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Juris Doctor (JD) Open Universities Australia Graduate School of Business and Law LAW2399/OJD140: Criminal Law Student Learning Guide (Online) Topic 2: Criminal Procedure © RMIT University 2011 Disclaimer This subject material is issued by RMIT on the understanding that: 1. RMIT, its directors, author(s), or any other persons involved in the preparation of this publication expressly disclaim all and any contractual, tortious, or other form of liability to any person (purchaser of this publication or not) in respect of the publication and any consequences arising from its use, including any omission made, by any person in reliance upon the whole or any part of the contents of this publication. 2. RMIT expressly disclaims all and any liability to any person in respect of anything and of the consequences of anything done or omitted to be done by any such person in reliance, whether whole or partial, upon the whole or any part of the contents of this subject material. 3. No person should act on the basis of the material contained in the publication without considering and taking professional advice. 4. No correspondence will be entered into in relation to this publication by the distributors, publisher, editor(s) or author(s) or any other person on their behalf or otherwise. All details were accurate at the time of printing. Feb 2011 ii Juris Doctor (JD) Contents Introduction Objectives Reading materials & resources 1 1 1 Statutory investigative regimes Procedures and protections The Criminal Procedure Act 2009 4 5 7 Arrest What is arrest? Conditions for arrest 11 11 11 Arrest without warrant Statutory arrest without warrant 12 12 Arrest under warrant The use of force to arrest Entry on Premises Without a warrant Entry with a warrant to arrest 15 16 16 16 17 Bail Legislative presumption for bail When an application can be made for bail Bail pending an appeal Presumption against bail Challenging denial of bail or bail conditions 17 18 18 18 20 23 Search and Seizure Common law position 25 25 Statutory reform Search with a warrant Privileged documents: Legal professional privilege When should the claim for privilege be made? Time 26 26 27 28 28 LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 iii Introduction Objectives After completing this topic, you should be able to: • • • • • • • • • • • • Understand the concept of a legislative preference for bail. Identify offences that require an accused to demonstrate exceptional circumstances before bail may be granted. Identify offences that require an accused to ‘show’ cause why his detention is not justified. Understand when an accused may be considered an unacceptable risk. Know the matters to which the court may have regard in determining whether the circumstances constitute an ‘unacceptable risk. Understand why appellate courts are reluctant to grant bail when appeals are pending except in exceptional circumstances. Understand the consequences for the accused and his or her sureties on a bail breach. Understand the power to search at common law. Understand the nature of a physical examination under Crimes Act 1958 (Vic). Be familiar with the power to search under warrant. Understand when claims for privilege may be made. Identify the characteristics of a valid warrant. Reading materials & resources Reading 2.1: Case Law These cases will be referred during this topic: George v Rockett (1990) 170 CLR 104. Hussein v Chong Fook Kan (1969) 3 All ER 1626. Halliday v Nevill (1984) 59 ALJR 124. Plenty v Dillon (1991) 98 ALR 353. United Mexican States v Cabal [2001] HCA 60. Australian Broadcasting Corporation v Cloran (1984) 57 ALR 742. Arno v Forsythe (1986) 65 ALR 125. Allitt v Sullivan [1988] VR 621. Pressler v Holzberger (1989) 44 A Crim R 261. LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 1 Reading 2.2: Supplementary cases These cases will be referred during this topic: R v Lancaster [1998] 4 VR 550. R v Li [1993] 2 VR 80. Foster v R (1993) 67 ALJR 550. Christie v Leachinsky [1947] AC 573. R v De Simone [2008] VSCA 216 Hortin v Rowbottom (1993) 68 A Crim R 381. Gelberg v Miller [1961] 1 All ER 291. R v Turner [1962] VLR 30. Donaldson v Broomby (1982) 40 ALR 603. Wiltshire v Barrett (1965) 2 All ER 271. McIntosh v Webster (180) 43 FLR 125. Gifford v Kelson [1943] 3 DLR 441. Kulari v R [1978] VR 276. Chamberlain v R (1983) 153 CLR 514. Chew v R (1991) 66 ALJR 209 and see Chew v R (No 2) (1991) 66 ALJR 221. Re Jackson [1997] 2 VR 1. Re Pennant [1997] 2 VR 85. Re Condon [1973] VR 427. Re Anderson [1978] VR 322. DPP v Cozzi [2005] VSC 195 DPP (Cth) v Barbaro [2009 VSCA 26 DPP (Cth) v Tang & Others (1995) 83 A Crim R 593. Re Wilkinson [1983] VR 251. Re Lycouressis [1983] 2 VR 219. R v Durose [1991] VR 176. Bulejcik v R (1995) 70 ALJR 144. Chau (1995) 82 A Crim R 339. Director of Public Prosecutions v Kanfouche [1992] 1 VR 141. Fernandez v Director of Public Prosecutions (2002) 5 VR 374. Beljajev v DPP (1998) 101 A Crim R 362 DPP v Barbaro [2009] VSCA 26 George v Rockett (1990) 170 CLR 104. Dunesky v Elder (1994) 126 ALR 522. Baker v Campbell (1983) 57 ALJR 749. Walker v West [1981] 2 NSWLR 570. R v Applebee (1995) 79 A Crim R 554. 2 Juris Doctor (JD) Reading 2.3: Legislation The following legislation will be referred to throughout this topic. You should become familiar with the key provisions: Crimes Act 1958 (Vic) ss.341-342, 457-459A, 461, 462. 462A, 464A464ZGO. 465. Crimes Act 1914, ss.3C-3ZY, Part 1C-D in particular, ss.23A-23W. Criminal Procedure Act 2009 Drugs, Poisons and Controlled Substances Act 1981 (Vic) s.82. Magistrates Court Act 1989 (Vic) ss.61-67, 75-78. Bail Act 1977 ss.4, 9, 10, 13, 18, 18A, (3A) & (3B). Crown Proceedings Act 1958 ss.5-6. Judiciary Act 1903 (Cth), s.68 Reading 2.4: Text K. J Arenson, M. Bagaric, & L.D. Neal, Criminal Processes and Investigative Procedures: –Victoria and Commonwealth, 2009 Ch: 2-6 Richard Fox, Victorian Criminal Procedure Ch 4, 119- 135; 144-150 Ch 5 LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 3 Reading 2.5: Supplementary reading Australian Security Intelligence Organisation Act 1979 ss.34D & E. Anti Terrorism Act 2004 (Cth). Anti Terrorism Act 2005 (Cth). Guidelines for Police and Legal Practitioners at Police Stations’ (2001) 75(12) Law Institute Journal 94. Australian Security Intelligence Organisation Act 1979 (Cth) ss.34A-34Y. Major Crime (Investigative Powers) Act 2004 s.3. Major Crime (Special Investigation Monitor) Act 2004. Bail Reform: Law Reform Commission of Victoria, Review of the Bail Act 1977, Discussion Paper No. 25, (V.G.P.S. 1991). Victorian Law Reform Commission: Review of the Bail Act Consultation Paper 2005 (VLRC). Victorian law Reform Commission: Review of the Bail Act: Final Report 2007. Telecommunications (Interception) Act 1979 (Cth). Lichtenberger, J., "The Issue and Execution of Search Warrants" (1987) 11 Crim. L.J 268. Williams. D., ‘Guidelines on the Execution of Search warrants on Lawyers’ Premises: Circumstances Where a Claim of Legal Professional Privilege is Made’, (1986) 12(11) Australian Law News 21-24. Aizen H & Saunders R., ‘Search Warrants: A Practical Guide’ (1998) 72(10) Law Institute Journal 48. Statutory investigative regimes This part of the topic provides a brief introduction to the commencement of criminal process in Victoria including the rights of persons questioned by police. At common law, the police have no power to detain