Criminal Law B
Exam Notes
2012
Topic One – Onus of Proof/Directions to Juries
Evidentiary issues are for judges. Persuasive onuses are for juries.
Evidentiary Onus:
Who has the right or the duty to put something before the court?
Persuasive Onus:
Who has to persuade the jury of what?
The Prosecution:
It is the duty of the prosecution to prove the prisoner’s guilt. They must prove the
elements of the offence and disprove any defence that is raised by the evidence
(Woolmington/Mullens). The defence must raise the defence only.
Elements of the Offence:
The prosecution carries the evidentiary onus. They have to prove the elements of
the offence and then they have to persuade the jury that all the elements are
established. If the defence raises any defences, then the prosecution has to
disprove them. These have to be proved/disproved beyond reasonable doubt.
Defences:
The prosecution does not need to disprove every possible defence only the ones
that are raised on the evidence. However, it is up to the judge to figure out
whether the defence has been raised on the evidence (Youseff). Occasionally,
certain types of evidence raise certain types of defences (Falls Case).
Beyond Reasonable Doubt:
The standard of proof simply means beyond reasonable doubt (Dawson). A judge
must not use the term “absolute certainty” (Gonclaves). Small glitches may be
enough (Robinson).
Defence:
Theoretically, the accused does not have to say anything and have a privilege
against self-incrimination.
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The defence has an evidentiary onus for defences. Somehow they have to
structure evidence so that certain defences are implied. This may include:
 Having a sufficient foundation (Crofts).
 Prima facie raise the issue (Colvin).
However, it is not about proving anything. The defence may raise it through
cross-examination question or through the prosecution’s case (He Kaw The). If it
has been raised on the evidence, then the judge should direct the jury on that
defence in the way that is most favourable to the accused (Stingel).
Exceptions:
 Insanity – Everyone is presumed sane. The defence would have to raise it
and prove it on the balance of probabilities.
 Provocation – The defence has the persuasive and the evidentiary onus.
This makes it much more difficult if you just wish to raise it in the
background. This has to be proved on the balance of probabilities.
 “For the defence to prove”/”If the person proves” – sign of reverse onus
defence. It is the “balance of probabilities” unless otherwise stated.
 If drugs are found in your possession you are deemed to be the owner of
them. It is for the accused to prove otherwise.
 There is a presumption that traffic equipment (red light cameras/ speed
cameras) is working. The accused must prove on the balance of
probabilities that they are not.
 Circumstantial evidence – If one particular piece of evidence cannot be
proved, it does not necessarily mean that the case falls apart. However, if it
is key piece of circumstantial evidence then it might.
 Automatism – Prosecution has to prove it beyond reasonable doubt, but
insanity is an issue for the defence (Falconer).
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Topic 2 - Policing and Police Accountability
PPRA Schedule 6 (See page 29 Week 2 Legislation Handout)– Key Terminology
Reasonable suspicion:
 Less than what’s needed to ground belief (George v. Rockett). Very
important that there are facts that ground suspicion. There must be an
objective standard attached to it.
 “More
than
mere
idle
wondering…positive
feeling
of
actual
apprehension…slight opinion” (Queensland Bacon).
 Just because the suspicion comes to nothing does not mean that the power
was incorrectly exercised (Dobbs v. Ward).
 If there is a reasonable suspicion, most powers can be effectively
exercised.
 Reasonable suspicion has fairly low threshold.
Reasonably Necessary:
 Linked to idea of proportionality.
 Power needs to be reasonably appropriate and adapted to the conduct
(Thomas v. Mowbray).
Pre-Arrest Search Powers
 Section 29 – where a police officer “reasonably suspect” any of the
“prescribed circumstances” may stop, detain, search the person and seize
anything that might cause harm or be evidence.
 Schedule 6 sets out what evidence is: evidence of the commission of an
offence includes-(a) A thing or activity that may provide evidence of an offence or
suspected offence; and
(b) A thing that will, itself or by or on scientific examination, provide
evidence of the commission of an offence or suspected offence; and
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(c) A thing that is to be used for committing an offence or suspected
offence; and
(d) A thing that may be liable to forfeiture or is forfeited; and
(e) A thing that may be used in evidence for a forfeiture proceeding; and
(f) A property-tracking document.
 Prescribed circumstances include, weapons, drugs, stolen property,
evidence etc. (Section 30).
 Vehicles can be searched if there is reasonable suspicion (Sections 31-32).
Similar as search powers for persons.
 Police have power to search public places, dig up land and open locked
places (Section 33).
Persons/Vehicles/Public places with a Warrant:
 Police would gain warrant in order to protect evidence. If there is no
warrant there may be questions about whether there was reasonable
suspicion etc.
 Applies to public places.
 Must apply to a justice.
 Must be looking for evidence.
 Evidence is at or is likely to be at a place within 72 hours (Section 151).
 Warrant ends after 7 days, but is more likely to end before this (Section
155).
 Various requirements of what a warrant must state: See also NSW v.
Corbett Section 156 What search warrant must state
(1) A search warrant must state-(a) A police officer may exercise search warrant powers under the warrant;
and
(b) If the warrant is issued in relation to-(i) An offence--brief particulars of the offence for which the warrant is issued;
or
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(ii) A forfeiture proceeding--the Act under which the forfeiture proceeding is
authorised; or
(iii) A confiscation related activity--brief particulars of the activity; and
(c) Any evidence that may be seized under the warrant; and
(d) If the warrant is to be executed at night, the hours when the place may be
entered; and
(e) The day and time the warrant ends.
(2) If the warrant relates to an offence and the offence has been, is being, or
may be committed in, on or in relation to a transport vehicle and involves the
safety of the vehicle or anyone who may be in or on it, the warrant may also
state that a police officer may search anyone or anything in or on or about to
board, or to be put in or on, the vehicle.
(3) If a magistrate or a judge makes an order under section 153 or 154, the
warrant must also state that failure, without reasonable excuse; to comply with
the order may be dealt with under the Criminal Code, section 205.
 NSW v. Corbett: Police got a warrant to search for firearms under a
firearms act. However, the police were worried about Corbett’s mental
health, meaning that it was not firearms act legislation. The warrant needs
to be as specific as possible.
Post Search Approval:
 Limited to indictable offences (and occasionally others) – Section 159.
 Post search approval is mainly used where the police are concerned that
the evidence will disappear (section 160).
 The search can be retrospectively approved by a justice (section 162).
 Wright Case – legislation has significant requirements. Court said that
there should be compliance because the legislation is trying to protect
individuals from oppressive use of police powers. The absolute letter of
the law does not need to be followed if public security is at risk.
Arrest:
Arrest is a very oppressive power as it impinges on liberty.
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 Police can restrain someone with or without words or using words coupled
with submission. They cannot arbitrarily detain people. There might be
physical restrain or one might just be told that one is under arrest. Police
should not be using physical contact unless it is reasonably necessary.
 Alderson v. Booth – ideally words might be sufficient, but you might have
arrest without the use of words.
 Dellit v. Small – Words by themselves are sufficient.
Without a Warrant (Section 365):
For an arrest to be lawful in Queensland, a police officer must have reasonable
suspicion that an offence has been committed or someone is committing an
offence, and it must be reasonably necessary for one of the reasons articulated
below.
365 Arrest without warrant
(1) It is lawful for a police officer, without warrant, to arrest an adult the police
officer reasonably suspects has committed or is committing an offence if it is
reasonably necessary for 1 or more of the following reasons:
(a) To prevent the continuation or repetition of an offence or the commission of
another offence;
(b) To make inquiries to establish the person's identity;
(c) To ensure the person's appearance before a court;
(d) To obtain or preserve evidence relating to the offence;
(e) To prevent the harassment of, or interference with, a person who may be
required to give evidence relating to the offence;
(f) To prevent the fabrication of evidence;
(g) To preserve the safety or welfare of any person, including the person arrested;
(h) To prevent a person fleeing from a police officer or the location of an offence;
(i) Because the offence is an offence against section 790 or 791;
(j) Because the offence is an offence against the Domestic and Family Violence
Protection Act 1989, section 80;
(k) Because of the nature and seriousness of the offence;
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(l) Because the offence is:
(i) An offence against the Corrective Services Act 2006, section 135(4); or
(ii) An offence to which the Corrective Services Act 2006, section 136 applies.
(2) Also, it is lawful for a police officer, without warrant, to arrest a person the
police officer reasonably suspects has committed or is committing an indictable
offence, for questioning the person about the offence, or investigating the
offence, under chapter 15.
(3) Subject to the Youth Justice Act 1992, section 13, it is lawful for a police
officer to arrest a child without warrant if the police officer reasonably suspects
the child is committing or has committed an offence.
Editor's note
Under the youth justice principles in the Youth Justice Act 1992, schedule 1, it is
a principle of that Act that a child should be detained in custody for an offence,
whether on arrest or sentence, only as a last resort and for the least time that is
justified in the circumstances.
Arrest is not necessarily made unlawful if the person turns out to be innocent
(Coleman v. Kinbacher).
The lawfulness of the arrest may fluctuate. It must be made clear if there is a
contravening offence (assault, escape, etc.) that the arrest was lawful at the time
of the offence otherwise the offence may not exist (Michaels/Norton).
In situations where the police officer has reasonable suspicion of an indictable
offence and just wants to interview the person it is legitimate to arrest the person
in order to interview them (Section 365 (2)). This only applies to indictable
offences.
If there are any concerns about the evidence, a warrant should be sought (Sections
369-372).
The arrest must be reasonably necessary.
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Safeguards:
Police must:
 Tell them who they are.
 Advise them that they are under arrest.
 Give reasons for the arrest.
If this is not done it does not make the offence unlawful, however it may be used
with other matters.
 Arrest should stop as soon as it is reasonably practicable (Section 393).
 The police either have to give the accused bail, take them to court to have
the court decide whether they should be detained in remand or given bail,
or should desist with arrest and look to the alternatives.
 Williams – Idea of released as soon as reasonably practicable. The balance
should be struck in favour of the accused because their liberty is at stake.
This does not mean they have to be released, but they should be brought
before the court.
 Consequences may include civil action and evidence being excluded.
Alternatives to arrest:
 Notice to appear – Most matters dealt with in this way (Sections 382-390).
This is used for summary offences.
 Complaint and Summons – Sections 53-54 Justices Act.
 Discontinue Arrest – (Sections 375-380) if police believe that the person is
reliable and will appear at court, then they may discontinue arrest, there is
not enough to charge, or that taking them to hospital is more appropriate
then the police can discontinue arrest.
 The police must have new evidence if they wish to re-arrest the person
(Section 381).
 Infringement Notices – fines, driving tickets, etc.
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 Move on Powers – (Sections 44-49) if someone is causing trouble the
police may move the person on to a different place. There is no need to
arrest or charge them with anything.
Police Interview:
 The person has the right to silence from the beginning to the end. They do
not need to contribute to the prosecution’s case in any way (section 397).
 Petty and Maiden – accused failed to raise defences at the committal
hearing and the prosecution tried to persuade the jury that they were
unreliable because of it. The court found that the prosecution could not do
that as the accused had a right to silence all the way through and a lack of
credibility should not be inferred because of the refusal to talk.
 The only exception is that a person must give name and address when
requested if the police officer reasonably suspects an offence or that the
person can assist with their enquiries. Failure to do this means that you can
be charged with an offence under section 791. The defence is that the
police officer did not have reasonable suspicion or that the person could
not have assisted with enquiries (section 41). This is a reverse onus
defence.
 See also the application of chapter 15 (Kingston).
Time Limits (sections 403-410)
 Person can only be held for a reasonable time.
 Time should not exceed 8 hours, 4 hours of that must be “down time”.
Interview Support:
 The accused is able to have the support of a friend or relative and a lawyer
(sections 418-419). Police must assist in making these arrangements.
Police have to wait for a reasonable time (2 hours) for the person to come
before they begin their record of interview (section 418).
 Must be a private place provided for discussions with lawyer (Barchard).
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 Failure to allow access to a lawyer may be a problem (Driscoll). Evidence
may be excluded.
Recording:
Problems with Failing to Record:
Conversations between police and suspects must be recorded if practicable. There
are quite specific circumstances where the exceptional circumstances would be
accepted. If there is no recording the evidence is dangerous. In the absence of any
other corroboration, the jury should be directed to treat the evidence with
suspicion (McKinney). An example of an exception circumstance may be if the
person is in a remote place (Batchelor). If the confession is not recorded there is a
good chance that the confession will be excluded as evidence, particularly when it
is in the interests of justice to do so (Section 439). The judge has discretion to
exclude the evidence. In the case where the confession takes place outside the
record of interview the confession is dangerous (Kelly). Talking off record is akin
to exercising a right to silence (Nicholls). Legislation does allow for a copy to be
given to the accused.
Caution and Interpreters:
A two-limbed caution should be given to the accused. The first limb is that they
have a right to remain silent. The second limb is to advise them that anything they
do say will be recorded and may be used as evidence (Section 431) (Marshall).
The person must understand the caution, meaning that the person has the right to
an interpreter (Section 433). The police officer must evaluate whether they think
the accused will be at a disadvantage as compared with others if they do not have
an interpreter.
Interviews in particular circumstances:
A support person must be provided and legal aid contacted if the accused is
ATSI. The police are responsible for providing this (Section 420). This is the
same for people with impaired capacity (Section 422). Evidence can be excluded
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if these requirements are not met. Police cannot interview someone who is
intoxicated until they are no longer under the influence (Section 423) (See also R
v. LR).
Post Arrest Searches:
Frisk searches/strip searches - anything they find that might be harmful to the
accused and others or used in evidence may be seized (Sections 442-443). The
arrest must be legal for these kinds of searches to be legal (Courtney v. Thomson).
Women should search women, the search must not be conducted in a public place
and the police must attempt to maintain dignity (Sections 624-632).
