School of Law LAW104 CRIMINAL B 2014 NOTES
LAW104 CRIMINAL B COURSE OUTLINE Introduction Course description This course introduces you to criminal procedure. You will consider the operations of the criminal justice system in some detail, acquiring knowledge of police powers of investigation, arrest and questioning, bail, criminal trials, sentencing, and appeals against conviction and sentence. While the course deals primarily with criminal law and procedure in Queensland, you will also consider criminal procedure under Commonwealth law as well as comparative materials from other jurisdictions. Topics This course is designed to develop knowledge and understanding of the following: o The procedural steps in the criminal justice system o Police powers when investigating a crime o The protections available to an accused person before and after arrest o The notion of a fair trial o The range of sentencing options and the factors that influence individual sentences o Victims compensation and notions of restorative justice o The roles of the principal agencies in the criminal justice system 2
Week 1 Tutorial 28 July 2014 In this class we will consider the problems in your take-home examination in Criminal Law and Procedure A. Bring a copy of the examination paper with you so that you can work through the answer with your tutor. 1 - An overview of criminal process: from the commission of a crime to an appeal Issues for consideration: 3 - The competing interests in the criminal justice process - Sources of the law of criminal procedure o Police Powers and Responsibilities Act 2000 (Qld) o Police Powers and Responsibilities Regulation 2000 (Qld) o The Criminal Code (the Griffith Code) o Bail Act 1980 (Qld) o Jury Act 1995 (Qld) o Evidence Act 1977 (Qld) o Penalties and Sentences Act 1992 (Qld) o Criminal Proceeds Confiscation Act 2002 (Qld) o Commonwealth legislation - The institutional participants o The Queensland Police Service o The Director of Public Prosecutions o Lawyers: private barristers and solicitors; Legal Aid Queensland; o The courts: the High Court; the Queensland Court of Appeal; the Supreme Court; the District Court; Magistrates Court; Children s Court o Crime and Corruption Commission - Police powers prior to arrest - Powers of arrest and detention - Post-arrest investigation - Consequences of police acting in excess of their powers - Bail - Prosecuting criminal offences - Summary hearings in Magistrates Courts - Proceedings on indictment in the Supreme or District Court - Criminal trials - Sentencing - Appeals Lecture 1 This class is intended as an overview of the criminal justice system from the
commission of a crime through the various stages of the process to the ultimate disposition. In subsequent classes we will be breaking the process down into the key aspects and examining each in more detail. I have concentrated on the progress of an indictable offence (more serious) through the system, but we will also refer to the differences in dealing with summary offences, which remain in the Magistrates Court and are dealt with by a Magistrate without a jury. POLICE RECEIVE 4 Complaint Information Intelligence Tip off eg Crimestoppers informants POLICE COMMENCE Enquiries Investigation Evidence gathering and securing the evidence Physical evidence Statements/evidence from witnesses May involve obtaining a Crime Scene Warrant, Search Warrant, production notice (bank to produce documents) etc Police want crime scene secured Contact magistrate and ask for crime scene warrant Present application for crime scene warrant and warrant form and tell magistrate story (on oath or affirmed) and how long require scene for
5 If reasonable > magistrate issues warrant to shut off property Warrant is judicial order from (judicial officer magistrate, JP, judge) giving police authority to act Balance privacy with need to catch criminals > warrant controls police powers Police need a reasonable suspicion to obtain a warrant Eg looking for documents wrt fraudulent purchase of car All physical exhibits bagged and tagged and chain of continuity recorded and maintained. Continuity must know where is otherwise may get interfered with WITNESSES ARE SPOKEN TO Matters they can speak to are recorded, usually in Police Officers notebooks Formal statements will be prepared at a later stage if required ONCE SUSPECT OR PERSON OF INTEREST DETERMINED Police are entitled to question Under strict rules in PPRA Right to have relative, friend or lawyer present Wait reasonable time for them to arrive Special provisions for Aboriginal persons, persons with intellectual disabilities, intoxicated persons, children Caution re right to silence Set out in PPRA Statements made by Def that are not voluntarily made or are unfairly obtained may be excluded from evidence. Duress, threat, inducements Police act in way that means unfair to use admissions
