BAIL' 10! THE'DECISION'TO'PROSECUTE'AND'THE'PREFTRIAL'PROCESS' 11! PUBLIC'ORDER'OFFENCES' 12!

Size: px

Start display at page:

Download "BAIL' 10! THE'DECISION'TO'PROSECUTE'AND'THE'PREFTRIAL'PROCESS' 11! PUBLIC'ORDER'OFFENCES' 12!"

Leo Quinn
5 years ago
Views:

1 1 POLICE'POWERS' 4! POWERS'OF'ENTRY' 4! REQUESTING'IDENTITY' 4! SEARCH'AND'SEIZURE'POWERS'WITHOUT'WARRANT' 4! GENERALLY! 4! SEARCHES!OF!PERSONS!ARRESTED!OR!IN!CUSTODY! 4! FRISK!SEARCHES! 5! STRIP!SEARCHES! 5! SEARCH'AND'SEIZURE'POWERS'WITH'WARRANT'OR'OTHER'AUTHORITY' 6! POWER!TO!APPLY!FOR!SEARCH!WARRANTS! 6! AUTHORITY!OF!SEARCH!WARRANTY! 6! SEIZURE!OF!THINGS!PURSUANT!TO!SEARCH!WARRANT! 6! SEARCH,'ENTRY'AND'SEIZURE'POWERS'RELATING'TO'DOMESTIC'VIOLENCE'OFFENCES' 6! ENTRY!BY!INVITATION! 6! ENTRY!BY!WARRANT!WHERE!ENTRY!DENIED! 7! POWERS!THAT!MAY!BE!EXERCISED!ON!ENTRY!INTO!PREMISES! 7! POLICE!MAY!ENTER!AND!SEARCH!FOR!FIREARMS! 7! SEARCH!AND!SEIZURE!POWERS! 7! POWERS'RELATING'TO'ARREST' 7! INVESTIGATION'AND'QUESTIONING'POWERS' 8! SAFEGUARDS)RELATING)TO)PERSONS)IN)CUSTODY)FOR)QUESTIONING' 9! SAFEGUARDS'RELATING'TO'POWERS' 9! USE'OF'FORCE' 9! COURT)ATTENDANCE)NOTICE)(ALTERNATE)TO)ARREST)' 9! MATTERS)TO)BE)CONSIDERING)IN)DETERMINING)WHETHER)TO)ISSUE)AN)ARREST)WARRANT' 9! APPLICATION:'WHAT'CONSTITUTES' REASONABLE'SUSPICIONS/GROUNDS?' 10! BAIL' 10! THE'DECISION'TO'PROSECUTE'AND'THE'PREFTRIAL'PROCESS' 11! PUBLIC'ORDER'OFFENCES' 12! COURT'HIERARCHIES' 13! COMMITTAL'HEARINGS' 13! APPEAL' 13! LOCAL!COURT!TO!INTERMEDIATE!COURT!(DISTRICT!+!EC)! 13! LOCAL!COURT!TO!SUPREME!COURT! 14! DISTRICT/SUPREME!TO!COURT!OF!CRIMINAL!APPEAL! 14! APPEALS!TO!HIGH!COURT! 14! RETRIAL!AFTER!ACQUITTAL!(DOUBLE!JEOPARDY)! 14! SENTENCING'AND'PUNISHMENT' 15! GENERAL'APPROACH:' 15! MAXIMUM'PENALTY' 15! APPRECIATE'BROAD'PURPOSES'OF'SENTENCING' 15! RELEVANT'CONSTRAINTS' 15! AGGRAVATING'AND'MITIGATING'FACTORS' 17! CUSTODIAL'OR'NONFCUSTODIAL?' 17! ASSESS'BEST'SENTENCING'OPTION' 18! MATTERS'PRECEDING'LITIGATION' 18!

2 2 JURISDICTION' 18! PRELIMINARY'DISCOVERY' 18! LIMITATION'PERIODS'IN'NSW' 19! PRESERVATION'ORDERS' 19! SEARCH'ORDERS' 20! ORIGINATING'PROCESS' 20! SERVICE' 20! LOCAL'COURT'SERVICE' 20! SUPREME'OR'DISTRICT' 20! HOW'PERSONAL'SERVICE'IS'EFFECTED' 21! IS'THE'PERSON' KEEPING'HOUSE?' 21! CAN'THE'DOCUMENT'NOT'PRACTICALLY'BE'SERVED?' 'SUBSTITUTED'SERVICE' 21! SUBPOENA' 21! SERVICE'BY'AGREEMENT' 21! APPEARANCE' 21! PLEADINGS' 22! PARTICULARS' 22! REQUIREMENT'OF' REASONABLE'PROSPECTS'OF'SUCCESS ' 22! DEFECTIVE'PLEADINGS' 23! AMENDMENT'OF'PLEADINGS' 23! GATHERING'EVIDENCE' 23! DISCOVERY' 23! SUBPOENA' 24! NOTICE'TO'PRODUCE' 24! NOTICE'TO'ADMIT' 24! INTERROGATORIES' 25! PRIVILEGE' 25! CLIENT'LEGAL'PRIVILEGE' 25! GENERAL! 25! EXCEPTIONS! 25! PUBLIC'INTEREST'IMMUNITY' 26! NEGOTIATIONS'PRIVILEGE' 26! ADJOURNMENTS' 27! DEFAULT'JUDGEMENT' 27! SUMMARY'JUDGEMENT' 28! SUMMARY'DISMISSAL' 28! DISMISSAL'FOR'WANT'OF'PROSECUTION' 29!

3 3 DISCONTINUANCE' 29! SECURITY'FOR'COSTS' 30! STAY'OF'PROCEEDINGS' 30! INCENTIVES'TO'SETTLE' 30! VERDICT'='OR'MORE'THAN'OFFER' 30! VERDICT'='OR'LESS'THAN'OFFER' 31! VERDICT' 'OFFER' 31!!

4 4 Police!Powers! Powers!of!entry!! Police have powers to enter premises in emergencies if: 1) there is, or there is likely to be a breach of peace which requires intervention; 2) a person has suffered significant physical injury or to prevent significant physical injury (LEPRA s 9). A police officer may only stay on the premises as long as reasonably necessary in the circumstances (s 9). Police have powers to enter premises to arrest, detain or execute a warrant if there are reasonable grounds to believe the person to be arrested or detained is in the dwelling (LEPA s 10). The officer may search the premises for the person and stay for a reasonable time to arrest or detain that person (s 10). Requesting!identity!! Police may request a persons identity to be disclosed if: 1) There are reasonable grounds to believe the person can assist in the investigation of an alleged indictable offence because they were in nearby proximity to the offence; or 2) The officer proposes to give a direction in accordance with part 14 (LEPRA s 11). Failure to provide identity or giving false identity results in a maximum penalty of 2 penalty units (s 12, 13) Search!and!seizure!powers!without!warrant! Generally!! Police may, without warrant, stop, search and detain a person if they suspect on reasonable grounds the person has in their possession or control: 1) anything stolen or unlawfully obtained; 2) anything used or in connection with the commission of a relevant offence; 3) in a public place, a dangerous article used or going to be used in an offence or 4) a prohibited drug or plant (LEPRA s 21(1)). In addition to the above, an officer may request the person to open their mouth or shake their hair (21A(1)), refusal, without reasonable excuse carries a maximum penalty of 5 units (21A (3)). A police officer may seize and detain any of the aforementioned items found as a result of a search (s 21(2)). If legally on premises (including vehicles), police have the power to seize and detain dangerous articles reasonably suspected to be involved in an offence (s 22) Searches!of!persons!arrested!or!in!custody! A police officer who arrests a person for an offence or under warrant may search the person if the officer suspects on reasonable grounds the person is carrying something: 1) which would be a danger to a person; or 2) aid them in escaping from custody; or 3) a thing to which an offence has been committed; 4) a thing that will provide evidence of the commission of an offence; or 5) something used, or intended to be

