court ordered total $40000, appealed on the ground of manifest excess. At the
time he was sentenced he was bankrupt, had sold business and house to run the trial,
unable to get another licence to sell cars, fine impossible to pay on negligible wage.
Court found $40000 was crushing, reduced to $20000.
 Possible to appeal in relation to the amount of the fine, if it is ‘manifestly excessive’, or
‘crushing’
Probation

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Part 5 (ss 90 – 99) PSA
Require offender to enter into a bond for a specified time, during which the offender
must report to an authorised officer, must not commit another offence and must take
part in counseling as directed (s 93)
At sentencing judge/magistrate’s discretion probation order may also contain other
conditions, such as submitting to counselling or treatment (ss 93 and 94)
Can be ordered whether or not conviction recorded (s 90)
Offence must be punishable by imprisonment (s 91)
Offender must consent to being placed on probation (s 96)
Can make single order for group of offences (s 97)
6 months - 3 years (s 92)
An offence to contravene, if convicted magistrate has a range of options (s 123)
R v Hood (per Jerrard J)
 FACTS: Imposition of a CSO for aggravated burglary (actual violence, with a Japanese
sword)
 Probation appropriate in the following circumstances:
1. Immediate probation can be imposed at the same time as actual imprisonment
(of up to 12 months - even where continues as suspended after that period) on
other counts (concurrent)
2. Probation cannot be ordered at the same time as an Intensive Correction Order
3. A suspended sentence of any length can be imposed at the same time as a
sentence of probation for other offences
115
Community Service Order

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ss 100 – 108 PSA
Require offender to carry out work for a set number of hours (s 102)
Can be ordered regardless of whether conviction recorded (s 100)
Offence must be punishable by imprisonment
Offender’s consent required and offender must be assessed as suitable (ss 106; 101)
Various conditions, including reporting regularly to an authorised officer and work (s
103)
40-240 hrs within 1 yr; 240 hours max overall (s 103)
Single order can be made for a group of offences (s 107)
An offence to contravene, if convicted magistrate has a range of options (s 123)
Nieto v Mill
 FACTS: Offender found guilty of 2 counts of theft. Court placed him on a CSO for 80 hours
for the first, and fined $100 for the second. Appealed, argued 80hrs manifestly
excessive, that when calculated in light of his usual wage well in excess of the $100 fine
for the other offence. Rejected.
 Leggo J: CSOs are a substantial punitive measure requiring offenders to incur a
significant reduction of their personal liberty each week without the community bearing
the financial costs associated with imprisonment, and without the offender experiencing
the complete disruption of social, financial and employment obligations that results from
imprisonment. The element of punishment inherent in the scheme derives from the loss
of leisure time, and it is not valid to compare different amounts or different hours
imposed between cases.
R v Vincent
 FACTS: Vincent was a disability pensioner, had worked throughout his life, grew
cannabis plants on his property. Received suspended sentence and CSO, appealed, held
an appropriate sentence in the circumstances.
 PSA should be flexible enough to meet the needs of the particular case, but not to
produce inconsistent results
 Possible to combine CSO with a suspended sentence, so long as there is no inconsistency
R v Mathers
 Probation order can be imposed at the same time as a CSO.
 If offender breaches probation or CSO court has absolute flexibility as to how to respond,
but imprisonment should be the last resort
Grieg v A-G (Qld)
 A CSO cannot be combined with an intensive correction order as they are inconsistent
 ICO already incorporates community service, would be inappropriate to order both
 Reality is that CSOs are only available in larger metropolitan areas due to issues of
supervision, inequality for remote regions
 Benefits:
o Type of work can be tailored to type of offending (e.g. vandals wash graffiti)
o Rehabilitative and symbolically reparative functions (Ashworth)
116
 Risks:
o
o
CSOs and probation orders ‘widen the penal net’, increasing state surveillance of
civilian life
Offenders have opportunity to mix with other criminals, making it more difficult
to break with offending behaviour
Intensive Correction Orders

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Part 6 (ss 111 – 119) PSA
Must record a conviction (s 111)
Accused must consent (s 117)
Alternative to the serving of a term of imprisonment of 1 year or less (s 112)
Offender serves a term of ‘imprisonment’ in the community, rather than in prison (s 113)
Requires strict compliance with conditions including reporting, attending counseling
and other programs, undertaking community service and abiding specific residential
conditions (s 114).
Medical treatment may also be ordered (s 115)
An offence to breach ICO (s 123), imprisonment usually ordered
Where there are multiple offences and the court sentences the offender to 2 or more
terms of imprisonment at the same time, court can only order an ICO if the total period
to be served is less than 1 year (s 118).
R v Tran; Ex parte A-G (Qld)
 High level of compliance with requirements associated with ICO
 FACTS: Accused guilty of armed robbery. A-G appealed against sentence because
penalty inadequate. Argument rejected.
 ICO should be seen as the equivalent to a term of imprisonment, akin to loss of liberty
when onerous requirements considered
R v Hesketh; Ex parte A-G (Qld)
 Awkwardness results from the ‘statutory fiction’ that an ICO is a term of imprisonment.
R v Bagust
 If an offender receives an ICO they are not sentenced to a period of imprisonment for the
purposes of s 9(2)(a) (imprisonment as a last resort)(McMurdo P)
R v Hood
 ICO and probation cannot be ordered together, inconsistent

Considered an escape from imprisonment for wealthy offenders, comfortable if live in a
comfortable home
o Issues of formal vs. substantive equality
Suspended Sentence


Accused sentenced to period of imprisonment, sentence is suspended; so long as
offender does not reoffend there are no other consequences (no associated conditions)
o If offender lasts period without reoffending, does not suffer any punishment
Enables court to denounce the offending behavior through the formal imposition of a
sentence, while allowing for a merciful response to the particular circumstances of the
offender
117
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An alternative to imprisonment
Part 8 (ss 143 – 148) PSA
Must record a conviction (s143)
Can only suspend if sentence for 5 years or less, cannot be less than the period of
imprisonment (s 144)
Period of suspension can be longer than the period of imprisonment (R v Smith)
Court may order that all or part of the sentence is suspended (s144)
A ‘sword of Damocles’
Court must state an operational period during which the offender must not commit
another offence, punishable by imprisonment (s 144)
Dinsdale v The Queen
 HC reaffirmed the value of suspended sentences
 A two step process required before suspended sentence can be imposed:
1. Primary determination that a sentence of imprisonment, and not some lesser
sentence, is called for
2. Second determination that such term of imprisonment should be suspended for
a period set by the court
 Consider a range of matters to determine whether suspension is appropriate, including:
offender’s prospect of rehabilitation, all the circumstances and information available, the
nature of the particular offence, the low likelihood of reoffending, impact that a prison
sentence would have on the offender and their family, the ‘social stigma’ that follows
conviction (Kirby J)
York v The Queen
 FACTS: York pleaded guilty to serious drug matters. She had assisted authorities, her
assistance led to the conviction of a brutal murderer. She received threats to her life and
safety, and evidence that certain women prisoners would harm York in prison.
Sentencing judge considered if imprisoned, could be killed. Suspended sentence
entirely. Court of Appeal found actual sentence of imprisonment appropriate, HC
disagreed and reinstated original suspended sentence.
 McHugh J: ‘[trial judge] appropriately balanced the relevant, even if conflicting,
considerations of ensuring the sentence protected society from the risk of [the offender]
reoffending and inflicting condign punishment on her on the one side and ensuring the
sentence protected her from risk of her fellow inmates committing serious against her
on the other side.’
 Consider safety of the offender, danger to the offender if imprisoned
Breach Of Suspended Sentence

