PROVING OFFENCES (Wk 1)
General position
Evidentiary Onus
Legal (Persuasive) Onus
Elements
Prosecution
- Satisfy evidentiary onus in relation to proving all the
elements of the offence (Woolmington)
Defences
Accused
- Accused will raise defence through evidence or cross
examination (‘Prima facie raise the issue’:
CTM/Menniti/Colvin)
- NB: May rise indirectly (Buttigeg) even in prosecution
evidence (He Kaw The)
Judge will consider position most favourable to
accused (ie, in doubt about sufficient evidence)
- Accused has a right to silence and/or priviledge against
self incrimination (RPS v R)
- Contradictory dfences not raised by the accused by
raised on evidence must be directed to jury (Stingel;
Stevens v R; Fingleton v R)
Prosecution (BRD)
- Prove every element of the offence BRD
- Also prove ‘chain of events’ (R v Weisz), NB ‘rope’ (R v Shepherd)
Jurisdiction?
S12 QCC: only required BoP (Thompson: should not avoid conviction
because pros cannot prove location BRD)
Insanity?
Prosecution (BRD)
- Negative those defences that are raised directly or indirectly on the
evidence (R v Youssef)
- Only one element of defence needs to be negatived
- Examples
o Self defence ss 271, 272
o Accident, s 23(1)(b)
o Mistake of fact (s24)
o (Sane) automatisms: s23(1)(a)
 Provocation (reduced penalty) usually raised within SD (acquittal).
Statutory
Exceptions
Accused
Will only ever have to prove BoP (Carr-Briant)
Falconer: prosecution raised and proved insanity (BoP) to
negative sane automatism raised by defence
Defence BoP
(Thompson)
Reverse onus defences (BoP)
1.
Accused must disprove an assumption of law
Presumption of sanity (s26) if accused wishes to bring up insanity (s27)
Age of criminal responsibility (s29): person between 10-14 not responsible unless proved capacity s 29(2); s26; R v F
2.
Accused must disprove an assumption of fact
Drugs Misuse Act (s129(1)(c): Drugs presumed to be yours
Transport Op (s114) : Cameras presumed to be working
Circumstantial evidence (Shepherd v R): Jury not required to be satisfied beyond reasonable doubt of each fact from which inference of
guilt to be drawn. Each ‘strand’ (BRD), but if strands form a rope, only the whole rope BRD (and strands on BoP).
‘Beyond reasonable doubt’



Per Qld Benchbook:
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’.
Benchbook is not a strict and all consuming Code (Clarke)
The phrase is left to the jury without explanation (Dawson v the Queen), according to its natural and ordinary meaning (R v Punj). The Queensland
Bench Book; a reasonable doubt is ‘a doubt that a reasonable person would consider reasonable’. If reasonable doubt: acquittal (Woolmington).
ARREST, SEARCH & INTERROGATION (Wk 2) – Police Powers and Responsibility Act (PPRA)
2.0 POLICE

s10: Nothing in the PPRA effects common law discretion to exclude
evidence (for unfairness) or stay the proceedings. Judicial discretion to
exclude evidence prevails
‘Reasonable’



Police not constrained by rules of evidence (ie, tip offs), but
evidence must be ‘reasonable’ to rely on (CJC Report)
“Reasonable suspicion”
o George v Rockett: Less than that required to ground a
belief
o Queensland Bacon: ‘positive feeling of actual
apprehension’; more than idle wondering.
o Dobbs: Even if a suspicion comes to nought, does not
mean originally reasonable; more than imagination or
conjecture
Reasonably necessary
o Thomas v Mowbray: equated with
“appropriate/adapted” and the principles of
proportionality (public protection).
 Whether measure in Q is least restrictive means
to achieve a legitimate end.
2.1 PRE-ARREST
(Search Without Warrant)
Person (s29)/Vehicle (s31)/Public place (s33)


‘Reasonable suspicion’ that ‘prescribed circumstances’ exist: may
stop and detain or search and seize anything that might cause
harm or be evidence
o Search: run hands over outside of clothes/examine
clothes removed with consent (Sch 6)
o Evidence: Sch 6
Prescribed circumstances for searching persons: reasonable
suspicion that the person has a dangerous drug, weapon, or
tainted property or person has committed a certain offence (s30)
Prescribed circumstances for searching a vehicle: s32
(With a warrant)




Application generally required if private residence (ss 150 – 163)
Justice may issue search warrant (151) if evidence (a) at the
place, (b) likely to be taken within 72 hrs. Police needs to
convince of reasonable suspicion.
o Warrant ends after 7 days unless otherwise stated (s 155)
o Powers under search warrant (s157)
o Must leave copy of warrant with occupier (s158)
o Must be reasonably clear what they are looking for (s156)
Evidence unlikely to be excluded if warrant obtained
‘Statement of the offence need not be made with the precision of
a indictment’ NSW v Corbett
o Ie, investigate for the purposes of another offence
o (The legislation containing the offence being investigated
was no longer valid, nevertheless, the search warrant was
valid)
(Post-Search Approval)

Reasonable suspicion that evidence may be destroyed/concealed
if immediate search not carried out (160) – limited to indictable
offences (159) – Apply for post search approval as soon as
reasonably practicable after search (162)
Coleman:



2.2 ARREST
Lawful Arrest - Under the common law, the power to arrest a person
reasonably suspected of having committed a crime is given for the
purpose of enabling that person to be brought before a justice as soon as
reasonably practicable so that they may be dealt with according to the
law – Williams v The Queen
Michaels v The Queen; Norton: Arrest may fluctuate between being
lawful/unlawful.
May be either; (i) physical restraint, or (ii) words coupled by the
submission of the person. Words may be sufficient to constitute an
arrest, but they are not always necessary (Alderson v Booth). An
explanation is enough (Delit v Small).
(Without warrant s365)


(i) ‘Reasonable suspicion’ has committed/is committing an
offence and, (ii) ‘reasonable necessary’ to arrest for a purpose in
PPRA (pg 37 of text):
o Prevent an offence/establish identity/ensure appearance
before court (REFER TO FACTORS IN 365 & DISCUSS)
Investigation/questioning purposes? Needs to be indictable
offence 365(2)
Officer must form the belief prescribed by the section
Existence of the power to arrest is independent of determination
of guilt
Arrest lawful, even if officer’s belief founded upon mistake of
fact/law – Coleman v Kinbacher
(With warrant) – ss369-372



(Justice will issue if there are reasonable grounds for suspecting
that a person has committed an offence – 371)
Where offence is non-indictabe, must be satisfied that alternative
proceedings would be ineffective
Not enough to have reasonable suspicion - must be reasonably
necessary
(Unreasonable Force Used)
Error: Excessive force used (615/616)
Consequence: Evidence not ‘unreliable’, but may be excluded on the basis
of public policy discretion. In exercising this discretion, judges weigh
‘reliable’ character of evidence against police impropriety.
An unlawful arrest may lead to criminal and civil action (NSW v Delly), or
evidence being excluded (R v Hardy). Evidence not automatically excluded
if arrest was unlawful/improper (Williams v R).
(Information to be given to arrested person) s 391

Nature of offence, that the person is under arrest (as soon as
possible after arrest), name of officer (upon release)
(Right to silence)




Right to remain silent codified (s397)
o Linked to burden of proof (i.e. not on defence);
vulnerability of accused; emotions of accused; inability to
explain defence – Swaffield per Kirby J
a ‘relevant person’ is to be cautioned about this right (s431) (Nb:
Kingston, who was not under arrest for an indictable offences,
but made confessions nonetheless – did not need to be
cautioned) – chapter 15 applies to people arrested under s36
Codification reflected in the common law (Petty & Maiden v R):
o Crown should not lead evidence that, when charged, the
accused made no reply. Nor should it be suggested that
previous silence about a defence raised at the trial
provides a basis for inferring that the defence is a new
invention or is rendered suspect or unacceptable.
Exception for name and address (ss40-41).
o May be charged if refuse to provide – s791
(s393) Release or before court as soon as reasonably practicable


Williams v R (Gibbs CJ): A question of fact in each case, depending
on when and where a justice could be found, availability of police
transport, how long paperwork could take, and how long it takes
the officers to confirm/dispel the suspicion
Failure to do so could amount to unlawful detention and any
evidence gained during this period could be excluded



The investigation may include searching house/confirming
alibi/confirming identity
There is no rule that restricts the scope of investigation (ie,
investigating other potential offences)
‘The fact that a confession was unlawfully obtained does not lead
to the automatic rejection of the evidence, although evidence of
the confession may, most exceptionally, be rejected for that
reason by the judge in the exercise of his discretion’
2.3 ALTERNATIVE TO ARREST
** These should be preferred – especially when offence is trivial.






Notice to appear – s382
o No formal charge; Coleman v Power
o Sets out details of offence and of court appearance
o Where arrest is not reasonably necessary
Complaint and summons (more unusual) - Ss53-54 Justices Act
o Formal charge
o Combersome and time consuming
o Police make written complaint and justice may issue
summons requiring offender to come before court
Discontinue arrest – ss375-380
o Charge also discontinued s375
Limit of re-arrest – s381
Infringement notices
Move on powers – ss44-49
o Reasonably necessary for the interest of public
safety/public order/protection of others for a person to
move on from a public or prescribed place
o Need to give reasons for order: Rowe v Kemper
2.3 POST-ARREST
2.4 INTERVIEW
(Post-Arrest Search) ss442-43/624-632
General Power: Police may detain for a reasonable time a suspect for
questioning relating to an indictable offence (s 403) (ie, not under arrest)
Queensland search powers of persons in custody: where a person is
lawfully arrested (Courtney v Thomson)/ serving a sentence, police may
search and re-search them. Some forms of search require judicial
authority.



Frisk/Strip searches – ss442-443
o Performed to protect safety of others or to find
admissible evidence
Safety dignity of searches: ss624-632
o Minimise embarrassment/consider dignity in limiting
searches, and consider gender
Schmidt v Argent: Exposed lady, did not let her change, strip
searched too many times, for unpaid fines.
(Appropriate Caution BEFORE speaking to police)
Error: Failure to provide appropriate caution about right to silence (431).
Interpreter needed if PO reasonably suspects that suspect cannot
understand or communicate in English? (433). 2 limbs to warning Marshall
(i)You do not have to say anything
(ii) If you do, we can use it against you
Consequence: Breach of section does not automatically render evidence
inadmissible, but judicial public policy discretion may exclude evidence.
Problems with Lack of Recording
As a general principle, it is highly likely that if an interview or
conversation is not recovered It will not be included into evidence.



Driscoll v The Queen: It is very common for an accused person to
deny that he made an oral confession which police witnesses
swear that he has made. It is thus up to the judge’s discretion as
to whether they include it or not.
Kelly v The Queen: Disputes can turn on misunderstanding,
misrecollection, coercion or oppression.
McKinney v The Queen:
o Accused argued that the police fabricated records of
interview, and they only signed the interviews as the
police had overborn them. Due to this the majority laid
down a ‘rule of practice of general application’ – where
there is uncorroborated and disputed police evidence of
confessional statements.
o Known as a McKinney Warning:
(Recorded confessions)
Confessions must, if practicable, be recorded (436).



Nicholls v The Queen: what prevented the officer from simply
switching the device back on, or asking accused to repeat?
Batchelor: heat of the moment, police negotiator, an unrecorded
set of confessions – this was determined as not practicable to be
recorded (hostage in rural area case)
R v Smith: Smith a ‘relevant person’, PO had recorder available,
evidence only recorded in written form months later: not in the
interests of justice (s439) – not admissible
Court may still admit unrecorded if it is in the interests of justice
(Batchelor/Smith - 439).
A copy of recording must be provided either to person or their lawyer
(438)
In situations without recoding, the interview needs to written and read
back - Smith
A jury direction (‘McKinney Warning’) is given to unrecorded evidence.

Nicholls v R: whenever police evidence of a confessional
statement allegedly made by an accused person whilst in police
custody is disputed and its making is not reliably corroborated,
the trial Judge should, as a rule of practice, warn the jury of the
danger of convicting on the basis of that evidence alone. I stress
that the warning is required to alert the jury to the danger of
convicting on the basis of that evidence 'alone'
(Time limits) (403-410)



1. ‘Reasonable’ time
o Reasonable time will depend on circumstances s401
 i.e. would take longer for serious
circumstances/translator etc.
o (Take into account factors in 404)
2. But this cannot exceed 8 hrs with 4 hrs ‘time out’ – s403
Unless extension of time for investigation is granted – ss405-406
(Interview support: 418—419)
No duty to provide legal support, but must inform accused before being
questioned – s418 -419
Reas. time’ for the person to arrive – at least 2 hours? (418)
Discussion between lawyers and suspect should not be able to be
overheard- Barchard

Must consider issues of practicality: a quiet place should be
available: does not go very far.
Failure to allow access to a lawyer- see Driscoll


Police must ‘allow’ but do not have to pay legal aid – must allow
call. Impossible in certain situations.
Exclusion of evidence possible if right to a lawyer is denied
(Special Circumstances)
o
o
Officer reasonably suspects person is an ATSI person,
must notify a legal representative on behalf of that
person. This requirement is unnecessary where the
officer reasonably believes that the person is not at a
disadvantage compared to others in the community more
generally.
Needs to take care in administering caution, and needs to
avoid closed questions.

