LSS Crim 2 notes PDF

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Monash Law Students’ Society Student Tutorials Program SketchNotes Criminal Law and Procedure 2 2021

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CRIMINAL PROCEDURE ARRESTS The power to arrest is governed by state (section 464 CA). No person to be arrested without warrant except under this Act (section 457 CA).

ARRESTS WITH A WARRANT Courts may issue summons or warrant to arrest by application to a registrar of Magistrates court (Section 12 CPA). The warrant should contain items listed under section 13 CPA.

ARRESTS WITHOUT A WARRANT Grounds for Warrantless Arrest Arrest by PO/PSO/CITIZEN may be lawful if allowed under sections 458 and 459 CA (section 461(1) CA) Section 458(1) CA Person may be arrested without warrant (a) Found committing any offence believed on reasonable grounds that apprehension is necessary – (i) to ensure offender attends court; (ii) to preserve public order; (iii) to prevent the continuation or repetition of the offence or the commission of a further offence; (iv) for the safety or welfare of members of the public or of the offender; (b) when instructed so to do by any police officer; (c) believes on reasonable grounds is escaping custody or aiding/abetting another person to escape custody. Section 459 CA Powers of PO and PSO to apprehend offenders (1) PO or PSO may at any time without warrant apprehend any person— (a) he believes on reasonable grounds has committed an indictable offence in Victoria; or (b) he believes on reasonable grounds has committed an offence elsewhere.

EXECUTING ARRESTS LAWFULLY; WITH OR WITHOUT WARRANT General Requirement Words/conduct must convey to defendant that they are no longer at liberty and defendant must know what crime(s) they are being arrested for (section 21(4) Vic Charter) Force (With and Without Warrant) May use proportionate force he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or effect/assist in the lawful arrest (section 462A(1) CA) Entry Sections 458 and 459 CA govern that arrests without warrant do not automatically carry with them the power to enter or search private premises. Search and Seizure (With and Without Warrant) • Arrest warrants that include the authority to break, enter and search any place in which the person named or described is suspected to be found (section 64(1)(a) MCA) • Police can enter and search without a warrant to find and arrest a person who, on reasonable grounds, is believed to be there and committed a serious indictable offence (section 459A(1) CA) • May use reasonable force to enter (section 459A(2) CA)

QUESTIONING OR INVESTIGATION Section 464A(2) CA Power of Official An investigating official may within the reasonable time – (a) Inform the person of the circumstances of the offence; and (b) Question the person or carry out investigations to determine involvement in offence. Section 464A(4) CA ‘Reasonable Time’ In determining what constitutes a reasonable time, factors under section 464(4) need to be considered

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Section 464A(1) CA Lawful Custody; Period of Detention Every person taken into custody must be within a reasonable time – (a) Released unconditionally; (b) Released on bail; or (c) Brought to a bail justice or Magistrates Court.

Protections During Questioning and Investigation A person will be considered ‘in custody’ IF (section 464(1) CA) individual the is – (a) under lawful arrest due to warrant (b) under lawful arrest without warrant (c) in company of investigating official for questioning/investigation & official has sufficient information to justify arrest.

Rights in Custody D must be informed of the following rights: 1. The circumstances of the offence (section 464A(2)(a) CA) 2. Right to silence (section 464A(3) CA) 3. Right to communicate with lawyer and friend/relative (section 464C CA) 4. Right to an interpreter (before questioning) (section 464D CA) 5. Right to communication with consular officer (section 464F CA) Section 464E CA Persons Under 18 Years Special rules apply where D is a child under 18.

RECORDINGS Section 464G CA Inform of Rights PO must tape/video record conversations in which they advise D of their legal rights and any responses Section 464H CA Confessions/Admissions PO must record any confessions or admissions, failure to do so will make confession/admission inadmissible. Will generally be inadmissible unless scenarios under section 464H(1)(a)-(c) CA) are met. Section 464AA CA Digital Recordings The maker of the recording must certify that the recording has not been altered after its making and that the prescribed requirements, if any, in relation to the method of recording have been met.

FINGERPRINTING Adult Fingerprinting Section 464K CA Fingerprinting of adults and children aged 15 or above who – (a) is believed on reasonable grounds to have committed; or (b) has been charged with; or (c) has been summoned to answer to a charge for an indictable offence or a summary offence

Children Fingerprinting • •

Children under 10: cannot request or take fingerprints (section 464L(1) CA) Children 10-14: need child and parent / guardian consent or section 464M(5) CA Children Court Order if consent not given (section 464L(2)(d)-(e) CA)

CHARGING PEOPLE A charge-sheet is filed in accordance with section 6 CPA. First necessary to categorise the offence – the relevant test depends on the type of offence in question.

BAIL A person will generally be granted bail over being remanded in custody (section 4(1) Bail Act).

Schedule 1 Offences Section 4A Bail Act Step 1: Exceptional Circumstance Test (1) A bail decision maker (BDM) must refuse bail for a person accused of a Schedule 1 offence unless satisfied that exceptional circumstances exist that justify the grant of bail. (3) Whether exceptional circumstances exist, the BDM must consider surrounding circumstances. (4) If BDM is satisfied that exceptional circumstances exist that justify the grant of bail, must move to unacceptable risk test.