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ss 145, 146, 147
If the person reoffends during the period of suspension, they will be in breach and
generally must serve the whole of the suspended sentence, unless to do so would be
unjust in the circumstances (R v Holcroft). The court ultimately has discretion as to how
much of the sentence to activate, or whether to extend the suspended sentence .
Risk in not following that general rule is that the integrity of suspended sentences is
compromised
The onus is on the offender to show that it would be unjust to order the offender to serve
the balance of the sentence (s 147(2))
118
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
Court may consider extending the operational period of the sentence, further suspending
the sentence (if the time has expired), or order the person to serve part or the whole of
the suspended part of the sentence (R v Summerlin)
If re-offending was similar to original offence, full sentence should be activated (R v
Stevens)
In deciding how to respond to a breach, court should consider (s 147(3)):
o The nature and circumstances of the reoffending (R v Hurst)
o The criminal history of the accused
o Any genuine efforts made by the defendant to rehabilitate (R v Stevens)
R v Hurst
 FACTS: Held that driving while unlicenced should not activate penalty for breach of
suspended sentence
Imprisonment


Part 9 PSA
Reality and risk of prison in Qld
o Disease (Hepatitis, aids, mental health)
o Costly
o Strong correlation with recidivism – does not rehabilitate or deter offenders


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The maximum penalty restricted to the worst cases (Fernando)
A penalty of last resort (s 9(2)(a)(i) cf ss 9(3);(5);(6A))
Must record a conviction (s 152)
Generally, a court should not impose a single period of imprisonment for a group of
offences; preferable that courts impose separate sentences for separate offences (R v
Crofts)
Generally imprisonment will be served concurrently (s 155), unless ordered to be served
cumulatively (s 156)
Must cumulate in certain cases (relate to offending while on parole, in jail, etc.)(s 156A)
Time served on remand deducted from sentence of imprisonment, unless court
otherwise orders (s 159A)

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Chapter 5 Corrective Services Act 2006 (Qld)
o Sentencing judge or magistrate usually sets the non-prole period the prisoner
must serve before parole can be considered. Application for parole will be
considered by the parole board at the time recommended by the sentencing
court or after serving a fixed percentage of imprisonment (s 179 CSA; ss 160C
and D PSA)
o Parole eligibility date for prisoners serving life sentences (s 181 CSA):
 Generally, after 15 – 30 years
 Murder, after 20 years (s 181(2)(c))
R v Sica
 FACTS: Court sentenced him to 35 years, more appropriate in light of nature of
offending. Appealed, held that court has discretion and that in the case it was
appropriately used.

Remissions abolished in 2006 – overrides sentencing discretion
119

Serious violent offences - 80% or 15 years (whatever is less), admin decision by parole
board (s 182)
Serious Violent Offenders
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Part 9A (ss 161A – 161C) PSA
Schedule 1 offences – e.g. riot, threatening violence, robbery, rape and attempted
murder.
When an offender is convicted against a provision in schedule 1 and sentenced to 10 yrs
imprisonment or more the court must declare that accused is a SVO (s161B(1))
When an offender is convicted against a provision in schedule 1 and sentenced to 5 yrs
or more (but < 10), the court may declaer that the person is a SVO (s161B(3))
o Courts reluctant to exercise their discretion to declare
o Defence lawyers negotiate for <10 yr sentence
Violent offenders must serve 80% or 15 yrs (whichever comes first)of their sentence
before being eligible for parole (s 182 CSA)
R v McDougall and Collas
 The court emphasised that a critical factor to consider when sentencing is the effect on
parole
 Consider whether:
o The offence has features warranting a sentence requiring the offender to serve
80% of the head sentence before being able to apply for parole (consider
violence)
o reasons should be give for the exercise of the discretion and the defendant
should have an opportunity to be heard
o for the reasons to show that the declaration is fully warranted in the
circumstances will usually be necessary that declarations be reserved for the
more serious offences that, by their nature, warrant them.
 Declaration may be an appeal point, may make sentence manifestly excessive
Repeat Serious Child Sex Offences
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Part 9B PSA
Introduced in 2012.
Relevant offences listed in schedule 1A
E.g.: s208 unlawful sodomy; 213 owner permitting abuse of children on premises; 215
carnal knowledge children u16; s219 taking child for immoral purposes; 222 incest; 349
rape; 352 sexual assaults.
Serious child sex offence for the purposes of s 161E means an offence against schedule
1A which involves a child under 16 and circumstances where the offender would be
liable for life imprisonemnt.
161E repeat offender = life (mandatory)
Two strikes: State clamps down on child sex offenders
Indefinite Sentences
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A sentence of imprisonment for an indefinite term
Oriented towards victim protection (s 9(1)(e)
Conflicts with principles of proportionality and finality
s 162 must be regular review
120
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
A court may impose an indefinite sentence on an offender convicted of a ‘violent offence’
(s 163)
o Violent offence: an indictable offence which involves violence against a person,
must also be one for which an offender may be sentenced to life imprisonment
(i.e. murder/manslaughter, various sexual offences)(s 162)
Prosecution must prove, and the court must be satisfied, that the offender is a serious
danger to the community (s 163(3), 169)
Court must be satisfied (s 170):
o by acceptable, cogent evidence; and
o to a high degree of probability;
o that the evidence is of sufficient weight to justify the finding.
Buckley’s Case
Dangerous Prisoners (Sexual Offenders) Act 2003
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Applies to prisoner serving period of imprisonment for a ‘serious secual offence’ (s 5(6)
DPA)
During the last 6 months of their term (s 5(2)), an application can be made to the
Supreme Court for orders for continuing detention or for supervision of a prisoner postrelease (s 5(6))
Supreme Court can make a final continuing detention order or a supervision order (s 15)
The court must be satisfied that the prisoner is a ‘serious danger to the community’ in
the absence of such an order (s 13(1)
o paramount consideration - ensure adequate protection of the community (s 16)
The court may decide that the person would be a serious danger to the community if
released only if it is satisfied (s 13(3))
o By acceptable, cogent evidence; and
o To a high degree of probability
o That the evidence is of sufficient weight to justify the decision.
Attorney-General (Qld) v Fardon

FACTS: Fardon appealed to the HC arguing s 13 DPA conferred jurisdiction on the
Supreme Court that was repugnant to its integrity as a court. Majority of the HC held the
provision was valid.
Risk

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An imprecise sentence that relies on intellectual intuition
Using statistics antithetical to individual nature of sentencing
Low probability of re-offending – 15% (false positives)
Non-Contact Orders
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Require offender does not have any contact with the victim against whom the offence
was committed (may also require offender does not go to a certain place, or within a
specific distance of the victim).
Can be made whether or not conviction recorded and along with another sentencing
order (Pt 3A PSA)
Contravention is an offence, punishable by maximum 1 year imprisonment (s 43F PSA)
121

Max period: 2 yrs (s 43C(2) PSA).
R v Gaudry
 Does not add to excessiveness of sentence
122
WEEK 11 – Appeals I
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A higher court will generally be reluctant to overturn a jury conviction
Where there has been an exercise of judicial discretion a higher court will be reluctant to
overturn it
Usually acquittals cannot be appealed
Where to Appeal?
Appeals from the Magistrates Court to the District Court
s 222 Justices Act
s 222 Appeal to a single judge
(1) 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.
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An ‘as of right’ appeal to a single judge of the DC
‘Complainant’ – usually a police officer
‘Feels aggrieved’ – must have a ‘real or direct interest’ in the matter, may include a victim
but not a ‘mere busybody’ (McCarthy v Xiong per Underwood J)
o Broader category of possible appellants than in higher courts
o Usually appealed by defendants
‘Within 1 month’ – possible to extend time (s 224(1)(a) JA)
o Same principles to extending time applied as appeals to the Court of Appeal
(Tait)
If a person pleads not guilty and is convicted the person can appeal against the
conviction, sentence and costs (s 222(1))
If a person pleaded guilty any appeal is confined to sentence (s 222(2)(c))
Can appeal the decision of a magistrate to deal with indictable matter summarily (s 552J
QCC)
123

To institute an appeal, a notice of appeal is filed in the DC registry stating the ground/s
of appeal (s 222)
Exceptions Within s 222 Justices Act

(2)(a) a person may not appeal under this section against a conviction or order made in
a summary way under the Criminal Code, section 651;
o NB: s 651(2) QCC: The court (DC or SC) must not hear and decide the summary
offence unless—
 (a) the court considers it appropriate to do so; and
 (b) the accused person is represented by a legal practitioner; and
 (c) the Crown and the accused consent to the court so doing; and
 (d) the accused person states his or her intention of entering a plea of
guilty to the charge; and
 (e) the complaint or bench charge sheet for the offence, or a copy, is
before the court, whether or not returnable before another court.

