LAWS2114: CRIMINAL LAW & PROCEDURE B

Transcription

1 LAWS2114: CRIMINAL LAW & PROCEDURE B TOPIC 1: CORE THEMES IN CRIMINAL PROCEDURE FRAMEWORK OF CRIMINAL PROCEDURE CRIMINAL JUSTICE IN AUSTRALIA CORE THEMES IN CRIMINAL JUSTICE THE STANDARD OF PROOF (BEYOND REASONABLE DOUBT) BURDEN OF PROOF (THE GOLDEN THREAD) DEFENCES NOT SPECIFICALLY RAISED GENERAL RULES TOPIC 2: ARREST & SEARCH POLICE POWERS GENERALLY KEY TERMINOLOGY: PPRA SCHEDULE POLICE INVESTIGATIVE POWERS ARREST USE OF FORCE BY POLICE SEARCH POWERS WITHOUT A WARRANT SEARCH POWERS WITH WARRANTS POST ARREST SEARCHES IDENTIFYING MATERIAL & FORENSIC PROCEDURES OTHER KINDS OF POWERS IN PPRA TOPIC 3: INTERROGATION & ADMISSIBILITY THE RIGHT TO SILENCE (CH 15 PT 1) INTERROGATION UNDER ARREST (CH 15, PT 2) SAFEGUARDS FOR QUESTIONING RE INDICTABLE OFFENCES INTERVIEWS IN SPECIAL/PARTICULAR CASES WHERE THERE IS FAILURE TO OBSERVE PPRA PROCEDURES OBTAINING IDENTIFICATION EVIDENCE TOPIC 4: PRE-TRIAL PROCESSES BAIL BAIL ACT 1980 (QLD) COMMITTALS GENERALLY COMMITTAL PROCESSES 3 MAIN PROCESSES PRE-TRIAL HEARINGS PROSECUTION DISCLOSURE TOPIC 5: INDICTMENTS, PLEAS & DJ INDICTMENTS JOINDER CHARGE BARGAINING & NEGOTIATION GUILTY PLEAS DOUBLE JEOPARDY DOUBLE JEOPARDY EXCEPTIONS TOPIC 6: THE TRIAL PROCESS CLASSIFICATION OF OFFENCES WHICH COURT HEARS THE OFFENCE? HEARINGS IN THE MAGISTRATES COURT TRIALS IN SUPREME & DISTRICT COURTS JUDGE ONLY TRIALS JURIES OTHER ASPECTS OF HIGHER COURT TRIALS NOLLE PROSEQUI TOPIC 7: FAIR TRIAL & ABUSE OF PROCESS INTRODUCTION WHAT IS A FAIR TRIAL? SPECIFIC UNFAIRNESS EXAMPLES PREJUDICIAL PUBLICITY WHAT IS AN ABUSE OF PROCESS? IMPROPER PURPOSE OF PROCEEDINGS DELAY AS AN ABUSE OF PROCESS CONSEQUENCES OF UNFAIR TRIALS & ABUSE OF PROCESS TOPIC 8: SENTENCING WHAT IS PUNISHMENT? SOCIAL INFLUENCES ON SENTENCING SENTENCING HEARING ROLES OF THE PARTIES IN SENTENCING JUDICIAL DISCRETION AND ITS LIMITS PRINCIPLES TO BE APPLIED IN EXERCISING DISCRETION AIMS OF PUNISHMENT FACTORS RELEVANT TO SENTENCING: S 9(2) PSA TOPIC 9: PUNISHMENT & PENALTIES PENALTY HIERARCHY RECORDING A CONVICTION NON-CUSTODIAL SENTENCING OPTIONS CUSTODIAL SENTENCING OPTIONS IMPRISONMENT FOR SERIOUS OFFENCES SENTENCING HEARING OVERVIEW TOPIC 10: APPEALS APPEALING MAGISTRATES COURT CONVICTION TO DISTRICT COURT APPEALING MAGISTRATES COURT CONVICTION TO COURT OF APPEAL APPEALING DISTRICT & SUPREME COURT CONVICTIONS TO SUPREME/COA APPEALS AGAINST SENTENCE FROM MC APPEALS AGAINST SENTENCE FROM DC/SC ATTORNEY-GENERAL APPEAL RIGHTS APPEALS TO THE HIGH COURT ROYAL PREROGATIVE OF MERCY TOPIC 11: LEGAL REPRESENTATION & ETHICS AUSTRALIAN SOLICITOR CONDUCT RULES FUNDAMENTAL DUTIES OF SOLICITOR Dug Jhnsn Page 1 f 166 Semester 2, 2016

