Criminal Law Notes A

8/12/2019 Criminal Law Notes A

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Criminal Procedure:

Themes:

JS Mills Harm Principle (Overarching Theory): Power can be rightfully exercised over members in a

community against their will, is to prevent harm to others.

Devlin (Utilitarian Position): Society should use the law to preserve morality to safeguard anything thatis essential to its existence.

Hart (Moderate Position): Shared morality is essential to the existence of any society. No evidence thatimmorality jeopardizes society.

Purpose of Criminal Punishment s 5(1) Sentencing Act

Jurisdiction

Territory:

Victoria has jurisdiction over a crime, where: The criminal act or omission happened within Victoria, OR The criminal act or omission causes substantial harmful effects within Victoria (s 9 CA)

Classification of Offences:

Summary

Less serious offences heard by a magistrateAn offence is considered a summary offence, if:No sentence is listed in the legislation, ORThe maximum penalty for the offence is less than two years, OR, the offence is specifically referred to a summaryoffence in the legislation

Indictable Offences

More serious offences heard by judge and/or juryPunishable by more than three years

Serious Indictable Offence:

Punishable by five years or more on first conviction


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Persons:

Children:

Under 10: cannot be guilty of a criminal offence

10-14: Presumption of innocence (Doli Incapax) that can be rebutted if the prosecution can prove thatthe child what they were doing was wrong14-17: can be guilty of a cri minal offence, heard in the Childrens Court

Mental Impairment:

There is a presumption of sanity

If the D was suffering from a mental impairment, and did not know:The nature or the quality of their conduct, OR That the conduct was wrongThey will be found not guilty due to mental impairment

Corporations:

Can be prosecuted for:1) Crimes committed by the minds of the organization 2) Actions of employees (through the principle of vicarious liability)

Time:

Indictable Offences: No time limit at Common law, however, once charge is laid, time limits apply toconduct of trialSummary Offences: Charges must be filed within one year of the offenceOther time restrictions: outlined in ss 164, s 211, and 212 in CPA

Criminal Investigation

Arrest:

Powers to arrest under Common Law were abolished and replaced by statutory powers (s 457 CA) There are two types of arrest under statutory powers:

Arrest with warrant Arrest without warrant


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Arrest without Warrant by Citizen or Police: (s 458)

Any person (citizen or police) has the power to arrest in the following three circumstances

1. When they believed on reasonable grounds that the person is committing any offence (s 458(1)(a) CA) The person need not be caught red handed (s 462 CA)

The person arresting must be satisfied that it was necessary to arrest the person:1. To preserve their appearance on court (s 458 (1)(a)(i) CA); or 2. To preserve public order (s 458 (1)(a)(ii) CA); or 3. To prevent the continuation or repetition of the offence or another offence (s 458 (1)(a)(iii); or 4. For the safety and welfare of the community or the offender (s 458 (1)(a)(iv)

2. When instructed to make the arrest by a police officer for the purpose of apprehension (s 458 (1)(b) CA);or

3. When they need to stop a person from escaping, or helping someone else to escape legal custody or lawfulapprehension (s 458 (1)(c ) (CA);

The person carrying out the arrest must inform the person:

1. That they are being arrested/under compulsion and are free to go; and they must understand this2. Nature of the alleged offence

Arrest without Warrant by Police Only (s 459 CA)

Police can arrest someone if they believe on reasonable grounds that the person has committed an indictablecrime(s 459 CA)

Arrest without Warrant Entering and Searching (s 459A CA)

No general powers to enter and search, by citizens or police (s 459A CA)

1. Police may enter and search for any person if they believe on:a) Reasonable grounds that the person has committed a serious indictable offence;b) is escaping legal custody; orc) Finds the person committing a serious indictable offence

Using Force to Prevent an Indictable Offence (s 462A CA)

A person may use force that is not disproportionate:

1. If they believe on reasonable grounds it is necessary to prevent the commission, continuance or

completion of an indictable offence, or ,2. To arrest or assist in arresting a person committing or suspect of committing any offence

Arrest with Warrant:

Courts and the police must follow procedures outlined in ss 12 16 Criminal Procedure Act and issue summonsand charge sheet.