ATSI (420)

Impaired Capacity (422)
o Support person must be present and that offender knows
their right to silence
Intoxicated (423)
o Will not understand ‘caution’ R v LR
o Wait until intoxication no longer affects ability to
understand rights and to decide whether or not to
answer questions

I.
2.5 EVIDENCE
Evidence may be excluded relating to all breaches of police procedures –
s10 and PPRA does not affect common law (i.e. right to silence: Van der
Meer; Lee)
(Evidence illegally obtained)
(Kirby J, R v Swaffield)
i.
Was confession voluntary? (McDermott v The King)-> Not if:
I. Confession was made to a person in authority who is
holding out a threat or promise or;
II. The ‘will of the accused’ was not overborne (basal)
i. Confession can not be made because of threat or
promise (s416)
III. Confessions resulting from inducements, held out by
people in authority, will be excluded (McDermott)
i. Tofilau: The accused must perceive that the
coercive power of the state is being used.
(Underground gang members were not ‘people in
authority’ for this purpose. – should not be
widened beyond persons known to have lawful
authority to affect the course of investigation)
ii. Includes police officers/prosecutors – McDermott
iii. However if confession was made to someone not
in a position of authority, but reasonable person
in position of confessor would consider them to
be, likely involuntary.
ii.
Basal voluntariness: was confession reliable?
 R v Ridgeway and the Public Policy Discretion: Consider (i) the
seriousness of the offence, (ii) the culpability of the accused.
iii.
Confessions cannot be induced by threat or promise –
s416
II. Essential question: Was the will so overborne so that the
person did not exercise a free choice to speak or remain
silent? Tofilau
III. Even not made to a person in authority, ‘duress,
intimidation, persistent importunity, insistence of
pressure’ are species of compulsion (Tofilau)
i. ‘Dopey condition’ of the accused (R v Burnett) –
fainted and therefore excluded
ii. Accused had blacked out, attempted suicide,
then confession elicited (R v Williams)
Should it nonetheless be excluded (judicial discretion)?
I. Unfairness to the accused (reliability & procedural
fairness: R v Lee)
i. Even if voluntary, would a confession have been
made if interview was properly conducted?
(Duke)
ii. Accused’s procedural rights respected (right to
remain silent) (R v Swaffield; Pavich v The Queen)
iii. Would the behaviour be “so appalling as to shock
the community” (posing to be a chaplain, truth
serum injected) though no concerns about
reliability) – Tofilau; Em;Pavich
iv. Need to distinguish between tricks and dirty
tricks – Pavich; Carr
II. Disproportionate prejudice outweighing probative value
III. Public policy (ie, official conduct illegal/improper)
Would the accused, but for police conduct, have been a lawabiding person? If yes, likely to be excluded.
(Forensics) ss 467-474
What are they? (see schedule 6)



ID particulars: finger/hand/voice/footprints; writing sample; photos of eg scars, tattoos
Forensic procedures:
o Non intimate: taking swab/DNA sample/searches of body which require removal of clothing
o Intimate: external examination of breast & genitalia; cavity searches/taking hair/xray/dental impressions/sample of blood & urine/swab
from a place other than the mouth
Non medical procedures (i.e. swab of person’s hand for gunpowder residue) are available when the the PO is reasonably satisfied that evidence will
be produced for an indictable offence
When can they be taken? :s467



Id particulars offence – max 1yr prison.
Forensic Procedures: reasonably suspected of committing an offence
o May hold person reasonably necessary time to take
o Does not have to be in custody – may be ordered to retun to police
Consent must be informed consent and recorded (ss448,453,454)
Can the person refuse to supply? : s471
 Yes but court orders
 Can only get court order when satisfied on BoP that there are reasonable grounds for believing performing of FP may provide evidence of an
indictable offence
 Consider: seriousness of procedure and amount of cooperation needed from accused
When should they be destroyed: s474


Destroy when: not guilty, not proceeded against with this offence
BUT: if already been found guilty of another indictable or acquitted on insanity grounds do not destroy.
Who can perform?


Only doctors and dentists can carry out intimate forensic procedures – ss447
Others are carried out by appropriately qualified people – ss445-6
POLICE COMPLAINTS, CHARGE & BAIL (WEEK THREE)
2.5 (POLICE MISCONDUCT)


Police misconduct
Official misconduct
2.6 Form of Charge



Accused will receive a Notice to Appear (ss382 – 390 PPRA)
Accused will receive a summons (ss53-54 JA)
Accused will have received a copy of the bench charge sheet (ie, at station after arrest: s 42 JA) Magistrate will always receive a copy of the bench
charge sheet at First Mention (s13 Justices Regulations)  Inadequate? Adjournment.
o
o
o
o
Name
Offence (with adequate particulars of the charge)
 Nature of charge
 Time and place
 Victim
 Any property involved
 Detail important, because accused must understand what she or he has done, because needs to get defence
ready
Whether any aggravation (higher penalties – sometimes all the accused may do is challenge the aggravated features)
(Material must be sufficient to describe the offence – does not have to be the legislative language).
2.7 (DISCRETION WHETHER TO CHARGE)
Directors Guidelines (1-4) – developed to encourage consistency/efficiency/effectiveness/transparency
Arrest requires ‘reasonable suspicion’, charging requires:




1: Duty to be fair
o No prejudice to accused/fair in their execution/must not exclude evidence that may be relevant to accused
2: Fairness to the community
o Acting in public interest/dealing with matters quickly and efficiently
3: Expedition
4: Two tiered test:
o
o
o
(a) Sufficient evidence
 ‘Prima facie case necessary but not enough’
 ‘… reasonable prospect of conviction before a reasonable jury’
 availability of witnesses, conflicting statements by a material witness, admissibility of evidence, is there a defence?
(b) Does the public interest require prosecution? (Only relevant if (a) is satisfied)
 ‘Even if there is sufficient evidence, do discretionary matters dictate that the matter should not proceed in the public interest’
 Consider: seriousness of offence, existence of mitigating circumstances, youth/age/physical and mental health, degree of
culpability, alternatives to prosecution, effect on public order, is offence ‘stale’, victim’s willingness to prosecute, length and
expense of trial, availability of witnesses.
 The more serious the offence, the more likely it will be in the public interest to prosecute.
(c) Impartiality: Do not consider political association/race/power/connections
A charge should not proceed if there is no reasonable prospect of conviction.
Consequences





Only rarely will a charge be thrown out when it breaches the guidelines, and only when it is an abuse of process: Maxwell
Purpose of criminal proceedings is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence – Jago;
Moti
The way that the prosecution acts and occurs should be proportionate and appropriate
Abuse of process:
o Oppressive prosecution
o Lack of charge peculiarity: KRM; Rogers
o Doomed to fail: Walton v Gardiner
o Double jeopardy: R v Carroll
CMC may oversee decision whether or not to prosecute, as demonstrated (Volkers, Hurley)
2.6 Bail
Starting Point: Grant
Bail (s9) presumption
of innocence
Types of Bail
(All other offences) s8

Cash Bail (s14A)
o (Non-indictable offences only)  failure to appear only
results in forfeiture of money ss31-33 (not ‘an offence
against this act’)
Murder and Indefinite Detention matters (Pt 10 PSA):
Supreme Court (s13)
(Cash Bail not available)

Bail on undertaking with/without conditions (s11)/(s20) – pg 107 text
o A contract to appear at court – arrest warrant issued upon failure
o Failure to appear is ‘an offence against this act’ (s33), as is breach of condition (s29) and therefore relevant for s 16. No
offence if mental impairment (28C).
o Special conditions (subs 3) MUST be imposed if (unlawful violence against person/property)
o Conditions shall not be more onerous for the person than those reasonable necessary having regard to offence,
circumstances and public interest (s11(2A) – DPP v Bakir
(Surety)
o A guarantor (s21). Forfeit of money if accused absconds (s32A) - Mokbel
o Limitations: must have money, be over 18, mentally sound, true relationship,(family must not suffer ruin/injury s21(8))
o Apply for discharge of obligations if afraid accused may abscond(s23). Or, apply for payment order to be revoked (s32B) if
accused absconds and forfeiting money would be against interests of justice  Baytieh.
Program Prescribed – s11
o i.e. drug/alcohol (although criticized as a method of bail, punitive before court)
Relevant
Court/Authority
Application (s15)
Refusal: Onus?
Police Bail: s 7
Supreme Court: s13
Court Bail: s 9
Defendant:
 Reasons that the D needs to be in the community (15(e))  D not to be cross examined, only evidence that the court
considers ‘credible’
 Supporting factors: lack of prosecution objection, personal responsibilities, risks to physical/mental health,
Prosecution:
 May submit any relevant evidence (that the court thinks credible), and also evidence of (i) previously convicted of
indictable offence, (ii) awaiting trial on indictable offence, (iii), previously failed to appear
S16 Refusal: Onus on prosecution to show ‘unacceptable risk’
Onus on the Defence (Tappin):
(s16(1)):
 Show cause why detention in custody is not
 Fail to appear/surrender into custody
justified (s16(3))


o Employment? Housing conditions? Reasons
Commit an offence
to stay in the community? Strength of
Endanger safety/welfare of someone who claims to be a
evidence (ie, DNA evidence weak?)
victim of the offence with which the offender is charged or
anyone else’s safety/welfare, or
 Interfere with witnesses or otherwise obstruct the course of
justice
Decided on BoP - Garderner; Scrivener
In determining unacceptable risk, have regard to (s16(2)):
seriousness of offence, character, employment, history of bail,
strength of evidence (D ARGUMENTS HERE!)
Defendant must prove Reverse onus to D if (s16(3)): SHOW CAUSE OFFENCE
i.
Commits indictable offence while already on bail (or awaiting trial for another indictable offence)
ii.
S13 offence (murder/indefinite sentence Supreme Court Only) - Tappin
iii.
Indictable offence with weapon (Williamson)
iv.
Person charged with ‘offence against this act’ (ie, Bail Act Offence  s33 (breaking bail))
Refusal of bail
Police refusal: take before court as soon as reasonably practicable (Williams v R)
Court refusal: further applications for bail after refusal require material change in circumstances (Bakir/Lacey: trial delay)
 (198B; 10(2)) Review available but not in the middle of jury trial (trial judge decision is final) – Wotton v DPP
 All courts have the power to grant bail and to enlarge, ary, or revoke any bail that has been granted at any stage of the
proceedings – s8 (exception of murder - SC only)
 Can appeal bail conditions to vary them – s10 (do not need new material facts here)
Can Bail be granted after conviction but before an appeal is heard? Exceptional circumstances:
 Maher; United Mexican States; Chamberlain
 Must consider the likely success of the appeal
Police Bail – have to consider when: s7



(i) There is an arrest and charge matter, (ii) Bench charge sheet issued (iii) Police officer makes decision whether or not to grant bail.
** arrest and charge matter, where not detained for questioning (s7(b) Bail Act), cannot get to court within 24 hrs (7(2))  must consider bail **
Conditional bail (s7(3)(c). Refusal  becomes an issue for the court (s7(7)
WEEK FOUR: Commencing Proceedings
Offence Classification/Location
CLASSIFICATION
Regulatory
Simple Offences
Regulatory Offences Act: These
offences can only be dealt with in
the Magistrates Court
* Unauthorized dealing with shop
goods – s5
* Leaving hotels and other venues
without paying (when value is
equal to or less than $150) – s6
* Minor property damage (less
than 250) – s7
Penalties restricted to fines – s8(1)
An alternative to charging an
indictable offence
Commence: w/in 1year
(s 52 Justices Act (JA) 1886 Qld; s388 PPRA re
NTAs)
Mens Rea:
- s36(2) excludes regulatory
offences with exception of:
- s22(2) – honest claim of right;
s29 – immature age; s31
compultion
Cameron v Holt: mens rea is
required
Can be heard ex parte (in absence of accused)
only if pros can show accused was served with
summons/NTA
(ss142-142A JA)
Cannot disqualify (i.e. from driving) or
imprison in their absence(ss142 (2);
s142A(6);s143 JA)
Court: Generally heard in the Magistrates
Court (s19 JA) no more than 35km away from
offence place (139 JA)
-exception s651 QCC accused pleads guilty +
representation
Costs: s157-158 JA
-Either against P or D
_Turner: don’t need exceptional circumstances
-Latoudis: will act as a means to make
prosecution really consider bringing a case to
court
- unlikely to be awarded to defendant when
convicted of more than one charge, but
acquitted of another.
Indictable Offences
(Crimes or Misdemeanours)
Commence: Generally no time limit (although statutory
exceptions and court looks at the fairness of the
situation)(see s552FQCC; s52 Justices Act)
Court: Prosecution via indictment: generally can be heard in
higher court (s3(3) QCC but see chapter 58A QCC)
- Why hear it summarily? Lower costs/informal/lower
penalties/conviction for accused will be less serious
Costs: Cost not awarded in higher courts (but may be if
indictable offence heard in magistrates court see s157 JA.)
- generally no costs or fees (but see s660 QCC)
Generally accused should be present – although greater
flexibility for misdemeanour (s 617 QCC)
Stuart: After adjournment, A deliberate overdose – the trial
could continue – frustrating the process.
Hill: Successful appeal against the trial going on in his
absence (not a deliberate frustration).
Most courts will want D there to get rid of appeal point.
LOCATION
Criminal Code
Mandatory
Summary
Disposition
Section
552 BA
Summary of Charge
Indictable offences that must be trialled summarily (subject to 552D).
 All charges (≤3 years) – s552H
 Offences in Pt 6 (>3) unless excluded by 552BB or Ch 42A offence.
Common examples of offences:

Common assault [section 340]

Dangerous driving simpliciter [section 328A(1)]

Deprivation of liberty [section 355]


Assault with intent to steal [section 413]
Demanding property with intent to steal [section 414].
Section 552BB excludes various serious offences in Part 6 from 552BA. Two main categories:

Summary
Disposition unless
D elects for Jury
Trial
552B
Summary
Disposition by
Prosecution
election
When Magistrate
Must abstain
552A
552D
Offences where the value of property involved is $30,000 or more unless the defendant pleads guilty (note:
this monetary threshold does not apply to wilful damage); and
 Various specific offences such as arson and armed robbery.
Subject to 552BA* and 552D [assumption for summary unless D elects]
 Sexual offence (w/o aggravation) if complainant over 14, guilty plea, sentence over 3 yrs.
 Assaults occasioning bodily harm (s339) (Not with weapon/in the company of another!)
 Assaults w/o aggravation/not of sexual nature/ 3< x > 7, not a 552A offence (need pros agreement)
 drink driving/stalking/elections/Prostitution/Secret commissions
Subject to 552BA* and 552D [assumption for higher court unless P elects]
 Helping escape/ more serious assault offences (3 < x > 5)
Magistrate must abstain, on application of the D, is satisfied ‘exceptional circumstances’:


Important issue of law (committal to Supreme/District)
Because of nature or seriousness of the offence or any other relevant consideration the defendant, if
convicted, may not be adequately punished on summary conviction (552D(1)) (Applies for 552B, 552A, 552BA)
Appeal point: refusal to allow indictable offence heard summarily (552J)
Hall: A decision to hear several charges of house breaking relation to a number of offenders. After hearing charges,
decided that three years was not sufficient. So imposed cumulative sentences on many of the counts. Successful
appeal: having to cumulate was no appropriate, should have been sent to higher court.
District Court
Jurisdiction limited to offences punishable by no more than
20 years’ imprisonment (DCA s 60)
Exceptions (s61):
 Specific matters: Sexual offences/property offences
with life imprisonment (rape/aggravated burglary)
Supreme Court
Prosecution has discretion to present the indictment in the
Supreme Court after consideration of factors including
complexity of care, seriousness of alleged offence and any
particular importance attached to the case (560(4))
-Depends on complexity / seriousness/ importance and other relevant
considerations
EXTRADITION
Extradition proceedings involve the formal surrender by one state of a person to another state for the purposes of criminal prosecution.
INTERSTATE - Services and Execution of Process Act (Cth) ss82-83
- when a person has been apprehended, must be taken before Mag as soon as is practicably possible
- if a warrant is not avialble, must release the person
- if the warrant is valid, the person must be taken to the home state or be given bail on the condition that they appear in their home state – s83
- where the warrant is not valid – Mag must order release of the person - s83(10)
- No discretion for Mag to refuse extradition on grounds of unjustness or oppression, only abuse of process: Loveridge (delay)
INTERNATIONAL - Extradition Act (Cth) ss5-7
- AG must be satisfied that:
o Extraditable person: s6
 A warrant is in force for the person for an offence in another country /needs to impose sentence for a conviction/outstanding
sentence needs to be served
o Extradition offence: s5
 An offence against the law of the requesting country
 12 months imprisonment or more (no death penalty)
o An Extraditable country: s6
o Would also amount to an offence in Australia
o No extradition objection – s7
 Political offence in requesting country
 Surrender is being sought to punish person for political/race/religious grounds
 Prejudice at trial
 Already been acquitted/pardoned/punished by a competent tribunal
o
DPP v Mokebel/ Sneddeon v Republic of Croatia
COMMITTALS – Justices Act (Qld)
Historically a committal is usually held in relation to indictable offences in the magistrate’s court prior to the jury trial.
A committal hearing is generally conducted in order to establish whether or not there is sufficient evidence to justify sending a person
charged with a serious indictable offence to trial in one of the higher courts. Other purposes include:




Filter out weak cases
Disclose the prosecution case to the defence
Provide an opportunity to test the strength of the prosecution
Provide an opportunity to call evidence into rebuttal
No fair trial without committal, unless it is justified on strong and powerful grounds: Barton v R
-
-
-
-
Accused to enter a plea
o s104(2)b: No requirement of plea
o If a plea of guilty is entered, the matter will be committed – s113
Give evidence
s104(4): no req for accused to present defence evidence* BUT (5) – if intended to bring alibi/witnesses at trial – must inform the prosecutor
s108: MAGs/Js assess whether to go to trial if there is sufficient evidence
o Q = “sufficient evidence” to support a possible conviction?
o e.g Antoun; Doney
If there is enough evidence, prosecution to prepare indictment s560 QCC
If there is not enough evidence, Mag to discharge matter – s104
o prosecution can still proceed via a s561 QCC ex officio indictment.
Commitals should take place in front of accused – s104
o Accused is required to understand case against him – Ebataringja v Pryce
Obligations of Prosecution in relation to evidence
o Prosecution has discretion, but generally must have a good reason for not calling a material witness – R v Basha
Basha Inquiry:
o Hearing conducted before jury is empanelled in order to provide defence with an opportunity to hear and test evidence that as not
provided at committal
o Not permitted unless accused is able to establish that without one, there is a risk of an unfair trial
Paper or hand up committals - s104
o Written statements take place of oral evidence
o Accused must agree, must be legally represented
-
Legal aid at committals
o Provided for those offences with max period of over 14 years/arguable matter for no case/where disability precludes self-rep
Directions hearing: s83
o Mag/party can order a directions hearing
o Requests for and directions about disclosure
o Requests and directions about cross examination of witnesses
COMMITAL
ISSUE
Registry
Committal
Examining
Witnesses
CrossExamining
Prosecution
witnesses
Direction for
Attendance of
prosecution
witnesses
Section
114-117
JA
130 (JA)
34BA
(Bail Act)
Ss
103/110
JA
ss
104,110
JA
Summary
Conditions for Registry Committal
 D must be legally represented
 D not in custody/breach of bail
 All prosecution evidence intended to be give in written statements, and these have been provided to the defence
 D’s lawyer has given written notice stating D does not intend to give evidence & stating whether D intends to be
committed for sentence or trial
Magistrate has a supervisory role – s103B
Use of tendered statements in lieu of oral testimony – s110A(3)
This is normally enough, no need for cross examination (subsec 2&3)
Witness can only be called by prosecution/with consent of pros/by order of Mag in interest of justice
Written statement must be admitted without witness unless:

the prosecution and defence agree to cross examine (section110A(5))
 the witness is required to appear due to a direction given under section 83A(5AA) – D application to X-Ex
 the defendant is not legally represented and the magistrate is not satisfied of matters listed in section 110A(4).
If the prosecution does not wish to tender a written statement for a witness that witness will be called to give oral
evidence in court at a committal hearing.
Where the prosecution does not:

call a witness to attend to give evidence, or

consent to the attendance of a witness for cross-examination,
D needs to make application under 83A(5AA)  Cannot make application unless parties have tried to agree (110B).
A magistrate cannot give a direction (835AA) unless satisfied there are substantial reasons why, in the interests of
justice, the maker should attend (section 110B).
Blacklidge
-
for the D to define purpose of the E-Ex.
-
All NSW cases dealing with special/substantial reasons are instructive
-
Substantial reasons requires something that is more than nominal or ephemerl
-
i.e. critical witness has provided an inconsistent statement
-
See also Police v K (children witnesses – decide not to allow X-ex); BJG v Police
Witness cannot be cross-examined on any issues other than those relevant to the reasons for which the direction was
issued - s110C

Paper
committal (D
not legally
represented)
110A
(JA)
Referral of Ex
Officio
Matters to
Registry
23EB (JA)
Unless the magistrate hearing the committal is satisfied that there are substantial reasons why in the interests of
justice this is necessary.
(An application can only be made once unless a magistrate gives leave for a further application to be made because
special reasons exist).
May conduct full paper committal for unrepresented D if satisfied:



understands what the proceeding is about and the possible consequences; and
is aware that he or she is entitled to legal representation and may apply for legal assistance; and
is aware of the right to apply for a direction requiring a prosecution witness to attend court and how to make
such an application.
Magistrate must still consider sufficiency of evidence.
Court may refer a charge for an indictable offence to the registry (parties agree to ex officio indictment)
 Referral may only be made if the defendant is legally represented and is not in custody or in breach of any condition
in relation to bail.
Ex Officio Indictments
Indictments
EX-OFFICIO INDICTMENTS (no committal): QCC: s561
INDICTMENTS – written record of charge
‘a written charge preferred against an accused person in order to
the person’s trial before some court other than justices exercising
summary jurisdiction’. – s1 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 or an offence before the court – s561(1)
- Discretion of prosecution – but can be an abuse of process –
Webb;
- Absence of committal is not necessarily a ground for staying of
the EOI – unfairness needs to be demonstrated - Suiazdinis
ABUSE OF PROCESS
- Defendant pleading guilty under pressure
- Lack of disclosure – Barton
- Avoiding time limits (6 months to hand indictment to court) –
s590(1) QCC; R v Foley
JA – s 23EB:
(1) accused must be rep’d/not in custody/not in breach of bail
(2) must be an agreement between D and P
(3) clerk of the court can refer matter back to Magistrate if there is a
delay/at request of a party
presented to the court: under s560 QCC
- TIME? – w/I 6 months of committal: s 590/with option of extension
on application (reasonable): Cicolini
- Can be discharged if time limits no complied with - Jenkin
- PROVIDE sufficient particulars – for D to know what charge they are
answering to
- Name of court/description of offence/particulars of
offence/particulars of victim/particulars of property/allege each
element of offence/aggravation if present s564(2)
- Absence of necessary particulars is not enough to stay indictment
- Indictment can be amended at any time before trial or during trial as
long as amendments will not cause prejudice – s572 QCC; Fahey &
Ors
- one count per indictment – s567(1)
- no overloading – Ambrose
- no charges of a trivial nature
- for Indictments in Mag Court: ss42-43 JA
- consider: joinder
-
JOINDER
QCC s567(1) - Presumption of 1 count per indictment
JOINDER possible BUT shouldn’t be overloaded (jury persp): Ambrose
S567(2) - Charges for more than 1 indictable offence may be joined if
those charges;
- are founded on the same facts: Collins - Multiple stealing and arson
at the same time (bit of a rampage)
- are, or form part of, a series of offences of the same or similar
character: Longi - 4 murders
- a series of offences committed in the prosecution of a single
purpose.: Cranston - Assault of one person to rape another
Largely a matter for the Prosecution: must be careful – certain
circs – could be an AOP – appeal point*: JMP v R; De Jesus; Phillips
(esp rape cases)
- Issues with admissibility on one count, admissibility on the
other
- Trial judge instructions crucial as to what evidence can be used
for what charge
- Increased likelihood of conviction with joinder
Advantages of Joinder:
- Desirable for accused – only one trial
- Reduced time and costs for prosecution/courts
s568 – Co-Accused on 1 indictment
- Permissible if charges arise out of same or substantially similar
facts
- Application can be made for separate trials, but discretionary –
s597B (unlikely to be granted)
- Admissibility of evidence for one accused but not another is not
sufficient for separate trials: Ginger
FAILURE OF SEPARATION (on application) – separate issue to
joinder
S597A - Accused may apply for Separate Trials: if court thinks
(mainly) prejudice, embarrassment or any other reason, may order
separate trials
- subject to discretion: KP v R – s597BQCC
- Can appeal disc failure to separate in prejudicial circs: Phillips
- Weigh the probative nature of the evidence against the
prejudicial effect (subs 1AA)
WEEK FIVE: PLEAS AND DOUBLE JEOPARDY
Plea Bargaining (Prosecution)
Serious indictable offences (not dealt with summarily)
 Indictment prepared and presented after committal (unless ex officio
indictment). Generally only one charge per indictment (joinder
permitted in some circumstances)
 Accused may either: (i) apply for separation of charges, (ii) engage in
plea negotiation
Guideline 16: How plea bargaining should be approached
 Gross undercharging may be abuse of process (Maxwell; Brown)
 Not appropriate to over- charge (DPP guideline 16(ii))
 DPPG 9(iii) and (iv) charges must adequately and appropriately reflect
the criminality that can reasonably be proven and that it is
inappropriate to overcharge to provide scope for plea negotiation
 Accept guilty plea if in public interest (14)
 14: bargaining appropriate where evidence becomes available that
weakens prosecution case/where accused offers to plead guilty to a
specific charge on indictment and/or give evidence against cooffender
o Accused/Defence must initiate bargaining, and accused
cannot maintain innocence, and bargain must be appropriate
in light of the nature of the accused’s criminal conduct
(guidelines 14/16)
o Bargaining must involve consultation with victims, families
and investigating police officer (guideline 14(vi)
Advantages of PB
 Certainty of results
 Reduced sentence
 Increased efficiency
 Reduction of costs to accused (financial and penal)
 Reduction of costs to justice system
 Spares victim
Disadvantages to PB
 Accused under pressure
 More likely to plead guilty (more vulnerable/limited financial
resources and support)
Giving Plea (Accused)
Pleading guilty is an admission of the elements of the offence, but there is
no conviction until a court accepts the plea as an admission of guilt –
(Maxwell v The Queen)
An accused who enters a plea must do so understanding and intending the
guilt of the offence (R v Allison).
 Accused unrepresented
 Accused feeling pressured (Gadaloff/Allison)
 Accused not understanding the agreement
Accused must give unequivocal plea
 ‘Guilty’, but ‘not driving that car’ (short adjournment for
accused to sort story out)
Magistrates Court
 s 145/146 JA
 Committal: ss 104(2), 113 JA
Higher Courts
 Accused called upon to enter: 597 QCC
 Plea options, s 598 (D/J, for example)
 Once plea made, committed for sentence: s 600
 Entering guilty plea mid trial: s 631A QCC
 Accused stands mute? Assume PNG: s 601 QCC
o Allocutus; see s 648 QCC
o “is there any reason why I cannot sentence you”
A guilty plea can be entered at any point in the process
Advantages to pleading guilty
- sentence reduction (s13 PSA)
- clear the books – bring charges together and sentence concurrently
- reduce culpability via negotiation
- assist justice process – Cameron
Concerns about PG
- hopelessness
- pressure to plead – Allison/Gadaloff
- to avoid costs
- actions don’t necessarily reflect guilt - Meissner
 May be unrepresented
 May misunderstand agreement
 Occurs in private – reduces confidence in system
 Are courts appraised of the real facts?
Limits to PB: - GAS v SJK
 Prosecution has responsibility alone for deciding charges
 Accused person along must decide freely whether or not to plead
guilty to the charge
 Sentencing judge alone decides the sentence to be imposed
 The agreement between pros and defendant will not bind judge
Withdrawal of acceptance of plea by prosecution
Prosecution may (with court leave) withdraw acceptance prior to sentencing
(Maxwell v The Queen)
Two qualifications:
 (i) there may be circumstances affecting the prospects of a fair
trial on the more serious charge (witnesses no longer available)
 (ii) broader consideration of fairness – accused made admissions
which would not have been made but the the agreement
Wentworth (too far down the track – ‘administrative hopelessness)
 It is possible for a stay to be granted on the charges that had been
negotiated away
Charges may be altered/amended by policy/ODPP at any time subject to rules
relating to abuse of process - ss48-49 JA/ ss571 – 572 QCC
 Counsel should not meet privately with the judge – McQuire & Porter
Withdrawing plea
Plea may be withdrawn with court’s leave any time before sentencing
(Maxwell)
 Presumed innocence until conviction
 Nevertheless, probably needs a miscarriage of justice (accused
under fraud, compulsion, threats) however this will ordinarily
only occur when: R v McQuire & Porter
- the accused did not understand the nature of the charge
- did not intend to admit guilt
- pleaded due to improper inducement or fraud
 Not easy if the client legally represented when plea was
entered
Court will act on guilty plea when it is entered by a person of full age,
sound mind and understanding provided the plea is entered in exercise of
free choice in the interest of the person entering the plea - Meissner
Once Allocutus is entered and accepted, can no longer withdraw plea
Plea bargains not enforced by courts: The conduct of counsel cannot
circumscribe the judge’s responsibility to apply relevant law (R v Power).
Accepting plea (court)
Although no general requirement for court to ‘connect the dots’, it may go behind the facts and not accept plea
 The court may perceive lack of connection: Hondema v Carroll (going behind the facts – the accused was driving around an empty parking lot
 Maxwell: weak evidence suggesting diminished responsibility, could not accept plea (though general rule is no going behind facts)
Court must not accept plea if: Maxwell; Meissner; Ray’s Case; Hondema v Carroll
 There is confusion/language barrier
 Concerned about volunariness or clarity of the statement
 The plea is a product of intimidation/fear/improper inducement/harrassment
Court not obliged to accept plea unless it is voluntary –
 Made in the “exercise of a free choice in the interests of the person entering the plea” (Meissner v The Queen). Product of intimidation, fear,
improper inducement or harassment (Maxwell)
 If not genuine, judge must either obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered (McHugh)
Court ‘bound’ by the way that the defendant is presented by the prosecution
 Bound by the facts before the court
 Court must not indicate sentence before plea [Marshall]
 Court will not enforce plea negotiation arrangements in court, though they are encouraged to be reduced to writing [GAS and SJK]
Discount for a Plea of Guilty
PSA (s13): A court must take into account a plea of guilty, may reduce sentence
Cameron: (a) remorse, (b) acceptance of responsibility, (c) administration of justice, and (d) (Bay [2005]) saving victim from giving evidence.
The value of each of these criteria varies depending on the nature of the crime, the time at which a guilty plea is indicated or entered, and the extent of any
cooperation with the prosecuting authorities (R v BAY)
 ‘Timely’ Plea
o Cameron: waiting until test results (speed, not ecstasy) were back before making a plea
 ‘May’ reduce sentence (s13)
o Baker & Baytes: judge was influenced by the lateness of the plea of guilty, and her maintaining denial of responsibility for the death of the
deceased until the commencement of the second trial.
o Stuck [2005]: A timely, not early plea: “not an early plea of guilty as it was not entered until after the trial had commenced, however,
importantly, neither the complainant nor other members of her family were required to give evidence at any stage”
Double Jeopardy
Four different versions of the rule (still very important for the majority of offences that are not murder/that are below 25 yrs).
(i) Person cannot be tried for an offence which they have earlier been convicted/acquitted (QCC s 17)
o Alternative verdicts (575-589 QCC) – CANNOT BE PROSECUTED OF AN ALTERNATIVE VERDICT IN RELATION TO THAT MATTER
 575: Assault with BH/Assault (Offence involving circumstance/s of aggravation)
 576: Murder/Manslaughter (300)
 Stealing/Fraud
 578(1) Rape: s 349/(sodomy/indecent treatment/carnal knowledge/ procuring sexual acts/ incest/ sexual assault ect)
 579: GBH with intent/GBH (Any offence involving a specific intention to cause the result)
 583: Any offence/attempting to commit that offence
 If conviction/acquittal on the former, no charge for the latter (s17). Question of law
 Judge must give alternative verdicts that rise fairly on the whole of the evidence (R v Rehavi; Willersdorf)
 A judge does not always have to direct on alternative verdict – it depends on whether the alternative verdict arises for
consideration - Willersdorf
 Alternatively, the judge will not let the prosecution go ahead on the grounds of abuse of process (Jago v District Court)
 R v Vievers: convicted for possessing ‘prohibited plant’ (cannabis), then charged for possessing ‘dangerous drug’. S17
did not apply (because second charge not available as an alternative verdict), but Supreme Court held double jeopardy.
 Magistrate court does not ‘acquit’ but ‘dismisses’: may obtain certificate (s700)
o Nolle Prosqui does not relate to s17
(ii) Earlier acquittal cannot be undermined/controverted in later proceedings, even for a different offence
o Carroll: An earlier acquittal on murder barred subsequent proceedings for perjury (both proceedings raised the same ultimate issue). So
not strictly charging the murder offence again (ie, earlier point), but undermining it (through perjury – ‘you were lying at the original
trial’).
Ask: Does this bring in to question the earlier acquittal? (Imp for all offences not murder, or below 25 yrs)
(iii) Where a judge excludes confessional evidence at a trial, that evidence cannot be relied on at a later trial for a different offence (via abuse
of process)
o
Rogers v R (1994): In an earlier trial, 3 out of 4 recorded confessions were ruled inadmissible because they were not voluntarily made.
Three years later the prosecution sought to rely on the same 4 records of interview. The High Court permanently stayed the
proceedings on abuse of process.
(iv) Person cannot be punished twice for the same criminal act or omission (QCC, s 16)
o
o
o
Cannot be twice punished for same act/omission (ie, the act of driving dangerous) unless it causes death
Originally convicted/acquitted for a certain act (driving causing GBH)  later dies  then murder?
But ‘twice punishment’
 R v Pearce: the penalty that the offender receives is the focal point, rather than the amount of offences he is charged with.
Concurrency is important (cumulative unusual).Therefore, overlap in concurrent penalties does not breach DJ as long as they
reflect the overall criminality of the act.
 Longbottom: the overall criminality, and does the punishment match the overall criminality
 Ordered to serve separate, concurrent penalites
 No additional punishment for penalizing for overlapping offences, as long as the penalty was representative.
 Kinchela: One episode of driving, two offences, both reduced to take account of the single act. Central consideration: overall
criminality, court did not evince willingness to drill down and look at the overlap between the separate offences.
 Tricklebank: imprisoned for DUI and dangerous driving. Appeal against sentence saying that he had already been charged with
drink driving, and when judge had imposed sentence for DD, took into account role alcohol played. CoA dismissed because they
were two different offences
 Individual reductions will be made in cumulative sentences for different offences to reflect the overall criminality of the act
EXCEPTIONS TO DOUBLE JEOPARDY RULES – AS OF 25 OCTOBER 2007
Retrial for
murder: 678B
(a) Acquitted person retried for murder
 Cannot be acquitted on murder, going for manslaughter. Cannot be convicted on manslaughter, going for murder.
 Can be acquitted on manslaughter, going for murder (678B(2))
(b) Is evidence fresh and compelling? - S 678D
Fresh: it had not previously been available, despite reasonable diligence
 Was it the fault of the DPP that the evidence was not there (in Carroll, forensic evidence was simply not invented)
Compelling: Reliable, substantial and probative
 An evidential standard: ‘useful for proving’
 R v Dunlop: Acquitted, but gave post-acquittal confessions (desire to move on). Re-prosecution for murder.
 R v G & B: (Fresh, but not compelling) Prisoner ‘now prepared’ to give information on his mates (manipulative and cynical,
not compelling evidence)
Not precluded if inadmissible in earlier proceedings
 Hamer Article:
o Changes in evidence rules? Evidence can now be introduced at 2nd trial?
o Evidence comes to light about prior convictions that suggest similar fact situations (ie, always goes to 2nd floor
wearing head dress before raping woman, three trials in a row like this, now a similar fact situation to bring to the
fore?)
o New evidence relating to motive/opportunity (the ability to be in a certain place)
(c)
Is it just to proceed (678F)
Consider length of time/whether prosecution were diligent (i.e. didn’t carry fault for acquittal)/whether a fair trial is able to
ensue
NB it reverses the onus for bail: accused person should not be granted bail unless they can satisify the court that they wouldn’t be an
unacceptable risk
’25 year offence’: serious riot, rape, GBH with intent, robbery, serious drug offences, murder.