Identifying Material and Forensic Procedures:
Police may take identifying particulars, fingerprints, photographs of tattoos and
scars, writing samples, iris scans etc. (Sections 467-474. See also Schedule 6).
They can only be taken for offences that have a minimum prison sentence of 1
year (section 467). The person can refuse to supply them, however the police can
get a court order to enforce it (Section 471). The particulars should be destroyed
if you are found not guilty of the offence or they decide not to proceed with the
charge (Section 474). Conviction would mean that the particulars would stay with
them forever.
Police Force:
The force used by police must be reasonably necessary (Section 614). The force
is relevant to the power being exercised. The force should not be likely to cause
GBH or death (section 615) (Whitelaw v. O’Sullivan). Police may exercise
serious levels of force (causing GBH or death) but only in extreme circumstances
(for example, where someone is about to commit a life imprisonment offence)
(Section 616). The police must warn the individual before they do it. The
assessment is a case-by-case one.
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Failure to Observe PPRA Procedures:
Possible for evidence to be excluded.
Principles are common law ones (Section 10).
Evidence can be excluded:
1. If it is involuntarily given. Justifications include, reliability, jury danger,
police discipline and free choice. If you can show that the confession was
involuntarily given, the confession will be excluded for sure.
1.1. The person in authority holds out a threat or a promise. The person in a
position of authority is a person who represents an arm of the state
(Tofilau). This includes, “officers of police and the like, the prosecutor
and others preferring the charge…” (McDermott). This is a very limited
group of people.
1.2. Torture (will is overborne). The question is: was the will overborne so the
person did not exercise a free choice to speak or remain silent? (Tofilau)
2. There is discretion to exclude.
2.1. Fairness. Consider how the evidence was collected and whether it would
be unfair to admit it. This concerns both reliability and procedural
fairness. Were the accused’s procedural rights protected? (Swaffield and
Pavic) Undercover police officers are dirty tricks and not okay
(Swaffield); undercover friends are okay (Pavic). Would a confession
have been made if the interview were properly conducted? (Duke) Would
the levels of unfairness shock the community? (Em/Tofilau) Theoretical
unfairness that might shock the community may include a police officer
dressing as a chaplain or a legal aid lawyer (Tofilau).
2.2. Public Policy. This is used when there has been such a breach by police
that they should be punished by having the evidence excluded
(Ridgeway). It is not about unfairness to the accused. The seriousness of
the offence is considered, along with whether, but for police breaches, the
accused would have been a law-abiding citizen.
2.3. Probative value (don’t worry).
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Topic 3 – Police Complaints, Charge and Bail
Ways a suspect will be charged:
 Will receive an NTA (Sections 282-390 PPRA).
 Will receive a summons (Sections 53-54 Justices Act)
 Will be arrested, given a bench charge sheet, and then bailed (Section 42
Justices Act). Court can address bail question if needed.
Bench Charge Sheet:
Section 12-14 Justices Regulations. The sheet must include:
 Defendant’s name.
 Offence.
 Particulars. This would include property and information about the victim.
There will also be aggravation issues.
QP9 (Court Brief):
Police fill in this form when they charge a person. This is a more detailed
explanation of the facts they are alleging. It will be provided to the defendant at
their first mention in court.
The Discretion to Charge:
The DPP Director’s Guidelines:
3. DUTY TO BE FAIR The duty of a prosecutor is to act fairly and impartially,
to assist the court to arrive at the truth.
.
A prosecutor has the duty of ensuring that the prosecution case is
presented properly and with fairness to the accused;
.
A prosecutor is entitled to firmly and vigorously urge the Crown view
about a particular issue and to test and, if necessary, to attack the
view put forward on behalf of the accused; however, this must be
done temperately and with restraint;
.
A prosecutor must never seek to persuade a jury to a point of view by
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introducing prejudice or emotion;
.
A prosecutor must not advance any argument that does not carry weight
in his or her own mind or try to shut out any legal evidence that
would be important to the interests of the person accused;
.
A prosecutor must inform the Court of authorities or trial directions
appropriate to the case, even where unfavourable to the prosecution;
and
.
A prosecutor must offer all evidence relevant to the Crown case during
the presentation of the Crown case. The Crown cannot split its case.
4. FAIRNESS TO THE COMMUNITY The prosecution also has a right to be
treated fairly. It must maintain that right in the interests of justice. This
may mean, for example, that an adjournment must be sought when
insufficient notice is given of alibi evidence, representations by an
unavailable person or expert evidence to be called by the defense.
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• EXPEDITION A fundamental obligation of the prosecution is to assist in the
timely and efficient administration of justice.
Cases should be prepared for hearing as quickly as possible;
Indictments should be finalised as quickly as possible;
Indictments should be published to the defence as soon as possible;
Any amendment to an indictment should be made known to the defence
as soon as possible;
As far as practicable, adjournment of any trial should be avoided by
prompt attention to the form of the indictment, the availability of
witnesses and any other matter which may cause delay; and
Any application by ODPP for adjournment must be approved by the
relevant Legal Practice Manager, the Director or Deputy Director.
5. THE DECISION TO PROSECUTE The prosecution process should be
initiated or continued wherever it appears
to be in the public interest.
That is the prosecution policy of the prosecuting authorities in this
country and in England and Wales. If it is not in the interests
of the
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public that a prosecution should be initiated or continued then it
should not be pursued. The scarce resources available for prosecution
should be used to pursue, with appropriate vigour, cases worthy of
prosecution and not wasted pursuing inappropriate cases. It is a two
tiered test: .
(i) Is there sufficient evidence?; and
.
(ii) Does the public interest require a prosecution?
(i) Sufficient Evidence
• A prima facie case is necessary but not enough.
• A prosecution should not proceed if there is no reasonable prospect of
conviction before a reasonable jury (or Magistrate). A decision by a
Magistrate to commit a defendant for trial does not absolve the prosecution
from its responsibility to independently evaluate the evidence. The test for
the Magistrate is limited to whether there is a bare
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Prima facie case. The prosecutor must go further to assess the quality and
persuasive strength of the evidence as it is likely to be at trial.
The following matters need to be carefully considered bearing in mind that guilt
has to be established beyond reasonable doubt:. (a) The availability, competence and compellability of witnesses and their
likely impression on 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 Crown case.
(ii) Public Interest Criteria
If there is sufficient reliable evidence of an offence, the issue is whether
discretionary factors nevertheless dictate that the matter should not proceed in the
public interest.
Discretionary factors may include:. (a) The level of seriousness or triviality of the alleged offence, or whether or
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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;
. (d) The alleged offender’s antecedents and background, including culture and
ability to understand the English language;
. (e) The staleness of the alleged offence;
. (f) The degree of culpability of the alleged offender in connection with the
offence;
. (g) Whether or not the prosecution would be perceived as counter- productive
to the interests of justice;
. (h) The availability and efficacy of any alternatives to prosecution;
. (i) The prevalence of the alleged offence and the need for deterrence, either
personal or general;
(j) Whether or not the alleged offence is of minimal public concern;
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. (k) Any entitlement or liability of a victim or other person to criminal
compensation, reparation or forfeiture if prosecution action is taken;
. (l) The attitude of the victim of the alleged offence to a prosecution;
. (m) The likely length and expense of a trial;
. (n) Whether or not the alleged offender is willing to co-operate in the
investigation or prosecution of others, or the extent to which the alleged
offender has done so;
. (o) The likely outcome in the event of a conviction considering the sentencing
options available to the Court;
. (p) Whether the alleged offender elected to be tried on indictment rather than
be dealt with summarily;
. (q) Whether or not a sentence has already been imposed on the offender which
adequately reflects the criminality of the episode;
. (r) Whether or not the alleged offender has already been sentenced for a series
of other offences and what likelihood there is of an additional penalty,
having regard to the totality principle;
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. (s) The necessity to maintain public confidence in the Parliament and the
Courts; and
. (t) The effect on public order and morale.
The relevance of discretionary factors will depend upon the individual
circumstances of each case.
The more serious the offence, the more likely, that the public interest will require
a prosecution.
Indeed, the proper decision in most cases will be to proceed with the prosecution
if there is sufficient evidence. Mitigating factors can then be put to the Court at
sentence.
(iii) Impartiality
A decision to prosecute or not to prosecute must be based
upon the
evidence, the law and these guidelines. It must never be influenced by:. (a) Race, religion, sex, national origin or political views;
. (b) Personal feelings of the prosecutor concerning the offender or the victim;
. (c) Possible political advantage or disadvantage to the government or any
political group or party; or
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(d) The possible effect of the decision on the personal or professional
circumstances of those responsible for the prosecution.
These are the things that should guide prosecutors in perusing a charge. However,
the two tiered test is the most important (Is there sufficient evidence? Does the
public interest require prosecution?) The police can withdraw charges at any time.
A more careful assessment may occur down the line.
Can a charge be thrown out for breaching guidelines?
Very rare, and usually only occurs when there is an abuse of process (Maxwell).
The purpose of criminal proceedings is to hear and determine finally whether the
accused has engaged in conduct that amounts to an offence (Jago).
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Oppressive prosecution may be an abuse of process. For example:
 Lack of charge particularity. The details of when the offence/s occurred
are dubious or when there is simply a blanket charge may be examples of
this. (KRM/Rodgers) This means that it is difficult for the defence to fight
the charge and present alibis and defences. There is also a lack of clarity
about the verdict.
 Doomed to fail. If there is insufficient evidence from the start, then the
prosecution should not have gone ahead (Walton v. Gardiner).
 Double jeopardy (Carroll).
Bail (Bail Act):
Bail will only arise when someone is charged with something. Bail will be
addressed where there is some doubt that the person will appear in court when
they are supposed to. It is possible for the police to grant bail. Police must
consider bail where there is an arrest and charge matter, but not matters listed
under Section 13 (life imprisonment offences, murder etc.) If the police do not
want to consider bail they must take it to court for consideration. Police bail can
include conditions. Bail should be considered where the police couldn’t get the
person to court within 24 hours. There is an assumption that the person will be
given bail unless it is proved otherwise (Section 9). The onus is on the
prosecution to show that the person is an unacceptable risk (Section 16 (1)). Bail
is a civil issue and is on the balance of probabilities (Gardener).
Section 16 Refusal of bail
(1) Notwithstanding this Act, a court or police officer authorised by this Act to
grant bail shall refuse to grant bail to a defendant if the court or police officer is
satisfied—
(a) That there is an unacceptable risk that the defendant if released on bail—
(i) Would fail to appear and surrender into custody; or
(ii) Would while released on bail—
(A) Commit an offence; or
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(B) Endanger the safety or welfare of a person who is claimed to be a victim of
the offence with which the defendant is charged or anyone else's safety or
welfare; or
(C) Interfere with witnesses or otherwise obstruct the course of justice, whether
for the defendant or anyone else; or
(b) That the defendant should remain in custody for the defendant's own
protection.
(1A) Where it has not been practicable to obtain sufficient information for the
purpose of making a decision in connection with any matter specified in
subsection (1) due to lack of time since the institution of proceedings against a
defendant the court before which the defendant appears or is brought shall
remand the defendant in custody with a view to having further information
obtained for that purpose.
(2) In assessing whether there is an unacceptable risk with respect to any event
specified in subsection (1)(a) the court or police officer shall have regard to all
matters appearing to be relevant and in particular, without in any way limiting the
generality of this provision, to such of the following considerations as appear to
be relevant—
(a) The nature and seriousness of the offence;
(b) The character, antecedents, associations, home environment, employment and
background of the defendant;
(c) The history of any previous grants of bail to the defendant;
(d) The strength of the evidence against the defendant;
(e) If the defendant is an Aboriginal or Torres Strait Islander person—any
submissions made by a representative of the community justice group in the
defendant's community, including, for example, about—
(i) The defendant's relationship to the defendant's community; or
(ii) Any cultural considerations; or
(iii) Any considerations relating to programs and services in which the
community justice group participates.
(3) Where the defendant is charged—
(a) With an indictable offence that is alleged to have been committed while the
defendant was at large with or without bail between the date of the defendant's
apprehension and the date of the defendant's committal for trial or while awaiting
trial for another indictable offence; or
(b) With an offence to which section 13 applies; or
20
(c) With an indictable offence in the course of committing which the defendant is
alleged to have used or threatened to use a firearm, offensive weapon or explosive
substance; or
(d) With an offence against this Act; or
Note—
For this paragraph, a person proceeded against under section 33(3) is taken to
be charged with an offence against this Act—see section 33(6).
(e) With an offence against the Criminal Organisation Act 2009, section 24 or 38;
or
(f) With an offence against the Criminal Code, section 359 with a circumstance of
aggravation mentioned in section 359(2);
The court or police officer shall refuse to grant bail unless the defendant shows
cause why the defendant's detention in custody is not justified and, if bail is
granted or the defendant is released under section 11A, must include in the order
a statement of the reasons for granting bail or releasing the defendant.
(4) In granting bail in accordance with subsection (3) a court or police officer
may impose conditions in accordance with section 11.
(5) This section does not apply if the defendant is a child.
The lowest level of bail is on the undertaking that the person will appear in court
(s11 (1)). However, it is more common for conditions to be attached to it.
Surety may be offered by a guarantor who is then responsible for the accused
appearing in court (Section 21). If the person does not appear in court, the money
is forfeited (Mokbel). There are various requirements for surety as set out in
Section 21. If the person makes every effort to get the person to court and those
acts fail, then the money may be returned to them (Baytieh).
Which Court?
Basically everything except murder and indefinite detention matters can be heard
in the Magistrate’s Court (Section 13). Otherwise the application will be heard in
the Supreme Court.
21
When can bail be considered?
Bail can be considered at any time (Section 8). More than one application can be
made, however one would need to show that circumstances have changed
(Bakir/Lacey).
Review of bail:
Generally the review of bail is not necessary if one can show a change in
circumstances (Section 19B, Section 10(2)). However, if a trial judge makes a
decision about bail in the midst of the trial then that decision is final (Wren).
