Criminal Procedure Test

Front 1

What are the three themes intended to keep in mind when analysing criminal procedure legislation?

Back 1

- Balancing the public interest and individual rights
- Discretion based system
- Accountability: importance of checks and balances

Front 2

Idea of balancing the public interest and individual rights?

Back 2

- The CJS embodies concern to protect rights because of its strain on individual liberties.

- Tension between the states responsibility in maintaining law and order, individual interests and rights, freedom of movement, humane treatment, and presumption of innocence until proven otherwise.

Front 3

Idea of 'discretion based system'

Back 3

- CJS allows a lot of discretionary power to the police.

-Think about provisions in terms of who’s got discretion and what have they got the discretion to do? And when and how is that discretion exercised.

- Police, prosecution (how they run a case) and courts (procedural matters) all have discretion in their own way.

Front 4

Idea of 'accountability'

Back 4

- It is important the CJS be accountable.

-Want to have judicial scrutiny, in particular the police.
Want to know rules are being followed.

-There ought to be as many checks and balances as possible, the more there are, the more individuals will be protected.

-Courts keep prosecutors honest, media keeps courts honest, DPP keeps police honest.

Front 5

When will the criminal law assume territory in Victoria?

Back 5

•Victorian courts have jurisdiction when:
–Act or omission committed inside Victoria
–Harmful effects of conduct occur in Victoria

Front 6

Jurisdiction and penalty of Magistrate's Court

Back 6

•Criminal jurisdiction:
–All summary offences
–Indictable offences that are triable summarily

•Hearings:
–mention system

•Penalties (max):
–2 years imprisonment for a single offence
–5 years for multiple offences

Front 7

Jurisdiction and penalty of Children's Court

Back 7

•Criminal jurisdiction
–Summary and indictable offences (re children)
•Hearings:
–Can deal summarily with all charges except: murder, attempted murder, manslaughter, arson causing death and culpable driving causing death
•Penalties: rehabilitation-oriented. Try to avoid being channelled into the criminal justice system.

Front 8

Jurisdiction and max penalty of County Court

Back 8

•Original jurisdiction:
–all indictable offences except those listed in s. 36A(1) County Court Act (e.g. treason, murder, attempted murder)
•Appellate jurisdiction:
–appeals against sentencing orders imposed by the Magistrates’ or Children’s Courts (judge)
•Hearings:
–Jury Trial (original jurisdiction)
•Penalties: jail, fines

Front 9

Jurisdiction and penalty of Supreme Court

Back 9

•Original jurisdiction: The Trial Division (judge and jury)
–can hear all offences committed in Vic against State or Federal law
–limits to murder, long & complex

•Appellate jurisdiction: The Court of Appeal (3 judges)
–Appeals from the Trial Division, applications for new trials, appeals from the County Court, referrals of questions of law

Front 10

What is a serious indictable offence?

Back 10

Defined in crimes act; crimes punishable by 5 years or more. Occasionally, procedural provisions will say police have powers when it comes to serious indictable offences.

Front 11

Statute of limitations: time limit on offences

Back 11

Indictable offences: no statute of limitations at common law
But certain statutory limits once charge is laid, i.e. time limits apply to conduct of trial – see s. 163, 211, 212 CPA
Summary offences: charges must be filed within one year of the offence

Front 12

Three categories of people (distinction between arrested persons)

Back 12

People who have been arrested (very fixed legal guarantees about how to treat people who have been arrested. Must either be released or put before a bail judge),

People who have volunteered (free to go at any time),

People in police custody (safeguards to protect those people, they are not volunteers).

Front 13

What is a warrant?

Back 13

A formal authority to do something that would otherwise be an infringement of liberty. An authorisation by the courts to arrest someone.

Front 14

Meaning of s.457 of Crimes Act

Back 14

No person shall be arrested without a warrant UNLESS it is provided for by Statute.

