Last Updated 17 January 2008
1/. From Arrest to Local Court
(a) Arrest and Following
Do I Have to Answer Police Questions?
The general position is that you do not have to answer police questions. There are some important exceptions which are set out below. As a matter of common sense, if you are asked questions by police about a simple matter of which you are obviously innocent, it is probably a good idea to answer their questions. In other situations, speak to a lawyer first. In particular, if the police want to record an interview with you on tape or video, always say you want to speak to a lawyer first.
A police officer can request a person to provide his or her name and address if those
details are unknown to the police officer and if the police officer believes on reasonable
grounds that the person may be able to assist in the investigation of an alleged
offence because the person was at or near the place where an alleged offence occurred
around the time when the offence occurred: s. 11 Law Enforcement (Powers and Responsibilities) Act (hereafter LE (PAR) Act).
It is an offence to refuse to supply a name and address: s. 12 LE (PAR) Act . The penalty is
2 penalty units, or $220.
Where a police officer reasonably suspects that a motor vehicle was or may have been
used in the commission of an indictable offence, the police officer can ask the owner,
driver or passenger of the vehicle to supply details of the driver and passengers
in the vehicle at the time of the offence: s. 14 LE (PAR) Act
It is an offence to refuse to give an answer or to give a false name or address,
carrying a penalty of $5500 or 12 months gaol: ss. 16-18 LE (PAR) Act
Police can demand proof of identification: s. 19 LE (PAR) Act.
Stop and Search.
The police have no power at common law to search someone prior to arrest: Mammone
v Chaplin (1991) 54 A Crim R 163. However under s. 21 LE (PAR) Act the police may stop and
search anyone whom they reasonably suspect has something stolen anything or otherwise
unlawfully obtained or anything used in an indictable offence.
Being sniffed by a police drug dog is not a 'search': DPP v Darby [2002] NSWSC 1157
A 'reasonable suspicion' involves less than a belief but more than a mere possibility. There must be some factual basis for the suspicion; reasonable suspicion is not arbitrary. Hearsay material can be used as the basis for a reasonable suspicion: Rondo (2001) 126 A Crim R 562 .
A police officer has the power to stop and search a motor vehicle if he/she believes on reasonable grounds that the vehicle is being or may have been used in the commission of an indictable or firearms offence, or if the police officer believes on reasonable grounds that the vehicle contains drugs or anything used or intended to be used in the commission of such an offence, or if the police officer believes on reasonable grounds that there is a serious risk to public safety and the search might lessen that risk: s. 36 LE (PAR) Act.
De Facto Arrest.
A person is arrested when police deprive him of his liberty, regardless of the words
used. A person is arrested when police make it plain to him that he is not free to
leave if he chooses: Lavery (1978) 19 SASR 515, C (1997) 93 A Crim R 81. When a person
is confronted at his home by armed police an arrest may occur unless police indicate
that the person is free to leave: Trotter (1992) 60 A Crim R 1.
Purpose of Arrest.
An arrest for the purpose of investigating whether or not the person has committed
a crime, or obtaining more evidence, is an illegal arrest: Williams (1986) 161 CLR 278, 66 ALR 385.
The purpose of the arrest must be to bring the person before a magistrate. This remains
the case after the amendments to the Crimes Act allowing detention after arrest for
the purpose of investigation: Dungay (2001) 126 A Crim R 216.
Reasonable Cause.
The arrester must have reasonable grounds to believe that the person has or is about
to commit an offence: s. 99 LE (PAR) Act . Reasonable cause includes
hearsay: Hussein v Chong Fook Kam [1969] 3 All ER 1282.
Physical Aspect of Arrest.
Arrest involves either submission or actual touching of the accused: Thomson [1969]
NZLR 513.
Notification.
When the police decide to arrest or charge someone they should so inform the person
of that fact and the grounds of the arrest and caution the person that they do not
have to answer any questions: Code of Practice for Crime p. 8, formerly Instruction
37.14. No particular form of words is necessary as long as it is made clear to the
person that he is under arrest: Inwood [1973] 2 All ER 645. The reason for the arrest
should be made clear to the person unless:
Arrest as a Last Resort
The power to arrest should only be exercised as a last resort where alternatives (such as issuing a summons or a court attendance notice) are impractical. If the power of arrest is used inappropriately for a minor offence, and the offender reacts by committing an offence such as resist arrest /assault police, evidence of these latter offences may be excluded in the exercise of the court's discretion: DPP v Carr (2002) 127 A Crim R 151. See also DPP v CAD (2003) NSWSC 196.
Search of Arrested Persons.
A person who has been arrested may be searched: s. 23 LE (PAR) Act. So may a person in lawful custody: s. 24 LE (PAR) Act.
Carry Cutting.
It is an offence to have a cutting weapon when arrested: s. 353B Crimes Act . This only applies when
police locate the weapon after the defendant has been arrested: Pittman v Di Francesco
(1985) 4 NSWLR 133.
Prints and Photos.
A police officer can take particulars necessary to identify a person in custody including fingerprints, palm prints and photographs for the purpose of identification
of persons over 14: s. 133 LE (PAR) Act. Children under 14 can only be photographed or fingerprinted with a court order: s. 136 LE (PAR) Act. The purpose
is ID for the court, not the police: Carr [1972] 1 NSWLR 609. However the decision
to take fingerprints or photographs will only be impugned if not made bona fide:
McPhail and Tivey (1988) 36 A Crim R 390. In practice, anyone arrested and charged
is fingerprinted.
The court can order particulars be taken of a defendant once an offence has been found proved once an offence is proved: s. 134 LE (PAR) Act.
Handwriting Samples
It has been held that the predecessor to s. 133 LE (PAR) Act authorised the taking of
a sample of handwriting from a person who has been arrested to identify the person:
Knight [2001] NSWCCA 114.
Medical Examination.
Where an officer of or above the rank of sergeant has reasonable grounds for believing
a medical examination will provide evidence, can request a doctor to examine a person
in custody: s. 138 LE (PAR) Act. This provision does not permit includes specimens
of blood and semen: Fernando
(1995) 78 A Crim R 64. However, authority to take such samples can be obtained under the Crimes (Forensic Procedures) Act (2000), discussed below.
'Custody' includes people in prison as well as people in police custody: Hawes v Governor of Goulburn Correctional Centre (NSW SC 3/9/97).
Forensic Procedures
Under the Crimes (Forensic Procedures) Act (2000) police have been given wide powers to obtain forensic samples. The provisions are extremely complex and what follows is a summary.
This legislation does not apply to DNA obtained other than by taking samples from
a suspect, such as by examining a discarded cigarette butt: Kane [2004] NSWCCA 78.