2 TOPIC 1: CORE THEMES IN CRIMINAL PROCEDURE 1. FRAMEWORK OF CRIMINAL PROCEDURE (1) Plice Pwers Plice investigative pwers Search warrants Arrests Presumptin f inncence and right t silence Plice Interviews (2) Pre-Trial Prcesses Discretin in Decisin-Making Duble Jepardy Bail Cmmittal hearings (3) Trial Prcesses Prsecutin, defence, jury & judge rles Right t Legal Representatin Fair Trial Abuse f Prcess Oppressive Prsecutin (4) Sentencing Purpses and Principles Penalty and sentences ptins Sentencing hearings (5) Appeals Appeal prcesses Grunds f Appeal Appealing against cnvictin Appealing against sentence Dug Jhnsn Page 2 f 166 Semester 1, 2016

3 2. CRIMINAL JUSTICE IN AUSTRALIA 2.1. WHAT IS CRIMINAL PROCDURE/JUSTICE SYSTEM The framewrk f laws and rules that gvern the administratin f justice in cases invlving an individual wh has been accused f a crime, beginning with the initial investigatin f the crime and cncluding either with the uncnditinal release f the accused by virtue f acquittal r by the impsitin f a terms f punishment pursuant t a cnvictin fr the crime OPERATION OF CRIMINAL JUSTICE SYSTEM IN AUSTRALIA Cases prgress thrugh the criminal justice system in three key stages: 1. The investigatin (State plice, federal plice & Natinal Crime Authrity) 2. The adjudicatin (curts) 3. The sentencing and punishment (prisns and ther crrectinal system) 2.3. PARTICIPANTS IN CRIMINAL JUSTICE SYSTEM Investigatrs (Plice and Natinal Crime Authrity) Adjudicatrs (Curts and Judges) Legal representatin (Barristers and Slicitrs) Juries (12 peple with n legal training and n previus cnnectin t the case) Witnesses Victims Dug Jhnsn Page 3 f 166 Semester 1, 2016

4 2.4. CODE INTERPRETATION N prf rules in the Cde: Mullen; Abbtt v WA Apprpriate t lk at cmmn law, including decisins in nn-cde jurisdictins t ascertain the legal psitin: R v Scarth; R v Raabe; Mullen v The King; R v Barlw 2.5. PROVING AN OFFENCE Judge s rle is t decide n law, while rle f jury is t decide facts distinctin between law and fact is nt always easily made: Ostrwski v Palmer If cntesting a charge in the Magistrates Curt and unrepresented, magistrate, sitting alne will decide n bth law and facts f case: Clancy v Superintended f Traffic 2.6. RELEVANT LEGISLATION Plicing: Plice Pwers and Respnsibilities Act 2000 (Qld) Drugs: Drugs Misuse Act 1986 (Qld) Bail: Bail Act 1980 (Qld) Prcedure in the Magistrates Curt: Justices Act 1886 (Qld) Prcedure in the Higher Curts: Criminal Cde Act 1899 (Qld) Selecting a jury: Jury Act 1995 (Qld) Sentencing: Penalties and Sentences Act 1992 (Qld) 3. CORE THEMES IN CRIMINAL JUSTICE 3.1. RULE OF LAW Definitin All peple and institutins are subject t and accuntable t law that is fairly applied and enfrced Principles The separatin f pwers between the legislature, the executive and the judiciary The law is made by representatives f the peple in an pen and transparent way The law and its administratin is subject t pen and free criticism by the peple Cmpare, e.g. China where freedm f speech is in cnstitutin but is nt actually applicable. The law is applied equally and fairly, s that n ne is abve the law Irrespective f psitin The law is capable f being knwn t everyne, s that everyne can cmply N ne is subject t any actin by any gvernment agency ther than in accrdance with the law Dug Jhnsn Page 4 f 166 Semester 1, 2016