Front 15

Meaning of s.458(1) Crimes Act

Back 15

three circumstances in which any person may arrest someone without a warrant and take that person to police or court (s.458(1) CA):

if finds committing any offence (indictable or summary) with a belief on reasonable grounds that the apprehension is necessary for one or more of the following reasons:

(i) to ensure appearance of the offender before a court or competent jurisdiction;
(ii) to preserve public order
(iii) to prevent the continuation or repetition of the offence or commission of a further offence
(iv) safety or welfare of the public or the offender.

b) when instructed to do so by police (not obligation)

c) belief on reasonable grounds the person is escaping from legal custody or aiding or abetting another person from legal custody or avoiding apprehension from legal authority.

Front 16

what does 'found committing an offence' mean?

Back 16

Offender need not be caught “red-handed” – reas. grounds to believe guilty (s. 462 CA)

Person arresting must reasonably believe that arrest is necessary to ensure court appearance; preserve public order; prevent further offending or maintain safety of public or offender.


- Have to make sure both found them committing and have one of those four reasons.
- Is a power of ‘May’ not ‘must.’
- Power relates to any offence. Can be an indictable or summary offence.

Front 17

What does s.459 allow

Back 17

A police officer has the power to arrest at any time without a warrant any person-

a) he believes on reasonable grounds has committed an indictable offence in Vic or;

b) outside Victoria which if committed in Vic would be an indictable offence

2) if a PSO arrests, must hand into custody of police force member as soon as practicable.

Front 18

What does s.459A allow?

Back 18

A member of the police force may, for the purpose of arrest under 458/459a person whom he-

Believes on reasonable grounds that the person has committed a serious indictable offence (in vic or elsewhere) or is escaping from legal custody; or
Finds the person committing a serious indictable offence

May only enter and search any place where they on reasonable grounds believe the person will be and the police may use reasonable force to enter said premises.

Front 19

Do citizens have the right to enter and search?

Back 19

No.
Have the right to walk up to premises until asked to leave.

Front 20

Arrest with a warrant
(provisions?)

Back 20

ss.12-16 Criminal Procedure Act

A warrant to arrest may be issued upon or after the filing of a charge-sheet IF the Registrar is satisfied that D will probably not answer a summons (s.12(5) CPA)
Preference for service of a summons (presumption of liberty)

Front 21

What does s.64 of the Magistrate's Court act authorise?

Back 21

Issuance of a warrant authorises to break, enter and search any place at which the person named in the warrant is suspected to be found (s.64 MCA).

Front 22

Executing arrest- what must be conveyed?

Back 22

That S under compulsion and not free to go (S must understand)
Nature of the alleged offence
No need for technical language or actual confinement

Front 23

If citizen/ police has executed arrest, where must you take them?

Back 23

If citizen, must take to the police or before a bail justice or Magistrates’ Court within a reasonable time. If police, must release or take before a bail justice or court within a reasonable time

Front 24

What does s.21-22 of Charter of Rights and Responsibilities Act include?

Back 24

ss.21 Right to liberty and security of person
ss.22 Humane treatment when deprived of liberty

Front 25

What does s.9 of the Crimes Act 1958 entail?

Back 25

9. Provision for trial for murder or manslaughter in Victoria where death or
cause of death only happens in Victoria

- effects of criminal hurt occur inside victoria (with the act having occurred outside)
- act inside Victoria with consequences occurring outside Vic

Can be heard in Vic.

Front 26

What provision of Crimes Act defines committing?

Back 26

s.462

means: 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.

Front 27

What provision allows use of force to prevent commission of an offence?

Back 27

s.462A

A person may use such force not disproportionate to the objective as he
believes on reasonable grounds to be necessary to prevent commission, continuance, completion of indictable offence.

Front 28

What provision defines a person as in custody?

Back 28

s.464(1) Crimes Act


(a) under lawful arrest by warrant; or

(b) under lawful arrest under section 458 or 459 or a provision of any
other Act; or

(c) in the company of an investigating official and is-

(i) being questioned; or

(ii) to be questioned; or

(iii) 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.

Front 29

What provision covers requirement to give name and address?

Back 29

456AA Crimes Act.

(1) a member of the police force can request name and address if they have the belief on reasonable grounds:

(a) has committed or about to commit indictable/summary offence.

