CRIMINAL LAW AND PROCEDURE B
CONTENTS
PROVING OFFENCES .................................................... Error! Bookmark not defined.
POLICING .............................................................................................................. 5
POLICE ACCOUNTABILITY ..................................................................................... 12
CHARGES ............................................................................................................ 15
BAIL .................................................................................................................... 17
COMMENCING PROCEEDINGS .............................................................................. 21
EXTRADITION ...................................................................................................... 25
INDICTMENT ....................................................................................................... 26
PLEA/CHARGE BARGAINING ................................................................................. 30
DOUBLE JEOPARDY .............................................................................................. 34
TRIAL PROCESS .................................................................................................... 37
FAIR TRIAL AND ABUSE OF PROCESS ..................................................................... 45
ETHICS ................................................................................................................ 50
LEGAL REPRESENTATION...................................................................................... 51
CONSIDERATIONS UNDERLYING SENTECING ......................................................... 57
PUNISHMENT AND PENALTY ................................................................................ 64
APPEALS - CONVICTIONS...................................................................................... 72
APPEALS - SENTENCING ....................................................................................... 77
VICTIMS .............................................................................................................. 83
RESTORATIVE JUSTICE.......................................................................................... 89
FLOW CHART ....................................................................................................... 93
Alanie Joseph
1
PROVING OFFENCES
INTERPRETATON OF THE CRIMINAL CODE
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Queensland Criminal Code – a codification of criminal law in Queensland
o Codification = an attempt to ‘gather together all the relevant statute and
case law on a given topic and restate it in such a way that it becomes the
complete statement of the law on that topic’
Brennan v The King – Griffith set out to restate the common law, not change it
If there is a gap in the Code or a word had acquired a technical meaning, it
is appropriate to look at the common law
Barlow v The Queen – one should look at the plain and natural meaning of the
language and when a problem arises, the Code should be read in a way that
favours consistency with other jurisdictions and with the concept of justice in
mind
There is a clear gap in the Code in relation to the burden of proof rules
GENERAL MATTERS
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The same proof rules apply in all levels of Court
Rules = what must be proven; who needs to prove what; to what
standard/level must it be proven
Academics have divided proving an offence into two categories – evidential
burden (evidentiary onus) vs legal burden (persuasive onus)
o Evidentiary = must produce some evidence
o Persuasive = need to persuade the fact-finder (usually the jury) that your
argument is correct
 Many of the rules are made on the presumption that there will be
both a judge and a jury (jury trial) – the judge rules on law, the
jury rules on fact (hard distinction to define)
Presumption of innocence (innocent until proven guilty)
o Why? Because the imbalance of power between the State and the
defendant; fundamental liberties of the individual are at stake
o Blackstone – better than ten guilty people escape than that one innocent
person suffer
Issues of jurisdiction – the prosecution must prove that the offence occurred
in the relevant jurisdiction on the balance of probabilities (R v WAF)
o “Beyond a reasonable doubt” is too hard to prove – would lead to the
trial not going ahead, which leads to injustice
Not guilty (an acquittal) does not mean that an offence was not committed;
rather, that there is reasonable doubt as to whether or not it was committed
Facts are not always what is true – rather, what is the most plausible, the least
fallible or the most convincing
There is a tension between protecting the community and the rights of the
individual
OVERALL – Should always consider burden and standard of proof first
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THE PROSECUTION – GENERAL RULES
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The prosecution carries both the persuasive onus and evidential onus
Evidentiary onus – the prosecution must present evidence to support each
element of the offence
o The judge determines whether the evidentiary onus has been
established (i.e. whether the evidence is fit to go to the jury)
o Defences – only need to present evidence for the defences that arise
(except for ‘reverse onus defences’; only need to negate one element of
the defence)
Persuasive onus: The prosecution has the burden of proving all the
elements of the offence and disproving any defences raised on the evidence by
the defendant beyond a reasonable doubt (Woolmington; Mullen)
o Must persuade the fact-finder (either a jury or a judge if there is no jury)
o Exception – reverse onus defences
Must prove the case beyond a reasonable doubt (persuasive onus)
o Case law suggests that the term ‘beyond a reasonable doubt’ should not
be explained to the jury – it is a phrase that is understood by society
o Attempts to define the phrase has been unsuccessful – created many
unhelpful or incorrect definitions
o Queensland Bench Book directs judges to give the following definition:
“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 reasonable
doubt.”
 The Bench Book is not all encompassing (it is not the law) –
departures are allowed and it does not have to be quoted each
case (Clarke; Hayes)
THE ACCUSED – GENERAL RULES
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Generally, the accused is not required to prove or disprove anything
o Can theoretically not do anything – right to silence (rare)
 The jury is supposed to not have regard to silence (but they do)
o Why? – The right to silence; privilege against self-incrimination
Evidentiary onus for defences rests on the accused – the defence must raise
the defence and provide evidence that there is a “sufficient foundation” for
the defence (CTM v The Queen)
o The judge will decide whether or not a jury is allowed to consider a
defence (will determine this in relation to the version of events most
favourable to the accused – Stingel)
o A defence will be put to the jury even if the evidence of the defence is
weak or tenuous, as long as there is sufficient evidence of a reasonable
possibility of the defence
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Generally, the persuasive onus of defences rests on the prosecution
(the prosecution must disprove the defence)  Exception: reverse onus
defences (persuasive onus shifts to the accused)
The accused will generally not want to raise contradictory defence (e.g. self
defence, provocation, etc – as this will look bad) – the judge can direct the jury to
consider other defences (Stingel)
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REVERSE ONUS DEFENCES
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Reverse onus defence = the defence has both the evidentiary and persuasive
onus
If the onus of a defence is reversed, it will say in the legislation (if nothing is
mentioned, the persuasive onus still remains with the prosecution)
o E.g. if the legislation states ‘for the defence to prove’
When the accused has to prove something, the civil standard of proof is applied
 on the balance of probabilities (Carr-Briant)
o This is a much lower threshold (should not be defined)
o Generally, whenever the accused has to prove something, the standard is
the balance of probabilities, unless there is some other statutory
requirement (always check the legislation)
Reverse onus defences arise when the defendant has to disprove a presumption
of law (e.g. insanity – must disprove the presumption that everyone is of a sound
mind; red-light camera are assumed to be functional)
When should a defence have the onus reversed?
o Some suggest that serious offences should have the onus reversed in
order to protect the community (e.g. terrorism, human trafficking)
o Other suggest that reverse onus defences may be appropriate for lower
offences where the penalty is much lower in order to protect liberty
In some cases, it is hard for the prosecution to prove a certain element – the
element could have its onus reversed
Insanity:
o Insanity is a reverse onus defence – usually raised by the prosecution in
order to protect the community from a potentially dangerous person
o Will usually be dealt with in the Mental Health Court
PRESUMPTIONS
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There are some presumptions – the prosecution must rebut the presumptions of
law; the accused must rebut presumptions of fact
Presumptions of law:
o E.g. Age of criminal responsibility
 s29(1) QCC - irrebuttable presumption that children under 10 are
not criminally responsible; s29(2) QCC – rebuttable presumption
that children between 10 and 14 are not criminally responsibly.
Presumptions of fact:
o E.g. If drugs are found in your house, you are assumed to be in possession
(s129(1)9c) Drugs Misuse Act; presumption that red-light cameras work
(s114 Transport Operations Act)
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POLICING
WHY REGULATE POLICE POWERS
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In response to the Fitzgerald Inquiry, which discovered corruption in the
Queensland Police force, the Criminal Justice Commission recommended that
police powers be regulated in legislation
Relevant legislation = Police Powers and Responsibilities Act 2000 (Qld)
(PPRA)
Why are police powers regulated?
o To avoid unnecessary intrusion into an individual’s liberty and
autonomy  an effective justice system must be balanced against the
protection of individuals (tension between individual rights and
collective good)
o A clear legislative framework ensures that police officers understand
their powers and responsibilities.
Why do police abide by the rules?
o The manner in which police investigations are carried out have an
impact on the outcome of the trial (e.g. crucial evidence unlawfully
obtained may be rendered inadmissible)
o Suggestion if rules are too strictly obeyed, public security may not be
adequately protected (Wright v Police Service)
KEY CONCEPTS
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Reasonable – the term is used frequently: ‘reasonable suspicion’. ‘reasonable
grounds to suspect’, ‘reasonably necessary’, ‘reasonable time’, etc
o Imports an objective standard – would an ordinary and reasonable
person believe the force is necessary/have a suspicion/etc
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Reasonable Suspicion – different to belief (not as high a standard)
o The facts must give rise to a suspicion (George v Rockett)
o ‘A suspicion that something exists is more than mere idle wondering
whether it exists or not; it is a positive feeling of actual apprehension
or mistrust amounting to a slight opinion’ but less than satisfying a
prima facie case (Queensland Bacon v Rees)
o In some circumstances (e.g. tip-offs), the police officer may have to take
further actions before having a reasonable suspicion allowing action
o A suspicion that amounts to nothing may still have been reasonable
(Dobbs v Ward)
o The suspicion must actually have been held at the time the power was
exercised – it is not enough to find that the suspicion could have been
reasonably held (Rowe v Kemper)
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Reasonably necessary – some powers are not reasonably necessary in the
circumstances if there is a less oppressive means of doing things
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Reasonably necessary means are those that are appropriate and adapted
to the purpose (e.g. in some cases it will be sufficient just to ask someone
to do something, while in other cases it may be necessary to use
handcuffs) (Thomas v Mowbray)
SEARCH POWERS
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Police have powers to search person, vehicles and places pre-arrest
Searching without a warrant
o If a police officer reasonably suspects that certain prescribed
circumstances exist, the officer may stop and detain or search a
person and anything in that person’s possession (ss29-30 PPRA)
o Power to conduct a frisk search (running hand over outside of clothing)
or examining clothing removed with consent
o Power to search vehicles and seize certain things (ss31-32 PPRA)
o Power to search a public place (can dig up land, open locked doors, etc)
and seize things found at the place or on a person at the place if the
officer reasonably suspects that thing will provide evidence of an offence
(s33 PPRA)
Searching with a warrant
o Generally, a warrant is required to search a private residence (ss150-163
PPRA)
o Warrant – a warrant is a document that gives police the authority to
carry out a particular power such as a search or arrest
 Can be issued by a justice of the peace, a magistrate or a higher
court judge – must identify what they’re looking for (s150 PPRA)
 A warrant will be issued if there are reasonable grounds for
suspecting the evidence or property is (a) at the place or (b)
is likely to be taken from the place within the next 72 hours;
and that there is reasonable suspicion that the thing will be
evidence of an offence (s151 PPRA)
 A warrant ensures that evidence will be admissible as the
“reasonable suspicion” standard has already been approved
 If a justice of the peace refuses the warrant, the matter can be
appealed to a magistrate or a judge (s152 PPRA)
 Required to give the occupier of the premises a copy of the
warrant (s158 PPRA)
o In cases where the officer needs to act quickly and does not have the
time to get a warrant, it is possible to obtain post-search approval
(ss159-163 PPRA)
 Approval must be obtained as soon as practicable after the
search
 Only possible for indictable offences and the officer reasonably
suspects that evidence will be destroyed or concealed if an
immediate search isn’t undertaken
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There is a risk that if post-search approval is not obtained,
evidence will be inadmissible
ARREST
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There is no definition of arrest in the PPRA
Arrest involves a deprivation of freedom and can occur via two ways:
o Physical restraint of the arrested person (may or may not involve
words)
o The use of words combined with the complete submission of the
arrested person; may just involve touching and no words (Alderson v
Booth)
o Touching is not required in an arrest (Dellit v Small)
In many cases it is obvious when a person is under arrest (they are explicitly
told, the use of handcuffs) – in some cases, it is unclear whether the person is
under arrest (e.g. a police officer is talking to a person on the street, the officer
says they are done with questions, person walks away – is this escape?)
Two elements for arrest to be lawful – reasonably suspicion and reasonably
necessary
Arrest without a warrant
o A police officer can arrest a person without a warrant if they
reasonably suspect that person has committed, or is committing, an
offence (s365(1) PPRA) – the arrest must be reasonably necessary for
one of the reasons listed in the statute)
o A police officer can arrest a person without a warrant that the officer
reasonable suspects has committed, or is committing, an indictable
offence for the purposes of questioning the person about the offence or
investigating the offence (s365(2) PPRA)
o If the person is found not guilty, this does not automatically mean that
there was not a reasonable suspicion and the arrest was unlawful
(Coleman v Kinbacher)
Arrest with a warrant
o A justice will issue a warrant for the arrest of a person if there are
reasonable grounds for suspecting that person has committed an
offence
o A police officer can arrest a person named in a warrant (ss369-373)
o When there is a warrant, arrest is defined to include “apprehend, take
into custody, detain, and remove to another place for examination or
treatment” (s369 PPRA)
Upon arrest, the police officer must tell the person why they are being arrested
and upon release, the police officer must give the person their name, rank and
station in writing (for complaint/accountability purposes) (s391 PPRA)
An arrested person must be taken to a court as soon as reasonably
practicable (s393 PPRA) – if not, it may amount to unlawful detention
o The phrase “as soon as reasonably practicable” depends on various
factors such as the time, place and conditions under which the arrest was
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made, where a justice can be found, available transport and time taken
for paperwork to be completed (Williams v The Queen)
Allowance for reasonable delays (e.g. waiting for a lawyer, waiting for
fingerprints to be taken)
ALTERNATIVES TO ARREST
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Alternatives to arrest are encouraged for non-indictable offences
Arrest may also not be necessary in some cases as it would lead to anger and
escalation of the situation (the trifecta – arrest, attack on police, charge for
attack – Ferrick; Mulrunji)
Notice to appear – a notice that states the time and place of a court appearance
(ss382-383 PPRA); over 50% of matters proceed in this manner (Coleman v
Power)
Complaints and summons – the police officer will make a written complains to
a justice who then may issues a summon to be served upon that person,
requiring them to appear before the court (ss53-54 of the Justices Act)
Discontinuing arrest – an arrest and related charges can be discontinued if
there is no longer a reasonable suspicion of an offence of if the police officer
thinks arrest is not the right method (ss375-380 PPRA); once an arrest is
discontinued, the officer needs new evidence in order to re-arrest (s381 PPRA)
Infringement notices and on-the-spot fines – fines can either be issued onthe-spot (e.g. parking fines) or posted in the mail (e.g. speed camera tickets)
Move-on powers – a police officer can ask a person in a public place to move on
if the officer reasonably suspects that the person has been “(a) causing anxiety to
a person entering at or leaving the place; (b) interfering with trade or business at
the place; (c) disrupting the peace and orderly conduct” (ss44-49 PPRA); power
should only be exercised if it is reasonably necessary for public safety, public
order or the protection of rights and freedoms of other persons (s48 PPRA)
Citizen’s arrest – a citizen can arrest someone that they believe on reasonable
grounds to have committed an offence
POLICE QUESTIONING
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A police interview may seem oppressive (two police officers, one suspect) –
rights have been created in order to protect the individual
PPRA does not affect common law rights – suspects have the right to remain
silent in their dealings with police (s397 PPRA) (Petty & Maiden v The Queen)
o Silence should not be interpreted as anything other than a person
exercising their right to silence – there are number of reasons for
silence (not just guilt) – shock, upset, confusion, scared, suspicion of the
police, protecting others, unable to explain their defence, their lawyer
has told them to be quiet (Swaffield)
Modification to the right to silence: name and address requirement (s41
PPRA)
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If the person fails to provide their name and address, they may be
charged with an offence (s791 PPRA)
Time limits – there are time limits on questioning as long times can be
oppressive and may lead to unreliable answers
o A suspect can only be questioned for a reasonable time – reasonable
time will depend on the circumstances (e.g. it takes longer to investigate
a serious offence) – will usually only be a couple of hours (s403 PPRA)
o Time cannot exceed 8 hours (s403 PPRA) unless there is an
application to a justice for an extension (ss405-406 PPRA)
o Within the 8 hour period, there must be at least 4 hours of “time-out”
(this includes meals, rest, travelling, waiting for support person) (s403)
Support person:
o The suspect must be informed that they have a right to speak to a friend
or relative as well as a lawyer before questioning (ss418-419 PPRA)
o The suspect is allowed to have a friend, relative or lawyer present
during the interview and a reasonable time must be allowed to wait for
that person to arrive (s418 PPRA)
o If the suspect does speak to a lawyer, the police must ensure they are not
overheard as far as it is reasonably practicable in the circumstances
(Barchard)
Recording questions:
o Police must, if practicable, record their questioning (s436 PPRA)
o Problems arise when confessions or parts of a conversation are not
recorded (evidence may not be admissible – Nicholls)
o If a confession or questioning is unrecorded, the police officer may admit
this evidence and the Court will consider why the officer did not comply
with the recording requirement and may admit material if it is in the
interest of justice (s439 PPRA) (discretionary power)
o If the police officer is relying on evidence that is unrecorded, the jury
must be given the McKinney warning (stating that it is dangerous to rely
solely on the prosecution’s statement if it is uncorroborated)
o If something cannot be recorded, it should be written down and read
back to the accused (s437 PPRA; Smith)
o A copy of the recording should be provided to the accused (s438 PPRA)
The Caution
o Some people may not be aware of their right to silence; thus, the police
officer must advise them of their right to silence through providing a
caution (s431 PPRA)
o The caution: “Before I ask you any question I must tell you that you have a
right to remain silent. This means you do not have to say anything, answer
any question or make any statement unless you wish to do so. However, if
you do say something or make any statement, it ma later be used as
evidence. Do you understand?” (s37 PPRA) (Marshall)
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If a police officer reasonably suspects that the person cannot communicate in
English, they must organise and interpreter and questioning must be delayed
until the interpreter arrives (s433 PPRA; R v McMillan)
These protections apply to those under arrest (Kingston – could not claim a
protection because he spoke to the police officer when not under arrest)
Special cases:
o Aboriginal and Torres Strait Islanders: the Anunga Guidelines must be
followed when questioning ATSI people; must have an interpreter and a
support person at the interview, must take care when administering the
caution and must avoid closed questions; police must notify Legal Aid
o Persons with impaired capacity: a support person must be present
during the interview (s422 PPRA)
o Intoxicated persons: questioning must be delayed until the police
officer is satisfied that liquor or drugs is not affecting their ability to
understand their rights and the caution (s423 PPRA; R v LR); delay must
be within the time limit
POST-ARREST SEARCHES
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Searching a person in custody:
o When a person is in lawful custody, a police officer may search and
re-search that person (ss442-443 PPRA)
o Different types of searches = frisk search, pat down, strip search
(removal of clothing and requiring the person to get into certain
positions to see if anything is concealed inside the body)
 When performing a strip search, the dignity of the person must
be protected (men search men and women search women;
minimum amount of people present; only take one half of
clothing off at once)
o Police officer can seize anything they find during the search that the
reasonably suspect might provide evidence of an offence, endanger a
person’s safety, be used for safety of if the officer thinks they thing
should be kept safe (s443 PPRA)
IDENTIFYING PARTICULARS
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Identifying particulars can be taken by a police officer from a person who
is arrested for an “identifying particulars offence” (where maximum penalty
is at least one years imprisonment, offences under the Regulatory Offences Act
1985 (Qld) or Summary Offences Act 2005 (Qld))
Identifying particulars = fingerprints, palm prints, handwriting, voiceprints,
footprints, a photograph of an identifying feature (e.g. scar, birthmark), a
measurement of any part of the person’s body (except for genitals, anal area or a
women’s breasts)
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A person can be held for a reasonable amount of time and reasonable force may
be used in order to obtain identifying particulars (s517 PPRA)
If a person is found not guilty, the identifying particulars should be
destroyed within a reasonable time (exception: if the person has previously
been found guilty of an offence) (s474 PPRA)
If a person refuses to supply identifying particulars, the police officer may get a
court order requiring the person to supply them (s471 PPRA)
REASONABLE FORCE
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Police officers may use reasonably necessary force to exercise, or attempt
to exercise, a power (s615 PPRA) (e.g. breaking open a lock, using handcuffs)
The force used must not be likely to cause grievous bodily harm or death
(except for when the officer reasonably suspects that the person is likely to
cause grievous bodily harm or death)
Before force is used, the police officer must ask the person to stop doing the act
(e.g. “stop or I will shoot”) (s616 PPRA)
A person subject to excessive violence of a police-officer might be able to sue
o The police officer may be able to successfully argue that he was mistaken
about the level of force required (Whitelaw v O’Sullivan)
Should ask – what could the police officer have done that used less force?
FAILURE TO OBEY A POLICE OFFICER
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It is an offence to contravene or fail to obey a direction or order made by a
police officer under the Act (s791 PPRA)
If a person does not follow an oral direction of a police officer, the officer is
required to warn them that they may be charged with an offence and give them
“reasonable further opportunity to comply” with the direction prior to charging
them (s633 PPRA)
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POLICE ACCOUNTABILITY
FAILURE OF POLICE OFFICER TO FOLLOW PPRA PROCEDURES
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If a police officer fails to abide by the procedures set out in the PPRA or behave
in an unfair manner, a complaint may be made to the Crime and Misconduct
Commission (CMC)
A breach of the PPRA may lead to evidence being inadmissible
Why? – it is important that the court is satisfied that the confession/evidence is
not fabricated and is voluntary, reliable, fairly obtained and any public
policy discretion
o Evidence provided involuntary has the risk of being false due to a threat
or promise of some sort
There are three categories under which evidence may be excluded
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Voluntariness – Person in authority
o A confession may be involuntary if a person in authority holds out a
threat or a promise to the accused person
o Who is a person in authority? There must be ‘… a perception by the
suspect that the coercive power of the State is being used’; McDermott
v The King – this includes actions by ‘officers of police and the like, the
prosecutor and other preferring the charge’. (Tofilau)
o s416 PPRA considers whether the confession was induced by a threat or
promise
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Voluntariness - Basal voluntariness
o Basal voluntariness = the will was overborne so that the person did
not exercise a free choice to speak or remain silent (Tofilau)
o Extreme cases: e.g. Burnett; The Queen v Williams
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Discretion to exclude
o Three areas to exercise the discretion: fairness and reliability, public
policy and probative value
o Fairness and Reliability:
 Need to consider how the evidence was collected and, when
considering all the circumstances, if it would be unfair to use the
evidence against the accused
 Concerns both the reliability of the evidence and procedural
fairness
 Were dirty tricks used to obtain evidence? (Swaffield & Pavic)
 Need to consider whether a confession would have been made if
the interview was properly conducted (Duke)
 Would the level of unfairness shock the community? (Em;
Tofilau)
 The more serious the case, the more likely the evidence will
be admitted and vice versa (in the interest of justice)
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Public Policy:
 Need to consider the public interest in maintaining an
individual’s right to be lawfully and fairly treat
 When the way the evidence is obtained is wrong
 Relevant considerations include the seriousness of the offence
and whether, but for the police’s conduct, the accused would
have committed a crime (Ridgeway)
 “Unlawfully obtained evidence should be excluded where the
public interest in the protection of the individual from unlawful or
unfair treatment outweighs the public need to bring to justice
those who commit offences”. (R v Martin)
 Competing factors – wanting to admit evidence and stopping
police misconduct
 By not allowing evidence that was illegally or improperly
obtained to be admissible, this sends a message to police that
they must obey the law
CRIME AND MISCONDUCT COMMISSION (CMC)
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Crime and Misconduct Commission (CMC) (previously the Criminal Justice
Commission) is established under the Crime and Misconduct Act 2001 (Qld)
(CMCA)
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Two major areas of concern of the CMC:
o Dealing with organised crime and investigating and preventing
misconduct
o Dealing with the misconduct of public officials (including police
officers – ss20, 21 CMCA)
How does the CMC deal with crime?
o Assist the Queensland Police Services’ (QPS) investigations; conduct
their own investigations; gather intelligence; recovering the proceeds of
crime; working cooperatively with other law enforcement agencies
o Coercive hearings are commonly used for crime investigations –
hearings closed to the public; no rules of evidence; witnesses must
answer questions (s190 CMCA – no right to silence) ; answers given must
not be used in subsequent proceedings against a person (s197 CMCA);
false evidence is perjury as evidence is given on oath or affirmation
(s123 CMCA)
The CMC will investigate a matter if it involves a serious or systemic matter;
when the public interest is involved; when the relevant agency is not able to
conduct its own investigation
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COMPLAINTS ABOUT THE POLICE
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Complaints can be made either to the CMC (ss36, 41 CMCA) or the QPS
Official misconduct:
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Conduct that could justify a dismissal or, if proved, be a criminal
offence (the most serious type of misconduct)
o Official misconduct is primarily investigated by the CMC (s45(1) CMCA)
o If the QPS received a complaint that they reasonably suspect could
involve official misconduct, the Commissioner of Police must inform the
CMC (s38 CMCA)
Police Misconduct
o Police Misconduct = Conduct (other than official misconduct) that is
“disgraceful, improper or unbecoming of an office, or shows
unfitness to be or continue as an officer, or does not meet the
standard of conduct the community reasonably expects of a police
officer” (Sch 2, CMCA)
o The Commissioner of Police (QPS) will usually investigate police
misconduct (the CMC will monitor how the Commissioner deals with
police misconduct – s.45(2) CMCA)
Minor Misconduct
o Customer service complaints – e.g. rudeness, inefficiency
o Disciplinary matters – e.g. failure of a police officer to identify himself
o Complaints of minor misconduct are to be made to the officer in charge
of the station where the officer the subject of the complaint works by
either completing a form, telephoning, writing or visiting the police
station
o The officer in charge must resolve the complaint; if this does not occur, it
may be referred to the Commissioner of Police
o
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There are four ways of responding to complaints:
o Investigation (may lead to criminal or disciplinary charges)
o Mediation (conducted in private, little help with reforms)
o Informal resolution (e.g. apology, explanation – speedy and simply but
will not fix systemic issues)
o Managerial resolutions (e.g. apology – inherent dangers that the
manager will try to minimise the seriousness of the allegations)
Disciplinary process:
o Police convene disciplinary hearing before the decision-maker
o The decision make considers evidence and whether charges are
substantiated (can substantiate, not substantiate or exonerate)
o If substantiated, a sanction can be imposed (can range from small fines
to dismissal)
o The CMC can seek to review the decision-maker’s decision in QCAT
False Complaints
o False complaints to the QPS or CMC may be prosecuted (s216 CMCA)
o Hard to prosecute as it is hard to prove that the plaintiff knew their
complaint was false
Complaints about the CMC are referred to the Parliamentary Crime and
Misconduct Committee (PCMC) (s9 CMCA)
14
CHARGES
GENERAL
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In order to charge a person, the police officer needs more than a reasonable
suspicion
A decision to charge someone will usually be made during the investigation
A person will know they have been charged if:
o They receive a Notice to Appear (ss383-390 PPRA); or
o They receive a summons (ss53-53 Justices Act); or
o They receive a copy of the bench charge sheet (s42 JA)
BENCH CHARGE SHEET
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Prior to an offence being mentioned before a magistrate (all offences begin
in the Magistrate Court), the police officer must complete a “bench charge
sheet” for each offence
Bench charge sheet includes the name of the accused and complainant, the
offence charged, the particulars of the offence (e.g. alleged time and place,
information about any victims, information about any property involved,
aggravating circumstances)
Further charges may be added or charges may be amended at the hearing if the
accused does not object
QP9 = a form filled out by the police officer when charging a person; lists the
exact charge and a brief description of the facts
The bench charge sheet and the QP9 is used by the magistrate to determine
whether the matter should be sent to a higher court for trial
PROCEEDING WITH A CHARGE
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If the offence is a summary offence and the accused pleads guilty – the
magistrate may hear the plea immediately or adjourn for a plea at a later stage
If the offence is a summary offence and the accused pleads not guilty – the
matter will be adjourned for a hearing in the Magistrate Court at a later stage
If the offence is indictable – the magistrate will ask the parties whether they
want to proceed in the Magistrates Court or in a higher court
THE DISCRETION TO CHARGE
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The decision to prosecute a charge is discretionary
There is tension between ensuring the community’s interests are protected and
ensuring the innocent are not convicted.
The police should consult the Director’s Guidelines (only guidelines, not rules)
Guideline 1 – The prosecutor must be fair to the accused
15
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Guideline 2 – The prosecutor must be fair to the community
o Some matters are in the interest of the community to prosecute while
others are not
Guideline 3 – Expedition (timeliness)
*Guideline 4 – There is a two-tier test:
o The prosecutor must be satisfied that there is sufficient evidence
 GL 4(i) – a prima facie case is necessary, but not enough – the
prosecution should not proceed if there is no reasonable
prospect of conviction before a reasonable jury or magistrate
 Matters to consider include:
 (a) The availability, competence and compellability of
witnesses and their likely impression of the Court;
 (b) Any conflicting statements by a material witness;
 (c) The admissibility of evidence, including any alleged
confession;
 (d) Any lines of defence which are plainly open; and
 (e) Any other factors relevant to the merits of the
prosecution’s case
o The prosecutor must be satisfied that it is in the public interest to
prosecute
 GL 4(ii) – factors to consider include, but are not limited to:
 (a) The level of seriousness or triviality of the alleged
offence, or whether or not it is of a “technical” nature only
 (b) The existence of any mitigating or aggravating
circumstances;
 (c) The youth, age, physical or mental health or special
infirmity of the alleged offender or a necessary witness; ...
 (e) The staleness of the alleged offence; …
 (f) The degree of culpability of the alleged offence in
connection with the offence; …
 (h) The availability and efficacy of alternatives to
prosecution; …
 (l) The attitude of the victim of the alleged offence to a
prosecution;
 (m) The likely length and expense of a trial; …
 (t) The effect on public order and morale
o GL 4(iii) – The decision to prosecute must be made impartially –
without influence of race, religion, politics, personal feelings, perceived
political advantage or the possible effect on the prosecutor’s career
Charges may be thrown out if there has been a breach of the guidelines:
o If the charge lacks particularity – how can one defend themselves when
they don’t know what they are being charged with or the specific details
(KRM; Rogers)
o If the charge is doomed to fail (Walton v Gardiner)
o Double jeopardy (R v Carroll)
16
BAIL
GENERAL
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Bail = the granting of “conditional liberty” to a person who has been
charged with criminal offences on the basis that the person undertakes to
attend at court at some future date to answer the charges against them
If a person is not granted bail, they will be held “on remand”
Relevant legislation = Bail Act 1980 (Qld) (BA)
Bail serves to protect the community as well as the rights of the individual
(innocent until proven guilty – should not be imprisoned)
In over 90% of cases, the person will obtain bail from either a police officer of
the watch-house keeper (in the other cases, bail may be sought from a
magistrate or a higher court judge)
There is a prima facie right to bail prior to conviction
Advantages of bail: easy access to a lawyer; able to prepare oneself
psychologically for the trial while still in a familiar community; ability to
maintain work and family commitments
The difference between bail and a notice to appear is that with bail, conditions
can be imposed
POLICE BAIL
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The police or watch house must consider bail if the person has been arrested,
charged with an offence and investigations have been completed but it is not
possible to take the person before a court within 24 hours (s7 BA)
Many cases are discontinued with a notice to appear rather than bail
If the police is reluctant to grant bail, they can leave the decision to the court
If the prosecution wants to refuse bail, the onus is on them to prove that the
accused is an “unacceptable risk” (s16(1)(a) BA)
o A person is an unacceptable risk if they (i) would fail to appear before
court; or (ii) would, while released (a) commit an offence; (b)
endanger safety and welfare; (c) interfere with witnesses/obstruct
justice
o When considering if the accused is an unacceptable risk, the police must
consider the nature and seriousness of the offence; character of the
accused; history of bail (important); strength of prosecution evidence
o As this is a civil matter, the standard is the balance of probabilities
In some cases, the person must show cause (provide reasons) as to why they
should be granted bail (s16(3) BA) – this applies when the accused has been:
o Charged with breaching the Bail Act (currently or previously);
o Charged with murder/indefinite sentence (Lacey ); or
o Charged with an indictable offence involve a firearm, offensive weapon
or explosive substance, etc (Williamson)
Bail can be granted with a wide-ranging discretion as to conditions (s11 BA)
17
COURT BAIL
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All court have a general power to grant bail and to enlarge, vary or revoke
any bail that has been granted (s8 BA)
o Exception: In cases of murder, only the Supreme Court can grant bail
(s13 BA)
The accused can make an application to a court for bail or to vary bail at
any time in the proceedings
o If bail has already been refused, an application can only be made if the
applicant demonstrates that new facts or circumstances have arisen
since bail was previous refused (does not apply to variations) (s19 BA;
Bakir; Lacey)
The prosecutor can make an application to a court to revoke or vary bail at
any time in the proceedings
Once a trial begins, the trial judge will decide questions of bail and their decision
is final and cannot be appealed (s10(2)-(3) BA)
Who hears bail at what stage?
o At the conclusion of the committal proceedings – Magistrates Court
(s108 JA)
o Following the committal and pending an indictment to the District or
Supreme Court – either the Magistrates Court or the court that they have
been committed (s8 BA)
o Once an indictment is present to the District or Supreme Court – the
court that the indictment is in (s8 BA)
Factors that support a grant of bail: (need to weigh them against the
community interest of ensuring the person comes before court and protecting
witnesses)
o Lack of opposition by the prosecution
o Specific personal responsibilities of the accused (e.g. employment or
family commitments)
o Any risks to physical or mental health if the accused were to remain in
custody
o Less serious offence
o Defence argument
If the accused is convicted but intends on appealing the conviction – there is no
prima facie right to bail as the presumption of innocence has been displace
o Bail can be granted in exceptional circumstances (e.g. real problems in
the way that the trial was run; if there is a strong chance that there will
be success on appeal)
o Chamberlain case – bail was refused in these circumstances as it would
“whittle away the finality of the jury’s finding and … treat the verdict
merely as a step in the process of [the] appeal”, per Brennan J
18
FORMS OF BAIL
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Cash bail
o Cash bail can be granted in relation to non-indictable offences (s14A BA)
 Some offences are excluded (e.g. drink-driving)
o Not available in an application for bail to a higher court
Bail on an undertaking, with or without conditions
o Usual form of bail (from police, magistrate or higher court judge)
o The accused enters into an undertaking – a contract to appear at
court at a later date (ss 11(1) BA)
 Failing to appear at court is an offence (s33(1) BA)
 Defence: It is a defence to show that there was a
reasonable cause for not attending (burden of proof is on
the defence to the balance of probabilities) (s33(2) BA)
o The undertaking may be with or without conditions (ss 11, 20 BA)
 There are a broad range of conditions (e.g. providing a specified
amount as a deposit, providing security for a specified amount,
providing a surety)
A breach of conditions is an offence (s29 BA) – consequences:
any money paid as a condition may be forfeited; an arrest
warrant may be issued, etc
 Exceptions: if the person is mentally impaired and does
not understand the nature and effect of entering into a
bail undertaking
Sureties
o A surety is someone who acts as a guarantor for the accused’s
appearance by providing a bail deposit
o There are restrictions on who can be a surety: a person can not be a
surety if that person or their family would suffer as a result of the
undertaking being forfeited (s21(8) BA)
o If the surety is concerned about the accused following their conditions,
they can apply to be discharged from their obligations (s23 BA)
o If the accused absconds and the surety has done nothing, they may be
made to pay the surety amount (s32A BA)
o Can apply to have a payment order revoked or varied (s32B BA)
 Relevant considerations include: financial hardships that have
arisen after the surety was provided; steps the surety took to
ensure the accused would attend court; circumstances that
should have alerted the surety that the accused was going to
abscond; circumstances which caused the surety to enter into the
undertaking; the nature of the relationship between the surety
and the accused and the amount of control the surety has over
the accused’s behavior; assistance by the surety in attempts to
re-apprehend the accused; extent of financial impact on the
surety and their family (Baytieh v Queensland; Mokbel v DPP)
19
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Other bail conditions:
o Special conditions can be imposed (s11(2) BA)
 Conditions should not be more onerous than what is
necessary in light of the offence, the accused’s circumstances
and the public interest (s11(2A) BA)
o E.g. – report to the police station; reside at a particular address; have no
contact with prosecution witnesses; stay away from particular locations
surrendering a passport and not applying for one; obtaining treatment
for drug or alcohol problems; observing a curfew (DPP (Qld) v Bakir)
o The accused can make an application to vary or revoke bail
conditions (s10 BA)
New forms of bail:
o The Magistrate Court can grant bail on a condition that the accused
participates in a “program prescribed under a regulation” (s11 BA)
o Problem with this is that performance-based bail imposes some form of
punishment; thus, violating the innocent until proven guilty idea
20
COMMENCING PROCEEDINGS
CLASSIFICATION OF OFFENCES
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Offence = anything that a person is charged with
s3 of the Queensland Criminal Code (QCC) categorises offences into two main
categories and subcategories:
o Criminal Offences
 Simple Offences (or “summary” or “non-indictable” offences)
 Indictable Offences
 Crimes
 Misdemeanours
o Regulatory Offences
Offences are categorised according to their seriousness. Relevant factors
include: impact on victims; monetary value of an loss or damage; extent of
culpability of the offender (intentional, negligent or reckless); likelihood or
potential for harm
The category of the offence will influence subsequent decisions (e.g. level of
resources allocated towards the investigation and prosecution, penalties, etc)
SIMPLE OFFENCES
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Simple offences = any offence that is not an indictable offence, regulatory
offence or an offence under the Summary Offences Act 2005 (Qld)
o Legislation might state “on summary conviction”
Procedure is regulated by the Justices Act (JA)
Rules:
o Timing – generally, prosecution must begin within a year of the
matter (s52 JA)
o Which court? – generally, heard in the Magistrates Court by a single
magistrate
 Can be heard in a higher court if a simple offence is charged
alongside an indictable offence (e.g. murder and drunk in a public
place) (s651 QCC)
 s651 – a higher court must not hear a simple offences unless:
 (a) the court considers it appropriate to do so; and
 (b) the accused person is represented by a legal
practitioner; and
 (c) the Crown and the accused consent to the court so
doing; and
 (d) the accused person states his or her intention of
entering a plea of guilty to the charge; and
 (e) the complaint or bench charge sheet for the
offence is before the court
21
o
o
Ex parte – a matter can be heard ex parte (in the absence of the
accused) if the prosecution satisfies the court that the accused has been
served with a copy of a summons or notice to appear at court (ss142143 JA)
 The accused can write to the court and state that they want to
plead guilty and have the matter heard ex parte
 Magistrate cannot impose a prison sentence or cancel or suspend
a licence or permit (s142(2) JA)
 Can’t hear a matter ex parte if the hearing is occurring before the
time at which the accused was required to appear before the
Court (Diplock v Bennet)
Costs – the magistrate has the power to order that an unsuccessful
party have “just and reasonable” costs awarded against them
(ss157-158 JA)
 Will consider: whether the proceedings brought in good faith;
whether the investigations were conducted appropriately
 Courts should ignore the argument that awarding costs against
the prosecution/police will deter from prosecuting charges in
future cases (Latoudis v Casey)
 Usually, an accused who is successful will be awarded costs (e.g.
costs for legal representation, travel costs, any medical costs they
were required to obtain)
 Will depend whether the dismissal was awarded on
technical grounds or if charged with multiple offense and
convicted of at least one (unlikely to get costs) or because
the prosecution had a weak case (likely to get costs)
INDICTABLE OFFENCES
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Indictable offences = more serious offences
Classified as either “crimes” or “misdemeanours”
o The statutory provision creating the offence will specify whether the
offence is a crime or misdemeanour
o Crimes are seen as more serious than misdemeanours – little relevance
anymore; relevant for police powers (e.g. police can arrest without a
warrant for crimes but not for misdemeanours – s5 QCC)
Procedure regulated under the Queensland Criminal Code (QCC)
Prosecuted by way of indictment (s3(3) QCC)
o Indictment = a particular kind of document which contains the
charge/s
o Can have the matter heard in either the District or Supreme Court with
or without a jury (jurisdiction of Magistrates Court has widened and
will sometimes hear indictable offences)
Ex parte trials are generally not allowed (as these offences are more serious
and the accused should be there to respond to allegations)
22
An accused can be absent from a trial for a misdemeanour on conditions
that the court thinks fit (s617(4) QCC) – if it is a crime, the trial must take
place in the presence of the accused (s617(1) QCCC)
o If the accused’s conduct makes it impractical for the proceedings to
continue, the court can order the accused to be removed (s617(2) QCC)
o In a joint trial of two or more persons, the trial may proceed in the
absence of one of the parties if they are sick (s617(3) QCC)
 This exception is no allowed if the accused purposely made
themselves sick (R v Stuart)
No time limit – prosecution may begin at any time (why? – more serious, takes
longer to investigate or be reported)
Generally, no costs are awarded (s660 QCC – exception for victims, rarely used)
o
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REGULATORY OFFENCES
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Offences that are found in Regulatory Offences Act 1985 (Qld)
This Act provides police with an alternative to charging a person with an
indictable offence (discretionary)
Three types:
o Unauthorised dealing with shop goods (alternative to stealing)
o Leaving hotels and other venues without paying (alt. to fraud)
o Minor property damage (alt. to wilful damage)
DPP Guidelines, guideline 13 states that the prosecution should charge a
person with a regulatory offence if possible
‘Mens rea’ (a guilty mind) is necessary
Dealt with only in the Magistrates Court
Penalties = fines
Arrest without a warrant is allowed in relation to these offences (s8(1) ROA)
WHERE OFFENCES WILL BE HEARD
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Magistrates Court
o 96% of all matters are finalised in the Magistrates Court (MC)
o First entry point into the Court system will always be the MC
o Will deal with the majority of minor offences and an increasing number
of indictable offences
o Undertakes preliminary examination of witnesses or committal
hearings in order to ascertain whether the matter should proceed
to trial or not
o Matters should be dealt with by a MC within a 35km radius from where
the offence is alleged to have occurred
o Jurisdiction of the MC is stated in s19 JA – ‘Whenever by any Act past or
future, or by this Act, any person is made liable to a penalty or punishment,
or to pay a sum of money, for any offence, act, or omission, and such
offence, act, or omission is not by the Act to be an indictable offence, and no
23
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other provision is made for the trial of such person, the matter may be
heard and determined by the Magistrates Court.’  will deal with
regulatory and simple offences
o Most indictable offences are dealt with summarily in the MC
 If the prosecution elects, the offences listed within that section
must be heard summarily (s552A QCC) (subject to the discretion
of the magistrate – s552D)
 The accused can elect to have their matter heard by a higher
court judge with or without a jury or by a magistrate (s552B
QCC)
 Certain other offences can be heard summarily provided that the
accused pleads guilty (ss552(3), (4) QCC)
o Why deal with indictable offences summarily? – quicker, costs less, less
formality, lower maximum penalty (3 years imprisonment), conviction
will be deemed a conviction for a simple offence rather than an
indictable offence (s659 QCC)
District and Supreme Court
o s60 of the District Court of Queensland Act 1967 (Qld). The District Court
can hear matters that are: (if not within here, go to the Supreme Court)
 Punishable by no more than 20 years imprisonment (s60(1))
 Specified in the Act (e.g. sexual offences, property offences)
(s60(2)-(3))
o The prosecution has the discretion to present the indictment in the
Supreme Court
 Relevant factors = complexity of the case, the seriousness of the
alleged offence, any particular importance attached to the case
(s560(4) QCC)
24
EXTRADITION
GENERAL
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If the accused commits an offence in Queensland but is currently located
elsewhere in Australia or in another country, the prosecution can apply to have
the accused extradited to Queensland
Extradition = the formal surrender by one State, on the request of another
State, of a person who has been accused or convicted on an offence
committed within the requesting State’s jurisdiction
Extradition is frustrating for police as they are relying on another police officer
who does not have an interest in the matter
INTERSTATE EXTRADITION
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Application made under the Service and Execution Process Act 1992 (Cth)
Allows a warrant from a “home State” (the State in which the offence is
alleged to have been committed) to be executed by authorities in another
State (s82(1)-(3) SEPA)
As soon a the person is apprehended, they must be taken before a magistrate of
that State to determine the next step:
o If the warrant is valid, the person must be taken to the “home State” or
be given bail on condition that they appear at a nominated place in the
“home State” (s83 SEPA)
o If the warrant is invalid, the magistrate must order the release of the
person (s83(10) SEPA)
o The magistrate does not have the discretion to refuse or to make an
extradition order on the grounds of unjustness or oppression (Loveridge
v Commissioner of Police for South Australia)
OVERSEAS EXTRADITION (EXTRADITION TO AND FROM AUSTRALIA)
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Application made under the Extradition Act 1998 (Cth) (EA)
International extradition is largely governed by treaties with other countries
Part II of the EA governs the extradition process: (extradition from Australia)
o An application is received from an extradition country for the surrender
of a person
o A provisional arrest warrant is issued by a magistrate (s12(1) EA)
o When a person is apprehended on the warrant, they are to be brought
before a magistrate who will either order the person to be kept in
custody until the hearing where it is determined whether the person is
eligible for surrender OR grant the person bail (rare)
o The Attorney-General will issue a notice to the magistrate to proceed
with the hearing (s16 EA) if they are satisfied that:
 The person in an “extraditable person” in relation to the
extradition country  requires that either a warrant is in force
25
o
o
o
o
for the persons arrest for an offence under the law of another
country OR that the person has been convicted of an offence
under the law of another country & sentence is pending (s6 EA)
 Extradition is sought in relation to an “extradition offence”
 an offence against the law of another country with a maximum
penalty of at least 12 months imprisonment (s5 EA)
 The alleged offence would also amount to an offence in
Australia
 There is no “extradition objection”
 A hearing will only occur if the accused challenges the
extradition. If a person consents to their extradition,
there is no magistrate hearing. They are sent to prison
until surrender takes place (s18 EA)
The magistrate will then make a decision in regards to whether the
person is eligible for surrender. Three preconditions must be met:
(s19(2) EA)
 The supporting documents relating to the offence must be
produced
 The magistrate must be satisfied of the dual criminality
factor  the offence is an offence under the law of the
requesting country and Australia
 The person has not been able to show the magistrate that
there are substantial grounds for believing that there is an
extradition objection  objections can be on the ground that
the offence is a political offence in the requesting country;
religious or racial ground; if surrendered, the person will be
prejudiced at trial or punished or detained on similar grounds; or
on the basis that the person has already ben acquitted, pardoned
or punished in either Australia or the requesting country (s7 EA)
If the magistrate decides that the person is eligible for surrender,
they are sent to prison pending either their release or surrender
(s22 EA)
A review of the magistrates decision can be made to the Federal Court or
the Supreme Court (in rare circumstances, to the High Court) within 15
days of the decision (s22 EA)
The Attorney-General has the final decision  they must be satisfied
that there is no extradition objection, that the person will not be
subjected to torture of the death penalty and that a “specialty assurance”
has been given to the requesting country. If satisfied, they must issue a
surrender warrant (s23 EA)
 Final decision will depend on the extradition country  e.g. for
Commonwealth countries, a person will not be surrendered if the
offence is of a trivial nature, the accusations against the accused
have not been made in good faith or the in the interest of justice
or any other sufficient cause (reg 7, Extradition (Commonwealth
Countries) Regulations 1988 (Cth))
26
INDICTMENT
COMMITTAL
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Historically, a committal was usually held in the Magistrates Court prior to a jury
trial in relation to indictable offences
What basis can a committal hearing be made? (s103-110 JA) – interest of justice;
cross-examine a certain witness
The key functions of a committal are:
o A method of disclosure
o An assessment of the case against the accused to determine whether a
jury trial is justified
o An opportunity for the accused to explore the case against them
A committal is a filtering mechanism to stop cases from going to a jury trial if
there is not sufficient evidence
o If there was sufficient evidence, an indictment was prepared (s560 QCC)
o If there was not sufficient evidence, the prosecution may proceed by way
of an ex officio indictment in certain circumstances (s561 QCC)
PROCEDURE
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After the committal hearing, a notice is sent to witnesses requiring them to give
evidence at trial and the initial charging documents, witness statements and bail
undertaking (if there is bail) is sent to the ODPP (ss123, 126 JA)
The ODPP will then consider whether toe proceed to trial  will consider
evidence from the committal and guideline 4 of the Director’s Guidelines
If the ODPP decides to proceed to trial, the ODPP will prepare an indictment
(s560 QCC)
The ODPP has six months from the time of the committal to present the
indictment to the relevant court (s590(1) QCC)
RULES CONCERNING INDICTMENTS