Forensic Procedures with the Consent of the Person
Any forensic procedure can be carried out with the informed consent of the suspect (s. 7) Children and mentally incapable people cannot give their consent (s. 8). 'Informed consent' carries with a requirement that police inform the suspect of his rights and in particular the fact that the forensic procedure may produce evidence against the suspect which could be used in court (s. 13). The giving of information to the suspect and the suspect's responses 'must if practicable' be recorded electronically (s. 15).
If the suspect is an Aboriginal or Torres Strait Islander, the police must notify an Aboriginal legal aid organisation, and must not ask the suspect to consent without an interview friend being present, unless the suspect expressly waives the right to have an interview friend (s. 10).
Forensic procedures can be carried out on 'volunteers' who are not suspects, with their informed consent, unless they are children or mentally incapable: s. 76.
'Non-Intimate' Forensic Procedures
Forensic procedures are divided into 'intimate' and 'non-intimate' procedures. Non-intimate forensic procedures include:
A 'senior police officer' (of the rank of sergeant or above) can order the making of a non-intimate forensic procedure on a person if the senior police officer is satisfied that:
(1) the suspect is under arrest;
(2) the suspect is not a child or an incapable person;
(3) there are reasonable grounds to believe that the suspect committed an indictable offence (or, in summary, a related offence);
(4) there are reasonable grounds for believing that the forensic procedure might produce evidence tending to confirm or disprove that the accused committed the offence; AND
(5) the carrying out of the forensic procedure without consent is justified in all the circumstances.
: s. 20 Crimes (Forensic Procedures) Act.
Intimate Forensic Procedures
Intimate forensic procedures include:
Intimate forensic procedures can only be carried by order of a magistrate or other authorised justice, after a hearing at which the suspect must normally be present: s. 22. Before making such an order, the magistrate must be satisfied of the following:
(1) that the person is a suspect (defined as s. 3 as meaning someone who has been arrested or charged with the offence, or whom the police officer reasonably suspects of having committed the offence);
(2) that there were reasonable grounds to believe that the suspect had committed a prescribed (i.e. indictable) offence or a related offence;
(3) that there were reasonable grounds to believe that the particular forensic procedure might produce evidence tending to confirm or disprove that the suspect had committed the offence of which he was suspected; AND
(4) that the carrying out of the forensic procedure was justified in all the circumstances
see s. 25, and Orban v Bayliss [2004] NSWSC 428 at para [37].
The magistrate must make a finding that each of these matters have been established before an order can be made: Orban v Bayliss [2004] NSWSC 428 at para [48]. In particular, the magistrate must make a specific finding that there are reasonable grounds for believing that the suspect has committed the offence: Fawcett v Nimmo [2005] NSWSC 1047. It has been held that the magistrate can take into account hearsay material in making the determination: L v Lyons (2002) 56 NSWLR 600. Before the magistrate makes an order requiring a suspect to give a sample of DNA, there must at least be a sample of DNA at the crime scene to match it with: Walker v Bugden [2005] NSWSC 898.
Forensic Procedures and Prisoners
These provisions apply to 'serious indictable offenders', that is prisoners serving sentences for offences which carry a maximum penalty of 5 years or more: s. 3 Crimes (Forensic Procedures) Act. Police officers are given the power to make an order that a sample of hair (other than pubic hair) or a hand print, fingerprint, foot print or toe print be taken from a serious indictable offender in prison: s. 70 Crimes (Forensic Procedures) Act . A magistrate's order is required for the taking of a sample of blood or a buccal swab: s. 74.
Period of Detention
A person who is under arrest can be detained by police for the 'investigation period' (s. 114 LE (PAR) Act). This period is a 'reasonable time', but no more than 4 hours or such longer period as extended by an investigation warrant: s. 115 LE (PAR) Act.
In determining what is a 'reasonable time', certain periods can be disregarded as
'dead time.' Periods which can be treated as 'dead time' are the following (in summary):
(a) time taken to convey the person to the nearest location with facilities for conducting forensic procedures;
(b) a reasonable time waiting for the arrival of police officers or people whose special skills are necessary for the investigation;
(c) time waiting for a tape recorder or video tape to become available to record a record of interview;
(d) time to allow the accused to communicate with (presumably by phone) a friend, relative, guardian, independent person, lawyer or consular official;
(e) time taken in waiting for one of the people referred to in (d) to arrive;
(f) time taken to allow the accused to consult at the place where he is detained with one of the people referred to in (d)
(g) time taken in arranging for and allowing the accused to have medical treatment;
(h) time waiting for an interpreter to arrive or become available;
(i) time reasonably required to arrange and conduct an identification parade;
(j) time for the accused to rest, receive refreshments, or go to the toilet;
(k) time for the accused to recover from intoxication from alcohol an/or drugs;
(l) time for the police to prepare, make and dispose of an application for a detention warrant or search warrant;
(m) time reasonably required to charge the accused.
(see s. 117 LE (PAR) Act). The person must be released during the investigation period or brought before a justice, magistrate or court within the investigation period or 'as soon as practicable' after the end of that period: s. 114 LE (PAR) Act.
Extensions to the Investigation Period
A magistrate or clerk of the Local Court can authorise an extension to the investigation period for a further period, up to 8 hours (s. 118 LE (PAR) Act). The application can be made orally or in writing.
The Rights of the Suspect
The custody manager at the police station is required to caution the suspect and summarise the provisions about detention: s. 122 LE (PAR) Act. The custody manager is required to inform the suspect before any investigative procedure starts that the suspect can contact a friend, relative or lawyer to inform them of his whereabouts, consult them, or in the case of a lawyer to be present during the investigative procedures. The custody manager is required to provide facilities for the suspect to communicate with the friend, relative or lawyer (s. 123 LE (PAR) Act).
Similarly the custody manager is obliged to inform foreign nationals of their right to communicate with a consular official of the country of which the suspect is a citizen (s. 124 LE (PAR) Act).The custody manager must arrange for an interpreter to be present during any investigative procedure if it appears that because of inadequate knowledge of English the person cannot communicate with reasonable fluency in English (s. 128 LE (PAR) Act).
'Vulnerable Persons': Children, Aboriginals, DDs, etc
Vulnerable persons are defined as:
(Regulation 24 LE (PAR)Regulations).
'Vulnerable persons' are entitled to have a support person present during any investigative
procedure: Regulation 27 LE (PAR) Regulations. Before any investigative procedure starts, the custody manager at
the police station must inform the 'vulnerable person' that he/she is entitled to
have a support person present during any investigative procedure (reg 27).
Support Persons
If the 'vulnerable person' wishes to have a support person present, the custody manager must provide 'reasonable facilities' to enable a support person to be present (presumably access to a telephone) and allow the 'vulnerable person' to communicate privately with the support person: reg 27 LE (PAR) Regulations. This includes the right to make a phone call to a legal practitioner (reg 25 LE (PAR) Regulations).