(2)(b) if the order the subject of the proposed appeal is an order of justices dealing
summarily with an indictable offence, a complainant aggrieved by the decision may
appeal under this section only against sentence or an order for costs
o Complainant usually a police officer
o Indictable offences carry similar rights of appeal for the complainant in both
lower and higher courts
o If complainant appeals against summary convictions were allowed there would
be issues with double jeopardy
McKinlay v Commissioner of Police

Any appeal by a police officer of an indictable matter heard summarily is limited to
appealing sentence of cost
Lucev v QPS

Court cannot increase sentence without advising the parties
 Accused should be allowed the opportunity to withdraw their appeal so they do not
receive a higher sentence

(2)(c) if a defendant pleads guilty or admits the truth of a complaint, a person may only
appeal under this section on the sole ground that a fine, penalty, forfeiture or
punishment was excessive or inadequate.
Hall v Bobbermen
 FACTS: accused charged with unlicenced driving. After conviction became clear that he
had a licence in NSW. Appealed against conviction.
 Conviction may be overturned if the charge did not exist at law
 ‘plea of guilty to a charge that clearly did not exist at law’
Ajax v Bird
 Appeal against conviction would be allowed in plea of guilty entered improperly or
unfairly (equivocal)
 ‘appellant’s plea was equivocal or, upon analysis amounted to a plea of not guilty’
124
R v Samson
 Can a defendant who pleads guilty appeal against costs?
 Held that it is also possible to appeal against costs
 Gap in the statute, was not clear that the legislature sought to disallow appeals against
costs, so it should be allowed.
Attorney-General Appeals from Magistrates Court





s 669 QCC
All appeals by the A-G go to the Court of Appeal (CoA)
A-G can appeal against sentence imposed for indictable offence dealt with summarily,
A-G can appeal against sentence and defence against conviction and/or sentence for
indictable offence dealt with summarily
A-G can refer point of law which arose at the summary trial of an indictable offence to
the Court of Appeal (also s 227 JA)
o The CoA’s response to the reference cannot affect an acquittal (s 669A(2))
Harrison v Wilkins
 FACTS: Convicted of a driving offence, was allowed a provisional licence but never
obtained one. Charged again with a driving offence, argued that he was unlicenced. CoA
held that even though he was eligible for a licenced, he was unlicenced.
 If something happens in MC in relation to an indictable offence, possible that A-G can
seek clarification from the CoA about a point of law
Evidence Heard on Appeal
223 Appeal generally a rehearing on the evidence
(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given
in the proceeding before the justices.
(2) However, the District Court may give leave to adduce fresh, additional or substituted
evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
(3) If the court gives leave under subsection (2), the appeal isa) by way of rehearing on the original evidence; and
b) on the new evidence adduced.


rehearing on the evidence = review transcript of the recorded proceedings in the
Magistrates Court where the original evidence was heard
The judge hearing the appeal should afford respect to the decision of the magistrate and
bear in mind any advantage the magistrate had in seeing and hearing the witnesses give
evidence, but the judge is required to review the evidence, to weigh the conflicting
evidence, and to draw his or her own conclusions (Rowe v Kemper)
Pavlovic v Commissioner of Police

Same test applied for admitting new evidence on appeal as is applied in the CoA
(Mickelberg)

Will be more lenient and flexible around allowing fresh evidence if the accused was
unrepresented
125
Powers of the Judge on Appeal
225 Powers of judge on hearing appeal
(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or
make any other order in the matter the judge considers just.
(2) … judge may send the proceeding back …directions for rehearing or reconsideration.
226 Costs
Judge may make such order as to costs [as is] just.
 a discretionary decision – will largely depend on the behaviour of the parties and in most
cases the judge will not order cost
Murray v Radford
 FACTS: Murray (M) was charged, went to trial, was found not guilty. Sought costs from
Police who charged him. Magistrates refused to award costs because his behaviour was
erratic and inappropriate. Appealed. Court of Appeal ordered costs against M.
118 District Court Act
May appeal again to the Court of Appeal BUT only if Court of Appeal grants leave.
 CoA more likely to grant leave to appeal for significant questions of law
von Schultz v Durrant
 FACTS: CoA did not grant leave to appeal against parking fine
 CoA only interested in questions of law of some significance and in appropriate
circumstances
Appeals Against Conviction From District or Supreme Courts to Court of
Appeal




ss 668B, 668D, 669A QCC
Rules similar for judge alone and jury trials
Appeal available ‘as of right’ if it only involves a question of law (s 668D(1)(a))
Defendant must be granted leave to appeal against conviction if appeal is regarding law
and fact (or fact alone)(s 668D(1)(b))
Fitzgerald

FACTS: Home invasion, woman is shot and killed. Accused argued shooting was an
accident. Judge directs the jury: ‘if the accused has failed to prove the killing was not by
accident…’. This was an error of law (burden of proof), gives the accused a right to
appeal to the Court of Appeal.
R v Zischke
 FACTS: Judge directs the jury as to the meaning of criminal damage incorrectly (law).
Also issues about cost of clean-up of vandalism (fact). Leave of CoA required to appeal.
Fact/Law Distinction
Ostrowski v Palmer
 Mistakes of fact/law distinction not always clear
126


Question of fact – something to be decided by jury (or magistrate in lower court)
Question of law – something to be decided by the judge (or magistrate in lower court)
Timing
671 QCC Time for appealing
(1) Any person convicted desiring to appeal to the Court, or to obtain the leave of the Court to
appeal from any conviction or sentence, shall give notice of appeal or notice of application for
leave to appeal, in the prescribed manner, within 1 calendar month of the date of such conviction
or sentence.
(3) The time … may be extended at any time by the Court
R v Tait
 FACTS: Did not appeal within a month because he was in custody, confused and afraid,
not aware of his right to appeal.
 In deciding whether to grant extension, consider:
o whether delay is prejudicial to the respondent
o length of the delay
o reasons for the delay
o viability of the appeal (reasonably likely to succeed)
o the interests of justice (overarching consideration)
R v Riley
 All issues from Tait considered equally (no hierarchy)
R v Hatten
 FACTS: Was unaware of ability to appeal before incarcerated. Accused was young,
borderline IQ, unrepresented.
 Court will consider personal characteristics when deciding whether extending time limit
is in the interests of justice
Fresh Evidence on Appeals

s 671B QCC
Mickelberg
 Fresh evidence admissible if:
o New, not available at the original hearing (not obtainable through exercise of
due diligence)
o Would have made a difference (per Toohey and Gaudron JJ)
 ‘In essence, the fresh evidence must be such that, 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.’
RvA

‘Fresh’ – not available at original trial with reasonable diligence
127
Gallagher v The Queen
 While evidence should be ‘fresh’ as in not available initially, not sufficient - must also be
credible
Grounds for Appeals Against Conviction in the Court of Appeal
s 668E(1) QCC
The Court on any such appeal against conviction shall allow the appeal if it is of opinion that:
(a) verdict of the jury should be set aside on the ground that it is unreasonable, or can
not be supported having regard to the evidence
(b) or that the judgment of the court of trial should be set aside on the ground of the
wrong decision of any question of law
(c) or that on any ground whatsoever there was a miscarriage of justice, and in any other
case shall dismiss the appeal.