5 The judicial system is independent, impartial, pen and transparent and prvides a fair and prmpt trial All peple are presumed t be inncent until prven therwise and, because f this, are entitled t remain silent and are nt required t incriminate themselves N ne can be prsecuted, civilly r criminally, fr any ffence nt knwn t the law when cmmitted N ne is subject adversely t a retrspective change f the law 3.2. DUE PROCESS Definitin Due prcess = prcedural justice First element f due prcess: Cnduct f legal prceedings strictly accrding t established principles and prcedures, lain dwn t ensure fair trial fr every accused. Secnd element f due prcess: Law enfrcement agencies cannt abuse their pwers. What f such prcedural matters as discvery and interrgatries, the btaining f particulars and the issuing f subpenas? What f matters that straddle the brders f substance and prcedure such as the right t a fair trial, the presumptin f inncence, the right f an accused t refuse t give evidence, the nus and standard f prf in civil and criminal cases and the use f deeming prvisins and presumptins f fact? Prfessr Michael McHugh (2001). Principles The guaranty f due prcess means n accused is tried and punished withut an rderly and adequate prcedure that is applicable unifrmly in all cases. Under a due prcess, every accused is given a series f prcedural rights, including (1) legal cunsel, (2) cnfrnt and crss-examine the witnesses, (3) refuse self-incriminating testimny, and (4) have a crime prven by prf beynd a reasnable dubt PRESUMPTION OF INNOCENCE Definitin N guilt can be presumed until the charge has been prved by the prsecutin beynd reasnable dubt The presumptin f inncence is cntained in article 14(2) f the Internatinal Cvenant n Civil and Plitical Rights (ICCPR), t which Australia is a party. Infrms & Underpins Many Aspects f Criminal Prcedure Issuing f warrants Plice interrgatin Bail Legal representatin Dug Jhnsn Page 5 f 166 Semester 1, 2016

6 The right t silence / privilege against self-incriminatin. Obligatins t disclse evidence 3.4. THE ROLE OF DISCRETION Discretin refers t the freedm t decide what shuld be dne in a particular situatin Discretin is exercised at every pint in the criminal prcedure prcess: Warnings instead f charges; Whether t charge; Which charge; Whether t retry; What sentence. Examples f Discretin in the Criminal Prcess - Judicial discretin t admit r exclude evidence in a trial and refusing bail: R v Baden-Clay - Judicial discretin in rdering a cnsecutive three life sentence: R v Sica - Plice discretin t charge accused and DPP t prsecute ffender: R v AAM; Ex Parte A-G (Qld) - Nrthern Territry judges recgnised yung Indigenus men frm Grtte Eylandt may see imprisnment as rite f passage and cmmit crime in rder t g t prisn: Bara Bara v James - DPP discretin as t whether t try and prsecute again: Patel v R 3.5. FAIRNESS Equity in access t justice; in treatment by authrities. Unifrmity Cnsistency in sentencing. Certainty Knwledge f utcmes. Transparency ability t knw and test the case against yu; disclsure, secrecy nly when it is vital. Representatin Dietrich principle. If persn is accused f serius ffence and has n legal representatin because f his/her wn fault and persn applies fr adjurnment/stay f prceedings, the Curt must grant a stay/adjurnment & allw persn t find legal representatin. 4. THE STANDARD OF PROOF (BEYOND REASONABLE DOUBT) 4.1. BEYOND REASONABLE DOUBT Thmas v The Queen (1960) 102 CLR 584 per Kitt J Whether a dubt is reasnable is fr the jury t say; and the danger that invests an attempt t explain what 'reasnable' means is that the attempt nt nly may prve unhelpful but may bscure the vital pint that the accused must be given the benefit f any dubt which the jury cnsiders reasnable." Dug Jhnsn Page 6 f 166 Semester 1, 2016