The custody manager is to inform the support person that he/she is not restricted to acting merely as an observer in the interview, but may assist and support the person being interviewed, observe whether or not the interview is being conducted fairly, and identify communication problems with the person being interviewed: reg 30 LE (PAR) Regulations.
The caution should be repeated in front of the support person: reg 34 LE (PAR) Regulations. A copy of a summary of the suspect's rights while in custody (formerly called the part 10A document) should be given to the support person
and any interpreter for the vulnerable person: reg 30 LE (PAR) Regulations.
Breaches of these regulations may be very significant in relation to the question of whether an alleged confession of the 'vulnerable person' is admissible.
Aboriginals
In addition to the rights referred to in the preceding paragraph,
the custody manager of a police station must inform an Aboriginal or Torres Strait
Islander in custody that he will inform an Aboriginal legal aid organisation that
he is the suspect is in custody for an offence, and notify the Aboriginal legal aid
organisation accordingly: reg 33 LE (PAR) Regulations This requirement does not depend on the accused making a request
for an Aboriginal legal aid organisation to be contacted. As to the effect on the
admissibility of a confession made when this regulation was not complied with, see
Helmhout [2001] NSWCCA 372.
(b) Search and Other Warrants
Listening Device Material
Generally speaking recording a private conversation of parties
without their consent is unlawful: s. 5 Listening Devices Act. Evidence
of such a conversation is inadmissible unless there is a warrant (as to which see
below) or, subject to a discretion, if the conversation is evidence of an offence
carrying 20 years imprisonment or more or a serious narcotics offence: s. 13 Listening Devices Act.
Listening Device Warrants.
The validity of a listening device warrants cannot be challenged in an inferior court
(Murphy (1989) 167 CLR 94, Peters
and Love (1990) 90 ALR 322) but may be able to be challenged in the Supreme Court
(Carroll (1993) 70 A Crim R 162, Haynes (1996) PD [155], Ousley (1997) 71 ALJR 1548).
Contents of a Listening Device Warrant
A listening device warrant is required to contain:
A warrant must expressly authorise trespassing to install it for such a trespassory installation to be valid : Coco (1994) 179 CLR 427, 68 ALJR 401.The form of a listening device warrant is set out in Schedule 2 to the Listening Devices Act. This schedule provides a useful check-list.
Interception of Telephone Calls
Interception of telephone calls is governed by the Telecommunications (Interception) Act (Commonwealth) 1987. What follows can only be a summary of these provisions. Generally it is not permissible to listen to or record a telephone call (the cumbersome phrase 'a communication passing over a telecommunications system' is used in the Act): s. 7 Telecommunications (Interception) Act. There are some important exceptions to this general rule:
Applications for a warrant
Applications for warrants can be made by state or federal police as well as a number of agencies including the Crime Commission and the ICAC (s. 39 Telecommunications (Interception) Act). Normally applications for a warrant must be made in writing, supported by an affidavit (except in urgent cases): s. 40 Telecommunications (Interception) Act. Applications are made to judges or nominated members of the AAT (s. 39 Telecommunications (Interception) Act). Applications are to include (s. 42 Telecommunications (Interception) Act):
Matters of which a judge must be satisfied for a warrant for a class 1 offence
Class 1 offences are defined in s. 5 of the Act and include murder, kidnapping, and terrorism offences. Before issuing a warrant for a telephone intercept for a class 1 offence, the judge/AAT member must be satisfied that (s. 45 Telecommunications (Interception) Act):
Matters of which a judge must be satisfied for a warrant for a class 2 offence
Class 2 offences are defined in s. 5D of the Telecommunications (Interception) Act. For the most part, they are offences carrying a maximum sentence of more than 7 years imprisonment. Before issuing a warrant for a telephone intercept for a class 2 offence, the judge/ AAT member must be satisfied that (s. 46 Telecommunications (Interception) Act):
Requirements for a warrant
Under s. 49 of the Telecommunications (Interception) Act, the warrant is required to be in the prescribed form in the Telecommunications (Interception) Regulations. The warrant must
Telephone Intercepts not authorised by warrant
If a telephone intercept has not been authorised by warrant, and is not authorised by one of the exceptions referred to above, it is inadmissible in evidence: s. 73 Telecommunications (Interception) Act. It is important to note that this is not subject to any discretion.
Applications for Search Warrants.
A police officer can apply (normally in writing ) for a search warrant setting out
the grounds for believing that on premises there is something that is connected with
an indictable, firearms, or drug, or child pornography offence or something stolen: s. 47 LE (PAR) Act.
If the issuing justice does not record the reasons for the warrant it is invalid: Carrol v Mijovich (1992) 58 A Crim R 243, Commissioner of Police v Atkinson (1991) 54 A Crim R 378. The search warrant must record on its face the offence to which the investigation related: Carver v Clerk of Blacktown Local Court (NSW SC 13/3/1998), Dover v Ridge (1998) 5 Crim LN [905]. A reference to superceded legislation will not invalidate the warrant as long as there is reference to an identifiable offence: State of New South Wales v Corbett [2007] HCA 32 overruling Corbett v NSW [2006] NSWCA 138.
The warrant expires after
72 hours unless extended: s. 73 LE (PAR) Act. There must be a report back
to the justice: s. 74 LE (PAR) Act .
Executing a Warrant.
An occupier's notice must be handed to an occupier over 18: s. 67 LE (PAR) Act. Anything mentioned in the warrant and anything reasonably thought to be connected with any offence may be seized: s. 49 LE (PAR) Act. Any person in the premises reasonably believed to have a thing mentioned in the warrant may be searched: s. 50 LE (PAR) Act.
Search Warrants on Drug Premises
There are specific police powers relating to 'drug premises'. Any officer of or above the rank of sergeant can apply for a search warrant for premises which he/she believes on reasonable grounds is being used for the manufacture or supply of a prohibited drug: s. 140 LE (PAR) Act. If the warrant is granted the police have the power to search the premises and any person found on the premises: s. 142 LE (PAR) Act. Generally the provisions for the execution of ordinary search warrants described above apply: s. 59 LE (PAR) Act.
Common Law Powers
Police may only enter premises without a warrant if there is:
(Lippl v Haines (1989) 18 NSWLR 620, O'Neill [2001] NSWCCA 193).
Notices to Produce
Police can now apply for a notice to produce addressed to a financial institution to produce records: s. 53 LE (PAR) Act.
Entrapment in State Proceedings
The situation in relation to entrapment has been changed so far as state offences in New South Wales are concerned by the Law Enforcement (Controlled Operations) Act (1997). The definition section makes it clear that a 'controlled activity' is an illegal activity (s. 3).
A law enforcement officer can make an application in writing (or, in urgent cases,
orally) to the chief executive officer of a law enforcement agency (usually the Commissioner
of Police) for an authority to conduct a controlled operation. The application must
include the plan of the proposed operation, the alleged nature of the criminal activity
or corrupt conduct being investigated, the nature of the 'controlled activity' to
be used, and a statement about whether there has been any earlier application (s. 5).