Applies to both judge alone and jury trials
Unusual that a court will set aside a conviction on the basis of (a)(unreasonable)
(a) Unreasonable/unsupportable

an ‘unsafe and unsatisfactory’ verdict
M v The Queen

FACTS: Father sexually assaulted and raped his daughter. Problems in the evidence,
defendant’s case was that the victim’s testimony was inconsistent. Convicted, appealed
to the HC on the main ground that confronted with the whole of the evidence the jury’s
verdict was dangerous. Would require HC to revisit all the evidence to assess the jury
verdict.
 The approach to be taken in deciding whether of not the jury’s verdict was unsafe or
unsatisfactory should be to consider all the evidence that was before the trial court and
decide whether ‘it was open to the jury to be satisfied beyond reasonable doubt that the
accused was guilty’
 A verdict may be unsafe despite not being unreasonable/unsupportable, such cases call
for setting aside of conviction on the basis of miscarriage of justice
 Held that a jury conviction being set aside as unsafe or unsatisfactory is possible, and is a
question of fact.
 In answering the question whether the verdict was open to the jury, the court must pay
full regard to the jury’s benefit in seeing and hearing all the evidence and witnesses.
o ‘Only where a jury’s advantage of seeing and hearing the evidence is capable of
resolving a doubt experienced by an appellate court that it may conclude that no
miscarriage of justice has occurred … If the evidence contains discrepancies,
displays inadequacies, is tainted or otherwise lacks probative force in such a
way as to lead the appellate court to conclude that, even making full allowance
for the advantages enjoyed by the jury, there is a significant possibility that an
innocent person has been convicted, it is bound to act and to set aside the
verdict’
MFA v the Queen
 ‘Cannot be supported having regard to the evidence’ is a different test to the one
employed by a magistrate in a committal for deciding whether there is sufficient
evidence to commit to trial
128



With multiple counts – was their sufficient evidence for each count? Did the judge give
appropriate directions for each count?
The fact that an accused has been acquitted on some matters but convicted for others
may have no bearing on the question of whether the particular convictions can be
supported by the evidence.
o On the facts, evidence on the counts for which the jury returned guilty verdicts
was materially different from the evidence relied on for the other counts, and
was significantly supported by evidence from a witness.
In summary:
o The current test is to consider whether, on the whole of the evidence, it was
open to the jury to be satisfied of the accused’s guilt beyond reasonable doubt,
giving proper allowance for the jury’s advantage in seeing and hearing the
witnesses.
o An applicant’s appeal will only succeed on this ground when the evidence
indicates that a guilty verdict was not open and that consequently there has
been a miscarriage of justice
Error in law by the trial judge

Include:
o ruling certain evidence admissible when as a matter of law it is inadmissible
(Nicholls)
o misdirecting the jury on applicable onus/standard of proof
o misdirecting the jury on the operation of criminal code provisions (Bardsley;
Van den Hoek)
o failing to leave defence open on the evidence to the jury
Nicholls v the Queen

FACTS: quashed conviction for murder and ordered a new trial because the trial judge
had wrongly admitted into evidence admissions made ‘off-camera’ during a break in the
police recorded interview.
Fingleton
 FACTS: Failed to leave defence open on the evidence to the jury, conviction quashed in
HC.
Bardsley
 FACTS: Bardsley (B) killed child with a man, who was the most aggressive towards the
child. Charged with murder. The judge misdirected the jury about the operation of
certain party provisions in the WACC, denying B a reasonably opportunity for the jury to
return a verdict of manslaughter – an error of law, CoA ordered a new trial.
Miscarriage of justice

Any matter that causes a miscarriage of justice may (subject to the proviso) ground a
successful appeal against conviction
R v Festa
129
R v Svabo
 FACTS: Prosecutor and defence counsel appeared to have a relationship, convictions
were quashed and a new trial ordered.
 May be sufficient to merely the appearance of a miscarriage of justice (appeared unfair
to the public), rather than an actual miscarriage of justice
 The appropriate test is: ‘whether, with knowledge of all the relevant circumstances, an
ordinary, fair-minded citizen in the position of the appellant would entertain a
reasonable suspicion that justice had miscarried’

Some matters will fit into more than 1 category
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


Weiss




Operates as a filter by giving the court discretion to dismiss appeals that are not
considered to exhibit ‘substantial’ miscarriages of justice
Substantial miscarriage of justice = loss of a real chance of acquittal (Festa; Wilde)
o May add several grounds of appeal to demonstrate a substantial miscarriage,
when individually the appeal points would not have been persuasive
o Error of law generally the strongest appeal point
‘…in applying the proviso , the task is to decide whether a “substantial miscarriage of
justice has actually occurred”.’ (at 314)
‘That task is to be undertaken in the same way an appellate court decides whether the
verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be
supported having regard to the evidence. The appellate court must make its own
independent assessment of the evidence ... and determine whether, making due
allowance for the “natural limitations” that exist in the case of an appellate court
proceeding wholly or substantially on the record ..., the accused was proved beyond
reasonable doubt to be guilty of the offence ... . ... But recognising that there will be cases
where the proviso does not apply does not exonerate the Appellate Court from
examining the record for itself.’
In summary:
o Court must
 review the whole of the record of the trial
 make its own independent assessment of the evidence, allowing for the
inherent limitations of an appellate court’s inability to see and hear the
witnesses
 answer objectively the question, whether the evidence before the jury
proved the accused person’s guilt beyond reasonable doubt
 where the question cannot be answered affirmatively order a new trial
unless it is an exceptional case and a verdict of acquittal should be
entered
No universally applicable description of ‘substantial miscarriage of justice’ (judges
generally decline to define)
130

There may be cases where, even though all the properly admissible evidence may
indicate guilt beyond reasonable doubt, it will still be proper to allow the appeal and
order a new trial, such as where there has been a significant denial of procedural
fairness.
The proviso and fundamental error
R v Navarolli
1. An appellate court cannot be satisfied that no substantial miscarriage of justice has
actually occurred unless it is satisfied beyond reasonable doubt that the appellant is
guilty of the offence.
2. The limitations on the appellate process may mean that it is impossible for the court to
be so satisfied in the circumstances of the case, simply by reason of the nature of the
process.
3. Satisfaction of guilt beyond reasonable doubt is a necessary, but may not be a sufficient
condition for the application of the proviso.
4. 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
Wilde v the Queen
 The conviction must be set aside unless it can be said that without the blemish in the
trial an appropriately instructed jury, acting reasonably, would inevitably have convicted
(this is to be determined by assessing the evidence in the case)
 BUT if a fundamental error was made in the conduct of the trial the proviso cannot
apply, regardless of the strength of the prosecution’s case and what the appellate court
believes the jury would have done: ‘The proviso has no application where there has been
such a departure from the essential requirements of the law that the irregularity goes to
the root of the proceedings. If that has occurred, it can be said that the accused has not
had a proper trial and that there has been a substantial miscarriage of justice. Errors of
this kind may be so fundamental that by their very nature they exclude the application of
the proviso.’ [56]
 No rigid formula for determining fundamental error
Patel

at [127] – in the context of extremely damaging evidence, cautionary note of the effect of
the proviso
Powers of The Court of Appeal