5 5 used in the commission of an offence (LEPRA s 23(1)). Further, a police officer may, under grounds 1) or 2), search someone taken into lawful custody (s 23(2)). Under s23a, for the purposes of the above search, the officer may request the person to open their mouth or shake their hair, failure to do so without reasonable excuse results in a maximum penalty of 5 units. Anything found on the search may be seized or detained (s 24). Frisk!searches! A police officer may request a person to submit to a frisk search if they suspect on reasonable grounds the person has a dangerous implement, including a laser pointer in their possession. (s 26(1)).! Application: Note s 26(3) -> if person present in location of violent crime -> taken into account for reasonable grounds If the person is a school student, the search may include a bag or locker (s 26(2)). The officer should allow the student to nominate an adult on school premises to be present during the search (s 26(4)). Failure to produce anything that was detected during the search carries a maximum penalty of 50 units (s 27). Any unlawful dangerous implement may be be confiscated (s 28).! Strip!searches! A strip search may be conducted if an officer suspects on reasonable grounds that the seriousness of the circumstances require the strip search to be carried out (s 31). The officer must (see: s32): 1) inform the person whether they must remove clothing and why; 2) ask for the persons co-operation; 3) conduct the search quickly, in a way that provides reasonable privacy and 4) in the least invasive way as practicable. An officer must: 1) not search the genital area of a person or search a females breasts without suspicions on reasonable grounds it is necessary for the search; 2) be of a different sex to the person searched; 3) allow the person to dress as soon as the search is finished and 4) give appropriate clothing if clothing is seized during the search. (s 32) A strip search must (see: s 33): 1) be conducted in private, not in view of persons of the opposite sex; 2) have a parent, guardian or personal representative present during the search, if it is reasonably practical; 3) a strip search of a minor or a person of intellectual impairment, is reasonably practical, be conducted in the presence of a person able to represent the best interests of a person, and is acceptable to the person; 4) not involve search of a person s body cavities or examination of the body by touch; 5) not involve removal of more clothes than reasonably required; 6) not involve more visual inspection that reasonably necessary and 7) not occur to any child under 10. " medical practitioner may be present if person has no objection

6 6 Search!and!seizure!powers!with!warrant!or!other!authority! Power!to!apply!for!search!warrants! A"police"officer"may"apply"for"a"search"warrant if they believe on reasonable grounds there is, or there within 72 hours there will be a thing connected to a searchable offence or a child prosecution offence on the premises. Covert"search"warrants will be granted if the policy officer: 1) suspects on reasonable grounds there is, or there will be, within 10 days a kind of thing connected to a searchable offence and 2) considers it necessary that the search of the premises should be conducted without the knowledge of the occupier. (s 47(3)) Criminal"organisation"search"warrant = same as above, except 7 days (s 47(3A)) An"issuing"officer"may"issue"a"search"warrant if they are satisfied reasonable grounds exist. If they are not satisfied such grounds exist for a covert search warrant, they may instead issue a search warrant not to be executed covertly. (s 48). It is immaterial if the offence occurred outside of NSW (s 47(5)). Authority!of!search!warranty! A"search"warrant"authorises"an"officer"to: 1) enter the premises and 2) search the premises for things connected with a particular searchable offence in relation to the warrant (s 47A). A"covert"search"warrant"authorises"an"officer"to: 1) enter the premises and conduct a search without the occupiers knowledge; 2) enter adjacent premises; 3) impersonate another person for the purposes of executing the warrant and 4) do anything that is reasonable for the purpose of executing the warrant without the occupiers knowledge (s 47A) Seizure!of!things!pursuant!to!search!warrant! A"officer"may"seize,"detain,"remove"or"guard"a"thing: 1) mentioned in the warrant; 2) anything found, which on reasonable grounds is believed to be connected with any offence (s 49) Search,!entry!and!seizure!powers!relating!to!domestic!violence!offences! Entry!by!invitation! Police who suspect on reasonable grounds a domestic violence offence may (see: s 82): 1) enter the premises if invited by a person who apparently resides in the dwelling to; 2) investigate whether such an offence occurred; 2) act to prevent further

Section 1. Section 2. Section 3

Section 1. Section 2. Section 3 Section 1 Section 2 Section 3 POLICE POWERS LEPRA Arrest Without A Warrant 1 Search Persons/Seize Without Warrant 3 Detention After Arrest for the Purpose of Investigation 5 Use of Force 6 Police Caution