(b) may be able to assist in investigation of offence that has been committed.

Front 30

What does s.456AA(2) cover?

Back 30

(2) A member of the police force who makes a request under subsection (1) must
inform the person of the grounds for his or her belief in sufficient detail to
allow the person to understand the nature of the offence or suspected offence.

Front 31

What does s.456AA (3) cover?

Back 31

(3) A person who, in response to a request made by a member of the police
force in accordance with this section-

(a) refuses or fails to comply with the request; or

(b) states a name that is false in a material particular; or

(c) states an address other than the full and correct address of his or
her ordinary place of residence or business-

is guilty of a summary offence punishable on conviction by a level 11 fine (5
penalty units maximum).

Front 32

What does s.456AA (4) and (5) cover?

Back 32

that a person who is requested by a member of the police force to give name and address may request officer's name and rank of duty. (4)

(5) is member fails to do so, gives false name, refuses. can be liable of a summary offence.

Front 33

What provision covers right to silence?

Back 33

s.464J Crimes Act

person does not have to communicate in questioning, and this silence cannot be used to indicate guiltiness in proceedings.

Front 34

What provision covers right to communicate with friend, relative or legal practitioner?

Back 34

s.464 C

(1) Before any questioning or investigation under section 464A(2) commences,
an investigating official must inform the person in custody that he or she-

(a) may communicate with or attempt to communicate with a friend or
relative to inform that person of his or her whereabouts; and

(b) may communicate with or attempt to communicate with a legal
practitioner-

and, unless the investigating official believes on reasonable grounds that-

(c) the communication would result in the escape of an accomplice or the
fabrication or destruction of evidence; or

(d) the questioning or investigation is so urgent, having regard to the
safety of other people, that it should not be delayed-

the investigating official must defer the questioning and investigation for a
time that is reasonable in the circumstances to enable the person to make, or
attempt to make, the communication.

(2) Subject to subsection (1), if a person wishes to communicate with a
friend, relative or legal practitioner, the investigating official in whose
custody the person then is-

(a) must afford the person reasonable facilities as soon as practicable to
enable the person to do so; and

(b) must allow the person's legal practitioner or a clerk of the legal
practitioner to communicate with the person in custody in
circumstances in which as far as practicable the communication will
not be overheard.

Front 35

S. 464D- right to an interpreter.
how is a person eligible under this provision

Back 35

(1) if the person does not have enough knowledge of the English language to enable sufficient question.

An investigating official must before questioning under s.464A (2) arrange an interpreter and defer until one is present.

Front 36

What is included in s.464E- Persons under 18 years

Back 36

(1) an officer must not question or carry out questioning of a person under 18 years unless-

(a) a parent/ guardian/ independent person is present.

(b) the under-age person communicates with them prior to questioning commences. away from where they may be heard.

(2) Section (1) will not apply if the official believes that
a) communication would lead to fabrication or destruction of evidence, escape of accomplice.

b) questioning is urgent (i.e for public safety)

Front 37

What is included in s.464H- Recording of confessions and admissions

Back 37

(1) subject to subsection two, evidence of a confession or admission made to an investigating official by a person is inadmissible unless-

(c) the confession was made before the commencement of questioning/ recorded by audio/audiovisual recording/ or confession was confirmed by the person and this was recorded by audio/audiovisual recording or;

d) if the confession was made during questioning in a place where it was recorded.

(2) a court may admit evidence otherwise inadmissible if it is satisfied on the balance of probabilities that circumstances
a) are exceptional
b) justify the reception of evidence.