Particulars:
o The accused is entitled to a sufficient degree of particularity in the
indictment  sufficient information to know what the charge is an is
able to respond to the charge (s564(1) QCC)
o The indictment must include:
 Name of the court at which it is presented
 Description of the offence
 Particulars of the time and place of the alleged offence
 Where relevant, particulars of the name of the person alleged to
be aggrieved (victim)
 Where relevant, particulars of any property elements or
ingredients of the offence
27
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 If there is an aggravation
o Absence of particularity will not usually be enough to stay an indictment;
rather, the court will order the prosecution to provide more info and, if
necessary, the trial will be postponed until this has occurred (s573 QCC)
Amendment
o Indictments can be amended at any time before the trial and during
the trial, as long as the proposed amendment isn’t material to the merits
of the case and the accused’s defence will not suffer injustice because of
it (s572 QCC) (R v Fahey)
Overloading of Charges
o An indictment should not be overloaded (i.e. should not include charges
of a trivial nature)
Joinder
o The general rule is that only one “count” (offence) may be charged in
one indictment (s567(1) QCC)
o Joinder is permitted in circumstances where the offences charged:
(s567(2) QCC)
 Are based on the same facts (R v Collins); or
 Form part of a series of offences of the same or similar
character (consider the time, place and circumstances); or
 Are a series of offences committed in the prosecution of a
single purpose
o The ODPP will decide whether to join offences
o Even multiple charges of murder can be joined on one indictment if the
rules are followed (R v Fraser)
Joinder and Prejudice
o Joinder may be preferable for the accused as it means that they don’t
have to go through more than one trial
o Joinder may be preferable to the prosecution as it reduces time and costs
Co-accused charged on one indictment
o More than one person can be charged on the one indictment, for the
same or different offences, if the charge arises out of the same or
substantially similar facts (s568(12) QCC) OR
if the prosecution
alleges that one ore more persons are secondary participants to the
offence (s569 QCC)
o An application can be made for each accused to have a separate trial
(s597B QC) – up to the judge’s discretion
 It is unlikely that a court will award separate trials for offences
committed under a common purpose
 The fact that evidence is admissible against one person but not
another is not a sufficient reason to order separate trials
28
EX OFFICIO INDICTMENTS


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
A prosecutor may present an “ex officio” indictment to a superior court (s561
QCC) (an indictment that is presented without a committal)
An ex officio can be presented “whether the accused has been committed for
trial or not and against any person for an indictable offence who with the
person’s prior consent has been committed for trial or for sentence for an
offence before that court” (ss561(1), (2) QCC)
Presenting an ex officio indictment is up to the discretion of the prosecutor and
is not reviewable
When can an ex officio indictment be presented:
o After a committal on one or more charges and evidence at the committal
discloses the commission of further offence or an alternative offence (e.g.
a committal for a murder charge may result in an indictment for
manslaughter)
 Problems if someone pleads guilty to a charge that is not the
subject of a committal as the protective function of the MC
filtering out weak cases is lost
The absence of a committal will not necessarily result in the staying of an ex
officio indictment  there must be some distinct unfairness to the accused
When proceeding with an ex officio indictment, both parties must comply with
Practice Direction No 2 of 2000 – this acknowledges that it may be more
convenient to proceed with an ex officio indictment provided that the
defence accepts that there is evidence to support the indictment and both
the prosecution and defence agree on the factual basis of the guilty plea
29
PLEA/CHARGE BARGAINING
GENERAL







A charge negotiation is an agreement to plead guilty in return for some
benefit from the prosecutor, such as some charges being dropped or a lesser
offence being charged despite evidence to support a more serious charge
Plea negotiations (or charge bargaining) is an essential part of the criminal
justice system in Queensland  only a small percentage of matters actually
proceed to a contested trial
A charge may be altered by the prosecution at any time up until the
accused enters their plea (ss48-49 JA; ss571-572 QCC)
Why? The prosecution want a guilty plea (saves resources), which the defence
may provide if the charge is lowered
ODPP Guideline 16 sets out standards for prosecutors when undertaking
charge negotiations:
o Charges should represent what conduct the Crown can reasonably
prove (the prosecution should not overcharge)
o The prosecution should accept a guilty plea if it is in the public interest
(this may require the charge or the facts presented to be adjusted)
o Charge bargaining is encouraged
o A charge should reflect the “essential criminality” of the charge and
provide “sufficient scope for sentencing”
o The defence may show that the prosecution’s evidence is deficient in
some way (e.g. having no intention will reduce murder to manslaughter)
o Need to balance the objective of avoiding trials (expensive and long)
against the outcome the community expects
o Need to consider the interests of the victim (trials may be traumatic for
victims)
Prohibited pleas:
o If there is distorted evidence
o A plea that doesn’t reflect the gravity of the offence
o If the accused is insistent about their innocence, a plea negotiation may
be inappropriate
Charge bargaining must also involve consultation with victims, their families and
the investigating police officers
ADVANTAGES VS DISADVANTAGES

Advantages:
o Certainty of the result
o Reduced sentences
o Increased efficient (saves time and resources)
o Reduction of costs to both the accused (financial and penal) and the
justice system
30

o Spares victims
Disadvantages:
o The accused is under great pressure
o The accused may be unrepresented (it is the accused who has to
approach the prosecution in relation to plea bargains –
unrepresented accused may not know of this right or the relevant
procedure)
o The accused may misunderstand the agreement
o Negotiations occur in private – reduces confidence in the system
o The evidence is not tested (uncertainty as to what are the real facts)
LIMITS TO BARGAINING






There is an ethical framework in the ODPP Guidelines
Roles of prosecution, defence and judge:
o It is the role of the prosecution to control the charge, the accused
must freely decide whether to plead guilty or not and it is the role of
the judge to sentence (GAS and SJK)
Judicial sentence indication:
o Judicial sentence indications are not allowed – the judge should be
allowed to change their mind after hearing the case and all of the
relevant facts (Marshall)
o Sentencing is at the judge’s discretion, regardless of what the parties
want or have agreed to
o Some argue that proper judicial sentence indication is needed as the
prospective sentence is a key factor of whether a person will plead guilty
or no
Private meeting with judges:
o Private meetings between one party should not occur as it
undermines public confidence (McQuire & Porter)
Prosecution defaults on agreement :
o It is inappropriate and not in the public’s interests for the
prosecution to default on the agreement and the proceedings can be
stayed (Wentworth)
Negotiations should be put in writing (GAS and SJK)
WHY PLEAD GUILTY?

Advantages:
o Sentence reduction
o Clear the books (accused can bring all other matters into one hearing
and serve a concurrent sentence)
o Reduce culpability via charge negotiation
o Assist the criminal justice system
31
Other – “… to avoid worry, inconvenience or expense; to avoid publicity; to
protect his family or friends; or in the hope of obtaining a more lenient
sentence …” (Meissner v R)
Concerns:
o Feelings of hopelessness (if a trial is strung out too long, the accused will
feel beaten down and just plead guilty)
o There is a pressure to plead guilty (even if they know they aren’t guilty
or to avoid costs)
o

DISCOUNT FOR A GUILTY PLEA





s13(1) P&S Act 1992 - (1) In imposing a sentence on an offender who has
pleaded guilty to an offence, a court—
o (a) must take the guilty plea into account; and
o (b) may reduce the sentence that it would have imposed had the
offender not pleaded guilty.
The power to reduce the sentence is discretionary (Baker v Bates)
The timing of the guilty plea is important – the later a plea is entered, the less
discount is association with the plea (no specific guidelines in Queensland)
(BAY)
Need to consider whether the guilty plea facilitates the justice process or is a
show of remorse
“The issue is to what extent the plea is indicative of remorse, acceptance of
responsibility and willingness to facilitate the course of justice” (Cameron v The
Queen)
WHEN CAN THE COURT ACCPET A GUILT Y PLEA

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

‘A court will act on a plea of guilty when it is entered in open court by a person
who is of full-age and apparently of sound mind and understanding, provided
the plea is entered in exercise of a free choice in the interests of the person
entering the plea. There is no miscarriage of justice if a court does act on such a
plea, even if the person entering it is not in truth guilty of the offence.’ (Meissner v
R)
A guilty plea constitutes an admission of the elements of the offence
The accused may choose to enter a plea during or at the end of the
committal, but is under no obligation to do so (s104(2)(b) JA)
The court doesn’t need to look at further evidence, such as what is motivating
the plea and if there is sufficient evidence of the offence – only need to satisfy the
above elements
The court may refuse to accept a guilty plea if the accused:
o Does not understand the nature of the charge
o Did not intend to admit he was guilty of the offence
o Could not in law be guilty of the offence upon the facts admitted by the
plea (Maxwell v R)
32
o
Was induced by intimidation or fraud (Meissner v R)
WITHDRAWAL OF A GUILTY PLEA



A plea can be withdrawn by the defendant at any time, with the leave of the
court, before the sentence (R v Nerbas)
A guilty plea accepted by the prosecution can be withdrawn at any time,
with the leave of the court, before the sentence (Maxwell v The Queen)
Other factors: (R v Nerbas)
o The guilty plea does not constitute conviction
o A conviction on a plea of guilty is provisional upon imposition of
sentence
o In order to obtain leave to withdraw a peal, the applicant must show that
a miscarriage of justice would occur if leave was not granted
33
DOUBLE JEOPARDY
FOUR RULES

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

The State should not be allowed to make repeated attempts to try and
convict a person (the State has many resources while the accused is limited)
1. A person cannot be tried for an offence for which they have earlier been
convicted or acquitted — this is called ‘autrefois convict’ or ‘autrefois acquit’
(under common law and s17 QCC)
2. Where a judge excludes confessional evidence at a trial, that evidence cannot
be relied on at a later trial for a different offence (under common law – abuse of
process)
3. An earlier acquittal cannot be undermined or controverted in later
proceedings, even for a different offence (under common law)
4. A person cannot be punished twice for the same criminal act (under common
law but see s16 QCC)
1. ALTERNAIVE VERDICTS AND S17





s17 QCC – “It is a defence to a charge of any offence to show that the accused
person has already been tried, and convicted or acquitted upon an indictment on
which the person might have been convicted of the offence with which the person is
charged, or has already been acquitted upon indictment, or has already been
convicted, of an offence of which the person might be convicted upon the
indictment or complain on which the person is charged”
If a person has already been convicted or acquitted for the same offence, or
an alternative verdict of that offence, they cannot be tried again
o Common law  ‘autrefois convict’ or ‘autrefois acquit’
o Examples: Viers (charged under two Acts for the same offence); Walton v
Gardiner
Purpose – to prevent an accused from being charged with a lesser offence when
a more serious offence fails
s700 QCC – same protection as in s17 applies to the Magistrates Court
Alternative verdicts:
o Sections 575-589 QCC sets out the various alternative verdicts that are
available (e.g. sexual assault is an alternative for rape; manslaughter is
an alternative for murder)
o Either the prosecution, defence or the judge can raise an alternative
verdict
o The judge will usually direct on alternative verdicts (as not doing so may
run the risk of the accused getting off free if the charge was wrong)
 Does a judge HAVE to direct on alternative verdicts?
 Whether or not an alternative verdict rises for consideration
depends on the evidence (Willersdor; Rehavi v R)
34
2. CONFESSIONAL EVIDENCE

Evidence excluded in previous proceedings cannot be brought back in later
proceedings (Roger)
3. EARLIER ACQUITTAL


Carroll created the controversion rule  an earlier acquittal cannot be
controverted in a later proceedings, even for a different offence
An acquittal will be deemed to be controverted if the result of a conviction of a
later charge effectively overturns the original acquittal as it renders the original
acquittal as incorrect in the first place
4. PUNISHED TWICE



Cannot be punished twice for the same criminal actions
There will not double jeopardy if each charge involvs proving different
essential facts (Pearce)
s16 QCC – “A person can not be twice punished either under the provisions of this
Code or under the provisions of any other law for the same act or omission, except
in the case where the act or omission is such that by means thereof the person
causes the death of another person, in which case the person may be convicted of
the offence of which the person is guilty by reason of causing such death,
notwithstanding that the person has already been convicted of some other offence
constituted by the act or omission.”
o s16 provides an exception
DOUBLE JEOPARDY EXCEPTIONS