May quash the conviction and acquit (s 668E(2) QCC)
If some convictions correct not others, may substitute a new sentence (s 668F QCC)
No costs can be awarded on any appeal to the CoA (s 671F)(unlike appeal from MC to
DC)
May grant a new trial (retrial)(s 669)
o Usually the standard practice
o may be more appropriate to remedy a miscarriage of justice than another order
DPP (Nauru) v Fowler
 Two steps for ordering a retrial:
o 1. is the admissible evidence sufficiently cogent to justify conviction? If yes –
131
o
o
2. is it just to order a retrial?
 Relevant factors include:
 length of time the appellant has already spent imprisoned –
acquittal will be appropriate where there is no point in retrial
because the appellant has already served most of the sentence
(e.g. Parker v the Queen)
 Seriousness of the offence – more serious, more likely a retrial
(e.g. R v Condren; Ex parte A-G (Qld))
 Extensive publicity (e.g. Tuckiar v the King)
 Cost (e.g. R v Wilson)
(e.g. Gassy)
Cornwell v R
 In a retrial not bound by rulings of earlier case, may revisit all decisions
Jackson
 Generally will not order a second retrial
R v Taufahema
 Jury acquittal cannot be revisited unless compliant with double jeopardy exception
 Crown can appeal against acquittal ordered by a court of appeal (not protected by
double jeopardy rules)
 Crown appeal against refusal to order retrial is possible
Summary







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?
132
WEEK 12 – Appeals II

RECALL:
o Appeals against conviction from Magistrates Court to District Court by accused
 Governed by s 222 JA
 In time?
 Fresh evidence?
o Appeals against conviction from trial courts (DC/SC) to CoA by accused:
 In time? s 671 QCC
 If not, in the interests of justice for the appeal to go ahead?
 Leave (fact) or right (law) to appeal? s 668D QCC
 Fresh evidence? s 617B QCC
 Grounds? s 668E(1) QCC
 unreasonable verdict; wrong in law; miscarriage of justice
 Pass the proviso (substantial miscarriage)? s 668E(1A) QCC
OR, if not a substantial miscarriage, has there been a…
 Fundamental error? (Wilde)
 Retrial appropriate? s 699 QCC (Fowler)
o May be appropriate for some charges but not others
Appeals Against Sentence
From a Magistrate’s Decision (to the DC)
By Defendant
o
o
o
Where pleads not guilty can appeal against sentence to the DC (s 222(1) JA)
Where pleads guilty can appeal against sentence to the DC (s 222(2)(c) JA)
DC will not alter sentence unless there has been an error made by the trial judge
(House principles)
JRB v Bird
 FACTS: Accused’s third offence of the same type, Magistrate said they felt they had no
choice but to send them to jail. This was an error, the Magistrate had other options.
 Wrong principle applied by lower court is appropriate grounds to appeal to a higher
court
 House principles apply to appeals against sentence in the DC
By Police Officer (complainant)
o
o
Can appeal against sentences imposed for summary offences to the DC(s 222(1)
JA)
House principles also apply (Lacey)
By Attorney-General
o
o
Can appeal against sentence imposed for indictable offence determined
summarily to the CoA (s 669A(1)(b) QCC)
If defence are also appealing conviction and/or sentence effect here is to send
entire appeal to CoA
133
From a DC/SC Judge’s Decision (to the CoA)
Defendant Appeals Against Sentence


Indictable offence finalised in DC/SC, accused appeals to the CoA.
Must obtain the leave of the CoA to appeal against sentence for an indictable offence
finalised in the DC/SC (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 therefor, and in any other case shall dismiss the
appeal.

If CoA intends to increase sentence it must give the defendant the opportunity to
withdraw (Neal)
o Defendant puts themselves at risk when appealing sentence because CoA can
increase sentence (s 668E(3))
Neal v the Queen
 FACTS: Indigenous man (N) spits on white administrator. N charged with assault, heard
in the MC in Cairns. Given 2 months imprisonment, appeals to the CoA. CoA discussed
the problematic nature of the behavious in question, and increases the sentence. The HC
considered that the CoA should have given N notice that they were intending to increase
the sentence. HC reinstated the MC sentence.
 ‘Neal entitled to be an agitator’ (Murphy J)
R v Sheppard

FACTS: Defendant appealed, had been convicted of several fraud offences. Had
originally been given 8 years imprisonment. Appealed against the sentence (too high).
CoA wanted to impose some higher, some lower sentences for different counts, overall
the sentence would be less than 8 years. Held that CoA did not have to give warning in
this situation, because the overall sentence was lower (also applies if the sentence is the
same).

Relevant grounds
o Convicted person will usually appeal on the basis that the sentence is
‘manifestly excessive’ (Skinner)
o A-G will usually appeal on the ground that the sentence is ‘manifestly
inadequate’
Skinner v the King
 Preceded House
 Mere excess not enough, must be manifestly excessive.
 Discussed the difficulties associated with higher courts replacing sentences, as they do
not have the same opportunity as the trial judge to get a comprehensive knowledge of
the facts and the offender’s character and circumstances. Higher Courts can only read a
transcript, cannot see the original trial, hear witness submissions, etc.
 Courts of appeal are reluctant to replace sentences unless manifestly excessive.
134
R v Gardner (Snr)
 FACTS: Gardner (G) grew marijuana, children assisted on the ‘farm’ (considered an
aggravating circumstance). Charged with trafficking. At G’s sentencing hearing he asked
for the maximum, sentenced to 12 years. Appealed to the CoA. G was an avid antiabortion campaigner, wanted to draw attention to his cause. Argued that the sentence
was manifestly inadequate. CoA could not find any error by the lower court judge, in fact
found mitigating factors (no violence, pleaded guilty). Left the sentence at 12 years.
 Defendant can appeal their sentence on the basis of ‘manifestly inadequate’
House v the King
 FACTS: House (H) bankrupted, gambled, would buy and sell to earn income. Made some
bathtubs on credit, planned to resell them for profit. Committed offences such as
‘trading while insolvent’. Sentenced to 3 months imprisonment. Appealed on the
ground of manifest excess.
 Will not change sentence for manifest excess unless there has been an error
 Will only be granted leave to appeal if error identitified, e.g.:
o Judge made some error in exercising their discretion
o Judge applied wrong principle
o Considered extraneous or irrelevant matters
o Mistake of fact
o Did not take into account some material
o Unreasonable or plainly unjust, may infer improper exercise of discretion and
review
 Allows leave to be granted if sentence is instinctively repugnant (e.g. if
sentence is well outside the range considered ‘normal’ for that offence)
Attorney-General Appeals Against Sentence
s 669A QCC Appeal by Attorney-General
(1) The Attorney-General may appeal to the Court against any sentence pronounced by-(a) the court of trial; or
(b) a court of summary jurisdiction in a case where an indictable offence is dealt with
summarily by that court; and the Court may in its unfettered discretion vary the
sentence and impose such sentence as to the Court deems proper.