The chief executive officer may authorise the controlled operation if satisfied that
The power to issue an authority can be delegated but only
to an officer of or above the rank of superintendent (s. 29). A written statement of reasons
should be kept by the Chief Executive Officer (s. 6).
Importantly the legislation prohibits inducing or encouraging a person to commit criminal activity or corrupt conduct that the person could not reasonably be expected to engage in unless so induced or encouraged. It also prohibits conduct likely to seriously endanger the health and safety of any person, or cause serious damage to property (s. 7).
The authority must be in writing and must indicate:
A law enforcement official and a civilian authorised to
engage in a 'controlled activity' does not constitute an offence (s. 16). A certificate issued by a chief executive officer of a law
enforcement agency to the effect that he/she was satisfied of matters referred to
in the certificate is conclusive evidence that he/she was so satisfied (s. 27).
Entrapment in Commonwealth Proceedings
There are similar provisions in ss. 15G to 15X of the Commonwealth Crimes Act.
Once again, the Act does not apply of a person is intentionally induced to commit
a crime, and the person would not otherwise have committed that offence or an offence
of that kind (s. 15I)
(c) Interrogation
Children.
Police should not question a child suspected of committing an offence unless there
is a 'support person' present (not a police officer): Code of Practice for CRIME,
p. 33, replacing Instruction 37.17.
Aboriginals.
In the Northern Territory special rules have been formulated for interrogation of
Aboriginals. For example there should be a 'prisoners friend' present, the caution
should be read back by the accused, the questions should not be leading, etc. These
rules are called the Anunga Rules: Anunga (1976) 11 ALR 412. Under the Code of Practice
for Crime, the custody manager is required to ensure that Aboriginal legal aid has
been contacted: Code of Practice for CRIME, p. 12.
Police Questioning: DDs.
Where a person is suspected of being developmentally delayed the interview should
take place in the presence of a guardian, relative, friend or non-police professional:
Police Instruction 37.14.
Records of Interview.
The defendant should be asked to read the interview aloud. The senior officer available
not connected with the investigation should ask the defendant if it was a voluntary
statement etc. The defendant should be supplied with a copy: Instruction 37.16.
'Preliminary Questioning' in Notebooks.
When a suspect makes a 'confession, admission or statement' in preliminary questioning,
the police officer should 'record it in full in your notebook' (Code of Practice
for CRIME pp. 25-6). 'Do not make notes elsewhere' (Police Service Handbook p. N-2).
The suspect should be asked to sign the notebook. In any subsequent ERISP, the notebook
entries should be read to the suspect who should be asked to comment on them (Code
of Practice for CRIME p. 26).
After Charge.
Once a person has been charged they should only be interviewed when necessary to
minimize loss or harm to some person, or about new matters, or to recover property:
Instruction 37.14. According to the Code of Practice for CRIME, a person in custody
has a 'right' to communicate with a friend, relative or legal guardian: CRIME at
p. 15, replacing Instruction 155.
(d) Bail
Right to Release on Bail.
A person charged with an offence not punishable by imprisonment, or an offence under
the Summary Offences Act, generally has the right to release on bail (s. 8 Bail Act).
Presumption of Bail.
There is a presumption of bail for all offences (s. 9 Bail Act) except for offences
where there is no presumption of bail or where there is a presumption against bail
(see immediately below).
Presumption Against Bail.
There is a presumption against bail for the cultivation, manufacture, importation
and supply of the commercial quantity of prohibited drugs (s. 8A). Where there is a presumption
against bail the court must concentrate less on matters common to all applicants
(eg financial hardship) and more on the strength of the Crown case: Kissner [CN 106].
There is a presumption against bail for serious firearms or weapons, which (in summary) are offences of having an unregistered pistol or prohibited firearm, or firing or possessing a loaded firearm in a public place: s. 8B Bail Act
If a person is charged with two unrelated serious property offences (as defined), and has been convicted of a serious property offence within the past 2 years, there is a presumption against bail: s. 8C Bail Act. 'Serious property offence' is defined widely and includes all forms of robbery, break and enter, and car jacking.
There is now a presumption against bail for the offence of riot, or an offence carrying a maximum penalty of more than 2 years which is committed while the accused is participating a a large scale public disorder or 'in connection with the exercise of police powers to prevent or control such a disorder or the threat of such a disorder': section 8D Bail Act.
There is a presumption against bail for a person serving a term of life imprisonment who is on parole and is charged with an offence for which a sentence of imprisonment is imposed: s. 8E Bail Act.
No Presumption.
For the following offences, there is no presumption for or against bail (s.
9):
There is no presumption for or against bail for a person who
Bail for Murder and Repeat Violent Offenders
By a 2003 amendment, 'exceptional circumstances' must exist before bail is granted
to someone charged with murder: s. 9C Bail Act. Similarly if someone
is charged with a 'serious personal violence' offence, and has a previous conviction
for such an offence, 'exceptional circumstances' must exist before bail can be granted:
s. 9D Bail Act. 'Serious personal
violence' is defined as including murder, attempted murder, armed robbery and most
forms of sexual assault.
In relation to similar legislation in Victoria, it has been held that a weak Crown
case can constitute exceptional circumstances: The Queen v Memery [2000] VSC 495.
In Hantis [2004] NSWSC 153 Levine J
quoted the second reading speech to this legislation, which stated that 'exceptional
circumstances' could be constituted by a weak prosecution case, a strong defence
of self-defence, a case where the accused has an intellectual disability or needs
medical attention, or where the accused presents no threat to the community.
Criteria in Bail Applications.
The following factors are relevant:
Appeals Bail.
Appeals bail to the CCA is only for cases there are special or exceptional circumstances:
s. 30AA Bail Act. In practice this
means it is necessary to show that the appeal is most likely to succeed: s. Wilson
(1995) PD [5]. Where the appeal is against a sentence imposed in the District Court,
it needs to be shown at least that if bail is not granted the whole sentence will
be served before the matter is heard in the CCA, or that there is an overwhelming
likelihood that the appeal will succeed in the CCA : Tyler (1995) 80 A Crim R 371.
Jurisdiction in Bail Applications.
A person can apply for bail in the following jurisdictions:
Supreme Court Bail Applications.
The Supreme Court may refuse to entertain a bail application if the person has previously
made an application for bail to the Supreme Court unless there are special facts
or circumstances (s. 22A).
Proof in Bail Applications.
The standard of proof in bail applications is on the balance of probabilities (s. 59).
(e) Crime Commission and Related Bodies
The NSW Crime Commission
The NSW Crime Commission is increasingly important in the criminal investigatory process. What follows is simply some suggestions about the basics of appearing in the Crime Commission.