or take a person into custody for the purposes of questioning or investigation1 unless that person has been arrested. Persons however may voluntarily attend police stations or be in the company of police for questioning, and statutory regimes provide the same protections for these individuals as for arrested persons. In Victoria, these provisions are set out in Subdivision 30A Crimes Act 1958 (Vic). s.464(1) provides a definition of ‘in custody’(1) For the purposes of this Subdivision a person is in custody if he or she is(a) under lawful arrest by warrant; or (b) under lawful arrest under section 458 or 459 or a provision of any other Act; or 1 Foster (1993) 67 ALJR 550 4 Juris Doctor (JD) (c) in the company of an investigating official and is(i) (ii) (iii) being questioned; or to be questioned; or otherwise being investigated- to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.2 The power of arrest is only exercisable for the purpose of taking a person before a magistrate to be dealt with according to law.3 Procedures and protections s.464A provides that every person taken into custody must be released unconditionally, released on bail or brought before a Magistrate or bail justice within a reasonable time of being taken into custody. Within that “ reasonable time”, the investigating official may inform the person in custody of circumstances of offence, question the person or carry out investigations Before questioning, the investigating official must give inform person in custody that he does not have to say anything and that anything he does say may be given in evidence.4 A ‘reasonable time’ is not defined however s.464A(4) provides a list of matters that may be considered in determining what constitutes a reasonable time. There is no sanction for failure to comply with this. However: [If] the questioning of a person in custody were to continue beyond a reasonable time, that person not having been brought before a bail justice or the Magistrates' Court, it would constitute questioning during a period of unlawful detention and the admissibility in evidence of any confession or admission made during that period would depend, not only upon compliance with the provisions of s.464H, but also upon the application of the common law rules regarding voluntariness, fairness and overriding public policy in which the unlawful detention would be a highly relevant consideration. Indeed s.464J expressly provides that nothing in Subdiv 30A affects the onus on the prosecution to establish the voluntariness of an admission or confession or the discretion of a court to exclude unfairly, improperly or illegally obtained evidence.5 Inherent in the requirement of informing an accused person of his or her rights6 (including rights accorded by s.464C is the obligation to ensure that the person understands those rights. This may be through use of simpler language or questioning to ensure comprehension.7 2 .See also S.23B(1)-(2) Crimes Act 1914 (Cth): see ‘arrest’ and ‘protected suspect’ (23B(2) 3 R v Banner [1970] VR 240]) 4 see s.464A(2)-(3) and R v Li and Another [1993] 2 VR 80; See s.23B-D Crimes Act 1914 (Cth) 5 Pollard v R (1992) 110 ALR 385 per Brennan, Dawson and Gaudron JJ at p 394 6 See discussion in Lancaster [1998] 4 VR 550 7 R v Li and Another [1993] 2 VR 80; See also s. 464 D LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 5 Research activity 2.1 Please read ss.464C & 464E, and answer the following questions: 1. What rights of communication does a person have under s.464C? 2. Can the communication be made privately? 3. Is this right qualified in any way? 4. Can persons under 17 years be questioned? In what circumstances? 5. Is this right qualified in any way? Research activity 2.2 Please read s.464H, and answer the following questions: 1. In what circumstances will a confession or admission be admissible? 2. When may the court admit evidence of a confession or admission that is otherwise inadmissible by reason of s.464(1)?8 Note s.464G(1) provides that where a person is in custody for an indictable offence, the investigating official required by s.464A(3) to inform of right to silence9, s.464C(1) to inform of the right to communicate with friend, relative and legal practitioner , and s.464F(1) (right of foreign national to communicate with consular office) must record ‘if practicable’ the giving of that information and the person’s responses.10 There is also no power to detain a person who is not under arrest against his or her will subject to s.464B(5)11. S.464B is concerned with the questioning of persons already in custody. An application can be made under s.464B(1) for delivery of the person into the custody of the investigating official. 8 For a discussion of this issue, see R v Pollard (1992) 176 CLR 177; R v Nicoletti [2006] VSCA 175. Note the trial judge has a discretion to exclude evidence that has been improperly or illegally obtained. 9 Note s.464J preserves the right to silence 10 See also s 464G(2) and s464 B(5H) 11 S.464I 6 Juris Doctor (JD) Research activity 2.3 Please read s.456AA Crimes Act 1958 (Vic) and answer the following questions: 1. In what situations are police empowered to ask for details of a persons name and address? 2. Must the person comply? 3. What information must be conveyed to the person to whom the request is made? 4. What are the consequences of a failure by the police member to comply with a request from the person in relation to details of his or her name, rank and place of duty. The Criminal Procedure Act 2009 The Criminal Procedure Act 2009 introduced significant changes to criminal procedure in Victoria. There are five key themes to the overhaul of criminal procedure laws in this bill. First, the bill consolidates existing criminal procedure laws. Instead of being located in three different acts -- the Crimes Act, the Magistrates' Court Act and the Crimes (Criminal Trials) Act 1999 -- these laws are in one bill. Second, the bill harmonises criminal procedure laws. Procedures in different jurisdictions should be the same unless there are good reasons why they should be different. Third, the bill abolishes redundant and obsolete provisions. Fourth, the bill rationalises the law by replacing multiple provisions with a single provision, such as the power to adjourn a proceeding. Fifth, the bill modernises criminal procedure laws by: using plain English and clear and consistent terminology; placing provisions in a chronological order; adopting a consistent approach to whether provisions should form part of the body of an act, a schedule to an act or court rules; using clearer drafting techniques including headings which describe provisions better and notes to refer to other relevant definitions or provisions. 12 12 Second Reading Speech Criminal Procedure Bill 2008 4th Dec, 2008 LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 7 New terminology Existing laws refer to the 'defendant' in the Magistrates Court and the 'accused' in the County and Supreme courts. The bill refers to the 'accused' irrespective of the jurisdiction. This is consistent with the approach used in the Charter of Human Rights and Responsibilities and removes an unnecessary distinction. For proceedings in the County and Supreme courts, words such as 'presentment', 'further presentment' and 'counts' have been replaced by 'indictment', 'criminal record' and 'charge' respectively. 