678C: retrial
for 25 year
offence on the
basis of
tainted
acquittal
o
Exceptions
and
Protections:
678F
Administration of justice offence (chapter 16 QCC; perjury/corrupting witnesses etc):
(a) Person convicted of the administration of justice offence
(b) But for the commission of that offence, there would not have been an acquittal
No re-trial if a conviction was obtained for an alternative less serious offence at first instance – s678A(2) and 678C(2)
(a) the re-trial is likely to be a fair trial
ie, Carrol’s publicity might have been too prejudicial for a re-trial under this legislation
(b) Court must have regard to time between alleged offence and re-trial
Ie. Case goes ‘cold’, ie, defence witnesses no longer available or are now senile (inability to get a fair trial)
(c) Reasonable diligence of investigators/ expedition
Ie. So, in 678B, there must be diligence in finding that ‘fresh’ evidence but there must also be diligence ‘generally’ (initial
investigation was efficient).
Generally prosecution can only make one application for retrial, but there is an exception where an acquittal follows a retrial that was
permitted under the new scheme, and the acquittal is a tainted acquittal
Make an
application
Either fresh and compelling evidence, or a later conviction for an admin justice offence linked to an acquittal, make
application before the court within 28 days of the person being charged for the re-trial offence or warrant being issued
for their arrest – s678G (and defence has opportunity to challenge even before trial goes ahead).
Week Six: Trial Process
PRE-TRIAL DIRECTIONS/RULINGS (590AA)
Various applications can be made: Evidence, stay of indictment, joinder, disclosure, questions of law, application for judge alone trial.
Non compliance (590AAA) : orders, adjournments, contempt (cost award **)  could potentially apply to P and D (NEW)
DISCLOSURE OBLIGATIONS
Prosecution Ongoing duty to give full and early disclosure of all evidence the prosecution proposes to rely upon and all the things that are in the
Disclosure prosecution’s possession that would help the accused’s case: QCC, s590AB(2)
obligations Possession (590AE): possession of arresting officer, ODPP or police service (or anything that prosecution is aware is in existence and would be
locatable) without unreasonable effort
Duty applies to new and relevant evidence (Mallard v The Queen) that becomes available (even where exculpatory evidence becomes
available after conviction: QCC, ss 590AL and 590AD) and must be disclosed as soon as practicable after being possessed by prosecution
o ‘Reliable evidence that may cause a jury to entertain a reasonable doubt about the accused’s guilt’
o Disclosure must occur “as soon as practicable” after it comes into prosecution possession (590AL(1) and (2))
o Non compliance does not affect the trial’s validity (590AC) R v OL; R v HAU; R v Martens); but may lead to affect fair trial: Mallard v R
Duty applies to committal proceedings, prescribed summary trials and trials on indictment (ss590 AB(2) and 590AD).
Prescribed summary trial: indictable offences that must be heard summarily/election made under s552A/ accused wants jury trial s552B
Accused person may waive entitlement in writing. Court can waive if ‘good reason’ and no resulting miscarriage (590AT/590AU)
(Things that must always be disclosed) – s590AH QCC
 Bench charge sheet
 Accused’s criminal history, any statements by the accused,
 Written notice of any “affected child witnesses”, notice of an
intention to rely upon certain types of hearsay evidence,
 Witness statements, reports of any tests/notice of tests to be
completed,
 Notice of intention to rely on hearsay evidence
 notice of any original evidence to be relied upon,
 anything else the prosecution intends to rely upon
Must disclose 14 days prior to the date for a hearing in Magistrates court
(committal or summary trial), no more than 28 days after presentation of
indictment (590AI)
(Limitations: (s590 AN-AQ) – not required to disclose:
- Witness contact details (unless materially relevant (590AP))
- Material that would be contrary to the public interest to
disclose (national security, compromise ongoing investigations
(590AQ)).
- “s 93 A statements” (interview with a complainant to a
sexual offence; but D must be given written notice describing
statement – s590AOA)
- Material already disclosed
- ‘Sensitive evidence’
Up to the prosecution to decide whether evidence is sensitives590AO
590AF: indecent image of a person, interfere with that
person’s privacy if it was disclosed without their consent:
590AX).
DPP Guideline 26 (IV): video taped interviews with
 Particulars of sexual offences/offences of violence about which an complainants of sexual offences containing accounts of sexual
activity, porn, photographs.
“affected child” witness is to testify,
 copy of the criminal history of a proposed witness for the
prosecution or anything that goes to their reliability, credibility or
competence (590 AJ(2)(B)-(d)). – R v Rollason; ex parte AG
 Also, accused may request a copy of anything in the possession of
the prosecution (but that the prosecution does not intend to rely
upon).
Seek disclosure obligation direction (s83A 83B JA)
Must disclose ‘as soon as practicable’ when request made (s590AK)
(1) Notice to be given of intended alibi evidence
 Where accused is to be tried on indictment and wants to rely on an alibi, must provide particulars to prosecution within 14 days of
committal for trial (s590 QCC)
 Non-compliance may result in accused not being able to call in evidence: QCC, 590A(1) and (2)  more likely to result in leave from
judge
 Alibi:
 Evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular
time the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been
committed at the time of its alleged commission – s590A(7).
 R v Erasmus: After death of original alibi person (who would not give evidence), jury inquired during deliberation as to whether B’s
wife (who had been expressly referred to) could confirm the alibi. Judge said no;
o (a) Not notice of alibi had been given in relation to Anne,
o (b) No application to leave for alibi evidence had been made,
o (c) No application had been made for an adjournment to ascertain if she was available.
 Less sympathy if represented
 R v ZSK: Prosecution cannot just change alleged date of offence upon receiving alibi
 Kerma: alibi only worked for some of prosecution case (accepted even though late – warning given against credibility)
(2) Expert opinion evidence (R v de Voss: prosecution had no way of rebutting depression)
 There is an obligation on the accused to give advance notice of ‘an intention to adduce expert evidence’ (s590B) – notice includes
name and findings expert will make at trial
 . A copy of the expert’s reports must also be provided before the trial.
(3) Certain Hearsay evidence (s 93B of the Evidence Act 1977 – dealt with in the law of evidence)
(Things that must be disclosed upon request) 590AJ
Defence
disclosure
obligations
Application for judge alone trial – s614
(a) You are in the District/Supreme Court, make a pre-trial application under 614 at a directions hearing (s590AA) granted only where it is in the
interests of justice – s615(1)
a. If you know the identity of the trial judge already, need to show special reasons why application should be accepted – R v Prisk & Harris
b. If you are unrepresented, the judge needs to make sure you properly understand the nature of the application (advantage for prosecution
of judge alone trials is expediency)
c. D must consent – s615
(b) Court will consider whether it is in the interests of justice (Clough (2008) establishes that this is an unfettered discretion having regard to the
circumstances of the case). Although s 615(4) gives factors”
a. Complexity of the evidence (R v SAA: complex evidence in sex offence, in the interests of justice to allow judge alone trial)
b. Jury retaliation offences (probably unlikely)
c. Pre-trial publicity (Ferguson):
i. Mitigating factors (615(5))
1. A jury is needed because 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.
2. A jury is needed to assess the credibility of witnesses
d. Clough: Subjective views of D only a relevant consideration and is not limited to particular kinds of charges
e. If more than one charge on indictment: jury order must be made against all charges/all defendants (615A)
(c) Rejected in R v Pretorius – good jury directions should protect defendant from appropriate information found on internet by jury
Protections in legislation to stop ‘judge shopping’
Judge is required to apply same principles of law and procedure as there would be applied in front of a jury – s615 B
VOIR DIRES
(Creature of the Common law: send jury out mid-trial and settle a point of law)
NOLLE PROSEQUI: 563 QCC (“pull the charge out of the court”)
- Crown pulls out charge (accused not protected from DJ rules, but better than a conviction).
- Any time before a verdict is given (R v Ferguson), but after an indictment is presented to the court. Involves the relevant Crown officer informing the
relevant court in writing – s563(1)
- Brings the indictment to an end, but does not stop a further indictment from being presented to the court for the same offence at a later date – s563(3)
QCC
- ODPP Guidelines suggest verdict more preferable, but (i) problem with the law, (ii) technicality arises, (iii) incorrect charges: suggested that it should be
entered before trial begins.
- More likely to be ‘unfair’ and more unlikely to be accepted the closer the hearing is to the jury verdict. – DPP v B
- Saunders: it surfaced that the police evidence was fabricated – R v Jell affirmed that nolle prosequi can be stopped by court because of unfairness
- DPP v B: An improperly accepted nolle is an abuse of process. Circumstances where it may be an abuse of process:
 Prosecutor seeks to enter a nolle after the jury asks for assistance and their request signals a possible not guilty verdict
 Where a case has not gone well for the prosecution and they are seeking the opportunity for a re run
 Where a witness was not available and their evidence was not covered, as hoped by other witnesses.
 Where the crown case does not disclose the commission of an offence as alleged in the indictment
-
 Where the prosecution’s case consists of corrupt evidence.
If Crown were to later attempt to prosecute matters that were incorrectly nolled, it would have no alternative but to stay as an abuse of process Gipp v
The Queen
NO CASE SUBMISSION
Where defence is of the view that there is a lack of evidence to support pros allegations
Antoun – directed verdict
R v James, Tappin and Thomas
 Death of a guy at the RE – security guard punched a dude.
 Dead guy was obese, drug addicted and heart problems.
 At the end, defence alleged that pros didn’t prove causation
 Judge directed jury to acquit.
See also #14 SC Benchbook
o
o
o
o
Hearing in the Magistrates Court – Justices Act
1.
2.
3.
4.
5.
6.
7.
Proceedings are commenced
 NTA; arrest & charge; complaint & summons
 Bench Sheet and QP9
Directions hearing – s83A; Brown v Owen
 Allows a Mag/party to make a direction about matters; including disclosure or provision of expert reports
Consider issues of joinder/particulars/previous convictions – ss43, 46-47
 Washband v QPS
Amending charges if necessary – ss48-49
 Entering a plea of guilty – procedure s145 (same process as higher courts s148)
Prosecutor opens
After prosecution case – no case submission
 Prosecution has failed to establish through its evidence, beyond reasonable doubt, that the charge had been made out against accused.
 Question of law from Magistrate
 Matter dismissed if Mag agrees – s149
Final address :
 If no evidence from defence – defence go last; if evidence from defence they go first (QCC s619)
8.
9.
10.
11.
After all evidence has been heard, Mag decides whether or not the charge has been proved to required standard of proof. If not, dismissed
(s149)
If yes, Mag convicts accused and proceeds to hear submissions on sentence – JA ss150-152
Matter may be adjourned for sentecing
Costs? Ss158 and s158A
Trials in the District and Supreme Courts
12.
13.
14.
15.
16.
Proceedings are commenced
 Indictment presented following committal/ex-officio indictment presented
Directions/pre-trial rulings – s590 AA
 E.g. stay of the indictment, joinder, disclosure, issues and questions of law etc.
Arraignment on the indictment – s597C
Entering a plea of guilty
 Proceeds to sentence
Entering a plea of not guilty – trial by jury (or not? S614CC application)
 Procedure – s146 – same as Mag Court
JURIES (Jury Act 1995(Qld))
JURY REQUIREMENTS
S4: Limits to who can serve (lawyer, government employee, charged with
indictable offence, disability)  need to disclose information you come
across (s35)
S 21: Criteria to exclude (can’t do it because of work)
S 33: twelve people (s34 plus reserves)
S35: disclosure re suitability
S39: rights to challenge advised to defendant
JURY CHALLANGES
(a) 8 Pre-emptory challenges (s42): no reason needed
(prosecution receive 8 peremptory challenges for each accused)
(b) Challenge for cause an individual jury member (s43)
(c) Challenge to jury panel as a whole (s40)
(d) 46: judicial discretion in relation to the discharge (ie, debate about
challenge for cause in s 43, but not pre-emptory challenges)
(e) s 47: Special challenges (asking questions to jury)
- Stuart/Murphy
Ferguson: A requirement to go through s 47 process (asking questions)
before the whole jury panel is discharged.
(f) Discharge the whole jury (ie, something major goes wrong) s 48
Inform jury about duties when being empanelled – ss50-51
The jury can ‘view’ the location ( s 52), contravention may lead to discharge
(Myles v Myles: active jury member)
Impartiality
Will only appeal on the basis of impartiality if it can be proven on that a jury
member did something inappropriately, or acted in such a way to indicate
bias or prejudice.
o Tichowitch: grandaugther was raped and told judge. Defence allowed
the trial to continue at the time, therefore appeal later failed.
o Edwards & Ors: police spent night at station with a jury member –
could not confirm lack of bias so trial was set aside
o R v McCosker: McCosker allowed someone he know on jury, appealed
later and failed because of his right to challenge wasn’t exercised.
Test was introduced in this case
o R v Metius: One juror felt threatened by another, who was
discharged. Held no suggestion of bias
MAJORITY VERDICTS? (10 out of 11, or 11 out of 12)
S59: Unanimous verdict still required BUT
 For offences other than murder and other offences that require a mandatory life sentence and offences against the Cth, a majority verdict available
in some circumstances – s59A
S59A Jury should deliberate 8 hrs (at least) before ‘majority verdict’ s59A direction given – judge needs to be satisfied that the jury is unlikely to reach UV
McClintock: this direction should not be given before a ‘Black Direction’ given (however, not mandatory, so not an appeal point).
 Press the jury for a unanimous verdict before allowing a unanimous verdict
 Give the jury some more time
 Then give the 59A majority decision
 R v Royal
S60 Hung Juries (Still a big problem)  discharge
 Give the jury ‘reasonable’ time, then discharge and run the jury trial again (s60), but after a Black Direction (Black v The Queen)
S70 – creates a number of offences in relation to publication or disclosure of jury information
o Narrow exceptions – i.e. where a jury member must seek help in relation to things they heard as a jury member – s70(12)
o Jurors are not permitted to make inquiries about accused – s50 and 69A
 R v K: retrial ordered after jurors had used internet to search for accused
o
o