Appearing for an Witness in the Crime Commission
A person giving evidence before the Crime Commission can be legally represented (s. 13 (4) NSW Crime Commission Act). A particular legal representative can be refused leave to appear if the Commissioner believes on reasonable grounds and in good faith that such representation will prejudice its representation (s. 13B NSW Crime Commission Act).
The Crime Commission can and usually does as a matter of course direct that evidence
before it, and even the fact that a witness has given evidence before it, not be
'published': s. 13 (9) NSW Crime Commission Act.
Evidence Before the Commission
The rules of evidence do not apply in proceedings (s. 13A NSW Crime Commission Act), so objections are often reduced to complaints about ambiguous questions. In particular, objections based on the privilege against self-incrimination do not apply: s. 18B NSW Crime Commission Act. Legal professional privilege does apply: s. 18B(4) NSW Crime Commission Act. So does the privilege attached to religious confessions: s. 18A NSW Crime Commission Act.
By far the most important thing to know about proceedings in the Crime Commission
is that evidence given by a witness is not admissible in proceedings against that
witness (except for proceedings for perjury and related offences) if the witness
objects: s. 18B NSW Crime Commission Act.
The Commissioner can declare that all answers or all answers of a particular class
will be regarded as being given under objection: s. 18B(5). If there is the faintest
suspicion that your client is a suspect, you should advise him/her to object to giving
evidence.
Failing to attend when served with a summons, or failing to take the oath, or failing
to answer questions, is an offence which carries 20 penalty units or 2 years gaol: s. 18 NSW Crime Commission Act.
The requirements of proof of a failure to take an oath or affirmation have been strictly
construed in Fehon v Domican [2002] NSWCCA 103.
(f) Local Court Proceedings
What Offences are Summary Offences?
Summary offences are offences which:
Summary Proceedings: Commencing Proceedings
An information for a purely summary offence must be laid within 6 months of the offence
being committed: s. 179 Criminal Procedure Act. Importantly, the 6 month time limit does not apply to indictable matters being dealt with summarily. However, if the matter is a penalty notice matter and the defendant has elected to have the matter dealt with in the Local Court, the time limit is extended to 12 months: s. 37A Fines Act.
The
power to ignore defects in the information under s. 16 Criminal Procedure Act does
not include a change to the elements of the offence: Ex parte Lovell; re Buckley
(1938) 38 SR NSW 153 Ex parte Burnett; Re Wicks [1968] 2 NSWLR 119. The information
must contain all the essential elements of the offence: John L v Attorney General of New South Wales (1987) 163 CLR 508 esp at para [14],
Stanton v Abernathy (1990) 19 NSWLR 656.
Query if a charge can be withdrawn by an informant without being withdrawn dismissed:
Gregg v O'Connor (Sully J, 21/4/92), overruled in Lay v Cleary [Bulletin 67]. A magistrate
has no power to recharge: Suters v Harrington [CN 113].
A magistrate can order a stay of proceedings: DPP v Shirvanian (1998) 44 NSWLR 129.
Summary Proceedings: Service of a Brief
In all summary proceedings except those for which a penalty notice may be issued, if the defendant pleads not guilty the prosecution must serve on the defendant a copy of the brief of evidence, including all witness statements and proposed documentary exhibits, 14 days before the hearing or such other time as the magistrate determines (s. 183 Criminal Procedure Act). It appears that the brief should include listening device warrants and telephone intercept warrants (DPP v Webb [2000] NSWSC 859) but not search warrants (DPP v Southorn [1999] NSWSC 786).
If the brief is not served, the magistrate may dispense with service, adjourn the
proceedings (s. 187 Criminal Procedure Act),
or refuse to admit the evidence ( s. 188 Criminal Procedure Act, DPP v Milgate [1999] NSWSC 90).
Adjournments of Summary Proceedings
Refusal of an adjournment to a defendant can result in a procedural unfairness: Noble v DPP (2000) 118 A Crim R 305.
Summary Proceedings: Open, Closed, and Non-Publication Orders
Generally, summary proceedings are to be in open court, that is open to the public and the media: s. 191 Criminal Procedure Act. This general rule is subject to some statutory and common law exceptions.The name of an accused can be suppressed if it is necessary to secure the proper administration of justice: C v R (1993) 67 A Crim R 562 at 565.
In sexual assault cases (in particular in this context indecent assault), the court can close the court (s. 291 Criminal Procedure Act) and can also forbid the publication of part or all of the evidence (s. 292 Criminal Procedure Act). Such an order can include suppression of the name of the accused: Crampton v DPP (NSW C of A, 7/7/1997). In a decision about the predecessor of this section, it was held that the interests of the accused were relevant in determining whether or not to make an order forbidding publication: Nationwide News v District Court of NSW (1996) 40 NSWLR 486. It was held that the District Court had no power to order the non-publication of the fact of a verdict even if there were to be later trials of the same accused: John Fairfax Publications v District Court of New South Wales [2004] NSWCA 324.
Order of Addresses
An argument that the defence has the right to address last in summary proceedings has been rejected: Mason v Lyon [2005] NSWSC 804.
Summary Proceedings: Costs
Normally costs will not be awarded to a successful defendant unless the investigation
was unreasonable or the proceedings were initiated without reasonable cause: s. 214 Criminal Procedure Act.
An adjournment can be granted on condition that the Crown pays costs: Le Bouriscot
(1996) PD [178].
Indictable Proceedings Dealt with Summarily.
Indictable proceedings may dealt with summarily if they a Table 1 or Table 2 offence. The election cannot be made after the evidence commences or the facts are tendered (s. 263 Criminal Procedure Act). Where an election is made the maximum penalty is generally 2 years imprisonment (s. 267 Criminal Procedure Act, for Table 1 and s. 268 Criminal Procedure Act, for Table 2).
A magistrate cannot impose a cumulative sentence on a prisoner who is serving a sentence which would mean that the new sentence would expire more than five years after the existing sentenced commenced : s. 58 Crimes (Sentencing Procedure) Act.
Table 1
Table 1 offences are to be dealt with summarily unless the prosecutor or the defendant
elects (section 260 Criminal Procedure Act).
They are generally more serious than Table 2 offences. The complete list of Table
1 offences can be found in Schedule 1 of the Criminal Procedure Act. The offences include:
Table 2
Table 2 offences are to be dealt with summarily unless the prosecutor elects (s. 260 Criminal Procedure Act). They are generally the less serious offences. The complete list of Table 2 offences can be found in Schedule 1 of the Criminal Procedure Act. The offences include:
(g) Committals
A committal is an administrative proceeding in the Local
Court to determine whether or not a person charged with an indictable offence should
be committed for trial or sentence in the Supreme Court or District Court (s. 3 Criminal Procedure Act).