‘Court’ – Court of Appeal (s 668 QCC)
Liekfett; Ex parte A-G (1973)
 FACTS: A-G appealed sentence on the basis of ‘manifest inadequacy’.
 Should still apply House principles, although court has discretion it is still fettered by the
need to find an error

Word ‘unfettered’ added in 1975
o makes it clear that the court has an unfettered discretion to determine the
proper sentence (Explanatory Notes)
Griffiths (1977)
 A-G appeals should be a rarity and only brought to establish a matter of principle
Melano (1995)
 ‘Unfettered’ discretion subject to limits (apply House principles)
135


Must show error in the exercise of discretion before A-G can appeal
Recognised A-G appeals risk double jeopardy
York (2004)
 Give the words of the provision their plain meaning (‘unfettered’ means ‘unfettered’)
 McHugh J held that Melano could not be correct (wanted the provision to be free of
limits from the House principles).
o Appellate court may alter sentence ‘for any reason that it thinks sufficient’
 Callinan and Heydon JJ held that the principles from House should be followed in A-G
appeals
R v Katia; Ex parte Attorney-General (Qld) (2006)
 McHugh J’s statement in York only obiter, and the other judges did not make a definitive
decision on the matter
 House principles still apply to A-G appeals
Vincent
 Submissions of defence and prosecution a relevant consideration, but CoA not obliged to
follow (may apply a higher sentence despite prosecution not arguing for an increase)
Ku

CoA can raise the sentence despite prosecution recommendation being taken at original
sentencing hearing
Lacey v A-G (Qld)
 FACTS: Laceys (brothers) visit ‘landscape gardener’ to buy drugs. Get into an
altercation, gardener dies. Charged with murder. Ultimately charged with manslaughter
and wounding. A-G appealed sentence (brutal killing), argued that s 669A should be
read as ‘unfettered’ by House principles. CoA accepted this argument, HC disagreed.
 House principles still apply to A-G appeals.
 ‘The application of the rules [of interpretation] will properly involve the identification of
a statutory purpose, which may appear from an express statement in the relevant
statute, by inference from its terms and by appropriate reference to extrinsic materials.
The purpose of a statute is not something which exists outside the statute. It resides in
its text and structure, albeit it may be identified by reference to common law and
statutory rules of construction’ (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell
JJ)
 HCA agreed with QCA that A-G appeal should be exercised sparingly, should not be
‘second bite of the cherry’.
 Equality before the law means consistency in the application of principle not consistency
in actual sentence.
 ‘unfettered’ relates to the new sentence – not whether to allow the appeal - must
demonstrate error in order to allow appeal.
 Should be limited to evidence before original sentence; fresh evidence cannot increase
sentence (also s 671B(2)
 ‘In our opinion, the appellate jurisdiction conferred upon the Court of Appeal by s
669A(1) requires that error on the part of the sentencing judge be demonstrated before
the Court's ‘unfettered discretion’ to vary the sentence is enlivened. The unfettered
discretion may be taken to confer upon the Court of Appeal in such a case the power to
substitute the sentence it thinks appropriate where error has been demonstrated.’ [62]
136

A-G as model litigant – would have duty to disclose new evidence to the defence to
enable the defence to appeal sentence
R v Major; Ex parte A-G (Qld)
 FACTS: Family violence over a 5 year period, very serious injuries and charges. Major
(M) got 4 years imprisonment, A-G appealed against sentence. Had to demonstrate
errors:
o Sentencing court failed to consider the gravity of the offences
o Did not consider general deterrence (as required)
o Too much weight given to mitigating factors relating to M’s background
These errors were sufficient for leave to be granted.

Applied House principles to A-G appeal.
R v Kuzmanovski; Ex parte A-G (Qld)
 FACTS: K steals a sports car, parks car in his home driveway. Police find the car, charge
him. Receives a 3 year sentence for robbery (used a replica gun). A-G appealed
sentence, argued that too much weight given to the youthfulness of the offender. This
was sufficient. CoA held sentence was not manifestly inadequate.

A-G can appeal against order staying proceedings or further proceedings on an
indictment (s 669A(1A))
Ferguson
 FACTS: DC judge stayed the trial on the basis that the witnesses were unreliable. A-G
successfully appealed against the stay.
R v Moti
 FACTS: Trial judge allowed stay of proceedings. A-G successfully appealed against stay.


Refer any point of law that has arisen at the trial upon indictment of a person (s
669A(2))
Refer any point of law that has arisen at the summary trial of a charge of an indictable
offence (s 669A(2A))
R v Folling; Ex parte A-G
 FACTS: Questioned the CoA about s 29 and capacity. CoA held that age alone is not
sufficient to determine capacity, prosecution would have to satisfy the court beyond
reasonable doubt that the child had capacity.
 Considered s 29 QCC (rebuttable presumption about capacity for children)
Appeals to the High Court


Judiciary Act 1903 (Cth)
Need to obtain special leave to appeal sentence or conviction to the HC (s 35(2))
s35A basis for leave
proceedings involve a question of law which is of public importance or in respect of which the
court is required to resolve differences of opinions within the 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.
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
i.e. ‘something special’ (White) or ’point of law of general application’ (Morris)
Morris
 HC particularly interested in issues that impact jurisdictions beyond the jurisdiction
where the case originated


HC has wide powers in response to appeal (s 36)
can order a new trial (s 37)
Examples of Applications for Leave to Appeal Against Conviction to the HCA





Fair trial (Dietrich)
Interpreting s 668E QCC (M)
Double jeopardy (Carroll)
Police record of interview (Tofilau)
Principles of general application
Sentencing Appeals in the HCA



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

Proportionality (Veen)
Totality (Mill)
Suspended sentences (Dinsdale)
Character (Ryan)
Guilty pleas (Cameron)
Plea agreements (Gas & SJK)


HCA – principle
CoA – principle and tariff





Pursuant to House principles
Great weight on original sentence
Need to identify error
Focused on process of decision making
Not enough to be ‘excessive’ (Radenkovic v The Queen)
Royal Prerogative of Mercy
QCC s18 Royal prerogative of mercy
This Code does not affect the Royal Prerogative of Mercy


Power exists at Common law
Usually when all avenues of appeal are exhausted.
o Can grant a free and unconditional pardon
o Grant a conditional pardon
o Remission / partial remission of sentence
o Order an inquiry
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Pardon
Constitution of Queensland
36 Power of Governor-relief for offender
(1) This section does not limit the operation of another Act.
(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.
(3) The grant may be unconditional or subject to lawful conditions.

Usually used where fresh evidence comes to light
Executive Pardon
QCC 672A Pardoning power preserved
the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning
power having reference to the conviction of any person or to any sentence passed on a convicted
person, may-a) refer the whole case to the Court, and the case shall be heard and determined by the
Court as in the case of an appeal by a person convicted; or
b) if the Crown Law Officer desires the assistance of the Court on any point arising in the
case with a view to the determination of the petition, refer that point to the Court for its
opinion thereon, and the Court shall consider the point so referred and furnish the
Crown Law Officer with its opinion thereon accordingly.


A-G, in considering a petition for the exercise of the pardoning power, may refer a case to
the CoA to be heard in full as if it were an appeal (s 673A(a))
A successful pardon discharges the offender from the consequences of the conviction
(s677 QCC)
R v Martens
Mallard v the Queen
 FACTS: Mallard’s petition was based on the prosecution’s non-disclosure (suppression)
of evidence.
Kina
R v Katsidis; Ex parte A-G (Qld)
R v Stafford
 FACTS: Stafford (S) convicted of murdering fiance’s young sister (H). H’s body was
found abandoned in bushland near her home, where S had been staying. S brought
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evidence that cast doubt on the prosecution’s case. CoA quashed his conviction and
ordered a retrial.
R v Butler
 FACTS: At a rehearing following a petition for pardon, B sought to cast doubt on the
reliability of DNA evidence and testing by bringing expert evidence. CoA doubted the
expert’s objectivity and found that his views were not apt to cast doubt on the integrity,
competence and reliability of the forensic evidence. The appeal was dismissed.