Arguments in favour of jury trials:
 as representatives of the community, able to reach objective, just and fair verdicts that align with community standards
 offenders more likely to feel that justice has been done if they are judged by their peers
 jury system encapsulates idea of democracy
 group decision-making processes often overcome individual frailties
Arguments against:
 juries are not representatives of the wider community
 significant number of trials result in a hung jury, especially where they are complex
 secrecy and unpredictability of deliberations
 cost and time factors
 real impact of extraneous factors, such as pre-trial publicity/inadmissible evidence, notwithstanding judicial warnings and directions
Is there a Cth right to a trial by jury?
o
S80 Const.
 Construed narrowly
 Things are always dealt with summarily – no jury
 Where a Cth indictable offence is dealt with on indictment, the jury’s verdict must be unanimous
Week 7 – Fair Trial and Abuse of Process
Fair Trial
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Abuse of
Process
Fair trial according to law – although not necessarily fair in non-law terms – Dietrich v R
No constitutional right to a fair trial but it is entrenched in our legal system – but there is a right to not be trialled unfairly
(Jago)
HC has acknowledged clear link between fair trial and abuse of process – Jago
Limits to resources in fairness (i.e. narrowed right to legal representation – Brennan J in Dietrich
fair trial applies to all – regardless of guilt or innocence of accused
What is fair changes over time – McKinney v R – although there may be several assumptions (i.e. recordings)
Thus, may also include pre-trial issues
Unclear as to whether someone can waive their individual rights – McCosker – although doubtful if there is a right to be not
trialled unfairly.
Appearance of Fairness
 Judge’s behaviour is crucial - impartiality and appearance of impartiality are necessary for the maintenance of public
confidence in the legal system - Nth Aust Legal Aid v Bradley
 Reasonable person test: would a fair minded, lay observer reasonably apprehend that the judge might not bring in an
impractical or unprejudiced mind to the resolution of the question the judge is required to decide? – Johnson v Johnson
 i.e. an interrupting trial judge: RPS v R; Copsey
 i.e. a sleeping judge, who is noticeably asleep may be an issue – Cesan v The Queen; Mas Rivadavia v The Queen
 Other examples of unfairness:
 Improper prosecution behaviour/addresses (clear limitation on what they do, less on defence) – Livermore; R v KP
 Pros/Defence laywers separated when the trial was on, got back together afterwards – appearance of unfairness from
the perspective of the ordinary person – R v Szabo
 lack of an interpreter – Ebatarinja v Deland
 Insufficiency in level of competence of interpreter (not sufficient to show inconsistencies) – De La Espriella-Velasco
 Failure to exclude evidence – Nicholls v Coates
 Refusal of separate trials – De Jesus; Phillips
 Lack of disclosure at committal – Barton
 Jury Irregularities – Tichowitsch; Edwards

“use of the criminal process inconsistently with some aspects of its true purpose, whether relating to the hearing and
determination, its finality” – Jago
- May result in unfair trial – wide definition
- Responsibilities of trial judge to avoid unfairness in trial, and discharged by controlling proceedings:
- Onus on abuse of process lies upon the party who alleges it – Williams v Spautz
PNJ v The Queen: Abuse of process with exhibit at least one of three characteristics
 the invoking of the courts processes for an illegitimate purpose
 the use of the court’s procedures would be unjustifiably oppressive to a party
 the use of the court’s procedures would bring the administration of justice into disrepute
Examples of AoP
 lack of offence peculiarity – Patel v R
 multiple or repetitive charges – Walton v Gardner; PNJ v The Queen
 unlawful or improper extradition – Lavelle v The Queen
 purpose of proceedings – Williams v Spautz
 inappropriate use of an ex officio indictment – Barton
 resubmitting previously excluded evidence – Rogers
 double jeopardy/controversion of earlier acquittal – Carroll
 nolle prosequi – Saunders
Delay
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Prejudicial
Publicity
delay causes increased costs/wasted preparations/heightened stress/community disillusionment with CJS
common law doesn’t recognise a right to a speedy trial, nor to a trial within a reasonable time – Jago
Issue of delay was an aspect of fair trial: effect of delay is crucial, not delay itself. Not normally enough by itself
five main factors that should be considered in determining whether delay would amount to an AoP: Jago, per Deane J
 length of delay
 reasons for delay (i.e. are prosecution doing what they should be?)
 accused responsibility (is accused complying with obligations?)
 prejudice to accused
 public interest
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 – Jago, per Mason J
Examples of delay:
 R v Edwards: lost evidence so stay was declined, conviction stood
 Khoury: oppressive to continue due to multiple adjournments by prosecution
 Johannsen: witnesses missing due to delay of 20 years, stay ordered
 Gill: cumulative affect can indicate unfairness ( delay, problems with trial, various attempts, losses of witness) stay granted
 Wrigley: 5 years delay: fading memories of witnesses not enough to grant a stay
- Have to balance integrity of administration of justice with public interest in the exercise of free expression
- Where risks to the integrity of the trial are substantial, the media may need to be restrained
- The balance is in favour of open justice, but need to mitigate with jury
Glennon v R
 courts have sufficient procedures available to guard against pre-trial publicity (suppression orders/contempt of
court/directions to jury etc.)
 prior information about a case, and even holding a tentative opinion does not necessarily lead to jury partiality
 mere conjecture about information that a juror MAY have is not sufficient to decide that a fair trial was impossible
 Assumption that a juror will follow the judge’s directions
 “It is the community’s right to expect that a person charged with a criminal offence be brought to trial”
R v Purdie
 Media advised of another trial of the accused – a new jury was empanelled
Ferguson
 reluctant to make conjecture or assumptions on jury knowledge
 although judge only trial eventually granted
 Held a number of factors are helpful to the judge to eliminate unfairness:
 Directions: a judge can virtually eliminate unfairness by utilising the flexible power to control procedure, and giving
forthright directions to the jury – Jago
 Oath: Dupas
 S47 Jury Act – Darby (can question individual jury members about influence of pre-trial publicity)
 adjournment/delay – Glennan; Patel
 forum change: s557QCC; Long; Walters
 although unusual, the trial should take place where the offence was
 normally changed at the request of the accused
 consider fair trial/costs/delay/administrative question
 Judge only trial – ss614-615 QCC (unlikely a stay would be issued in the instance of a judge only trial)
Responding to
unfairness or
AoP
During/Commencing the trial: the judge must manage the trial:
 adjournments to problems can be remedied
 making sure notice and disclosure procedures are followed
 refuse to accept a plea if appropriate
 rulings on evidence
 changing venue of trial
 providing jury with appropriate directions
 discharge jury members if necessary
After the trial:
 Appeal
Stay of proceedings:
 s590AA QCC pre trial application
 ordered during the trial
 as a result of the appeal
Can postpone or stay trial on such an indictment for a necessary time to ensure the accused receives a fair trial – Barton; Williams v
Spautz
Permanent Stay
 exceptional, and can be appealed by AG – s669A
 when there are no other available means of assuring a fair trial – Williams v Spautz
 tantamount to refusal of jurisdiction to hear and determine the matter- Jago per Brennan J
 must be a fundamental defect going 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 per Mason CJ
 e.g. O’Rourke: witnesses not available/docs lost/change of parish where offence took place – stay granted due to significant
prejudice to the accused
Malicious
Prosecution
Oppressive
Prosecution

