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Criminal Procedural Law Legislation & Troubleshooting Notes

Law Notes > Criminal Procedural Law Notes

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1. Stage of Criminal Justice


Decision about Committal

3 Definition (especially: committal proceedings, indictable offence, summary offence)

5 Certain offences to be dealt with on indictment.

* Unless it is an offence that is permitted or required to be dealt with summarily.

6 Certain offences to be dealt with on summary.

* required by this Act or any other Act.

* the maximum penalty that may be imposed is not, and does not include, imprisonment for more than 2 years

* List on Table 1 or 2 to Schedule 1.

7 Summary offence dealt with by Local Court. (permitted or required)

46 Supreme Court and District Court has jurisdiction in respect of all indictable offences.

64 The Magistrate must consider all the evidence and determine whether or not in his or her opinion, having regard to all the evidence before the Magistrate, there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence.

131 Default: SC and DC are to be tried by a jury, unless the following provisions.

132 Order for "trial by judge alone":

* both the accused and the prosecutor agree --> order must be made (2)

* if the accused does not agree ---> order must not be made (3)

* if the prosecutor does not agree ---> order may be made in the interest of justice (4)
the court must be satisfied that the accused has received legal advice in relation to the effect of such order.(6)

Trial by Judge Alone (Supreme Court &
District Court)


Summary Disposal (no election)

261 * Application for "trial by judge alone" no less than 28 days before the date fixed for the trial or with the leave (1)

* No application in joint-trial unless all other accused applied also (2)

* in respect of the same "on-going" proceeded offence

* An accused person or prosecutor who applies for "trial by judge alone" may at any time before the trial, subsequently apply for a trial by a jury. (3) Procedure for dealing with offences summarily:

* indictable offence list in Table 1 or 2 to Schedule 1

* if no election is made

1 2. Police Discretion: LEPRA

9 A police officer may enter premises if the police officer believes on reasonable grounds that:

* a breach of peace is being or likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or

* a person has suffered significant physical injury or there is an imminent danger of significant physical injury to him

10 A police officer may enter and stay on premises to arrest or detain a person: (1)

* must have reasonable grounds to believe that the person is in the premises (2)

* may search the premises (3)

11 Requirement to disclose identity, when reasonably believe that:

* the person may assist in the investigation of an alleged indictable offence because of the person's proximity to the place where the indictable offence occurred (whether before, when or soon after the incident occurred) (1)

* in order to give a direction to ask the person to leave the place. (in accordance with Part 14) (2)

21 Police may search the person to seize or detain things without a warrant, in the following circumstances where the person: (1)(a)-(d)

* possesses a stolen stuff or otherwise unlawful obtained stuff.

* has something used or intended to be used or in connection with the commission of a relevant offence.

* has a dangerous article is being or was used or in connection with the commission of a relevant offence.

* possesses a prohibited drug or plant, as opposed to Drug Misuse and Trafficking Act 1985

26 Police may request a person who is in a public place or school to submit to a frisk search:

* when suspects on reasonable grounds that the person has a dangerous implement:(1)

* when the person is a student

* submit to a search of his bag: 2(a)

* a search of the person's locker at the school: 2(b)

* in consideration whether there is a reasonable grounds: (3)

* the fact that a person is present in a location with a high incidence of violent crime should be considered

* should allow the student to nominate an adult who is on the school to be present during the search (4)

30 Police's power to perform frisk search or ordinary search.

Enter in Emergency

Inquiry for Identity

Search and Seize Power without Warrant

2 2. Police Discretion: LEPRA

36 Police's power to search a vehicle and seize things without warrant when the vehicle: (1)(a)-(f)

* contains stolen stuff or otherwise unlawfully obtained stuff or dangerous article or, a prohibited drugs or plant.a

* (the vehicle) itself is in connection with a relevant offence.(either is being, was or may have been)

* the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence,

* (the vehicle) itself is in public place or school and contains a dangerous article.

* (the vehicle) itself is in public place or school and is likely to give rise to a serious risk to public safety A police officer may, without a warrant, search and detain a class of vehicles on the grounds:

* a vehicle of the specified class of vehicle is being, or was, or may have been, used in or in connection with an indictable offence and the exercise of the power may provide evidence of the commission of the offence

* the place is very close to a public place or school that are likely to give rise to a serious risk to public safety

Search and Seize Power with Warrant

47 Power to apply for search warrant:

* when the police reasonably believes there is a searchable offence in the premises within 72 hours.

* when the police reasonably believes there is a child prostitution offence in the premises within 72 hours.

* an eligible applicant may apply for a covert search warrant or a criminal organisation search warrant he reasonably believes there is or within 10 or 7(per 3A) days a searchable offence in the premise.

Power in relation to Domestic Violence

83 Apply for warrant when entry denied and the authorised police's power to issue a warrant:

* reasonable grounds to suspect there is or likely to be a domestic violence offence (1)(b)(i)

* entry into the premise to prevent or to perform investigation is necessary (1)(b)(ii)

Search and Seize Power without Warrant

87D Special Power to Prevent Public Disorder (compare with 197---> personal direction, not public disorder)


Authorisation of special power to prevent or control public disorder in public place if the authoriser reasonably believes:

* there is or would be a large-scale public disorder in the near future (1)(a)

* the exercise of police power is reasonably necessary to prevent or control the public disorder. (1)(b) Police has the power to disperse people when they are assembled. (1)

* failure to comply with the direction: maximum 50 penalty units. (4)

* direction may be given orally, and not necessarily to be repeated ---> therefore it might be possible for the defendant to argue that he did not have the knowledge about the direction.

* for the purpose of complying with section 201 (1) (c), the police officer giving the direction must inform the person or persons to whom the direction is given that the direction is given for the purpose of preventing or controlling a public disorder. (2)

3 2. Police Discretion: LEPRA

Power to Arrest without a Warrant

Investigation and Question

99 A police officer may, without a warrant, arrest a person if: (1) (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried.

* it is necessary to arrest the person in order to: (3)(a)-(f)

* ensure the appearance of the person before a court.

* prevent a repetition or continuance of the offence.

* prevent the concealment or loss of the evidence.

* protect the witnesses from being interfered with by the accused.

* prevent fabrication of the evidence.

* protect others' safety.

* A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law (4)

113 Police has power to ask or cause a person to do a particular thing when the police is authorised by law. (for example, take breath analysis).

114 Police has power to detain a person, who is under arrest, for the purpose of investigation: (1)

* the person must be released within the investigation period (4)(a)

* if the person was arrested at least once within 48 hours: (6)

* investigation period for each arrest, other than the first, is reduced by so much of any earlier investigation

* however, if the later arrest is not related to the earlier arrest, i.e., the later suspected offence is committed after the person was released, no reduction available. (7)

115 Definition: Investigation period ---> Maximum: 4 hours, but may be extended by a detention warrant.

4 2. Police Discretion: LEPRA

Investigation and Question

The detained person's Right to Communicate (Offered by Custodial Manager)

116 Burden lies on the prosecution to prove, on the balance of probability, that the period of time (for s 115)was reasonable:

* the person's state: age, physical capacity, mental capacity, etc;

* the necessity of the presence of the person;

* the number, seriousness and complexity of the offence; (nature of the offence)

* the cooperation of the person: willing to be investigated or not?

* the burden of the police to take the investigation: how long for them to attend? Preparation? Time required for the specific installation of a facility?

* the inter-related investigation of other persons

* the need to go to the place where the offence was committed

* the time taken to complete searches or other investigation procedures

* the time that the person has been with the police

* other considerations

122 Custodial manager must give caution to the person in detention that:

* Right to silence (1)(a)

* The possibility to extend the maximum investigation period (1)(b) The person is to be requested to sign an acknowledgment for the delivery of the information above.

123 The detained person's (for investigation) right to communicate with others:

* can communicate:

* with a friend, relative, guardian or independent person: (1)(a)

* with a Australian legal practitioner: (1)(b)

* anything said by the legal practitioner during the investigation procedure forms part of the formal record of the investigation (6)

* reasonable facility must be provided for communication (2)(a) and privacy should be protected (2)(b)

* a reasonable period should be allowed for communication before the commencement of the investigation (3)

* the reasonable period should not be more than 2 hours (7)

125 Exceptions to s 123 (the custodial manager need not let the detained person to communicate with others): (1)(a)-(d)

* the result of the communication would be likely to result in:

* an assistance for the person to avoid arrest

* loss of evidence or the intimidation of a witness

* hinder the recovery of any person injured

* bodily injury caused to other persons

* the investigation is so urgent having regard to the safety of other persons and cannot be delayed.(2) 5

2. Police Discretion: LEPRA

197 Police may give direction to a person in public places for the person's "relevant conducts":(2)(a)(b)(c)

* obstructing another persons or traffic

* causing or likely to cause fear to a "normal fortitude" person

* supply or purchase any prohibited drug
need not be in public place but must be near that place when the relevant conduct is engaged in (3)

198 Police may give direction to an intoxicated person for his "relevant conducts": (1)

* the intoxicated person is likely to cause harm to any other person or damage to property or otherwise give rise to a risk to public safety (1)(a)

* disorderly (1)(b)
the period that the person may be directed not to return to a public place is not to exceed 6 hours (3)
need not be in the public place but must be near that place (4)
definition of "intoxicated". (5)

201 The following details must be given when exercising a police power: (1)(a)-(c)

* evidence that the police officer is a police officer

* name of the officer, and his or her place of duty

* reasons for exercising the power
Details must be given "before or at the time of exercising the power" or "as soon as is reasonably practicable": (2) & (3), when:

* a power to search or arrest a person

* search a vehicle, vessel or aircraft (when there is a covert search warrant, no need to comply (3AA))

* enter, search premises (when there is a covert search warrant, no need to comply (3AA))

* seize any property

* stop and detain a person

* give direction to a group of 2 or more persons

* establish a crime scene at a premise

* a power to request a person to submit to a frisk search under s 26
Details must be given before the exercising of the power: s 2A

* disclose the person's identity (including removing a face covering)

* give direction to one person

* require a person to open his mouth or shake his hair

230 Force can be used should be reasonably necessary to exercise the function.

231 Using reasonably necessary force to arrest a person or to prevent his escapement from the arrest.

Power to give Direction

Police's Obligation to Supply his details

Reasonably Necessary Force

6 2. Police Discretion: LEPRA

Alternatives to arrest:







Caution Warning Infringement notice Penalty notice Court attendance notice (CAN) Youth justice conference


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