Front 38

What is included in s.464 K- Fingerprinting

Back 38

Police may compulsorily take fingerprints of person charged or reasonably believed to have committed an offence, and use reasonable force to do so (s. 464K CA)
Police must inform suspect of purpose and offence and record caution
Records must be destroyed if no charge or person found not guilty (s.464O CA)
Children aged 14 or under – consent or Court order (s.464L-M CA)

Front 39

Forensic Procedures s.464 R-

Back 39

Definition: any procedure to gather evidence from a person’s body, except fingerprint


(1) A member of the police force may request suspect to undergo forensic procedure only where reasonable grounds for believing procedure would tend to confirm or disprove suspect’s involvement in indictable offence and the suspect:

a) is suspected on reasonable grounds of having committed the indictable offence; or
b) has been charged with an I.F
c) has been summonsed to answer charge for I.F

Front 40

Forensic Procedures s.464SA

Back 40

Police authorisation: a senior police officer not involved in the investigation may authorise the conduct of a non-intimate forensic procedure on a suspect in the absence of consent (s.464SA-SB CA)

Front 41

What does (s. 464I CA) entail?

Back 41

police cannot detain a person merely to question – no general power to detain a person who is not under arrest
(presumption of liberty)

Front 42

What does s.464(2) CA allow?

Back 42

allows police to keep and question for a ‘reasonable time’ a person ‘in custody’ who is suspected of having committed an offence

official must within reasonable time
a) inform circumstances of the offence which is alleged
b) question/ investigate in order to determine involvement (if any).

Front 43

What is under s.464A(1) allow?

Back 43

A person in custody must be released, bailed or brought to court within a reasonable time.

Front 44

What is a reasonable time to detain in custody?

Back 44

Case by case answer: depends on the particular circumstances of the case.

relevant factors: s.464A(4)(a)-(l) non exhaustive list.

Front 45

what is the factor pertaining to reasonable time in custody s.464A(4)(a)?

Back 45

a) period of time reasonably required to bring person before bail justice or magistrate

Front 46

what is the factor pertaining to reasonable time in custody s.464A(4)(b)?

Back 46

b) number and complexity of offences to be investigated

Front 47

what is the factor pertaining to reasonable time in custody s.464A(4)(c)?

Back 47

c) any need for official to read or collate material, or anything else to prepare for questioning.

Front 48

what is the factor pertaining to reasonable time in custody s.464A(4)(d)?

Back 48

d) any need to transport the person from place of apprehension to place where questioning make take place.

Front 49

what is the factor pertaining to reasonable time in custody s.464A(4)(e)?

Back 49

e) number of people needed to be questioned during period of custody in relation to the offence

Front 50

what is the factor pertaining to reasonable time in custody s.464A(4)(f)?

Back 50

f) any need to visit place of occurred offence or any other place connected to investigation.

Front 51

what is the factor pertaining to reasonable time in custody s.464A(4)(g)?

Back 51

g) any time taken to communicate with lawyer, interpreter, parent, guardian or independent person.

Front 52

what is the factor pertaining to reasonable time in custody s.464A(4)(h)?

Back 52

h) any time taken for lawyer, parent, guardian, or independent person to arrive at place of investigation.

Front 53

what is the factor pertaining to reasonable time in custody s.464A(4)(i)?

Back 53

i) any time which is questioning is suspended/ delayed for arrestee to receive medical attention.

Front 54

what is the factor pertaining to reasonable time in custody s.464A(4)(j)?

Back 54

j) time taken for person in custody to rest

Front 55

what is the factor pertaining to reasonable time in custody s.464A(4)(k)?

Back 55

k) total period of time investigating official in company before and after questioning

Front 56

what is the factor pertaining to reasonable time in custody s.464A(4)(l)?

Back 56

l) any other relevant factors.

Front 57

s.464A(3)

Back 57

Before questioning an investigating official must inform that she person does not have to say or do anything, but that f they do it may be used in evidence.

Front 58

s.458(1)
a person must have one of the following four reasons to arrest, along with finding that person committing an offence.

Back 58

(i) to ensure the appearance of an offender before a court
(ii) to preserve public order
(iii) to prevent further continuation of or repetition of an offence, or further offence.
(iv) safety of public or of the offender

Front 59

what does s.458(3) entail?

Back 59

in respect of any offence punishable on summary conviction (not indictable summarily) and taken into custody shall be held in the custody of the person apprehending him so long as the reasons from (i)-(iv) continues,

and before that person is charged, it appears the reason is no longer relevant the arresting person shall release that person regardless whether a summons has been issued for that offence.