Procedure in Committals
The magistrate hearing the committal must set a timetable for the prosecution to serve a copy of the brief (including statements of all witnesses) on the defendant, and for the defendant to indicate which witnesses are required to give oral evidence (s. 60 Criminal Procedure Act).
If a witness is not required to give oral evidence, the witness' statement can be tendered. Practitioners should be very conscious of the fact that if a crucial witness is not required for cross-examination, and the witness's statement is tendered at the committal, if that witness later dies or is so ill that he/she cannot give evidence, the statement can be tendered at trial: s. 285 Criminal Procedure Act. As a result in if a witness gives damaging evidence against the accused, which evidence is in dispute, it is always preferable to require that witness to give evidence at committal. Even if nothing is achieved in cross-examination, the simple fact of the witness having to give an account on oath creates a potential prior inconsistent statement.
Committals: Requiring Witnesses for Cross-examination
The magistrate should not require a witness in an offence involving violence (eg
attempted murder, reckless wounding, reckless inflict grievous bodily harm, abduction,
robbery, sexual assault) to give evidence unless there are 'special reasons in the
interests of justice': s. 93 Criminal Procedure Act. The
phrase 'in the interests of justice' has been held in another context to refer to
incorporate 'as a paramount consideration that an accused person should have a fair
trial' : Chapman v Gentle (1986) A Crim R 29.
Special reasons
Special reasons may include where the Crown case is weak, ID in issue, inconsistent versions, victim's willingness to testify: Baines v Gould (1993) 67 A Crim R 297. Special reasons may include where the complainant in a sexual assault case is vague about the dates of the offences: Kennedy (1997) 94 A Crim R 341, TS v George (1998) 5 Crim LN [843]. This applies to indictable matters which can be dealt with summarily unless summary jurisdiction is actually offered: Kant (1994) PD [261], CN [152].
Substantial Reasons
For other types of offences, the magistrate should not require a witness to give evidence unless there are 'substantial' reasons in the interests of justice: s. 91 Criminal Procedure Act. 'Substantial reasons' is 'obviously much wider' than special reasons: Kennedy (1997) 94 A Crim R 341. 'Substantial' does not mean special. It is not necessary to show that the case is exceptional or unusual. It may be that substantial reasons could be shown in a majority of cases: Losurdo v DPP (1998) 44 NSWLR 618, (1997) 101 A Crim R 196 (approved by the Court of Appeal in Losurdo (1998) 44 NSWLR 618, 103 A Crim R 189), this decision appears to have the specific approval of the former Attorney General: see 'Committals in NSW' (2000) 74 ALJ 24).
It is necessary to show that the reasons 'have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them': Losurdo (1998) 103 A Crim R 189.
If the parties agree that a witness be required to attend, the magistrate must so order: s. 91(2) Criminal Procedure Act.
'Substantial reasons' can include a case where cross-examination might substantially undermine the credit of a significant prosecution witness: Losurdo v DPP (1998) 44 NSWLR 618. They can also include a case where the matters to be the subject of cross-examination go only to the exercise of the discretion of the trial judge (and thus strictly outside the jurisdiction of the magistrate): Losurdo v DPP (1998) 44 NSWLR 618. The availability of 'Basha' type voir dires and pre-trial applications at trial is no justification for not permitting cross-examination at the committal: Dawson v DPP [1999] NSWSC 1147. The magistrate needs to consider separately in relation to each witness whether the witness should be required: Hanna v Kearney (1998) 5 Crim LN [867]. 'Substantial reasons' might include narrowing the matters in dispute: Hanna v Kearney. 'Substantial reasons' are not limited to matters which might result in discharge at committal: Hanna v Kearney.
In JW v DPP [1999] NSWSC 1244 Simpson J said:
It is not possible to define the boundaries of "substantial reasons" in this context: Losurdo, C of A, pp 622, 632. A potential narrowing of the issues to be determined at trial, if the defendant is committed, is within the term; so also is the possibility of establishing the foundation for a challenge to the admission or admissibility of evidence (Hanna p 8; Losurdo, C of A pp 631-2); the possibility of significantly undermining the credibility of a Crown witness (Losurdo, C of A p 631); clarification of the evidence proposed to be called so as to avoid a defendant being taken by surprise at a trial (Losurdo, C of A, p 631); and the opportunity of gaining relatively precise knowledge of the case against the defendant (Hanna, p 5).
A witness cannot be required for cross-examination if the Crown indicates that the Crown no longer relies on the evidence: DPP v Tanswell (1998) 103 A Crim R 205. Where a witness has been required for cross-examination because of particulars matters, normally cross-examination will be restricted to those matters.
Committals: Taking of Evidence
When a witness is required to give evidence in a paper committal, the prosecution
is not entitled to merely tender the statement of the witness in chief: section 91(4) Criminal Procedure Act,
Manley v DPP (NSW SC Loveday J 30/8/1991), and Ambrosoli (2002) 55 NSWLR 603 at
para [61].
The discretion to reject evidence should not be exercised: section 70 Criminal Procedure Act, Grassby (1989) 168 CLR 1, 63 ALJR 630, (1989) 15 NSWLR 109.
Committals: Open, Closed, and Non-Publication Orders
Generally, committal proceedings are to be in open court, that is open to the public and the media: s. 56 Criminal Procedure Act This general rule is subject to some statutory and common law exceptions.The name of an accused can be suppressed if it is necessary to secure the proper administration of justice: C v R (1993) 67 A Crim R 562 at 565. In sexual assault cases (in particular in this context indecent assault), the court can close the court (s. 291 Criminal Procedure Act) and can also forbid the publication of part or all of the evidence (s. 292 Criminal Procedure Act). Such an order can include suppression of the name of the accused: Crampton v DPP (NSW C of A, 7/7/1997). In a decision about the predecessor of this section, it was held that the interests of the accused were relevant in determining whether or not to make an order forbidding publication: Nationwide News v District Court of NSW (1996) 40 NSWLR 486.
Committals: the Test.
At the close of the prosecution case in a committal the magistrate must determine
whether or not there is a prima facie case: s. 62 Criminal Procedure Act. At
the conclusion of all the evidence (this may be immediately after; it is very unusual
for the defence to call evidence at a committal), the magistrate must then determine
whether or not 'there is a reasonable prospect that a jury would convict': s. 64 Criminal Procedure Act.
If the magistrate decides that there is a reasonable prospect that a jury would convict, the defendant is committed for trial to either the District or the Supreme Court. If the magistrate decides that there is no reasonable prospect that a jury would convict, the magistrate must discharge the defendant.
Magistrates are not precluded from making their own assessment of the evidence and of the credibility of witnesses: Saffron (1989) 16 NSWLR 397. The assessment can take into account a prediction of whether the trial judge will exclude evidence in the exercise of his discretion: Grassby (1989) 168 CLR 1.