7 R v CBK [2014] QCA 35 Trial judges shuld nt attempt t explain the cncept f reasnable dubt, at least nt befre being asked fr an explanatin by the jury Dawsn (1961) 106 CLR 1 per Dixn J It is a mistake t depart frm the time-hnured frmula. It is, I think, used by rdinary peple and is understd well enugh by the average man in the cmmunity. The attempts t substitute ther expressins, f which there have been many examples nt nly here but in England, have never prspered. It is wise as well as prper t avid such expressins Punj (2002) Judge tried t explain what a dubt meant; explained terms as thugh yu re nt really sure, nagging matter that makes yu hesitate, reasnable chance. On appeal said this was wrng: The wrds mean what they say Rbinsn (1994) Trial judge basically suggested t the jury that the accused had a real interest in the trial utcme s that might lead yu t determine dubt differently because f that. Held that this was a glss n the beynd reasnable dubt frmulatin s was als prblematic. Small errr may be enugh FOR STRUGGLING JURIES A reasnable dubt is such as yu, the jury, cnsider t be reasnable n a cnsideratin f the evidence. It is therefre fr yu and each f yu whether yu have a dubt that yu cnsider reasnable. If at the end f yur deliberatins yu as reasnable persns, are in dubt abut the guilt f the defendant, the charge has nt been prved beynd a reasnable dubt. QSC Benchbk 57.1 Beware f the Benchbk Clarke (2005) QCA 483 Tried t appeal n the basis that the judge didn t fllw the benchbk directly, hwever curt said the bk is nt inflexible it is merely a guide: Whilst the Benchbk is an extremely valuable aid t judges in frmulating the basis f judicial directins t be given t a jury in a criminal trial, it is nt intended t be an inflexible and allencmpassing cde. Criminal trials are infinitely variable and ften require judges t take innvative appraches ; Hayes (2008) QCA 371 Curt f Appeal said that criticism n basis that directins were nt precisely as stated within the benchbk rejected this, saying that it was simply a misunderstanding the rle f the Benchbk: a departure frm the Benchbk is nt itself an errr n the part f a trial judge. The sufficiency f a trial judge's directins depends n the circumstances f each case 5. BURDEN OF PROOF (THE GOLDEN THREAD) 5.1. THE GOLDEN THREAD Prsecutin has t prve the case beynd reasnable dubt. This is referred t as the glden thread. It is the prsecutin s duty t prve the defendant s guilt. The glden thread is that the prsecutin has the burden f prf. Dug Jhnsn Page 7 f 166 Semester 1, 2016

8 Wlmingtn [1935] charged fr murdering his wife. Hid gun in his jacket, but argued that he did nt intend t kill wife. Argued it was nt murder but manslaughter. Plice said that he had t prve it. Held: Thrughut the web f the English criminal law ne glden thread is always t be seen, that it is the duty f the prsecutin t prve the prisner s guilt, subject t what I have already said as t the defence f insanity and subject als t any statutry exceptin If at the end f and n the whle f the case there is a reasnable dubt, created by the evidence given by either the prsecutin r the prisner the prsecutin has nt made ut the case and the prisner is entitled t an acquittal. N matter what the charge r where the trial, the principle that the prsecutin must prve the guilt f the prisner is part f the cmmn law f England and n attempt t whittle it dwn can be entertained BURDEN OF PROOF FOR OFFENCES Evidential and persuasive nus n prsecutin with respect t elements f ffence: Wlmingtn v DPP; R v Mullen; R v Falls; s 23 QCC I.e. Must prve bth elements established & carries evidentiary nus with respect t each element Standard is beynd reasnable dubt: R v Weisz 5.3. BURDEN OF PROOF FOR DEFENCES The general rule is that the defendant is nt required t prve r disprve anything; that is, the prsecutin has the legal burden f prving all f the elements f the criminal ffence and f disprving any defences raised by the defendant NORMAL DEFENCES The defence bears the evidentiary nus n balance f prbabilities (nte, prsecutin must disprve beynd reasnable dubt): 1. Must prima facie raise the issue r prvide sufficient fundatin : Menniti (1984) 2. Can discharge evidentiary nus thrugh evidence which cmes t the curt indirectly: Buttigieg (1993) May be thrugh prsecutin s case, e.g. crss-examining their witnesses: He Kaw The (1985) 3. Judge will cnsider the psitin mst favurable t the accused r risk appeal: Stingel; Muratvic 4. Cntradictry defences nt raised by accused but raised n evidence must be directed by Judge: Stingel; Stevens v The Queen (2005); Fingeltn v The Queen (2005); Benchbk at 61B Prsecutin must disprve defence (the nes that arise n the evidence) beynd reasnable dubt: Yuseff; Wlmingtn Prcess: 1. Defence raises it and have evidentiary burden n balance f prbabilities; Dug Jhnsn Page 8 f 166 Semester 1, 2016