Two exceptions were introduced in 2007 to deal with the Carroll problem
s678B QCC – a retrial for murder can occur on the basis of fresh and
compelling evidence and it is in the interest of justice to proceed
o ‘Fresh and compelling’ evidence:
 s(2) fresh = not adduced at the original proceedings and could
not have been adduced with the exercise of reasonable diligence
of the prosecution
 s(3) compelling = evidence must be reliable, substantial and
highly probative; not precluded if inadmissible in earlier
proceedings
o ‘Interest of justice’ to have a retrial:
 Need to consider – the length of time that has assed, whether the
prosecutor had failed to act expeditiously or with reasonable
diligence, if a fair trial is likely to occur, etc)
35

s678C QCC – a retrial for a 25 year offence can occur on the basis of a tainted
acquittal
o There must be a 25 year or more offence (e.g. murder, serious drug
offences, robbery, intended GBH, rape)
o ‘Tainted acquittal’
 If the accused person or another person has been convicted of an
administration of justice offence in relation to the proceedings
were acquitted
AND ‘it is more likely than not, but for
the commission of the administration of justice offence, the
accused person would have been convicted’
 Administration of justice offence = influencing witnesses,
perjury, obstructing justice in some way (see ch 16)
36
TRIAL PROCESS
PROSECUTION DISCLOSURE

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
The prosecution must disclose all of the evidence that they propose to rely
on to the defence so that the defence know what to expect
o E.g. must disclose interview recordings, forensic result, witness lists, etc
o Acting fairly and impartially involves the duty of disclosure (Mallard v
The Queen)
o The prosecution has an overall duty to disclose anything favourable to
the defence (s590AB QCC)
Everything in the prosecutions possession must be disclosed unless it is
against the public’s interest (even if it would assist the accused’s case)
A perfect trial would involve perfect disclosure in a committal hand up brief 
this is rare; thus, applications for disclosure must be made
Pre-trial applications for disclosure may be made by the defence until the trial
begins (s590AA QCC)
o The judge will order disclosure  non-compliance with the order gives
the judge the power to adjourn the proceedings until there is proper
disclosure (s590AAA QCC)
o Non-disclosure will not inevitably result in an unfair trial (on appeal,
there is no guarantee that the conviction will be overturned (s590AC
QCC)
 It must be considered whether the failure to disclose the
information resulted in the accused losing a real chance of
acquittal (R v OL; R v HAU)
Disclosure rules apply to indictable offences heard summarily or in higher
courts
Definitions:
o Relevant proceeding = committal, ‘prescribed summary trial’, trial on
indictment (s590AC QCC)
 Prescribed summary trial = indictable offences that must be
heard summarily (or by election under s552A QCC) or if the
accused wants a jury trial under s552B QCC
o Possession = anything that the prosecution is aware is in existence and
that would be locatable without unreasonable effort (s590AE QCC)
 Prosecution = the arresting officer, ODPP or police service
Two Categories of Disclosure:
o Must always disclose (s590AH QCC)
 The bench charge sheet
 The accused’s criminal history
 Statements made by an accused
 Written notice regarding ‘affected child witnesses’ (and why they
are an ‘affected child witness’)
 Notice of any intention to rely on hearsay evidence
37
o
o
 Witness statements
 Forensic test results
Must disclose on request (s590AJ QCC)
 If a proposed witness is an “affected child”
 A witnesses criminal history (can attack credibility)
 Material adverse to a witnesses reliability/credibility/
competence (e.g. medical/psych reports, drug habits)
 Material within the prosecution’s possession that they do not
intend to rely upon (e.g. evidence that may help the accused)
If the prosecution does not disclose something to the defence upon
request, the defence can seek a disclosure obligation direction (ss83A83B JA)

When is disclosure to occur:
o Mandatory disclosure  at least 14 days prior to the date for a
hearing in the Magistrates Court; no more than 28 days after the
presentation of the indictment
o When a request is made  as soon as practicable
o There is an ongoing obligation to disclose new material as soon as
practicable

There are limitations on prosecution disclosure
o The prosecution is not required to disclose: (ss590AN-AQ QCC)
 Material that has already been disclosed
 ‘Sensitive evidence’ (e.g. evidence that affects a person’s dignity
or privacy such as naked body shots of rape victims – the defence
may be able to look at such evidence but are not allowed to have
a copy)
 ‘s93A Statements’ (Statements made by children who have been
sexually assaulted – the defence can go and listen to the
statement but are not allowed to have a copy)
 Witness contact details (some)
 Material contrary to the public interest (e.g. material that would
facilitate further offending (such as drug recipes), material that is
prejudicial to national security, material that would damage
Australia’s relation with other countries)
o Accused/Court can waive the entitlement (ss590AT, 590AU QCC)
 The accused can waive their entitlement to disclosure (this must
be in writing)
 The Court can waive the entitlement to disclosure if there are
‘good reasons’ and no resulting miscarriage of justice
DEFENCE DISCLOSURE

While the onus in relation to disclosure is primarily on the prosecution, there
are some obligations on the defence (this whittles down the right to silence)
38


Alibi evidence:
o The defence must give the prosecution notice of an alibi
o Alibi evidence = evidence by the accused or someone associated with the
accused that shows that by reason of the presence of the accused
person 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
 This effective and easy to obtain (people will lie for the accused)
o Particulars of the alibi evidence must be disclosed at least 14 days after
the date of committal for trial (s590A QCC) (R v Eramus)
 Non-compliance may mean that the accused may not be able to
call any alibi evidence (ss590A(1), 590A(2) QCC) (unlikely – will
usually still be able to be presented but late notice may have a
damaging effect on the credibility of the accused)
Expert evidence:
o The accused must give advance notice of an intention to adduced expert
evidence (s590B QCC)
o Expert evidence usually relates to defences such as insanity or
diminished responsibility or may be a drug/blood analysis (rare)
o Must provide the prosecution with the expert’s name, their findings or
opinions that will be provided at trial and a copy of the expert’s report
before the trial begins
o There must timely disclosure of expert evidence (R v de Voss)
HEARINGS IN THE MAGISTRATE COURT

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

The relevant Act is the Justices Act 1886 (Qld) (JA)
The Magistrate Court deals with the vast majority of cases
Difference between Magistrate Court and higher courts:
o In the Magistrate Court, all matters are determined ‘summarily’  i.e.
the Magistrate determines all questions of fact and law (this is the
same in judge alone trials)
Procedure:
o Proceedings can be commenced by either a notice to appear, arrest and
charge or a complaint and summons
o There may be a directions hearing  a hearing commenced before the
actual hearing in which the Magistrate will make directions about certain
matters, such as disclosure (s83A JA) (Brown v Owen)
o The charge will be read out and the accused will enter a plea (ss144-145
JA):
 Guilty plea  the Magistrate will convict the accused and, if the
accused is present, will hear submissions on appropriate
sentencing (s145(2) JA)
39
Not guilty plea  the Magistrate will adjourn the matter for a
summary hearing/trial (evidence heard, case decided)
Procedure of the Hearing (if plea is not guilty):
 Prosecution provides an outline of the evidence to the Magistrate
 Prosecution calls their witnesses (evidence-in-chief, crossexamination, re-examination)
 After the prosecution finishes, the accused may make a ‘no case
submission’  arguing that the prosecution has failed to
establish through its evidence that a reasonable arbiter could
determine, beyond a reasonable doubt, that the charge has been
made out against the accused
o This is a question of whether the prosecution has
made out a prima facie case against the accused,
not whether the magistrate is satisfied beyond a
reasonable doubt (question of law)
 If the Magistrate decide that there is no case, the matter
will be dismissed (s149 JA)
 If the no case submission fails, the accused will be given
the opportunity to call evidence (no obligation to do so)
 Accused calls their witnesses (if they choose to)
 Closing address by both parties (if the accused gives evidence,
they will make their closing address first – s619 QCC)
 The Magistrate will then decide whether the charge has been
proved beyond a reasonable doubt
 If there is reasonable doubt, the matter is dismissed
(s149 JA)
 If there is no reasonable doubt, the Magistrate will
convict the accused and hear submissions on an
appropriate sentence (ss150-152 JA) (the sentence
hearing may be adjourned)
 There will then be consideration regarding costs

o

Other points:
o Charges can be amended up until a plea is entered (ss48-49 JA)
 The magistrate will consider issues of joiner/particulars/previous
convictions (ss43, 46, 46 JA) (Washband v Queensland Police Service)
TRIALS IN THE DISTRICT AND SUPREME COURT


The procedure of a trial in a higher court is similar to that in the Magistrates
Court
Procedure:
o Proceedings are commenced upon the presentation of an indictment
(either after a committal or an ex officio indictment)
40
o
o
There maybe directions or pre-trial rulings (e.g. in relation to a stay of
the indictment, joinder, disclosure, questions of law, application for a
judge alone trial, etc) (s590AA QCC)
The accused is arraigned on the indictment  i.e. the charge is read
out in front of the court and the accused enters a plea (s597 QCC)
 Guilty plea  submissions will be made by both Counsels in
relation to the appropriate penalty (procedure in s146 JA)
 Not guilty plea  trial by jury (or judge alone trial upon
application s614 QCC)
JUDGE ALONE TRIALS




The ordinary approach is that there will be a jury trial
An accused can made a pre-trial application to have a judge alone trial – a ‘no
jury order’ (s590AA, 614 QCC)
o The judge will grant a ‘no jury order’ if it is in the interest of justice to do
so (e.g if the complexity or length of the trial will be unreasonably
burdensome on a jury; if there is a real possibility that acts constituting
retaliation against a juror would be committed; significant pre-trial
publicity) (ss615(1); 615(4) QCC)
o The judge will refuse a no jury order if they consider that the case
involves a factual issue that requires the application of objective
community standards (s615(5) QCC)
o If there is more than one charge or more than one accused, a no jury
order cannot be made in relation to one/some of the charges or the
accused  must be made in relation to all charges/accused (s615 QCC)
Pre-trial application:
o If the date of the trial has already been set and the parties know who
the judge is, there must be special reasons for a judge alone trial (s614
QCC)
 Reasons must be out of the ordinary, distinct, particular and
carry special reasons (R v Prisk and Harris)
o If the judge is unknown, the Court may allow a judge alone trial if the
accused consents and it is in the interest of justice (e.g. pre-trial
publicity) (R v Clough – interest of justice; R v Ferguson – pre-trial
publicity)
Judge alone trials are quicker, cheaper and consume less resources
JURY TRIAL


Relevant Act = Jury Act 1995 (Qld) (JuA) (regulates the selection and
empanelling of a jury)
There is no constitutional right to a jury trial in Qld and the Cth right falls far
short of absolute
41
Some argue that in order to have a fair trial in a higher court, a jury is
needed
Who can be a jury member? Must be enrolled to vote and never convicted of an
indictable offence
o Exceptions: police officers, MP’s, lawyers, corrective officers
o There are categories on which a person may be excluded (s21 JuA)
o A person who is a victim of crime or is related to a victim of crme is not
excluded from being a juror (Tichowitsch)
There are 12 members (plus reserves) (ss33, 34 JuA)
o



Right to Challenge:
o Both parties have 8 peremptory challenges (s42 JuA)
 The prosecution and defence are only give the persons name and
occupation; they do not have to give reasons
 Concerns: this means that it isn’t really random selection
o Both parties have unlimited challenges for cause (s43 JuA)
 Cause = if the party can show that the person is not qualified for
service or is not impartial (e.g. they know the accused or
witnesses) (R v Stuart; Murphy v The Queen; D’Arcy)
 Questions will be put to the individual juror or the entire jury to
determine whether or not they are suitable/impartial
o There can be a challenge to the whole panel (s40 JuA)
o It is up to the judge’s discretion whether to discharge a juror/the whole
jury (s46 JuA)
o If one party has information which means that a jury member may be
unsuitable, they must disclose this information (s35 JuA)
o Unless there are reserves, if one juror is out, the entire jury is out

Verdicts:
o There must be a unanimous verdict
o The judge should direct the jury to reach a unanimous decision;
however, in certain circumstances, a majority verdict is allowed
(covered in s59A Jury Act)
 Majority verdict – 11 out of 12
 Before this direction is provided, the ‘prescribed period’ of
consideration must have passed and the judge must be satisfied
that the jury is unlikely to reach a unanimous verdict
 Prescribed period = 8 hours of deliberation (not
including breaks)
OR
a period of time the judge
considers reasonable having regard to the complexity of
the trial
 It is important that the judge is satisfied that a unanimous verdict
is unlikely – can question the jury about the prospect of
unanimity or give a Black direction (McClintock)
 A ‘Black direction’ should be given if the jury indicates to the
Court that they are unable to reach a verdict and the conditions
42
o






for reaching a majority verdict have not yet been met 
encourages them to reach a unanimous decision (No.52 Supreme
Court Benchbook)
If the jury cannot reach a unanimous OR a majority verdict, the jury
will be deemed a ‘hung jury’ and discharged (s60 JuA)
 The accused may or may not be put on trial again (s60 JuA)
(Bjelke-Petersen – hung jury, not re-prosecuted)
After the jury is empanelled, the judge will inform the jury of their role an
obligations  to decide questions of fact based on the evidence and to ultimately
determine whether or not he accuse is, beyond a reasonable doubt, guilty (ss5051 JuA)
o A juror can view the scene of the crime but they should not go by
themselves (go with the whole Court) (Myles and Myles)
o A juror should not make inquiries about the accused (R v K)
o Impartiality of a juror (Edwards & Ors; R v McCosker)
 Ask – would the circumstance give a reasonable suspicion in the
mind of a fair-minded member of the public that the jury
member did not disclose their task impartially (Myles v Myles)
A ‘no case submission’ can also be made in higher courts
Voir dire:
o A voir dire = when points as to the admissibility of evidence is
considered during the trial (or before the trial) without the jury
present
Final address:
o If the defence does not present evidence, they deliver their final address
last – if the defence does present evidence, the prosecution will deliver
their final address last (s619 QCC)
o Whoever has the final address is important in a jury trial as they can
leave an emphatic mark on the jury
After the final address, the judge will sum up the evidence and direct the jury on
the relevant law (s620 QCC)
Pros vs. Cons of a Jury Trial
o Pros:
 Trials are clearer sot that the jury understands what is going on
 Impartiality (random selection of ordinary people)
 Ensures fair play (lawyers will want to behave well as bad
behaviour may put the jury off their case)
o Cons:
 Takes a long time
 Costs a lot of money
 There are a lot of delays
 More possibility for appeal (e.g. appeal against a direction that
the judge gave to the jury)
 Complex evidence may confuse the jury
43
NOLLE PROSEQUI
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Nolle prosequi  when the prosecution try to discontinue their indictment
before a verdict is made (s563 QCC)
o This will occur if the case is not going well and an acquittal is likely  if
there is an acquittal, double jeopardy rules will apply
o The prosecutions case is brought to an end (the charge is withdrawn) –
but it can be restarted in the future (s563(3) QCC)
o Can be entered against one charge or, if the indictment contains multiple
charges, the entire indictment
A nolle prosequi can be entered at any time before the verdict
The Court will not allow a nolle prosequi if it would amount to an abuse of
process (the closer a nolle prosequi is entered to a jury verdict, the less likely it
will be allowed) (Saunders)
o The accused should be protected from the prosecution’s lack of
preparation
The Court has refused to allow a nolle prosequi if it is discovered mid-trial that
an inappropriate offences was charged (Jell)
The Court has refused to allow a nolle prosequi if a prosecution witness has
failed to show up to court (DPP (SA) V B)
44
FAIR TRIAL AND ABUSE OF PROCESS
FAIR TRIAL
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Fundamental aspect of the law = no person shall be convicted of a crime except
after a fair trial (Dietrich v The Queen)
What is a fair trial? A trial that is run according to the rules (however, in some
cases, even if everything is done by the rules, there still may not be a fair trial) 
thus, the key criteria is fairness (Dietrich)
What amounts to fairness?
o Fairness will depend on the facts of the case
o Notions of fairness change over time (McKinney)
o There are limits on a fair trial  due to limited resources (Dietrich)
The fair trial principle applies regardless of the perceived guilt of the accused
What happens before a trial (e.g. bail, committals, etc) can have implications on a
fair trial later)
There is no constitutional right to a fair trial (some judges have implied the right
into the Constitution as judges must exercise judicial power in accordance with
the judicial process)
APPEARANCE OF FAIRNESS
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A fair trial involves both actual fairness and the appearance of fairness
When determining whether or not there is the appearance of fairness, ask 
What would the hypothetical, reasonable observer have though? (Johnson v
Johnson)
Judge’s behaviour:
o The judge must appear to be impartial
o A judge should not make comments to either Counsel such as ‘the
evidence is bizarre’ or interrupt Counsel excessively (Copsey)
o A judge must do their best to avoid tension between themselves and
Counsel as this may create the appearance of unfairness or bias (RPS V
The Queen)
o Sleeping judge  If the judge is noticeable and repeatedly asleep or
inattentive during the trial, this may amount to a miscarriage of justice
(Cesan v The Queen)
Prosecution’s behaviour:
o The prosecution should not make submissions to the jury that:
(Livermore; R v KP)
 Are not based on material in the evidence
 Are inflammatory or judgmental
 Belittle or ridicule witnesses
 Impugne the credit of the accused’s witnesses (unless the
defence has a chance of responding to this)
 Convey their own opinion of people
45
If the prosecutor and Counsel for the accused are in a relationship, this
may amount to the appearance of bias (R v Szabo)
Interpretation:
o There is no absolute right to an interpreter; however, if it is clear that
the accused cannot understand the trial due to a language barrier,
there may be an unfair trial if the accused does not have an interpreter
o If it is impossible to find an interpreter, there is a very high danger that
there will be an unfair trial an convictions may be squashed or
proceedings stayed (Ebatarinja)
o The interpreter must be sufficient (difference between an interpreter
and a translator as the interpreter must respond quickly; thus, there is a
lower threshold) (De La Expriella-Velasco)
Examples of unfair trials:
o Failure to exclude evidence (Nicholls & Coates)
o Refusal to grant separate trials (De Jesus; Phillips)
o Lack of disclosure/committal (Barton)
o Jury irregularities (Tichowitsch; Edwards)
o


ABUSE OF PROCESS
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What is an abuse of process? ‘”The use of criminal process inconsistently with
some aspect of its true purpose” (Jago)
An abuse of process will usually result in an unfair trial
o Fair trial and abuse of process are interrelated (Jago)
An abuse of process will exhibit at least one of three characteristics: (PNJ v The
Queen)
o The invoking of a court’s processes for an illegitimate or collateral
purpose
o The use of the court’s procedures would be unjustifiable oppressive to
a party
o The use of the court’s procedures would bring the administration of
justice into disrepute
Examples of abuse of process:
o Lack of offence particularity (Rogers; Patel v The Queen)
o Purpose of proceedings (William v Spautz)
o Inappropriate use of an ex officio indictment (Barton)
o Resubmitting previously excluded evidence (Rogers)
o Double jeopardy/controversion of an earlier acquittal (Carroll)
o Inappropriate use of a nolle prosequi (Saunders)
o Unlawful or improper extradition (Lavelle)
46
DELAY AS AN ABUSE OF PROCESS
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Delay is a serious problem as it leads to increased costs, wasted preparation and
increases stress for both the victim/s and the accused; delay may also create
public dissatisfaction with the legal system
Delay can be caused by a number of reasons:
o Lethargic prosecutorial practices
o Delay by victims in making a complaint
o The defendant’s lack of readiness
o Under-resourced courts
o Delay may be deliberately orchestrated by one of the parties
Delay may lead to an unfair trial (e.g. witnesses may die, memories fade, etc)
Delay by itself is not sufficient to amount to an abuse of process  however, the
effects of delay may amount to an unfair trial/abuse of process
Delayed proceedings can be stayed if the effects of the delay amounts to an
unfair trial (Jago)
o The accused must show that there will be an unfair trial and that they
will suffer prejudice (R v Edwards; Khoury; Gill; Wrigley)
o Need to consider the following factors: (Jago)
 The length of the delay
 The reasons for delay (e.g. disorganised prosecution  bad
reason)
 The accused’s responsibility in trying to stop the delay
 Prejudice suffered by the accused
 Public interest
o A stay of proceedings should only be allowed in extreme cases
Delay may be caused by limitation on resources
There is an aim to have a twelve-month turn around of cases in the Supreme
Court (harder for long, complex cases)
Procedures have been implemented to avoid delay:
o Disclosure  ensures that charge and pleas are resolved at the earliest
possible time
o Judge-alone trials
o Improved technology for filing and document exchange
Competing policy considerations:
o It is the role of the prosecution to control prosecutions and the judiciary
should usually not interfere with this role
o Investigations need to be thoroughly carried out
vs.
o The Court has a duty to the community to ensure that matters are dealt
with in a timely and cost-efficient way
o The accused should have a fair trial
47
PRE-TRIAL PUBLICITY
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In some cases, there may be massive media publicity before and during the trial
(e.g. Ferguson)
One fundamental aspect of a jury trial is that the jury decides the case on the
admissible evidence put before the Court  this aspect is diminished if there is
large pre-trial publicity as jury members will hear of the case in the media
There are competing interests in relation to prejudicial, pre-trial publicity:
o The public has the right to knowledge vs Fair trial
o Public interest in free expression vs Administration of justice
There are alternative ways of dealing with pre-trial publicity:
o Jury directions – a judge can use jury directions to eliminate unfairness
(R v Kaddour)
o Cross-examination – the judge can cross-examine jury members to
determine whether or not the have been influenced by pre-trial publicity
(should not make assumptions about their knowledge) (s47 JuA)
 It is possible to empanel a new jury if need be (R v Purdie)
o Adjournment - The trial can be delayed in order to allow the media
hype to die down (Glennon v The Queen; Dupas)
o Forum change – while there is an assumption that a matter will be
heard at the court closest to where the offence was committed, a trial can
be moved due to pre-trial publicity (Long; Walters)
 Need to consider – fair trial, costs and expenses, delay, system of
the administration of justice (Walters)
o Judge alone trial – The defence must consent to this (ss614, 615 QCC)
RESPONDING TO UNFAIRNESS OR ABUSE OF PROCESS
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
During the trial – the judge must manage the trial to ensure that there is no
unfairness or abuse of process. This is done by:
o Adjourning the trial so that problems can be fixed (s88 JA; s592 QCC)
o Refuse to accept a plea
o Ensure appropriate procedures are followed
o Make appropriate rulings on evidence
o Appropriately direct the jury
o Discharge jury members if necessary
After the trial – if there has been an unfair trial or an abuse of process:
o Appeal (may result in a new trial)
o Or ‘stay’ of the proceedings
 A stay of proceedings stops the proceedings
 Last resort (courts are reluctant to order a stay)
 A stay can be ordered:
 Pre-trial (s590AA QCC)
 During the trial
 As a result of an appeal
48
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
The usual approach = stay the proceedings for a necessary
time (e.g. until the problems are addressed) (Williams v Spautz)
(s88 JA; s592QCC)
There can be a permanent stay (exceptional circumstances)
 “To justify a permanent stay of criminal proceedings, there
must be a fundamental defect which goes to the root of the
criminal trial of such a nature that nothing that the trial
judge can do in the conduct of the trial can relieve against
its unfair consequences” (Jago)
 A permanent stay is appropriate if:
o There is an unacceptable risk that the trial will be
unfair
o The prosecution would be oppressive
o In order to prevent an abuse of process
 A permanent stay can run against the interests of the
victim, the community and sometimes the accused (they
lose the chance of acquittal) and may damage public
confidence in the courts
 There must be no other available means to bring a fair
trial (Williams v Spautz)
OPPRESSIVE AND MALICIOUS PROSECUTION
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Oppressive prosecution = prosecuting with an improper purpose
o Improper purpose = prosecution will be improper if it is brought as a means
of obtaining some advantage rather than to carry the prosecution through to
a conviction (Williams v Spautz)
o Must look at the predominant purpose
A prosecution may be considered oppressive when:
o The charge is too vague (R v S)
o The prosecution is considered doomed to fail (Walton v Gardiner)
o The specific charge is not appropriate to the allegations made
o The charge is a duplication of other charges
o The charge is in relation to actions already dealt with
Continuing with a charge when there is an oppressive prosecution may amount to
an abuse of process  there can be a stay of proceedings
Malicious prosecution is a tort (the accused can sue the prosecutor) (A v New South
Wales) – Elements:
o Relevant proceedings
o Terminated in favour of the plaintiff
o The defendant acted with malice
 Malice = the dominant purpose of the prosecutor must be a purpose
other than the proper invocations of the criminal law
o The defendant acted without reasonable and probable cause
 This element is not established unless the prosecutor is shown
either to not have honestly formed the view that there was a proper
cause or to have formed that view on an insufficient basis
49
ETHICS
AUSTRALIAN SOLICITORS CONDUCT RULES
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The Australian Solicitors Conduct Rules (ASCR) were designed to be the first
set of uniform, professional conduct rules
Participating jurisdictions = QLD, SA, NSW, VIC, NT
Commenced on 1 June 2012
Three key points:
o The ASCR are a framework for ethical decision making (apply in
addition to the common law)
o Both the ASCR and the common law duties can form the basis of
disciplinary action
o The ASCR does not give a private cause of action at the instance of a
client or another unless the rule clearly confers such a right (Winters v
Mischon de Reya)
Paramount duty:
o 3.1. A solicitor’s duty to the court and the administration of justice is
paramount and prevail to the extent of inconsistency with any other duty
Other Fundamental Ethical Duties:
o 4.1.1 Act in the best interests of a client in any matter in which the
solicitor represents the client
o 4.1.2 Be honest and courteous in all dealings in the course of legal
practice
o 4.1.3 Deliver legal services competently, diligently and as promptly as
reasonably possible
o 4.1.4 Avoid any compromise to their integrity and professional
independence
o 4.1.5 Comply with these Rules and the law
LEGAL ETHICS
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The hypothetical practical and wise lawyer has these characteristics:
o Benevolence
o Courage
o Respect
o Knowledge
o Compassion
o Cardour/Truthfulness/Frankness
o Honesty
The Four C’s: The lawyer owes a duty to the –
o Court
o Client
o Colleagues
o Community
50
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Sometimes the duties will clash. The lawyer should try to avoid conflicts
The fundamental duty is to uphold the law (not to participate or encourage a
breach of the law)
The duty of candour and fairness trumps all – A lawyer should not:
o Abuse the court process
o Mislead the court
o School witnesses
o Allege fraud or dishonest without specific instructions and evidentiary
foundation
o SHOULD make clients aware of their obligations in legal proceedings to
search for, disclose and preserve relevant documents
The duty to the client involves:
o Give client all the relevant information within the practitioner’s
knowledge (so that the client can make an informed decision
o Avoid conflicts of interest
o Maintain privilege and confidentiality
o Loyalty
The duty to the court involves:
o A reasonable degree of competence
o Absolute honesty with opponents and the Court
o Good manners
o Ethical behaviour at all times
Examples:
o Frustrating a police investigation by giving a client a warning that they
will be investigated is not unethical (Legal Services Commissioner v
Winning)
o Advising a client to exercise their right to silence or to resist a police
search if there is no warrant is not unethical (Winning)
o If a lawyer assists in the commission of a crime, they will also be
criminally responsible for the crime (Winning)
o It is not unethical to represent an a client who they believe is guilty;
rather, it may be unethical to refuse to represent a client in this basis
 It may be unethical to represent a client who they knows is
guilty as it will be hard to continue without misleading the court
o If a lawyer becomes aware that the client or a defence witness has
lied, they must refuse to take further part in the case unless the court is
informed of the lie
 However, the lawyer can only inform the court of the lie if their
client instructs them to do so
o Lawyers should take all necessary steps to correct any legal errors
that favours the accused
 As the burden is on the prosecution to prove their case, if they
make factual errors that favour the accused, it is not unethical for
a lawyer not to correct the statement; however, they should not
make positive statements of factual error
51
LEGAL REPRESENTATION
GENERAL
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There is an argument that if the accused is unrepresented in a trial, there will be
an unfair trial
Key case – Dietrich  held that a lack of representation may amount to an unfair
trial; however, there is no automatic right to have publicly funded legal
representation (need to meet criteria – if so, trial can be stayed)
o “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 of his or her part, is unable to obtain legal representation, …
in the absence of exceptional circumstances, the trial … should be
adjourned, postponed or stayed until legal representation is available. If, …
an application that the trial be delayed is refused and, by reason of the lack
of representation of the accused, the resulting trial is not a fair one, any
conviction of the accused must be quashed by an appellate court for the
reason that there has been a miscarriage of justice in that the accused has
been convicted without a fair trial …” (known as the Dietrich principle)
o Elements:
 Indigent accused
 Serious offence
 No fault
 Absence of exceptional circumstances
o Also need to consider whether the accused lost a real chance of
acquittal
INDIGENT
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In order for the Dietrich principle to apply, the person must be indigent
Indigent – lack of means to pay for legal representation (Dietrich)
Indigent refers to the inability to afford appropriate legal representation  the
accused does not have to be living in poverty to be deemed as indigent (R v
Marchi, Marchi and Mead)
o What is “appropriate” will depend on the case

It is relevant to consider: (Rich)
o Assets and possible sale of assets
o Whether the accused can obtain finances from relatives or a de facto
spouse
o What initiatives the accused has taken to raise money (e.g. mortgaged
house)
o Not only a ‘snapshot’ the accused’s finances at the time of trial, but also
their finances at the time they discovered they had to run a trial (and
look at what they have done with their money)
52
o
The defences the accused is going to raise and how much money will be
needed (e.g. expert witnesses may be needed) (Roddan)
SERIOUS
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In order for the Dietrich principle to apply, the relevant offence must be serious
A serious offence may have one of the following characteristics:
o Serious, indictable offence (Dietrich)
o Judge and jury setting (Dietrich)
o Punishment involves a threat to liberty (imprisonment) (Dietrich)
o Punishment involves a serious fine (Essenberg – a $300 fine was no
serious)
“Serious” limits the Dietrich principle to apply to only trials
o Not committals (Helfenbaum)
o Not inquiries (Cannellis)
o Not appeals (Sinanovic)
NO FAULT
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In order for the Dietrich principle to apply, the accused must not be at fault in
relation to their lack of legal representation
The lack of legal representation must not be deliberate or wilful (Small)
Need to consider whether the accused acted reasonably 
o Should consider the entire context, not a small fault (Craig)
o Knowing that they would have to fund a trial but not saving money or
making an effort to secure a loan can amount to fault (Rich)
o Constantly changing their lawyer without a good reason can amount to
fault (Batiste)
o Rejecting legal assistance can amount to fault (Dietrich; Wilson)
o Acting unreasonable and intractable can amount to fault (Promizio)
If an accused can only afford a lawyer for part of the trial, they should be allowed
to have a lawyer for only that part (Gassy)
It is important that the trial judge listens to the accused’s response/explanation
before determining that they are at fault (East)
EXCEPTIONAL CIRCUMSTANCES
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In order for the Dietrich principle to apply, the Court must be satisfied that there
are no exceptional circumstances that would justify the trial proceedings in
spite of the lack of representation
If the accused is a skilled litigant (e.g. an experienced lawyer – especially if in
that field), this will amount to an exceptional circumstance and they will not
have access to the Dietrich principle (Fuller)
53