A tort where the prosecutor can be sued for malicious prosecution. Elements:
o Relevant proceedings
o Terminated in favour of the plaintiff
o Def in initiating / maintaining acted with malice
o Def acted w/out reas or probably cause…
A v NSW
In situations where prosecution is bought for a means of obtaining and advantage other than to get a conviction – Williams v Spautz
- predominant purpose of the prosecution is the key criterion against which the question of improper will be measured
Examples where it would be oppressive prosecution for pros to continue:
 charge is too vague – Rogers
 charge is doomed to fail – Walton v Gardiner
 specific charge may not be appropriate to allegations made
 duplicate charges
 charges may be made in relation to actions already dealt with by criminal process
 DPP not agreeing to an agreement (i.e. not charging in return for evidence) – Mickelberg
 Excessive payments to witnesses – Williams v Spautz
In order to stay the proceedings, the courts must be satisfied that as a result, the ensuing trial would be unfair
WEEK EIGHT: Legal Representation (Unfair Trial)
S616 QCC: allows people to have representation, but no right.
Dietrich: rejected argument that absence of representation automatically makes trial unfair. A trial is unfair if the non-representation resulting in accused
losing a real chance of acquittal.
Dietrich (no ‘right’,
but trial can’t
continue)
“Indigent”
“Serious”
“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”:
Options for the trial judge: Adjourn, postpone or stay until legal representation
Options for appellant court: ‘if an application is refused, and by reason of the lack of representation the resulting trial is not fair, any
conviction must be quashed for reason of miscarriage of justice: no fair trial’
 Lack of means to pay for legal representation Dietrich
o Not necessarily living in poverty, but inability to afford appropriate legal representation to conduct the particular
defence- Marchi, et al (1991)
o Fuller (1997): the question is related to the costs that will be incurred with respect to representation in specific cases
 Assets and sale of assets relevant
o Rich (1997): superannuation, mortgage, wife’s assets, car?
 Not a snapshot test: did the accused take initiative in the lead up to the stay application?- Smith
 Up to the accused to take initative to acquire relevant funding – Smith
 Expensive defences
o The financial position of the accused is relevant to the defence: Ex parte Roddan
o
o
Narrowly defined: ‘serious indictable matters’ (Dietrich – Mason CJ and McHugh)
o No proceedings before magistrate w/o jury (Deane J)
o Khalifeh:
o An offence carrying max penality of $4000 and 1 year imprisonment on summary conviction was NOT serious
o Essenberg
o Fine of $300 not serious
Need threat to liberty – Dietrich; Lankford
o Not committals: Helfenbaum (not in jeopardy until indicted and put on trial)
o No enquiries (Cannellis)
o No criminal appeals (Sinanovic: significant economic implications)
“No Fault”
Failure to contact lawyer
o Need not be deliberate or wilful – Small (1994)
o Poor education, distressed accused. He thought he had obtained representation, stay was refused. Strict liability.
o Central focus is ‘reasonableness’ – “was the accused reasonable?”
o Craig: need to look at whole behaviour of accused. Not just one small thing
o Rich: Accused did not save or make any effort to secure loans
o R v Batiste: Accused constantly changes legal aid solicitors and gave no explanation why
o R v East: trial judge must hear from accused before deciding whether ‘at fault’
o Counsel withdrew the day before trial. Assuming the accused was using delaying tactics; adjournment was
refused, conviction, appeal against conviction allowed: perhaps a good reason for sacking lawyer.
Sacking lawyers
 ‘Ordinarily, an accused who rejects the legal assistance …will not escape the consequences of such a decision.’ Wilson (1997)
QCA 244 ; Promizio; R v Crowthers & 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
Legal
representation:
Quality
“Exceptional
circumstances”
Skilled litigant?
 Dietrich suggests ‘competency’ is the standard
 If legal representation was manifestly inadequate, or the terms and conditions of legal aid too restrictive, the accused may
appropriately be regarded as unrepresented - Milat/Souter
 D already a skilled litigant – Deitrich
 Fuller: Accused was able to run case by himself
 If the grant of legal aid is ‘manifestly inadequate’, or the terms and conditions of legal aid too restrictive, accused may be
regarded as unrepresented (Milat). Central inquiry not whether grant is reasonable, but whether accused will have a fair trial.
 Adequate grants of legal aid; relationship to legal aid Milat (1995): No right to ‘even’ representation with prosecution
 Souter (1997): grant of legal aid was not adequate to run trial fairly (85 witnesses, 63 counts of fraud). Stay
proceedings until able to go ahead.
 Mental illness - Wilson
Lawyer
incompetence
Test: conduct of counsel resulted in ‘material irregularity’ that affected the outcome of the trial (ie, unfair trial) - TKWJ
 TKWJ v The Queen: not necessary to show that the outcome would have been changed (accused entitled to fair trial even
when prosecution case strong)
 Difficult burden to discharge
 Accused disappointment not enough to ground successful appeal
 ‘an accused may be denied a fair trial because his or her counsel is flagrantly incompetent – Birks – or because he or she does
Legal Aid
Unrepresented
Litigants
not have any legal representation - Dietrich
o E.g. Counsel fails to address jury or cross examine material witnesses for no valid reason
 Laywers decide how to run the case – may make bad decisions but not necessarily flagrantly incompetent – Birks
 There has to be a fundamental mistake.
 R v Paddon
o Defence counsel called evidence of prior convictions and called a witness who damages credibility
o “flagrant incompetence” test – something in the conduct of defence which could never be though by competent
counsel
 Nudd
o Lawyer failed to take proper instructions, advise about offence elements, gave incorrect information about evidence,
introduced prejudicial information in closing address
o Despite this: no real doubt about guilt, and process had ultimately not departed from essential elements of fair trial
o Incompetance is not enough – accused needs to show they lost a chance of acquittal
• Means test.
• Person’s income, assets and potential contributions (Supreme Court matters: highest priority)
• Merits test:
• Reasonable prospect of success
• Cost versus benefit/detriment
• Appropriate to spend public money on litigation?
Issues – since Dietrich pressure in crim matters; lack of experience in the Legal Aid solicitors
 Judge should give information and advice as necessary…MacPherson; King
 Duty of trial judge to provide accused with such information and advice concerning his rights as was necessary to put him
in a position where he could make “an effective choice whether he should exercise those rights” - Dietrich
 Limits –
 Dietrich; cannot play the role of defence counsel; investigate facts, or advise/direct defence
 Zurek; trial judge cross-examining unrepresented accused (taking on prosecution role)
 Esposito: Thin ice when judge starts questioning – depends on identity on witnesses and whether questioning tends
towards elucidating evidence that has been overlooked or left in an uncertain state, or whether it is directed towards
establishing a point that is favourable/adverse to a party
 Equal Treatment Benchbook: esp pp 178-186
 The duties of the court depend on the circumstances of the case: must advise about penalties to be imposed,
entitlement to challenge jury members, cross-examine witnesses and object to questions asked by prosecution.
McKenzie Friend: a friend of the party (Court’s discretion to allow)
 Does not actually represent the accused person (R v Bow), and cannot address the court unless invited (Damjanovic v Maley)
 Judge’s discretion to allow – considered exceptional for someone who hasn’t been admitted to represent D
 Is it in the interest of justice for the person to be allowed: - Damjanovic v Maley
 Complexity/language/level of court are to be considered.
Amicus Curiae: a friend of the court – Levy v Victoria
 A third party comes forward to ‘inform the court’ (not added as a party)
 Matter of discretion for court to allow -> where important issues of legal principle are at stake
Ethical
Considerations
Involvement with clients is private and required to be kept private
Frustrating a police investigation is not preventing the course or administration of justice – adversarial nature of legal system – Legal
Services Commr v Winning
Defending a person believed to be guilty
o Innocent until proven guilty
o Beliefs of lawyer are irrelevant
o Barristers cannot refuse briefs – solicitors generally have a choice
o But where the legal representative knows that their client is guilty, it may be difficult to continue representing that
person without misleading the court
Where LR believes D or another D witness has lied
o Must refuse to take further part in the case unless court is informed of lie
o Can only inform court when accused hsa given permission
o If no permission given, they should withdraw without informing court of the lie
o Possible for lawyer to take instructions where they avoid knowing certain facts, through careful questioning
Where theLR is aware of an error of law that favours defence
o Must not mislead the court
o They have a duty not to make misleading statements to the court, and to furnish court with any authorities that they
have not been informed of; even if those go against their case
o Must not make false steps against opponent
o Should take all necessary steps to correct any misleading statement
o BUT no false statement made by failing to correct an error made by opponent
What about errors of fact?
o Will not be misleading the court if they stand back passively
o But it is inappropriate to make positive statements of fact that the LR knows to be untrue
Where LR and D disagree on conduct of case
o Should run the case in accordance with their clients instructions
o However will not have breached their duty by choosing to run the case in a certain way that may be contrary to their
clients wishes
o Lawyers will make choices about how to run a case and there is no one way to approach an individual case – TKWJ
When D is appealing on basis of incompetent representation:
o Client is said to have implicitly waived their right to lawyer client privilege to the extent that they are making the
complaint – R v Paddon
Legal Representation (Ethics)
“ A practitioner’s duty to the court arises out of the practitioner’s special relationship with the court; it overrides the duties owed by a practitioner to
clients or others…The lawyer’s duty [t]o the court includes candour , honesty and fairness…The effect of administration of the justice system and public
confidence in it substantially depends on the honesty and reliability of practitioner’ submissions to the court. The duty of candour and fairness is
quintessential to the lawyer’s role as officer of the court ; the court and public expect and rely upon it , no matter how new or inexperienced the
practitioner.” Council of the Queensland Law Society Inc. v Wright
Virtues of a practical and wise lawyer: Benevolence/courage/respect/knowledge/compassion/candour/truthfulness/frankness/honesty
Legal Ethics....consists of:
o Rules
o Personal Standards and values
o Four C’s:
 Court
 Duty to uphold the law
 Never to participate/encourage participation in anything that breaches the law
 Do not abuse the court process – White Industries v Flower & Hart
 Do not mislead the court (or knowingly allow a client to do so)
 Do not school witnesses
 Must have specific instructions & evidentiary foundation to allege fraud or dishonesty
 Must make client aware of their obligation in legal proceedings to search for, disclose and preserve relevant documents (or cease acting
if they refuse)
 Duty to advice Court of relevant authorities, even if they are adverse to the case
 Client
 Duty to inform client of all relevant knowledge within the practitioner’s knowledge
 Duty to avoid conflicts of interest
 Duty to maintain privilege and confidentiality
o


Confidentiality: where a reasonable member of the public would determine the material as confidential: ABC v Lenah Game
Meats
 Duty of loyalty
Colleagues – respect, courtesy, advance client’s interests
Community – expects that we will advance the interest of justice
ASCR is vitally important, but it represents a minimum standard
WEEK NINE: CONSIDERATIONS UNDERLYING SENTENCING
The Sentencing
Hearing (may or
may not take
place straight
away – depends
on plea)





s 648 QCC Allocutus administered
Prosecution and Defence both make submissions about app penalty (DPP v Bulfin). No personal views (ie, ‘she knew what
she was doing’: R v Ku et al.)
 Where guilty plea: prosecution should summarise facts
s132C Evidence Act – the judge has to be satisfied on the balance of probabilities that the allegation is true
 Court should not take into account any matters that did not ultimately proceed (R v Dales)
 Judge should avoid emotive language (‘spoilt brat’: Porter)
 Can give warnings, but no insults
 Can obtain a victim impact statement – s15 Victims of Crime Assistance Act
 Accepted facts: consistent with jury findings (Cheung: ‘involved v deeply involved’)
Pre-sentence report: s15 PSA
 If ordered, adjourn until prepared (independent third party)
 Medical evidence, matters relevant to sentencing (i.e. something that would be betters served by a
community service order rather than imprisonment, etc)
s10 PSA no requirement for reasons unless imprisonment / suspended prison
Judicial Sentence
‘Instinctive synthesis’: s9 principles may have great/little weight depending on circumstances. Judicial discretion is paramount [Markarian].
Limits to discretion
Maximum Penalty set in statute:
 cannot go over
Minimum penalty set in statute:
 cannot go lower, but not many.
Mandatory penalty set in statute:
 e.g. s305QCC murder: life
Aggravated versions:
 Carry higher penalties e.g. s320 v s327 QCC
 Normally stated in the statute therefore limits on judge as to the maximum.
Numerical Guideline for Judgments (Pt 2A PSA)
 guidelines judgements may be used in the CoA
 generally sued for a particular offences – considerations that are relevant in considering sentences
 A guideline approach can be produced for one case, but this does not have to be repeated in subsequent cases
 Not binding on CoA, but lower courts are hampered.
Totality (PSA s (k)-(m))
 (‘limiting principle – should not be crushing: Mill)
 achieving a just an appropriate sentence overall
 should reflect the appropriate sentence in the circumstances
 Schmidt: 3 step process. Penalty for each offence/consider whether aggregate sentence is appropriate/consider whether concurrent or not
 There is an assumption towards concurrency – R v Crofts; s155
 However, separate penalties should be applied to each offence (may require served cumulatively, but should be reduced accordingly): PSA s 156.
 Sentence should be consistent with offender’s criminal record and future prospects (R v Postiglione)
 Take into account time already served on remand (waiting for trial): 159A
Max/min penalty (s9(2)(b))
 Max is reserved for the worst sentences: (Veen No.2/ Fernando)
 The offence has to be grave, the offender will have a history and that the risk of them reoffending will be serious - Murdock
Relevance of case law?
 Sentencing principles previously applied are guiding only. Sentenced on individual basis (R v Pesnak)
Statistics?
 Only guiding (Wong; Morton)
 courts are worried about too much of a particular analysis. May be relevant, but not convincing
Parity




Co-offenders should be dealt with by the same judge
Not always appropriate or possible to sentence co-offenders consistently (R v Crossley: diff ages and criminal records)
Also guilty plea makes it difficult for co-sentencing – McQuire v Porter
Though consistency is preferred (Wong) – ultimately discretionary
Guilty plea (s13)
 Must be taken into account when sentencing
AIMS OF SENTENCING
Veen No 2 stated that the guidelines stipulated under s9(1) are only guide posts – often point in different directions
Punishment should not be used to dispose of social problems (becoming an increasing issue – Clarke; Dooley v Polzin)
Vengeance is not a reason why someone may be punished
S9(1) PSA – can use one or more
 Just punishment 9(2)(a)
 ‘Just deserts’: proportionality is necessary.
 negotiate between culpability and gravity of offence
 legislative form of Veen No 1 and Veen No 2
 Rehabilitation 9(2)(b)
 Youth more amenable to rehabilitation (Taylor)
 Special provisions for minor drug offences (ss15B-s15F PSA)
 First offender? It is possible for the gravity of the circumstances to overlay this purpose (Fernando)
 usual alternatives to prison include community based service orders etc.
 There is a definite shift from rehabilitation to risk protection in courts at the moment
 Deterrence (specific and general) 9(2)(c)
 Amituani (1995 ): trying to stop cab rank fights (general)
 Pangallo (1991): deterring lawyers from giving out bribes (general)
 R v Savanovic: wanted to send a message that perjury isn’t cool
 Specific is an issue – it assumes rational choices, but the majority of offenders aren’t really thinking about what they are doing.
 Denunciation 9(2)(d)
 possibly always – implicit in sentencing (Ryan)
 important to publically denounce to the community the unlawful conduct of the offender
 Imprisonment is denunciation - R v Ku; R v Lacey
 Protection 9(2)(e)
 Risk –assessment a pre-requisite
 becoming increasingly important – Veen No 2
FACTORS (and also ‘anything else relevant’: 9(2)(r))
These factors will militate or aggravate (Colless)
Judge may consider extra-curial punishment (ie, job loss: Hannigan)
Judge should ensure that parties have addressed the things referenced in the judgment (R v Lui: otherwise no opportunity to rebut).
Character – s11, age
and intellectual
capacity s9(2)(f)
Damage, injury or
loss caused – s9(2)(e)
Co-operation with
authorities
Cultural background
Hardship
Preference for
community based
sentences (9(2)(a))
Veen No. 2: prior
convictions of sim nature.
Ryan: ‘moral’ character
(sex offender prevails
priest – prior convictions
are counted more than
character references)
Taylor: young
Gulyas: old (not normally
enough)
Verdins: intellectual
capacity reduces moral
culpability + means
rehabilitation not app.
Relationship to
community protection
Mitigation for actual
assistance: Wong, York
- Plead guilty
-Provide evidence
-Submit to necessary
procedures
Promised Assistance:
s13A
-something post
sentence, the accused is
agreeing that they will
provide
Fernado; Neal; R v Ku;
Hales: equitable
principles important
Self: York (might get
killed in jail)
Does not apply to:
-Violence offences 9(3)-(4)
- arson is not violent
(Breeze)
- violent has a broad
meaning – (Barling)
- Community
protection paramount
Relationship to s9(5)-(6)
- R v Ku et al
Consider VIS – s15
VCAA although optional
for prosecution to put
to court, optional for
judge to consider and D
not allowed to cross
examine - Singh
Special Rules – Webber
-should be discernable
and worthwhile,
something extra than
what you would normally
get for pleading guilty
-if a breach in sentence,
accused is re-sentenced
May hear from
community justice
groups 9(2)(p) but
judge is not obliged to
take it into account and
not a trumping factor –
Roberts
Others: Tilly (balance
rights of child against
community protection;
children being away fro
their parents do not
count)
Burns (likely to have a
mental breakdown if
Murri Courts – although separated - considered
not any more due to
exceptional)
Campbell’s spending
cuts
Sexual offences against
children - 9(5)-(6).
McGrath
WEEK TEN: Punishment and Penalty
Does not explicitly set out a hierarchy of sentencing options, but sets out in following order:


o Orders to release certain offenders – Part 3, Div 1
o Release on entering into a recognisance – Pt 3, Div 3
o Fine – pt 4
o Intermediate orders (probation, CSO) – Pt 5
o Intensive CO – Pt 6
o Order of suspended imprisonment – Pt 8
o Imprisonment – Pt 9
o Indefinite sentences – pt 10
Also allows for restitution (Pt3, Div 4) and non contact orders (pt 3A)
Strict hierarchy not appropriate, depending on circumstances of offence and accused
Lower Level
Conviction Recorded?
s 12: A penalty of itself, so may be appealed. More likely for a crime.
 Matter of discretion for judge
 nature of offence/character and age of offender/impact on recording conviction on social and economic wellbeing/chance of employment: R v Ndizeye
 certain sentencing options require recording of the conviction (i.e. imprisonment s152; suspended imprisonment s143;
home detention orders s111)
 More likely when crime is trivial (Walden v Hensler) however triviality is determined by conduct of
accused/circumstances of the crime, rather than the maximum penalties for the offences
 Possible to appeal against just recording of the conviction – R v Ndizeye
 consider violence/abuse of trust/victim/risk of re-offending/ public ramifications of no record/previous convictions – R v
Briese