These are argued before trial ONCE DECISION MADE TO CHARGE Police will either Arrest Defendant or Issue Notice to Appear to the Defendant (document to appear in court)(if don t appear [not a charge] get PPRA warrant for arrest and arrested then released on bail) or Proceed by way of Complaint and Summons (process happens a fair time after offence happened > gather evidence > decide to charge > police appear in front of justice and make complaint and justice issue summons to appear) Can also get ticket for minor offences (infringement notice) IF ARRESTED DEFENDANT IS TAKEN TO WATCH HOUSE Identifying particulars eg fingerprints, photos, tattoos etc are recorded Forensic procedures eg DNA (may require order from Magistrate if Defendant won t consent and thereafter may use reasonable force) If police not opposed to bail, Def can be released on Watch house bail by the OIC of the watch house or given a NTA Depending on how serious crimes are IF BAIL OPPOSED BY POLICE Usually because outstanding warrants (didn t turn up previously) history of offending in same way Def must, as soon as reasonably practicable, be taken before a court/magistrates Usually the nearest Magistrates Court IN ALL INSTANCES EXCEPT FOR MURDER Only supreme court judge can give bail for murder as mandatory life 6
The Magistrate will decide whether to refuse bail or grant bail, and set conditions on bail if granted The arresting officer will have prepared a bench charge sheet for each charge (list of charges), and an affidavit setting out the reasons for opposing bail Def will by this time usually be represented by his/her own Solicitor or a Legal Aid Duty Lawyer May apply for bail If refused bail by magistrate must seek review in supreme court Expensive, difficult May delay application for bail To get material together CHARGES ARE ADJOURNED to a date for mention (couple of weeks), and then a further date for committal mention (if don t plead guilty), during which time police prepare a brief of evidence so as to disclose to Def the case against him/her. COMMITTAL PROCEEDINGS are held before a Magistrate to determine whether there is a prima facie case against Def such that a jury, properly instructed, could convict. Usually short process. If there is sufficient evidence to put Def on trial (and there usually is) the Magistrate will commit Def to the appropriate Court (District or Supreme) depending on the offence(s). ONCE DEF HAS BEEN COMMITTED TO A SUPERIOR COURT (murder to supreme, most of rest in district court if cant be dealt with in magistrates court)(summarily > magistrate deals with it > magistrate can only sentence for 3 years) Hybrid offences (can be dealt with summarily or by indictment prosecution s choice) If magistrate doesn t think enough evidence to trial attorney general can still elect to proceed (ex officio) he/she is referred to as the Accused, and the Crown, represented by the Director of Public Prosecutions takes over the prosecution from the Police THE BEAK (magistrate) COMMITS THE DEFENDANT FOR TRIAL 7
THE CROWN (DPP) PREPARES A DOCUMENT called an indictment which sets out the charge(s) and presents it to the Court. THE ACCUSED IS CALLED UPON to plead to the indictment. This is called arraignment IF ACC PLEADS GUILTY he/she will be sentenced without the need for a trial. Immediately or at later date IF ACC PLEADS NOT GUILTY a date will be set for a trial A TYPICAL TRIAL PROCEEDS AS FOLLOWS: 8 Acc is arraigned before the entire jury panel Jury is selected Judge makes introductory remarks to jury Crown Prosecutor reads out names of prosecution witnesses To ensure witness aren t known to jury (otherwise juror excused) Crown Prosecutor opens the Crown case, addressing the jury on what the evidence is expected to be Crown calls its witnesses Crown closes its case Acc is called upon as to whether he/she wishes to give or call evidence (not compulsory) If going into evidence, defence counsel gives opening address. Defence counsel calls defence witnesses Defence closes case Defence counsel addresses jury (first if defence calls evidence) Prosecutor addresses jury Judge sums up the evidence and directs jury on the law. Jury retires
Jury delivers verdict(s) If guilty, Judge sentences Acc. If not guilty, Judge discharges Acc. Judge thanks jury. IF ACCUSED ACQUITTED that is the end of the matter. The Crown has no right of appeal against a jury verdict. IF ACCUSED CONVICTED he/she has a right of appeal under CC s668d on grounds involving A question of law With leave, a question of fact, or mixed fact and law With leave, against sentence. THE ATTORNEY GENERAL may appeal against sentence. Leave is not required.(cc s669a) APPEALS are heard in the Court of Appeal by a panel of three Justices of Appeal. COURT OF APPEAL may Dismiss the appeal Allow the appeal and quash the conviction if it is of the view that the verdict was unreasonable, or cannot be supported by the evidence, or if there was a wrong decision on a point of law in the trial, or if for any other reason there has been a miscarriage of justice. IF THE COURT ALLOWS THE APPEAL it may Enter an acquittal 9
Order a new trial EVEN IF THE COURT is of the view that points raised on appeal should be decided in favour of the appellant, it can dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. This is referred to as applying the proviso APPEALS TO THE HIGH COURT are rare. Available only with special leave Special leave is granted only if the judgment appealed from involves a question of law a. Of public importance or b. A decision of the High Court is required to resolve differences between courts or within one court as to the law and c. The interests of the administration of justice require it. I WON MY APPEAL!!!!!! Colvin and McKechnie Ch 22 Principles of Criminal procedure 22.1 22.2 - Developed to satisfy aims o E.g. Detection of crime and conviction of guilty o E.g. Protection of innocent persons from wrongful conviction o Burden of proof - beyond reasonable doubt protects innocent person s but risks acquittal of guilty persons > balancing act 10