'Charge' and 'criminal record' are used in the same way in Magistrates Court proceedings. The Crimes Act contains Latin and Norman French words. The bill uses modern English words. For instance, the bill replaces 'nolle prosequi' with 'discontinuing a prosecution' and 'autrefois acquit' with 'previously acquitted'.13 Commencement of proceedings S.5 Criminal Procedure Act 2009 (Vic) provides: A criminal proceeding is commenced by(a) (b) filing or signing a charge-sheet in accordance with section 6; or filing a direct indictment in accordance with section 15914; or a direction under section 362 that a person be tried for perjury. (c) Summary offences are heard and determined according to the provisions in Chapter 4 of the Criminal Procedure Act 2009 (Vic) or as otherwise provided in ss 242- 243. This course is concerned mainly with more serious offences. Indictable offences are prosecuted on indictment while S. 28 Criminal Procedure Act 2009 (Vic) provides for indictable offences triable summarily. Previously in Victoria, the usual way of bringing a person to trial in the Supreme Court or County Court was by way of presentment. This generally followed a committal proceeding at which the accused was directed to stand trial, although the Director of Public Prosecutions could, however present an accused person for trial without a committal proceedings being held by a Notice of Trial. Under the provisions of the Criminal Procedure Act 2009 (Vic), an accused may be committed for trial under the process set out in Chapter 4 or tried on direct indictment 13 Second Reading Speech 4th Dec, 2008 14 See also s. 161 8 Juris Doctor (JD) Committal proceedings S. 96: A committal proceeding must be held in all cases in which the accused is charged with an indictable offence, except cases where(a) a direct indictment is filed; or (b) the charge is heard and determined summarily. Purpose of a committal hearing: S. 97. The purposes of a committal proceeding are(a) to determine whether a charge for an offence is appropriate to be heard and determined summarily; (b) to determine whether there is evidence of sufficient weight to support a conviction for the offence charged; (c) to determine how the accused proposes to plead to the charge; (d) to ensure a fair trial, if the matter proceeds to trial, by(i) ensuring that the prosecution case against the accused is adequately disclosed in the form of depositions; (ii) enabling the accused to hear or read the evidence against the accused and to cross-examine prosecution witnesses; (iii) enabling the accused to put forward a case at an early stage if the accused wishes to do so; (iv) enabling the accused to adequately prepare and present a case; (v) enabling the issues in contention to be adequately defined. Direct Indictment A direct indictment is defined in s.3 as ‘an indictment filed against an accused who has not been committed for trial in respect of the offence charged in the indictment or a related offence’; S. 159 provides: (1) Subject to the Public Prosecutions Act 1994, the DPP or a Crown Prosecutor in the name of the DPP may file an indictment. LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 9 (2) An indictment may be filed at any time, except where otherwise provided by or under this or any other Act. (3) An indictment must(a) be in writing; and (b) be signed by the DPP or a Crown Prosecutor in the name of the DPP; and (c) comply with Schedule 1 An indictment may be filed in either the Supreme Court, or the County Court provided the indictable offences alleged in the indictment are within the jurisdiction of the County Court.15 In determining where to file an indictment, the DPP or Crown Prosecutor must have regard to: (a) the complexity of the case; and (b) the seriousness of the alleged offence; and (c) any particular importance attaching to the case; and (d) any other consideration that the DPP or Crown Prosecutor considers relevant.16 Reading 2.6 Please read Parts Part 4.1-4.2; 5.2 & 5.3 Criminal Procedure Act 2009 (Vic) Indictment by grand jury Indictment by grand jury was a jury of 23 people to determine whether a person who is alleged to have committed a crime should be indicted or presented for trial before a judge and jury of 12. (s.354 Crimes Act). The process was very rarely used. The common law procedure has been abolished by s. 253 Criminal Procedure Act 2009 (Vic) The Coroner Prior to the Coroner’s Act 1985, the coroner had the power to commit for trial after inquest. The Coroner no longer has that power and must make a report to Director of Public Prosecutions if he/she believes indictable offence committed. He/she cannot make any finding or make any statement in relation to guilt.17 15 S. 160 16 S. 160(2) 17 See s.21 and s.38 Coroner’s Act 1985 (Vic) 10 Juris Doctor (JD) Arrest Arrest has a preventative function in terminating an ongoing offence or preventing the offence being repeated. The primary purpose of arrest however, is to ensure that the offender attends court. This part of the topic examines the common law and statutory powers of arrest. Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable. Where Parliament has legislated so as to define those circumstances, neither legal principle nor considerations of public interest commend or support a search among the shadows of earlier subordinate legislation for the means of evading the constraints upon the interference with the liberty of the subject which the Parliament has imposed.18 Criminal process may be commenced by arrest, the filing of a charge requesting a summons or warrant directed at the offender, presentment for trial by Director of Public Prosecutions or an indictment by a grand jury. The latter is very rare. What is arrest? Arrest consists in the seizure or touching of a person’s body with a view to his (or her) restraint; words may, however, amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring to the person’s notice that he (or she) is under compulsion and he (or she) thereafter submits to the compulsion.19 Conditions for arrest There are three key conditions for a lawful arrest. There must be • • • words of arrest some form of restraint submission by arrestee Not all three need be fulfilled for a lawful arrest however, for example, arrest may be effected by using words of arrest and submission by the arrestee.20 Words of arrest alone are not sufficient; there must be submission by the arrestee.21The arrestee, however, must be aware he is arrested/under compulsion22 and words 18 19 20 21 22 Donaldson v Broomby (1982) 40 ALR 525 at 525 per Deane J Halsbury’s Laws of England (4th Ed) Vol.11(1) para.693 Horner v Battyn (1739) Bullers NP 61 Russen v Lucas (1824) 1 Carrington & Payney 153 Alderson v Booth [1969] 2 QB 216 per Lord Parker CJ LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 11 used must be capable of bringing to the arrestee’s notice the fact that he is under compulsion. The form of restraint need only be slight, such as touching the arrestee.23 An arrested person is entitled also to know the reasons why he is being placed under arrest.24 A failure to inform of reason for arrest does not render arrest unlawful if the offender should know from the circumstances why he is being detained and makes it almost impossible to inform him of the reason for arrest.25 A person cannot be convicted of escaping from lawful custody unless he or she is actually in custody and that custody was lawful.26 The leading case in this area is Christie v Leachinsky27 in which Viscount Simon isolated 5 propositions for a valid arrest without a warrant: 1. Where police arrest a person without warrant on reasonable suspicion that a felony has been committed, he/she must inform arrestee of true grounds of arrest; If the arrestee is not informed of the reasons for the arrest, then the arresting office will be liable for false imprisonment; There is no need to inform arrestee of reason if, in the circumstances, the arrestee must know general nature of offence for which he/she is being detained; There is no need to use technical or precise language; Arrestee cannot complain he was not informed if he makes it impossible to inform him, for example by running away or resisting. 