Criminal Procedure Full Notes

Description

This is an easy to read full guide that can even be taken as is into the final exam. These notes are designed to be able to navigate easily and answer any question asked based on topic without having to have any background knowledge. You will NOT need to study the content to get a 7. Full list of material covered in depth: TOPIC 1: Core themes in Criminal Procedure Onus and Burdens Due Process Presumption of Innocence TOPIC 2: Police Investigative Powers: Arrest, Search, Interrogation and Admissibility Reasons to Regulate Police Powers Concepts of Reasonable Suspicion Search Powers Search with a warrant Post-search approval Search without a warrant Searching post-arrest Forensic procedure orders Arrest What is an arrest? Arrest with a warrant Arrest without a warrant Other Necessary Aspects of Arrest Alternatives to arrest Use of force Failure to obey PO orders Interrogation Right to silence Requirement to speak to Police Cautioning and rights to interpreter Recording of interview and admissibility Voluntariness of Confession and admissibility Interrogation time limits General safeguards and protections Exceptions/vulnerable people Identification and eyewitness evidence Scientific forensic evidence Informer evidence TOPIC 3: Pre-trial Processes 1 Charges and Discretion Bail What is bail? Who hears bail at what stage? Supreme Court bail Police bail Court bail Presumption in favour of bail - unacceptable risk 19 Show cause situations Types of bail (cash, sureties etc) Committal Hearings Committal process Registry committal Hands-up/Paper committal Committal with oral evidence Cross-examination Ex-officio Indictment After the committal Pre-trial hearings Applications to ensure a fair trial - stays Applications to ensure a fair trial - transfers Applications to ensure a fair trial - Basha Inquiry Disclosure (prosecution) Disclosure (defence) TOPIC 4: Pre-trial Processes Indictments Timing Withdrawal of indictment Form of indictment Counts and Joinder Charge Negotiations Guidelines and basic principles Limits to charge negotiations Advantages and disadvantages Guilty Pleas In the Magistrate’s Court In the superior Court When can the Court accept a guilty plea? Withdrawing a guilty plea Setting aside a conviction Double Jeopardy General Alternative verdicts s 700 certificate of dismissal Excluded evidence cannot be relied upon Earlier acquittal cannot be undermined Exception for causing death - s 16 More exceptions “Fresh and compelling evidence” Interests of justice What is a tainted acquittal? TOPIC 5: The Trial Classification of Offences QCC s 3 Division of Offences Regulatory Offences Summary Offences s 651 applications DPP Guidelines Indictable Offences ODPP Guideline 13 Elections for summary hearings Benefits and disadvantages of summary hearing District or supreme? Hearings in the Magistrates Courts - Justices Act 1886 (QLD) Trials in the Supreme and District Courts Applications to ensure a fair trial - Judge-alone trials Juries: Jury Act 1995 (Qld) Who can serve? Limits to who can serve Peremptory Challenges Challenge for cause Jury irregularity Other sections in Jury Act Other aspects of higher court trials Nolle prosequi s563 QCC TOPIC 6: Fair Trial and Abuse of Process Fair Trial What is a fair trial? Factors of a fair trial Grounds for an appeal Importance of the Judge’s behaviour Pre-trial publicity Abuse of Process What is abuse of process? Relationship to fair trial? Examples of abuse of process Judge’s responsibility to ensure fair trial Delay Procedures to avoid delay Oppressive Prosecution Malicious Prosecution Responding to unfairness of trial or abuse of process Stay proceedings Permanent Stay TOPIC 7: Sentencing 1 Sentencing hearing Judicial discretion Totality and parity Aggravating and mitigating circumstances Aims of punishment Factors relevant to sentencing Damage injury or loss (PSA s9(2)(e)) Cooperation with authorities The offender's cultural background/ Aboriginal and Torres Strait Islander people Hardship Preference for community-based sentences Guilty plea Discount for plea of guilty TOPIC 8: Sentencing 2 Penalty options Non-Custodial options Custodial options Recording a conviction - PSA s 12 Releases and bonds - PSA part 3 Fines - PSA part 4 Probation Orders – PSA Part 5 Community Service Orders –PSA Part 5 Intensive Correction Order (ICO) – Part 6 Suspended sentence – Part 8 Imprisonment Serious Violent Offenders – PSA Part 9 Repeat Serious Child Sex Offences – Part 9B Indefinite Sentences – PSA Part 10 Parole Dangerous Prisoners (Sexual Offenders) Act 2003 Other relevant orders Sentencing hearing: TOPIC 9: Appeals: General Principles Overview Where to Appeal? Time Appeal from Magistrates Court → District Court Section 222 (2) JA s 223 JA - Appeal generally a rehearing on the evidence What is new evidence? s 225 JA Powers of judge on hearing appeal Can a sentence be increased? Appeal from Magistrates Court → District Court → Court of Appeal? Attorney General (from Magistrates, District or Supreme Court) → Court of Appeal Appeals to the Court of Appeal Appeal from District/Supreme Court → Court of Appeal Unreasonable or Cannot be supported on the evidence Wrong decision of any question of law On any ground whatsoever there was a miscarriage of justice TOPIC 10: Appeals: Specific Applications Applying the “proviso” Defining substantial miscarriage Precluding the proviso Appeals against sentence By A-G By Defendant Applying the House principles Unfettered discretion: If appeal allowed: The discretion to order a new trial: Other matters for the AG Appeals to the High Court: Royal prerogative of mercy - a pardon Constitution of Queensland: s 36 Power of Governor--relief for offender TOPIC 11: Legal Representation Dietrich Principles Australian Legal Assistance System Why Legal Aid matters What are the problems? Fair trial beyond the criminal trial? A lack of legal representation pre-trial may: Incompetence of counsel Fundamental duties of solicitors (Ethics Centres) McKenzie friend TOPIC 12: Restorative Justice What is it? Traditional and Restorative Justice 3 Broader Aspects of Restorative Justice How does Restorative Justice work? Does Restorative Justice Work? Justice Mediation Limits to Restorative Justice Indigenous Justice QLD Courts Referral