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A warrant authorises the directed person to: s 64(1) Magistrates Court Act

1. Break, enter and search, any placed where the person named/described by the warrant is suspected tobe.

2. Arrest the person named, or described in the warrant.

The person arrested must be (s 64 (2) Magistrates Court Act):

1. If citizen, must take to the police, brought before a bail justice, or the court within a reasonable time: or if,police, must be brought before a bail justice or the court within a reasonable time

2. Be released on bail

Executing an Arrest:

Detention: Investigating (s 456AA CA)

Questioning and Investigation:

At CL, Police have no general power to question or investigate (s 464(1) CA)Police have the power to ask a person for their name and address without arrest (s 456AA CA)-if person has committed or is about to commit an offenceOR may assist in investigation of indictable offence (s 456AA CA)

-summary offence to refuse

Period of Detention: Police (s 464A)

Police are allowed to keep and question for a reasonable time, a person in custody (s 464A)

The person is considered in custody when: 1. The person is under arrest with, or without warrant2. The person is in the company of an investigating official for questioning, or investigation and police has

sufficient evidence to arrest that person

After Reasonable Period of Detention (s 464A CA)

Within a reasonable period of time after being taken into custody, a person must be (s 464A CA):

Released unconditionally, orReleased on bail, orBrought before a bai l justice of the Magistrates Co urt

Factors which help determine reasonable time s 464 A(4) CA

The period of time reasonably required to bring a person before a bail justice or the MagistrateThe number and complexity of the offences to be investigatedThe amount of reasonably necessary preparation the police officer needed to do to question or investigate


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The time it took to transport the person from the place of apprehension to facilities that are available to conduct aninterview or investigationNumber of people who need to be questioned during the period of custody for the same offenceAny need to visit the place where the offence is believed to have been committed or any place reasonably connected withthe offenceAny time to communicate with a lawyer, friend, relative, parent, guardian or independent person

Any time taken by a lawyer, interpreter, parent, guardian or independent person to arrive where the questioning orinvestigation is being taken placeAny delays or suspension in questioning or investigation due to the person needing to receive medical attentionThe total period of time the person was in company with an investigating official before, and after the commencement ofcustodyAny other matters reasonably connected with the investigation of the offence

Silence (464 J)

A person has the right to refuse to answer questions or to participate in investigations except where required to doso by, or under an Act or Commonwealth Act (s 464J CA)

A person must be informed of this right S 464A (3)

Communication (464 C)

Before questioning or investigation begins, the person must be informed of the rights to (s 464C CA)

Communicate with a friend or relative to tell them of their whereaboutsCommunicate with a legal practitioner

Interpreter (464 D)

An interpretation must be arranged where a person does not have a knowledge of English that is sufficient forthem to understand the questioning (s 464D CA)

Questioning and Investigation cannot begun until the interpreter is present

Parent and Guardian Attendance for Minors (464 K)

Individuals under the age of 18 have the right to:

Having their parent/guardian or an independent person present in their interview: S 464E CA

Recording of Interviews (464 H)

Admissions and confessions must be recorded, otherwise, they can be found to be inadmissible (s 464H CA)When a person is informed of their rights, this must be recorded where practicable (s 464G CA)


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Finger Prints: (464K CA)

Fingerprints may be taken from someone who:

1. Is charged or reasonably believed to have committed an offence (s 464K CA);2. Police must inform suspect of purpose and offence, and record caution

The police may use reasonable fore to take the fingerprints where the person refuses to cooperate if they havepermission from a sergeant or above (s 464K (7)

Forensic Procedures: (464 R)

The police can request to undergo a forensic procedure only if:

1. There are reasonable grounds to believe that the procedure would confirm or disprove the involvement inthe commission of an indictable offence (s 464R); AND

2. The Person is believed on reasonable grounds to have committed the indictable offence; OR

The forensic procedure may be conducted if:

The person gives their consent; ORThe Magistrates Court makes an order: OrThe Senior Police Officer gives an authorization under