2. 3. 4. 5. Lord Simon added that these principles apply equally to a private person who arrests on suspicion. Arrest without warrant The common law power of arrest without warrant has been abolished in Victoria and at a federal level: this is now a matter of statute law. Statutory arrest without warrant S.457 Crimes Act 1958 (Vic) (introduced by the Crimes (Powers of Arrest) Act 1972) placed the common law power of arrest without a warrant in respect of state offences on a statutory basis only. S.457 provides that no person can be arrested without a warrant except under statute. S.458 and s.459 Crimes Act provide for circumstances in which arrest can be made without a warrant. 23 Genner v Sparks (1704) 6 Modern Reports 173; Sandon v Jervis (1859) Ellis Blackburn & Ellis 492; Police v Thompson [1969] NZLR 513 24 Gelberg v Miller [1961] 25 Hortin v Rowbottom (1993) 68 A Crim R 381. See also see s. 3ZD Crimes Act 1914 (Cth) 26 Michaels (1995) 130 ALR 581 27 [1947] AC 573 12 Juris Doctor (JD) Research activity 2.5 Please read ss.458 and 459 Crimes Act 1958 (Vic), and answer the following questions: 28 1. Who has power to arrest under s.458? 2. For what purpose? 3. What types of offences? 4. In what circumstances can this power of arrest be exercised? 5. Are offences under subordinate legislation caught by the section? 6. Who has power to arrest under s.459? 7. For what purpose? 8. What types of offences? 9. In what circumstances can this power of arrest be exercised? 10. Are there limitations? 11. Is a ‘belief’ on ‘reasonable grounds’ less stringent criteria than ‘finds committing’? 12. Why do you think there is a distinction in the scope of power to arrest? The offender does not necessarily have to be caught in the act. The words ‘finds committing’ are defined in s.462: In this Act the expression "finds committing" and any derivative thereof extends to the case of a person found doing any act or so behaving or conducting himself or in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence. Reflection 2.1 Why do you think are the reasons for limiting the power of arrest in this way? An arrest may be lawful even though the suspected offence has not been committed.29 S.461(1) Crimes Act 1958 (Vic) provides: (1) Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 or section 459 the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged. 28 See also ss.3W(1) and 3Z(1) Crimes Act 1914 (Cth). Note: The power of arrest by persons other than police under s.3Z Crime Act 1914 (Cth) is limited to indictable offences. 29 Wiltshire v Barrett (1965) 2 ALL ER 271 LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 13 What is the difference between a ‘reasonable suspicion’ and a ‘belief on reasonable grounds?’ Case Study 2.1 Please read Hussein v Chong Fook Kam [1969] 3 All ER 1626, and answer the following questions: 1. According to Lord Devlin, when does suspicion arise? 2. What is reasonable suspicion? 3. What considerations should be taken into account in exercising the power to arrest on reasonable suspicion? Case Study 2.2 Please read George v Rockett (1990) 170 CLR 10430, and answer the following questions: 1. What is required when a statute prescribes there must be ‘reasonable grounds’? 2. To whom must it appear that reasonable grounds exist for the suspicion or belief? 3. What is belief? 4. What is the difference between suspicion and belief? 5. How did the High Court interpret the inclusion of ‘reasonable grounds for believing’ in the relevant section? In McIntosh v Webster,31 Connor J noted: [S]uspicion is in a lower order than belief.......[A] constable who reasonably believes that a person has committed an offence must, a fortiori, have gone beyond the stage of reasonably suspecting that he has done so. Suspicion is less than belief; belief includes or absorbs suspicion; cf. Gifford v Kelson. The legislature, having enacted that a constable may not arrest a person unless he believes the person has committed an offence and that a summons will not suffice, cannot, logically intent [sic] that he should still be able to arrest a person if he merely suspects the person has committed an offence and whether or not he has any belief concerning the efficacy of a summons.32 Example: In R v De Simone,33 Neave JA found that an Intergraph report informing police that a shoplifter was acting aggressively might have given police the basis for a reasonable suspicion that D had committed an offence, ‘but could not have provided the basis for a belief on reasonable grounds that he had done so. 34 She was of the view that the Intergraph message was simply an allegation that a shoplifter was being aggressive. In order to form a reasonable belief that D had 30 This case is also considered under Search and Seizure 31 (1980) 43 FLR 112 32 At 125 33 [2008] VSCA 216, 34 [2008] VSCA 216, [36] 14 Juris Doctor (JD) stolen property, it would have been necessary for the police to make enquiries about the circumstances of the alleged offence. The majority judges however, Vincent and Weinberg JJA disagreed: the information from Intergraph may have been sufficient to ground a reasonable belief, depending on the information it contained. 35 Note: s.461(2) Crimes Act 1958 (Vic) provides: A member of the police force shall not be bound to take into custody or to take before a bail justice or the Magistrates' Court any person found committing an offence if such member believes on reasonable grounds that proceedings can effectively be brought against that person by way of summons. Arrest under warrant Reading 2.7 Please read ss.57, 61-67 Magistrates’ Court Act 1989 (Vic). Where a statute provides the right to use force, it must be such force as is reasonable necessary to apprehend and take and deliver- must be reasonable force. What is reasonable depends on the degree of force he/she reasonably believes is necessary to effect his/her purpose and provided that the means adopted would not be considered disproportionate by a reasonable man.36 S.462A Crimes Act 1958 (Vic) provides that force that is not disproportionate to objective believed on reasonable grounds to be necessary may be used.37 On arrest of a person under warrant the arresting officer must bring the person before a bail justice or magistrate’s court within a reasonable time.38 Arrest warrants may be issued by judges and magistrates of all courts, the Prothonotary of the Supreme Court, Registrar of County Court, Magistrate’s Court and Children’s Court. Illustrations In Gelberg v Miller,39 G left his car in a restricted zone while he had lunch and refused to move it. When police said they would move the car, he removed the rotor arm. He refused to give his name and address. M arrested him by