Mental illness can amount to exceptional circumstances (as opposed to fault)
(Wilson)
QUALITY OF LEGAL REPRESENTATION
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What quality of legal representation must the accused have access to in order for
it to be a fair trial?
o Competent (Dietrich)
o Adequate or appropriate to the demands of the case (does not need
to match the funds that the prosecution has, just needs to be adequate)
(Souter)
An accused may be denied a fair trial if their lawyer is manifestly inadequate
this will effectively leave the accused unrepresented (Milat)
LAWYER INCOMPETENCE
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The accused’s lawyer usually has a broad discretion in regards to the way that
the case is conducted (e.g. what witnesses to call, what questions to ask, what
arguments to follow, what tactics to use, etc)
If it can be established on appeal that the conduct of the lawyer resulted in a
material irregularity in the trial and that material irregularity affected the
outcome of the trial, the trial may be regarded as unfair
o This is hard to prove
It has been stated that in order to have a conviction set aside, the accused does
not always have to prove that the lawyer’s incompetence changed the outcome
of the trial (TKWJ v The Queen)
The lawyer must be flagrantly incompetent (Eastman; Paddon)
o A few bad decisions made by the lawyer will not necessarily amount to
flagrant incompetence (Birks)
The accused must have lost a real chance of acquittal (Nudd)
LEGAL AID
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Legal aid is publicly funded legal assistance
Statutory schemes exist throughout Australia in order to provide legal assistance
to those who are financially disadvantaged - Legal Aid Queensland Act 1997 (Qld)
There is a two-pronged test in order to determine whether a person will be
granted Legal Aid:
o Merits test:
 Reasonable prospect of success test
 Legal Aid is more likely to be granted if this test can be
satisfied
 Based on the legal and factual merits of the case
 Prudent self-funding litigant test
54
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Considers whether a person able to afford a lawyer
would be prepared to hire a lawyer in the situation
 Appropriateness
 Examines the benefits of funding the litigation for the
individual and/or the community
o Means test:
 Assesses a person’s income, assets & potential contributions
Matters that are to be heard in the District Court or the Supreme Court are
prioritised (the lowest priority are summary prosecution and pleas of guilty in
the Magistrates Court)
Problems with Legal Aid:
o Fewer experienced lawyers want to participate in Legal Aid
o More junior lawyers are participating
o In order for a firm to make a sufficient income from Legal Aid work, they
must take on a high volume of work
o As Legal Aid is refused in summary matters, more and more accused are
electing to have a jury trial or plea bargaining towards more serious
charges so that the Legal Aid is more likely to apply
If an accused is refused Legal Aid, they will most likely be self-represented
THE UNREPRESENTED ACCUSED
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Those who are not represented by a lawyer are referred to as ‘unrepresented’,
‘self-represented’ or ‘litigants in person’
A third of the matters in the higher courts are still unrepresented (this makes
the trial longer)
Those who are unrepresented usually are unable to:
o Discuss charges with the prosecution
o Object to particular evidence
o Ensure that certain evidence is put before the court
o Conduct cross-examination of prosecution witnesses
Having legal representation is an advantage to the accused
The role of the judge changes when the accused is unrepresented  the judge
should provide information and advice to an unrepresented accused as
necessary (MacPherson)
o The judge should not go too far so that they are effectively the accused’s
lawyer  should not investigate facts or direct the accused’s defence
o The Equal Treatment Bench Book contains directions that a judge should
given to an unrepresented accused
McKenzie friend:
o McKenzie friend = someone who assists the unrepresented person in
court. This person does not actually represent the accused and cannot
address the court unless they are invited to by the judge or magistrate
(McKenzie v McKenzie)
55
o
o
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It is up to the judge’s discretion whether to allow a McKenzie friend 
a judge can refuse to allow a McKenzie friend if they are satisfied that
fairness and the interests of justice do not require an unrepresented
litigant to have the assistance of a McKenzie friend (R v Bow County
Court; Ex parte Pelling)
A McKenzie friend is more likely to be allowed if:
 The matter is complex
 The accused has some difficulty (e.g. language difficulties)
 The matter is heard in a lower court
Amicus curiae ( or a friend of the court)
o An amicus curiae is not the same as a McKenzie friend
o Amicus curiae = an independent person who seeks permission to
intervene in a case in which they are acting neither for the prosecution
or the accused (Levy v VIC)
o An amicus curiae will either:
 Present information to the court
 Present their own point of view or that of an organisation
 Present specialist views
o It is up to the judge’s discretion whether to hear from an amicus curiae
 More likely to allow an amicus curiae in cases where there are
important legal principles at stake
56
CONSIDERATIONS UNDERLYING SENTENCING
WHAT IS PUNISHMENT?
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There are different views as to what punishment is:
Hart stated that there are five elements of punishment:
o It must involve pain or consequences that are generally considered
unpleasant
o It must be for an offence against legal rules
o It must be of an actual or supposed offender (someone should not be
punished on the offender’s behalf)
o It must not be administered by the offender
o It must be imposed and administered by a legal authority against
which the action was an offence (i.e. the State)
Wilson stated that punishment should be a setback to a persons interests
Difficulties:
o Some people who are ‘institutionalised’ may not view imprisonment as
unpleasant
o Some groups view imprisonment as a ritual
o Is prison life unpleasant enough?
o Not all unpleasant things are punishments (e.g. taxes)
Punishment is a symbolic response to crime
Some view punishment as a normalising tool (trying to normalise individuals
so that they come back to the community as ‘normal people’) – rehabilitation
INFLUENCE OF THE COMMUNITY, POLITICS AND MEDIA ON SENTENCING
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Sentencing is the most public aspect of the criminal justice process
The community, politicians and the media have strong views on sentencing
The media has played an increasingly important role in punishment (some view
this as good, others view it as bad)
It is stated that ‘the media creates the ‘bark’ but does not influence the ‘bite’’
 this means that while the media can run a campaign to influence or increase
penalties, the discretion still lies with the judge
o E.g. the media may push for the mandatory penalty of an offence to
increase; however, when sentencing, the judge has a discretion as to
whether to award the maximum penalty or not
Community perceptions regarding sentencing are not static
THE SENTENCE HEARING
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Key legislation = Penalties and Sentencing Act 1992 (Qld) (PSA)
Before a sentence hearing occurs, there must either be a plea of guilty or a trial
with a finding that the accused is guilty
57
If the offender pleads guilty, the sentence hearing will usually occur
immediately
o If the offender is found guilty after a trial, the sentence hearing is usually
adjourned to allow the prosecution and defence prepare
Procedure:
o Allocutus – The judge asks the accused if there is any reasons why they
should not be punished (s648)
o A pre-sentence report prepared by an officer may be presented to the
Court (s15 PSA)
 The officer will interview relevant people and look at the
characteristics of the offender. The report will make
recommendations about punishment. The Court is not bound
by the report.
 The pre-sentence report tends to be kind to the offender
o Prosecution views – the prosecution will present their views about
sentencing to the judge
 The prosecution’s view should be limited to facts (R v Ku et al)
 The prosecution is required to ask the victims what they are
hoping for in terms of punishment and consider this when
forming their view (s15 Victims of Crime Assistance Act 2009)
o Defence views – the defence will present their views about sentencing
to the judge in order to try and reduce the sentence
o Judge determines the sentence – sentencing is at the judge’s discretion
 Usually, the prosecution and defence’s view and facts that they
want to rely on will conflict. If the views conflict, the judge must
be satisfied on the balance of probabilities as to which version is
true (s132C Evidence Act)
 If the views do not conflict, the judge must accept the view (this
view must be based on facts consisted with jury findings)
o Reasons – a judge is not obliged to give reasons for their decision;
however, they usually do
 Judge’s must give reasons for punishments involving
imprisonment or suspended imprisonment; however, a sentence
won’t be invalidated if a judge fails to give reasons (s10 PSA)
A judge must avoid any actual or appearance of bias
o A judge should avoid any emotive remarks (Porter)
o
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JUDICIAL DISCRETION
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Sentencing judge’s and magistrates have a wide discretion
Sentences are determined through instinctive synthesis not a stage process
(Markarian)
o Staged Process = a step-by-step process; there is an appropriate
punishment for a certain offence and then the judge will add and
subtract from that penalty depending on the circumstances
 This approach may be appropriate in some minor matters
58
Instinctive Synthesis = the judge will look at all the factors together
and decide on an appropriate punishment
There are generally no numerical guidelines to assist the judge
The judge will look at the collection of judgments when determining the range
of the penalty (Pesnak)
Courts are reluctant to consider statistics when determining the punishment
(Wong; Markarian)
The judge must consider the totality of the punishment  in total, is the
overall, aggregate sentence just and appropriate?
o The penalty should not be crushing – even the most heinous criminals
should be given the opportunity to be released into the community
(Schmidt)
o Assumption that imprisonment sentences are served concurrently (i.e.
the offender will serve the highest sentence) (s155 PSA)
 Exceptions – if the offender commits an offence while already
serving a period of imprisonment, the sentence will be added on
(cumulative) (ss156, 156A PSA)
o The judge must consider the remand period (period that the offender
was held in custody before convicted) (s159A PSA)
o Two different types of penalties may be awarded (e.g. a fine and
community service)
Statutory limitations:
o A judge cannot impose a punishment that is beyond the maximum
penalty
 A maximum penalty is reserved for the worst category of case
(Veen No. 2; Fernando))
 If a more heinous situation is imaginable, the maximum penalty
may still be appropriate (Veen No. 2)
 When determining whether the maximum penalty is appropriate,
the judge must consider:
 The offence (seriousness)
 The offender’s criminal history
 The risk factor (whether offender is likely to re-offend)
o Some offences involve a minimum penalty (e.g. traffic offences)
o If an offence has a mandatory penalty, the judge must impose this (e.g.
murder has a mandatory penalty of life imprisonment)
o Must impose higher penalties for aggravated versions of an offence
Parity (co-offenders receiving similar sentences) is important for consistency
but not necessary
o Co-offenders will have different criminal histories, a different role in the
crime, etc (s13 PSA) (R v Crossley; Wahby v The Queen)
o If one person pleaded guilty and the other pleaded innocent but was
found guilty, they can receive different penalties (McQuire & Porter)
Age is an important factor when determining the sentence (R v Ku et al)
Consistency is important to ensure fairness and public confidence (s3(c) PSA)
o
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o
It is impossible to have absolute consistency due to different
circumstances (Wong)
AIMS OF PUNISHMENT
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s9(2) PSA discusses the aims of punishment
There are many different considerations that must be reconciled when
determining an appropriate punishment (stated in s9(1) PSA)
o These considerations are guideposts that point in different directions
o More than one consideration may be relevant in a certain case
The court is not a place to dispose of social problems (Clarke; Dooley v Polzin)
Punishment is not about vengeance (try to limit the involvement of victims)
The different aims of punishment are:
o Just punishment (s9(1)(a) PSA)
 Underlying trend  the offender ‘gets what they deserve’
(punishment should fit the crime)
 Punishment should be proportionate to the crime committed in
the context (Veen No.1 and Veen No.2)
o Rehabilitation (s9(1)(b) PSA)
 Punishment can be used as a form of treatment  focussed on
changing the behaviours and attitudes of the individual
offender
 This aim is focussed on youth as youth are more open to change
and rehabilitation (Taylor v Napatali)
 Also a focus on first time offenders
 E.g. community service, attending therapy programs
o Deterrence
 Looking to the future – prevent future offending
 An attempt to make the costs of offending outweigh the
benefits (assumes that people make rational decisions when
deciding whether to commit crime or not)
 Special/Specific Deterrence (s9(1)(c) PSA)
 A focus on the individual offender and aiming to deter
them from offending in the future
 Doubts as to whether it works or not (probably more
useful if the offender is a first time offender)
 E.g. good behaviour bonds, suspended sentences
 General Deterrence (s9(1)(c) PSA)
 A focus on the society/group as a whole and aiming to
deter them from offending
 Argument: if you give one offender a harsh penalty,
this will deter others from committing the same
offence
 Focus on offences that are a large problem in society
(e.g. Amituani – drunk, young men starting fights;
60
o
o
Pangalio – bribery in the legal profession; Sabanovic –
perjury)
Denunciation (s9(1)(d) PSA)
 The penalty should convey a message to the offender and the
community that the behaviour is wrong (R v Ku et al –
denouncing violence against women)
 There is a connection between denunciation and general
deterrence
To protect the community (s9(1)(e) PSA)
 Penalties can protect the community from further harm 
usually focussed on incapacitating the offender in some way
 Focussed on keeping dangerous offenders (especially violent or
sexual offenders) in prison so that they cannot jury anybody
 E.g. imprisonment, home detention, electronic monitoring,
curfews, disqualification, etc
 Need to assess the likelihood of the offender re-offending
 There is a relationship to just punishment (Veen No.2)
 Protecting the community can be linked to rehabilitative
programs
FACTORS
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There are two types of factors:
o Aggravating factors – increase culpability/sentence
o Mitigating factors – decrease culpability/sentence
Aggravating factors and mitigating factors must be balanced (Colless)
If the prosecution or defence does not raise a certain factor but the Court is
considering it, the Court must let the parties know so that they can address it (R
v Lui)
The Court is allowed to take into account ex-curial punishment (extra
consequences such as losing a job) (R v Hannigan)
s9(2) PSA lists a number of factors that the Court must consider when
determining the appropriate punishment

The offender’s character is a relevant factor (s9(2)(f) PSA; s11 PSA)
o Good character = no/few prior convictions or no prior convictions of that
nature
o With all else being equal, a person convicted of prior offences will
receive a higher sentence than a person with no prior convictions
o General community perception of an individual is important (Ryan)

Age is a relevant factor (s9(2)(f) PSA)
o A young offender is more likely to get a reduced sentence as they are
more likely to change (Taylor & Napatali)
o Old age is also a relevant factor but will only reduce a sentence if
associated with an illness (Gulyas; Sopher)
61

Intellectual capacity is a relevant factor (s9(2)(f) PSA)
o Reduced intellectual capacity is likely to reduce the offender’s culpability
o It is not appropriate to use a person suffering a mental illness as a model
of general deterrence; this person cannot be rehabilitated and special
deterrence may not work.
o There is a large risk that they will re-offend; however, it is important that
there is not a disproportionate sentence by focussing too heavily on
community protection (Verdins)

Damage/injury/loss suffered is a relevant factor (s9(2)(e) PSA)
o A victim impact statement can help determine loss (s15 VoCAA)  the
court must be careful not to just accept the statement as they cannot be
cross-examined and there are no reports to justify the statement

Co-operation with authorities (s9(2)(i) PSA)
o Actual co-operation (e.g. full admission, a guilty plea, providing
evidence, submitting to necessary procedures) is regarded as a
mitigating factor (York)
o Promise assistance - when an offender promises assistance if they get a
lower penalty may be allowed to reduce the sentence (s13A PSA)
 The court will award a reduced sentence but must also state
what the sentence will be if they don’t provide assistance.
 There needs to be a worthwhile and discernible discount
(Webber)

Cultural background
o The Court may take into account an offender’s membership of a cultural
group when imposing a sentence (Neal)
o Can reduce a penalty if the person has to travel very far to go to prison
(often the case with Indigenous people)

Impact on self and others
o Need to consider the impact of a particular penalty on the individual
(York – death threats from inside prison)
o Need to also consider the impact of a particular penalty on others
(especially the children of the offender) (Tilley; Burns)
o Just because an offenders children will be effectively orphaned if the
offender is imprisoned, this does not mean that imprisonment will not be
imposed  the circumstances must be exceptional

Preference for community-based sentences
o Generally, a sentence of imprisonment should be a sentence of last
resort. Sentences that allow the offender to remain their community
should be preferred
o Why?
62
The impact of imprisonment is very severe – loss of employment,
disconnection from family and social support networks
 Research shows that the likelihood of re-offending increases
once a person has been incarcerated
Exceptions to when imprisonment is a last resort:
 When sentencing violent offenders (ss9(3), 9(4) PSA)
 When sentencing sexual offences committed in relation to
children under 16 years (ss9(5), 9(6) PSA)
 When sentencing an offender charged with certain specified
offences associated with computer games and images (ss9(6A),
9(6B) PSA)
What constitutes ‘violent’?
 A broad interpretation has been applied  “The expression
“violence” has now acquired what might be called resonances
which have perhaps broadened its meaning. In some contexts it
seems to be used as descriptively of any act, whether violent in the
ordinary sense or not, to which the user of the word strongly
objects.” (R v Breeze)
 Threats made to intimidate a person are also considered as
‘violent’ (R v Butcher)
What constitutes ‘sexual’?
 A broad interpretation has also been applied
 Held that if the intention was to commit a sexual offence in
relation to children under 16 years but then this did not
eventuate, this will amount to sexual (R v McGrath)

o
o
o
63
PUNISHMENT AND PENALTY
LEVELS OF PENALTY
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Penalty options for adults are set out in the Penalties and Sentences Act 1992
(Qld)
Three levels of penalties can be inferred from the PSA (does not explicitly state)
In most cases, the range of penalties listed in the Act are available for
consideration by the sentencing court  what is an appropriate sentence will
depend on the circumstances of the offence and the offender and other matters
Lower level penalty:
o Conviction not recorded/ Conviction recorded (s12 PSA)
o Bond/Recognaisance (Part 3 PSA)
o Fines (Part 4 PSA)
Intermediate level penalty:
o Conviction not recorded/Conviction recorded (s 12 PSA)
o Community Service Orders (CSO) (Part 5 PSA)
o Probation (Part 5 PSA)
Higher level penalty:
o Conviction always recorded
o Intensive Correction Order (ICO) (Part 6 PSA)
o Suspended Sentence of Imprisonment (Part 6 PSA)
o Imprisonment (Part 9 PSA)
o Serious Violent Offenders (Part 9A PSA)
o Repeat Child Sex Offenders (Part 9B PSA)
o Indefinite Imprisonment (Part 10 PSA)
RECORDING A CONVICTION
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Recording a conviction can be a penalty in itself
For lower or intermediate level penalties, recording a conviction is optional
o For higher level penalties, a conviction MUST be recorded
A conviction can be very detrimental  offenders won’t want a conviction
recorded as it will affect future job prospects (especially in the legal profession)
o Even if a conviction is not recorded, the Court or police may still become
aware of this if the offender re-offends  no recorded conviction just
means that the offender is not required to disclose their offending to
prospective employers
 Some new legislation tries to get around this and, rather than
focussing on the conviction, focus on whether the person has
ever gone before a court (e.g. in relation to obtaining a Blue Card)
When deciding whether to record a conviction or not, the Court must consider
(s12 PSA):
o The nature of the offence
o The character and age of the offender
64
The impact of recording a conviction on the offender’s
social/economic well-being and chance of future employment
 None of these factor have predominance – should be balances (R
v Brown)
Other factors that can be considered (R v Briese):
o Whether violence was used and, if so, to what extent
o Whether there was exploitation or abuse of trust
o Whether there was economic loss to victims
o The propensity or risk of re-offending
o The seriousness of the offence
If an offence is ‘trivial’ or victimless or the offender has no, or only a few, prior
conviction, it is less likely that a conviction will be recorded
o When considering whether an offence is ‘trivial’, the Court will consider
the conduct of the accused, the circumstances of the offence and
relevant legislation (Walden v Hensler)
An offender may appeal a sentence on the basis that a conviction was recorded
(and nothing else) (e.g. R v Ndizeye – was successful in the appeal as the Court
found that recording a conviction impacted his employment prospects)
The public has the right to know of some convictions (e.g. sexual offences,
violent offences, fraud, etc) (R v Briese)
o In regards to sexual offences, there is an assumption that a conviction
will be recorded unless there are exceptional circumstances (R v SAT)
 Factors to consider when determining whether a conviction
should be recorded in sexual offence matters = pre-meditation,
actual contact, guilty plea, employment and community service,
rehab prospects and the impact of conviction (R v Mirza)
o
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RELEASE
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Covered in Part 3 PSA – Bond/Recognaisance
In some circumstances, the Court may decide to release the offender absolutely
or release the offender on conditions
s19 bond = ‘admonish and discharge’ (no further requirement)
OR a good
behaviour bond
o A conviction will not be recorded (s16 PSA)
A good behaviour bond will usually be for 12 months (maximum of 3 years)
If a person misbehaves on a good behaviour bond, the person will be brought
back to court and resentenced for the original offence
Bonds are more likely to be awarded for minor offences/first time offenders
o Can be used in relation to more serious offences alongside other
penalties
Recognaisance = the offender will be indebted to the Court for a sum of money.
This debt will be extinguished if the offender remains well-behaved until the end
of the order. The money may be forfeited if the offender breaches the
recognaisance
65
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Relevant considerations (s18 PSA):
o Age, character, health and mental conditions of the offender
o Circumstances of the offence
o Nature of the offence (trivial?)
o Anything else that is relevant
A bond can include a surety  creates more of an incentive not to misbehave
There are other types of bonds which allows a conviction to be recorded (ss2933) – there are similar considerations
OTHER MINOR PENALTIES
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Restitution – goods are returned
Compensation – money is paid to the victim to compensate for some
damage or loss
Restitution and compensation are different (R v Ferrari)
Restitution and compensation are not penalties in themselves – they are
additional to other penalties (R v Civoniceva)
If a victim received money under the PSA to compensate for loss, they cannot
claim money under civil remedies of victim of crime legislation; thus, this is not a
popular option
FINES
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Covered in Part 4 PSA
Fines are the most common penalty (over 70% of cases)
Fine = an amount of money that is usually paid into State revenue
A conviction does not have to be recorded (a lot of people are happy to pay a fine
over a conviction) (s44 PSA)
A fine cane be applied to the offender without any consent/assessment
A fine can be imposed alongside another penalty (s45 PSA)
Penalty unit = $110 (most offences will specify the maximum number of
penalty units that a fine can be for an offence)
When determining the amount of a fine, the financial circumstances of the
offender and the burden the fine would have on the offender can be taken into
account  this means that a rich person may receive a higher fine than a poor
person for the exact same offence (Woolard v Ellis; s48 PSA)
o This is unfair but punishment is supposed to affect the accused (so a rich
person would need a harsher fine to be affected)
When determining the amount of a fine, the Court should not take into account
the compulsory court levy
It is possible to appeal against the amount of a fine (R v Meid; R v Prentice)
The court should not convert a community service order into the relevant fine
amount (R v Meid)
Fines may be difficult to collect
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PROBATION
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Covered in Part 5 PSA
This is an intermediate level penalty – for serious first offences or offenders who
have already committed a minor offence
Probation is a post 1970’s invention to assist rehabilitation Probation = the
offender will enter into a bond for a specific period of time. During this
period, the offender will be required to report to an authorised officer,
must not commit another offence and must take part in counselling and
programs as directed
A conviction may or may not be recorded (s90 PSA)
o However, the offence must be punishable by imprisonment
There must be consent from the individual that it is suitable (s96 PSA)
An offender will usually be ordered to undertake some activity (e.g. anger
management programs, work programs, rehabilitation, counselling, etc)  there
is discretion as to what should be ordered (ss93, 94)
Two different types of probation (s92 PSA)
o The offender is immediately released under the supervision of a
corrective service officer (probation period must be between 6 months
and 3 years)
o The offender serves a period of imprisonment of no longer than one
year, to be released under the supervision of a corrective service officer
at the end of the imprisonment term (probation period must between 9
months and 3 years)
The Court can make a single probation order for a group of offences (s97 PSA)
A probation order can go between 6 months to 3 years (s92 PSA)
Can be imposed with another penalty
Probation can be imposed alongside:
o Imprisonment up to 12 months with probation after release
o With a suspended sentence on other offences
o Cannot have a suspended sentence and probation on same offence
o Cannot imposed it alongside an intensive correction order (inconsistent
with probation which is supposed to be community based
COMMUNITY SERVICE ORDER
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Covered in Part 5 PSA
This is an intermediate level penalty where the offender has some prospect for
rehabilitation
Community service order = the offender is required to carry out unpaid
work for a specific number of hours (s102 PSA)
A conviction may or may not be recorded (s100 PSA)
Time (over a 1 year period):
o Minimum = 40 hours
67
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o Maximum = 240 hours
A CSO involves various conditions, reporting and unpaid work (s103 PSA)
The Court must be satisfied that the offender is a suitable person to perform the
community service order
It is possible to tailor a CSO to suit the offending pattern or needs of the accused
(e.g. if an offender is convicted of graffiti-ing, an appropriate CSO might be to
make them clear graffiti)
A CSO should not be translated into loss of wages/fine (Nieto v Mill)
What can a CSO be imposed with?
o A CSO and suspended sentence can be imposed together for different
offences that have occurred at the same time (R v Vincent)
o A CSO can be imposed with probation (R v Mathers) (s 109 PSA)
o A CSO and ICO cannot be imposed together (R v Grieg)
INTENSIVE CORRECTION ORDER
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Covered in Part 6 PSA
Essentially a home detention order
Ann ICO will have very different implications for the offender depending on the
kind of accommodation one has access to (e.g. mansion vs one-bedroom
apartment)  this is an important consideration
An ICO requires a conviction (s111 PSA)
The accused must consent to an ICO (s117 PSA)
For an ICO to be imposed, the Court must find that the person is deserving of
a period of imprisonment and that an ICO is an appropriate alternative to
imprisonment (s112 PSA) (Tran)
o An ICO is not an alternative to probation
Conditions can be imposed on the ICO (s114 PSA)
o E.g. the offender can be ordered to report to the police station, perform
unpaid work, receive counselling, etc
If the offender breaches their ICO half way through  they will go back to
Court for resentencing of the original offence
o The offender will be treated as if they have served a period of
imprisonment
An ICO cannot be imposed alongside probation or a CSO (Hood) – Probation and
a CSO are community based penalties; and ICO is a form of imprisonment
SUSPENDED SENTENCE
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Covered in Part 6 PSA
A suspended sentence is a high level penalty – but nothing actually happens
(there are concerns about this)
68
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Suspended sentence = a person will be sentenced to a period of
imprisonment that only becomes activated if the offender re-offends
during the period of the suspension
If a suspended sentence is imposed, a conviction must be recorded (s143 PSA)
Maximum period of 5 years (s144 PSA)
o A sentence can be partially suspended/partially served
When determining whether a suspended sentence is appropriate, there are two
questions that the Court must ask:
o 1. Is imprisonment is appropriate in the circumstances?
o 2. Is suspension appropriate in the circumstances?
When is it appropriate to suspend? When there are prospects of rehabilitation,
low likelihood of re-offending, imprisonment has too large of an impact on the
offender, etc (Dinsdale)
o Also for the safety of the offender (York)
What happens if there is a breach of a suspended sentence (i.e. the offender
commits an offence during the suspended sentence) ? (ss145, 146, 147 PSA)
o Some authority is that the offender should serve the remainder of the
sentence in prison – (Holcroft)
o However, it is flexible  the Court must consider the nature of the reoffence (Hurst) and efforts made by the offender to rehabilitate (Stevens)
 Summarised in Summerlin – the Court must consider the nature
of the offence, rehabilitation and how far into the suspended
sentence the offender got without offending.
IMPRISONMENT
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Covered in Part 9 PSA
Higher level penalty
Imprisonment is very expensive – approx. $275 per day, per prisoner
There are risks associated with imprisonment (an offender may not be safe in
prison (York); higher risk of re-offending upon release; offenders learn skills and
make new contacts in prison which makes re-offending easier )
Must record a conviction – (s152 PSA)
Generally prison sentences are served concurrently (155 PSA)
o Prison sentences may be served cumulatively (s156 PSA); in some
cases, sentences must be served cumulatively (s156A PSA - e.g.
committing offences while in prison)
Can deduct remand periods from sentence length (s159A PSA)
There may be a minimum mandatory penalty (e.g. murder = 20 years)
o This can be increased (e.g. Sica – 35 years)
Except for certain offences (violent offences, sexual offences involving children
under 16, certain offences involving images of children, imprisonment is a last
resort
The Court must impose separate imprisonment sentences for separate
offences (Crofts) – but they will be served concurrently
69
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Remissions abolished in 2006 (time knocked off the sentence for good behavior
in prison)
o Now there is parole = the offender is released on supervision for the
remainder of the sentence (there is an expectation that a person will
serve a certain period and then will have a parole hearing to decide
whether the person should be released)
SERIOUS VIOLENT OFFENDERS
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Covered in Part 9A PSA
Schedule 1 – list of offences that are serious violent offences (e.g. murder,
manslaughter, attempted murder, rape, etc)
When is a person declared a ‘serious violent offender’?
o If a person commits a listed offence and the offender is sentenced to 10
years imprisonment or more  the Court MUST declare that person
as a ‘serious violent offender’ (s161B(1) PSA)
o If a person commits a listed offence and the offender is sentenced
between 5 and 10 years of imprisonment  the Court MAY declare
that person as a ‘serious violent offender’ (s161B(3) PSA)
 When deciding whether to make a declaration, the Court must
consider the effect on parole, the level of violence involved
and prior convictions (McDougall; Collas)
If declared a ‘serious violent offender’ – the offender must serve at least 80%
of sentence before eligible for parole
REPEAT SERIOUS CHILD SEX OFFENDER
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Covered in Part 9B PSA
Schedule 1A – lists the offences that are serious child sex offences
This involves situations where children under 16 are involved or circumstances
where the offender is liable for life imprisonment (s161D PSA)
Two strikes
If the offender repeats offences, there is mandatory life imprisonment (s161E
PSA)
There is a risk that the offender will just kill the victim (why would they leave
the victim alive if they are going to prison for life) – police don’t like these
provisions
INDEFINITE SENTENCE
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Covered in Part 10 PSA
When there is an offender who is at large risk of re-offending against
victims, will place on an indefinite sentence
o Designed for victim protection – risk assessment
70
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The offender will serve a sentence of imprisonment for a certain period of
time (head sentence). At the end of that time, there will be an assessment as
to whether the person should be released
There must be regular review – (s162 PSA)
Can only be imposed in relation to violent offences – (s162 PSA)
o Violent offence = an indictable offence involving violence against a
person; the offence must also be an offence for which the offender may
be sentenced to life imprisonment (alternatively, it must be a specific
offence pursuant to ss208, 215, 216, 349 and 35 QCC) (s162 PSA)
The prosecution must prove that the offender is a serious danger to the
community – (s163(3)(b) PSA)
o s170 court must be satisfied –
 (a) by acceptable, cogent evidence; and
 (b) to a high degree of probability
that the evidence is of sufficient weight to justify the finding.
There must be exceptional circumstances for an indefinite sentence to be
awarded (Buckley)
Risks – it is hard to predict whether the offender is a future risk
DANGEROUS PRISONERS (SEXUAL OFFENDERS) ACT 2003
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
If a person convicted of a sexual offence is coming up to their release date, the
Attorney-General can make an application for the person to be held in
indefinite detention
This ensures protection of the community
Applied to serious sexual offence (involving a child or violence)
NON-CONTACT ORDERS





Covered in Part 3A PSA
A non-contact order = an order to an offender to not contact victim
Maximum = 2 years
Usually imposed with other penalties
Usually imposed in relation to sexual or violent offences (Gaudry)
71
APPEALS – CONVICTIONS
GENERAL



If convicted of an offence, the accused can appeal against the conviction
and/or the sentence
It is not possible for the prosecution to appeal against acquittals (due to double
jeopardy)  the prosecution can only appeal against the sentences
Courts are often reluctant to overturn a jury verdict
WHERE DO YOU APPEAL?

It will depend on where the initial hearing was heard
o Magistrates Court:
 Appeal to the District Court (s222 Justices Act)

 Court of Appeal (s118 District Court Act & s668D QCC)

 High Court (ss35, 35A Judiciary Act)
o
District/Supreme Court:
 Appeal to the Court of Appeal (s668D QCC)

 High Court (ss35, 35A Judiciary Act)
APPEAL FROM THE MAGISTRATES COURT TO THE DISTRICT COURT






Section 222 Justices Act: 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 This is an “as of right” appeal (do not need to apply for leave to appeal)
‘Feels aggrieved’ – this phrased has been interpreted very broadly
o Includes anyone who has a ‘real or direct interest’  may include the
victim or someone else who has a relationship to the case (but not a
mere ‘busybody’) (McCarthy v Xiong)
Time limit = 1 month (applies to all appeals)
o It is possible to extend time (Tait)
To institute an appeal  a notice of appeal is filed in the District Court registry
stating the ground/s of appeal
If the offender pleaded guilty, they can only appeal against the sentence
(s222(2)(c) Justices Act)
If the offender pleaded not guilty, they can appeal against the conviction,
sentence and/or costs (s222(1) Justices Act)
72
Some exceptions under
 (a) a person may not appeal under this section against a
conviction or order made in a summary way under the
Criminal Code, section 651
 (b) if the order the subject of the proposed appeal is an order of
justices dealing summarily with an indictable offence, a
complainant aggrieved by the decision may appeal under this
section only against sentence or an order for costs
 (c) if a defendant pleads guilty or admits the truth of a
complaint, a person may only appeal under this section on the
sole ground that a fine, penalty, forfeiture or punishment was
excessive or inadequate.
 Courts have tried to get around (c) (e.g. Hall v Bobberman
– the charge was not a charge in law; thus, the accused
could not have pleaded guilty to it; Ajax v Bird – there will
be no guilty plea if the accused’s plea was equivocal or,
upon analysis, amounted to a plea of not guilty)
If the appeal is heard in the District Court, the appellant (even if in custody) is
generally entitled to be present at the hearing (s224A Justices Act)
An appeal is generally a rehearing on the evidence – the Court will look at the
transcript of the original trial (s233 Justices Act)
o There will be a transcript of the recorded proceedings in the Magistrate
Court
o Respect must be afforded to the magistrate’s decision as they had the
advantage of seeing and hearing the witnesses give evidence; however,
the judge is required to review the evidence, weigh up the conflicting
evidence and draw his or her own conclusions (Rowe v Kemper)
o Can only bring in new/fresh evidence if there are special grounds
What can an appeal judge do after hearing the appeal? (s225 Justices Act)
o (1) On the hearing of an appeal, the judge may confirm, set aside or
vary the appealed order or make any other order in the matter the
judge considers just
o (2) … judge may send the proceeding back …directions for rehearing
or reconsideration
 If a judge orders a retrial, it is ultimately at the prosecution’s
discretion as to whether a retrial is actually conducted
Costs – the judge may make an order to award costs (s226 Justices Act)
o Costs must be just (Murray v Radford)
o





A judgment originally from the Magistrates Court can be appealed to the Court of
Appeal; HOWEVER, the appellant needs to be granted leave to appeal from the
Court of Appeal (s118 District Court Act)
o Whether or not leave is granted will depend in the significance of the
issue
73

Attorney-General Appeals from the Magistrate Court
o If the Attorney-General appeals a judgment in the Magistrates Court, the
appeal goes straight to the Court of Appeal (s669A(1) QCC)
o This means that the accused loses a prospect of appeal (in the District
Court)
o What can the Attorney-General appeal against?
 A sentence for an indictable offence dealt with summarily
o The Attorney-General can refer a point of law to the Court of Appeal
for clarification (s227 Justices Act; Harrison v Wilkins)
 A trial judge can also refer a point of law arising at trial to the
Court of Appeal (s668B QCC; R v Kaporonowski)
APPEAL FROM DISTRICT/SUPREME COURT



Appeals from the District of Supreme Court are heard in the Court of Appeal
(s668D QCC)
o Three judges usually sit on the Court of Appeal
 If it is a very important matter, fives judges will sit
What can the offender (not just ‘a person aggrieved’) appeal against?
o The offender has the right to (appeal is “as of right”) against a
conviction on a matter of law alone (s668D(1)(a) QCC; Fitzgerald)
o If the offender wants to appeal against law AND fact or fact alone, they
must get leave to appeal (s668D(1)(b), (c) QCC; R v Zischke)
o The fact/law distinction is not always clear:
 Question of fact  to be decided by a jury (or magistrate in
Magistrates Court)
 Question of law  to be decided by a judge (or magistrate in
Magistrates Court)
Time limits: (s671 QCC)
o 671 QCC: Time for appealing
 (1) Any person convicted desiring to appeal to the Court, or to
obtain the leave of the Court to appeal from any conviction or
sentence, shall give notice of appeal or notice of application for
leave to appeal, in the prescribed manner, within 1 calendar
month of the date of such conviction or sentence …
 (3) The time …may be extended at any time by the Court
o When can time be extended? (s671 (3) QCC)
 Time may be extended if there is a good reason for the delay,
viability and if it is in the interest of justice (Tait)
 The strength of the appeal and prospect of success is a relevant
factor (R v Riley)
 If there is some strength, an extension will usually be
granted
 The characteristics of the accused are also relevant factor (e.g.
age, IQ, disabilities, etc) (R v Hatten)
74




An appellant is generally entitled to be present at the hearing
o However, legally represented appellants commonly do not appear in
person in the Court of Appeal
The Court of Appeal will usually examine the transcript
o Fresh evidence may be admitted in certain cases (s671B QCC)
 Requirements to allow the admission of fresh evidence
(Mickelberg):
 Is it fresh? (new – not available at the original hearing)
 Would it have made a difference?
o “In essence, the fresh evidence must be such that,
when viewed in combination with the evidence
given at trial, it can be said that the jury would
have been likely to entertain a reasonable doubt
about the guilt of the accused if all the evidence
had been before it …. or, if there be a practical
difference, that there is a significant possibility that
the jury, acting reasonably, would have acquitted
the accused.
 Fresh = not available at the original trial with reasonable
diligence of the parties (R v A)
 Fresh evidence must be credible in order to be allowed
(Gallagher v The Queen)
What can an appeal judge do after hearing the appeal?
o If an appeal against conviction is upheld, the court must quash the
conviction and direct a verdict of acquittal to be entered (s668E(2))
o The Court has the power to order a new trial where it considered there
has been a miscarriage of justice that would be best addressed by a
retrial
No costs can be awarded on any appeal to the Court of Appeal (s671 QCC)
GROUNDS OF APPEAL AGAINST CONVICTION

s668E(1) QCC: The Court on any such appeal against conviction shall allow
the appeal if it is of opinion that 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, or that the judgment of the court of trial should be set aside on the
ground of the wrong decision of any question of law, or that on any ground
whatsoever there was a miscarriage of justice, and in any other case shall
dismiss the appeal

Unreasonable/Cannot be supported by evidence:
o Often referred to as cases of an “unsafe and unsatisfactory verdict”
o The test to ask is whether on consideration of all the evidence “it was
open to the jury to be satisfied beyond reasonable doubt that the
accused was guilty” (M v The Queen)
75
o
o
o
o
The jury has the advantage of hearing and seeing all of the evidence;
however, it is possible for the CoA to examine the transcript to see if it
displays inaccuracies, lacks probative force or is tainted in some way (M)
Subsequent approach in MFA v The Queen – the key question is whether
the verdict is “unreasonable or cannot be supported having regard to
the evidence”
 It is possible for the jury to convict the offender of some but not
all of the offences charged against the offender (MFA)
Insufficient evidence to support a prosecution’s contention can lead to a
quash of the conviction and a acquittal verdict (R v Hanson; R v Ettridge)
It has been accepted that in some cases a verdict might be “unsafe: but
not fall within this criteria  verdict should be set aside on the basis of a
miscarriage of justice

Wrong in law:
o An appellant can appeal against a conviction if some error of law has
been made (Nicholls; Ridgeway – the judge rules a piece of evidence
admissible when, as a matter of law, it is inadmssible; FIngleton – cannot
charge a magistrate; Bardsley – incorrect interpretation of statute)
o Others – misdirection of the jury on the onus or standard or poof; failing
to leave a defence open on the evidence to the jury, etc

Miscarriage of justice
o A “catch-all” provision
o An appellant can appeal against a conviction if there is a miscarriage of
justice – either actual unfairness or perceived unfairness (Festa; Svabo)
o A broad approach is taken (e.g. allow appeals based on the appearance of
a miscarriage of justice)
THE PROVISO




s668E(1A) QCC – “However, the Court may, notwithstanding that it is of the
opinion that the point or points raised by the appeal might be decided in favour of
the appellant, dismiss the appeal if it considers that no substantial miscarriage
of justice has actually occurred.”
Key question: Has a substantial miscarriage of justice occurred? (Weiss)
For an appeal to be successful, there must be a loss of a real chance of
acquittal (Festa)
Bypassing the proviso: fundamental error
o If the Appellate Court can say without a blemish that an appropriately
instructed jury, acting reasonably, at trial would have inevitably
convicted the Appellant, the conviction MUST be set aside (Wilde)
 The Appellate Court is to decide this by assessing the evidence
 An Appellate Court cannot be satisfied that no substantial
miscarriage of justice has actually occurred unless it is satisfied
76
o
beyond a reasonable doubt that the Appellant is guilty of the
offence (R v Navarolli)
There may be some errors or miscarriages of justice which amount to
such a serious breach of the presuppositions of the trial as to deny
the application of the proviso (regardless of the strength of the
prosecution’s case)
 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.”
 There is no rigid formula as to what amount to a
fundamental error and each case must be determined on
its own circumstances
WHAT HAPPENS NEXT





If an appeal is allowed, the Court has a number of options:
o Quash the conviction and order a retrial (s669 QCC)
o Quash the conviction and acquit (s668E(2) QCC)
o If the Court finds that some convictions are correct and some are
incorrect  a substitute sentence can be imposed (s668F QCC)
The Court’s power to order a retrial is discretionary
o Two steps (Fowler):
 Is the evidence cogent (clear, logical, convincing)? If yes 
 Is it just to order a retrial?
 Balance the public interest in the administration of
justice and the interests of the individual
 Need to consider the time the Appellant has spent in
custody, the seriousness of the offence, prejudice,
interests of justice, etc)
o The prosecution should also consider anxiety, expense and burden on
the public (R v Taufahema)
If a retrial is ordered, this does not necessarily mean that a retrial will occur – it
is at the prosecution’s discretion
A retrial means a full new trial
o The parties are not bound by ruling of earlier cases (Cornwell v R)
o There will usually only be one retrial (Jackson)
When a party appeals, they prepare an ‘outline of argument’ which covers all of
the relevant matters in one document (time, leave, fresh evidence, grounds, the
proviso, what should happen next)
77
APPEALS – SENTENCING
GENERAL

If convicted of an offence, the accused can appeal against the conviction
and/or the sentence
APPEAL AGAINST SENTENCE IN THE MAGISTRATES COURT





Either the defendant, the prosecution or the Attorney-General can appeal against
a sentence imposed in the Magistrates Court
o The relevant section (s222(1) Justices Act uses the phrase “if a person feel
aggrieved as complainant, defendant or otherwise”)
The House principles (discussed below) applies to appeals of sentences from
the Magistrate Court (JRB v Bird)
Defendant:
o If the defendant appeals the sentence, the appeal is heard in the District
Court (s222 Justices Act)
o If the defendant pleads not guilty (s222(1) Justices Act applies)
o If the defendant pleads guilty (s222 Justices Act applies – states that if the
defendant pleads guilty, they can only appeal on the ground that ‘a fine,
penalty, forfeiture or punishment was excessive or inadequate’)
Police Officer (complainant):
o A police officer can appeal against a sentence (s222(1) Justices Act)
Attorney-General:
o An Attorney-General can appeal against the sentence of an indictable
offence that is determined summarily (s669A(1)(b) QCC)
o The appeal will automatically go to the Court of Appeal
 If the defendant is also appealing against the sentence, their
appeal is also held in the Court of Appeal
DEFENDANT APPEALS AGAINST SENTENCING IN THE DISTRICT/SUPREME
COURT



If a defendant wants to appeal against a sentence imposed in the District Court
or the Supreme Court, their appeal will be heard in the Court of Appeal
When appealing against a sentence, the defendant MUST obtain leave of the
court to appeal (s668D QCC)
o This is different to the rules in relation to appeals against conviction
(thus, the two appeals must be dealt with separately)
A defendant will usually appeal a sentence on the basis that it is ‘manifestly
excessive’
o In order to reduce a sentence, the CoA must be satisfied that the
sentence is ‘manifestly excessive’  it is not enough that the appellate
judge would have awarded a different sentence in the
78



circumstances. It is important to remember that the original sentencing
judge heard and saw all of the evidence (Skinner)
o The prosecution/Attorney-General will appeal on the basis that the
sentence is ‘manifestly inadequate’
What can the CoA do upon hearing the sentencing appeal?
o “On an appeal against a sentence, the Court, if it is of the opinion that some
other sentence, whether more or less severe, is warranted in law and
should have been passed, shall quash the sentence and pass such other
sentence in substitution therefor, and in any other shall dismiss the
appeal.” (s668E(3)QCC)
If the CoA intends to increase the sentence, they MUST give the defendant
an opportunity to withdraw their appeal (Neal)
o It is generally unheard of for the CoA to increase a sentence without an
appeal by the prosecution or the Attorney-General to do so
o The CoA only has to warn the defendant if they intend to increase the
sentence; do not have to advise the defendant if they intend to uphold or
reduce the sentence (Shepphard)
The CoA must apply the House principles (House)
o In order for a sentence to be reduced, is it not enough for the
defendant to claim that the sentence was ‘manifestly excessive’. The
defendant must be able to point to some error of the original
sentencing judge (some important issue of principle). Errors can
include:
 Some error in exercising discretion
 Wrong principles applied
 Mistakes of facts
 Extraneous or irrelevant matters taken into consideration
 Failure to take into account some material consideration
 Acted unreasonably or plainly unjust (a ‘catch-all’ provision)
ATTORNEY-GENERAL
APPEALS
DISTRICT/SUPREME COURT


AGAINST
SENTENCING
IN
THE
Key provision which deal with Attorney-General appeals against sentences
imposed in the District or Supreme Court in s669A QCC
o (1) The Attorney-General may appeal to the Court against any sentence
pronounced by –
 the court of trial; or
 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.
The words ‘unfettered discretion’ are very important
o What does ‘unfettered discretion’ mean? Does the House principle still
apply?
 Different views:
79


Melano and Katia says that the House principles still
apply
York said the House principles don’t apply as ‘unfettered
discretion’ means fully unfettered discretion
Key case: Lacey – the House principles still apply to AttorneyGeneral appeals to the CoA. The word ‘unfettered’ relates to the
new sentence that the CoA can impose; not in relation to appeals
that the CoA can allow (the Attorney-General must demonstrate
that the original sentencing judge made an error)
 Upheld in R v Major; ex parte A-G (Qld)
Other Attorney-General matters:
o Can order/appeal a stay of proceedings (s669A(1A); Ferguson)
o Can refer a point of law that has arisen at trial for clarification (s669A(2),
(2A); R v Folling; ex parte A-G)
Attorney-General appeals should be a ‘rarity’ and should only be brought to
determine matters of principle (not just to receiver a higher penalty)
(Griffiths)



ROYAL PREROGATIVE OF MERCY





The royal prerogative of mercy exists at common law
The QCC does not affect the royal prerogative of mercy (s18 QCC)
This will usually be exercised when all avenues of appeal are exhausted
There are many different option:
o Can grant a free and unconditional pardon
o Grant a conditional pardon
o Remission/Partial remission of a sentence
o Order an inquiry
The case will usually be sent back to the CoA for re-determination
EXECUTIVE PARDON

Constitution of Queensland
o 36. Power of Governor – relief for offender
 (1) This section does not limit the operation of another Act.
 (2) In relation to an offence against a law of the State, the
Governor may grant the offender, in the name and on behalf of
the Sovereign –
 (a) a pardon, a commutation of sentence or a reprieve of
execution of sentence for a period the Governor
considers appropriate; or
 (b) a remission of a fine, penalty, forfeiture or other
consequence of conviction of the offender.
80
(3) The grant may be unconditional or subject to lawful
conditions
s672A QCC – Pardoning power preserved
o … the Crown Law Officer, on the consideration of any petition for the
exercise of the pardoning power having reference to the conviction of
any person or to any sentence passed on a convicted person, may  (a) refer the whole case to the Court, and the case shall be
heard and determined by the Court as in the case of an appeal by
a person convicted; or
 (b) if the Crown Law Officer desires the assistance of the Court
on any point arising in the case with a view to the determination
of the petition, refer that point to the Court for its opinion
thereon, and the Court shall consider the point so referred and
furnish the Crown Law Officer with its opinion thereon
accordingly.
The defendant will petition the government (governor in Queensland) for a
pardon  the government will refer the issue to the CoA for reconsideration
A successful pardon discharges the offender from the consequences of the
conviction (s677 QCC; R v Martens)
Almost all pardon application occur at a later date when fresh evidence arises
that supports the defendant (e.g. DNA evidence)
o There must be a good reason why the evidence was not available at the
original trial and the evidence must be plausible (Mickelberg v The
Queen)
o When cases are referred to the CoA under the pardoning power, the test
for receiving further evidence is generally not as strict as in the case
where “fresh” evidence is sought to be led on a standard appeal
(Condren)
A pardon is usually preferred over the royal prerogative of mercy
Examples of pardons (Mallard; Kina; R v Katsidis; ex parte A-G (Qld); R v Stafford;
R v Butler)
If a person is wrongfully imprisoned, they MAY be able to receive
compensation
o There is no formal compensation system in Queensland  people will
receive ex gratia payments (gifts from the government)
o No guarantee that one will receive a payment (more likely in high profile
cases)  the vast majority are not compensated
o Examples (Mallard - $3.25 million; Chamberlain - $1.3 million)








APPEALS TO THE HIGH COURT
LEAVE TO APPEAL:
 To appeal to the High Court, you MUST obtain special leave (s35(2) Judiciary
Act)
81







Criteria for granting special leave to appeal (s35A)
o In considering whether to grant an application for special leave to appeal
to the High Court under this Act or under any other Act, the High Court
may have regard to any matters that it considers relevant but shall have
regard to:
 (a) whether the proceedings in which the judgment to which the
application relates was pronounced involve a question of law:
 (i) that is of public importance, whether because of its
general application or otherwise; or
 (ii) in respect of which a decision of the High Court, as
the final appellate court, is required to resolve
differences of opinion between different courts, or
within the one court, as to the state of the law; and
 (b) whether the interests of the administration of justice,
either generally or in the particular case, require consideration
by the High Court of the judgment to which the application
relates.
s35A(b) requires something special (White; Morris)
o Prima facie, a case is not a special case unless it is concerned with a
‘point of law of general application’ (i.e. not a small point of individual
concern) (Morris)
The House principles apply to appeals to the HCA  must identify an error of
the original judge in order for leave to be granted
A leave application is heard by a single judge
Very few leave applications are successful (as the HCA has very limited
resources)
o Leave application by the prosecution are also very rare – will only be
allowed in cases of strong public important and the administration of
justice
Examples of when leave has been successful:
o Dietrich – legal representation and a fair trial; M – interpretation of the
proviso; Carrol – double jeopardy; Tofilau – police record of interview)
The HCA has a public role rather than a private role in the concerns of the
litigant  concerned about principles; rather than results
APPEAL
 The HCA places great weight on the original sentence (reluctant to interfere)
 What can the HCA do?
o Wide powers – can affirm, quash, order a retrial, etc (ss36, 37)
o Will usually not impose their own sentence; rather, send back to a lower
Court for resentencing or rehearing
 Examples of successful appeals:
o Veen – proportionality; Mill – totality; Dinsdale – suspended sentences;
Ryan - character (criminal records vs community perception); Cameron
– guilty pleas (what does a guilty plea mean? What about in cases of
remorse?); GAS and SJK – plea agreements)
82
VICTIMS
HISTORICAL OVERVIEW





In England, from the Early Middle Ages until the second half of the 19thC, victims
were actively involved in the criminal justice system (CJS) as the private
prosecutor (also in Australian colonies)
o Victims were motivated to undertake private compensation in order to
receive compensation from the offender
o No CJS like that of today existed  therefore, private prosecution by the
victim was important for crime control
 If the victim did not prosecute, the offender was not prosecuted
and would continue to offend
o The victim was therefore once a key participant in the CJS
When and why did this change?
o Introduction of a modern police service and shift in the late 19thC 
thus, victim participation has became less important in carrying out
prosecution
o Is prosecution by the victim still possible today? YES
 Common Law right but can be limited by statute
Until the second half of 20thC, there was very little focus on victims and their
treatment in the CJS.
o “Unlike the criminal, the victim was better off before the Revolution
than he is today…He once was the central actor in the system and stood
to benefit both financially and psychologically from it. Today, he is seen at
best as the ‘forgotten man’ of the system and at worst as being twice
victimised, the second time by the system itself.”
Subsequently, the focus shifted to the victim in the latter 20thC. Why?
o Research conducted on rape victims and their problematic treatment in
the CJS in the 1970s and 1980s
o Emergence of science of victimology – researchers had greater
awareness of the problems that victims face
There has been an introduction of certain rights for victims
o Earliest rights were victim compensation schemes (first introduced in
NSW in 1967, gradually taken up by remaining jurisdictions)
VICTIMS IN THE ADVERSARIAL SYSTEM



Victims are often referred to as the ‘forgotten men’
The victim is part of the ‘criminal act’ but is not part of the criminal trial
Why is the victim not part of the trial?
o It is difficult to integrate a victim into an adversarial trial
o If the victim is involved, it will essentially be the prosecution and the
victim (two parties) against the accused (one party)  this situation will
83