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Section 4B Bail Act Step 2 (if 1 is satisfied): Unacceptable Risk Test (1) If at step 1 the BDM is satisfied, the BDM apply the unacceptable risk test. (3) On applying the unacceptable risk test, BDM must refuse bail if required by section 4E.

Schedule 2 Offences Section 4C Bail Act Step 1: Show Compelling Reason Test (1) A BDM must refuse bail for a person accused of a Schedule 2 offence unless satisfied that a compelling reason exists that justifies the grant of bail. (3) Whether a compelling reason exists, BDM must consider surrounding circumstances. (4) If BDM is satisfied that a compelling reason exists, must then move to unacceptable risk test. Section 4D Bail Act Step 2 (if 1 is satisfied): Unacceptable Risk Test (1) Must apply unacceptable risk test if BDM is satisfied that a compelling reason exists. (3) On applying unacceptable risk test, the BDM must refuse bail if required to do so by section 4E

Unacceptable Risk Process Section 4E Bail Act All Offences (Schedule 1 and 2) (1) A BDM must refuse bail of any offence if the BDM is satisfied that— (a) there is a risk that the accused would, if released on bail – (i) endanger safety or welfare; or (ii) commit another offence; or (iii) interfere with a witness or otherwise obstruct justice; or (iv) fail to surrender into custody; and (b) the risk is unacceptable. (3) In considering whether a risk mentioned in ss (1)(a) is an unacceptable risk, BDM must— (a) take into account the surrounding circumstances; and (b) consider whether there are any conditions of bail that may be imposed to mitigate the risk.

CRIMINAL RESPONSIBILITY & DEFENCES UNFIT TO STAND TRIAL Can contest or negate a criminal charge; if unfit to stand trial cannot be tried for criminal offence (Eastman) Section 6(1) CMIA Unfit to Stand Trial A person is unfit to stand trial if, because his/her mental processes are disordered or impaired, s/he is (or will be at some time during the trial): (a) Unable to understand the nature of the charge; (b) Unable to enter a plea and exercise the right to challenge jurors or the jury pool; (c) Unable to understand the nature of a trial as an inquiry into whether the accused committed the offence; (d) Unable to follow the course of the trial; (e) Unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or (f) Unable to instruct counsel. (2) A person is not unfit to stand trial only because he/she is suffering from memory loss.

Consequences of Unfit to Stand Trial If the jury finds a person unfit to stand trial, the judge must determine whether it is likely that s/he will become fit to stand trial within 12 months. • If it is likely that s/he will recover within that time, the judge must adjourn the matter. • If it is not likely, a special hearing must be held to determine whether that person committed the offence charged (sections 12 and 15 CMIA). May be raised at any stage of the proceedings by the prosecution, When there is a question raised concerning a person’s fitness to stand trial, an investigation must be held to determine whether s/he defence or judge (s.9) is unfit (ss.8-9 CMIA). Must be determined by a specially convened jury (ss.7, 11) The judge may require the accused to undergo a medical examination, and require the results of that examination to be put before the court (s.11(1)(b)(ii)-(iii)).

MENTAL IMPAIRMENT DEFENCE Section 22(1) CMIA Timing • The defence can be raised at any time during the trial.

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Section 21(2)(a) CMIA Who Determines if the Defence Arises? • It is usually a question of fact for the jury to determine. Burden of Proof • People are presumed to be sane (section 21(1) CMIA) • The burden of proof is on the defence, the person relying on the insanity (section 21(3) CMIA). • Must be proved on the balance of probabilities (section 21(2)(b) CMIA)

DISEASE OF THE MIND APPLYING THE CURRENT LAW (TEST) 1. Accused Suffering Mental Impairment at the Time of Offence (section 20(1) CMIA) It is a legal term, not a medical term (Falconer) Current Test ‘Sound/Unsound Mind’: R v Falconer The current test for a ‘disease of the mind’ is the sound/unsound mind test: the reaction of an unsound mind to its own delusions or external stimuli.

‘Disease of the mind’ • It has connotations of an unhealthy or ‘infirm’ mind (R v Falconer). • May be permanent or temporary, organic, or functional, curable or incurable (Falconer) Disassociation • This may or may not be classified as a ‘disease of the mind’ depending on its cause (Falconer): o If dissociation is caused by an underlying infirmity or susceptibility to trauma > is a ‘disease of the mind’

2. Affected Understanding of Nature and Quality of Act (section 20(1)(a) CMIA) Refers to the physical character of the act; capacity to know or understand the significance of the act (Wilgross v R)

3. Affected Knowing the Conduct was Wrong (section 20(1)(b) CMIA) Accused was incapable of reasoning with moderate degree of calmness as to the wrongness of the act (Wilgross v R). ‘wrong’ is determined by standard of everyday reasonable people (Porter)

4. Consequences of Mental Impairment Not Guilty Because of Mental Impairment (NGMI) • Jury must specify whether they find the accused NGMI (section 22(2)(b) CMIA) • If NGMI, court must declare they are liable to supervision/release unconditionally (section 23 CMIA)

SANE AUTOMATISM

• •

The term ‘automatism’ implies the total absence of control by the accused’s will; impaired, or partial control is not sufficient (Falconer). • Automatism is doing something without knowledge of it, and without memory afterwards of having done it – a temporary eclipse of consciousness (Cottle) The law distinguishes two types of automatism (R v Falconer) – Insane automatism: Involuntary actions caused by a ‘disease of the mind’; Sane automatism: Involuntary actions caused by something other than a ‘disease of the mind’.