Bond/Recognisance (Pt
3)
Conviction will be recorded for sexual offences against children (record unless ‘exceptional’).
o R v SAT: mediation took place through church, age difference was closer therefore no conviction
o R v Mirza: McMurdo: need to consider pre-meditation, actual contact, impact, guilty plea, employment, rehab
prospects, impact of conviction
s19 Bond: ‘admonish and discharge’ (with recognisance/sureties/drug assessment & education/compensation/restitution)
 max 3 years
 no conviction recorded if a bond is given – s16
 if they re-offend: comes back to court and re-sentenced on original matter
 When re-sentencing, must have regard to:
 whether leniency is appropriate
 offenders age, character, health and mental condition: s18
 whether extra burdens are necessary (ss15B-15E)
 nature of offence – trivial or not? (Walden v Hensler)
 circumstances of offence which may make it less serious
Recognisance (ie, need to do something: ss22-28) minor property offences)
 may adjourn the matter for no longer than 6 months to give TP time to something
 e.g. that case at XIR where TP fell through the INS window and had to write an apology letter and pay INS XS.
 may also release offender on recognisance pursuant to Div 3: short period of imprisonment not longer than 1 year,
followed by recognisance for a particular amount/good behaviour
 cannot be applied if probation is more appropriate – s98
Fines (Pt 4)
Orders for restitution or compensation (ss34-43)
 Imposed with other penalties: NOT PART OF PUNISHMENT (Ferrari ;Civonicea)
 No consent needed (still a punishment)
 Can be imposed whether or not conviction ordered (s44), or instead of another sentence – s45
 Must take into maximum penalty available (s45), if not maximum available, 165 units (s46)
 current penalty unit is in s5
 judges have discretion about amount, mode and time to pay – ss50-51; lodged with SPER- s51
 i.e. instalment orders and fine option orders – R v Prentice
 Take into account the financial circumstances of the offender and burden on accused (s48: Woolard v Ellis)
 Appeal point for sentence (R v Prentice) because it is the job of the offender to put material before the court
relating to financial circumstances, but where this has not happened, courts have been eager to reassess the amount
on appeal (R v Cheshire)
 Convert to community service work (R v Meid), s 57 (although not the assumption of the court)
 5 hours of community service per penalty unit – s69
Conviction recorded?
(s12)
CSO (Pt 5 – ss100-105)
Probation (Pt 5) (ss9099)
Intermediate Level
(An offence to contravene an intermediate order, wide discretion: ss123, 124)
(See above)
CSO and Probation together (s109; R v Mathers), CSO and suspended sentence together (R v Vincent), not with ICO (Grieg)
 Requires offender to perform unpaid community service for a specified number of hours – s102
 Regardless of recorded conviction (s100), for an offence punishable by imprisonment & offender able to perform CSO
(101), consent (106)
 Mandatory requirements (s103),
 not to commit offences/report regularly/undertake hours
 40-240 hrs within 1 year – 240 hours max (s103(2))
 unpaid work – not lost pay for usual work (Nieto v Mill)
 If there is a breach, brought back to court and re-sentenced but with discretion (time to do work) because of focus on
rehabilitation of offenders
Requires offender to enter into a bond for a specific period of time - asked to report to an officer/take part in rehab as
required/not re-offend
 Consent required, and must be suitable (s96), regardless of whether conviction recorded (s90)
 suitability: imprisonment must be an option for probation: s91
 can make a single order for a group of offences – s97
 various conditions re. treatment and counselling – ss93-94
Two forms (s92): (i) release under supervision of officer (6mths-3yrs), (ii) imprisonment for one year, released under supervision
after
R v Hood (take a practical approach to considering whether sentences can be served concurrently)
1. Probation + actual period of imprisonment on other counts
2. Not when sentence served as ICO
3. cannot have suspended sentence on probation for same offence – s92(5)
4. May give suspended sentence and probation (for other offences)
Higher level penalty
Conviction must
be recorded
ICO (Pt 6)
[Keeping people in
the community]
Intensive Correction Order: sometimes referred to as home detention orders
 Must record conviction (s111)
 Alternative to serving term of imprisonment 1 yr or less (112)

Suspended
sentence (Pt 8)
where there are multiple offences and the court sentences them to two or more terms of imprisonment at the same time,
ICO only available if total period to serves is less than 1 year – s118
 May be imposed at the same time as the court ‘activates’ a suspended sentence (R v Skinner): s 118
 Cannot be used with probation, or CSO – R v Hood
 General requirements (114 – living in the same house/work/counselling etc – R v Tran)
 additional requirements (115)
 offender must agree (117)
 Technically a term of imprisonment (s113), which has caused debate:
o ‘creates a fiction’ – ICO considered as imprisonment in R v Hesketh
o Bagust: says it isn’t imprisonment (think s9(2)(a) – ‘imprisonment a last resort’)
 Re-sentenced if revoked (s122), offence to contravene (ss123, 124)
Must record conviction (143), suspend part or all of a 5yr (or less) sentence (s144), period of suspension can be longer than the actual
imprisonment period – R v Smith but still no more than 5 yrs (s144).
Must state an operationl period during which they must not commit another offence – s144
Can be ordered in conjunction with fine/probation/CSO in circumstances – R v Vincent
If decision made to ‘imprison’, court should always consider whether suspension is appropriate.
2 step approach: Dinsdale
 Is imprisonment appropriate (because this is equally as serious)
 Is it appropriate to suspend [rehabilitation, nature of offence, likelihood of reoffending, impact on family], offender likely to
be hurt? [York]
 The merits of a suspended sentence allow the accused to maintain their job, stay in the community, make reparations
and then do not reoffend – if these purposes are not being served then it is not appropriate to suspend the sentence.
Not an alternative to other custodial sentences (ie, Community service): R v Ku
Imprisonment
(Pt 9)
Breach? High level of discretion (145/146)
- Presumption: Prosecution on new offence, and then suspended sentence activated (Holcroft).
- although flexible: consider nature of new and old offence, crim history, circumstances of reoffence, genuine efforts to rehab:
Hurst; Stevens
- Can also increase operation time of sentence (R v Muller) or further suspend time – ss147-148
- May order some of it to be served, or all of it, or some of it under suspension – discretion/flexibility - Summerlin
- DEFENCE PRESENTS MITIGATING CIRCUMSTANCES to argue that the breach should not activate the suspended sentence – ous
on defence to prove
Must record conviction (152),
 A sentence of last resort, with some exceptions:
 violent offenders
 sexual offences involving a child under 16







Serious violent
offender (Pt
9A – ss161A161C)
 certain offences involving images of children
Presumption for concurrency (155)
o If already in custody and brought out for more offences, will run concurrently
o Remember ‘totality’ principle – consider what they are already serving.
Maximum:
 where no maximum sentence is set out in legislation, maximum is no more than 5yrs for indictments and 2yrs for
summary: s153
Starts on the day of sentence –s154 (does not run when on bail/awaiting appeal/escaped – s158A, s159)
Cumulate if appropriate (156)
o Ie, already serving 4mths for robbery, may add new assault offence on top if appropriate
Must cumulate (156A)
o Committing offences in prison (otherwise no disincentive not to hit people in jail)
o Offences in parole period (finish old sentence + add on new sentence)
Crofts: always impose separate periods of imprisonment for each matter.
A last resort [includes ICO and suspended sentences] PSA s9(2)(a)
Other matters – Chapter 5 Corrective Services Act
- Life is 15-30 years (other notes say 20) (181: Corrective Services Act)
- Parol
o If less than 3 yrs, court sets parol. If between 3-5 (parol date set by court).
o If 5-10 (there is an option): 50 %, or 80% for ‘serious violent offenders’ (court MAY give title, see Schedule 1, s 9 PSA)
 This should be taken into account in the ‘overall totality’ when sentencing over 10 yrs (EVERLEIGH)
o If over 10 years: 80% [mandatory declaration]
Mandatory declaration: if (i) sentenced to 10 yrs or more, (ii) Schedule 1 offence
Optional declaration: Offender convicted of an offence against Schedule and sentenced to 5-10 yrs, could ‘may’ declare (161A(a)(ii)
and 161B(3)).
Effect on parol e is a critical factor in sentencing – McDougall and Collas – must serve 80% if declared before eligible for parole
Violence is a significant factor (Everleigh) although possible to be non-violent and still declared (BAX)
Repeat
Serious Child
Sex Offences:
Schedule 1 offences: riot, threatening violence, robbery, rape and attempted murder.
 Introduced in 2012
 Offences included in Schedule 1A
 i.e. s208 unlawful sodomy; s213 owner permitted abuse of children on premises; s215 carnal knowledge of children u 16 etc
 s161D involves children u 16/circumstances where liable for life
Part 9B PSA
Indefinite
imprisonment
(Pt 10)
[beginning of
sentencing
process]
 s161E repeat offence: life (Mandatory)
 criticised – leaves no reason for sex offenders to bring their victims back alive.
Buckley
Onus on the prosecution (s169) to prove ‘serious danger to the community’ (s163(3) (risk of reoffending not enough)
Need permission from AG – s165
Court must be satisfied that offender is a danger to the community because:
 antecedents, character, age, health or mental condition
 severity of offence
 special circumstances
Court must be satisfied Mental Health Act does not apply [ie, programs in prison that rehabilitate] – s163(3)
Court must also have regard to: s163(4) factors
o Nature of offence
o age, character, antecedants etc
o protection of community
o mental, psychiatric or prison reports
o Sufficient if risk of re-offending (McGarry)
- Court must be satisfied by way of “acceptable and cogent evidence, high degree of probability” that the evidence is of
sufficient weight to justify the finding (s170)
Only in relation to a violent offence (163) [indictable that involves violence against a person + life imprisonment]
Court must give reasons – s168 – and term of sentence it would have otherwise imposed (s163(2)
162: finish head sentence, review 6 months, then regular review every 2 years.
Fardon
Dangerous
Prisoners (Sexual For serious child or violent sexual offences
AG makes application if ‘indefinite imprisonment’ does not work. [Fardon: now re-offended and re-sentenced for the third time]
Offenders) Act
- Single judge of Supreme Court: ‘serious danger to the community’
2003
o
‘unacceptable risk’ of serious sexual offence
o can only be satisfied by acceptable, cogent evidence and to a high degree of probability – s13(3)
o must consider psychiatric reports as well as prior offending history/rehab/risk – s13(4)
o Assessment happens at end, rather than beginning, of sentencing process
o paramount consideration = ensure adequate protection of the community – AG v Francis
- must be regularly reviewed – s27 or prisoner can apply for review – s28
- reasons must be provided – s17
Quality of detention should be rehabilitative, not punitive
Non-Contact
Orders (Pt 3 PSA)
Risk is difficult to consider
 imprecise science
 intellectual intuition
 do serious sexual offenders share characteristics?
 Low probability of re-offending – 15% or less
Part of a sentencing process, so if you breach, you breach the sentence. Breach: max 1 yr prison [R v Gaudry].
Maximum period of 2 years no contact.
Can be appealed
Usually rape/DV/sexual assault cases.
Appeals
(Appeal From Magistrate: Justices Act 1866 (Qld))  District)
s222 JA: Appeal to a single judge



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.
o broad people
o broad scope (order includes both conviction/acquittal + more)
“feels aggrieved” – McCarty v Xiong
o must be real or direct interest; including victim
o interpreted widely – even someone who isn’t a party to the case – but not a mere busybody
Time limits: ss224(1)(a) JA: Tait
o Applies to all appeals in DC and CoA; certain rules as to extension
Exceptions s222(2):



cannot appeal against conviction/order under s651 QCC – s222(2)(a)
o McKinlay v Cmr of Police
if the subject of the appeal is an order of justices summarily with an indictable offence, a complainant (i.e. police officer) may appeal under s222only against sentence or costs – s222(2)(b)
o McKinlay v Cmr of Police
if a defendant pleads guilty, may only appeal under s222 on the grounds that punishment was too excessive or inadequate – s222(2)(c)
o BUT: in Hall v Bobbermen, there was a plea of guity to a charge that clearly did not exist at law therefore appeal allowed
o Ajax v Bird: appellants plea was equivocal or upon analysis, amounted to a plea of not guilty
o R v Samson allows costs(included in s221 and meant to be included here)
AG appeals from Magistrate’s Court – s669A QCC



AG against sentence for indictable offence: dealt with summarily : CoA
AG against sentence and D against conviction and/or sentence for indictable offence – dealt with summarily: CoA
Judge can also refer points of law (also s227JA) to CoA and then return to Mag for trial (or refer after trial)
o Harrison v Wilkins
Evidence on appeal?

s223(1): appeal generally a rehearing on the original evidence




however the DC may give leave to appeal to adduce fresh/additional/substituted evidence (new evidence) if court is satisfied there are special
grounds for giving leave – s223(2)
original evidence: transcript
Clear benefit for original judge with hearing and seeing witnesses, but the higher court needs to weigh the evidence based on the transcript: Rowe v
Kemper
Fresh evidence: Pavlovic v Cmr of Police
o three prong test:
 evidence not available first instance with due diligence
 evidence is credible
 evidence could lead to a different verdict
Powers of Appeal Judge – s225 JA


may confirm/set aside/vary order/make any other order – s225(1)
judge may send the proceeding back – directions for rehearing or consideration - s225(2)
Appeal Costs s226 JA

judge may make such order as to costs – a just order – Murray v Radford
Magistrates Court direct to CoA: needs leave from the CoA (e.g. Q of law of some significance: von Schultz v Durrant) – s118 District Court Act
(Appeal From District/Supreme: ss668B/668D/669A  CoA)
Defence has right to appeal re. law alone – s668D(1)(a) – e.g. Fitzgerald
Defence can apply for leave for appeal re. law and fact (or fact alone) – s668D(1)(b) – R v Zischke
Q of fact: something that has to be decided by jury (or Mag in lower court)
Q of law: something to be decided by judge.
Ostrowski v Palmer
(i) 671: In time?