Committals: Costs
The application for costs must be made on the day when the charge is dismissed: Fosse
(1989) 42 A Crim R 289. Costs will only be awarded if the proceedings were initiated
without reasonable cause or bad faith or the investigation was unreasonable or improper:
s. 117 Criminal Procedure Act. There is no power to award costs in commitals under the Costs in Criminal Cases Act: DPP v Howard [2005] NSWSC 987.
Lack of (Proper) Committal.
If a magistrate declines to commit an ex officio indictment can still be presented: Kolalich (1991) 173 CLR 222, 66 ALJR 25,
Bartalesi and Fragassi (NSW CCA 24/6/97).
Lack of a (proper) committal does not of
itself entitle a stay of the trial: Butler (1991) 56 A Crim R 231, Duffield and Dellapetrona
(1992) 64 A Crim R 18. The Crown is not obliged to frame the indictment in terms
of the counts in the committal: Kolalich (1990) 19 NSWLR 520.
Effect of a No Bill
A no bill will only justify a stay of later proceedings if there is a degree of double
jeopardy (such as a case being no billed during the course of the trial): Mellifont
(1992) 64 A Crim R 75, Swingler (1995) 80 A Crim R 471.
Counsel's Brief.
Police who search an advocate's papers may be in contempt of court even if they believe
that it contains documents suspected of being stolen: MacDonald and Shilling (1993)
70 A Crim R 478.
2/. Trial Procedure and Appeals
(a) Subpoenas.
Legitimate Forensic Purpose.
Counsel calling upon the subpoena should be able to identify with precision the legitimate
forensic purpose for which the document is sought: Saleam (1989) 39 A Crim R 406,
Alister ( 1983-4) 154 CLR 404. It
must be 'on the cards' that the documents would assist the defence case. A report
by a principal Crown witness about the case is an example of such a document, even
if nothing is known about its contents: Alister at 414, 451. Prima facie
anything which might provide for proper and fruitful cross-examination is allowable:
Maddison v Goldrick [1976] 1 NSWLR 651 esp at 663-4, Saleam. For example, in a case where the prosecution relied on only a small proportion of a large group of a large group of intercepted calls, there was held to be a legitimate forensic purpose inrequiring production of the other tapes: Regina v Taylor (2007) 169 A Crim R 543.
Width.
A subpoena will be set aside if it is too wide, for example if it requires production
of all documents relating to a particular subject area (Small (1938) 38 SR (NSW)
564) although the words 'relating to' in themselves are not necessarily fatal: Spencer
Motors v LNC [1982] 2 NSWLR 921. Once the documents are produced it is too late to
take this objection: Saleam.
Public Interest Immunity.
When public interest immunity is claimed, the court must weigh up the public interest
in non-disclosure with the public interest in the administration of justice. In a
criminal case it is sufficient if the accused can establish that the documents will
materially assist his case: Alister.
Special Classes of Public Interest Immunity.
Some classes of evidence will not be required to be disclosed unless the evidence
is necessary to establish the innocence of the accused:
Costs.
Costs can be ordered in favour of a party who successfully opposes production of
documents under subpoena: Carter v Mallesons (WA FC 15/7/93), but see compare Ansett
Holdings (Qld SC, (1997) 94 A Crim R 7).
(b) Trial Procedure
Adjournments.
Normally an unrepresented accused should be granted an adjournment if he can prove
that it was through no fault of his own: Dietrich (1993) 177 CLR 292, 67 ALJR 1 (1992) 64 A Crim R 176, Small (1994) 72 A Crim R 462. Lack of an adequate interpreter may
suffice to quash a conviction: Saraya (1994) 70 A Crim R 515. Where the Crown seeks
an adjournment, the court can tell the Crown that the adjournment will not be granted
unless the Crown agrees to pay costs: Moseley (1992) 65 A Crim R 452.
Constitutional Guarantee of Jury Trial.
Under s. 80 of the Constitution a person
tried on indictment for a Commonweath matter is guaranteed jury trial even if he
consents to summary trial: Brown (1986) 160 CLR 171, 60 ALJR 257.
Verdicts must be unanimous: Cheatle (1993) 177 CLR 541, 67 ALJR 76.
This does not mean that there must be 12 jurors: Brownlee (2001) 75 ALJR 1180.
Judge Alone Trial.
A person can elect to be tried by judge alone if the DPP consents: s. 132 Criminal Procedure Act. If
there is a judge alone trial without the election being made before the day of the
trial as required under s. 132 Criminal Procedure Act,
there is a mistrial: Perry (1993) A Crim R 16, but see Coles (1993) PD [397]. The
election is made by the accused signing an Election under s. 132 Criminal Procedure Act,
which must be signed by a representative of the DPP.
The accused can withdraw his consent to a judge alone trial at any time before trial
by signing and filing an Election under s. 132(5) Criminal Procedure Act. The judgment justifying a verdict in a judge alone trial
must refer to the relevant principles of law including warnings of which a jury would
be directed to take into account: s. 133 Criminal Procedure Act, Fleming
(1999) 73 ALJR 1. A judge sitting in a judge alone
trial can give himself a Prasad direction, that is a direction that he can return
a verdict of not guilty at any stage, including before the defence case and addresses: Taousanis [2001] NSWSC 57.
Stay of Proceedings
A permanent stay of proceedings will only be granted in an extreme case: Jago
v District Court (NSW) (1989) 168 CLR 23 at 34.
A stay of proceedings until particulars were supplied was upheld in Compston (1993)
PD [216]. A temporary stay of proceedings was granted where there had been considerable
publicity about similar but unrelated sexual assault allegations in Re K [2002] NSWCCA 374.
A long delay in instituting proceedings of itself (even
of over 30 years) will not justify a stay, unless there is evidence of prejudice
to the accused: Birdsall (NSW CCA 3/3/97). A stay
of proceedings was granted when a matter was not reached 5 times and witnesses and
evidence disappeared: Nicholson (1998) 5 Crim LN [881]. A stay was refused where
Crown exhibits had disappeared in Roberts (1999) 106 A Crim R 67.
Duplicity
No one count in an indictment should charge more than one offence or it is duplicitous:
Molloy [1921] 2 KB 364, Morrow and Flynn (1990) 48 A Crim R 232, S (1989) 168 CLR 266, 45 A Crim
R 221, Stanton v Abernathy (1990) 48 A Crim R 16, Walsh v Tattersall (1996) 88 A Crim R 496.
This applies to individual acts of sexual intercourse: Khouzame and Saliba (1999) 108 A Crim R 170. Each element of the offence must be stated in the indictment: Mai (1991) 60 A Crim
R 49.
Inconsistent Counts
An indictment can contain mutually exclusive or inconsistent counts: Thomson and Dann [2002] NSWCCA 400.
Indictments.