Can bail be granted after conviction but before an appeal is heard?
In situations of appeal bail, bail will only be granted in exceptional circumstances
because the person has already been found guilty and the presumption of
innocence is lost. Exceptional circumstances may include a good appeal claim
(Maher/Chamberlain). Courts are reluctant to give appeal bail.
22
Topic 4 – Commencing Proceedings
Offence Classification:
Regulatory Offences:
Prosecutors should always prefer summary offences to indictable ones where
available. For example, if someone is charged with stealing, is it possible to
charge with the equivalent summary offence of shoplifting. The other two
regulatory offences are failure to pay (Section 6)/Fraud (Section 408C and
damage (Section 7)/Criminal Damage (Section 469). Mens rea (mental element)
is still present in these charges.
Summary/Simple Offences vs. Indictable Offences
Simple (summary)
Indictable (summary)
Commence w/in 1year
(s 52 Justices Act (JA) 1886 Qld; s388
PPRA re NTAs)
Generally no time limit (although
statutory exceptions and fairness)(see
s552FQCC; s52 Justices Act)
Generally heard in the Magistrates
Court (exception s651 QCC)
Prosecution via indictment – so
generally can be heard in higher court
(s3(3) QCC but see chapter 58A QCC)
Can be heard ex parte (in absence of
accused)
(ss142-142A JA)
Generally accused should be present –
although greater flexibility for
misdemeanour (s 617 QCC)
Costs may be awarded
(s157, 158, 158A JA)
Costs not awarded in higher courts.
Simple Offences:
These are essentially everything except indictable offences. If the offence is
referred to as “an offence” in the QCC, then it will usually be a summary offence.
The Justices Act will always regulate procedure. Summary offences can be dealt
with in higher courts if they involve the same set of circumstances (Section 651
23
Queensland Criminal Code). However, the court must see it as appropriate,
usually meaning that it must be connected to the indictable offence, the person
must be represented, there must be a plea of guilty and the person must be
represented. A judge cannot disqualify or imprison a person ex parte. The
complaint should be made within one year because they are simple matters.
Costs may be awarded if the offence is dismissed and the accused suffered
financially because of it (Sections 158/158A Justices Act). The judge has
discretion when awarding costs. The judge will look at whether the charge was
brought in good faith, whether the prosecution failed to investigate the offence
properly, the conduct of the accused etc. The person can still apply for costs even
if they were not represented by a lawyer (Latoudis v. Casey). It is also possible
for the accused to pay the prosecution’s costs, but this is unlikely.
Indictable Offences
The offence as listed in the Queensland Criminal Code will state that the offence
is a “crime” or “misdemeanour”. The procedure for indictable offences is in the
Queensland Criminal Code. Crimes are more serious than misdemeanours,
however the distinction is becoming irrelevant. There is no time limit for the
prosecution of indictable offences. Generally, there are no costs awarded. Victims
may be awarded costs, however, this is unlikely to happen because of the victims
of crime legislations.
If an indictable offence makes it into the higher court, an indictment will be
prepared. The accused must be present, however there are exceptional
circumstances where this is not the case (Section 617/Stuart). In theory, there is
greater flexibility for misdemeanours than crimes (Section 617(4)).
24
Where are Indictable Offences heard?
Chapter 58AQCC when indictable offences can be heard in magistrates court.
Why would this be desirable?
…speed, cost, penalty, type of conviction recorded…
(see s552H; s659 QCC)
•
s552A - prosecution election for summary jurisdiction
•
s552B - must be summary unless defence elects jury trial
•
s552BA- heard summarily – no election required (unless
excluded offence under s552BB)
* Note value = $30,000
•
s552BB - Excluded offences (a list of particular offences + circumstances)
•
s552D - Magisterial discretion overrides re: s552BA matters
special case, def can apply for trial court and discretion of mag.
(can be appeal ground see s552J QCC- Hall [1980] QdR 304).
•
s552G magistrate decides value of property.
•
s552H maximum penalty 3yrs
•
s552I special procedure for s552B matters
There may be benefits for the accused if they would ordinarily be facing an
offence with imprisonment penalty of more than 3 years. If the offence is heard in
the Magistrate’s Court, the penalty can only be 3 years. The general rule is that
offences are concurrent.
District or Supreme Court Matters:
Whether an offence is heard in the District or Supreme Court depends on the
complexity/seriousness/importance of the offence (Section 560 (4) QCC).
Sections 60 and 61 of the District Court of Queensland Act sets out what offences
can be heard in the District Court. These requirements include:
Maximum 20 year imprisonment (Sub Section 1)
Specific matters in list (includes rape and sexual offences (Sub Section 2)
All other matters end up in the Supreme Court.
25
Extradition:
It is possible to extradite from overseas or interstate. Interstate extradition would
need to be carried out pursuant to the Service and Execution of Process Act
(SEPA) sections 82 and 83. Police can deliver a warrant to the police service in
the other state. Those police will then arrest the person and arrange for them to
travel back to Queensland. The magistrate can refuse to extradite where they need
to protect their own processes, where there is an abuse of process (Loveridge).
Extradition is possible from overseas but only from those countries which
Australia has extradition treaties with. The requirements are as follows:
 Extraditable person – person charged with an extraditable offence.
 Extraditable offence – offence must be recognised by the country you are
seeking the extradition from.
 Must be an offence in Australia.
 Must be no extradition objections – for example, ill health objections,
religious issues, human rights issues, etc.
Committals
Committal processes are a way that the defence can assess the prosecution’s case.
There is also disclosure of evidence for the accused. It is also an opportunity for
the prosecution to determine whether a jury trial is justified.
When some charges are heard at a committal and others are not, resulting in the
accused being found guilty of all of them it may mean that there is an unfair trial
in relation to the matters that are not given committals (Barton v. The Queen).
Disclosure in the Magistrates Court
A magistrate can order, or a party can request, a directions hearing (Section 83A
Justices Act). A defendant can make a request through the Magistrates court for
disclosure and then the magistrate can make a request for it. The magistrate can
26
stipulate that the matter is not able to go ahead until there is disclosure. The
accused is also able to make an application to cross-examine any witnesses.
Examination of Witnesses
The purpose of this is to assess how the witness will go when cross-examined.
The magistrate has a supervisory role in this (Section 103B JA). Generally, a
committal will go via hand up, and there will be no cross-examination of
witnesses (Section 110 JA). The accused must be represented during a hand up
committal.
There must be an agreement between the accused and the prosecution that certain
witnesses can be cross-examined. If the prosecution does not allow this to
happen, the accused can make an application under section 83A for crossexamination of a particular witness. If there are witnesses that have been cross
examined, then the magistrate will make an assessment on the case that has been
presented and decide whether there is sufficient evidence that a properly directed
jury could find a person guilty of an offence (Doney). Once all the documents
have been handed over and any witnesses have been examined the magistrate will
commit the person for trial. The premise of this is that the accused is innocent
until proven guilty and the prosecution has to prove the case beyond reasonable
doubt.
The magistrate should not allow a witness to be cross examined unless they are
satisfied there are substantial reasons why, in the interests of justice, the maker
should attend to give oral evidence or be made available for cross-examination on
the witness statement (Section 110B). The accused will also have to explain why
they are making the application (Section 110C). The accused cannot go on a
fishing expedition. The questions asked must also be relevant. Substantial reasons
may include (Blacklidge):
 The purpose for the cross-examination.
 What the accused hopes to determine.
27
 Clear reasons for the examination.
 Must bare in mind the purpose of the act.
Witnesses who have made inconsistent statements should be considered available
for cross-examination. However, it is the discretion of the court to decide whether
the reasons are substantial (Police v. K).
Indictments:
Assuming that after the committal the matter still needs to go to a higher court an
indictment is required. There are two forms:
1. Indictment: This is usually prepared after the committal and is a new written
charge against the accused (Section 560 QCC).
1.1. These must be presented within six month of full disclosure being
finalised, and should be presented to the District or the Supreme Court,
whichever is appropriate. There may be an extension of time, including,
evidence that is not available yet, or impracticality, etc. It is up to the
court to allow this. The gravity of the charge and the evidence will be
considered when deciding this (Cicolini).
1.2. The particulars of the offence need to be set out (Section 564 QCC). It is
not a big deal if there is a particular missing. The indictment can be
amended (Section 572/Fahey).
1.3. There should be one indictment per charge (Section 567(1)) and there
should not be an overload of indictments (Ambrose). More than one
charge can be attached to an indictment (joinder) under certain
circumstances (Section 567 (2) QCC).
1.3.1.1.
For example: Same facts (Collins), Series of offences
(Iongi), Where crimes are committed for a single person
(Cranston). The prosecution has discretion over this, and they
must have good reason. If they don’t have good reason the
indictments might be thrown out (JMP v. R). Joinder is cheaper
and more efficient for both the accused and the prosecution,
28
however there are issues. They are highly prejudicial as juries
will connect things together (De Jesus/Phillips).
1.3.1.2.
The accused may apply for separate trials (Section
597A/597B QCC). It will be the discretion of the court to allow
this (KP).
1.3.1.3.
It is possible for co-accused to be joined in one indictment
(Section 568). However, this may end in the accused persons
negating fault. There may also be issues relating to evidence
relating to one and not the other.
2. Ex officio Indictment: This matter has gone straight to the Magistrates Court
without a committal (Section 561 QCC).
2.1. The risk with this is there may not have been disclosure because there was
no committal (Barton).
2.1.1.1.
An example of an appropriate ex officio indictment is when
a person has gone through a committal for a murder charge and
is now going through a trial for manslaughter (Webb/Siugzdinis).
2.1.1.2.
If the accused consents, a committal may not be appropriate
(Webb).
2.1.1.3.
The court also cannot use ex officio indictments as a way of
getting around the six month time limit (Section 560 QCC) for
an ordinary indictment (Foley).
29
Topic 5 – Pleas and Double Jeopardy
Charge Bargaining/Negotiating:
Nothing is set in concrete until the plea is entered in court. Charges may be
altered by the prosecution at any time (Section 48-49 Justices Act/Sections 571572 QCC).
DPP Guidelines on Charge Negotiation:
16. CHARGE NEGOTIATIONS
The public interest is in the conviction of the guilty. The most efficient conviction
is a plea of guilty. Early notice of the plea of guilty will maximise the benefits for
the victim and the community.
Early negotiations (within this guideline) are therefore encouraged.
Negotiations may result in a reduction of the level or the number of charges. This
is a legitimate and important part of the criminal justice system throughout
Australia. The purpose is to secure a just result.
(i) The Principles
6. The prosecution must always proceed on those charges which fairly represent
the conduct that the Crown can reasonably prove;
7. A plea of guilty will only be accepted if, after an analysis of all of the facts, it
is in the general public interest. The public interest may be satisfied if
one or more of the following applies:• (a) The fresh charge adequately reflects the essential criminality of the conduct
and provides sufficient scope for sentencing;
• (b) The prosecution evidence is deficient in some material way;
• (c) The saving of a trial compares favourably to the likely outcome of a trial;
or
• (d) Sparing the victim the ordeal of a trial compares favourably with the likely
outcome of a trial.
A comparison of likely outcomes must take account of the principles set out in R
v D [1996] 1 QdR 363, which limits punishment to the offence the subject of
conviction and incidental minor offences which are inextricably bound up with it.
30
Page 24
An accused cannot be sentenced for a more serious offence that is not charged.
. (ii) Prohibited Pleas Under no circumstances will a plea of guilty be
accepted if:(a) It does not adequately reflect the gravity of the provable conduct of
the accused;
(b) It would require the prosecution to distort evidence; or
(c) The accused maintains his or her innocence.
. (iii) Scope for Charge Negotiations Each case will depend on its own facts
but negotiation may be appropriate in the following cases:(a) Where the prosecution has to choose between a number of
appropriate alternative charges. This occurs when the one episode
of criminal conduct may constitute a number of overlapping but
alternative charges;
(b) Where new reliable evidence reduces the Crown case; or
(c) Where the accused offers to plead to a specific count or an
alternative count in an indictment and to give evidence against a cooffender. The acceptability of this will depend upon the importance
of such evidence to the Crown case, and more importantly, its
credibility in light of corroboration and the level of culpability of
the accused as against the co-offenders;
. There is an obligation to avoid overcharging. A common example is a charge of
attempted murder when there is no evidence of an intention to kill. In such
a case there is insufficient evidence to justify attempted murder and the
charge should be reduced independent of any negotiations.
The prosecution should always wait to be approached by the defence. Without
plea negotiation, the system would collapse under the wait of trials. Essentially:
 The Crown should only conduct charges they can reasonably prove. This
implies that they should not attempt to charge someone with something
they cannot reasonably prove.
 The Crown should accept a plea if it is in the public interest.
 Negotiation between accused and Crown are encouraged.
31
 The charges must reflect the seriousness of the charge and provide
sufficient scope for sentencing.
 Negotiation may be appropriate where there is some kind of deficiency in
the evidence. If there is agreement, then it might be appropriate to reduce
the charge in order to reflect that.
 There must be a balance of the saving of the trial with the appropriate
outcome.
 Must be considered that they are saving the victim from giving evidence.
 Where there is an element of intent required for a charge, there is also an
alternative where intent is not required (Murder/Manslaughter).
 Given that the accused is agreeing with the same set of facts there may be
the same sentence imposed, irrespective of the charge.
 New evidence may become available and support a new charge. This may
be done at any time before the plea is entered.
 If there is a plea of guilty, there is a reduced sentence (legislation demands
it. See below).
 However, the plea bargaining system is quite unaccountable. The public
does not know the deals that have been made. This may reduce confidence
in the system.
Limits:
 The guidelines should be seen as an ethical framework for plea
negotiating.
 GAS and SJK – Sets out the roles and the way each person should behave.
There was an agreement that the sentence should be less however, the
magistrate does not have to fulfil the agreement. No sentencing
negotiations will bind any judge. All negotiations should be put in writing.