(1) 1 calender month of the date of conviction/sentence
(3) time may be extended by Court
o Tait: generally where there is good reason to account for delay + viability + interests of justice
o R v Riley: relevance of strength of appeal + prospects of defence
o R v Hatten: he was young, borderline IQ, unrepresented and indefinite sentence received – all reasons for extension.
(ii) 671B: Fresh Evidence may be admitted



Mickelberg:
o Is it fresh? (essentially means new – not available at original hearing)
o Would it have made a difference? – elements of substantive/probative/relevant
R v A: fresh; not available at trial with reasonable diligence
Gallagher v The Queen: flexible/credible/result in a different verdict
(iii) 668E(1) Grounds for appeal against conviction


allow appeal if the verdict of the jury should be set aside on the grounds that:
o it is unreasonable or cannot be supported having regard to the evidence
 M; MFA
o wrong decision on any question of law
 Nicholls; Fingleton; Barsdley
o miscarriage of justice
 Festa; Svabo
does not necessarily lead to successful appeal, must either apply proviso or fundamental error provision…
(iv) 668E(1A) The Proviso: notwithstanding the grounds of appeal – was there a substantial miscarriage of justice?

I.e. loss of a real chance of acquittal: Festa


Weiss:
o ‘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.’
Can be an aggregate of problems: jury, judge, overall: suggests substantial miscarriage of justice
(v) Fundamental Error






Can we bypass the proviso (i.e. hasn’t impacted conviction) but the error was so fundamental?
R v Navarolli:
o appellate court cannot be satisfied that no substantial miscarriage of justice has actually occurred unless it is satisfied beyond reasonable
doubt that the appellant is guilty of the offence
o the limitations of the appellate process may mean that it is impossible for the court to be so satisfied in the circumstances of the case:
simply by the nature of the process
o satisfaction of guilt beyond reasonable doubt is a necessary, but may not be a sufficient condition for the application of the proviso
o there may be some serious 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:
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
no rigid formula for determining fundamental error
Patel considered fundamental error in the context of extremely damaging evidence but went with proviso instead.
Once appeal is allowed: Powers of the appeal court:



quash the conviction and acquit: s668E(2) QCC
some convictions are correct, others substitute sentences: s668F QCC
May grant a new trial: s669 QCC
o normally this is what CoA will order – but no guarantee pros will run a new trial
o will consider: per Fowler
 is the evidence still cogent
 whether it is just to order a new trial
o
o
o
 time spent in custody/age of accused/interest of justice etc - Gassy
Corwell v R: not bound by rulings of earlier trials, however if evidence was excluded at first instance it will be excluded again (see DJ)
no absolute rules about a number of trials, but 3 is generally the limit – Jackson. More a suggestion of punishment/time/cost
R v Taufahema: crown appealed against CoA refusal to order a re-trial
 court did point out that ordinarily a retrial is ordered and then a matter for prosecution, talked about time/expense
 4-3 HC ordered a re-trial
Appeals from District / Supreme to CA – essential preliminary questions in outline.
 671 In time?
 668D Right or leave?
 671B Fresh evidence?
 668E(1) Grounds
 668E (1A)Question whether miscarriage substantial (loss of chance of acquittal) - proviso
 (Wilde Question whether fundamental error??)
 New trial?
Appeals cont. (Sentencing; AG matters; Royal Prerogative of Mercy; Executive Pardons; appeals to HC)
Appeals against sentence (Mag Decision)



Defendant:
o Plea of not guilty: s222(1) JA to DC
o Plea of guilty: s222(2)(c) JA to DC
o JRB v Bird
o If appealing conviction and sentence, send entire appeal to CoA
Complainant (police officer)
o where summary offence: s222(1) JA to DC
AG
o where indictable offence determined summarily: s669A(1)(b) QCC to CoA
Defendant appeal against sentence (DC/SC decision)





must obtain leave of the court: s668D QCC
grounds: that sentence was manifestly excessive: Skinner in accordance with House Principles
s669E(3): if the court is of an opinion that a higher/lower sentence is warranted in law and should have been passed: leave will be given
If CoA intends to increase sentence, must give D a chance to withdraw – Neal; Sheppard ; s9 PSA
o although nearly unheard of CoA to increase without AG application
Apply House Principles: House v R (apply to D appealing against sentence and to AG appeals against sentence)
o that some error has been made in exercising the discretion of the sentencing judge:
 wrong principle
 extraneous or irrelevant matters
 mistakes the facts
 does not take into account some material consideration...determination should be reviewed
 unreasonable or plainly unjust....may infer improper exercise of discretion and review
AG appeal against sentence (DC/SC decision)

s669A QCC
 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 seems proper*.
 history of interpretation of “unfettered” (Appendix A)
 Current position: HC in Lacey (2011) confirmed that QCA position in Lacey (2009) was correct:
 QCA:
 1975 change in QCC intended to remove fetter
 use of the word ‘appeal’ did not indicate correction of error
 vary sentence as seems ‘proper’ to the CoA
 no scope for gloss on term “unfettered” – statutory construction
 should be equality before the law
 pros approach to original hearing is relevant
 HCA:
 "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.”
 need to consider jurisdiction and cherry
 HCA agreed with QCA that AG appeal should be exercised sparingly
 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
 basically, confirms House Principles apply and the term unfettered applies as to whether it will succeed and a proper
sentence can be imposed
 R v Major; R v Kuzmanovski
Other matters under s669A:
 s669A(1A) can appeal an order staying proceedings or further proceedings on an indictment:
 Ferguson; R v Moti
 s669A(2): AG can refer any point of law to CoA that has arisen at the trial upon indictment of a person
 s669A(2A): AG can refer any point of law to CoA that has arisen at the summary trial of a charge of an indictable offence
 R v Folling
Royal Prerogative of Mercy


s18 QCC: power still exists at common law
Usually when all avenues of appeal are exhausted
o
o
o
o
can grant a free and unconditional pardon
grant a conditional pardon
remission/partial remission of sentence
order an inquiry
Executive Pardon





Constitution of Qld: s36(2)(a)
preserved in s672 QCC
a successful pardon discharges the offender from the consequences of the conviction: s677 QCC; R v Martens
Mallard (new evidence, refused leave to the HC, got pardon, sent back to CoA, re trial ordered); Kina; R v Katsidis; R v Stafford; R v Butler
o usually involves fresh evidence and sent back to the CoA
compensation: no clear process ad no clear criteria for who gets what and when; vast majority of those convicted never receives anything
Appeals to the High Court








Judiciary Act (Cth)
s35(2) need to obtain special leave
s35A basis for leave:
o question of law;
o which is of public importance or in respect of which the court is required to resolve differences of opinion within the one court or between
different courts and;
o whether the interest of the administration of justice require court to consider judgment of the court below
something special; point of law of general application: White; Morris
s36: wide powers of the HC in response to appeal
s37: can order a new trial
o same principles as Fowler (cogency/interest of justice)
examples of leave to HC:
o Dietrich: fair trial
o M: interpreting s668E correctly
o Carroll: DJ
o Tofilau: police ROI
Sentencing and the HC:
o pursuant to House Principles
 great weight on original sentence
 without disclosure of error, reluctant to intervene

 need to identify error
 focused on process of decision making
 not enough to be ‘excessive’
o Veen 1988 HCA proportionality
o Mill 1988 totality
o Dinsdale 2000 suspended sentences
o Ryan 2001 character
o Cameron 2002 guilty pleas
o Gas & SJK 2001 plea agreements
HC look at principles even if they don’t think the outcome is wrong – but principle was not approached right.
Victims in the Criminal Justice System





victims form part of the criminal act but not a party to the
adversarial trial
Why would participation be problematic?
o less control
o impartial umpire
o balance of power at trial
Why could it be less problematic in an inquisitorial system?
o more judge control
o more balance at trial
Why accommodate victims at all in the CJS?
o without bringing a crime to the attention of the
authorities, prosecution and crime control not possible
o problematic in a system that alienates victims
What are victims needs that need to be accommodated?
o respectful treatment
o information on rights and progress of case
o being heard at relevant stages of the trial
o being kept safe
o receiving compensation for harm suffered
o



Victims in Qld


Victims of Crime Assistance Act 2009
Fundamental Principles concerning treatment of victims:
o fair and dignified treatment – s8
o information on services, investigation, prosecution, role
as a witness – ss10-13
o minimising the contact between victim and accused –
s14
giving details of impact of crime on victim during
sentencing – s15
only principles ,not rights s7
although complaints can be made to Gov. entity/victim service
coordinator if not complied with – s19
s15: giving details of impact of crime:
o permitted (not mandatory) to give prosecutor details re.
harm of the offence for pros to inform the court
o pros. decides what details, if any, to be given to court –
s15(3)
o VIS:
 signed and dated
 written
 states particulars of harm caused to victim by an
offence
 may have attached:
 documents supporting particulars
(medical reports)
 photographs/drawings/other images
o sentencing judge can take VIS into account – discretion as
to how much is taken into acct/released to court etc.
Interplay



victims and political clout – shifting to be large
police and victims
o shift in how police are supposed to deal with the victim
o second limb in relation to charge: considers victims
attitude to charge
courts and victims (witnesses as injured parties)
o
o


suggestive questioning from barristers can be traumatic
ways to avoid the adversarial approach:
 screens can be set up, can give evidence by video
corrections and victims
o issues of the victim knowing what the sentence is
o victims now have a right to this information
o more a situation where the victims ask a question, and
then they have a right to the information
o large proportion of people who commit crimes have
generally had crimes committed against them – strong
correlation
victims of the criminal justice system
o See graphs in Appendix 2
Victims of Crime Assistance Act














administrative scheme – application not through court system
o Victim Assistance Unit
limited to $75 000
who can apply – s51
time limits – fairly open, not a clear limit – s54
victims criminal history can be called upon to establish a pattern
– s69
recovering $ from offenders: part 16
limited to acts of violence and crimes
also to personal injury – fear is now included
one payment for a series of crimes
allows early intervention so people don’t have to wait for cases to
be involved
principles of bare and dignified treatment – privacy to the victim
and providing support
excludes conspirators – s21
exceptional circumstances can be taken into account – Atrell
secondary victims (i.e. parents/witnesses) can also get up to $50
000
o loss of earning only in exceptional circumstances
Restorative Justice





crime violation on one against another
focus on response and repair harm
victim. offender/community
accountability – repair the harm
based on communication
Traditional Justice





crime violation of law
focus on blame and punish
victim ignored, offender passive
accountability – take the punishment
adversarial
Differences between the two



RJ thinks heavily about the relationships between those involved
in the crim
o must influence both the person who does the thing and
the person affected by it
TJ, as per Jago, says the purpose of criminal law is to identify the
crim and punish
RJ: purpose is to repair harm
Does RJ work?



offenders:
o slows some down, others stop reoffending, others are
unaffected
o may be better for the most prolific offenders
o on average, 27% reduction in repeat convictions upon
British trials
offences:
o works better for violence than property offences
o wasted on minor offences
victims:
o unequivocal evidence on benefits for those willing to
meet their offenders




o
significantly higher victim satisfaction than court justice
significantly higher levels of apology
significantly greater reduction in desire for revenge
significantly greater reduction in PTSS
RJ: History theory definitions



different practices, different stages:
o diversion from court
o decisions in parallel with court decisions
o meetings between victim/offender at any stage
definitions;
o those with a stake in crime come together to discuss it
with the aim of repairing the harm
o any action that repairs the harm caused by crime
theory:
o greater emphasis on role and experience of victim
o lay and legal actors involved in decisions
Justice Mediation




In Qld, justice mediation is available for adults – usually while
appearing in Mag Court
face to face meeting between a victim and the offender –
voluntary and confidential
offender admits and juvenile consents, or finding of guilt and
referral in lieu of sentence
the aim is to work out ways the offender can make amends and
divert from the CJS
o returning stolen property
o agreeing to do something i.e. paying money
o making an apology
o counselling
Indigenous Justice

Qld Murri Court
o cultural/political transformation of the law

Elders, respected persons, community justice groups and
the offenders’ family involved in sentencing process
o Mag makes final decision and imposes sentence – R v
Roberts
o s9(2)(p) PSA
o can be appealed – Baker v QPS
Key differences
o contribution of others in sentencing
o leel of inromation available to the court before
sentencing; thorough assessment made about offender
o attempts to engage offender in discussions about an
appropriate sentence and developing strategies to
address their offending behaviour
o a higher degree of informality in court processes
o the level and nature of support is greater
Drug Courts









Drug Rehabilitation (Court Diversion) Act
eligible person – s6
o over 17
o drug dependent
o can prove a relationship between drug dependency and
their offences
o drug related offence – property crimes to get money to
buy/prostitution
available for relevant offence, not disqualifying offence – ss7-8
plead guilty
o also needs to be eligible for the IDRO
o not if they are already serving an offence, or if theirs was
violent
o s8 simple offences, indictable that can be heard
summarily
intensive drug rehabilitation order: IDRO – ss19-23
must agree – s26
teams
supervised during IDRO
Challenges:
o
o
o
o
reduced protections for offenders
role of legal rep and others are blurred
blur between treatment and punishment
defendants attitudes, values and behaviours
Special Circumstances Court

two main groups:


o impaired decision making capability
o homeless, or risk of being homeless
generally deals with drug/theft/property damage/other public
order offences
objective: provide bail and sentencing options which place
offenders with support services that help them to deal with the
cause of their behaviour