taking hold of G’s arm and told him he was arresting him for obstructing him in the execution of his duty by refusing to move the car and for refusing his name and address. G did not resist arrest and was charged with various offences. He then laid an information against M alleging assault claiming that G had no power to arrest him 35 36 37 38 39 [2008] VSCA 216, 102- 106] R v Turner [1962] VLR 30 see also s.3ZC Crimes Act 1914 (Cth) S.64 Magistrates’ Court Act 1989 (Vic) [1961] 1 All ER 290 LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 15 without a warrant. This was unsuccessful and G appealed. His appeal was dismissed. The court referred to Lord Simon’s judgement in Christie v Leachinsky40 and said that it was clear that M in saying he was arresting G for refusing to move his car was informing G of a fact which, in all the circumstances, amounted to a wilful obstruction of the highway by leaving his car there. What G was told and what he knew was enough to fulfil the obligation as to what should be done at the time of an arrest without warrant. In Hortin v Rowbottom,41 where D asked why he was being placed under arrest but received no response either at the time of the arrest or while being taken to the police station, the arrest was found to be unlawful. D had not been told the reason for the arrest, the circumstances were not such that he would have known the reason for his arrest and it was not practically impossible to have informed him. Thus his conviction for resisting arrest failed. The use of force to arrest Reading 2.8 Please read s.462A Crimes Act 195842. How should ‘not disproportionate’ be defined? In R v Turner43, the court said: If the section connotes the right to use force, the force which the section connotes is, in our opinion, such force as is reasonably necessary to apprehend and to take and deliver him as provided by the section. That is not only a reasonably interpretation of the section, but it is analogous to the powers of arrest for felony at common law. …What is reasonable depends on two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to the prevented…44 Entry on Premises Without a warrant Entry on premises is authorised under s.459A for purpose of arresting persons for serious indictable offences or escaping from legal custody. Police cannot trespass although they will have an implied licence which they share with general public to 40 41 42 43 44 Op cit (1993) 68 A Crim R 381 See also s.3ZC Crimes Act 1914 (Cth) [1962] VLR 30 At 36 16 Juris Doctor (JD) walk on an open driveway until this licence is revoked by owner.45 Police may enter private premises in the performance of their duties to prevent a breach of peace. Once lawfully on private premises, police have the powers of arrest conferred by s.458.46 Case Study 2.3 Please read Halliday v Nevill (1984) 59 ALJR 124, and answer the following questions: 1. With what offences was D charged? 2. On what basis were the information dismissed? 3. In what circumstances will a licence to enter a property be implied? 4. Can the implied licence be revoked? 5. Can a person preclude the implication of a licence to enter? Case Study 2.4 Please read Plenty v Dillon (1991) ALR 353, and answer the following questions: 1. What was the issue before the court? 2. Is a police officer serving a summons entitled under the common law to enter private property without consent and without an implied licence? Entry with a warrant to arrest The warrant to arrest generally authorises break and enter and search at any place at which the person named in the warrant is suspected to be found.47 Bail Bail is conditional liberty in that D agrees to appear before the court to answer the charges against him/her at a later date. The decision to grant bail involves weighing up the conflict between the individual and public interests. Denial of bail is a denial of the common law right to personal liberty and impinges on the presumption that a person is innocent unless proven guilty. However the court also must weigh up the primary public interest in securing the attendance of D at trial as well as other factors in the public interest such as ensuring that D will not be able to interfere with witnesses. The court needs to achieve a balance between the personal rights of the accused 45 See also s.3 ZB Crimes Act 1914 (Cth) 46 Nicholson v Avon [1991] VR 212 47 see s.64 Magistrates’ Court Act 1989 (Vic) LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 17 and the interests of the community. Other factors to be considered are financial costs to the community, long periods of imprisonment, personal economic cost to the accused, and difficulty in preparing for hearing. This topic will introduce you to key provisions in the Bail Act 1977 (Vic) and consider the circumstances in which an accused can apply for bail and the consequences of breaching bail. Legislative presumption for bail S.4(1) Bail Act 1977 (Vic) expresses a presumption in favour of granting bail, with the exception of specified offences, where it is not practicable to bring the person before a bail justice48 or the Magistrates’ Court within 24 hours, whilst the person is awaiting hearing or during a postponement of a hearing or during the adjournment of a hearing or inquiries or a report or waiting sentence unless this is not desirable in the public interest. When an application can be made for bail Accordingly, bail may be applied for at most stages of the criminal justice process. The opportunities for a person to apply for bail are particularised in the Bail Act and other relevant legislation. A person may be granted bail by police authorised by legislation when charged with an offence. In Victoria, s.10(1) provides that the authorised person is ‘a member of the police force of or above the rank of sergeant or for the time being in charge of a police station’. Bail may be granted when the person is brought before a magistrate after arrest to be remanded,49 and when the person is committed for trial.50 Bail may also be granted by the court during the hearing,51 on postponement, deferral or adjournment of the hearing,52 while the person is awaiting a new trial or pending the determination of the trial or appeal,53 or waiting sentence54. The Bail Act applies to children but there are limits imposed by the Children and Young Persons Act 1989.55 Bail pending an appeal The granting of bail pending an appeal however will require very exceptional 48 (appointed under s. 120 Magistrates’ Court Act 1989) 49 s.3(1)(b) and s.12(1) Bail Act 1977 (Vic) 50 s.12(2) and s.445 Crimes Act 1958 (Vic) in relation to perjury and s. 56(7) Magistrates’ Court Act) 51 s.13 Bail Act 1977 52 Ss.4(1)(b) and (c) and s.12(1) 53 S.579(2) and s.582 Crimes Act 54 S.4(1)(c) & s.100(3) Sentencing Act 1991 55 See s.129 18 Juris Doctor (JD) circumstances. In Kulari v R,56 Young CJ stated that: …it is clear that bail will only be granted after conviction and pending an appeal in very exceptional circumstances. It is not possible or desirable to attempt to describe what might be regarded as very exceptional circumstances but the fact that there is a prima facie arguable ground of appeal, is I think, of very little weight where the ground of appeal is that the sentence imposed is too severe.57 It also appears clear that hardship due to family or domestic issues will rarely fall into the category of exceptional circumstances.58 Reflection 2.2 Do you think this approach is too severe? In Chamberlain v R,59 Brennan J observed that in the situation of a person whose guilt had been determined and was serving a custodial sentence, there was no inherent jurisdiction to grant bail: the power to do so must be legislatively based. He argued however that there was an inherent power in the High Court to grant bail where the person would have served out his or sentence before the completion of the appellate process.60 In Chew v R (No.2)61 where D’s appeal had been heard but the decision reserved, D‘s likelihood of serving out his sentence before determination of the appeal was an exceptional circumstance. The likelihood of serving out the non parole portion of a sentence pending appeal however will not satisfy the requirement of an exceptional circumstance.62 However the situation will be different where a portion of D’s sentence has been suspended and there is a likelihood that the custodial portion would have been served before the hearing of the appeal as in this case the custodial period is clearly established.63 The issue of bail pending an appeal was more recently addressed by the High Court in United Mexican States v Cabal64. 56 57 58 59 60 61 62 63 64 [1978] VR 276 P 277 Re Pennant [1997] 2 VR 85 (1983) 153 CLR 514 See also Chew (1991) 66 ALJR 209 (1991) 66 ALJR 221. See also Bulejcik (1995) 70 ALJR 144 Re Jackson [1997] 2 VR 1 Re Pennant [1997] 2 VR 85 [2001] HCA 60 LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 19 Case Study 2.5 Please read United Mexican States v Cabal [2001] HCA 60, and answer the following questions: 1. Does the High Court have power to grant bail pending an appeal? What is the source of that power? 1. In what circumstances will the High Court grant bail pending an appeal? 2. When should bail in extradition cases be granted? 3. Does the court have power to grant bail in extradition proceedings before it has granted special leave to appeal? S. 265 Criminal Procedure Act 2009 provides: (1) If an appellant is in custody because of the sentence appealed against and wishes to be released pending the appeal, the appellant(a) may apply to the Magistrates' Court to be released on bail; and (b) if he or she makes an application under paragraph (a), must give reasonable notice of the application to the respondent to the appeal. (2) If an application is made under subsection (1), the Magistrates' Court must either grant or refuse bail as if the appellant were accused of an offence and were being held in custody in relation to that offence and, for this purpose, the Bail Act 1977 (with any necessary modifications) applies. Presumption against bail At common law, D was required to show special reason why bail should be granted in relation to a charge of murder.65There is a presumption against bail in relation to murder, treason and other serious offences in the Bail Act 1977 unless there are exceptional circumstances that justify the grant of bail (murder and treason.66 What is an exceptional circumstance will vary from case to case. In Tang,67 Beach J noted that the normal delay between arrest and committal68 and committal and trial is not an exceptional circumstance of itself. A delay resulting from probable delays in analysis of drugs69 seized in relation to serious drug charges and in the finalization of evidence of telephone intercepts70 may also, together with other 65 R v Anderson [1978] VR 322 66 see s.13 Bail Act 1977 (Vic) and s.4(2)(a) 67 (1995) 83 A Crim R 593; see also e.g. Mokbel v Director of Public Prosecutions [2002] VSC 127 in which it was held that a potential delay of up to two years between D’s arrest and trial in relation to his charges on drug trafficking charges was not an ‘exceptional circumstance’. See also R v Simpas [2006] VSC 180.In relation to drug offences, however, see Director of Public Prosecutions v Tong (2000) 117 A Crim R 169 68 See also Sazdov [2008]VSC 605 69 Re Hurle [2008] VSC 494; Re Walker [2008] VSC 493 70 Re Hurle [2008] VSC 494; Re Walker [2008] VSC 493 20 Juris Doctor (JD) factors, such as the care of an infant71 or young children72 amount to exceptional circumstances justifying a grant of bail. The burden of establishing exceptional circumstances lies on the person seeking bail.73 In DPP v Cozzi,74 Coldrey J noted in relation to exceptional circumstances: The concept of exceptional circumstances is, itself, an illusive one. The phrase is not defined in the Bail Act 1997 (the Act), although some Judges have essayed a definition. In Tang & Ors, Beach J made reference to dictionary definitions of the word "exceptional". His Honour found that whatever definition was used, the applicant for bail "bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a court is justified in releasing him on bail" In the course of argument the decision of Kaye J in the case of In the Matter of a Bail Application by Ismail Muhaidat7. was cited. In it his Honour remarked (p.2): The question of what are exceptional circumstances have been canvassed before. Effectively the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. On the other hand in Re the Matter of Application for Bail by John Denis Moloney8. Vincent J, a most experienced Judge, pointed out that it was not possible to identify in any general definition what factual situations constituted exceptional circumstances. His Honour stated: A number of decisions which have been handed down by Judges in this Court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified. I agree with respect with his Honour's approach.75 Establishing exceptional circumstances however does not, of itself, create an entitlement to bail. The prosecution may establish that there is an unacceptable risk. 76 Bail will not be granted if there is an unacceptable risk that the person would fail to answer his bail, offend whilst on bail, endanger the public, interfere with witnesses or otherwise obstruct the course of justice.77The onus is on the informant to establish unacceptable risk. 78i In addition, where D is charged with an offence specified in s.4(4), bail will be refused unless the person shows cause why his detention is not justified.79 71 Re Hurle [2008] VSC 494 72 Re Walker [2008] VSC 493 73 R v Anderson [1978] VR 322; Sazdov [2008] VSC 605 74 DPP v Cozzi [2005] VSC 195 75 DPP v Cozzi [2005] VSC 195, [18]–[20]; Sazdov [2008] VSC 605; Clark [2008] VSC 606 76 DPP (Cth) v Barbarao [2009 VSCA 26; Beljajev v DPP (1998) 101 A Crim R 362 77 s.4(2)(d)(i) 78 Re APS [2009] VSC 588 79 See Re Kheir [ 2008] VSC 492 in relation to substantial delay in drug analysis and the relative weakness of the prosecution case LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 21 Research activity 2.6 Read s.4 Bail Act 1977 (Vic). 1. What do you think was the rationale for placing offences into ‘exceptional circumstances’, and ‘show cause’ categories? 2. Read Victorian law Reform Commission : Review of the Bail Act Consultation Paper 2005 (VLRC) pp 83-4. 3. Can you think of any offences that should be listed in the ‘show cause’ category? 4. See also Chapter 3, Victorian Law Reform Commission : Review of the Bail Act: Final Report 2007. S.4(3) provides further information as to what will be relevant in determining the question of unacceptable risk: the court must consider the nature and seriousness of the offence, the character, environment and background of D, previous bail history, the strength of the case against D and attitude of the alleged victim to granting bail.80 The imposition of conditions may, in some circumstances however, make the risk acceptable. 81 S.5 provides for the release of D on conditions . D may be released on his or her own undertaking to appear, on an undertaking with a deposit of a security, an undertaking with a surety or an undertaking with a deposit of a security and a surety. Sureties are persons willing to enter an undertaking with financial consequences to themselves to ensure the accused appears on the due date. They are entitled to apprehend the accused to ensure that he/she attends court (s.21). The person granting bail is also required not to impose conditions which are more onerous than the nature of the offence and circumstances of the offender warrant in the public interest. S.18(6), ss.25 and 26 allows the necessary court to revoke bail or modify the conditions attached to any undertaking entered into by the accused. Failure to answer bail is an offence under s.30(1) Bail Act and will result in the issue of a warrant for arrest.82 If D fails to appear on the date specified in the undertaking and it is found that the person has failed to comply with the bail conditions, the court will also declare the bail forfeited and order payment of the money payable under the forfeited bail from the surety, if there is one, and from the accused.83 The surety should take all reasonable steps to ensure D’s attendance at court however he/she may apply for a variation or rescission of the orders on the grounds that it would be unjust to compel him or/her to pay.84 It must also be found that the surety was genuine, namely that D did not provide the surety with his own security from proceeds of crime.85 80 See Re Asmar [2005] VSC 487 and Re Johnson [2006] VSC 157: if the unacceptable risk provisions are applicable, D will have failed to show why detention is not justified. 81 Re KDP [2009] VSC 416 82 s.30(1) 83 See Crown Proceedings Act 1958 (Vic) s.6(1) 84 (s.6(4)) See also Re Condon [1973] VR 427 85 R v Wilkinson (1983) 2 VR 250 22 Juris Doctor (JD) Reflection 2.3 An accused absconding on bail can have dire consequences for his or her surety. Do you think courts should have access to more information about the financial position of sureties to ensure that the surety is not jeopardising his or her financial security? See Victorian Law Reform Commission : Review of the Bail Act Consultation Paper 2005 (VLRC) pp.95-98. Arrest s.24 provides police with power to arrest persons on bail without a warrant in specified circumstances. The court may issue a warrant for arrest in order to return the person to court to enable extra conditions to be imposed86 or remedy the amount of security,87 or arrest a person for failure to answer bail.88 Challenging denial of bail or bail conditions The accused can challenge the denial of bail or the conditions attached to his or her bail undertaking under ss.10(2), 18. D also has the right to appeal the decision to refuse bail under s.18. The Supreme Court has an inherent jurisdiction to hear appeals against a refusal to grant bail89. Under s.18A(1) Bail Act 1977 (Vic), the Director of Public Prosecutions can appeal to the Supreme Court against an order granting bail, or the conditions attached, in the interests of the public.90 The appeal has been regarded as a review rather than a hearing de novo.91 S.18A however has been interpreted as not extending to allow appeals from the decision by a single judge of the Supreme Court to grant bail.92 In DPP v Kanfouche93, the court held that: The view we have formed of s.18A(1) ... is that it gave the director, for the first time a right of appeal from a grant of bail by someone other than a judge of the Supreme Court to a judge of the Supreme Court, and that by its terms it did not extend to permit an appeal from a judge of the Supreme Court to the Full Court. It may further be said s.18A(1) was enacted against the background that by exercise of a common law ... jurisdiction Supreme Court 86 (s.25) 87 (s.26(1) 88 (s.26(2) 89 See Durose [1991] VR 17 although note the earlier decision in Re Lycouressis & Secombe[1983] 2 VR 219 90 However not against an order of a single judge of the Supreme Court granting bail, See Director of Public Prosecutions v Kanfouche [1992] 1 VR 141 91 Beljajev and Pinhassovitch v Director of Public Prosecutions (CCA(Vic)), 8 August 1991, unrep 92 Director of Public Prosecutions v Kanfouche [1992] 1 VR 141; Fernandez v Director of Public Prosecutions (2002) 5 VR 374 93 [1992] 1 VR 141 LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 23 judges would often grant bail upon original applications. Another consideration is that s.18(6A) applies the policy to be found in s.18A of permitting appeals to a judge of the Supreme Court from grants of bail by other authorities, but of not permitting appeals from grant of bail by a judge of this Court to the Full Court 94 There is the right of appeal from the decision of a single judge to grant or refuse an appeal under s.18A.95 There is no unequivocal expression of legislative intention in s.18A of the Bail Act that the issue should "stop" with the decision of the judge of the Trial Division.96 94 At p. 149 95 Fernandez v Director of Public Prosecutions (2002) 5 VR 374 96 Ibid; See Beljajev v DPP (1998) 101 A Crim R 362 in relation to the nature of the appeal 24 Juris Doctor (JD) Search and Seizure No one can enter a person’s home without authority- this becomes trespass. There must be lawful authorisation for any entry where consent is refused, usually a search warrant. The power under warrant to authorise entry, search and seizure reflects the balance between that private right and the public interest in the prevention of offences or locating evidence of offences. Statutory powers to search property and people and seize evidence have increased substantially over the last decade in response to perceived terrorist threats and the growth in white collar crime and organised crime, all of which have been assisted by constantly evolving information technology. The scope of this topic however is necessarily limited to the material covered below. Common law position At common law, both persons and premises may be searched without a warrant as a consequence of arrest. Police ostensibly have no power to stop and search a person for evidence relevant to a crime nor to enter and search that person’s premises even if they reasonably believe a crime has been committed unless the person is under arrest. If there is no arrest or charge, then there is no power to seize property even though police believe a crime was committed and that it was necessary to seize that property so as to preserve it as evidence. Police may however lawfully search the body, clothing and property in immediate possession of a lawfully arrested person where indictable offence and search premises and seize items relevant to the crime for which the person was arrested or items in the person’s possession which might be used in self harm or harm of another person or escape from custody. Personal body searches in the context of arrest are confined to frisk type searches for weapons or evidence and there is no power at common law to compel an accused to submit to medical examination or provide body fluid samples or compel attendance at ID parades or furnish fingerprints. Arrest warrants issued in Victoria include authority to break, enter and search any place where the person named in the warrant is suspected to be found.97 97 See s.64(1)(a) Magistrates’ Court Act, 1989 LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 25 Statutory reform The Crimes (Amendment) Act 1993 radically altered this area of the law. Various changes had been considered in the past but very few implemented. 98 Ss.464K-ZG Crimes Act 1958 were repealed and replaced by ss.464K-ZK. These provisions have since been significantly extended to take account of the development of computerised databases and to regulate the taking, retention and use of forensic material. In Victoria, strip searches are not permitted under the common law, which limits personal body searches by police in the situation to arrest to frisk type searches for weapons or evidence. While physical examinations are now permitted under the Crimes Act 1958, these involve ‘an examination of the external part of a person's body requiring touching of the person or removal of the person's clothing’. Physical examinations fall under forensic procedures and must comply with ss.464 R-U. Research activity 2.6 1. Do Victorian police have statutory power to enter and search without a warrant? For what purpose? 2. Can this be exercised for summary offences? 3. What is the federal statutory power to search found in s.3T Crimes Act 1914? Search with a warrant The power to search under warrant is incidental to a warrant to arrest or granted under a separate warrant. 99 Warrants to arrest automatically include the authority to break enter and search for the person named on the warrant. Generally warrants must define with reasonable particularity the offences for which they are issued. This must be clear so that the person to whom they are addressed and the persons whose premises are to be searched know what is required and the ambit of the search. Warrants must also define the premises to be searched and restrict the item or class of items searched for. 98 see Crimes (Fingerprinting) Act 1988 and Crimes (Blood Samples) Act 1989 99 e.g., see s.465 Crimes Act 1958 (Vic) 26 Juris Doctor (JD) Case Study 2.6 Please read Australian Broadcasting Corporation v Cloran (1984) 57 ALR 742, and answer the following questions: 1. Why were the warrants in this case challenged? 2. How particular must the warrant be in describing the offences? See also Arno v Forsythe100 and Pressler v Holzberger101 below. Case Study 2.7 Please read George v Rockett (1990) 170 CLR 104, and answer the following questions:102 1. Why was the warrant defective? 2. What is the difference between suspicion and belief? 3. Will it be more difficult to persuade the court that there are reasonable grounds for the belief that the described object will provide evidence of the commission of the offence if the description is wide? What is the value of a wide description? Privileged documents: Legal professional privilege Legal professional privilege applies to confidential communications between a party and the party’s legal adviser which are created for the dominant purpose of providing legal advice or for use in contemplated or current litigation.103. The privilege is that of the client. Problems have arisen however where a warrant is sought to be executed and the documents and communications that are the subject of the warrant are claimed to be privileged. This was dealt with in Baker v Campbell104 where the High Court held that documents protected by legal professional privilege could not be made the subject of a search warrant issued under s.10 Crimes Act 1914 (Cth). This decision extended the application of the privilege to extra judicial processes and administrative proceedings. The question about whether privilege attaches is determined by matters outside the warrant itself. 100 101 102 103 104 (1986) 65 ALR 125 (1989) 44 A.Crim. R 261 See also Dunesky v Elder (1994) 126 ALR 522 Esso Australia Resources Ltd v FCT (1999) 168 ALR 123 (1983) 153 CLR 5 LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 27 When should the claim for privilege be made? Case Study 2.8 Please read Arno v Forsythe (1986) 65 ALR 125, and answer the following questions: 1. Why was the warrant defective? 2. At what point did Fox J consider the issue of privilege arose? 3. Why did Fox J find that the warrant was not valid? 4. At what point did Lockhart J consider the issue of privilege arose? What consequences arise if the issue of privilege is not considered at this point? 5. What was Jackson J’s position? Case Study 2.9 Please read Allit v Sullivan [1988] VR 621 and answer the following questions: 1. Did Murphy and Brooking JJ agree with Lockhart in Arno v Forsythe that search warrants should carry and endorsement that the warrant did not apply to documents the subject of legal professional privilege? 2. How should the issuing justice deal with claims for legal professional privilege on execution of the warrant? 3. What was Hampel J’s position? Case Study 2.10 Please read Pressler v Holzberger (1989) 44 A. Crim. R 261 and answer the following question? 1. What is the situation when the offences are particularised as occurring between certain dates but there are documents that fall outside that period? In what circumstances might these be covered by the warrant? Time Where there is nothing in a statute concerning time restrictions, searches can be conducted at any time provided that the circumstances of the search are not oppressive.105 Warrants must however be executed promptly or within a reasonable time. One month is not a reasonable time.106 105 Walker v West [1981] 2 NSWLR 570 106 R v Applebee (1995) 79 A Crim R 554 28 Juris Doctor (JD) Review Questions 1. D is walking home from work when she sees an elderly woman hitting V, a young man, with her walking stick. Immediately thinking that the woman must have been responding to a threat from the man, D grabs V by the arm and says ‘I think the police would like a word with you. Now, would you just stop struggling while I call them on my phone?’ At that moment, the elderly woman quickly shuffles away down the street. V squeezes D’s hand tightly to make D break her hold and tries to push her away. D winces in pain but tightens her grip on V anyway and demands, ‘What kind of person are you? Look at her- the poor thing’s terrified.’ V replies, ‘Poor thing! That old witch just demanded I hand over my wallet and started hitting me when I laughed at her.’ D does not believe V and hands him over to the police when they arrive. Has D effected a valid arrest? Is V justified in resisting To what extent? 2. D is arrested at 6.00 p.m. for indecent exposure in a public place and taken to the Blacktown police station to be charged. D has no prior record, has held a steady job a reputable newspaper for more than 10 years and is well respected in the community. The police deny bail however as they suspect that he may be the flasher who has been terrorising women in telephone boxes all over the metropolis. They also suspect that he might have been involved in the murder of a cub news reporter whose body has never been found. D demands to be brought before a bail justice but nothing is done until the day after next as the station is grossly undermanned due to recent government cutbacks. Bail is refused by the bail justice and D is remanded in custody. He appeals. What are the merits of D’s bail application on appeal? LAW2399/OJD140 Criminal Law: Student Learning Guide (Online) – Topic 2 29