22.3 11 - Balance detection of crime and conviction of guilty with other societal interests: o Protect innocent o Privacy e.g. Limit on investigated powers of police e.g. Searching dwellings o Equality before the law! protect disadvantaged o Respect the rule of law to ensure community loyalty! Police judges must obey the law Risk of wrongful convictions Procedural protections for innocent persons may need to be limited in the interests of economic efficiency > Australia has two-tier system of criminal justice - Trial procedure o More elaborate o Access to jury o Reserved for more serious offences with higher penalties - Summary justice o Magistrate s Court o Emphasis on speedy and cheap disposition of cases Sources of the law of criminal procedure 22.4 22.5 - Diverse sources o Originally established by courts o Now extensive parliament legislation o common Law has role especially in exclusion of wrong fully obtained evidence and dimensions of the right to a fair trial o Police powers governed by police powers and responsibilities act 2000 (qld)! Search! Seizure! Arrest! Conduct of forensic procedures o Conduct of criminal Proceedings in courts by the code (qld) and the justices act 1886 (qld) o Common law has made procedural schemes of the states applicable to Commonwealth offences committed within their boundaries! judiciary act 1903 (Cth) s68(1) High Court concerned with: - principles for investigation of offences - principles for the trial process
22.6 - Gaps in legislation allow considerable scope to develop a common law of criminal procedure for Australia - High court has fashioned remedies for breach of principles governing criminal procedure o fair trial o Proper collection of evidence - Difficult balance if someone who has committed a serious offence should be allowed to walk free because the evidence that could prove the offence has been wrong fully obtained Investigation of offences Police powers in Queensland 22.7 Police powers and responsibilities act 2000 (PPRA 2000) Police powers and responsibilities regulation 2000 (to enact the police responsibilities code 2000 which forms sch10) These have been renumbered several times >care with early references 22.8 PPRA 2000 sets out the overall scheme for the special powers of the Queensland police including: - Excluding people from crime scenes - Demanding identification - Roadblocks - Directing people to move from particular places - Searching people or vehicles without a warrant - Obtaining warrants to search - Seizing evidence - Arresting suspects - Questioning suspects in custody - Taking fingerprints and DNA samples - Holding identification parades - Performing medical or dental procedures in the course of searching persons in custody - Using surveillance - Conducting undercover operations PPRA 2000 Section 809 authorises the making of regulations: - e.g. Police responsibilities code (PRC) details responsibilities of police when exercising some of their powers such as questioning suspects in custody 12
22.9 - Potential consequences of contravening the act or the code include the possible exclusion of evidence obtained PPRA 2000 s12(1) preserves powers or responsibilities of police officers under acts specified in schedule one e.g. The bail act 1980, the domestic and family violence protection act 1989 and the juvenile justice act 1992 Older acts are not repealed. PPRA 2000 s11(3) provides that the act prevails over other acts to the extent of any inconsistency. Commonwealth police powers 22.11 The crimes act 1914 (Cth) sets out to Federal police powers - Similar to Queensland - Greatly expanded Powers in dealing with suspected terrorism Exclusion of wrongfully obtained evidence 22.12 Evidence maybe excluded from a trial because it was wrong fully obtained 22.13 In voluntary confessions are excluded for confessions induced in certain narrowly prescribed ways - Criminal law amendment act 1894 (Qld) s10 - PPRA 2000 (Qld) s416 The high court has introduced some broad discretionary powers for trial judges to exclude evidence obtained incorrectly - E.g. Foster v R (1993) > [accused illegally detained when a confession was made > and is unfair to admit the confession at trial] - E.g. Ridgeway v R (1995) [leading case on the criteria for assessing considerations of Public policy - high court > decision whether to admit it evidence related to > worse criminality (legal seriousness of the offence, personal culpability of the individual> consider if individual was an otherwise law abiding person) v worse police misconduct (worse if calculated, worse if not just officer involved (entrenched misconduct > tolerated by a superior official))] [entrapment case; unlawful police conduct induces all facilitates commission of the offence; improper but not unlawful conduct also subject to public policy discretion e.g. entrapment by harassment, discrimination in investigative practices] - R v Swaffield (1998) [purpose of unfairness discretion to protect the rights and privileges of the accused person; unfair to admit and unreliable confession][ unreliability is an important aspect of the unfairness discretion 13
