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Will Barker (S2624467)

4031LAW Criminal Procedure Notes Common Law Discretion to Exclude Evidence !

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ʻUnfairnessʼ discretion#

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Public policy discretion#

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Entrapment & Controlled Activities & Operations !

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Is the police activity a controlled activity or operation?#

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Will it be rejected a common law?#

Search, Seizure & Identification !

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Re non-statutory police powers: PPRA, ss 8, 9 #

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Police Powers & Responsibilities Act 2000#

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Other legislation#

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Re warrants: PPRA, ss 150, 151, 156, 157, 158; Responsibilities Code*, ss 3, 4# 11 ISSUING OF A WARRANT#

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EXECUTING A WARRANT#

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INVALID WARRANT?#

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WARRANT-LESS POWERS #

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Re powers to demand identification: PPRA, ss 40, 41#

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Re searching people: PPRA, ss 29, 30, 624, 629, 630#

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Re searching vehicles: PPRA, ss 31, 32 #

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Re searching public places: PPRA, s 33 #

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Re seizure: PPRA, ss 196#

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Re offences: PPRA, ss 790, 791 #

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Re identification of suspects: PPRA, s 617; Responsibilities Code*, ss 45-51.# 16 What is reasonable suspicion?#

Arrest, Investigative Procedures and Bail! !

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ARREST#

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Defining arrest #

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Power to arrest: arrest WITHOUT a warrant#

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Power to arrest: arrest WITH a warrant #

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Power to arrest: use of FORCE#

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DUTIES RELATING TO ARREST#

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Duty to provide information#

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Duty to bring arrestee before a court (as soon as practicable):#

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RESULTS OF UNLAWFUL ARREST#

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The fluctuating lawfulness of arrest:#

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Consequences of unlawful arrest: #

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SEARCHES IN CUSTODY#

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IDENTIFYING PARTICULARS#

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BAIL#

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Questioning and Confessions ! Right to Remain Silent & Powers of Interrogation#

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Confessions#

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Grounds for exclusion: Not recorded#

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Grounds for exclusion: Involuntary confessions #

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Safeguards for Interrogations #

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Charges and Prosecution!

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INITIATING CRIMINAL PROCEEDINGS#

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Arrest without warrant#

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Complaint / Summons #

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Notice to Appear #

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PROSECUTORIAL DISCRETION#

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Indictable offences are prosecuted by DPP#

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Plea Bargaining#

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INDICTMENTS#

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Particularity #

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Circumstances of Aggravation#

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Joinder of charges #

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Nolle Prosequi (the means of discontinuing an indictment) #

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(No) Judicial Review of Prosecutorial Decisions #

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Stay of Proceedings !

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Committal Hearings and Trials !

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Jurisdiction for Criminal Proceedings#

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Committal Processes#

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Disclosure obligations on the Crown#

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Disclosure obligations on the accused#

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Trial Process in Higher Courts#

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ʻNo caseʼ submission#

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ʻNo Juryʼ orders / judge-only trials ::: QCC ss 614-615E#

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Fair Trial and Abuse of Process ! 1. Trial Delay #

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2. Pre-trial Publicity#

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3. Judicial and Prosecutorial Impartiality#

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4. Oppressive Prosecution / Improper Purpose #

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Remedies for unfairness#

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5. Legal Representation#

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Quality of legal representation#

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Lawyer incompetence (this can make a trial unfair)#

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6. Other fairness rules #

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Juries & Verdicts !

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Juries #

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Verdicts generally #

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Alternative verdicts #

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Double jeapordy#

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Exceptions to double jeopardy #

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Appeals against conviction !

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Appeal: verdict is unreasonable or unsupportable #

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Appeal: Error of Law#

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Appeal: miscarriages #

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Appeal: miscarriages: Conviction of someone possibly innocent #

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Appeals: Miscarriages: conviction via unfair trial#

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The Proviso – s 668E(1A)#

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Powers of Court of Appeal#

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Appeals by Attorney-General#

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Appeals in summary cases#

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Ethics ! 1. Defending a person believed to be guilty#

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2. If the defence lawyer believes the client or another defence witness has lied# 64 3. If the defence lawyer is aware of an error of law or fact that favours the defence # 64 4. Where a lawyer and the defendant disagree on the conduct of the case #

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5. The extent of the duty to zealously promote the clientʼs interests #

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The Crime and Misconduct Commission (CMC)#

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The Frank Button case #

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The Andrew Mallard case #

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Wrongful Convictions!

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Defining wrongful conviction#

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Causes of wrongful convictions #

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Faulty scientific evidence #

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International wrongful conviction#

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Australian wrongful convictions #

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Difficulties for Innocent but Convicted People in Queensland re appeal#67 Petitions for Pardon#

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Section 672A QCC#

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Pardon Provision#

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Recent Reform in Queensland#

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International Developments: Options for Australia #

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Penalties & Sentencing!

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Sentencing purposes#

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Factors relevant to sentencing [NOTE - need to expand this when writing notes]# 71

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Penalties #

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Indefinite Detention#

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Appeals against sentence #

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Alternative forms of justice !

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Restorative Justice#

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Therapeutic Jurisprudence#

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Drug Court#

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Murri Court#

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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. !

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• 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. !

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Will Barker (S2624467)

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 !

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Will Barker (S2624467)

• 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.

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Will Barker (S2624467)

• 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 of...