9 2. Defence must disprve defence (nes arising n evidence) beynd reasnable dubt (persuasive/legal burden). REVERSE ONUS DEFENCES Reverse nus defences ccur in tw situatins: 1. Rebuttable Presumptins: When defence must disprve a presumptin f law r fact: e.g. the presumptin f sanity; the link between ccupatin and pssessin 2. Statutry Exceptins: When a statute states an exceptin: e.g. it is a defence t prve Where a statute places a legal burden n the accused n an issue, it can be discharged by evidence that meets the balance f prbabilities standard Where the defence has the nus, the standard is the lwer n the balance f prbabilities Prcess: 1. Defence has legal and evidentiary burden n balance f prbabilities; 2. Prsecutin must disprve the defence beynd reasnable dubt. 1) Rebuttable Presumptins Presumptins f Law Insanity: Every persn is presumed t be f sund mind (s 26 QCC). The defence f insanity is available under s 27 if the defendant can rebut this presumptin. Age f Criminal Respnsibility: 1. A persn under 10 is nt criminally respnsible: s 29(1) QCC irrebuttable 2. A persn under 14 is nt criminally respnsible unless it is prved they had the capacity t knw: s 29(2) QCC rebuttable; R v F (1999) Presumptins f Fact Encapsulated in legislatin by evidentiary prvisins Drugs Misuse Act: s 129 Onus f prving authrisatin t have drugs DMA s (c) prf that a dangerus drug was at the material time in r n a place f which that persn was the ccupier r cncerned in the management r cntrl f is cnclusive evidence that the drug was then in the persn s pssessin unless the persn shws that he r she then neither knew nr had reasn t suspect that the drug was in r n that place; Transprt Operatins (Rad Use Management) Act s 120 Speed Cameras: s 120 (2) An image prduced by the prsecutin purprting t be certified by an fficial stating that the image was prperly taken by a phtgraphic detectin device at a specified lcatin and time is evidence f the fllwing matters (a) the image was taken at the specified lcatin and time; (b) the accuracy f the image; Dug Jhnsn Page 9 f 166 Semester 1, 2016

10 (c) the things depicted in the image; (d) any requirements prescribed by a regulatin abut the peratin and testing f a phtgraphic detectin device were cmplied with fr the specified device at all material times. (6) Evidence f the cnditin f the phtgraphic detectin device is nt required unless evidence that the device was nt in prper cnditin has been given. Nte: This phraselgy reverses the evidentiary burden rather than the persuasive burden. A defendant need n prve the device was faulty, but if there is sme evidence that the device is faulty, the prsecutin must prve the cntrary 2) Statutry Exceptins MENTAL INCAPACITY QCC: s 304A Diminished respnsibility (1) When a persn wh unlawfully kills anther under circumstances which, but fr the prvisins f this sectin, wuld cnstitute murder, is at the time f ding the act r making the missin which causes death in such a state f abnrmality f mind as substantially t impair the persn's capacity t the persn is guilty f manslaughter nly. (2) On a charge f murder, it shall be fr the defence t prve that the persn charged is by virtue f this sectin liable t be cnvicted f manslaughter nly.. DRUGS Drugs Misuse Act: s 124 Defence f supply f lawfully prescribed drug in a small quantity (1) A persn is nt criminally respnsible fr an ffence defined in sectin 6 if the dangerus drug is ne specified in the Drugs Misuse Regulatin 1987, schedule 5 and if the persn prves that-- (a) it was prescribed fr the persn by a medical practitiner fr a cnditin with which the persn was suffering at the time it was prescribed... Drugs Misuse Act: s 129(1)(c) Drugs presumed t be yurs. TRAFFIC Traffic Operatin (Rad Use Management) Act: s 114 Traffic cameras presumed t be wrking CHILD OFFENCES Queensland Criminal Cde: s 29(2) Age f Criminal Respnsibility Persn between nt respnsible unless it is prved that they had capacity: s 29(2); R v F Queensland Criminal Cde: s 228E (2) It is a defence fr the persn t prve that Dug Jhnsn Page 10 f 166 Semester 1, 2016