22.14 14 but it is not exclusive ][protection for procedural rights an aspect of the right to a fair trial] - Bunning v Cross (1978) [contrast drawn between misconduct resulting from an honest mistake and misconduct resulting from a deliberate disregard of the law misconduct words if would have been easy to comply with proper standards] High court decisions in 1990s recognised the agents of descriptions to exclude evidence even if of acceptable probative value 22.15 - Considerations of public policy o Protect public interests o Exclude evidence obtained by unlawful or improper means that is contrary to public policy, even though its admission might not involve any unfairness to the accused e.g. R v Swaffield (1998) - Fairness to the accused o What the accused deserves to have o Principle of the discretion lies in powers of courts to protect integrity of their processes E.g. Ridgeway v R (1995) o Concerns include! Police conduct against the law > undermines the rule of law! Police conduct endangers expectations of privacy! Misconduct generally likely to risk wrongful convictions (regardless of whether there is a risk in this instance) - E.g. Foster v R (1993) > principles may overlap Queensland and the Commonwealth still primarily rely on common law to deal with discretionary exclusion of evidence in criminal cases 22.18 - statutory regimes now got them the admission of evidence respecting unrecorded confessions and admissions - The evidence act 1977 (Qld) s130 recognises the unfairness discretion - The crimes act 1914 (Cth) s23s(d) preserves the discretion to exclude unfairly obtained evidence - The crimes act 1914 (Cth) s23s(e) preserves the discretion to exclude illegally or improperly obtained evidence R v Bachelor [2003] >[admission of confession involves consideration of whether the confession would have been made if the investigation had been properly conducted][seriousness of the violation balanced against seriousness of the offence] Other examples on page 615 22.20 No criteria for assessing considerations of unfairness
22.21 To exclude evidence because of the manner in which it was obtained > case for exclusion must be established by the accused (except prosecution must prove voluntariness of a confession to show it is not involuntary) Judge determines admissibility while jury absent (can be raised at any time by judge or counsel e.g. Walbank v R [1996] The trial process 22.22 Entitlements of an accused person to a fair trial according to law (Mckinney v R (1991)) 22.23 a fair trial means the accused should not be exposed to an unacceptable risk of a wrongful conviction > potential for a should be kept to a minimum Evidence act 1977 (Qld) s8 right of the accused person to give evidence in their own defence The right to a fair trial requires that the accused be legally represented e.g. Dietrich Prior disclosure of the prosecution is evidence and other material relevant to the defence 22.24 In exceptional cases procedings may be stopped by a formal order called stay of proceedings 22.25 15 - Common law Power in Queensland - Proceedings are stayed when o Exposure of the accused to an acceptable risk of a wrongful conviction e.g. Jago [hc Acknowledged unreasonable delay could make a fair trial impossible] o Invocation of the trial process for an improper or oppressive purpose! E.g. Williams v Spautz (1992); Walton v Gardiner (1993) [Power to stay proceedings described on page 618] ; Ridgeway o To prevent abuse of process o Discretionary remedy o Permanent! Key witness has died o Temporary! No legal representation o Courts retain power to lift a stay and the trial can proceed o Stay can be appealed by the prosecution
CASES Foster v R unlawful arrest and detention > signed confession (aborigine set fire to school) Jago v District Court of NSW fraud with cheques of company sought stay of proceedings due to excessive delay to trial Week 2 Tutorial 4 August 2014 In this class we will explain the operations of your second assessment item: a court visit and report. You will receive instruction about how to select a court and a date that are suitable to you. You will also receive advice about how to dress and behave when you attend court. We will also consider the important proposed changes to the Criminal Code in the Safe Night Out Legislation Amendment Bill 2014 which is currently before the Queensland Parliament. A copy of the Bill is available on Blackboard. 2 - Police investigative powers: search, seizure, surveillance and identification; investigative powers of special bodies for use in response to corruption, organised crime and terrorism Issues for consideration: " The structure of investigative powers " Powers exercisable without a warrant o Provide identification o Enter premises o Search people and premises o Road blocks and crime scenes " Controlled activities and controlled operations " Powers exercisable with a warrant 16