 Judges should not be indicating sentencing before the plea (Marshall).
There should not be any arrangements with the judge regarding
32
sentencing. The judge should not have to indicate a sentence before they
have heard the facts of the case.
 Counsel should not meet privately with the judge (McQuire and Porter).
Negotiating sentences is not appropriate.
 Where the prosecution defaults on the agreement in some cases it will be
possible to stay proceedings (Wentworth). This would be in the public
interest.
Pleading Guilty:
Virtually everything resolves in a plea of guilty. Pleading guilty in the
Magistrates Court is set out in Sections145/146 Justices Act. Pleading guilty after
committal is set out in Sections 104(2), 133 Justices Act.
In the higher courts it is the job of the court associate to put the charge to the
accused (Section 597 QCC), and then the person will be sentenced (Section 600
QCC). If the person does not enter a plea, it will be assumed that the person is
pleading guilty and the matter will be set down for trial (Section 601 QCC). The
accused can enter a plea at any stage, including mid trial (Section 631A QCC).
The earlier the plea is entered, the more favourable the sentence will be. The plea
can be withdrawn even after the allocutus (Section 648 QCC).
It should be noted that people don’t plead guilty necessarily because they are
guilty (Meissner). A guilty plea is not indicative of actual guilt. The court does
not have to interrogate the plea of guilty.
The courts must take a plea of guilty into account and may reduce the sentence
because of it (Section 13 Penalties and Sentences Act).
PENALTIES AND SENTENCES ACT 1992
13 Guilty plea to be taken into account
(1) In imposing a sentence on an offender who has pleaded guilty to an offence, a
court—
(a) must take the guilty plea into account; and
33
(b) may reduce the sentence that it would have imposed had the offender not
pleaded guilty.
(2) A reduction under subsection (1)(b) may be made having regard to the time at
which the offender—
(a) pleaded guilty; or
(b) informed the relevant law enforcement agency of his or her intention to plead
guilty.
(3) When imposing the sentence, the court must state in open court that it took
account of the guilty plea in determining the sentence imposed.
(4) A court that does not, under subsection (2), reduce the sentence imposed on
an offender who pleaded guilty must state in open court—
(a) that fact; and
(b) its reasons for not reducing the sentence.
(5) A sentence is not invalid merely because of the failure of the court to make
the statement mentioned in subsection (4), but its failure to do so may be
considered by an appeal court if an appeal against sentence is made.
The defence may use similar cases to show the court the kind of sentence that has
been given for a similar type of crime. There is no set amount of reduction. A
plea of guilty facilitates the justice process and is therefore a good thing
(Cameron). Remorse is also a consideration. Although Section 13 must be taken
into account, the court does not have to reduce the sentence (Baker and Bates). If
the facts are heinous and the accused is particularly culpable, then there may not
be a reduction in sentence. The closer the plea of guilty to be beginning, the more
it will be taken into account (BAY/Stuck). If the plea is after the committal it is
usually not considered a late plea (BAY/Stuck).
When will a guilty plea be accepted?
A court will act on a plea of guilty when it is entered into in open court by a
person who is of sound mind and understanding, provided that the pleas is an
exercise of free choice and in the interests of the person entering it (Meissner).
There is no miscarriage of justice if the person is not guilty, therefore allowing
the judge to avoid questioning the plea.
When can a court set aside a conviction when a guilty plea is entered?
 The person does not understand the nature of the charge.
34
 The person did not intend to admit they were guilty.
 If upon the facts admitted by the plea he could not in law be guilty of an
offence.
 The person was induced by intimidation or fraud.
(Meissner)
The court may also see during the hearing that the person may not fully
understand the charge or they are, in some other way, not capable of pleading.
The court may then reject the plea in cases where there is an abuse of process
(Maxwell). The court cannot look into the prosecution’s processes, but when this
begins to intervene on the courts processes, that is when the court can refuse to
hear the plea.
When can a guilty plea be withdrawn by the accused (Nerbas)?
 The guilty plea does not constitute a conviction. The person is not guilty as
soon as they plead guilty. Before they are convicted they can potentially
withdraw their plea.
 The conviction on a plea of guilty is provisional upon the imposition of a
sentence. Even when a person is convicted, it is still only provisional prior
to the sentence being imposed.
 A plea may be withdrawn any time before sentencing. However, they must
have the leave of the court.
 The court will give leave where there would be a miscarriage or justice or
abuse of process if leave were not granted.
Double Jeopardy:
Four Rules:
1. A person cannot be tried for an offence of which they have been earlier
convicted or acquitted (Section 17 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. For example, if a
35
judge excludes a record of interview, that cannot be used at a later time for
a different offence.
3. An earlier acquittal cannot be undermined or controverted in later
proceedings, even for a different offence (Carroll).
4. A person cannot be punished twice for the same crime (Section 16 QCC).
The nature of this is to benefit the defendant and protect them from the state. A
trial should be properly prepared and there should be finality after that.
Section 17 – Alternative Verdicts
Only relevant to listed alternative verdicts in the code (Sections 575-589). If you
are found guilty or not guilty of one matter, you cannot be found guilty of an
alternative matter on the same facts. Judges should tell juries about alternative
verdicts (Willersdorf/Rehavi). It depends on the evidence in the particular case
and whether or not the alternative verdict fairly arises on the whole of the
evidence (Willersdorf). Section 17 is limited to alternative verdicts.
If the offence is similar but not an alternative it is possible to claim that you have
been found guilty/not guilty of an offence on the same set of facts at common law
(Viers). There cannot be another trial. Trying the person again would be
considered an abuse of process (Walton v. Gardiner).
Where a judge excludes confessional evidence at a trial, that evidence cannot be
relied on at a later trial for a different offence.
This is to stop endless rehashing of police evidence (Rodgers). Once a judge
excludes evidence, it cannot be brought back.
An earlier acquittal cannot be undermined or controverted in later proceedings,
even for a different offence.
Carroll – Evidence to prove a perjury charge undermined the pervious acquittal
for murder. If a new prosecution controverts an earlier acquittal that would be
double jeopardy.
36
A person cannot be punished twice for the same crime.
The rules against double jeopardy also protect the accused at the time of sentence
(Pearce). If one act is part of a series of acts that a person is convicted of and
there is overlap in the evidence, then the sentence should reflect that. This is dealt
with by ensuring there is concurrency in sentence where there is overlap.
Section 16 (QCC) deals with this issue. There is an exception to the common law
principle placed in the statute. The exception is where there is a death caused. A
person can be charged with a lower level offence and then if the victim dies as a
result of the offence, that person can be charged with murder (Tricklebank).
Double Jeopardy Exceptions Since 2007
1. There can be a retrial for murder on the basis of fresh and compelling
evidence and it is just to proceed (Section 678B).
2. There can be a retrial for a 25-year offence on the basis of a tainted
acquittal (Section 678C). These offences include serious riot, rape,
intended GBH, robbery, serious drug offences, and murder (Section 678).
Fresh and Compelling Evidence (Section 678D)
 Fresh (Sub Section 2) – The evidence was not adduced in the original
proceedings and could not have been adduced with reasonable diligence. It
is still required that the prosecution throws everything at the first trial. A
change in the rules of evidence may make the evidence fresh (i.e. allowing
hearsay).
 Compelling (Sub Section 3) – The evidence must be reliable, substantial
and highly probative. This is an evidentiary standard.
Tainted Acquittal:
1. The accused person or another person has been convicted of an
administration of justice offence in relation to the proceedings were
acquitted and,
37
2. It is more likely than not, but for the commission of the administration of
justice offence (Section 16 QCC), the accused person would have been
convicted.
Essentially, someone lied at the original trial and that caused the acquittal. If there
had been that offence there would not have been an acquittal.
Exceptions and Protections (Section 678F)
These considerations are related to the interests of justice. The court must
consider whether the trial is likely to be fair and must regard the time between the
alleged commission of the offence. They must also consider the diligence of the
investigators and the expedition in relation to the initial investigation and
prosecution and the application for retrial. These provisions onwards cover only
acquittals from 2007.
38
Topic 6 – Trial Process
Prosecution Disclosure
There can be applications made by the defence right up to the date of the trial for
evidence that appears to be missing in the original disclosure (Section 590AA
QCC). In an ideal world, the matter would not be listed for trial until full
disclosure is made.
If a judge has ordered disclosure of particular matters and there is a failure to
provide documents as ordered, the judge can adjourn proceedings until full
disclosure is given (Section 590AAA QCC). Cost orders can also be made against
the prosecution. The obligation to disclose is a fundamental one (Section 590AB),
and they should disclose all evidence they wish to rely on. All things in the
possession of the prosecution are to be disclosed unless they are in the public
interest. They also have a duty to disclose things that might assist the defence’s
case.
If there isn’t any disclosure or if there is no disclosure there is not inevitably an
unfair trial. There may be various orders made, but if there is a conviction and
part of the conviction is appealed because of a lack of disclosure, there is no
guarantee that the conviction will be overturned even if it is accepted that there
was a lack of disclosure where there should have been disclosure (Section 590AC
QCC). The court may ask whether the late disclosure resulted in a missed
opportunity of acquittal (R v. OL).
There are two categories of prosecution disclosure, material that must always be
disclosed (Section 590AH) and material that must be disclosed on request
(Section 590AJ).
Material that must be disclosed:
 Bench charge sheet.
 Accused criminal history.
39
 Statements made by the accused.
 Notices relating to affected children (victims in sexual offences cases
usually).
 Witness statements.
 Forensic test reports.
Material that must be given on request:
 Particulars if a proposed witness is an “affected child”.
 A witness criminal history.
 Material adverse to a witness reliability/credibility/competence.
 In possession of the prosecution, but not intended to be relied upon. This
includes things that will be helpful to the accused.
Limits on Prosecution Disclosure:
The prosecution is not required to disclose:
 Any material already disclosed.
 “Sensitive evidence”. This might include things that affect a person dignity
or privacy. In events where this is the case, the prosecution might provide
a description of the evidence to the defence and they would be able to go
and see it but not take it away.
 “Section 93A Statements”. These are statements made by children who
have been sexually assaulted. As above, the defence can go and see the
evidence, but they can’t take it away.
 Limit on witness contact details. If the contact details are important
evidence they may be given.
 Limit on material contrary to public interest. This includes material that
may facilitate further offending or be politically damaging.
The accused can waive their right to disclosure, but it must be done in writing
(Section 590AT/590AU). Courts can also waive if there is good reason.
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Time Limits:
Mandatory disclosure must be made at least 14 days prior to the date for hearing
in the magistrates court (committal of summary trial) and no more than 28 days
after the presentation of the indictment (Section 590AI). When a request is made,
the evidence should be provided as soon as practicable (Section 590AK). There is
an ongoing obligation to disclose information (Section 590AL).
Defence Disclosure:
The defence must disclose the following:
1. Alibi evidence (Section 590A/Erasmus). This is evidence that might be
provided by the accused or someone else to argue that they were not at the
scene of the crime. Alibi evidence should be given early so as to give the
prosecution the ability to form their case around it (Erasmus).
2. Expert evidence (Section 590B/de Voss). This might include evidence of
insanity and diminished responsibility. This must be given to the
prosecution early so that they can get their own reports. Not giving the
prosecution sufficient time to get their own reports might be prejudicial to
their case (de Voss).
Hearings in the Magistrates Court: Justices Act
 Person has to be taken to court either through arrest and charge, notice to
appear or complaint and summons. A bench charge sheet and QP9 will
also be provided.
 There may be a directions hearing (Section 83A). For example, there may
be a directions hearing regarding applications for evidence (Brown v.
Owen).
 There might be other issues heard at the directions hearing including issues
of joinder, particulars and previous convictions. This is to allow the
defence to see what might be alleged against them.
 There can be amendments to the charges if necessary (Section 48-49 JA).
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 Plea entered. If the plea is guilty the matter is finalised, if it is not guilty
the matter goes to trial.
 Entering a plea of not guilty is the same as for the higher courts (Section
148).
 After the prosecution presents its case there may be a no case submission
by the judge if there is insufficient evidence etc. This may result in either a
directed acquittal or a stay in proceedings.
 Defence evidence comes after prosecution case.
 Final addresses – If the defence did not present evidence they go last, if
they did they go first.
 There might be issues of costs depending on what happens.
Trials in Supreme and District Court
 Proceedings commence with an indictment following committal or ex
officio indictments presented.
 Directions/Pre-trial Rulings - There are similar issues to the previous ones,
including sorting out issues of disclosure, double jeopardy, exclusion of
evidence, stay of indictments and questions of law.
 Arraignment on the accused (Section 597C).
 Entering a plea of guilty – proceed to sentence.
 Entering plea of not guilty – trial by jury or judge alone trial.
Judge Alone Trials
If the trial is already listed and the accused knows who the judge will be there
must be very good reasons why they want a judge alone trial (Section 614 QCC).
Special reasons would not include circumstances where the facts are quite plain
and the outcome inevitable. The reasons must be out of the ordinary, distinct,
particular, must carry particular weight in the case. However, it does not need to
be incredibly unusual (Prisk and Harris). The application for a judge alone trial
should be made before the trial is listed. The defence must consent/make the
application. The prosecution does not have to consent. The judge then must make
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an assessment of the circumstances and ask whether it is in the interests of justice
to have a judge alone trial. The ordinary approach is that there will be a jury trial
(Section 615 QCC). There are three main things that are considered:
1. Whether there is a retaliation issue that might put jurors at risk.
2. Complex evidence.
3. Pre trial publicity.
Clough – Focus on whether it would be in the interests of justice. There are no
particular categories of cases that should have judge alone trials. It will be
considered whether the accused will get a fair trial if they have a jury trial. The
subjective views of the defendant are relevant, but only one consideration of
many.
Ferguson – significant pre-trial publicity meant that he would not get a fair trial.
The “expertise” of juries must be balanced with the interests of justice.