Usually involves fresh evidence. An appellate court will set aside a conviction on the
basis of fresh evidence if one of the following conditions are satisfied (Mickelberg v R)
o whether the court considers that there is a significant possibility that the jury,
acting reasonably, would have acquitted the appellant had the fresh evidence
been before it at trial; or
o whether 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.
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WEEK 13 – Restoring Justice, Review
Victims and the Criminal Justice System
Brief History of Victims in the Criminal Justice System






In England from the Early Middle Ages until the second half of the 19 th century the victim
was actively involved in the CJS as the private prosecutor (also in Australian colonies)
o Private prosecution was motivated by the chance to receive compensation from
the offender
o No CJS like today’s existed, private prosecution by the victim was important for
crime control
o Victim once an active participant in the CJS
When and why did this change?
o Introduction of modern police/prosecution service sparked shift in the late 19th
century
o Victim’s participation became less important
Is private prosecution still possible today?
o Common law right but can be limited by statute
o Does not occur very often due to risks involved (cost risks and time consuming)
Until the second half of the 20th century little focus of CJS on victims and their treatment.
o McDonald (1976) at 650: ‘Today, he [the victim] is seen at best as the ‘forgotten
man’ of the system and, at worst, as being twice victimized, the second time by
the very system to which he has turned for justice.’
Subsequently focus back onto the victim.
o Why? Not very clear
o Research conducted on rape victims and their problematic treatment in the CJS
in the 1970s and 1980s
o Increased attention for science of Victimology
Introduction of certain rights for victims. Earliest rights were victim compensation
schemes (first introduced in NSW in 1967, gradually taken up by remaining
jurisdictions)
The Role of Victims in the Adversarial System
Problems regarding victims and the CJS




The victim is part of the criminal act
BUT the victim is not a party to the adversarial trial (trial between prosecution and
defence, ‘battle between adversaries’)
Could the victim be integrated into the prosecution’s side?
o Would affect the balance of power at trial (2 against 1, defendant would have to
defend themselves against 2 adversaries)
o Court as impartial umpire could not exercise control over the parties
Why would it be less problematic in an inquisitorial system?
o More judge control
 Judge can decide what evidence is called, can examine evidence, will
only allow prosecution and defendant to ask questions if they deem it
necessary/appropriate
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o
Less of a problem with imbalance because judge can control the proceedings
Why focus on victims at all?


Victims report crime. Without bringing committed crimes to the attention of the
authorities prosecution and crime control is not possible.
Treatment in CJS can impact severely on victims’ wellbeing and future (‘secondary
victimisation’)
o Health implications
Which of the victims’ needs need to be accommodated?

Difficult to generalize, but consensus in 1985 in the form of UN Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power:
o respectful treatment
o information on rights and progress of the case
o being heard at relevant stages of the trial
o being kept safe
o receiving compensation for the harm suffered
Victims and the CJS in Queensland



Introduction of Victims of Crime Assistance Act 2009 (Qld) (VOCA) stating fundamental
principles concerning the treatment of victims and a victim compensation scheme
Fundamental principles are set our in Part 2 of the Act, include:
o fair and dignified treatment (s 8)
o information on services, investigation, prosecution, role as witness (ss 10-13)
o minimising the contact between victim and accused (s 14)
o giving details of impact of crime on victim during sentencing (ss 15, 15A, 15B
Fundamental principles are not ‘rights’, only principles (s 7)
o No compensation for non-compliance, not enforceable
o Can make complaint to government entity or victim service coordinator possible
(s 19)
15 Giving details of impact of crime
Victim permitted to give prosecutor details regarding harm caused by the offence for prosecutor
informing the court (not mandatory).
Details can be given in a VIS (Victim Impact Statement).

(9) VIS means a written statement that
o a) is signed and dated; and
o b) states the particulars of the harm caused to a victim by an offence; and
o c) may have attached to it –
 (i) documents supporting the particulars, including for example,
medical reports
 (ii) photographs, drawings or other images

VIS Reforms (Criminal law and Other Legislation Amendment Act 2013)
o Inclusion of s 15A/15B VOCA (15B mostly concerned with arrangements while
reading out statements)
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15A Reading aloud of victim impact statement during sentencing
(2) The prosecutor for the offence may request, orally or in writing, that all or part of the victim
impact statement be read aloud before the court by—(a) if the person mentioned in subsection
(1) wishes to read aloud the victim impact statement—the person....
(3) If a request is made under subsection (2), the court must allow the person specified in the
request to read the whole of the victim impact statement, or a part of the victim impact statement
identified in the request, aloud before the court unless the court considers that, having regard to
all relevant circumstances, it is inappropriate to do so.


VIS now available to victims in all Australian jurisdictions
However, remains a controversial topic of discussion in most CL jurisdictions
Alleged benefits and concerns regarding VIS


Violation of sentencing principles? (Uniformity, proportionality)
o Increase in sentence length due to emotional and/or exaggerated content of
VIS?
 Limited research available does not necessarily suggest that this is so
But VIS can be taken into consideration by the court (R v P) and problems may occur
(e.g. Isenhood where trial judge considered irrelevant/inflammatory material in a VIS)
Existence of ‘Safeguards’ for Defendants in relation to VIS





Prosecutor is to decide what details (if any) of the harm done are appropriate to be given
to the court (s 15(3) VOCA)
Sentencing judge is trained and has discretion
s 132C Evidence Act 1977 (Qld): Content of VIS may be considered as facts for the
purpose of sentencing when not contested. If contested must be proven on the balance
of probabilities (R v Evans and Pearce)
Cross-examination of content of VIS is generally possible for defence.
o Does not occur often in practice because defence does not want to appear
‘unremorseful’ (R v Singh)
Fryberg J in R v Singh:
o “The information upon which his Honour made that finding came from a victim
impact statement prepared by the complainant. Sentencing judges should be
very careful before acting on assertions of fact made in victim impact
statements. The purpose of those statements is primarily therapeutic. For that
reason victims should be permitted, and even encouraged, to read their
statements to the court. However, if they contain material damaging to the
accused which is neither self-evidently correct nor known by the accused to be
correct ... they should not be acted on. The prosecution should call the
appropriate supporting evidence. It is unfair to present the accused with the
dilemma of challenging a statement of dubious probative value, thereby risking
a finding that genuine remorse is lacking, or accepting that statement to his or
her detriment.” [emphasis added]

Therapeutic? Fairer balance of rights? (Dupas)
o Family of Dupas’ victim felt satisfied/vindicated with giving their VIS (a positive
experience)

Relationship between safeguards for defendants/benefits for victims
143
o
o
Cross-examination of VIS: Questioning the suffering of the victim may be worse
than cross-examination of witnesses due to expressed emotions in VIS
Non consideration of statements by the court or amendment of statement:
Victims may feel traumatised/frustrated when not being acknowledged
R v Borthwick
 FACTS: Borthwick found guilty of manslaughter of Zimmer

‘Justice Katherine Williams was meant to hear pleas and sentence Borthwick. Instead,
she spent an hour and a half editing the Zimmer family's statements alloud in the
courtroom. During the hearing Kornelia Zimmer became so frustrated she tore her
statement in half, and then shouted, 'I can't even read how it affects me', and stormed
out...

Kornelia Zimmer: It was putting my heart and my soul into making sure that the courts,
people that were listening, the public, and I guess some small hope that Leon would
actually feel some sense of what he'd done to us....Christian Zimmer: Well we prepared
our victims impact statement well in advance. We submitted it to the prosecution and
the defence. So we came to court today expecting to have our day in court and to be able
to read our impact statements in front of the court; only to hear that the defence had
objections to our statements and that the defence wanted to edit our statements, and
then we also found out that it was their right to edit our statements. We couldn't tell the
court how we felt, it was up to the defence to be able to edit how we felt.’
Conclusion



More focus on victims and their treatment in the CJS since the second half of the 20th
century, around the globe
Has this significantly changed the ‘role’ victims play in the adversarial CJS?
o Victims are still not parties to the trial and cannot exercise the same rights as
parties to the trial (e.g. make submissions and statements, examine and crossexamine)
But fundamental principles regarding the victims’ treatment by actors in the CJS are set
out in VOCA (Qld) 2009 and complaints can be made by victims if not treated in
accordance. However, principles do not give legal rights and do not affect the validity of
any decision taken.
Restoring Justice
Victims and Criminal Justice