Test for Automatism Where the alleged involuntary action was caused by a ‘disease of the mind’, the defence of automatism is subsumed by the defence of mental impairment. Falconer points to three factors that indicate a state of automatism: 1. The state was transient (temporary); 2. The state must have been caused by trauma; and 3. The state must be unlikely to reoccur.

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FURTHER DEFENCES DURESS The CL defence of duress has been abolished (section 322Q CA). Duress is an entirely statutory defence per section 322O CA. Duress Elements (Section 322O CA) (1) A person is not guilty of an offence carried out under duress. (2) A person carries out conduct under duress if— (a) the person reasonably believes (section 322T(2) CA) that – (i) threat of harm has been made that will be carried out unless offence is committed; and (ii) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and (b) the conduct is a reasonable response (section 322T(3) CA) to the threat.

Reasonable Belief or Response Section 322T CA (2) If defence relies on reasonable belief, regard must be had to the standard of a reasonable person not intoxicated. (3) If defence relies on reasonable response, regard must be had to the standard of a reasonable person not intoxicated. (4) If intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned. • Family violence (Olga Runjanjic; Erica Kontinnen) o Section 322P CA: can bring in evidence of family violence; whether someone has carried out conduct under duress.

SUDDEN OR EXTREME EMERGENCY Sudden or Extraordinary Emergency Elements Section 322R CA (1) A person is not guilty of an offence that is in circumstances of sudden or extraordinary emergency. (2) This section applies if— (a) the person reasonably believes (section 322T(2) CA) that— (i) circumstances of sudden or extraordinary emergency exist; and (ii) the conduct is the only reasonable way to deal with the emergency; and (b) the conduct is a reasonable response (section 322T(3) CA) to the emergency. (3) This section only applies to murder if the person believes that the emergency involves a risk of death or really serious injury.

Reasonable Belief or Response Section 322T CA (2) If defence relies on reasonable belief, regard must be had to the standard of a reasonable person who is not intoxicated. (3) If defence relies on reasonable response, regard must be had to the standard of a reasonable person who is not intoxicated. (4) If a person's intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

INTOXICATION Intoxication is not a defence (O’Connor). Intoxication may negate the mens rea element of the offence or be relevant to the standard of a reasonable person the accused will be measured against (O’Connor).

Using Intoxication to Negate and Element •

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Evidence of intoxication is part of the totality of evidence which may raise a reasonable doubt about the existence of one or more of the elements of an offence (O’Connor)

Levels of Intoxication • •

Different levels of intoxication can affect the mind in different ways (O’Connor) Even if D was really intoxicated, that doesn’t matter if he or she acted voluntarily with the relevant intention (O’Connor)

Intoxication Elements Section 322T CA (1) In this section— intoxication means intoxication because of the influence of alcohol, a drug or substance. (2) If defence relies on reasonable belief, regard must be had to the standard of a reasonable person who is not intoxicated. (3) If defence relies on reasonable response, regard must be had to the standard of a reasonable person who is not intoxicated. (4) If a person's intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

Self-Induced Intoxication (5) For the purposes of this section, intoxication is self-induced unless it came about— (a) involuntarily; or (b) because fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or (c) from the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it.

Voluntariness •

Did not commit relevant act voluntary because of intoxication, they must be acquitted (O’Connor) o Rare that a person was so intoxicated that their actions were not voluntary.

Intention (mens rea) D must be acquitted if, due to intoxication they (O’Connor; Gallagher) • Did not intend to do the physical act charged; or • Did not intend to attain the result required by the offence • For prosecution to prove beyond reasonable doubt that the defendant/accused acted with requisite intention and the level of intoxication is irrelevant (O’Connor) • If MR is formed prior to alcohol consumption, intoxication will not negate intention even though this is at odds with contemporaneity requirement (O’Connor; Gallagher)

Knowledge, Awareness and Foresight (Recklessness) (mens rea) •

Intoxication may be used to show that D had no knowledge or awareness of a particular circumstance or did not foresee the consequences of their actions.

STRICT LIABILITY & ABSOLUTE LIABILITY 1. Presumption There is a common law presumption that all offences require proof of fault element (He Kaw Teh (HKT)).

2. Rebutting the Presumption The presumption that offences require mens rea can be rebutted upon analysis of 3 principles (HKT) 1. Words of the provision; a. If here is a clear intention to create a strict...