Juries – Jury Act 1995:
Part of a fair trial is having a jury (Kingswell). The person is able to be judged by
people who are also subject to the law. In jury trials, everything is much clearer
and have the appearance of being impartial. It is also not good for counsel’s case
if they misbehave in front of a jury. There are often more appeals from jury trials
as there tend to be more problems with the way in which things are explained to
them. The Jury Act has the following provisions:
 There are limits to who can serve. Lawyers who engage in legal work
cannot be jury members (Section 4).
 To be included in a jury one must be enrolled to vote, have an address, and
have to be eligible (not corrective service officers, police, MPs, etc.) The
criteria to exclude are found in Section 21.
 There are 12 people plus reserves (Sections 33-34).
 There must be disclosure regarding suitability (Section 35).
 There is a right to challenge advised (Section 39). There are 8 peremptory
challenges (Section 42). They do not have to explain why they are
challenging a person. There are 8 challenges per defendant. If there is
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more than one defendant there are more challenges. There must be an
equal number given to the prosecution.
 There might be challenges for cause if there is an individual jury member
who might not be qualified or impartial (Section 43). This can be
particularly problematic in small towns.
 There are possibilities to challenge the whole panel (Section 40). This
might occur where there were problems with selecting the panel. There is
judicial discretion to discharge (Section 46).
 Section 47 allows for special challenges where pre-trial publicity might
have affected jury members. One can ask the members of the panel if they
will be bias against the accused because of publicity (Stuart/D’Arcy).
 When something really bad happens in a trial it is possible for the judge to
discharge the jury (Section 48).
Impartiality Examples:
Tichowitsch – Jury member had granddaughter who was raped and was now
sitting on a sexual offences trial. The court did not quash the conviction because
the matter had been properly dealt with during the trial and the defence went
along with it.
Edwards and Ors – Drunk jury member had to sleep at police station overnight.
The issue was not only was there prejudice, but would the ordinary member of
the community believe there was prejudice. The court found that it might be seen
to be prejudicial to an ordinary member of the public.
R v. McCosker – Small country town. Friend of ex wife being on the jury. The
defence allowed this person to be on the jury. Discussion as to whether you can
waive your right to an impartial jury. The test to be applied is whether it gives
rise to a reasonable apprehension or suspicion on the part of a fair minded
individual that the jury will not discharge their task impartially.
R v. Metius – There might appear to be impartiality if the jury is being
particularly threatening.
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Jury Misconduct:
 It is possible for the jury to view the crime scene (Section 52). The
problem is when jury members go and do their own research. In Myles and
Myles there was a particularly active jury member, however, it was found
that the evidence they collected did not answer or affect the central
question for dispute in the case.
 Under Section 59 the jury should come to a unanimous verdict, however it
is possible to have a majority verdict (Section 59A). The jury should have
at least 8 hours to come to a decision and then we may have a situation
where they may come to a majority verdict (11/12 or 10/11). If they have
not come to a decision close to the 8 hours, they should be given a “black
direction” where they will be told to work harder/try and come to a
decision. If that fails, they will be told to come to a majority verdict
(Section 59A), but not before 8 hours. The “black direction” is optional
and failure to do so may not result in the quashing of a conviction
(McClintock). There is also no requirement for time limit to come to a
majority verdict (Royal).
Other Aspects of Higher Court Trials:
 Voir dires – discussion in open court without the jury in the room.
 No case submission – this may be given when it is found that an ordinary
jury member, properly directed, could not convict a person.
Nolle Prosequi (Section 563)
This is where the prosecution removes the case during the trial because it has
become apparent that there will probably be an acquittal. The closer the verdict
the more likely it will be found to be an abuse of process. The removal of a case
does not mean that the indictment goes away. The charge may come back at any
time, provided there has not been an abuse of process. When a court looks at
application for this, they are not to review the decision making procedures of the
prosecution. They are not looking into whether the charge should have been made
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in the first place. They are protecting court process to ensure that individuals who
come before the court get a fair trial (DPP v. B). There are minimum
requirements for a fair trial and one of them is that sometimes defendants need to
be protected from Nolle Prosequi’s execution. It is an old view that the court
cannot review a Nolle because it would interfere with the procedure of the
prosecution.
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Topic 7 – Fair Trial and Abuse of Process
Fair trial and abuse of process are not particularly distinct issues (Jago).
Fair Trial:
If a trial runs by the rules one can usually, but not always, expect that the trial is
fair (Dietrich). There might be ideals about the way in which a trial is run but
they are ultimately constricted by limits to resources. Norms and notions of
fairness change over time (McKinney). The principles of fair trials are
incorporated in various legislation as well as in common law. The DPP
prosecution guidelines are also helpful for this. The pre-trial issues might
implicate on the ability for the accused to have a fair trial later on (for example,
disclosure). It may be considered that there is a right not to be tried unfairly
(Jago).
Appearance of Fairness:
People in the community should be able to look at a trial and know that the trial
was conducted properly. This is necessary for the public maintenance of faith in
the legal system. It is a fundamental principle that justice must not only be done,
but it must be seen to be done (Johnson v. Johnson). It is possible that if the judge
interjects too much and criticises the defence in front of the jury might make it
look like the judge is bias (RPS v. R). If the judge takes over the role of the
prosecution, that might have influenced the jury and made the trial unfair
(Copsey). A sleeping judge may also give the appearance of an unfair trial
(Cesan).
Examples of what makes a trial unfair:
 Failure to exclude evidence (Nicholls and Coates).
 Refusal of separate trials (De Jesus/Phillips).
 Lack of disclosure/committal (Barton).
 Jury irregularities (Tichowitsch/Edwards).
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 Prosecution behaviour. Examples:
Livermore – Prosecution said various horrible things about rape victim and
criticised defence witness. The prosecution should not put anything in
closing addresses that is not in evidence, make inflammatory remarks, or
impute the credibility of a witness or make negative comments about them
unless the other side have the opportunity to respond to them.
KP – Prosecution made comments about another complainant of which
there were no charges.
Szabo – There was a relationship between the defence and prosecution
counsel.
 Lack of an interpreter. There is no absolute right to an interpreter, however
if it becomes clear that the person cannot understand the evidence and the
way the trial is being conducted there might be an unfair trial. Examples:
Ebatarinja – If the defendant does not speak the language in which the
proceedings are being conducted the result will be an unfair trial. This
suggests that if you cannot get an interpreter the decision should either be
quashed or proceedings stayed.
De La Espriella-Velasco – Appealed on the basis that the interpreter was
not competent. There would be an unfair trial where there was denial of an
interpreter where one was needed, but in this case it was sufficient.
Abuse of Process:
An abuse of process may be considered as conduct that goes against the purpose
of the court process. When there is an abuse of process the court has a duty to
protect itself and it has various ways of doing this.
What amounts to abuse of process?
Will exhibit one of three characteristics (PNJ v. The Queen):
1. The invoking of a court’s processes for an illegitimate or collateral
purpose;
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2. The use of the court’s procedures would be unjustifiably oppressive to a
party, or
3. The use of the court’s procedures would bring the administration of justice
into disrepute.
Examples:
 Lack of offence particularity (Rogers/Patel). This made it difficult for the
defendant to respond to the evidence.
 Purpose of proceedings (Williams v. Spautz).
 Inappropriate use of ex officio indictments (Barton). There may be certain
contexts where this is appropriate however in contexts where it is
inappropriate this would amount to an unfair trial.
 Double jeopardy/Controversion of earlier acquittal (Carroll).
 Nolle Prosequi (Saunders).
Delay:
Delay is not sufficient on its own however it may have the effect of an abuse of
process. There is no right to a speedy trial. The proceedings can only be stayed
for delay when the effect of the delay is to create an unfair trial. Things to
consider:
1. The length of the delay. The longer it is the more likely it is to impact on
an unfair trial.
2. The reasons for delay.
3. The accused’s responsibility to assert their rights. Did the accused enjoy
the delay or did they attempt to move the trial on?
4. Prejudice suffered by the accused. Did the accused suffer prejudice
because of the delay?
5. Public interest. Is the public interest in forcing the trial ahead or staying
proceedings.
In Jago, it was found that proceedings should only be stayed in extreme cases. It
is unlikely that a delay in itself is generally not going to be enough. Generally it is
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in the public interest to prosecute people and to do this without unnecessary
delay. If a trial goes ahead after significant delay that may result in an unfair trial
as it was a misuse of court process. Delay is inevitable, the question is how much
is the delay and what affect did it have on the accused. Most of the cases speak of
prejudice to the accused.
If the accused wishes to permanently stay proceedings, they must be able to show
that the lapse of time is such that any trial is necessarily unfair so that any
conviction would bring the administration of justice into disrepute (Jago).
Other examples:
Edwards – Four or five year delay and some evidence was lost. Because the lost
evidence had unknown content and could have gone either way the matter was
forced on. The delay was not sufficient.
Khoury – Disorganised prosecution. Court allowed a stay in proceedings because
they were the authors of their own misfortune. There was also prejudice to the
accused, as he could no longer afford a lawyer to run the case.
Gill – Witnesses died after twenty-year delay.
Wrigley – There was no prejudice to the accused because of the fading of
memories.
Pre-Trial Publicity:
There is a clash between the public’s right to know and the accused’s right to a
fair trial. There is the ability to have contempt of court and suppression order to
stop this from happening but they are civil matters and only occur in exceptional
circumstances.
Glennan – It is certainly possible for jurors to acquire prejudicial information.
However, if the trial judge consistently instructs the jury to focus on the evidence
and not the pre-trial publicity. Delays in proceedings may be a way of handling
issues of widespread pre-trial publicity.
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Purdie – Dismissing a jury before the trial because they may be subject to pretrial publicity may be a way of handling minor issues.
This is an issue that is entertained by courts, but it is rarely successful.
There are several things that may be done in order to prevent pre-trial publicity
from being a problem (Ferguson):
1. Jury directions (Jago) – “by the flexible use of the power to control
procedure and by the giving of forthright directions to a jury, a judge can
eliminate or virtually eliminate unfairness.”
2. Section 47 Jury Act – The judge can cross-examine jury members to see if
they are influenced by pre-trial publicity.
3. Adjournment/Delay – Happened in a practical sense in Glennan and
Dupas.
4. Forum change (Section 557 QCC) – There is an assumption that the trial
will take place nearest to where the offences took place. To combat pretrial publicity, the court could be changed (Long).
5. Judge alone trial (Section 614/615 QCC) – This has to be consented to by
the defence.
Responding to Unfairness or Abuse of Process:
During/Commencing the trial: the judge must manage the trial:
 Adjournments so the problem can be fixed (Section 88 JA; Section 592
QCC).
 Refuse to accept a plea.
 Ensure appropriate procedures are followed.
 Make appropriate rulings on evidence.
 Appropriately direct the jury.
 Discharge jury members if necessary.
After the trial:
Appeal against conviction.
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Order a stay of proceedings.
Stay Proceedings:
The court might stay for a certain amount of time or indefinitely. The application
may be made before (Section 590AA) or during the trial or as a result of the
appeal. The proceeding should be stayed for a necessary period of time until the
problem is resolved (Williams v. Spautz). This is similar to an adjournment
without a fixed date for return. The stay has two purposes, to combat abuse of
process and to ensure that the person is protected from a trial that is unfair.
However, the court must think that there is nothing else that can be done.
Permanent Stay:
If it is not a case where there cannot be a directed acquittal. This is not something
that courts want to do, however sometimes there may be exceptional
circumstances. In order to permanently stay 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).
Oppressive Prosecution:
Williams v. Spautz – The purpose of the prosecution is to be oppressive. The
prosecution is improper where its purpose is to gain some kind of advantage.
Malicious Prosecution:
A v. New South Wales – The police service in continuing with proceedings
knowing that they would fail could be sued in tort law.
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Topic 8 – Legal Ethics and Legal Representation in Criminal
Matters
Legal Ethics:
 A practitioner’s primary responsibility is to the court and then to the client
(Council of the Queensland Law Society v. Wright).
 There should be full and frank disclosure between client and solicitor
(Szabo).
 There is a different between the way in which one is supposed to defend a
client when they have confessed and wish to plead not guilty. If the client
has not confessed, the defence should be structured in a way that attempts
to show that your client was not the person who did the offence (alibi,
forensic evidence, etc.) If the client has confessed, the defence should
attempt to show that the prosecution does not have enough to prove that it
was the accused that committed the crime. This can be summed up as a
positive defence vs. burden of proof issues.
 Must avoid duties where we are responsible to two or more clients that
might be in conflict.
 One must not mislead the court.
 Bear in mind burden of proof rules when considering ethics issues.
Douglas’ Comments:
 Never stop your client from telling you something they wish to tell you.
 Always allow a client to report you if they wish to. Provide information
and contact details to them.
 Never ask a client if they are guilty or innocent. However, you should tell
them that anything they say to you should be truthful because you may
seek to rely on it and it would be embarrassing if it were false.
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Legal Representation:
There are many places where the right to legal representation is entrenched:
 ICCPR paragraph 14.3(d)
 Section 616 QCC
 Murphy’s dissent in McInnis – the issue was whether a person would loose
the prospect of a fair trial if they were unrepresented.
 Dietrich – Did loose a real chance of acquittal because he was
unrepresented. It could potentially be unfair if a person did not have legal
representation at trial. However, the court did not say that there was a right
to have publically funded legal representation.
Dietrich Principles:
1. Indigent accused.
2. Charged with a serious offence.
3. Through no fault of their own does not have legal representation.
4. There are no exceptional circumstances present.
Indigent:
The person lacks means for paying legal representation. This also includes not
being able to pay for full trial, being able to afford a solicitor but not a barrister,
etc. Lack of means does not mean that the person is living in poverty; it means
that the person cannot afford to obtain appropriate legal representation (Marchi).
One must assess the resources of the accused and the resources they need to run
an appropriate trial.