Shift in victims’ political clout
o Coming back to centre stage in criminal justice policy making
o Victim’s groups represented in law reform committees
Police and victims
o Police should be trained in dealing with victims of crime
o Police often the victim’s first point of contact in CJS
Courts and victims
o Increasingly taking account of victim interests
o As witnesses
 Measures implemented to enable victims to give testimony without
having to go into court (e.g. video taping)
144




Corrections and victims
o Victims can access of progress of ‘their’ offender’s sentence (e.g. whether an
application to the parole board is being considered)
Many offenders were victims themselves (links between abuse and later criminality)
o Considered a mitigating factor in sentencing
Victims of the CJS
David Garland: The Culture of Control
o Return to focus on ‘just deserts’ (away from rehabilitative ideals)
o Focus on symbolic justice (expressive statements that penalties make)
o CJS ‘emotional tone’ changing (demand for retribution)
Victims of personal crime by gender (2011, AIC)
Victim by age (2011, AIC)
Crime and location (2011, AIC)
145
Homicide victims by relationship (2006-7)
Victims of Crime Assistance Act 2009 (Qld) (VOCA)






Monetary compensation
o Administrative scheme – application not through the court system
 Unlike previous scheme (pre-2009), required an application to a court
 Appeal to QCAT, then SC
 Has not been much litigation surrounding this scheme
o Do not simply sue defendants because they are not likely to have sufficient
funds to compensate victims
Victim Assistance Unit
Early intervention
o Can make the application immediately after offence to cover relevant offences
o Can make further applications after the initial application
Up to $75,000 for a ‘primary victim’/$100,000 for ‘related victim’ (death of a relative)
Only available of victims of violent offences, acts of personal violence (not available for
property offences) (s 25)
Lower burden of proof – assessor may grant assistance if they are satisfied on the
balance of probabilities that the applicant is eligible (s 78)
Restorative Justice (RJ)
Restora ve Jus ce
Tradi onal jus ce
Crime viola on on one
against another
Crime viola on of law
Focus on response and
repair harm
Vic m. Offender /
community
Accountability – repair the
harm
Focus on blame and punish
Based on communica on
Adversarial
Vic m ignored, offender
passive
Accountability- take the
punishment
8
146
Does RJ work? (Strang, ANU)



Offenders
o ‘Slows’ reoffending for some, stops for other, does not affect some at all
o May be more effective for most prolific offenders
o On average 27% reduction in repeat convictions across British trials (Sheffield
university evaluation)
Offences
o Works better for violent than property offences
o Wasted on minor offences
Victims
o Unequivocal evidence on benefits for those willing to meet their offenders
o More satisfied with the response, feel listened-to, better recovery/prospects for
the future
History, Theory, Definitions




Different practices, different stages:
o diversion from court
 A separate pathway, no interaction with CJS
o decisions in parallel with court decisions
 During bail procedure, success of program relevant to sentencing
o meetings between victim and offender at any stage
Definitions (Daly and Hayes):
o ‘those with a stake in a crime come together to discuss it with the aim of
repairing the harm’
o ‘any action that repairs the harm caused by crime’
o Reparative (not punitive)
Theory:
o Therapeutic, indigenous jurisprudence
o Greater emphasis on role and experience of victim
o Lay and legal actors involved in decisions
o More discussion between parties, in the community context
RJ provides
o significantly higher victim satisfaction than court justice
o significantly higher levels of apology
 a true apology leads to a higher chance of rehabilitation
o significantly greater reduction in desire for revenge
o significantly greater reduction in post-traumatic stress symptoms
Limits of RJ


Less effective for sexual or domestic violence offences
o offence between people who know each other, repition
o issues of trust, and belief of remorse, forgiveness
Community involvement issues/role of the state
147
Justice mediation




In Qld justice mediation is available for adults – usually when the offence can be heard in
the Magistrate’s Court (e.g. stealing, assault, wilful damage and unlawful use of a motor
vehicle)
o Happens before sentence
Referral by police, Office of the Director of Public Prosecutions or court
o ‘gatekeepers’, discretionary
Face-to-face meeting between a person who has been harmed in an incident (the
complainant) and the person responsible for the incident (the defendant). It is voluntary,
confidential
Offender admits and juvenile consents or finding of guilt and referral in lieu of sentence

At justice mediation, the victim can:
o tell the defendant how their behaviour affected the victim
o ask questions about the incident
o express your feelings in a supportive environment of family and friends who
share the victim’s feelings
o reduce victim’s fear of further victimisation
o receive an explanation or apology from the defendant
o make an agreement with the defendant about how they can repair the harm
they’ve caused.

The aim is to work out ways the offender can make amends. Making amends means
being responsible for actions. It may involve:
o returning stolen property
o agreeing to do something for the complainant, such as paying money or
repairing damage
o making an apology
o def may agree to attend counselling.
o Aim = diversion from criminal justice system.
Indigenous justice

In cases that would have previously gone to the Murri Courts, may now be put on the
indigenous sentencing list:
o defendant must be on bail
o lead guilty to an offence heard in the MC
o elders, respected persons, community justice groups and the offender’s involved
in the sentencing process
 give information about the offender
o magistrate makes final decision and imposes appropriate sentence (R v
Roberts)
 Community groups can make recommendations, but magistrate has no
obligation to follow them
o courts can consider submissions from community justice groups in sentencing
(s 9(2)(p) PSA)
o effect on recidivism
 May not effect recidivism, but beneficial for communities
o can be appealed (Baker v Queensland Police Service)
148

Key differences:
o the contribution of Elders, respected persons, CJGs, the offender and the
offender’s family to the sentencing process;
o the level of information that is made available to the court regarding the
offender’s circumstances, obtained through a comprehensive assessment
process prior to sentencing;
o attempts to engage the offender in discussions determining appropriate
sentence and in developing strategies to address their offending behaviour;
o a higher degree of informality in court processes, including modifications to the
court environment and interaction between stakeholders involved in Murri
Court sittings;
o the level and nature of support is greater than in mainstream court process.
The HC and Sentencing Indigenous People
Bugmy v The Queen
 ‘The experience of growing up in an environment surrounded by alcohol abuse and
violence may leave its mark on a person throughout life. Among other things, a
background of that kind may compromise the person's capacity to mature and to learn
from experience. It is a feature of the person's make-up and remains relevant to the
determination of the appropriate sentence, notwithstanding that the person has a long
history of offending. Because the effects of profound childhood deprivation do not
diminish with the passage of time and repeated offending, it is right to speak of giving
"full weight" to an offender's deprived background in every sentencing decision’
 Disadvantage experienced in early life can have mitigating effect on sentence
Mundo v WA
 ‘In these circumstances, this case does not afford an occasion to express a concluded
view on the question whether the prospect of such [tribal] punishment is a
consideration relevant to the imposition of a proper sentence, given that the courts
should not condone the commission of an offence or the pursuit of vendettas, which are
an affront and a challenge to the due administration of justice’
 Disadvantage experienced early in life and continue to effect a person in the long term
 HC did not conclusively state whether the likelihood of tribal punishment is a
consideration in sentencing, did note that it was not endorsed
Queensland Courts Referral



Bail-based process that enables defendants to engage with government agencies and
non-government organisations to address the causes of offending behaviour by assisting
defendants who come into contact with the criminal justice system as a result of:
o drug and/or alcohol dependency
o mental illness
o intellectual disability
o cognitive impairment
o homeless people or those at risk of homelessness.
The Queensland Courts Referral program operates at Arrest Courts of the Brisbane
Magistrates Court.
Who is ineligible?
o Indictable offences that must be dealt with on indictment;
o A defendant who does not wish to be referred;
149

o Insufficient service capacity.
Process:
o Referred for assessment.
o Becomes part of bail.
o Successful engagement may impact on sentence.
150