The Crown is required to present an indictment within 4 weeks after committal: s. 129 Criminal Procedure Act, formerly s. 54 Criminal Procedure Act. In the District Court, the time for presenting the indictment in courts other than Sydney, Sydney West, Newcastle, Wollongong, Gosford, Lismore, Wagga Wagga, Dubbo or Bathurst has been extended to 8 weeks after committal by Rule 53.10E of the District Court Rules.
The time for presentation of an indictment can be extended by order of the court,
but cannot be extended after the time for filing an indictment has expired: rule 53.10F of the District Court Rules.
If the indictment is not presented within the relevant time, the court may proceed
with the trial, adjourn the proceedings, or take such other action as the court thinks
fit.
The indictment must be filed in the court registry and a copy must be served on the accused or his legal representative within 14 days of filing the indictment: Rule 53.10D of the District Court Rules. After an indictment is presented, it may not be amended unless the accused consents or with leave of the court: s. 20 Criminal Procedure Act. The prohibition applies to substituting a fresh indictment: s. 20(3) Criminal Procedure Act. It also applies to ex officio indictments: Sepulveda [2003] NSWCCA 131.
The indictment can be amended at nearly any time during a trial ( s. 21 Criminal Procedure Act, Stuart (1996) PD [195]), but not after verdict and conviction: Lewis (1992) 63 A Crim R 18 at 27.
In a single trial, there can only be one indictment: Swansson and Henry [2007] NSWCCA 67.
Signing Indictments
An indictment can be signed by the Attorney General, the Solicitor, the Director of Public Prosecutions, a deputy DPP, or a Crown Prosecutor, or a person authorised in writing to sign an indictment: s. 126 Criminal Procedure Act. If the indictment is signed by a private Crown prosecutor not so authorised ( it seems few private Crowns are so authorised), any trial or conviction which follows is a nullity: Janceski [2005] NSWCCA 281.
Pre Trial Disclosure Generally
In cases where there is no order for pre-trial disclosure, there are still limited requirements for pre-trial disclosure.
Prosecution Obligation of Disclosure
Under the Bar Rules, prosecutors are required to disclose to the defence all material which could constitute evidence relevant to the guilt or innocence of the accused (see rule 66). At common law, the Crown is obliged to inform the defence of any material which could be sensibly seen as:
(1) to be relevant or possibly relevant to an issue in the case;
(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).
including previous inconsistent statements and previous convictions of Crown witnesses: Bradshaw (1997) 4 Crim LN [702] (WA CCA), Reardon [2004] NSWCCA 197, Spiteri [2004] NSWCCA 321, Livingstone [2004] NSWCCA 407.
Material in a victim impact statement should be disclosed to the defence prior to the trial if it contains material which was sufficiently solid to cause reasonable prosecutors to think that cross-examination based on the information might elicit answers materially affecting the credibility of the witness: Lewis-Hamilton (Vic CCA 8/4/97).
The Crown is not obliged to supply the defence with prior inconsistent statements of defence witnesses: Brown (H of L) (1998) AC 367.
Defence Obligations of Pre trial Disclosure
Similarly, even if there is no order for pre-trial disclosure, the defence needs leave of the court to call evidence of alibi unless a Notice of Alibi was served on the DPP at least 21 days before the trial is listed for hearing: s. 150 Criminal Procedure Act. The notice must contain names and addresses of witnesses to be called in support of the alibi. See the paragraph headed 'Alibi' below. The defence must also give notice of an intention to rely on the defence of substantial impairment in a murder trial under s. 151 Criminal Procedure Act. See the paragraph headed 'Notice' in the Chapter on 'Defences'.
Orders For Pre-Trial Disclosure
A court can order pre-trial disclosure if it is satisfied that the trial will be a complex criminal trial, having regard to the likely length of the trial, the nature of the evidence, and the legal issues likely to arise: s. 136 Criminal Procedure Act. Pre-trial disclosure can only be ordered if the accused is represented by a legal practitioner: s. 136(4).
If pre-trial disclosure is ordered, the court determines a time table for prosecution
disclosure, then defence response, then the prosecution response to the defence response: s. 137
In practice it is very rare for an order to be made
for pre-trial disclosure, especially in the District Court.
Prosecution Disclosure Where an Order is Made For Pre Trial Disclosure
The prosecution disclosure should include:
(a) a copy of the indictment
(b) an outline of the prosecution case
(c) copies of statements of all witnesses proposed to be called at the trial by the prosecution (not statements which have already been served- see s. 147).
(d) copies of all documents proposed to be tendered by the prosecution
(e) copies of all reports of experts whom the prosecution proposes to call
(f) copies of any documents relevant to the reliability or credibility of any prosecution witness
(g) a copy of any information, document or other thing relevant to the case of the prosecution or the accused
(h) a copy of any information, document or other thing adverse to the credit or credibility of the accused (s. 138 Criminal Procedure Act).
There is a continuing obligation upon the prosecution to
disclose: s. 141 Criminal Procedure Act.
Defence Response Where an Order is Made For Pre Trial Disclosure
The defence Response is to include:
(a) notice of whether the accused intends to adduce evidence of the defences of insanity, self-defence, provocation, accident, duress, claim of right, automatism, or intoxication
(b) copies of any reports of any experts proposed to be called
(c) names and addresses of any character witnesses proposed to be called (but only if the prosecution gives an undertaking that the police or prosecution authorities will not interview the witnesses before the trial without the leave of the court)(d) the accused's response to the prosecution disclosure: s. 139
The last part of the defence Response (paragraph (d) immediately above) is to indicate
if there is any dispute (and what is in dispute) about:
(a) the Crown's expert evidence
(b) surveillance evidence
(c) continuity of custody of exhibits
(d) any transcript
(e) any documentary evidence or other exhibit
(f) the 'accuracy or admissibility' of any other proposed evidence
(g) any significant issue relating to the indictment including proposed applications to sever counts or trials (s. 139).
Prosecution Response to the Defence Response
The prosecution must indicate what expert evidence is in dispute and what material
which the defence has indicated it wishes to tender will be objected to: s. 140.
Sanctions for Non-Compliance with Pre-Trial Disclosure
Sanctions for non-compliance with pre-trial disclosure include:
The court may not prevent an accused from adducing evidence
or comment on the accused's non-compliance unless the prosecution has complied with
the pre-trial disclosure requirements: s. 148
Withdrawing a Plea.
A plea of guilty can be withdrawn if the defendant shows that otherwise there has
been/would be a miscarriage of justice: Chiron [1980] 1 NSWLR 218 at 235, Boag (1994)
73 A Crim R 35 at 36. A plea of guilty is regarded as an admission to all the legal
ingredients of the offence: Sagiv (1986) 22 A Crim R 73. In order for the defendant
to establish that a plea of guilty to be withdrawn, he must demonstrate that there
there is some circumstance which shows that the plea was not attributable to a genuine
consciousness of guilt: Boag at 37.
Circumstances which may support the withdrawal of a plea include: