4031LAW Criminal Procedure Notes

Transcription

1 4031LAW Criminal Procedure Notes Common Law Discretion to Exclude Evidence 6 ʻUnfairnessʼ discretion 6 Public policy discretion 7 Entrapment & Controlled Activities & Operations 9 Is the police activity a controlled activity or operation? 9 Will it be rejected a common law? 10 Search, Seizure & Identification 11 Re non-statutory police powers: PPRA, ss 8, 9 11 Police Powers & Responsibilities Act Other legislation 11 Re warrants: PPRA, ss 150, 151, 156, 157, 158; Responsibilities Code*, ss 3, 4 11 ISSUING OF A WARRANT 12 EXECUTING A WARRANT 13 INVALID WARRANT? 14 WARRANT-LESS POWERS 14 Re powers to demand identification: PPRA, ss 40, Re searching people: PPRA, ss 29, 30, 624, 629, Re searching vehicles: PPRA, ss 31, Re searching public places: PPRA, s Re seizure: PPRA, ss Re offences: PPRA, ss 790, Re identification of suspects: PPRA, s 617; Responsibilities Code*, ss What is reasonable suspicion? 16 Arrest, Investigative Procedures and Bail 17 1

2 ARREST 17 Defining arrest 17 Power to arrest: arrest WITHOUT a warrant 17 Power to arrest: arrest WITH a warrant 18 Power to arrest: use of FORCE 18 DUTIES RELATING TO ARREST 19 Duty to provide information 19 Duty to bring arrestee before a court (as soon as practicable): 20 RESULTS OF UNLAWFUL ARREST 20 The fluctuating lawfulness of arrest: 20 Consequences of unlawful arrest: 20 SEARCHES IN CUSTODY 21 IDENTIFYING PARTICULARS 21 BAIL 22 Questioning and Confessions 24 Right to Remain Silent & Powers of Interrogation 24 Confessions 24 Grounds for exclusion: Not recorded 25 Grounds for exclusion: Involuntary confessions 25 Safeguards for Interrogations 26 Charges and Prosecution 29 INITIATING CRIMINAL PROCEEDINGS 29 Arrest without warrant 29 Complaint / Summons 29 Notice to Appear 29 PROSECUTORIAL DISCRETION 29 Indictable offences are prosecuted by DPP 30 Plea Bargaining 30 2

3 INDICTMENTS 30 Particularity 31 Circumstances of Aggravation 32 Joinder of charges 32 Nolle Prosequi (the means of discontinuing an indictment) 34 (No) Judicial Review of Prosecutorial Decisions 35 Stay of Proceedings 35 Committal Hearings and Trials 37 Jurisdiction for Criminal Proceedings 37 Committal Processes 39 Disclosure obligations on the Crown 40 Disclosure obligations on the accused 42 Trial Process in Higher Courts 43 ʻNo caseʼ submission 43 ʻNo Juryʼ orders / judge-only trials ::: QCC ss E 43 Fair Trial and Abuse of Process Trial Delay Pre-trial Publicity Judicial and Prosecutorial Impartiality Oppressive Prosecution / Improper Purpose 47 Remedies for unfairness Legal Representation 49 Quality of legal representation 50 Lawyer incompetence (this can make a trial unfair) Other fairness rules 52 Juries & Verdicts 53 Juries 53 Verdicts generally 53 3

4 Alternative verdicts 53 Double jeapordy 54 Exceptions to double jeopardy 56 Appeals against conviction 57 Appeal: verdict is unreasonable or unsupportable 57 Appeal: Error of Law 58 Appeal: miscarriages 58 Appeal: miscarriages: Conviction of someone possibly innocent 59 Appeals: Miscarriages: conviction via unfair trial 60 The Proviso s 668E(1A) 61 Powers of Court of Appeal 62 Appeals by Attorney-General 62 Appeals in summary cases 62 Ethics Defending a person believed to be guilty If the defence lawyer believes the client or another defence witness has lied If the defence lawyer is aware of an error of law or fact that favours the defence Where a lawyer and the defendant disagree on the conduct of the case The extent of the duty to zealously promote the clientʼs interests 65 The Crime and Misconduct Commission (CMC) 65 The Frank Button case 65 The Andrew Mallard case 65 Wrongful Convictions 66 Defining wrongful conviction 66 Causes of wrongful convictions 66 Faulty scientific evidence 66 4

5 International wrongful conviction 66 Australian wrongful convictions 67 Difficulties for Innocent but Convicted People in Queensland re appeal67 Petitions for Pardon 68 Section 672A QCC 68 Pardon Provision 68 Recent Reform in Queensland 69 International Developments: Options for Australia 69 Penalties & Sentencing 70 Sentencing purposes 70 Factors relevant to sentencing [NOTE - need to expand this when writing notes] 71 Penalties 74 Indefinite Detention 75 Appeals against sentence 76 Alternative forms of justice 77 Restorative Justice 77 Therapeutic Jurisprudence 77 Drug Court 77 Murri Court 78 5

6 Common Law Discretion to Exclude Evidence NB statutory regimes govern the admission of evidence respecting unrecorded confessions and admissions. The case for exclusion of evidence by the discretionary exclusions must be made by the accused, with the exception of involuntary confessions, where the prosecution must prove the voluntariness of a confession once the matter is in issue. ʻUnfairnessʼ discretion This is primarily used to reject unreliable confessions. This can happen where: 1. The confession is of poor probative valued, e.g. it is unreliable obtained such as where the interrogation was too harsh. 2. Procedural rights are breach, e.g. in Foster the accused was unlawfully detained when his statement was taken (Indigenous person burning down school case) The unfairness discretion is provided for by s130 EAQ but the test for it is all at common law. At common law the test is whether in light of the circumstances, it could impair the fairness of the accusedʼs trial to use the statement. There are two main heads of unfairness: 1. Compromised reliability of evidence would also be significant: R v Swaffield; Pavic v R (1998) 192 CLR 159. Consider: 1) What degree of risk is acceptable? 2) Is it ever fair to use an unreliable confession? 2. Protects against unfairness of forensic disadvantage flowing from abuse of rights (e.g., breach of right to silence) Ask: Had the police conducted the investigation properly, would the confession have been made at all? If not, it is probably unfair to admit the confession into evidence. The exception `is when considering violation of procedural rights. The seriousness of the violation may have to be balanced against the seriousness of the offence in issue: Batchelor [2003]. Because these are discretions, the precedent value is in that it tells you what the relevant factors are in exercising the discretion. (I.e. it is not like a mere normal precedent.) R v Swaffield; Pavic v R (1998) 192 CLR 159. Swaffield was a Qld case, he burnt down some boating club or something. Swaffield refused to talk. Police pretended to be a criminal and befriended Swaffield and he confessed to that ʻfriendʼ. Pavic was a murder case from a different state. Police questioned a friend of Pavic. They got the friend to wear a wire and talk to Pavic to get damning evidence and that actually happened. Majority is Toohey, Gaudron & Gummow JJ. 6

7 Purpose of the discretion: to protect rights of accused eg, to fair trial. BUT it is not meant just to give the accused a sporting chance of getting off. Trickery doesnʼt necessarily make evidence unfair. Therefore, the kind of ʻunfairnessʼ the judges are looking for is something which tramples the rights of the accused. The two main heads for unfairness: 1. Compromised reliability of evidence would also be significant 2. Protects against unfairness of forensic disadvantage flowing from abuse of rights (e.g., breach of right to silence) R v Belford & Bound [2011] QCA 43 This concerned a murder at Warrick. They put Bound in the watch house. They had also put two undercover police operatives in the cell. He had not yet invoked his right to silence. The police were pretty certain he was going to though. This therefore was basically a deliberate attempt to bypass his right to silent. Trial judge decided to admit the evidence. In CoA there were two decisions. The first is the dissent and they said it was inadmissible. The majority did admit it. They considered both Tofilau (decided in 2007) and Swaffield (1998). They reconciled these cases by saying Tofilau does not concern a discretion, it is concerned with voluntariness. Therefore they are distinct. They distinguished Swaffield by saying that in that case the accused had already invoked their right to silence, but that had not yet happened in this case. They also said that the police were not intentionally misleading the accused. They also said that c.f. Swaffield which was about arson, the fact that this is a much more serious crime (murder) means the evidence should be admitted. Foster v R (1993) 113 ALR 1 Another arson case, a high school in Narooma. A 21yo Aboriginal man was arrested. There was no basis of reasonable suspicion. He was repeatedly asked about the fire but eventually he made a signed confession. The judge let the confession in at trial and he was convicted. He appealed against the conviction. HC held relevant factors included: unlawful arrest / detention, no lawyer, support person threatened with bashing (maybe) police would not release him until he signed confession HC emphasised vulnerable position of semi-literate viz police overwhelming, overpowering (public policy discretion could also have been applied) Held that evidence can be excluded on the grounds of unfairness even if it is lawfully obtained. Public policy discretion The point of the public policy discretion is to protect the integrity of the justice processes. Usually the public policy discretion is called into play when there has been unlawful conduct on the part of the police in collecting evidence. When exercising discretion re public policy, this depends on: the degree of criminality VS the gravity / nature seriousness and effect of the police misconduct. The worse the criminality, the more likely the evidence is to be admitted; the worse the police misconduct, the more likely the evidence is to be excluded. Ridgeway. Was the police misconduct calculated? Ridgeway. Was the police misconduct encouraged or tolerated by superiors? If so, this will be further grounds for not admitting the evidence. Ridgeway. 7

8 Burden to argue the use of discretions lies with the accused. Note EAQ s 98 Applies only to evidence admitted under Part 6 (this applies to statements, i.e. essentially exceptions to the hearsay rule) Court will reject evidence if expedient in interests of justice The public policy discretion is similar to the unfairness discretion. BUT this discretion transcends any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. : Pollard v R (1992) 176 CLR 177 as per Deane J. Need to engage in a balancing test: Bunning v Cross (1977) 141 CLR 54: EXCLUSIONARY factors nature of the wrongdoing on the part of the authorities, e.g. breaches of safeguards to protect rights & liberties whether wrongdoing was deliberate or reckless or merely inadvertent relative ease with which the police might have complied with the law deliberate cutting of corners will tend in favour of the discretion being exercised, as will systemic breaches or breaches tacitly condoned by senior police. legislative intention to tightly constrain the conduct of police in relation to any powers being unlawfully exercised. ADMISSION factors nature and seriousness of the alleged offending conduct public interest in bringing guilty offenders to justice if the police breach was merely inadvertent, the judge should consider whether the illegality affects the reliability / cogency of the evidence; high levels of cogency will favour admission of the evidence. R v Ireland (1970) 126 CLR 321 Woman publican found stabbed to death in pub with a knife with a broken handle still in body. The police found Irelandʼs heel prints in blood and also cigarette buts from the type of cigarettes he smoked. Ireland had his handsʼ photographed. Then a doctor examined his hands. This was relevant re the broken knife handle. But the photographing & medical examination of hands was unlawful. Barwick CJ said evidence was inadmissible because police asserted they had power (ʻyou need to have hand photos takenʼ) they did not have. Also did not fulfil the conditions to organise a doctor to examine an accused. Requires balancing 2 competing public interests: 1. need to convict criminals 2. public interest in protecting individuals from unlawful treatment NOTE: It is improbable that this case would be decided the same way now because in that case the guy was a murderer and most other judges would be more likely not to let him get away. Bunning v Cross (1977) 141 CLR 54 8

9 Concerned a drink driving offence. Driver driving erratically and pulled over by police. Driver admitted had had a few drinks and so police took him to station for a breath test. Driver seemed to comply with policeman taking him to station. The problem is that the way the legislation was drafted is that in order to invoke the legal power to breath test a person at a station, you first need to do a roadside breathtest. This is despite the fact the driver had admitted to drinking. This is basically just an example of bad drafting. The trial judge (magistrate) rejected the breathe test taken at the station. There was an appeal which made it to the High Court. HC held the magistrate had used the incorrect evidence. HC held it was not correct to exercise the discretion in that instance. They held it was not inadmissible in principle, but could have been by discretion. Held: unlawfully obtained evidence is admissible but need to consider public policy discretion. This requires balancing 2 competing public interests: 1. need to convict criminals 2. undesirable effect of tacit judicial approval of unlawful conduct by law enforcement officers Fairness to accused is not the focus instead, high public policy Entrapment & Controlled Activities & Operations Entrapment describes cases where the police or their agents improperly induce or facilitate offences for the purpose of prosecuting them. Evidence of an offence brought about by improper entrapment is liable to be excluded. Is the police activity a controlled activity or operation? Evidence obtained as a result of a controlled operation will not be inadmissible on the ground that it was obtained unlawfully (as long as validly authorised under the controller operation provisions: PPRA ss 226, 230(6). Controlled activities involve one or more meetings with a single person: s224(1)(b). The purpose must be to obtain evidence of the commission of a ʻcontrolled activity offenceʼ: s224(1)(a). This is one which is punishable by seven or more yearʼs imprisonment or which is specifically mentioned in Sch 2 or Sch 5. ʻControlled activitiesʼ may be conducted by police officers with the authorisation of superiors of the rank of inspector or above: s224(2). The officer conducting the activity consider it ʻreasonably necessaryʼ to obtain the evidence: s224(1). The senior officer who authorises the activity must consider it ʻappropriate in the particular circumstancesʼ, having regard to ʻthe nature or extent of the relevant offence: s224(4). An authorisation must be written and must specify the activity authorised: s224(3) + s224(5) (a). The activity must not be for more than 7 days: s224(5)(b). Controlled operations are governed by a more elaborate scheme. They can involve ongoing operations involving interaction over a period of time and with a number of people. Purpose must be to gather evidence of a ʻrelevant offenceʼ: s224(1)(a). This is one which is punishable by seven or more years imprisonment or which is specifically mentioned in Sch 2. 9

10 Usually these will be conducted by policy officers but, if impractical, approval can be given for other persons: s244(1)(h). Any participant must be appropriately trained: s244(1)(i). These are subject to a two-tiered control scheme which has a relatively complex approval process. The application must be written (unless there are urgent circumstances), it must identify the personnel to be involved and the criminal activity in relation to which evidence is sought, and the controlled conduct in which a participant will be required to engage (described in general terms for a law enforcement officer, in precise terms for a civilian): ss239(4)-(5), s245. A participant in a controlled operation is generally protected from criminal responsibility: s258(1)(a). The conduct must not be intended to induce a person to commit an offence that the person would not otherwise have intended to commit: s258(1)(b). The conduct must not be likely to cause death or serious injury to any person or be likely to involve a sexual offence: s258(3). Will it be rejected a common law? When a regime of controlled operations/activities is available, almost all unauthorised participation in offences for the purpose of obtaining evidence will be improper. Therefore, it will probably invoke the discretion to exclude it at common law. There is an exception in the PPRA s230(3) to the effect that it is not intended ʻto affect the investigation of minor matters or investigative activities that, by their nature, can not be planned.ʼ Section 10 PPRA: Judicial discretions preserved. At common law evidence gained by entrapment may be excluded by the ʻpublic policyʼ discretion: Ridgeway. (importation of heroin case) Relevant factors: Did the police conduct simply induce the offence or did the police conduct amount to the principal offence, with the offence charged against the accused being ancillary to it, or the police conduct is part of the offence charged? Ridgeways. The second category should nearly always result in the exclusion of evidence, whereas evidence should not be excluded in the first category apart from in exceptional cases where the illegality or impropriety is ʻcalculatedʼ or ʻentrenchedʼ. Swift v R (1999) was a case of official corruption in which an undercover operative offered to pay a detective for protection for certain drug activities. It was held that this is induced of the first category (and hence evidence would be admissible), and in any case if you want to catch someone taking a bribe the only way to do it is to offer them a bribe. In other words, this is the only means by which one can gain evidence in this scenario. DʼArrigo v R [1994] and Stead v R [1994] are two contrasting cases based on a car stealing racket where illegality was committed by a police agent in gaining evidence. In DʼArrigo the evidence was not admitted, but it was in Stead. While these decisions would appear to conflict, one possible difference is that in Stead the accused had a prior history of involvement in these kinds of activities, where as the accused in the other case did not. 10