raise issues in relation to a fair trial (the accused has to defend himself
against two parties)
o A trial is seen as a ‘battle’ between the State and the accused  it is
inappropriate to introduce an element of private civil litigation into the
criminal justice arena
o In an adversarial trial, the judge is supposed to be an impartial umpire
with limited control over the proceedings
 In an inquisitorial system, the judge has more control over
proceedings; thus, the judge can exercise control over the
prosecution and ensure that a fair trial is achieved (there is an
inquisitorial system in many European countries)
Why strive to accommodate victims at all in the CJS if it is problematic?
o Victims report crime  if victims did not bring crime to the attention of
the authorities, crime control is not possible. Victims should be treat
fairly and not alienated from the system so that victims will continue to
report crime
o Treatment in the CJS can impact severely on the victim’s wellbeing
and future (secondary victimization)
What victim needs and wants need to be accommodated?
o The needs and wants of victims are hard to generalise as all victim are
different
o Consensus was reached in the 1985 UN Declaration of Basic Principles
for Victims of Crime and Abuse of Power –
 Respectful treatment
 Information on rights and progress of the case
 Being heard at relevant stages of the trial
 Being kept safe
 Receiving compensation for the harm suffered
o Note: this is just a declaration (not binding unless implemented by law)
VICTIMS IN QUEENSLAND
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Key legislation = Victims of Crime Assistance Act 2009 (Qld) (VOCA)
VOCA focuses on the ‘timely provision of financial assistance to victims for services
they require as a result of their injuries, rather than a compensation-based scheme.
VOCA states fundamental principles concerning the treatment of victims and a
victim compensation scheme
Fundamental principles (similar to UN Declaration) are set out in Part 2 of the
Act and include:
o Fair and dignified treatment (s8 VOCA)
o Information on services, investigation, prosecution and role as witness
(ss10-13 VOCA)
o Minimising the contact between victim and accused (s14 VOCA)
o Giving details of impact of crime on victim during sentencing (s15 VOCA)
o Receive information about the convicted offender (s16 VOCA)
The fundamental principles are not rights – only principles (s7 VOCA)
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Can a victim complain if a principle is breached? Yes – can complain to a
government entity or victim service coordinator (s19 VOCA)
Giving details of the impact of the crime (s15 VOCA)
o The victim may give the prosecution details regarding the harm they
have suffered due to the offence in order for the prosecution to inform
the court (this is not mandatory)
o The prosecution will decide what details (if any) are to be given to the
Court (possibly considering the victim’s wishes) (s15(3) VOCA)
o Details can be given in a victim impact statement (VIS) (s15(9) VOCA)
 Victim impact statement is a written statement that states the
particulars of the harm caused to a victim by an offence and
may include documents supporting the particulars (e.g. medical
reports, photographs, drawings, etc)
 What happens with a VIS?
 The sentencing judge will consider the VIS
 The contents of the VIS may be considered as facts for the
purpose of sentencing when uncontroverted (disputed)
by the other part
 The sentencing judge decides how information in the VIS
are given to the Court and to what extent it should
influence the sentence
 Benefits and concerns of VIS:
 Can be helpful for victims to overcome trauma
 Violation of sentencing principles – objectivity,
uniformity (different victims will write different quality
VIS’)
 May lead to an increase in the length of the sentence
(however, no empirical research to support this)
 Irrelevant (no influence on decision-making)
 “Sentencing judges should be very careful before acting on
assertions of fact made in victim impact statements. The
purpose of those statements is primarily therapeutic. For that
reason victims should be permitted, and even encouraged, to read
their statements to the court. However, if they contain material
damaging to the accused which is neither self-evidently
correct nor known by the accused to be correct …they should
not be acted on. The prosecution should call the appropriate
supporting evidence. It is unfair to present the accused with the
dilemma of challenging a statement of dubious probative value,
thereby risking a finding that genuine remorse is lacking, or
accepting that statement to his or her detriment.” – per Fryberg J
in R v Singh
Victims are still not parties or ‘quasi parties’ to the trial and cannot exercise
the same rights as parties at trials (e.g. make submissions and statements,
examine and cross-examine, etc)
o
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VICTIM ASSISTANCE
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Under VOCA, a victim of an act of violence, who has suffered and injury and
who is deemed eligible may apply to receive assistance
Who is a victim?
o A person who has suffered harm (s5 VOCA)
 Because a crime is committed against the person;
 Because the person is a family member or dependant of a person
who has died or suffered harm because a crime is committed
against that person; or
 As a direct result of intervening to help a person who has died or
suffered harm because a crime is committed against that person
o There are different categories of victims in VOCA: (s26 VOCA)
 Primary victim = a person who is injured or dies as a direct
result of an act of violence being committed against them
 Secondary victim: two types –
 Parent Secondary Victim = a parent of a child who is
injured as a direct result of becoming aware that their
child has been injured by an act of violence
 Witness Secondary Victim – a person who is injured as
a direct result of witnessing an act of violence
o Witness = directly witnessing or hearing the act
of violence being committed (Sch 3 VOCA)
 Related victim = a close family member or a dependant of a
primary victim who has died
What is an act of violence?
o Act of violence = a crime committed against a person, or attempted to be
committed against a person, which directly results in death or injury
to the victim (s25 VOCA)
o Crime must be committed in Queensland; however, the relevant death or
injury does not have to occur in Queensland
o The crime can be committed by one or more persons and may involve
a series of related crimes
o Limited to acts of violence because property crimes should be covered
by insurance
What is an injury?
o Injury is defined to include any one or more of the following: (s27 VOCA)
 A bodily injury
 Mental illness
 Intellectual impairment
 Pregnancy
 Disease
o An injury that results from a sexual offence is defined to include such
things as a sense of violation, reduced self-worth and any adverse impact
on feelings
Who is eligible?
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The assessor must be satisfied on the balance of probabilities that the
applicant is eligible for assistance (s78 VOCA)
o To be eligible, the act of violence must ordinarily have been reported to
the Queensland Police Service
 Exception – in cases of ‘special primary victims’, it will be
sufficient if the matter has been reported to a counselor,
psychologist or doctor.
 A ‘special primary victim’ is a primary victim:
o Of an act of violence involving and sexual offence;
or
o Of an act of violence that was committed by a
person who was, at the time the act was
committed, in a position of power, influence or
trust regarding the victim; or
o Who was a child at the time the act of violence
was committed; or
o Who has an impaired capacity (whether or not
the impairment existed when the act of violence
was committed); or
o Who is being threatened or intimidated by the
person who committed the act of violence, or by
someone else
o A person will not be eligible for financial assistance if:
 Without reasonable excuse, they have not reasonably assisted
the police or prosecution and, as a result of their failure to do
so, prevented an arrest or prosecution; or
 They were directly or indirectly involved in the commission
of the act of violence
Assessment Process
o This is an administrative scheme (not through the court system)
 The victim will present a VIS. An administrative assessment will
be made. If successful, the victim will receive money though the
scheme
o Applications are made to a statutory body – Victim Assist Queensland
(VAQ). Assessed by a government assessor with VAQ (assessor must
observe principles of natural justice and act as quickly as possible)
o An application must generally made within three years of: (s54 VOCA)
 The act of violence;
 The death of a victim; or
 A child victim turning 18
o An assessor can reduce the amount of assistance paid in a number of
circumstances (e.g. if the applicant directly or indirectly contributed o
their injury) (s85(2) VOCA)
 If an assessor intends to reduce the amount of assistance or
intends to reject the application, the applicant must be notified
and is entitled to make written or oral
o
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Once a final decision is made, the assessor must notify the victim of the
decision in writing
 If the application is successful – the notice must include an
outline of the amounts that are payable (s90 VOCA)
 If the application is unsuccessful – the notice must include
reasons for the decision and an outline of how to apply for an
internal review of the decision (s91 VOCA)
 An application for internal review is made to the scheme
manager and must be made before an external review is
sought from QCAT
o A person will only receive payment after the assessor has been
forwarded an invoice or receipt for the expenses (s93(2) VOCA)
 Interim assistance of up to $6,000 for expenses occurred during
the assessment of an application (but before the final decision)
may be granted (Pt 14 VOCA)
 submissions about the assessor’s proposed decision (s88 VOCA)
o The State can pursue the offender for the money
 The offender must be given notice of the intended recovery of
money and is able to dispute the claim
Amount of financial assistance available:
o The amount of financial assistance available and the type of expenses
covered will depend on what category of victim the applicant falls into
(primary, secondary or related)
o The maximum amount of financial assistance available to primary
victims is $75,000, including a special assistance amount of up to
$10,000 plus up to $500 for legal costs
o Type of expenses covered = reasonable counseling, medical expenses
and loss of earnings ups to $20,000 (ss38, 39 VOCA)
 In exceptional circumstances, assistance may extend to expenses
that will significantly help the victim recover (e.g. relocation
costs) (s28 VOCA)
o This is not compensation; rather, more of a recognition that the person
is a victim
o If the offender is wealthy, it may be more beneficial to the victim to sue
through the civil system (however, most offenders are poor)
o
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RESTORATIVE JUSTICE
TRADITIONAL JUSTICE VS RESTORATIVE JUSTICE
Traditional Justice
Restorative Justice
Crime is a violation of the law
Crime is a violation of one against
another
There is a focus on blaming and
punishing the offender
The victim is ignored and the offender
is passive
The offender is accountable – takes the
punishment
Adversarial
There is a focus on response and
repairing harm
The victim, offender and community
are involved
Ask the offender how they feel and
how harm can be repaired
Based on communication
WHAT IS RESTORATIVE JUSTICE
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Restorative justice is when those at stake in a crime come together to discuss
the crime with the aim of repairing the harm
Any action that repairs the harm caused by the crime can be considered part of
the restorative justice process
There is a greater emphasis on the role and experience of victims
Both legal and non-legal people are involved in decisions
Suggests that specific deterrence is best achieved through successful
reintegration of offenders into the community
Restorative justice programs are designed to achieve moderated agreements
between offenders and victims
Restorative justice programs commonly comprise of the following features:
o Greater emphasis on victim-involvement in the process
o The role of the offender is changed from being that of a passive
participant in an impersonal process, to that of an active player who is
required to understand the consequences of their actions, accept
responsibility and take action to repair the harm caused by the crime
o Give lay and legal actor decision-making authority and permit a free
play of discussion between all parties involved
o Take place in a community context, where the “community” usually
includes people who are actively involved in the lives of both the victim
and offender
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DOES RESTORATIVE JUSTICE WORK?
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Offenders:
o Restorative justice can either slow down an offender’s re-offending, stop
re-offending completely or not affect some
o May be better for the most prolific offenders
o On average, there was a 27% reduction in repeat convictions across
Britain trials
Offences:
o Restorative justice works better for violence, rather than property
offences
o Wasted on minor offences as the process is very time intensive
Victims:
o Unequivocal evidence that there is benefit for those victims willing to
meet their offender
Restorative justice provides:
o Significantly higher victim satisfaction that court justice
o Significantly higher levels of apologies
o Significantly greater reduction in desire for revenge
o Significantly greater reduction in Post-Traumatic Stress Symptoms
LIMITS ON RESTORATIVE JUSTICE
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Restorative justice may not work with sexual or domestic violence offences as
the parties know each other
Victim safety
Forgiveness and trust
JUSTICE MEDIATION
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In Queensland, justice mediation is available for adults
Justice mediation usually occurs when the offender appears in the Magistrate’s
Court (e.g. stealing, assault, wilful damage. unlawful use of a motor vehicle, etc)
Face-to-face meeting between a person who has been harmed in an
incident (the complainant) and the person responsible for the incident (the
defendant)
Justice mediation is voluntary and confidential (but also unaccountable)
The offender admits guilt  there is a referral in lieu of sentence
o Matters can be referred to mediation by the police, the ODPP or the
Court
Participants in the mediation are encourages to discuss the consequences of
the offence and the most suitable outcome of the conference
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Aim = work out ways the offender can make amends. Making amends means
being responsible for actions. It may involve:
o Returning stolen property
o Agreeing to do something for the complainant, such as paying money or
repairing damage
o Making an apology
o Offender may agree to attend counselling/violence program, etc
INDIGENOUS JUSTICE
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Queensland has a Court specifically for sentencing of Indigenous people – the
Murri Court
If an Indigenous offender pleads guilty to a minor, criminal offence in the
Magistrates Court, they can be sentenced in the Murri Court
People involved in the sentencing process = elders, respected persons,
community justice groups and the offender’s family
The Magistrate will make a final decision and impose a sentence (R v Roberts)
o However, the Indigenous elders assist the Magistrate to communicate
with the offender and arrive at a sentence that is both culturally and
legally appropriate
Aim = assist the offender to reintegrate into the community
Sentences imposed in the Murri Court are often very tough  can be appealed
(Baker v Queensland Police Service)
Key differences between the Murri Court and normal Courts:
o People other than the judge and counsel are involved in the sentencing
process
o A large level of information regarding the offender’s circumstances is
made available to the Court prior to the sentencing (obtained through a
comprehensive assessment process)
o Attempts to engage the offender in discussion determining appropriate
sentence and in developing strategies to address their offending
behavior
o A higher degree of informality in court processes, including
modifications to the Court environment and interaction between
stakeholders involved in Murri Court sittings
o The level and nature of support is greater than in mainstream court
processes
DRUG COURTS
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The Drug Rehabilitation (Court Diversion) Act 2000 (Qld) sets up the Drug
Courts
Who is dealt with in the Drug Court? Eligible Persons (s6 DRCDA)
o Adult
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Drug dependent on an illicit drug
Charged with a drug related offence (the offender’s drug problem
contributed to the crime)
o At risk of being imprisoned
What offences can be dealt with in the Drug Court?
o Relevant offences  large focus on property offences (prostitution and
others are also included)
o Excluded offences = violent and sexual offences (ss7, 8 DRCDA)
The Court is effectively a sentencing court – the offender must plead guilty and
agree to drug diversion (s26 DRCDA)
Each offender is given a team including: the prosecutor, Legal Aid lawyer,
corrective services officer, QLD Health nurse, court registrar, Magistrate
and a support person
o As many people are involved, this process is very expensive and timeconsuming
The offender will usually receive a Drug Rehabilitation Order (IDRO) (ss19-23
DRCDA)
o This order lasts for several months and includes many conditions
(tough for many drug users – often a last resort)
o Looks like a suspended sentence with conditions
o The offender is supervised during the IDRO
o Graduating from the program is an important milestone
o
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SPECIAL CIRCUMSTANCES COURTS
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The Special Circumstances Court targets tow main groups of offenders in the
early stages of the criminal justice system
o Those who have impaired decision-making capacity (resulting from
mental illness, intellectual disability, etc)
o Those who are homeless or at risk of being homeless
Generally deals with drug, theft, property damage and other public order
offences
Objective = provide bail and sentencing options which place offenders with
support services that help them to deal with the cause(s) of their behavior
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CRIMINAL LAWAND PROCEDURE B
CASE SUMMARIES
WEEK 1: PROOF RULES
DISCRETION
Baden-Clay (2012)
Gerard Baden-Clay was charged with murdering his wife. Evidence was found on
his computer that he had recently searched about the disposal of dead bodies and
the right to silence. The court exercised their discretion and refused bail.
Sica (2012)
Max Sica was convicted of murdering three women. Usually, the principle of
concurrency applies (if one is convicted of multiple, connected offences, one’s
sentences will run concurrently). The court exercised discretion and ordered that
he serve three life sentences cumulatively (not at the same time), with a nonparole period of 35 years.
R v AAM; ex parte A-G (Qld) [2010]
A woman had continually stolen greeting cards from a shop. She was eventually
charged. The police exercised their discretion when deciding when to move from a
warning to a charge.
PROOF RULES – PROSECUTION: GENERAL RULES
Woolmington [1935]
Woolmington was charged with the murder of his wife. He claimed that he
accidentally shot her when he tried to scare her by showing her the gun that he
was going to use to kill himself. The judge told the jury that the burden was on the
accused to prove to the jury that the killing was not an accident. This direction was
held to be incorrect. The burden of proof is on the prosecution to prove the
accused’s guilt beyond a reasonable doubt.
“Throughout the web of the English criminal law one golden thread is always to be seen, that
it is the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already
said as to the defence of insanity and subject also to any statutory exception… If at the end of
and on the whole of the case there is a reasonable doubt, created by the evidence given by
either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a
malicious intention, the prosecution has not made out the case and the prisoner is entitled to
an acquittal. No matter what the charge or where the trial, the principle that the prosecution
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must prove the guilt of the prisoner is part of the common law of England and no attempt to
whittle it down can be entertained.” – per Viscount Sankey.
Mullen (1938)
Mullen was charged with murder after he shot his friend. He raised the defence of
accident. The Court held that Mullen did not have to prove that it was an accident
(which the prosecution contended that he had to do as he was the only one there).
The prosecution has the persuasive burden – they have to prove every
element of the offence and disprove any defences raised on the evidence.
(Imported the principles in Woolmington into Queensland law.)
R v Weisz [2008]
Weisz, a truck driver, ran an amphetamine ring. One of his clients was behind in
his payments. Weisz organised someone else to murder the client and actively did
things to aid the murder. There were a number of elements, which must all be
proved beyond a reasonable doubt by the prosecution.
Falls (2010)
Falls killed her husband by lacing his dinner with a drug that put him into a deep
sleep. She then killed him with a shotgun. Falls raised the defence of self-defence
on the basis that she was the victim of domestic violence and she was in fear for
her life. She did not raise the battered-woman syndrome defence. However, it was
clear that the defence was raised on the evidence presented. The judge directed
the jury to consider both self-defence and the battered-woman syndrome.
Defences that are raised on the evidence are for the prosecution to disprove
(this is not required; however, they usually do).
PROOF RULES – BEYOND A REASONABLE DOUBT
Dawson (1961)
Dawson was driving a car with stolen goods in the back. He was charged with
receiving stolen goods. There was discussion about what ‘beyond a reasonable
doubt’ actually meant. The trial judge tried to define it. On appeal, it was held that
you should not depart from the time-honoured formula that the phrase
‘beyond a reasonable doubt’ is a phrase understood by the community.
Attempts to define it should not be made.
Wilson, Tchorz & Young (1986)
Three accused gang-raped a woman. The judge directed the jury that they need to
be convinced by ‘real doubts’ and not ‘fanciful doubts’. On appeal, it was said that
the judge should say no more than a reasonable doubt is ‘a doubt that they,
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as reasonable people, are prepared to entertain.’
Gonclaves (1997)
Gonclaves set his ex-wife’s property on fire. The trial judge said that ‘beyond a
reasonable doubt’ was equated with ‘absolute certainty’. On appeal, the judge said
that ‘beyond’ meant ‘beyond’, ‘reasonable’ meant ‘reasonable and ‘doubt’ meant
‘doubt’.
Punj (2002)
Whether a doubt is reasonable is for the jury to say. The accused should be given
the benefit of any doubt that the jury thinks to be reasonable.
Robinson (1994)
A lecturer had his student consultation in a motel room. The student alleged that
she was raped. The trial judge said that the defendant has the greatest interest in
the outcome of the case; therefore, the jury should think differently of the
defendant’s evidence. On appeal, the judge said that these comments were
inappropriate as they would suggest that the threshold is higher than what it is.
Indirect comments by a judge can affect the jury’s understanding of ‘beyond
a reasonable doubt’.
Clarke (2005)
The jury asked what ‘beyond a reasonable doubt means’. The judge said that it
simply meant ‘beyond a reasonable doubt’ he could not elaborate on what it
meant. The accused appealed on the basis that the judge should have quoted the
Queensland Supreme Court Bench Book. It was held that the judge does not have
to quote the Bench Book as it is only a guide, not the law.
Bench Book: “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 reasonable doubt.”
Hayes (2008)
A man burnt down his former lovers house and she died. There were issues about
intoxication. There are specific directions about intoxication in the Bench Book.
The trial judge did not use these directions. The accused appealed on the basis that
the trial judge should have quoted the Bench Book. Same as Clarke – the Bench
Book is only a guide and not law.
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PROOF RULES – ACCUSED: GENERAL RULES
CTM V R (2008)
If an accused raises a defence, they must produce evidence of this defence. This
evidence must be a ‘sufficient foundation’ or ‘prima facie raises the issue’.
Stingel (1990)
If there are multiple defences raised on the evidence (e.g. self-defence,
provocation, diminished responsibility), the accused may not want to raise all of
the defences as this will reflect badly upon their credibility. The judge will raise
the defences that are raised on the evidence (but not raised by the accused)
and direct the jury in a way that protects the accused.
Stevens v The Queen (2005)
Stevens was charged with shooting the victim in the head and argued that the
victim actually killed himself (his entire defence). However, when he rang the
ambulance he said that ‘there has been an accident’. The defence never raised the
defence of accident. The judge didn’t decide to raise the defence of accident.
Stevens was found guilty of murder. Stevens then appealed on the grounds that
the judge should have raised the defence of accident. The HCA found that on the
evidence, the judge should have raised the defence of accident (the one word
in the phone call was enough).
There is a Bench Book direction that applies when a judge raises a defence that the
accused did not raise:
“ I wish to say something to you about a further possible defence that arises for your
consideration. It concerns the defence of X. It is my duty to direct with all possible
defences which arise and therefore need to be considered by you in reaching your
verdict, even where they are not raised by defence counsel. And the fact that I am
mentioning this matter does not mean I have some particular view about it. It is for
you to consider this additional matter, as with all matters. You will not need to
consider it, should you find the defendant not guilty on the basis that the prosecution
had not excluded Y beyond a reasonable doubt.”
Fingelton v The Queen (2005)
The Chief-Magistrate was charged with interfering with witnesses. Nobody raised
the defence provision in the Magistrates Court Act that protected Magistrates from
prosecution in their administrative work. The HCA discovered the defence,
pointed it out to the lawyers and allowed the lawyers to argue that point.
PROOF RULES: PRESUMPTIONS
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Shepherd (1990)
This case discussed situations where there is a lot of circumstantial evidence
(e.g. not absolute proof). What will happen will depend on how the prosecution
sets up their case (rope – if you can’t prove one strand, the case doesn’t fall apart;
chain – if you can’t prove one link, the whole case will fall apart).
Falconer (1990)
Falconer shot her husband. She claimed that she lost memory of it and could not
recall anything. She claimed the defence of automatism. The prosecution claimed
that she was insane. There was an issue regarding who had to prove what. The
prosecution must disprove automatism beyond a reasonable doubt. If the
prosecution raises insanity, they only have to prove it on the balance of
probabilities.
WEEK 2: POLICING AND POLICE ACCOUNTABILITY
REASONABLE SUSPICION
George v Rockett (1990)
There was a question in regards to whether a warrant for the seizure of
documents were valid. Held that there must be a reasonable suspicion, which is
a suspicion that has some basis in fact. You need to ask the question: would an
ordinary person, looking at the facts, reasonably suspect that there was
evidence of the crime and that a warrant should be issued? (objective
standard)
“The facts which can reasonably ground a suspicion may be quite insufficient to reasonably
ground a belief yet some factual basis for the suspicion must be shown.’”
Queensland Bacon (1966)
Held that ‘reasonable suspicion’ means ‘more than mere idle wondering …
positive feeling of actual apprehension … slight opinion’ but less than
satisfying a prima facie case.
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Dobbs v Ward & Anor [2002]
There were investigations of video and computer hardware in relation to a child
maintenance issue but no images were found. If a person is not guilty, this does
not mean that there was no ‘reasonable suspicion’. The power may still have
been lawfully exercised.
REASONABLY NECESSARY
Thomas v Mowbray [2007]
This case involved terrorism legislation. ‘Reasonably necessary’ means that the
powers utilised are appropriate and adapted to protecting the purpose for
which they were developed. Linked to the idea of proportionality – what do you
need to get done and what powers must be exercised in order to get that thing
done?
SEARCH WITH A WARRANT
NSW V Corbett [2007]
The police got a warrant to search for firearms. There was a misstatement in
relation to what the police wanted the warrant for (the warrant was stated to b for
firearm offences). Actually, the police were worried about Corbett’s mental health
and wanted to seize the weapons because they were scared about how they would
use it. The key issue was in relation to how specific the warrant needs to be. The
warrant should be as specific as possible in relation to what the police are
looking for and what powers are being exercised.
ARREST
Alderson v Booth (1969)
This case discussed what an amounts. The court said that ideally, words should be
used and be sufficient; however, it is possible for an arrest to occur without the
use of words.
Delit v Small (1978)
The accused was charged with escape of arrest. He argued that he was never
under arrest as he had never been touched; thus, could not escape. It was held that
the accused was under arrest. An arrest can occur via submission and without
the police touching the suspect.
Coleman v Kinbacher & Anor [2003]
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The accused was arrested for disorderly conduct when he burnt some papers in
public. The accused was also charged with resisting arrest. He argued that because
he was found not guilty of disorderly conduct, the arrest was unlawful; thus, he
could not be charged with resisting arrest. The court held that the arrest was
lawful. Even if a person is not convicted of the offence for which they are
arrested for, an arrest can still be lawful providing there was “reasonable
suspicion”.
Williams v R (1986)
An accused should be released from arrest as soon as “reasonably
practicable”. This means that release should occur without undue delay
(some delay may be reasonable). Discussed how a balance needs to be struck
between the suspect’s personal liberty and the need to investigate; however, the
balance should be struck in favour of the accused. If the accused is not released
until after it is “reasonably practicable”, the arrest will become unlawful and the
accused may have an action in false imprisonment.
PROTECTING THE RIGHT TO SILENCE
Petty & Maiden v R (1991)
Two guys were charged with serious offences. They had an opportunity to tell the
prosecution of their defences at a committal hearing; however, they maintained
their right to silence and did not raise any defences until the trial. The prosecution
sought to claim that the defences were less credible as they had ‘come up with a
story at a late stage’. The Court did not agree with this. An accused has a right to
silence at every point and a lack of credibility should not be inferred due to
the accused exercising their right to silence.
“A person who believes on reasonable grounds that he or she is suspected of having been a
party to an offence is entitled to remain silent when questioned or asked to supply
information by any person in authority about the occurrence of an offence, the identity of the
participants and the roles which they played.”
Swaffield & Pavic [1998]
An accused exercising their right to silence should not be interpreted as
anything other than a person exercising such a right. There are number of
reasons for silence (not just guilt) – e.g. shock, upset, confusion, scared, suspicion
of the police, protecting others, unable to explain their defence, their lawyer has
told them to be quiet.
Barchard (2004)
An accused and the lawyer were given a small room on the side of a casino to
discuss in private. The police were able to hear everything they said. However,
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the requirement that an accused be able to talk to a lawyer in private is to be
exercised as far as it is “reasonably practicable’. In this case, the Court held
that there was no problem.
Driscoll (1977)
A right to a layer is important. If the accused states that they don’t want to talk
until their lawyer is present, any interviewing that is conducted by the police
against the accused’s wishes may be excluded at trial.
RECORDING
Kelly
There was a recorded interview. However, there was a further conversation that
was not recorded. The police sought to write this down and present it in Court in
written format. The court stated that police should record their interviews and
it is dangerous evidence if not recorded.
McKinney (1991)
The police would write down the confession and get the accused to sign it. It was
alleged that these confessions were fabricated. Developed the McKinney
warning: if there is no recording of interview, the jury should be warned that
a written confession might not be strong evidence if it is not corroborated.
Marshall (2008)
Stated that there is a two-limb caution: (i) the accused does not have to speak to
the police officer; (ii) anything that they do say may be used as evidence. This
caution is now in s431 of the PPRA.
Nicholls & Coates (2005)
Nicholls allegedly admitted culpability during a break of the interview. The police
sought to present this evidence during the breach. The court was suspicious of this
and stated that talking off record was akin to exercising one’s right to silence.
Stated that if the evidence was not recorded, it is unlikely to be allowed in Court.
R v McMillan (2010)
A police officer had a conversation with a suspect but did not attempt to record it
when they arrived at the police officer. He claimed that he had been on a 9 hour
shift and did not feel like going through the procedd. The Court did not like this
and stated that if there is no record of an interview, any evidence of that kind
should be excluded.
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POLICE FORCE
Whitelaw v O’Sullivan [2010]
A police officer was charged with assault when he hit the accused with a baton
after spraying the accused with capsicum spray. The officer successfully argued
the defence of mistake, in that he was mistaken about what level of force was
required. A police officer should only use what is reasonable force in the
circumstances.
FAILURE TO OBSERVE PPRA PROCEDURE
Tofilau [2007]
Police officers went undercover and pretended to be gang bosses. They said to the
accused ‘if you want to join my gang, you must tell me everything and I will make it
go away but you must tell me everything’. The accused confessed to multiple
crimes. The police officers brought these confessions in a trial. The accused argued
that these confessions were involuntary obtained because the gang boss was in a
position of authority; therefore, their confessions were unreliable. The court held
that a gang boss is not a person in a position of authority. A person in a
position of authority are ‘officers of police and the link, the prosecutor and
others preferring the charge’ (anyone acting on behalf of the State – there must
be ‘… a perception by the suspect that the coercive power of the State is being used’).
Nailor
The police told the lawyer of the accused that if the accused tells them everything
they will charge him with manslaughter but if he doesn’t, they will charge him with
murder. The lawyer told the accused this. The Court viewed the police officer as
making a threat; thus, anything said would be involuntary.
Burnett (1944)
It was late at night and the accused had fainted twice and was in a dopey condition
when the he gave his confession. The confession was held to be invalid due to
basal voluntariness.
The Queen v Williams [1959]
The accused stabbed someone, blacked out and attempted suicide when the police
found him in the cold and organised for him to have his stomach pumped. After he
had his stomach pumped, the accused confessed. The Court held that the
confession was invalid due to basal voluntariness.
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Swaffield & Pavic [1998]
In the case of Swaffield, the accused had been interviewed twice about arson. He
exercised his right to silence. He was charged with arson but there wasn’t
sufficient evidence and the charge was withdrawn. There was a separate,
undercover operation in relation to drugs. The police officer came across the brief
of the arson. He decided that he would talk to Swaffield during the undercover
operation. Swaffield made admissions and was found guilty of arson. Swaffield
argued that the confession was unfairly obtained.
In the case of Pavic, the accused exercised his right to silence about a murder.
Clancy thought he was a suspect and wanted Pavic to confess. Clancy, a friend of
Pavic, told the police that he would wire up and talk to Pavic about the murder.
Pavic confessed to Clancy. Pavic argued that this confession was unfairly obtained.
The only difference between the two cases was that Swaffield was taken by a
police officer who knew of Swaffield’s previous exercises of his right to silence,
while Clancy did not know of Pavic’s previous exercise of his right to silence.
The Court excluded the recording in the case of Swaffield (as this was held to be
unfair) but allowed the confession in Pavic.
Ridgeway (1995)
The Australian police orchestrated to import a large amount of heroin and sold it
on the streets. There was discussion about whether the evidence obtained was
unfair on public policy grounds. Relevant considerations include the
seriousness of the offence and whether, but for the police’s conduct, the
accused would have committed a crime.
R v Martin [2011]
In relation to public policy discretion to exclude:
“…..in deciding this issue, must consider the public interest in maintaining an individual’s
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right not to be unlawfully or unfairly treated by law enforcement officers. Unlawfully
obtained evidence should be excluded where the public interest in the protection of the
individual from unlawful or unfair treatment outweighs the public need to bring to justice
those who commit offences; convictions achieved with the aid of unlawfully obtained evidence
may be achieved at too high a price.” – per McMurdo P
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WEEK 3: POLICE COMPLAINTS, CHARGE AND BAIL
CMC
Gee and Kennedy
Two police officers were involved in a relationship. Gee was investigated for 9
charges of misconduct and Kennedy was investigated for 3. The offences were
serious but not of a systemic or organisational nature which would have
warranted CMC investigation.
Gee’s charges included:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Misappropriate of a camp fridge
Lying to police in a disciplinary interview re charge 1
Lying in another disciplinary interview re charge 1
Misappropriating wristbands from Qld Police Union
Misappropriating funds from Mt Isa PCYC
Misappropriating funds from Mt Isa PCYC
Taking alcohol into a restricted community
Providing misleading information in job application
Sexual harassment
Kennedy’s charges included:
1. Misappropriation of a camp fridge
2. Facilitating alcohol into a restricted community
3. Allowing civilian to possess police accoutrements
In the end, all charged were substantiated except for charges 4 and 7 in relation to
Gee and charges 2 and 3 in relation to Kennedy. Gee was dismissed and Kennedy
was suspended for 6 months. Gee was dismissed because of her persistent
dishonest, appalling disciplinary history, lack of remorse and no admission of fault.
Operation Capri
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In 2005, the CMC received information from the Australian Federal Police that
police officers had formed an improper association with a prisoner named Lee
Owen Henderson. Henderson was regarded by the police as a valuable informant.
However, Henderson rarely provided information of use; rather manipulated the
police for his own ends. Henderson, who was serving two life sentences for
murder was able to make unmonitored phone calls from prison, had access to
confidential police and Corrective Services material, regularly removed from jail to
attend meetings with suspect to obtain information, had a mobile phone and ID in
false names and was paid from time- to-time,
The CMC’s investigation occurred between 2006 and 2008. The investigation
involved over 200 interviews, 100 notices to discover, 24 searches and an
assessment of 6000 recorded telephone conversations.
The outcome of this investigation was a public report. Disciplinary action was
recommended against 17 officers (of these, no action was taken against 1, 5 retire
from action could be take, 6 received managerial guidance and 5 had the charges
substantiated and were either dismissed or retired).
CHARGES
Maxwell (1996)
A charge can be “thrown out” when the charge amounts to an abuse of procsess
Jago v District Court (1989)
R v Moti [2010]
A man was brought over from Vanuatu to respond to sexual offences committed in
Australia. He was brought over on a deportation warrant rather than on
extradition. Moti argued that the police hid their motive for brining him over.
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Witnesses were paid to give evidence. In the end, the charges did go ahead and a
stay previously granted was removed. If charges amount to a front to public
conscience, they should be thrown out. That was not case in this case.
Rogers [1998]
There was a discussion about the kinds of things that are problematic due to
lack of particularity in a charge. Lack of particularity leads to a difficulty for the
accused in defending themselves, raising defences or knowing which evidence is
relevant, it leads to a lack of clarity about the verdict, problems in instructing
juries and unfairness.
Walton v Gardiner (1993)
If it is seen from the start that there is insufficient evidence to support the charges,
the charge should be regarded as ‘doomed to fail’ and should be thrown out.
BAIL
Gardner [2009]
In order to get the Court to refuse bail, the prosecution has to prove on the
balance of probabilities that the accused is an unacceptable risk (according to
s16(1) of the Bail Act).
Lacey [2007]
The Lacey brothers were charged with murder. In relation to bail, they had to
show cause that they should receive bail as murder is a s13 offence.
Williamson (1999)
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The primary offender carried out an offence with a knife. Williamson was a cooffender and did not carry a knife. In relation to bail, Williamson had to show
cause that he should be granted bail as the offence he was charged of was an
‘indictable offence with a weapon’.
Mokbel [2007]
Mokbel was released on bail. One of the conditions of his bail was that he was not
to leave the country. He sailed to Greece on a yacht. As part of his bail, the
accused’s sister acted as a surety and put forward over $1 million. It turned out
that the money that his sister put forward was from Mokbel’s drug business. The
money was forfeited to the court.
Baytieh [2001]
The person who acted as a surety did everything he could to get the accused to
Court. He succeeded but then, at Court, the accused told the surety that he was just
going to get a packet of cigarettes. The accused then escaped. The surety got his
money back as he did his best to get the money back.
Bakir [2006]
More than one application for bail can be made if new facts or circumstances arise.
Wren [1999]
A bail decision made by a trial court judge during the middle of a trial cannot be
reviewed. The trial judge is the only person who can deal with the issue of bail.
Chamberlain (1983)
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In situations of appeal bail (seeking bail while you wait for an appeal), bail will
only be granted in exceptional circumstances. This is because the presumption
of innocence has been displaced. Exceptional circumstances may include showing
that you have a very strong appeal case.
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WEEK 4: COMMENCING PROCEEDINGS
OFFENCE CLASSIFICATION
Latoudis v Casey [1990]
This case involved the judge’s discretion to award costs. A person can still apply
to costs even if they were not represented by a lawyer. There are other costs
than legal fees.
Stuart [1973]
Stuart made himself intentionally sick in order to delay his trial. While generally
the accused must be present, the court decided that a trial could go ahead
without the accused in exceptional circumstances (e.g. illness, the accused was
behaving vexatiously, in the interest of justice)
EXTRADITION
Loveridge (2004)
Loveridge was found in possession of a small quantity of heroin in 1988. Her
solicitor negotiated with the police and the police said that they would not
extradite her if she left the State. In 2004, the police tried to extradite Loveridge.
The court found that the extradition was invalid as it was an abuse of process.
Only in cases of abuse of process can the court stop an extradition.
DPP v Mokbel [2010]
Mokbel was released on bail. One of the conditions of his bail was that he was not
to leave the country. He sailed to Greece on a yacht. The Australia government
sought to exercise him to Australia. Mokbel made an application to the United
Nations Human Rights Committee stating that moving him from Greece to
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Australia would be against his human rights. He appealed the Australian
governments attempt to extradite him on the basis that his ongoing case with the
UNHRC was an extradition objection. Held that this was not an extradition
objection.
COMMITTAL
Barton v The Queen (1980)
Barton was charged with a number of fraud offences. There were committals for a
few of the fraud offences, but not all. Barton was found guilty of all charged. He
appealed. The HCA held that because he did not have a committal in relation to
some trials (ex officio indictment) , he had an unfair trial in relation to those
charges.
Doney (1990)
The point of a committal is for the magistrate to decide whether there is
sufficient evidence to commit the charge for trial to a higher court. It is rare
that the magistrate will not allow the charge to be tried in a higher court.
EX OFFICIO INDICTMENT
Webb [1960]
If a committal has taken place and all the evidence has been put to the accused for
a specific offence (e.g. murder) and the accused is then charged with another
offence (e.g. manslaughter), there is no injustice here as the accused has had full
disclosure of the relevant evidence for the manslaughter charge.
Consent by the accused to an ex officio indictment will also render an ex officio
indictment appropriate.
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Barton v The Queen (1980)
An ex officio indictment may amount to an abuse of process if there is a lack of
disclosure.
Foley [2002]
An ex officio indictment may be an abuse of process if it used to avoid the time
limit of ordinary indictment and an extension of time has been refused. (An
ordinary indictment must follow into the higher courts within 6 months after the
committal). The charge may be thrown out (doesn’t mean that they disappear)
INDICTMENTS
Cicolini [2007]
There is a possibility that the court will grant an extension of time in relation to
when the accused must present their indictment. This is a matter of discretion for
the judge. There are number of considerations including the reasons for
delay, the gravity of the charges, the strength of the case against the accused,
etc. An extension of time was granted in this case as it was appropriate in the
circumstances. Incredibly long delays that prejudice the accused may amount to an
abuse of process.
Fahey & Ors [2001]
Fahey was found guilty of grievous bodily harm. The relevant indictment failed to
include the words ‘unlawfully caused’. Fahey argued that a fundamental particular
was missing from the indictment; thus, the whole indictment should be thrown out
as it would amount to an abuse of process. The court held that the missing words
would cause the accused no disadvantage as there would have been no difference
in outcome. This case shows that indictments can be amended throughout the
process.
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Ambrose (1973)
Generally, there should only be one charge per indictment. If there is to be
more than one charge on an indictment (joinder), they should not be
overloaded. This is to protect both the accused, so they can properly defend their
case, and the jury, so that they know what they are dealing with and do not
become confused.
Collins [1996]
Goods were taken from a warehouse. The warehouse was then burnt down. Collins
was charged with both stealing and the arson. The charges were based on the
same set of facts so the two charges could be joined on a single indictment.
Longi (1993)
There was a rape in 1980 and a sexual assault on the same victim in 1982. This
was viewed as a series of offences; thus, they two charges could be joined on a
signle indictment.
Cranston [1988]
The accused assaulted one person in order to rape the rape victim. The assault and
rape were viewed as for a single purpose, (rape) and the two charges were
able to be joined on a single indictment.
De Jesus [1986]
De Jesus was charged with two completely separate counts of rape. There wa
joinder of these two charges. There was discussion about how joinder of sexual
offences creates a high risk of prejudice to the accused (the jury will think that if
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he is guilty of one charge, he must be guilty of the other).
Phillips [2006]
Phillips had sexually assaulted a number of teenage girls at parties. There was a lot
of similarities between the offences (same method, same town, same type of
victim, etc). All of the charges were joined on one indictment. The accused
appealed his conviction, arguing that the trial was unfair and that he should have
had separate trials. The HCA found that the prejudice was too great in this
situation and that the accused should have had separate trials.
KP [2006]
If an accused thinks that joinder will result in a high level of prejudice, the accused
can apply for separate trials. It is discretionary for the court in relation to
whether they will allow separate trials.
Ginger [1997]
The offences of the co-accused were joined on the one indictment. The same tests
of joinder that apply to separate charges apply to separate accused. The
problem with this is that the co-accused will often blame the other person. It may
be difficult for the jury to distinguish which evidence applies to which accused.
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WEEK 5: PLEAS AND DOUBLE JEOPARDY
CHARGE BARGAINING
GAS and SJK (2004)
Two people were charged with the murder of an elderly woman. As a result of
plea negotiations, they both agreed they would plead guilty to aiding and abetting
a murder (less culpable in the murder). The sentence that the judge ultimately
passed was very low, reflecting that they were only aiding and abetting. The DPP
appealed this sentence, claiming that this was inappropriate as one of the accused
had to be the murderer (despite the DPP agreeing to this charge beforehand). The
HCA said that the role of the prosecution is controlling the charge and it is up
to the judge to determine the sentence (regardless of what the parties want).
Marshall [1981]
Marshall was alleged to have raped a woman. He was thinking of changing his plea
to guilty. His lawyer asked judge what will happen if he changed his plea. The
judge indicated that the sentence would probably be no more than 18 months. He
entered a plea of guilty. The judge sentenced him to four years. The accused
appealed against the sentence on the basis that the judge had indicated a certain
sentence and should have granted such a sentence. On appeal, it was held that
judicial sentence indication is not allowed. However, if the judge does
indicate a sentence, the judge is not obliged to follow the sentence. While this
may be the judge’s view before the submission, the judge can change their mind
after hearing the submissions.
McQuire & Porter (2000)
Two scammers set up an investment business where they induced retirees to
invest all of their money into their various investment property options. They
were charged with fraud. The court stated that private negotiations between the
lawyers and the judge is not allowed.
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Wentworth [1996]
There were several charges on the indictment. Initially, the prosecution and
defence had a discussion and the accused agreed that they would plead guilty to
two charges and the other two charges would be dropped. At court, all of the
charges were on the indictment. This was because there was a new prosecutor
who said the charges were inappropriate to be dropped. The judge stayed the
proceedings and said it would not be in the public’s interests for the prosecution
to go back on their word. Thus, if the prosecution defaults on an agreement
made in the process of charge bargaining, it is possible for the judge to stay
the proceedings.
PLEADING GUILTY
Allison (2003)
Allison insisted that he was innocent the entire time and instructed his lawyer on
this basis. The prosecution and Allison’s lawyer had discussion about a possible
plea negotiation. Allison’s lawyer never told Allison about this. He claimed that he
did not know of the plea bargain that was offered to him and lost an opportunity.
However, the court found that the guilty plea was freely and voluntary made.
Gadaloff [1999]
Gadaloff worked for the Council and was caught carrying bags of money out of the
council office. He claimed that the money came from Russian relatives (no
evidence of Russian relatives). His lawyer “pressured” him to plead guilty. He
pleaded guilty and was sentenced. He appealed against the conviction on the basis
that he was pressured to plead guilty. The lawyer admitted that his advice was
heatedly expressed. It was held that the pressure was not inappropriate as the
plea was still freely and voluntary made.
Cameron (2002)
Cameron imported drugs, which he thought were ecstasy. Cameron refused to
plead guilty until the analysis comes back. The analysis came back that it was
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amphetamines. The plea of guilty did not just show remorse but also that a plea of
guilty facilitates the justice process.
Meissner v R (1995)
Meissner organised a prostitute (Perger) to go onto a loveboat and take photos
with politicians. Meissner wanted to sell these photos for money. Perger made a
stat declaration that she then withdrew. She then changed her plea. It turned out
that Meissner had given her money to change her plea.
This case indicated when a court will accept a guilty plea:
‘A court will act on a plea of guilty when it is entered in open court by a person who
is of full-age and apparently of sound mind and understanding, provided the plea is
entered in exercise of a free choice in the interests of the person entering the plea.
There is no miscarriage of justice if a court does act on such a plea, even if the person
entering it is not in truth guilty of the offence.’
Baker & Bates (2002)
A 16 year old girl (Baker) jumped on the front of the car, scratching the car. The
owner of the car called the girl a slut. Baker told her boyfriend (Bates) that the
man called her a slut. The two people then kicked the man to death. They pleaded
guilty to manslaughter; however, the judge gave the highest sentence because the
facts were so heinous and there were no reasons. If there is a guilty plea, it is up
to the judge’s discretion to reduce the sentence.
BAY [2005]
The accused was charged with sex offences against his step-daughter. He wanted
to see the record of the interview before he entered a plea. He failed to see it so he
pleaded guilty. The court said while it wasn’t a very early plea, it was helpful as it
was before the trial had started. The plea suggested that he was willing to
cooperate with authorities and save his step-daughter from having to give
evidence.
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Stuck [2008]
The accused did not enter a plea until there had been a full hand-up committal that
took several days. He then indicated that he would plea guilty. The court indicated
that this was not a timely plea but was still helpful.
Maxwell v R [1996]
The accused was charged with murder. He agreed to plea guilty to manslaughter
due to diminished responsibility. However, the evidence in relation to diminished
responsibility was problematic. The HCA said that a judge could refuse to accept
the plea if doing so amounted to an abuse of process.
R v Nerbas [2011]
A man had the role in a drug importation plan of accepting the drugs that were
hidden in computer monitors. His defence was that he didn’t know anything about
it. The prosecution had evidence that in his business there had been some internet
searches about ‘custom drug bust monitor’, ‘recent drug bust in computer’, etc. He
claimed that it was a co-employee who must have done this. It turned out that
there was police surveillance that the co-employee was nowhere near the
computers when the searches were conducted. During the trial, his lawyer told
him to plead guilty or they would quit. Later on he tried to withdraw this plea
before the jury came back in. On appeal, it was found that a plea can be
withdrawn at any time before the sentence with the leave of the court.
It was held that a plea can be withdrawn if:




The guilty plea does not constitute conviction
A conviction on a plea of guilty is provisional upon imposition of a
sentence
A plea may (with leave of the court) be withdrawn any time before
sentencing
In order to obtain leave to withdraw applicant must show a miscarriage
would occur if leave is not granted
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DOUBLE JEOPARDY
Willersdorf [2004]
There was a plan that the accused would tie up a woman and damage the property
in her house. He was charged with aggravated robbery. The judge failed to direct
on the alternative verdict of simple robbery. The accused appealed on this basis.
The key issue of this case was when does the judge have to give a direction on
alternative verdicts. This will depend on whether or not the alternative
verdict arises for consideration on the whole of the evidence?
Rehavi (1998)
Rehavi was at a pub. He smashed a glass on the bar and injured the victim (which
would constitute intended GBH). He claimed that he hit the accused in the face
(which would constitute simple GBH). He was charged with intended GBH. The
judge didn’t direct on simple GBH. Rehavi appealed. It was held that the alternative
verdict of simple GBH should have been offered to the jury.
Walton v Gardiner (1993)
Doctors engaged in deep sleep therapy, which resulted in the death of several
patients. Charges were laid against the doctors but there was significant delay. The
charges were permanently stayed. Further evidence was gather by prosecution.
The prosecution tried to charge the doctors on other similar offences. The court
said that the substance of the charges were very similar to the substance of
charges that were permanently stayed. Thus, it would be offend the principle of
double jeopardy to allow the charges.
Viers
The accused was found guilty of possession of drugs. He was charged under health
legislation. He was rhen charged under drug legislation. The court held that it
would be an abuse of process (and offend the double jeopardy principle) to
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allow the second charge to continue. The charge was stayed
Rogers (1994)
Records of interview were excluded in a trial for an armed robbery charge. Rogers
was charged years later with other armed robbery charges. He tried to bring the
excluded evidence. This was not allowed as allowing excluded evidence to be
brought back in later proceedings would amount to an abuse of process.
Carroll (2002)
Carroll was charged with sexually assaulting and killing a child. He was charged
with murder based on the bite marks on the child. Carroll insisted that he was
innocent. He was convicted but the conviction was set aside on appeal. Years later,
when forensic evidence became available, the bite marks were linked to Carroll.
However, he could not be charged with murder or sexual assault due to the double
jeopardy rules. Carroll was then charged with perjury (lying in court). The HCA
held that this breached the rules of double jeopardy as it effectively
overturned the original acquittal, rendering the original acquittal was
incorrect in the first place. This was known as the controversion rule – an earlier
acquittal cannot be controverted in later proceedings, even if in relation to a
different offence.
Pearce v R (1998)
Pearce broke into a house and attacked the victim. He was charged with
aggravated burglary and GBH. He argued that the two charges would offend the
double jeopardy rules as the aggravated burglary relied on the GBH that occurred.
The court said that this was not double jeopardy as each charge involve
proving different essential facts. It was stated that the option of concurrent
sentences would help with the problem of double jeopardy.
R v G & B [2009]
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The accused was serving multiple life sentences. He had some friends who were in
trouble. He confessed to their crimes. Held the confession was manipulative and
cynical and not compelling.
WEEK 6: TRIAL PROCESS
PROSECUTION DISCLOSURE
R v OL [2004]
The prosecution disclosed medical evidence during the trial (much later than
expected). The defence applied to stop the proceedings. The judge refused this
application as the late disclosure did no guarantee a real chance of acquittal.
R v HAU [2009]
A victim impact statement was presented at sentencing, which is the normal
practice. However, the victim impact statement was inconsistent with the victim’s
statements during the trial. The accused argued that this caused him to suffer a
disadvantaged which could lead to real change of acquittal. The court overturned
the decision.
Mallard v R [2005]
The prosecution withheld significant evidence about the weapon used that did not
support the prosecution’s case. It was held that the lack of disclosure rendered
the trial and the conviction unfair.
DEFENCE DISCLOSURE
R v Erasmus [2006]
A man murdered his de facto spouse. At the police interview, he said that he was
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with a man named Ian Brittin at the time. Brittin refused to talk to the police and
eventually died. Eramus did not put anything about this to the court during the
committal. During the trial, Eramus tried to get someone associated with Ian
Brittin (his wife) to give alibi evidence. The court held that the was not allowed to
do this as it was too late and the issue had not been raised in the trial.
The judge stated that it was not possible to confirm Eramus’ alibi through Brttin’s
wife as:
(a) no notice of alibi had been given in relation to the wife;
(b) no application for leave to call alibi evidence from her had been made;
(c) no application had been made for an adjournment to ascertain if she was
available to give evidence
R v ZSK [2006]
The accused was charged with rape. He gave notice of alibi evidence as to his
whereabouts on certain dates when the offence was alleged to have been
committed. When the indictment was presented, the dates alleged spanned
between January and March. The Court granted a stay of the proceedings as the
prosecution should not be allowed to respond to alibi evidence in this way.
R v de Voss [1995]
The accused was charged with murder and wanted to plead diminished
responsibility. He presented the relevant reports late in the trial. The court held
that the lateness was prejudicial to the prosecution’s case. In the end, de Voss was
acquitted as the expert evidence was strong and supported by other evidence.
HEARINGS IN THE MAGISTRATES COURT
Brown v Owen [2005]
There was a directions hearing in relation to the defence getting a police brief of
evidence. The defence kept on seeking adjournments on the basis that the
prosecution was not disclosing relevant documents. The Court allowed the
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adjournments but eventually the matter was forced on. On appeal, it was held that
there should have been an adjournment until disclosure had occurred.
JUDGE ALONE TRIALS
R v Prisk and Harris [2009]
If a trial date is already set and the judge is known, there must be special reasons
to have a judge alone trial. What amounts to special reasons is not to be confined
by specific rules. The context must be considered. Reasons must be out of the
ordinary, distinct, particular and carry special reason. The reason does not
need to be extremely unusual, just out of the ordinary.
R v Clough [2008]
In order to obtain a judge-alone trial, it must be in the interest of justice. The
individual case must be considered; rather than the category of case.
R v Ferguson [2008]
There was very large pre-trial publicity. In some cases like this, judge alone trials
may be more appropriate.
JURY TRIALS
Kingswell v R [1985]
This case discussed the pros and cons of a jury trial.
PROS:


Jury trials are clearer so that the jury can understand what is going on
Jury trials have the appearance of impartiality
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

Ensure fair play (as the lawyers will want to appear well behaved as bad
behaviour will turn the jury off then)
Random selections (ordinary person)
CONS:




Takes a long time (a lot of delays)
Costs a lot of money
More possibilities for appeal (appeal the judge’s directions)
Complex evidence can confuse juries
Stuart [1974]
Stuart burnt down the Whiskey-A-Go-Go club and charged with constructive
murder. There was lot of pre-trial publicity. He argued that this was a special
situation and that there could be no jury empanelled that would lack prejudice.
This was an exercise of s47. The trial was allowed to go ahead as it was held that
this was not a case where no jury member could be impartial.
D’Arcy (2001)
A school teacher sexually assaulted a number of young children. He became a
politician. The charges came back to haunt him (delayed trial). There was a lot of
pre-trial publicity. He argued that the proceedings should be stayed as there was
no way of getting an impartial jury. Exercise of s47 (asked questions to potential
jury members). The judge was satisfied that the trial could proceed and the jury
members lacked prejudice.
Tichowitsch [2006]
One of the jury members sent a note to the judge during a sexual assault trial
saying that he didn’t think he would be prejudiced towards the accused but that
his granddaughter has been raped at a train station. The judge dismissed the jury
and discussed with the lawyers. Stated that victims of crime had never been
excluded from jury service, so this man should not be excluded. The accused
appealed on the basis that the jury member was prejudice. The appeal was not
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allowed.
Edwards & Ors [2000]
The jury could not make a decision. They were put in a hotel overnight. One of the
jury members went out and got really drunk. The police officers found him and he
stayed at the police station overnight. As the police were involved with the trial,
the accused appealed his conviction on the basis that the jury member was
prejudiced. It was found that an ordinary member of the public would view
this as prejudicial.
R v McCosker [2010]
This case occurred in a small country town. A lot of people were challenged as they
were known to the accused. A friend of the accused’s ex-wife was allowed on the
jury (the defence did not challenge for cause). The accused was convicted. He
appealed on the basis of impartiality. The Court of Appeal discussed whether one
can waive their right to an impartial jury. The test to be applied is deciding if a
jury member is prejudicial is whether there would be a reasonable
apprehension that the juror would not discharge their role properly.
R v Metius [2009]
The accused killed his son. The jury retired. One of the jury members became
really distressed and asked for a doctor to come. She said that she felt threatened
by other jury members. The judge ordered for that jury member to be discharged.
It was held that it may seem unfair to continue with a jury who had been
violent towards a jury member,
Myles and Myles [1995]
A juror went to the scene of the crime and took photos and other evidence. He then
showed it to other jury members. The key question was whether this prejudiced
the trial It was held that this evidence collected was not central to the case;
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thus, not prejudicial.
R v McClintock [2009]
The jury had been considering the matter for eight hours. They didn’t
communicate anything with the judge. The judge discussed the majority verdict
option. Should the judge have given the jury a Black Direction (direction to try
harder and make a decision) before discussing the majority verdict option? The
Black Direction is optional, but preferable. The conviction was not quashed.
R v Royal [2010]
The judge gave the jury a majority verdict decision. The jury came back within four
minutes with a guilty verdict. The accused appealed that this was too quick. The
court stated that there is no time requirement for majority verdicts.
Black v The Queen (1993)
Developed the Black Direction.
HIGHER COURT TRIALS
Antoun (2006)
In cases of ‘no case submissions’ (where the defence states that there is
insufficient evidence to support the charge), the key question is whether an
ordinary jury member, properly directed, convict?
R v James, Tappin and Thomas [2009]
A security guard punched a guy and killed him. The guy killed had heart damage,
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an amphetamine problem and was morbidly obese. The defence argued that the
prosecution had not proven causation and made a no case application. The judge
directed the jury to come to an acquittal.
NOLLE PROSEQUI
Saunders (1983)
It was discovered that the prosecution’s case was based on fabricated evidence.
The prosecution tried to enter a nolle prosequi very late in the trial. The Court
refused to allow this as it would amount to an abuse of process.
Jell (1991)
The prosecution charged the accused with an inappropriate charge, which became
evident in the middle of the trial. The prosecution tried to enter a nolle prosequi,
The Court refused to allow this.
DPP (SA) v B (1998)
A prosecution witness failed to show up to court to give evidence. The Court
refused to allow a nolle prosequi in this case.
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WEEK 7: FAIR TRIAL AND ABUSE OF PROCESS
FAIR TRIAL
Dietrich v R [1992]
A fair trial is a trial that is run according to the rules. However, there are
exceptions and a trial that abides by all the rules may still not be fair. Also, there
are limits on a fair trial due to limits on resources.
McKinney v R (1991)
Aspects of fairness can change over time. In this case there was a lot of
discussion about exclusion of records of interview. Nowadays, we take it for
granted that a record will be provided.
Nth Aust Legal Aid v Bradley [2004]
A fair trial is not just about actual fairness; rather, also includes the perception of
fairness. “Impartiality and the appearance of impartiality are necessary for the
maintenance of public confidence in the judicial system.”
Johnson v Johnson [2000]
There was a claim that the judge in this case was bias. It stated that it is a
fundamental principle that justice is done and that justice is seen to be done.
Would a hypothetical, reasonable observer have perceived bias in the particular
case.
RPS v R [2000]
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The accused argued that the judge was biased against him because the judge had
interjected in the case in numerous ways. The judge had a bad relationship
with the defence lawyer (openly stated in front of the jury that the defence lawyer
was doing a bad job). The accused stated that the hypothetical, reasonable
observer would believe that the judge was bias. The Court held that judge’s must
do their best to avoid tension between themselves and lawyers and not to
give criticism in front of the jury (should dismiss the jury first).
Copsey [2008]
The judge asked 92 cross-examination style questions to the defendant. The judge
commented in front of the jury at various times that the defence case was “utterly
bizarre”. It was held that the judge’s behaviour was inappropriate and may have
influence the jury.
Cesan v The Queen
The judge slept during the trial during a lot of the trial. The accused was convicted
and he appealed on the basis that the judge did not properly supervise the court
and ensure there was fair trial. Even if there was nothing problematic about the
way that the trial was run, there is a perception of unfairness.
The test by French CJ: when the judge is noticeably and repeatedly asleep or
inattentive during the trial, there can be a miscarriage of justice. Putting to one
side minor lapses, a substantial amount of sleeping may have negative effects on
the trial.
Livermore (2006)
The prosecution lawyer made a lot of controversial comments in the closing
address. It was held that the prosecution should not make a submission to the
jury that is based upon material not in the evidence. They should not make
inflammatory or judgmental remarks, belittle or ridicule witnesses, impugne the
credit of witnesses unless the other side has an opportunity to respond and should
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not convey opinions of people based on their own opinion.
R v KP [2006]
In his opening address, the prosecutor made a statement to the effect that the
appellant could write the paedophiles handbook and referred to a further
complainant who had no charges. The Court held that this was inappropriate
R v Szabo [2000]
The prosecution and defence counsel were in a relationship for some time but had
broken up before the trial. During the trial, they stayed in the same motel but in
separate bedrooms. They admitted that they visited each other’s bedrooms. After
the trial, they rekindled their relationship. After his conviction, Szabo found out
about the relationship and appealed on the basis that there was not a fair hearing.
The Court held that this could amount to an appearance of bias.
Ebatarinja v Deland [1998]
The accused was an Aboriginal man from a very remote community who was both
deaf and mute. He could only communicate with two other people in his town via a
sign language that he had made up. It was impossible to find an interpreter. It
was held that there was danger of unfairness and convictions should be quashed
or proceedings stayed.
De La Espreilla-Velasco [2006]
The accused appealed against his conviction on the grounds that his interpreter
was not competent in his language. He had a translator go over the transcript and
found that what was actually said as different to what the interpreter had told him.
The appeal judge recognised the difficulty associated with interpreters as they
have to respond quickly. In this case, it was held that the interpreter was sufficient
(low threshold). It was held that there would be an unfair trial if an interpreter
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was denied to a person who needed it.
ABUSE OF PROCESS
PNJ v The Queen [2009]
The accused was charged with an assault. After he had served the penalty, he was
charged with murder/manslaughter for the same incident. In discussing the
principles of double jeopardy, the court determined what will amount to an abuse
of process.
It was stated that an abuse of process will exhibit at least one of three
characteristics:
 the invoking of a court's processes for an illegitimate or collateral purpose;
 the use of the court's procedures would be unjustifiably oppressive to a
party; or
 the use of the court's procedures would bring the administration of justice
into disrepute’
ABUSE OF PROCESS: DELAY
Jago (1989)
Jago’s trial occurred about 7 years after he was charged. He appealed on the basis
that the delay amounted to an abuse of process. It was held that there is no right
to a speedy trial; however, in some cases a delayed proceeding may amount to an
abuse of process. A delayed proceeding can only be stayed where the effects of
the delay will amount to an unfair trial (only in extreme cases). It is necessary
to consider the length of the delay, the reasons for delay, the accused’s
responsibility in trying to stop the delay, prejudice suffered by the accused and
public interest.
R v Edwards [2009]
This case concerned the reckless operation of an aircraft. There was a delay and in
this delay, evidence was lost. The accused sought a stay of proceedings. The Court
stated that you need to consider “whether in all the circumstances the
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continuation of the proceedings would involve unacceptable injustice or
unfairness”. The Court ordered that the proceedings were to continue as the
evidence was unknown and could not affect the case either way.
Khoury [2004]
A fire occurred in 1997. The trial was listed for 2001. There were 6 or 7
adjournments by the prosecution. By 2002, the accused had insufficient funds to
hire a lawyer. He sought to stay the proceedings on the basis of delay. The court
allowed this. Reasons for this decision was that it was the prosecution’s fault that
there was a large delay. There was also prejudice to the accused as he could no
longer afford a lawyer.
Gill (1992)
Approximately 22 years had elapsed between the incident and the trial. In the time
witnesses for the defence had died. The Court allowed a stay of proceedings.
Wrigley [1998]
The accused was convicted on several counts of bodily harm. The alleged assault
occurred in 1993. The trial occurred five years later. He was convicted. The
accused did not request a stay at the original trial on the grounds of delay. The
accused appealed on the basis that due to long delay, witnesses had dimmed
memories. The Court held that there should not be a stay because there was no
proof that dimmed memories would prejudice the accused. Dimmed memories
may even have helped the accused.
ABUSE OF PROCESS: PREJUDICIAL PUBLICITY
Glennon v R [1992]
Glennon was a Catholic priest. He was convicted with a number of sexual assaults
against young children when he was working as a youth worker. He was alo
acquitted of some offences. Glennon appealed his convictions and his convictions
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were quashed. The Crown appealed against the Court of Appeal’s decision. A radio
host ran a campaign against Glennon. The HCA considered the issue of pre trial
publicity. They set aside the Court of Appeals decision in relation to the pre-trial
publicity’s affect on the original convictions. The Court could order a delay to
allow for the media hype to die down.
R v Purdie [2008]
A journalist published a news brief in relation to the trial of a man charged with
sexual misconduct offences. He mentioned that the trial was going ahead but also
mentioned that the accused had other charges coming up. The judge ordered for a
new jury to be empanelled.
Dupas [2010]
There was massive media hype about a murder trial. The accused sought a stay of
proceedings on the basis that he could never get a fair trial. The Court ordered that
the trial should be delayed to allow the media hype to die down.
R v Kaddour [2005]
The accused’s lawyer was in the media due to accusations of tax fraud during the
accused’s trial. The trial judge consistently directed the jury on what they
should consider and what they should ignore. The accused sought a stay of the
proceedings. The application was refused.
Long [2001]
There was a lot of pre-trial publicity. It was held that in order to deal with
publicity, the trial can be moved to another city. In this case, the trial was moved
from Bundaberg to Brisbane. The trial was also delayed to one and a half years
after the incident occurred.
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Walters (2007)
When deciding whether to move a trial due to pre-trial publicity, you must
consider the costs and expenses, delay, system of the administration of justice, the
importance of hearing the offence where it was committed and the requirements
of a fair trial.
STAY PROCEEDINGS
Jago (1989)
“The problem: ‘tantamount to the refusal of jurisdiction to hear and determine the
matter arising on the presentation of an indictment. Such a right would impose a
discretionary time limit on the presentation of indictments.”
‘To justify a permanent stay of criminal proceedings, there must be a fundamental
defect which goes to the root of the criminal trial of such a nature that nothing that
the trial judge can do in the conduct of the trial can relieve against its unfair
consequences…”
ABUSE OF PROCESS: OPPRESSIVE PROSECUTION
Williams v Spautz (1992)
There was a conflict between two academics. There was an allegation that
Williams had plagiarised Spautz’s thesis. Spautz charged Williams with
defamation. It was held that the purpose of the defamation was vindictive and
not a proper purpose of obtaining justice.
ABUSE OF PROCESS: MALICIOUS PROSECUTION
A v New South Wales [2007]
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‘A’ was a police officer charged with sexual assault against his children. There was
evidence that one of the children admitted that they were lying. The prosecution
persisted with the charge. There was an acquittal, but he demonstrated that there
was knowledge of the lying before trial; thus, the prosecution had acted with
malice.
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WEEK 8: LEGAL REPRESENTATION
LEGAL REPRESENTATION: FAIR TRIAL
McInnis (1979)
In Dietrich (the key case on legal representation), the majority adopted Murphy J’s
dissenting judgment in McInnis. Murphy J stated that you need to ask would a
person lose the prospect of a fair trial if they were unrepresented? In cases of
serious crimes, a person should have the right to legal representation.
Dietrich (1992)
Dietrich allegedly imported a large amount of heroin to Australia in condoms that
he swallowed. He was charged with various drug offences. He requested legal aid
to represent him. Legal Aid agreed that they would represent him if he pleaded
guilty. He refused to plead guilty; thus, he had no legal representation. Dietrich
appealed to the HCA on the basis that he lost a real chance of acquittal because
he was unrepresented and that there was an unfair trial. The HCA found in
favour of Dietrich. Held that a trial can be unfair if the accused has no legal
representation (but not always); however, there is no absolute right to have
publicly funded legal representation.
The rule: “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
of his or her part, is unable to obtain legal representation, … in the absence of
exceptional circumstances, the trial … should be adjourned, postponed or stayed
until legal representation is available. If, … an application that the trial be delayed is
refused and, by reason of the lack of representation of the accused, the resulting trial
is not a fair one, any conviction of the accused must be quashed by an appellate court
for the reason that there has been a miscarriage of justice in that the accused has
been convicted without a fair trial …”
LEGAL REPRESENTATION: INDIGENT
Marchi (1991)
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The accused was convicted of manslaughter. He appealed he conviction on the
basis of a lack of representation. There was an issue in relation to whether the
accused was ‘indigent’. It was held that indigent did not mean that the accused
lived in poverty; rather, it was the inability to pay for appropriate legal
representation. Appropriate legal representation will depend on the
circumstances.
Smith (1997)
This case made a number of comments in relation to determining whether an
accused is ‘indigent’. It was stated that the Court must consider whether the
accused can obtain finances from relatives or a de facto spouse, what
initiative the accused has undertaken to obtain finances (e.g. mortgaging a
house) and that you must consider not only the accused’s financial position at the
time of the trial but also at the time the accused knew they had to run a trial
(and look at whether the accused has been responsible with their money).
LEGAL REPRESENTATION: SERIOUS
Dietrich (1992)
In this case, when determining whether an offence is “serious”, it was stated that
you should consider whether the offence is a serious indictable offence, is heard
in a judge and jury setting and whether punishment may involve a threat to
liberty (imprisonment).
Essenberg [2002]
The accused was expected to be fined $300. It was held that this fine was not
serious.
LEGAL REPRESENTATION: NO FAULT
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Small (1994)
The accused was charged with robbery and theft. He was the typical small-time
criminal. There were numerous attempts for the lawyers to meet with the accused
but he never showed up to the meetings. This amounted to fault as the lack of
representation was deliberate or wilful.
Craig (1995)
When determining whether an accused person is at fault, the Court must consider
the accused’s behaviour throughout, not a specific incident. Thus, it is possible for
an accused to have a small fault but still be allowed access to the Dietrich
principle.
Rich (1997)
The accused were reckless with their money after they were aware that they
would have to fund a trial. It was held that there was fault as they did not save
money.
Batiste (1994)
The accused had access to Legal Aid but kept on changing her lawyer. This
amounted to fault.
R v East [2008]
The accused sought several adjournments in order to try and get a lawyer. The
case was forced on because the Court though the adjournments were a delay
tactic. On appeal, it was held that the case should not have been forced on and the
accused should have been given an opportunity to explain his situation.
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Wilson (1997)
In relation to an accused rejected legal assistance: “Ordinarily, an accused who
rejects the legal assistance offered or dismisses his or her appointed lawyers
conducts his or her own defence will not escape the consequences of such a decision
or steps subsequently taken in the trial.”
Promizio [2004]
The accused behaved very poorly towards her lawyer. It was held that her
behaviour was intractable and that this amounted to fault.
Gassy [2010]
The accused couldn’t afford a lawyer for the whole trial but could afford to have a
lawyer for a certain part of the trial. That part of the trial was important as the
accused sought to exclude evidence. The trial judge did not allow him to have a
lawyer for only one part of the trial. On appeal, it was held that an accused could
have a lawyer for only part of the trial.
LEGAL REPRESENTATION: EXCEPTIONAL CIRCUMSTANCES
Fuller (1997)
If the accused was a skilled litigant (e.g. an experience lawyer), this amounts to
an exceptional circumstance and they will not be allowed access to the Dietrich
principle.
Milat (1995)
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The accused sought Legal Aid to the extent that it would match the funds that the
prosecution had (the prosecution had an SC). The Court held that the key question
is adequacy and that the accused did not need to have funds to match the level of
the prosecution; rather, funds just needed to be adequate.
Souter (1997)
The accused was granted Legal Aid that was completely inadequate for the
trial. This effectively meant that she was unrepresented. The Dietrich principle
applied to the situation.
Wilson (1997)
The accused had a mental illness and kept on changing his lawyer. This was held to
be an exceptional circumstance rather than fault due to his mental illness.
LEGAL REPRESENTATION: UNREPRESENTED AND COMPETENCE
Eastman [2000]
Held that “an accused may be denied a fair trial because his or her counsel is
flagrantly incompetent or because he or she does not have any legal
representation.”
Birks (1990)
In order to have access to the Dietrich principle, the accused’s lawyer must be
flagrantly incompetent. A few bad decisions may not render a lawyer flagrantly
incompetent.
TKWJ [2002]
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The accused was charged with sexual assault. He claimed that his Counsel was
incompetent because he should have called evidence of good character but he
didn’t. Held that this did not amount to unfairness.
Nudd (2006)
The accused was caught red-handed with cocaine. His lawyer was flagrantly
incompetent (did not even know what Act the accused would be charged under).
However, the accused did not lose any real change of acquittal.
LEGAL REPRESENTATION: UNREPRESENTED PERSON ISSUES
MacPherson (1981)
If the accused is unrepresented, the judge should give information and advice to
the accused. However, he should not assist the accused too much.
Damjanovic v Maley (2002)
If the accused is unrepresented, they may be allowed a McKenzie friend (up to
the discretion of the Court to allow). This is a friend of the party. Relevant
considerations include the complexity of the matter, difficulties for the
unrepresented person, party protection, disciplinary code, higher/lower court and
the interests of justice.
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WEEK 9: CONSIDERATIONS UNDERLYING SENTENCING
THE SENTENCING HEARING
R v Ku et al [2008]
When giving his view during the sentencing hearing, the prosecution made
appalling comments about the offender. It was held that when Counsel is giving
their view, the view should be limited to facts.
Porter [2002]
During the sentencing hearing, the judge referred to the offender as a ‘spoilt brat’,
a ‘liar’ and other name. It was held that during a sentencing hearing, the judge
should avoid any actual or appearance of bias.
JUDICIAL DISCRETION
Markarian [2005]
Held that when determining an appropriate punishment, the instinctive
synthesis method should be used (considering all the relevant facts and making a
decision); rather that the staged process (where there is an appropriate remedy
and the judge adds and subtracts depending on particular circumstances). The
staged process may be appropriate in some minor matters.
Pesnak (2000)
A couple were Breathernarians (believed that there was something in the air that
you could live off). They introduced a new woman into their group. She became
weak and died. The Pesnak’s were found guilty of negligent manslaughter. The
Pesnak’s lawyers stated that they felt remorse. When deciding the appropriate
sentence, the judge look at cases about negligent manslaughter and cases
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about remorse.
R v Schmidt [2011]
A sentence that is crushing is not appropriate. He overall effect of the sentence
must be considered.
Veen (No.2)
Veen was a homosexual, Aboriginal, mentally disabled male prostitute. One of his
clients did not pay him so he stabbed the client to death. The trial judge gave him a
lengthy imprisonment sentence. It was reduced to 12 years by HCA. After he got
out of jail he went back to his work as a prostitute. He killed another client. Due to
his prior conviction, he received life imprisonment (the maximum penalty). It was
held that maximum penalties are reserved for cases within the worst cases.
However, it does not mean that a lesser penalty must be imposed if a more
heinous situation is imaginable (as this will always be the case).
Fernando [1999]
A few young men stalked, sexually assaulted and murdered a nurse. The Court
held that this was a particularly heinous situation and that the maximum penalty
was appropriate.
Murdock (1980)
It was stated that when determining whether the maximum penalty should be
imposed, the court should consider the offence (its seriousness), the offender’s
criminal history and the offender’s risk factors (likelihood to re-offend).
McQuire & Porter [1999]
143
One person pleaded guilty while the other did not. They received different
sentences. It was argued that they should receive the same sentence as they
committed the same offence. This argument was rejected.
AIMS OF PUNISHMENT
Clarke (1975)
A lady stole a flower pot. She had a history of minor thefts. It was stated that the
Court is not a dustbin that social services can dispose of difficult members of the
public.
Dooley v Polzin (1991)
A man was accused of a petty theft. He had been in front of the Magistrate Court
about 45 times for a lot of other small crimes (e.g. failing to pay for haircuts, taxi
fares, etc). He argued that this was a ‘Clarke’ case and that it was not appropriate
for him to go to jail. The Court held that it was appropriate for him to go to jail.
Amituani (1995)
A drunk man got into a fight with another man. The victim became a paraplegic.
When determining the sentence, the Court was very mindful of general
deterrence. They recognised that drunken, young men were a problem and a
message needed to be sent to the public through the penalty.
Pangallo (1991)
A lawyer tried to give a $500 bribe to a prosecution in an attempt to reduce
charged. The lawyer was charged with bribery. When determining the sentence,
the Court was mindful of general deterrence and stated that the penalty needed to
be higher in order to deter others from doing the same thing (especially as the law
is a practice in which corruption can flourish).
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R v Sabanovic; ex parte A-G (Qld) [2009]
The accused was charged with perjury. The Court stated that this was a very
serious crime that struck at the essence of the justice system and the public’s
confidence in it. It was stated that it is important that offences that may bring the
justice system in to disrepute are given harsh penalties to act as a general
deterrence.
FACTORS
Colless [2010]
A man was charged with multiple rapes of women as they were running.
Mitigating factors in this case included that the accused cooperated with
authorities when arrested, never had a weapon and never threatened to kill
anyone. Aggravating factors included that there were 18 rapes over a short time
frame, he used violence, the rapes were planned and he ambushed and selected
women. When determining the sentence, the judge must balance the
aggravating and mitigating factors.
Gulyas (2007)
A 79 year old man, with no prior convictions, had an encounter with a drug dealer.
He tried some cannabis and he liked it. He got a job selling heroin. He was
discovered and was charged. It was held that old age is not a mitigating factor
unless associated with an illness.
York (2005)
The accused committed a serious offence. In preparing for the sentencing, she
assisted the prosecution with information about people involved in drugs. Because
of this, she received death threats from inside the women’s prison that she would
go to if sentenced to imprisonment. The court took into account her help and the
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death threats when determining the sentence. She only received a suspended
prison sentence.
Neal (1982)
An Indigenous man spat at a store manager. He was charged with assault. The
accused received 2 months imprisonment at the first instance. It was increased to
6 months in the Court of Appeal. The sentence was reduced significantly in the
HCA. When imposing sentences, the courts must take into account all facts
affecting a person, including their membership with a cultural group.
Tilley (1991)
The accused claimed that her 3 year old daughter would be effectively orphaned if
she was sentenced to imprisonment. The effect imprisonment would have on
others was taken into account; however, in this case, this was not enough to deem
a prison sentence inappropriate.
Burns (1994)
Both parents were charged with trafficking cocaine and were both sentenced to go
to jail. It was held that the fact that their children would be effectively orphaned
was not enough to mitigate their penalty. There had to be exceptional
circumstances.
WEEK 10: PUNISHMENT AND PENALTY
RECORDING A CONVICTION
Walde v Hensler (1987)
If an offence is ‘trivial’, it is less likely that a conviction will be recorded. When
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determining whether the offence is ‘trivial’, the conduct of the accused and the
circumstances of the offence will be considered.
R v Ndizeye [2006]
This case concerned a false declaration in relation to traffic offences. The trial
judge focussed on the seriousness of the offence (it was an offence against the
administration of justice) and ordered for the conviction to be recorded. The
offender appealed against the conviction on the grounds that recording the
conviction would impact his future employment prospects. The Courts
accepted this and removed the conviction.
R v Briese (1997)
Held that trust issues may lead to recording of a conviction in order to protect
future employers. This will depend on the type of offences. E.g. will record a
conviction of fraud in order to protect future employers from being the victim of
fraud.
R v SAT (2006)
The offender (SAT) was convicted of indecent dealing of an underage girl. SAT and
the girl involved were both members of a Church. The Church took a lot of action
to prevent this happening again. The Court held that a conviction did not need to
be recorded in exceptional circumstances, such as this.
R v Mirza (2008)
The offender was convicted of attempted indecent dealing of a 12 year old girl. The
offender put on probation and no conviction recorded. The Attorney-General
appealed this. On appeal, the Court held that no conviction should be recorded.
When determining whether to record a conviction in sexual offence matters,
factors to consider include  pre-meditation, actual contact, impact, a guilty
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plea, employment and community service, rehab prospects and impact of
conviction.
OTHER MINOR PENALTIES
R v Ferrari [2007]
The offender was a passenger in a stolen vehicle. He was placed on a good
behaviour bond and ordered to pay back $1000 of restitution for the damage to
the car. The offender appealed on the basis that it was excessive. His appeal was
not successful. The judge discussed the difference between restitution and
compensation. What was actually ordered in this case was compensation (paying
money for damage or loss) and not restitution (returning goods).
R v Civoniceva [1983]
Held that restitution and compensation are not penalties in themselves. They
are to be awarded in addition to other penalties.
FINES
Woolard v Ellid [1996]
When determining the amount of a fine, the financial circumstances of the
offender and the burden of the fine on the offender can be taken into account.
This means that a rich and poor person could receive a different fine for exactly
the same offence.
R v Meid [2006]
The offender was given $700 fine with 6 months to pay. The offender appealed the
fine and argued that because she lived in VIC she had no option but to pay the fine,
as she could not convert it to community service work. She was unemployed. It
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was held that when awarding a fine, the Court does not have to consider the
offender’s capacity to convert the fine to community service. However, this
case also held that it is possible to appeal against the amount of the fine (the
offender can claim that the fine is excessive and that they do not have the funds to
pay the fine).
R v Prentice [2003]
Prentice was convicted of winding back the odometers on 34 cars. The maximum
penalty was $40,000 per offence. Prentice was given a $40,000 fine (about $2000
per offence). He appealed the amount and argued that it was excessive as he no
longer had a job, was bankrupt and had no income. The Court reduced the fine as it
was crushing.
PROBATION
R v Hood (2005)
The offender was convicted of aggravated burglary (he used violence with a
Japanese sword against the victim). He was also charged with assault offences. He
was sentenced 27 month in prison and also a community service order (CSO). He
appealed against the CSO. The court made comments about probation and what
probation can be sentenced with.
Held that probation can be charged alongside:
 Imprisonment up to 12 months (even if it continues as a suspended
sentence after that period) on other counts
 With a suspended sentence on other offences
 Cannot have a suspended sentence and probation for the same offence
 Not with an Intensive correction order (inconsistent with probation which
is supposed to be community based)
COMMUNITY SERVICE ORDER
Nieto v Mill (1991)
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The offender stole power tools from a store twice. He was convicted of both
offences. The first penalty was a $100 fine. The other was an 80-hour CSO. He
argued that the CSO was manifestly excessive as 80 hour is a lot more severe
compared to the $100 fine. He argued that if you multiplied his usual wage of $20
by 80, the CSO would equate to a $1600 fine. The Court held that this is not the
correct analysis and a CSO should not be translated to a fine.
R v Vincent [2000]
A disabled, 53 year old man let bikies drive around on his block of land. The bikies
gave him cannabis seeds and told him he could make money from them. He
planted them and grew a large amount of cannabis. He told the police that he was
growing them to make money because he could not get work but he did not know
much about the crop (didn’t know how to harvest it). He had no previous
convictions. The Court held that a CSO and suspended sentence would be
appropriate in the circumstances. Thus, it is possible to have both a CSO and
suspended sentence together,
INTENSIVE CORRECTION ORDER
Tran [2002]
Tran received a 12 month ICO for armed robbery with violence. The AttorneyGeneral appealed the sentence, claiming that it was not serious enough. The Court
emphasised that an ICO was very serious and akin to a period of
imprisonment.
SUSPENDED SENTENCE
Dinsdale (2000)
Dinsdale was convicted of sexual penetration of a child/indecent dealing of a child
under 13. He pleaded guilty. He received concurrent suspended sentences. He
appealed against the sentence. The Court of Appeal discussed how suspended
sentences work.
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When deciding whether to award a suspended sentence, the relevant questions
are:


1. Is imprisonment an appropriate sentence in the circumstances?
2. Is suspension appropriate in the circumstances?
York (2005)
York co-operated with police once arrested and received death threats from
people inside the prison where she would have been sent. It was held that a
suspended sentence was appropriate in the circumstances for the safety of the
offender.
Summerlin [2009]
The offender received a suspended sentence in relation to MDA offences. After
convicted, he committed some more MDA offences: thus, the suspended sentence
was breached. It was stated that there was discretion about what happens next –
the offender does not automatically have to serve the period of
imprisonment if a suspended sentence is breached. The Court must consider
the nature of the offence, rehabilitation and how far into the suspended sentence
the offender got without re-offending.
SERIOUS VIOLENT OFFENDERS
McDougall; Collas [2006]
When deciding whether to declare someone a serious violent offender or to award
a period of imprisonment for ten years or more, the Court must consider the effect
on parole, the level of violence involved and prior convictions.
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152
WEEK 11: APPEALS – CONVICTION
APPEALS FROM THE MAGISTRATES COURT
McCarthy v Xiong (1993)
The police prosecuted a person with the charge of theft. The person who owned
the stolen property (the victim) was considered to be ‘aggrieved’ for the purposes
of s222 Justices Act.
McKinlay v Commissioner of Police [2011]
McKinlay was charged with assault. He pleaded guilty in the Magistrates Court. He
sought an extension of time to appeal the conviction to the District Court. The
District Court said that they don’t want to widen the prosecution’s power to appeal
against an acquittal.
Hall v Bobbermen [2009]
A man was charged with unlicensed driving in Queensland. He had a NSW licence
in NSW but not a QLD licence. He pleaded guilty but then subsequently thought
that he was licenced because he had a NSW licence. The court held that as this was
not a charge in law, he could not have pleaded guilty to it. Thus, the guilty plea
did not count.
Ajax v Bird [2010]
Ajax was charged with having defective parking lights. He was given a notice to go
to the police station so they could assess that he had fixed the lights. He was
convicted of breaching this notice. He appealed on the basis that he did go to the
police station but no one was there. The Court held that if the appellant's plea
was equivocal or, upon analysis amounted to a plea of not guilty, then there
will be no guilty plea.
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Rowe v Kemper [2008]
A man was changing in the disabled toilets. The cleaner asked him to move. The
cleaner gave him five minutes. After that, five minutes, the cleaner asked him to
move but he didn’t. The cleaner got the police. The police moved on the defendant.
It was stated that the judge hearing the appeal should afford respect to the
decision of the magistrate and bear in mind any advantage the magistrate
had in seeing and hearing the witnesses give evidence, but the judge is
required to review the evidence, to weigh the conflicting evidence, and to draw his
or her own conclusions.
Murray v Radford [2003]
Murray was a councillor who took part in council matters in which he had a
financial interest. He was found not guilty. He sought costs. The Magistrate decided
that because Murray had acted suspiciously, costs should be refused. Murray
appealed against this to the CoA. The CoA found the decision to refuse costs
appropriate and then ordered Murray to pay the prosecution’s costs. The CoA has
a wide discretion as to costs.
Harrison v Wilkins [1996]
The offender was convicted of drink driving. The offender was disqualified from
driving. He was given the opportunity to apply for a provisional work-related
licence, which he never got around to doing. He was subsequently found driving
without a licence for work purposes. The key issue was whether the accused was
unlicenced or disqualified? The Attorney-General referred this point of law to
the CoA for clarification. He was unlicenced as he had not applied for his licence.
APPEALS FROM DISTRICT/SUPREME COURT
Fitzgerald [1999]
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Fitzgerald went to a house looking for money and drugs. He went to the wrong
house. He assaulted one of the people in the house and shot andkilled one of the
ladies. During the trial, the judge made a bad direction (he said that accused had to
prove something). This was a law alone appeal point.
Ostrowski v Palmer [2004]
The accused was fishing for rock lobsters in an area where he wasn’t allowed to
fish. He did not know of this; rather, he was told that he could fish there. The key
question was whether this a mistake of fact or law? It was held to be a mistake of
law.
Tait [1999]
The offender was unrepresented. He was four and a half months out of time to
appeal his conviction. He applied for the time limit to be extended. It was held that
the time limit may be extended if there is a good reason to account for delay,
the appeal has viability and it is in the interests of justice.
R v Riley [2009]
The accused was charged with two counts of rapes. The accused alleged that he
did not do the penetration. The charge was amended to aiding and abetting a rape.
The penalty for this charge was the same as rape. When the offender went to
prison, he found out that he could apply for an extension of time for appeal. It was
held that there was no prospect of success, thus no extension granted. The
strength of the appeal and the prospects of success are relevant in deciding
whether to grant a time extension.
R v Hatten [2006]
The accused was convicted of murder. He was granted an indefinite sentence. It
was held that features that the accused possesses (e.g. youth, low IQ, mental
disability, etc) are important considerations in determining whether to grant
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a time extension.
R v A [2003]
In an appeal, the Appellant tried to enter a letter from a witness admitting that
they lied. It was held that the evidence was not fresh (not available at the
original trial with reasonable diligence) and compelling; thus, could not be
admitted.
Gallagher v The Queen [1986]
Gallagher stabbed another prisoner to death in jail. There was evidence from other
prisoners that he did so. Another person later stepped up and claimed that they
killed the person. The court said that the evidence was not credible and could
not be admitted
APPEAL GROUNDS
M (1994)
M was charged with sexual assault and rape of his daughter. The only evidence
was from the daughter. There were a lot of conflicts in the daughter’s evidence.
The jury heard all of the evidence and convicted M. He appealed on the basis that
the jury verdict was unreasonable/dangerous given the evidence. The jury has the
advantage of hearing and seeing all of the evidence. However, it is possible for
the CoA to look at the transcript and see whether it displays inaccuracies,
lacks probative force or is tainted in some way. The question is whether on the
whole of the evidence it was reasonable for the jury to find guilty beyond
reasonable doubt.
Nicholls (2005)
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In the record of a police interview, the police sought to put to the accused in the
recording admissions that they had made off the record. The prosecution admitted
the recording in Court. It was held that the recording should not have been put to
the court and the judge made an error of law.
Fingleton (2005)
The Chief magistrate of the Magistrates Court of QLD was charged with interfering
with witnesses (an interference of justice offence). Many lawyers were involved in
the case. In an application for leave to appeal to the High Court, Gummow J said
they should have looked at the Magistrates Court Act which included a provision
that a Magistrate cannot be charged.
Bardsley (2004)
A 14 year old kid broke into the Bardsley house and stole things. Police did not do
anything about this so the Bardsley’s took matters into their own hands. They ran
over the kid, bashed him to death and buried him in a remote area. On appeal, it
was held that there was incorrect interpretation of party provisions which meant
that the original conviction was wrong in law and the appeal succeeded.
THE PROVISO
Weiss (2005)
Weiss was charged and convicted of murder. A key prosecution witness at the trial
Horstead, had been in a de facto relationship with Weiss at the time he was
charged. She provided an alibi for hum, saying that Weiss was at home on the
evening the murder occurred. Some time later, after her relationship had ended,
she phoned the police and admitted her alibi was false. At trial, Horstead was
challenged by the prosecution about why she had changed her story and asked
whether the change was influence by Weiss’ new relationship with another
woman who was only 14 years old at the time. The trial judge ruled the question
admissible. On appeal, the Court of Appeal held that this was an error of law by the
judge but dismissed the appeal by applying the proviso. The HCA then considered
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the proper application of the proviso. The HCA held that “…in applying the proviso ,
the task is to decide whether a “substantial miscarriage of justice has actually
occurred”. “
“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.”
R v Navarolli [2009]
An appellate court cannot be satisfied that no substantial miscarriage of justice has
actually occurred unless it is satisfied beyond reasonable doubt that the appellant
is guilty of the offence.
The limitations on the appellate process may mean that it is impossible for the
court to be so satisfied in the circumstances of the case, simply by reason of the
nature of the process.
Satisfaction of guilt beyond reasonable doubt is a necessary, but may not be a
sufficient condition for the application of the proviso.
There may be some errors or miscarriages of justice which amount to such a
serious breach of the presuppositions of the trial as to deny the application of the
appeal provision with its proviso.
Wilde (1988)
The trial judge refused an application by the accused for separate trials for sexual
offences against two different women on different dates. The refusal was made on
the incorrect basis that that evidence in relation to one court was admissible on
the other count on the grounds the evidence was strikingly similar. The Court of
Criminal Appeal agreed with the Appellant’s submission that an error of law
occurred; however, it dismissed the appeal by applying the provision on the basis
of the strength of the prosecution’s case at trial. The Appellant appealed again to
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the HCA. The HCA also dismissed the appeal on the basis that the error of law was
not “fundamental” and a reasonable jury would have convicted the Appellant.
“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.”
“…there is no rigid formula for determining fundamental error…”
Note: Weiss has changed the law to an extent
R v Taufahema [2007]
The defendant was convicted by a jury of the murder of a policemen. He appealed
against the conviction. The CoA set aside the conviction and refused to order a
retrial. The Court pointed out that a retrial will be ordinarily ordered and it is a
matter for the prosecution to decide whether to undertake a retrial. The
prosecution needs to consider anxiety, expense and the burden on public of
a retrial. The HCA granted a retrial in this case.
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WEEK 12: APPEALS – SENTENCING
APPEALS – SENTENCES FROM MAGISTRATE’S COURT
JRB v Bird [2009]
The offender breached a domestic violence order. He was ordered to serve 6
months imprisonment (released after 1 month, 5 month suspended sentence). The
breach of the DVO was by text-messages. This was the third breach in a short
period of time. The offender appealed the sentence. On appeal, the Court stated
that the House principle applies in the Magistrate Court. In this case, it was
held that there was an error, in that the Magistrate stated that there was no
alternative but imprisonment, which was wrong. The sentence of imprisonment
removed and only a conviction was recorded.
APPEALS – SENTENCES FROM DISTRICT/SUPREME COURT
Neal (1982)
Neal was charged with assault. His original penalty was 2 months imprisonment.
He appealed to the CoA. The CoA increased the sentence to 6 months. He appealed
to HCA. The HCA stated that the CoA should indicate clearly to the defendant if
the Court intends to increase the sentence and give the defendant an
opportunity to withdraw the application. The Court also noted that it is
generally unheard of for the CoA to increase the sentence when there is no appeal
from the prosecution or Attorney-General to do so.
Sheppard [2001]
Sheppard was charged with various fraud offences involving million of $$. He
appealed the sentence. The CoA decides to do nothing. He argued that the Neal
principle applies and he should be warned of the CoA’s intention. It was held that a
Court does not need to warn the defendant if they intend to do nothing or
reduce sentence. The Neal principles only apply to an increase of sentence
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Skinner (1913)
The Court considered whether the Appellate Court has to identify an error with
the original sentence in order for the appeal to be successful. The Court did not get
very far with this discussion. However, just because the Appellate judge would
have given a different sentence, this is not enough in itself for the appeal to
be successful. It is also important to recognise that the original judge heard and
saw all of the evidence. Courts are reluctant to interfere with the sentence.
House v R (1936)
House was bankrupt and was not allowed to trade. However, he traded bath tubs
while insolvent. He was charged with trading offences. He received a sentence of 3
months imprisonment. House appealed all the way to the HCA on the basis that the
sentence was ‘manifestly excessive’ (but did not contend anything more than that).
The Court stated that in an appeal, the defendant must point to something
more than manifestly excessive. The defendant must show that the sentencing
judge made an error. Relevant grounds include:






that some error has been made in exercising the sentencing discretion
wrong principle applied
the judge made a mistake of fact
extraneous or irrelevant matters considered
failure to take some material consideration into account
unreasonable or plainly unjust
In this case, the appeal was dismissed because the sentence was not manifestly
excessive.
ATTORNEY-GENERAL APPEALS – SENTENCES FROM DISTRICT/SUPREME COURT
Liekfett; ex parte A-G (1973)
The defendant was convicted of robbery with unlawful use of a motor vehicle. He
received a sentence of 5 years probation. The Attorney-General appealed. The
Court had an unfettered discretion to determine appropriate sentence. However, it
was held that the Court should still apply House principles.
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Note: this case was pre-s669A QCC
Melano (1995)
The offender was convicted of wounding (glassing in bar fight). He received a
prison sentence of 15 months, to be suspended after 3 months. It was stated that
the Courts have massive power in relation to Attorney-General appeals but
the Court must apply the House principle (there must be an error of principles
for the Attorney-General to appeal).
York (2004)
The Court disagreed with Melano in this case. It was stated that the legislature
made it clear that the Court was to have an ‘unfettered discretion’ in relation to
Attorney-General appeals and that the House principle (must show an error of
law) does not apply.
Vincent (2000)
If the prosecution stated they wanted a particular sentence and that is the
sentence that it is awarded. It will usually be unfair for the prosecution to
appeal the sentence given that this was the original request.
Ku (2008)
The prosecutor said that the Crown only wanted the defendants to receive a
similar order to probation. All of the defendants received probation orders. The
prosecution appealed that this on the basis that it is inadequate and that the
defendants should have got prison sentences. The CoA agreed with Vincent and
stated that sentencing is a matter for the court (GAS and SJK).
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Lacey v Attorney-General (Qld) [2011]
Two brothers were convicted. One was convicted of wounding and sentenced to
five years imprisonment and the other was convicted of manslaughter and
sentenced to ten years imprisonment. The Lacey brothers appealed, arguing that
the sentence was manifestly excessive. The Attorney-General also appealed,
contending that the sentence was too lenient. The matter went to the CoA. The CoA
held that the House principle does not apply to Attorney-General appeals due to
the term ‘unfettered discretion’. Lacey appealed to the HCA.
The HCA overturned the CoA decision. The HCA held that the phrase ‘unfettered
discretion’ related to what the Court could impose as a new sentence, not
whether they could allow an appeal even if there was no error in the original
sentence. The HCA also stated that Attorney-General appeals should be exercised
sparingly and not merely be a ‘second bite of the cherry’.
R v Major; ex parte A-G (Qld) [2011]
The offender was convicted of domestic violence offences. Lacey was followed and
it was stated that there needed to be an error of principle in order to allow an
appeal. The Court‘s failure to consider general deterrence and too much weight
given to mitigation factors were errors of principle. The role of the AttorneyGeneral is to be a ‘model litigant’.
EXECUTIVE PARDON
Kina [1993]
An Aboriginal woman was convicted of murdering her husband. The Aboriginal
woman did not tell her male lawyer of any of the surrounding circumstances. She
was imprisoned. Many years later, a journalist uncovered her story. It was
discovered that the situation was much more complex – she had suffered years of
violence and just before she killed her husband he had threatened to sodomize her
niece. It was held that this amount to fresh evidence. There was no retrial by the
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DPP.
APPEALS TO THE HIGH COURT
White (1962)
The defendant was convicted of shop-breaking and theft offences. He was declared
to be a ‘habitual criminal’. He sought leave to appeal to the HCA to get the
designation of ‘habitual criminal’ removed. The HCA allowed leave. It was stated
that there must be something special in the case for leave to be allowed.
Morris (1987)
The defendant poured methylated spirits on the victims and set them on fire. It
was stated that here needs to be something special in the case for leave to appeal
to the HCA is grant. Prima facie, a case is not a special case unless it is
concerned with a ‘point of law of general application’ (i.e. not a small point of
individual concern). The High Court must place emphasis on its public role rather
than the private concerns of the litigant
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