o Enter premises and search o Monitoring order o Covert searches o Surveillance devices " Identification parades " Forensic procedures and identifying material o Fingerprints o DNA evidence " The use of reasonable force when exercising these powers " Consequences of failure to co-operate Lecture 2 POLICE INVESTIGATIVE POWERS PRE ARREST THE BASIS FOR POLICE POWERS Originally under Common Law Law enforcement officials had few designated powers Could seize evidence Operated mainly by force or bluff eg Sherriff raising a posse Gradually powers codified by statute Now codified in PPRA 2000 and Crimes Act 1914 (Cth) DIFFERENT STANDARDS APPLY TO THE EXERCISE OF POWERS Eg Reasonable suspicion Reasonable belief No standard eg random breath testing is at the discretion of the PO (so long as acting lawfully and in good faith) See C&McK p 661-662 for discussion of these terms POWERS EXERCISABLE WITHOUT WARRANT 17
CL has been varied by Statute Usually requires only reasonable suspicion Power to require details of identification PPRA s40-41 May require name and address and proof of ID in prescribed circumstances (PPRA s41) Failure to comply is an offence (PPRA s791-contravening a requirement) Actively misleading, eg giving false info may result in a charge of obstruction (PPRA s790) Power to enter and search public places PPRA s 33 See also powers to use drug detection dogs ss 35-39 Power to stop and search persons and vehicles PPRA ss 29-32 Police Officer must have reasonable suspicion that one of the prescribed circumstances exists before exercising the power See ss 30 and 32 Power to establish road blocks PPRA ss26-28 Power to seize evidence lawfully found PPRA ss 29(2),31(5),196. Power to establish a crime scene, restrict access and seize items PPRA Chapter7, Part3, ss164-178 Crime scene is a place where a seven year offence or deprivation of liberty has occurred, and it is deemed necessary to protect so as to search for evidence Responsible officer may establish crime scene, and exercise crime scene powers BUT must, as soon as reasonably practicable make sworn application to a Magistrate or Judge for a crime scene warrant Maximum duration 7 days unless extended 18
Must apply to Supreme Court Judge if structural damage to premises is contemplated Power to enter private property and make emergent search Where reasonably suspects that evidence will be concealed or destroyed Must seek post-search approval order PPRA ss159-163 Power to give direction to move on PPRA ss46-48 Must give the person reason he/she is being moved on Must advise that if they refuse the direction they will be arrested POWERS EXERCISABLE WITH A WARRANT Power to enter premises, search for, and seize evidence PO makes sworn, written application to a Justice Must establish a reasonable suspicion the evidence is in the place or is likely to be within 72 hours Must specify the evidence sought (no fishing expeditions) Must specify the exact extent of the premises which may be searched Must specify reason warrant sought eg charge contemplated Warrant must not be broader than the application Justice must apply mind judicially.not rubber stamp Warrant good for 7 days May specify hours during which execution permitted Copy of warrant must be given/left for occupier May search persons only if such is specified in the warrant (or otherwise authorised by law) NOTE: Students should be familiar with PPRA ss150aa-158 and read George v Rockett(1990)170CLR 104 and State of 19
NSW v Corbett(2007)236CLR 120 Power to make covert search See PPRA ss 211-220 Application is to SC Judge for covert search warrant Public Interest Monitor must be notified Available only for serious offences eg murder, organised crime, terrorist activity Warrant good for 30 days Police must report back to Judge and PIM Powers exercisable under a monitoring order PO applies to SC Judge for order to financial institution to disclose details of transactions without notice to the client Surveillance warrants Physical eyes on surveillance, no warrant required Vehicle tracking devices apply to Magistrate Listening devices----apply to SC Judge Optical devices eg covert camera---apply to SC Judge Interception of telephone calls, emails etc---apply to Federal Court Judge under Telecommunications(Interception and Access)Act (Cth) Controlled activities and operations Applies where police may wish to carry out covert and undercover investigations which may involve them committing acts which would normally be criminal conduct Provides strict controls over the activities, and protections (both civil and criminal) for the officers involved See PPRA ss221-277 20
IDENTIFICATION PARADES Police lineup from movies seldom if ever used Usually done by photo-board Must have at least 12 persons of similar appearance PO must not prompt or lead witness Procedure should be recorded See PPRA s617 and PPRReg ss 52,53 FORENSIC PROCEDURES AND IDENTIFYING MATERIAL Read Douglas pp58-68 Intimate vs non-intimate procedures PO may obtain identifying particulars if non-intimate Only doctor or dentist may carry out intimate procedure PO may apply to Magistrate for forensic procedure order where consent refused DNA profiling Taken by mouth swab or hair sample Matched to data bases Useful in solving cold cases and excluding persons of interest Caution needed in use---eg contamination, coincidental matches with relatives in small communities Fingerprints Must be destroyed in reasonable time if no conviction FORCE USED TO CARRY OUT POWERS Police may use only such force as is reasonably necessary If faced with imminent threat of death or gbh, may respond with lethal force in the last resort 21