The court might be prepared to delve into what money a person could get from
relatives (Smith). The court may also look at how the accused has used their
initiative in finding money to pay for legal representation; however, it is not a
snapshot test. One can look how the person has used their money since becoming
aware that they would have to be legally represented. The court may also consider
if they have to pay for expert witnesses to come to court for the defence
(Roddan).
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Serious:
Seems to be limited to indictable offences, but might be too narrow a frame
considering Moynihan reforms. Dietrich mentioned that serious would indicate a
judge and jury setting in the District and Supreme Court, however it might not be
limited to this. The court will also look at whether there is a real threat to liberty
imposed by the charge (Dietrich). This might be assessed on the likely outlook of
the charge (Essenburg). This principle has been limited to trials and not
committals, enquiries, or appeals (Helfenbaum/Cannellis/Sinanovic/Crampton).
Legal aid do appear to be supportive of appeals, particularly against conviction.
No Fault:
If the person is at fault then they do not have a right to legal representation. The
fault need not be deliberate or wilful (Small). In Craig it is clear that one must
look at the whole picture of the accused in deciding whether or not there is fault
in a particular case and the behaviour of the accused. An accused can make a
small fault and still be able to get legal representation. The accused cannot
constantly be sacking lawyers (Batiste). If the accused is using delaying tactics,
that will be considered fault (East). However, the person should be given the
opportunity to explain the situation. When an accused misbehaves, is unreliable,
does not provide requested evidence, they are considered at fault (Promizio).
Quality:
For the purposes of Deitrich, a person has a right to competent legal
representation (Fuller). There legal aid granted to the defence does not have to
match the skill of the prosecution (Milat). One might be considered without legal
representation if the level of legal representation does not meet the level of the
case (Souter).
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Exceptional Circumstances:
The exceptional circumstances that might give rise to a person being able to
represent themselves might include if person is legally trained or a skilled litigant
(Fuller). If a person is mentally ill and this causes some fault this may be
considered an exceptional circumstances (Wilson).
Unrepresented and Competence:
If a lawyer is plainly incompetent, then for all intents and purposes that person
has not been legally represented (Eastman). The lawyer decides how to run the
case (Birks), so they can make bad decisions but that does not make them
incompetent. It is not regarded as incompetence if not every single decision is
rational or wise (TKWJ). There must be something incredibly fundamental for
there to be incompetence. However, someone must have lost a real chance of
acquittal as a result of the incompetence (Nudd).
Legal Aid:
There is both a means and merits test. The merits test involves looking into
whether:
 There is a reasonable prospect of success.
 Someone who was self-funding would fund this.
 Case is appropriate.
Unrepresented Persons – Issues:
Having legal representation is an advantage to the accused. The judge should give
assistance to unrepresented people and ensure that there is a fair trial
(MacPherson). However, the judge is not an advocate. The judge needs to tell the
accused of their rights and assist them in facilitating the rights. The judge should
not excessively intervene (Esposito).
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McKenzie Friend:
This is a person who is not a legal representative who assists the accused. It is to
the court’s discretion as to whether they allow this to occur. The complexities and
difficulties that the unrepresented person faces, the fact that there is no
disciplinary code or insurance will be taken into account (Damjanovic v. Maley).
Amicus Curie:
This is an independent third party who has an interest in the issues (Levy v.
Victoria).
Generally, if there is a real prospect of attaining legal representation the court will
adjourn proceedings so that the person can get that representation.
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Topic 9 – Considerations Underlying Sentencing
Punishment:
Punishment should involve pain or circumstances that should be considered
unpleasant (Hart). Punishment may also involve a setback of interests (Wilson).
However, this might include things that are not necessarily punishment (taxes).
Punishment must be for the breach of legal rules. It should also be the person who
carried out the offence, and should be administered by someone other than the
victim. Most theorists think of punishment as a symbolic approach to crime
(Bentham).
Media and Sentencing:
The media creates the “bark” in sentencing, but has very little “bite”. This
certainly does not make much difference to judges’ discretion. Media campaigns
usually result in the increase of the maximum penalty rather than the minimum.
The media generally affects the way that the statute is put together, rather than
what the judges do on the ground.
The Sentencing Hearing:
 The courts ask the person if there is any reason why they shouldn’t be
punished (Allocutus - Section 648 QCC). This starts the procedure of
sentencing.
 If the court is concerned about what to do with an individual, they might
order a pre-sentence report (Section 15 PSA). This looks at various
medical/rehabilitation responses, the offender, prior convictions, etc. It is a
nice snapshot into the person’s life and may include considerations and
possible solutions.
 The prosecution will put forth their views on sentences. These should be
based on facts, carefully made, and have a view to the sentence the person
should expect to get (Ku et al). However, ultimately the judge decides.
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 The defence comments on sentence. Generally, they put forth arguments to
attempt to limit the sentence. Section 132 C Evidence Act states that there
is a specific burden of proof in sentencing cases. Generally, the defence
make a claim, the prosecution rebuts the claim, and the judge must be
satisfied on the balance of probabilities that the statement is true/false. If
the facts are not in conflict, then the magistrate or judge should accept
them.
 Judge should refrain from bias comments. Judge should refrain from
comments that indicate they have a set against the accused (Porter).
 The victim’s views should be considered in the sentencing process
(Section 15 Victims of Crime Assistance Act).
 All facts found by judge have to be consistent with jury findings (Cheung).
 Generally the judge is not required to give reasons. They usually do so that
they aren’t appealed as easy. The judge should give reasons if there will be
a jail term. A lack of reasons is not an appeal point in itself.
Judicial Discretion and its Limits:
Judges want to have the most discretion they can have, therefore it is an
instinctive synthesis process that has be settled on by the High Court
(Markarian). This is conducted by looking at the various factors and then
deciding what is the appropriate sentence, rather than taking an average sentence
and adding and subtracting (staged process).
Statutory Penalty:
This involves minimum and maximum penalties. Most offences have a maximum
penalty. There is a mandatory life penalty for murder (Section 305 QCC);
however there can be negotiations on the release date. There are differing
penalties depending on whether there are aggravations present. There generally
are not numerical guidelines as most judges resist them. There is a system of case
law to give a sense of the range that should be given to your client (Pesnak/Ku et
al).
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Statistics:
Court is very reluctant to use statistics to give a sentence as the case before the
judges could be the exception, not the rule (Markarian). Judges are wary of
statistics. Guiding cases are more useful (Morton).
Totality:
This is the idea that the sentence should be just overall. The aggregate needs to be
just and appropriate (Mill). It is also necessary for the court to take a last look at
the total to see if it is appropriate in the circumstances. The penalty should not be
crushing (Schmidt). This is because we do want the person to be out in the
community eventually.
The assumption is that jail sentences should run concurrently (Section 155
PSA/Crofts). There are certain circumstances where this is not the case (see next
topic). One notable exception to this is crime committed whilst in custody. In that
case the sentence will be added on to the one already being served. The court will
also consider the amount of time the person has already spent in remand (Section
159 PSA).
Maximum:
The maximum is obviously the highest penalty a person can get, however there is
debate as to when the maximum should be given. Veen #2 argues that the
maximum should be reserved for the worst example of that offence. It does not
mean that a lesser penalty should be imposed if it is possible to envisage a worse
case. Situations of great heinousness will warrant a maximum sentence
(Fernando). A judge must look at an offence and see if it is grave enough to
warrant a very long sentence (Murdock). The offender’s history and risk factor is
very important.
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Parity:
One would assume that like offences should receive a like sentence. However, all
offenders are not alike, for example, if one pleads guilty and the other doesn’t
(McQuire and Porter) or if one is the ringleader. The context of the offence and
the role of the offender in the offence are more relevant (Ku et al). There may
also be different mitigating factors (youth, criminal history, etc.)
Consistency:
It is impossible to have absolute consistency when context is taken into account
(Wong).
Aims of Punishment:
There is no consistency in any particular case as to the reasons the person was
punished. The purpose of punishment will depend on the individual. However,
prison is not a dumping ground for difficult social problems (Clarke). Vengeance
is also not a reason for punishing people. Section 9(1) PSA lists the following
reasons for punishment:
 Just punishment
 Rehabilitation
 Deterrence – General or special.
 Denunciation
 Protection
There may be more than one for any one individual.
Just Punishment (Section 9 (2) (a)):
Idea that the penalty is proportionate to the crime that was carried out. Linked to
the idea that a person gets what they deserve.
Rehabilitation (Section 9 (2) (b)):
This assumes that punishment can be used as a form of treatment for the offender.
The younger an offender is, the more likely the offender is to be rehabilitation
61
(Taylor and Napatali). There are also special rehabilitation programs for people
charged with drug offences (Sections 15B-15F PSA). First offences will usually
receive the benefit of rehabilitation-orientated sentences (community based
sentences).
Special Deterrence (Section 9 (2) (c)):
This assumes that offenders make rational choices, which denies the kind of
offences that usually occur continuously. This is focused on the individual.
General Deterrence:
This is focused on society or a group. This can work in certain contexts. Where
there is a prevalent problem, this may be responded to using general deterrence
(Amituani). Where the court takes offence at a particular crime they might focus
on general deterrence to attempt to stop it (Pangallo/Sabanovic). This is
particularly true when the crimes relate to the criminal justice system.
Denunciation (Section 9(2)(d)):
According to Kirby, this comes with the territory or inevitable, potentially liked
with the idea of just deserts (Ku et al).
Protection (Section 9(2)(e)):
Penalties can be used to protect the community from future harm. This is better
linked to the idea that the person is incapable of committing crimes rather than
being rehabilitated so they no longer commit crimes. If the person is a risk, then
protection can be used to justify punishment (Veen #2).
Factors:
In addressing the factors to be considered for a sentence, there are aggravating
factors and mitigating factors. Aggravating factors make the sentence go up,
mitigating factors make the sentence go down (Colless). If the prosecution or
defence have not specifically raised an issue but it comes up in the paperwork
62
somewhere the court is required to notify the parties that they are considering the
issue as an aggravating or mitigating factor (Lui). Extra-curial punishment may
be taken into account when sentencing (Hannigan).
Section 9 (2) PSA sets out any relevant factors for decisions on sentences:
(2) In sentencing an offender, a court must have regard to—
(a) principles that—
(i) a sentence of imprisonment should only be imposed as a last resort; and
(ii) a sentence that allows the offender to stay in the community is preferable; and
(b) the maximum and any minimum penalty prescribed for the offence; and
(c) the nature of the offence and how serious the offence was, including—
(i) any physical, mental or emotional harm done to a victim, including harm mentioned
in information relating to the victim given to the court under the Victims of Crime
Assistance Act 2009, section 15; and
(ii) the effect of the offence on any child under 16 years who may have been directly
exposed to, or a witness to, the offence; and
(d) the extent to which the offender is to blame for the offence; and
(e) any damage, injury or loss caused by the offender. This is related to community
protection. Victim Impact Statements are able to be used where the court sees it as
appropriate (Section 15 Victims of Crime Act/Singh). This is a core consideration when
looking at sex offences (Section 9(5) – (6) PSA); and
(f) the offender’s character, age and intellectual capacity; Generally, the younger you are
the more open you are to rehabilitation (Taylor and Napatali). Old age must be liked
with some kind of illness and isn’t a factor on its own (Gulyas). Where a person has an
intellectual disability, this is more likely to reduce the person’s culpability but has a
significant justification for the purpose of punishment (Verdins). However, the courts
should not focus too heavily on the element of risk as it might lead to a disproportionate
sentence, and
(g) the presence of any aggravating or mitigating factor concerning the offender; and
(h) the prevalence of the offence; and
(i) how much assistance the offender gave to law enforcement agencies in the
investigation of the offence or other offences; and
(j) time spent in custody by the offender for the offence before being sentenced; and
(k) sentences imposed on, and served by, the offender in another State or a Territory for
an offence committed at, or about the same time, as the offence with which the court is
dealing; and
(l) sentences already imposed on the offender that have not been served; and
(m) sentences that the offender is liable to serve because of the revocation of orders
made under this or another Act for contraventions of conditions by the offender; and
(n) if the offender is the subject of a community based order—the offender’s compliance
with the order as disclosed in an oral or written report given by an authorised corrective
services officer; and
63
(o) if the offender is on bail and is required under the offender’s undertaking to attend a
rehabilitation, treatment or other intervention program or course—the
offender’s successful completion of the program or course; and
(p) if the offender is an Aboriginal or Torres Strait Islander person—any submissions
made by a representative of the community justice group in the offender’s community
that are relevant to sentencing the offender, including, for example—
(i) the offender’s relationship to the offender’s community; or
(ii) any cultural considerations; or
(iii) any considerations relating to programs and services established for offenders in
which the community justice group participates; and
(q) anything else prescribed by this Act to which the court must have regard; and
(r) any other relevant circumstance.
Section 11 PSA lists character as another relevant factor. Good character
generally means the person has no prior convictions (or no prior convictions of
that nature). Character may also take into account community views of an
individual. However, prior convictions may trump any community support the
person has (Ryan).
Cooperation with Authorities:
Actual cooperation with authorities is awarded with mitigation as it is helpful for
the speed of the investigation (York). Promised assistance (Section 13A PSA) can
be a mitigating factor, however there are rules associated with it. This allows for
the court to give a significant reduction in penalty as a result of the promised
assistance but also states what the sentence would be if they did not help. If the
person does not give the assistance they offered, the court will give them the
higher alternative (Webber).
Culture:
Fernando – Need to avoid racism, paternalism and collective guilt in sentencing.
However, there may be some things that need to be taken into account when
sentencing aboriginal people that are related to their race.
Neal – All things that affect an individual should be taken into account, and one
of those is race.
64
Impact on Self and Others:
Self: The impact on an individual if punished could be considered by the court in
sentencing (York).
Impact on Others (only in exceptional circumstances):
Children might be a consideration (Tilley). However, the public interest will
outweigh this. This was emphasised in Burns.