11 (a) the persn engaged in the cnduct that is alleged t cnstitute the ffence fr a genuine artistic, educatinal, legal, medical, scientific r public benefit purpse; (b) the persn s cnduct was, in the circumstances, reasnable fr that purpse. INSANITY DEFENCE Falcner (1990) Insanity is a reverse nus defence which generally the defence must prve n balance f prbabilities. But where the prsecutin raises insanity, HCA said (4:3 majrity) that the Crwn bears the same burden f prf as the accused (balance f prbabilities) Nte: Still have t disprve ther defences raised by defence beynd reasnable dubt (where necessary) which was in this case autmatism JUSTIFICATION OF REVERSE ONUS DEFENCES Tw imprtant criteria fr justifying shifts in burdens f prf: 1. prf issues (prsecutin difficulties, defence knwledge); and 2. ffence issues (serius ffences, public safety.) 3. A third, mre imprtant, criterin is whether the shift in burden relates t an essential issue f culpability (i.e. physical and fault elements that define acts and culpability t warrant the stigma and assigned punishment f the ffence.) This is in cntrast t shifts in the burden f prf n issues that are ptinal exceptins t criminal respnsibility (an exceptin, exemptin, excuse, qualificatin r justificatin prvided by the law creating an ffence.) While this distinctin is a difficult ne, it is als critical in defining the rights issue and determining questins f justifiability. 6. DEFENCES NOT SPECIFICALLY RAISED Althugh the Crwn des nt have t meet every defence which culd pssibly arise, the Crwn must disprve thse defences that arise n the evidence : Yuseff per Hunt J Therefre, the judge shuld direct the jury n all such defences that arise n the facts: Even cntradictry defences nt raised by the accused but raised n the evidence must be directed by the judge: Stingel; Stevens v The Queen Fr example, in the Falls Case, raised self-defence but judge shuld als have left sectin 204B (killing fr preservatin in an abusive dmestic relatinship) t jury. Dug Jhnsn Page 11 f 166 Semester 1, 2016

12 7. GENERAL RULES Dug Jhnsn Page 12 f 166 Semester 1, 2016

13 1. POLICE POWERS GENERALLY 1.1. REASONS FOR REGULATION TOPIC 2: ARREST & SEARCH T avid unnecessary intrusin int an individual s liberty and autnmy an effective justice system must be balanced against the prtectin f individuals (tensin between individual rights and cllective gd) A clear legislative framewrk ensures that plice fficers understand their pwers and respnsibilities. The manner in which plice investigatins are carried ut have an impact n the utcme f the trial (e.g. crucial evidence unlawfully btained may be rendered inadmissible) 1.2. REGULATORY PROVISIONS Our fcus in this curse: Cmmn law principles have develped ver time But in Qld Plice Pwers and Respnsibilities Act 2000 Nte Sectin 9 still leaves rm fr cmmn law Plice Pwers and Respnsibilities Regulatin 2012 als imprtant Legal framewrks attempt t regulate discretin and safeguard against abuse (e.g. by recgnising certain rights) But nte: There are ther/additinal ways t regulate (human rights framewrks; civil/criminal/administrative law; departmental plicies and guidelines.etc) Plice Accuntability Structures Internal QPS Prcesses Queensland Crime and Crruptin Cmmissin established under the Crime and Miscnduct Act Dealing with rganised crime and investigating and preventing miscnduct; 2. Dealing with the miscnduct f public fficials (including plice fficers): ss 20, 21 CMA 2. KEY TERMINOLOGY: PPRA SCHEDULE 6 The term reasnable is used frequently with regards t plice pwers. It imprts an bjective standard, i.e. wuld an rdinary and reasnable persn believe the frce is necessary/have a suspicin etc REASONABLE SUSPICION A reasnable suspicin is the basis fr enlivening a lt f plice pwers Ordinarily, a persn wuld have a similar suspicin in thse circumstances based n the given facts. Dug Jhnsn Page 13 f 166 Semester 1, 2016

14 Sch 6 Definitin: reasnably suspects means suspects n grunds that are reasnable in the circumstances Gerge v Rckett (1990) 170 CLR 104: less than what is needed t grund a belief and requires a reasnable persn test Gldie v Cmmnwealth f Australia (2002) 188 ALR 708: reasnable suspicin suggests that smething substantially less than certainty lies n a spectrum between certainty and irratinality Dbbs v Ward & Anr [2002] QSC 109: a suspicin that amunts t nthing may still have been reasnable WA Law Refrm Cmmissin says that it must be mre than imaginatin r cnjecture Suspicin has t actually have been held, nt enugh that it culd have been held Bartn v The Queen N standard in sme statutes in that discretin can be exercised in accrdance with the scpe and bject f the statute (pulling ver smene fr alchl breath test) Ruddck v Taylr What cnstitutes reasnable grunds fr suspecting a persn must be judged against what was knwn r reasnably capable f being knwn at the relevant time REASONABLY NECESSARY Pwer/frce yu are exercising must be reasnably necessary = meaning prprtinate Thmas v Mwbray [2007] HCA 33: apprpriate and adapted t the purpse, linked t prprtinality Sme pwers are nt reasnably necessary in the circumstances if there is a less ppressive means f ding things Dug Jhnsn Page 14 f 166 Semester 1, 2016

15 3. POLICE INVESTIGATIVE POWERS General pwer t enter make inquiries, investigatins r t serve dcuments: s 19 PPRA General pwer t enter t arrest r t detail smene r enfrce warrant: s 21 PPRA What is a reasnable time t stay n a place: s 20 PPRA Overview f the Pwers 4. ARREST Arrest Pwers 1. With and withut warrant 2. Alternatives t arrest Search Pwers 1. With and withut warrant 2. Searching pst-arrest 3. Frensic prcedures, identity prcedures and ther pwers Use f frce when exercising pwers Cnsequences f imprpriety/unlawful use f pwer 4.1. DEFINITION OF AN ARREST Definitin: Beginning and end f an arrest is nt always entirely clear; is basically a situatin r cntinuing act: Michaels Essentially within plice custdy; either have been physically restrained (with r withut wrds) r have been tld they re under arrest, and they have submitted t plice cntrl: Aldersn v Bth [1969] Mere wrds are nt enugh: Dellitt v Small Wrds shuld be used, but if nt des nt mean there is nt an arrest: Aldersn v Bth [1969] Use f wrds cupled with submissin: Licciardell v R [2012] 4.2. ARREST WITHOUT A WARRANT: s 365 PPRA There are tw types f lawful arrests withut a warrant: 1. Sectin 365(1) reasnable suspicin & reasnably necessary 2. Sectin 365(2) reasnable suspicin that persn cmmitted r cmmitting ffence under Ch 15 Dug Jhnsn Page 15 f 166 Semester 1, 2016

16 SECTION 365(1) PPRA Sectin 365(1) there must be a reasnable suspicin the adult has cmmitted r is cmmitting an ffence and the arrest must be reasnably necessary fr ne f the prescribed circumstances in sectin 365(1): (a) t prevent the cntinuatin r repetitin f an ffence r the cmmissin f anther ffence; (b) t make inquiries t establish the persn's identity; (c) t ensure the persn's appearance befre a curt; (d) t btain r preserve evidence relating t the ffence; (e) t prevent the harassment f, r interference with, a persn wh may be required t give evidence relating t the ffence; (f) t prevent the fabricatin f evidence; (g) t preserve the safety r welfare f any persn, including the persn arrested; (h) t prevent a persn fleeing frm a plice fficer r the lcatin f an ffence; (i) because the ffence is an ffence against sectin 790 r 791; (j) because the ffence is an ffence against the Dmestic and Family Vilence Prtectin Act 2012, sectin 177, 178 r 179; (k) because f the nature and seriusness f the ffence; (l) because the ffence is (i) an ffence against the Crrective Services Act 2006, sectin 135(4); r (ii) an ffence t which the Crrective Services Act 2006, sectin 136 applies. Nte: s 365(3) and s 13 Yuth Justice Act 1992 fr children it is lawful fr a plice fficer t arrest a child withut warrant if the plice fficer reasnably suspects the child is cmmitting r has cmmitted an ffence. Reasnable Suspicin des nt rely n the crrectness f suspicin. If it becmes clear later that the persn was nt cmmitting r did nt cmmit ffence it des nt necessarily make the arrest unlawful: Cleman v Pwer [2004] HCA 39; Ghani v Jnes SECTION 365(2) PPRA It is lawful fr a plice fficer, withut warrant, t arrest a persn the plice fficer reasnably suspects has cmmitted r is cmmitting an indictable ffence, fr questining the persn abut the ffence, r investigating the ffence, under chapter 15. Lawfulness f an arrest may fluctuate: Michaels; Nrtn (pre-sectin 365(2), plice wuld think f a pathetic charge in rder t get them int the statin t questin hem abut smething else they dn t have reasnable suspicin abut) Dug Jhnsn Page 16 f 166 Semester 1, 2016