Search and Seizure

Without Warrant (s 459A CA)

Police may enter and search for (using reasonable force) any person they believe on reasonable groundshas committed a serious indictable offence, or is escaping from custody (s 459A CA)

With Warrant ((s 64) Magistrates Court Act)

A warrant authorises the directed person to break, enter and search any place where the personnamed/described by the warrant is suspected to be. ( s 64) Magistrates Court Act)


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Bail

Bail Eligibility

There is a presumption that bail will be given (s 4(1) Bail Act) :

Exception where D is charged with:

MurderTreasonCertain Drug Offences

Then there is a presumption against bail (s 4(2) Bail Act). The D must prove exceptional circumstances.

Burden of Proof

If presumption for bail, then Court must grant bail unless the P satisfies the Court that it should refuse

bail. The Court must then give reasons for denying bail

If the P satisfies the Court that there is an unacceptable risk, the Court must gives its r eason for denyingbailIf presumption against bail, the Court must refuse baill unless the accused has established exceptionalcircumstances or showed cause. Court must then give its reasons for granting a bail.Bail will be refused when the D is considered an unacceptable risk because (s 4(d)(i) Bail Act):

They would fail to accept court; ORThey would endanger the safety or welfare of the public; ORThey would interfere with witnesses or obstruct justice; OR

They would commit offenders while on bailTo decide whether someone is an unacceptable risk, the court can examine ( s 4(3) Bail Act):

The nature and seriousness of the alleged offenceThe character, history, background and associations of the DHome Environment of DPrevious History of BailThe Strength of Evidence against the DThe attitude of the VictimAny conditions that may be imposed to address the circumstances which may constitute anunacceptable risk


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Bail Conditions:

It is a mandatory condition that someone on bail will attend court for their trial (s 5(1), Bail Act)

Then, the court will decide which type of bail to set, always considering the least severe options first(s 5(2), Bail Act)

1. Own undertaking without conditions2. Own undertaking with conditions3. Released with surety of stated value or deposit of money with, or without conditions

The court may only impose conditions that minimise the risk of (s 5(3) Bail Act):

1. The D failing to attend court2. The D committing offences whilst on bail3. The D endangering the safety or welfare of trhe public

4. The D interfering with witnesses or obstructing justice

Conditions must be no more onerous than is necessary to minize the risks outlined above, AND, must bereasonable for the offence and circumstances of D (s 5(4(a)-(b)) Bail Act)

Bail- Failure to Answer

If the accused breaches bail conditions (s 30A), accused can be arrested without warrant and bialrevoked (S 24 BA)If someone fails to attend the court, the burden is on them to prove that they had a reasonable cause

not to attend (s 30 Bail Act)

If they do have a reasonable cause, they are guilty of an offence against the Bail Act that has a maximumpenalty of 12 months ( s 30 Bail Act)


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Sentencing:

The only possible purposes for which sentences may be imposed are (s 5(1) Sentencing Act)

Just Punishment Deterrence (specific and general)RehabilitationDenunciationA Protection of the CommunityA combination of the above

The factors a judge may take into consideration when handing down a sentence are (s.5 (2) Sentencing

Act):

The statutory maximum penalty

Current sentencing practicesThe nature and gravity of the offenceThe culpability of the offenderThe personal circumstances of the victimThe injury, loss, or damage resulting from the offenceThe early entry of a guilty pleaThe offenders previous character: The judge can consider (s 6 Sentencing Act):

The number, seriousness, date, relevance and nature of any previous findings of guilt orconvictions.

The general reputation of the offender

Any significant contributions made to the community by the offenderWhether forfeiture orders have been madeAggravating FactorsMitigating Factors

Statutory Sentencing Principles Include:

Statutory Sentencing Principles:

Proportionality:The sentence must be proportionate to the crime (s 5(1) & 5(2) Sentencing ActParsimony:The sentence imposed must be at least sentence required to achieve the aims of sentencing ( s 5(3)Sentencing Act)Parity: Consistency in sentencing (s 5(1)(a) Sentencing Act)

Criminal Law Notes A

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