Community Based Sentences Preferred (Section 9(2)(a) PSA):
Except in violent or sexual offences (Section 9(3)-(4) PSA). Community
protection is more important in these circumstances. Violence has a broad
meaning; distress is not enough (Breeze) but threats are (Barling).
Sexual Offences Against Children:
Children must be under 16. However, in McGrath, it was a police officer
mascaraing as a 14 year old (attempted offences are included). Sexual offences
surrounding computers and images are also exempt.
65
Topic 10 – Punishment and Penalty
Lower level penalty
->
•
•
•
Conviction not
recorded /
conviction
recorded (s12
PSA)
Bond /
recognisance
(Part 3)
Fines (Part 4)
Intermediate penalty
->
•
Conviction not
recorded /
conviction recorded
(s12)
•
Community Service
Orders (CSO) (Part
5)
Probation (Part 5)
•
Higher level penalty
•
•
Conviction recorded
Intensive Correction
Orders (ICO) (Part 6)
• Suspended sentence of
imprisonment
(Part 8)
• Imprisonment (Part 9)
• Serious Violent
offender (Part 9A)
• Repeat child sex
offences (Part 9B)
• Indefinite
imprisonment
(Part 10)
Recording a Conviction (Section 12 PSA)
 Can be considered a penalty in itself.
 Just because a conviction is not recorded does not mean the police and the
court don’t know about it. If there is no conviction recorded you do not
have to disclose it to potential employers.
 Increasingly, legislation is focusing on whether a person has ever been in
front of the court.
 The nature of the offence, the character and age of the offender, impact on
recording a conviction on social/economic wellbeing and chance of
employment are all stipulated under statute to be taken into account.
 It is much less likely to have a conviction recorded for a trivial (summary)
offence. However, it is possible to have no conviction recorded for other
offences.
66
 Trivial crimes must be ascertained by reference to conduct, which
constitutes the offence for which the offender is likely to be convicted and
to the actual circumstances in which the offence was committed (Walden v.
Hensler). Therefore, it is the conduct of the accused and the nature of the
offence that constitutes a trivial offence.
 Having no conviction recorded sends a message to future courts that the
first act was not worthy of a criminal record.
 Only available for lower and intermediate level penalties.
 Consideration of employment prospects is often the most important reason
for appealing against recording conviction (Ndizeye).
 Can appeal against conviction recorded.
 R v. Briese – There is a concern where someone does not have a
conviction recorded they can go to new employers without convictions. In
situations where there has been an abuse of trust, that would be a situation
where it might be appropriate for there to be a conviction recorded.
 R v. SAT – The public might have a right to know that the person has been
found guilty of an offence. This is particularly true where the offence is a
sexual one. A conviction should be recorded unless there are exceptional
circumstances.
 R v. Mirza – There are extra things that should be considered when
deciding if a conviction should be recorded in a sexual offences case; Premediation, actual contact, impact on the victim, guilty plea, employment
and community service, rehabilitation prospects, and impact of the
conviction.
 Assume that in matter of sexual offences that there will be a conviction
recorded, however there are plenty of examples where this has not
happened.
Releases (Part 3 PSA):
Sectioin 19 Bond – This basically involves the person being admonished and
discharged. Most are placed on a good behaviour bond, meaning they shouldn’t
67
commit any more offences. This can be anything from 1-3 years. If a person
reoffend, the person is brought back to court and resentenced relating to the
original offence. The person can be ordered to complete various rehabilitation
programes. Sureties or recognisance can be paid in some circumstances. This can
be expected in trivial or minor matters or where it is the person’s first offence. It
is also considered a very lenient punishment. The same kind of considerations are
used for this as for normal sentences. No conviction will be recorded with this
kind of bond, however there are others under the same provision in which
convictions will be recorded.
Other Minor Penalties:
 Recognisance for minor property related offences (Sections 22-28). This
can be order along with bond, community service, etc.
 Orders for restitution or compensation (with other penalties) (Sections 3443). This is where goods are ordered to be returned or money has to be
paid as compensation for the act.
 Ferrari – Difference between restitution and compensation.
 Civoniceva – Restitution and compensation are not penalties in themselves,
they are in addition to the penalty.
 Courts don’t make restitutional compensation orders very regularly,
usually these are dealt with in other forums.
Fines (Part 4 (Sections 44-51):
 Fines do not have to have a conviction recorded. That is discretionary.
 Unlike other responses, there is no consent of the accused required.
 These can be ordered along with most other penalties (Section 45).
 The penalty unit is $110. Most offences have a maximum penalty unit
(section 46).
 The financial circumstances of the accused and the burden of the fine can
be taken into account (Section 48/Woolard v. Ellis). It is not very clear
what the burden of the fine is.
68
 A person can appeal against the fine (Meid).
 Unpaid fines result in licence suspension.
Probation (Part 5 Sections 90-99):
 Possible to have conviction recorded or not recorded, depending on the
seriousness of the offence (Section 90).
 There must be consent for the individual because they will be undertaking
some kind of rehabilitation (Section 96/93/94).
 Can make a single order of probation for multiple offences (Section 97).
 Possible to order probation from 6 months to 3 years (Section 92).
 Opportunity for the state to impact on a person’s daily life.
 Generally, one will ask whether probation is consistent with the other
penalty being applied. R v. Hood stated that probation can run alongside a
prison sentence of no more than 12 months, a suspended sentence for
another offence only, but cannot be run with an intensive correction order.
Community Service Order (Sections 100-108):
 Unpaid work in community.
 May be able to tailor a community service order to the type of offending
the person has done.
 This must have the person’s consent (Section 106, 101).
 Minimum amount that can be ordered is 40 hours, the maximum is 240
hours over 1 year period (maximum overall, even for multiple offences)
(Section 103).
 There is no translation made between the hours of community service
work and the person’s hourly rate at their place of employment (Nieto v.
Mill).
 It is possible to have a suspended sentence and a community service order
on different offences (R v. Vincent). When mixing penalties, the court
should have the particular individual in mind.
69
 Probation and community service orders are okay together (R v. Mathers)
(Section 109).
 Community service orders and intensive correction orders cannot be put
together (R v. Grieg).
 If there is a breach then you can be brought back and resentenced (with
significant discretion).
Intensive Correction Orders (Part 6 Sections 111-119):
 This requires a conviction be recorded (Section 111).
 Also requires that a person consent (Section 117).
 The court must decide that the person is worthy of a term of imprisonment
before they consider an intensive correction order (Section 112).
 As part of an intensive correction order one may be required to partake in
unpaid work, rehabilitation, etc. (Section 114/Tran).
 Considered to be a serious penalty.
 Considered for punishment purposes as akin to prison.
 If one were to breach the ICO half way through, when resentenced one
would be considered to have served half the sentence already.
 For the “last resort” purpose, ICOs are not considered imprisonment
(Bagust).
Suspended Sentences (Part 8 Sections 143-148):
 There is a conviction recorded (Section 143).
 Maximum is 5 year and can be suspended for 5 years (Section 144).
 There is a two-step process (Dinsdale): Imprisonment must be appropriate,
and likewise suspension must be appropriate.
 In order to suspend the sentence, the court must be satisfied that
rehabilitation is possible; there is a low likelihood of reoffending, and the
impact on the offender (Dinsdale). The court may also consider the safety
of the offender if they were to go to jail (York).
70
 Breaching a suspended sentence would usually result in the sentence being
served (Holcroft/Sections 145/146/147). However, the court must look at
the nature of the reoffending and be flexible with it (Hurst). Also
considered is the time served under the suspended sentence and the effort
the offender has gone to in order to be rehabilitated (Stevens). The gravity
of the breach is relatively flexible and the court may also consider how
much of the suspended sentence the offender has served (Summerlin).
Imprisonment (Part 9):
 This is the upper end of punishment scale.
 After a person goes to prison the rate of reoffending goes up.
 Should be the last resort (Section 9 (2) (a) (i)).
 A conviction must be recorded.
 Generally, a prison sentence is concurrent (Section 155). However, if the
offender commits an offence whilst in prison will add to the sentence
(Section 156/156A).
 Time served on remand is deducted from the sentence (Section 159A).
 Unlike other punishments, each particular offence must have a particular
penalty and are usually served concurrently (Crofts).
Serious Violent Offenders (Part 9A (Sections 161A-161C)):
 Schedule 1 has a list of offences that are considered serious.
 If a person is serving a sentence of 10 years or more (where it is a serious
violent offence), the court must declare that person is a serious violent
offender and they must serve 80% of their sentence before being
considered eligible for parole (Section 161B(1)).
 If the person is serving a sentence of between 5 and 10 years the court has
discretion as to whether the person should be considered a serious violent
offender. They, too, will have to serve 80% of their sentence before being
considered eligible for parole.
71
 The court must consider the consequence of the penalty (McDougall;
Collas).
 When considering a declaration, the court must take into account, the level
of violence, prior convictions, etc.
Repeat Serious Child Sex Offences (Part 9B):
 Offences included in Schedule 1A.
 This is the two strikes policy. If there are two strikes there is a mandatory
life sentence.
 Concern that there will be ramifications (there is no incentive to leave the
victim alive).
Indefinite Sentences (Part 10):
 This is a risk assessment response in order to prevent more victims falling
foul of an offender.
 When there is an offender that is at great risk of reoffending they can be
given an indefinite sentence. The person is given a head sentence (eg. 10
years) and after it the sentence is reviewed. There is no guarantee of
release.
 There must be regular review (Section 162).
 This can only occur in exceptional circumstances (Buckley).
 Usually the risk assessment involves expert reports.
Dangerous Prisoner (Sexual Offenders) Act 2003:
The Attorney General can apply to detain a sexual offender beyond their sentence
if they are considered a risk (Fardon). The detention is indefinite.
Risk?
There is a risk that the state will get its risk assessments wrong and keep people
in prison who are not risky.
72
Non-Contact Orders (Part 3A):
This is usually given with other penalties in order to prevent the offender from
contacting someone (usually the victim) for a maximum of two years (Gaudry). If
this is breached, the person can be resentenced with a maximum of one year
imprisonment. There must be a specific person identified.
73
Topic 11 – Appeals
Initial hearing
Appeal
Magistrates Court
District Court
s222 Justices
Act
District Court
-
Supreme Court
-
Court of Appeal
via s118 District
Court Act & s668D
QCC
High Court
s35 / s35A
Judiciary Act 1903
(Cmth)
Court of Appeal
s668D QCC
(chapter 67 QCC)
It is a lot easier (theoretically) to appeal against convictions in the Magistrates
Court as courts are generally reluctant to appeal jury decisions. Generally it is
possible for an accused to appeal against conviction and sentence, however (for
double jeopardy reasons) it is not possible for the prosecution to appeal against
acquittals. The prosecution can appeal against sentence.
Appeals for 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 (i.e. Magistrates Court) on a
complaint for an offence or breach of duty, the person may appeal within one
month after the date of the order to a District Court judge.
 This provision reflects how we deal with summary matters where there is a
concern about the result.
74
 “Feels aggrieved” has been interpreted very widely to include any person
who has a direct interest in the case (McCarthy v. Xiong). This could
include a person who is not a party to the case. This might include the
victim. This does not include mere busybodies.
 “Within one month” applies to all appeals. There are certain rules that
allow time to be extended (Tait/Section 224(1)(a)). This time limit applies
across the board.
 A person who pleads not guilty and is convicted can appeal against
conviction, sentence and cost orders (Section 222(1).
Some exceptions apply under Section 222 (2) (Summary Offences):
(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;
 These are summary offences dealt with in the higher courts. Under
651, the court must think it is appropriate, the accused must be
represented, the Crown must consent, the bench charge sheet must
be seen by the court. McKinlay v. Commissioner of Police
(b) if the order the subject of the proposed appeal is an order of justices
dealing summarily with an indictable offence, a complainant (police
etc.) aggrieved by the decision may appeal under this section only against
sentence or an order for costs;
 Because there are more and more matters being heard summarily,
we do not want the prosecution to have greater appeal rights just
because they are dealing with indictable offences in a summary way.
 This limits the appeal rights of the prosecution so the appeal rights
are the same as if they had dealt with the matter in the District or
Supreme Court (where they can’t appeal against acquittal).
McKinlay v. Commissioner of Police argued that if this provision
did not exist, the prosecution would have rights they were not
entitled to have.
75
(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.
 This is a limitation for defendants who plead guilty in the
Magistrates Court to summary matters.
 This has been interpreted more widely by the courts than the section
suggests it should be.
 Where a plea of guilty to a charge that clearly did not exist at law
does not amount to a plea of guilty (Hall v. Bobbermen).
 Where the appellant’s plea was equivocal or (upon analysis)
amounted to a plea of not guilty this section does not count (Ajax v.
Bird).
 Courts can consider costs appealable (R v. Samson). This was
considered by the court to be the purpose of the legislation.
Attorney General Appeals from Magistrates Court:
These are indictable matters that are heard at the Magistrates Court. If the A.G.
wants to appeal against sentence the matter goes straight to the Court of Appeal
(Section 669A QCC). It is possible to refer points of law to the Court of Appeal
(Section 227 JA). An example of this is Harrison v. Wilkins.
Which evidence can be heard on appeal?
223 Appeal generally a rehearing on the evidence
(1) An appeal under section 222 is by way of rehearing on the evidence (original
evidence) given in the proceeding before the justices.
(2) However, the District Court may give leave to adduce fresh, additional or
substituted evidence (new evidence) if the court is satisfied there are special
grounds for giving leave.
(3) If the court gives leave under subsection (2), the appeal is-a) by way of rehearing on the original evidence; and
b) on the new evidence adduced.
76
Original evidence means transcripts of proceedings. The witnesses do not have to
go through evidence again. It is possible to bring fresh evidence into court, which
have similar requirements to extension of time limits. The approach in the court
of appeal is followed (Pavlovic v. Commissioner of Police).