17 4.3. ARREST WITH A WARRANT: ss PPRA It is lawful (but unusual) fr a persn t be arrested with a warrant: s 369 PPRA Officer can apply under s 370 PPRA May be issued under s 371 PPRA if the justice is satisfied that there are reasnable grunds fr suspecting: 1. (a) that the persn has cmmitted the ffence; and 2. (b) fr an ffence ther than an indictable ffence, prceedings by way f cmplaint and summns r ntice t appear fr the ffence wuld be ineffective, including because the persn can nt currently be lcated r served with a cmplaint and summns r ntice t appear fr the ffence. Warrant must cntain details f fficer, suspect, and alleged ffence: s 372 PPRA 4.4. PROCESS WHEN ARRESTING Plice behaviur may r may nt lead t the exclusin f evidence. May als be cnsequences fr the plice. Infrmatin shuld be given under s 391 PPRA: 1. (1) as sn as is reasnably practicable after the arrest, infrm the persn that the persn is under arrest and f the nature f the ffence fr which the persn is arrested. 2. (2) must infrm the persn that the persn is under arrest and f the nature f the warrant. 3. (3) Befre the persn is released frm plice custdy, a plice fficer must give t the persn, in writing, the name, rank and statin f the arresting fficer. Release r befre a curt as sn as reasnably practicable : s 393 PPRA At sme pint, detentin will becme unlawful What des this mean: Williams v R magistrate sitting that afternn shuld have taken accused 4.5. ALTERNATIVES TO ARREST The PPRA prmtes the use f alternatives t arrests where pssible including: 1. Ntice t appear: ss PPRA 2. Cmplaint and summns: ss Justices Act Discntinue arrest: ss PPRA decide nt t charge if there is n lnger a reasnable suspicin f an ffence 4. Limit f re-arrest: s 381 PPRA 5. Infringement ntices and n-the-spt fines: s 377 PPRA 6. Mve n pwers: ss PPRA Dug Jhnsn Page 17 f 166 Semester 1, 2016

18 7. Prblems with using arrest pwers t plice public rder ffences etc esp. cntraventin ffences ss PPRA Walters v Lawler [2001] QDC 204 (Judge exercised discretin t exclude evidence because arrest unlawful) 8. Children cautining and yuth justice cnferencing diversin ptins under Yuth Justice Act NOTICE TO APPEAR: ss PPRA May be alternative t arrest r used after discntinue arrest and can be issued where an arrest is nt reasnably necessary: s 382(1) PPRA. Can be issued where a PO reasnably suspects the persn has cmmitted r is cmmitting an ffence: s 382(2) PPRA. The signed ntice sets ut details f the alleged ffence and details f time and place fr curt appearance: s 384 PPRA Filed with curt clerk: s 385 PPRA; general particulars nly are required n an NTA: s 386 PPRA. Cmmn fr public rder ffences but als mre serius ffences if n wrries abut whether they ll turn up. In sme situatins where we re wrried abut peple turning up will d arrest, charge and bail (rder frm curt usually; cnditins t ensure they d cme t curt n the day, r nt granted and remain in custdy). Often when arrest a persn they take them back t statin, release (discntinue arrest) and give NTA. COMPLAINT & SUMMONS: ss PPRA Plice make cmplaint t curt abut behaviur, then curt has t summn them there. Awkward, ld-fashined, NTA generally preferred DISCONTINUE ARREST: ss PPRA If arrest is discntinued under Part 4 PPRA, the charge assciated with the arrest is als discntinued: s 375 PPRA Shuld release at earliest pssible pprtunity if the persn is n lnger reasnably suspected f cmmitting the ffence: s 376 PPRA (e.g. after interview) May decide arrest is nt the best way t pursue the matter: s 377 PPRA If arrest fr being drunk in public place, arrest may be discntinued nce persn delivered t hspital r ther safe place: s 378 PPRA Limits n re-arrest: s 381 PPRA - PO requires mre evidence t justify re-arrest. INFRINGEMENT NOTICES Requires payment f a fine MOVE ON POWERS: ss PPRA Ask persn t mve n if persn is a public r prescribed place: s 47 PPRA Dug Jhnsn Page 18 f 166 Semester 1, 2016