Powers of the Court (Section 225):
The District Court can confirm, set aside or vary the order, or make any other
order the judge considers fit. If the decision is quashed, the case goes back to the
Magistrates Court for rehearing and reconsideration. The prosecution has to
decide whether they go back to the Magistrates Court.
Costs (Section 226):
The judge may make an order regarding costs. Courts of appeal have very wide
discretion on costs (Murray v. Radford).
It is possible to take a matter from the District Court up to the Court of Appeal
(Section 118 District Court Act), however leave is needed from the Court of
Appeal. This usually involves an assessment of the significance of the matter.
Appeals against Conviction from District of Supreme Court to Court of
Appeal (Sections 668B/668D/669A QCC):
 These are indictable offences that begin in the District or Supreme Court.
 There is a right by the defence to appeal against conviction if it is a
question of law alone (Section 668D (1) (a)). Fitzgerald – The wrong
direction to a jury is a question of law alone.
 If it is a question of law and fact, or a question of fact alone, there must be
leave to appeal (Section 668D (1) (b)). Zischke – Judges direction fault and
cost of damage caused error caused a fact and law combination.
 A question of fact is decided by the jury; a question of law is decided by
the judge. If in doubt, say that the person may have to apply for leave. It is
the strength of the appeal that will allow you into the court anyway.
77
Section 671 QCC – Time to Appeal (Same for Magistrates Court Decisions):
(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…
 Tait – There is some time limit in the granting of time limits. Generally, it
will come down to the reason for the delay, and being unrepresented and
unaware is a good reason (Hatten). The overriding issue is whether it is in
the interests of justice to extend the time. Other considerations include the
viability of the appeal (Riley), the prospect of success, the prejudice to the
prosecution, and the length of the delay.
Fresh Evidence on Appeal:
Section 671B QCC states that normally the court only considers the transcripts,
however fresh evidence is able to be heard under certain circumstances. There is
some flexibility as to how the court of appeal might deal with it, and this implies
fresh evidence. Fresh means evidence that was not available in the original trial
will reasonable diligence (from the defence) (R v. A). The court will also consider
whether the evidence would have made a difference in the original hearing
(Mickelberg). The evidence must be quite influential and credible (Gallagher v.
The Queen).
Grounds where against Conviction in Court of Appeal:
Section 668E(1):
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 can not 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
78
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.
 There is overlap between the miscarriage of justice ground and the others.
 “Unreasonable; cannot be supported by the evidence”: This occurs when
the jury has found that there is sufficient evidence for a conviction. We
would be asking the Court of Appeal to revisit that evidence and say that
the conviction cannot be supported by the evidence. Essentially, the jury
made an error. M argued that the conviction would be unreasonable where
it is unsafe or unsatisfactory. This is a question of fact and the court has to
decide looking at the transcript that, although the jury had looked at the
evidence and convicted, all the circumstance meant that it would be
dangerous to let the verdict stand. The court has to ask itself the view of all
of the evidence and not parts of it. The court will look at the transcript and
decide if it was reasonable for the jury to believe beyond reasonable doubt
that the person was guilty. It is a different analysis that goes on here then
would occur in a directed acquittal (MFA). However, it is up to the jury to
convict on offences, and the court probably shouldn’t look too deeply into
convictions of some counts but not others (MFA).
 Wrong decision on a question of law: This includes situations where it is
impossible to charge a certain person with a certain offence (Fingleton),
certain evidence was put before the court that shouldn’t have been
(Nicholls), and incorrect interpretation of provision (Bardsely). If you can
get an error of law it is most likely to get to the next level.
 Miscarriage of justice: This can be both actual and perceived unfairness
(Svabo). This might also include jury prejudice for whatever reason,
prejudicial judge comments, prejudicial media, or an aggregate of faults
(Festa).
 Some things will fit into more than one category.
79
The Proviso (Section 668E(1A) QCC):
Even if it is possible to prove grounds etc. the appeal is not going to happen
unless we can establish a substantial miscarriage of justice. This ultimately
requires the loss of a real chance of acquittal (Festa). If you can prove that the
conviction cannot be supported by the evidence that would suggest there is a
substantial miscarriage of justice (unusual, though it is).
Weiss:
 A substantial miscarriage of justice must have actually occurred.
 There is an independent assessment of the evidence.
 Does the court really think that the person lost a real chance of an
acquittal?
 The court would have to go back to the evidence to look at whether,
because of the errors, the person lost a real chance of acquittal.
The Proviso and Fundamental Error:
Were the errors in the trial so fundamental that we can bypass the proviso
because everyone has a right to a fair trial and this trial was not fair even though
it did not amount to a substantial miscarriage of justice? The courts will allow
this to occur but they have never done it.
R v. Navarolli:
1. An appellate court cannot be satisfied that no substantial
miscarriage of justice has actually occurred unless it is satisfied
beyond reasonable doubt that the appellate is guilty of an offence.
2. The limitations on the appellate process may mean that it is
impossible for the court to be satisfied in the circumstances of the
case, simply by reason of the nature of the process.
3. Satisfaction of guilt beyond reasonable doubt is a necessary, but
may not be sufficient condition for the application of the proviso.
4. There may be some errors or miscarriages of justice which
amount to such a serious breach of the presuppositions of the
80
trial as to deny the application of the appeal provision with its
proviso.
Wilde:
 The error must go to the root of proceedings.
 The accused has not had a proper trial and therefore a miscarriage of
justice has occurred.
 There is no rigid formula.
Patel – The inclusion of extremely damaging evidence was considered to be a
substantial miscarriage of justice, therefore meaning the proviso did not need to
be bypassed.
Appeals from District/Supreme Court to Court of Appeal (Sections
668E/668F/669 QCC):
Once the appeal is allowed, the court can either quash the conviction (Section
668E (2) or quash some convictions but not others (Section 668F). They will
usually quash the conviction and grant the possibility of a new trial (Section 669).
This is the norm, but that doesn’t mean it will happen (up to the prosecution to go
through with it).
The questions the court will ask itself (Fowler):
1. Is the evidence cogent? i.e. is it all there? If the evidence were fabricated,
there would not be a retrial. Problems with jury behaviour, jury directions,
etc. can be fixed.
2. Is it just to order a retrial? These are the usual considerations including
prejudice, whether the person has spent time in custody, etc.
Usually 2 retrials (three trials) will be the limit (Jackson). It is possible for the
crown to appeal the refusal for a retrial (Taufahema).
Outline of Appeals from District/Supreme Court to Court of Appeal:
1. Is it in time (S 671)?
2. Is it a right or does it require leave (S 668D)?
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3. Is there fresh evidence (S 671B)?
4. Are there grounds for appeal (S 668E(1))?
5. Was there a miscarriage of justice or a fundamental error (S 668E (1A))?
6. Will a new trial be ordered?
These should all be set out in an outline of argument.
Appeals against Sentence: Magistrate’s Decision:
Defendant:
Where plead not guilty (Section 222 (1) JA to District Court.
Where plead guilty (Section 222 (2) (c) to District Court.
The House principle applies when appealing against sentence in the Magistrates
Court (JRB v. Bird)
It is possible for a police officer to appeal the sentence of a summary offence
(Section 222(1)). This would then go to the District Court.
Where there is an indictable offence heard summarily and the prosecution does
not think it is sufficient, the Attorney General will appeal against the sentence
and that would go to the Court of Appeal (Section 669A(1)(b)). If the defence is
also appealing sentence/conviction, the entire matter would go to the Court of
Appeal.
Defendant Appeals against Sentence:
A defendant needs to apply for leave to appeal a sentence from the
District/Supreme Court to the Court of Appeal (Section 668D QCC). Appeals
against sentence and conviction are to be dealt with separately. If the Court of
Appeal intends to increase the sentence, they must advise the accused of this and
give them the opportunity to withdraw the appeal (Neal). It is virtually unheard of
for the Court of Appeal to increase a sentence without an application from the
Attorney General.
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Grounds:
The appeal point for the accused is that the sentence is “manifestly excessive”
(Skinner). This is the ultimate ground. The court will not interfere with a sentence
unless there is an absolute need to because the Court of Appeal is working from
the written record and does not have the benefit of hearing all the evidence as it
was at the trial.
House v. R:
Saying something is manifestly excessive and nothing else might lead to judges
just revisiting the discretionary application of the sentence. The following
principles underpin a judge revisiting a sentence:
 That some error has been made in exercising discretion.
 Wrong principle.
 Extraneous or irrelevant matters.
 Mistakes the facts.
 Does not take into account some material consideration…determination
should be reviewed.
 Unreasonable or plainly unjust…may infer improper exercise of discretion
and review.
Also applies in appealing decisions from the Magistrates Court.
Attorney General Appeals against Sentence - District/Supreme Court Judge’s
decision:
QCC 669A Appeal by Attorney-General
(1) The Attorney-General may appeal to the Court against any sentence
pronounced by-(a) the court of trial; or
(b) a court of summary jurisdiction in a case where an indictable offence is
dealt with summarily by that court; and the Court may in its unfettered*
discretion vary the sentence and impose such sentence as to the Court
deems proper*.
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 House principle does apply to appeals from the Attorney General
(Lacey v. A-G). The High Court argued that one must consider the
jurisdiction and the powers of the Court of Appeal. The Attorney
General’s power should be used sparingly and should not be used as
a “second shot” at a sentence without giving reasons. Equality
before the law means equality between defence and prosecution.
The Attorney General must demonstrate an error in order to allow
an appeal. This was cemented in R v. Major; ex parte A-G and R v.
Kuzmanovski; ex parte A-G. The role of the Attorney General is to
be a model litigant and to cement the proper principles into law.
Other Attorney General Matters under Section 699A QCC:
 The Attorney General may appeal against stays (Section 669A
(1A)) (Ferguson). The power to stay is to prevent breaches of court
procedure. The Court of Appeal will review the stay, review the
mischief the stay is supposed to be responding to and making a
second decision as to whether a stay is appropriate (Moti).
 Points of law can be referred by the Attorney General (Section
669A (2)) where an indictment has been heard or in the summary
trial of a charge of an indictable offence (R v. Folling; ex parte
Attorney General). This can occur both at the end and in the middle
of the trial itself.
 Section 18 QCC allows the Attorney General to grant the common
law power of a royal prerogative of mercy. Usually this with either
happen when the person has run out of appeal options or where they
have sought leave to the High Court and that leave has been refused.
There may be a free and unconditional pardon granted, a
conditional pardon, the remission or part remission of a sentence or
an order for inquiry. Usually this will be sent back to the Court of
Appeal for reconsideration.
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 Executive pardon - Usually, the individual will petition the
government for mercy and the government will reissue the matter to
the court of appeal for reconsideration (Section 672A QCC). This
normally occurs when fresh evidence arises. A successful pardon
will discharge the offender from the consequences of the conviction
(Section 677 QCC). See R v. Martens. The test for fresh evidence is
the same as for double jeopardy and appeals (Kina). Often the
person has spent some time in custody, so the DPP will not order a
retrial if the decision is quashed by the Court of Appeal (Mallard).
Appeals to the High Court:
 There must be leave obtained for a case to be heard in the High Court
(Section 35 (2) Judiciary Act).
 The basis of leave is: s35A: proceedings involve a question of law which
is of public importance or in respect of which the court is required to
resolve differences of opinions within the one court or between different
courts; and whether the interests of the administration of justice require
the court to consider the judgment of the court below.
 Essentially, there should be something special in the case (White). There
must also be a point of law of general application (applies to Australia
generally) (Morris).
 There might be perfectly valid cases, but the High Court does not accept
them because they are not of general application. They are also concerned
with the public principles, rather than the private concerns of an individual.
 They can basically do anything a Court of Appeal can. They can require a
retrial on the same test as above (Fowler).
 Sentencing appeals also require the application of the House principle.
When the High Court considers a sentencing appeal, they give great
weight on the original sentence and are reluctant to interfere with the
discretion of the original judge. The High Court will also need to identify
the error, focus on the process of decision making, and give very little
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weight to the claim that the sentence is “excessive” (there will need to be
examples given).
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Topic 12 – Restoring Justice
Victims of Crime Assistance Act 2009:
 More a recognition of the criminal offending rather than true compensation.
 Victims can go to government to get money where they have been the
victims of crime. They do not have to go through the court system.
 Limited to acts of violence.
 The administrative scheme has to be persuaded on the balance of
probabilities.
 Requires a complaint to police to be made and evidence of injury.
Restorative Justice:
 Focus on response and repairing harm done.
 Crime is the violation of one person against another.
 Victim becomes key player and has as much “air time” as defence.
 Based on communication.
 Do reduce reoffending (27% reduction).
 Works better for violence than property offences.
 Victims feel better about it.
 Cost benefit analysis works in favour of restorative justice.
 Meetings between victims and offenders are usually part of it.
 Decisions are in parallel with court decisions.
 Higher victim satisfaction and remorse.
 Reduces revenge.
 Less post-traumatic stress disorder.
 There is a lot of debate as to whether these schemes should be used for
sexual and domestic violence offences.
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Justice Mediation:
 Face to face meeting between victim and the accused and a police officer
(possibly also a support person).
 Admission to the facts of the incident.
 Consent by all parties.
 Returning stolen property.
 Agreeing to do something for the complainant (paying money or repairing
damages).
 Making an apology.
 Defendant may agree to attend counselling.
 Defendant potentially avoids conviction.
Indigenous Justice:
 Sentencing only (already an admission of guilt).
 Magistrate has ultimate decision on sentence.
 Contribution of elders.
 Attempt to engage the offender.
Drug Courts:
 Therapeutic jurisprudence.
 Offending must be related to drug problem (illicit drug addiction).
 Must be at risk of being imprisonment.
 Violent/sexual offences are excluded.
 Person assigned a team. More like a case management for a drug
rehabilitation order.
 Really a suspended sentence with conditions.
 Very labour intensive.
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Special Circumstances Court:
 Target is people who have impaired decision-making capacity and the
homeless.
 Usually drug, theft and property offences.
 Attempt to deal with the problems that underline the offending.
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