Front 60

s.325(6)

Back 60

serious indictable offence means an indictable offence which is punishment on first conviction to imprisonment for life or for a term of five years or more.

Front 61

s.1 purpose and citation of Charter Human Rights and Responsibilities.
(relevant provision c)

Back 61

(c) imposing an obligation on all public authorities to act in a way that is compatible with human rights; and

Front 62

s.22 of Charter human Rights and Responsibilities

Back 62

Fair Hearing

right to fair hearing in front of competent and impartial judge, right to trial by jury etc.

Front 63

s.22 of Charter Human rights and responsibilities

Back 63

Human Treatment when deprived of liberty

1. all persons deprived of liberty must be treated with humanity and respect for the dignity of the human person.

2. an accused person without charge who is detained must be segregated from those charged of offences, except where reasonably necessary.

3. an accused person who is detained/ detained without charge must be treated in a way appropriate for someone who hasn't been convicted.

Front 64

s.25 of Charter Human Rights and responsibilities
1, 2 a) to f)

Back 64

Rights in criminal proceedings.

1. presumed innocent until proven guilty.
2. entitled to the following minimum guarantees:

a) to be informed of reason of charge in language or type of communication they will understand.

b) adequate time and facilities to prepare a defence; communicate with a lawyer

c) tried without reasonable rely; and

d) to be tried in person, with a lawyer or legal aid, or self-represent.

e) if without legal assistance to be told about the right if eligible to legal aid and;

f) to have legal aid provided without cost if eligible.

Front 65

s.25 charter rights and responsibilities
g) to k)

Back 65

g) to examine, or have examined witnesses against them

h) to obtain attendance and examination of witnesses on his/ her behalf

i) have free assistance of interpreter if required

j) free assistance to communication tools if such assistance required.

k) not to be compelled to testify against themselves

Front 66

s. (3) and (4) of the charter

Back 66

3. child charged with a criminal offence has right to a procedure that accounts for their age.

4. right to appeal.

Front 67

s.21 of Charter
provisions 1-5

Back 67

1) right to liberty and security

2) not be subjected to arbitrary arrest or detention.

3) not be deprived of liberty except on grounds, in accordance with procedures by law.

4) a person must be told of the reason for arrest at time of arrest and proceedings to be brought against them.

5) a person arrested or detained on a criminal charge-
a) must be promptly be brought before a court; and
b) brought to trial without unreasonable delay
c) be released if a) or b) are not complied with.

Front 68

s.21 of Charter
provisions 6-8

Back 68

6) a person awaiting trial must not be automatically detained in custody, but release may be subject to guarantees to attend:

a) for trial and
b) any other stage of the judicial proceeding and
c) execution of judgement

7) a person deprived of liberty is entitled to apply to a court for a declaration regarding lawfulness of detention, and court must-
a) make decision without delay
b) order release if found detention unlawful.

8) person cannot be imprisoned for failure to perform contractual obligation.

Front 69

s.461 Arrest on reasonable grounds not to be taken as unlawful

Back 69

(1) where an apprehension is made under a belief on reasonable grounds in accordance with s.458/ 459 will not be taken as unlawful if it subsequently found or appears the person did not commit the alleged offence.

2) a member of police force is not bound to take a person into custody if summons is more appropriate

Front 70

What does 464A(2) cover

Back 70

if a person suspected of having committed an offence is in custody for that offence, an investigating official may, within reasonable time-
a) inform the person of the circumstances of that offence, and;

b) question the person or carry out investigation in which the person participates in order to determine any involvement in that offence.

Front 71

How is a criminal proceeding commenced?
(s.5 of CPA)

Back 71

a) filing or signing charge-sheet
b) filing a direct indictment
c) direction under s.415 that person be tried for perjury

Front 72

s.14 MCA
Police or public official may issue summons

Back 72

a) a member of the police force or;
b) a public official-
may, after signing a charge-sheet containing a charge, issue a summons to answer the charge.

Front 73

s.12 Court may issue summons or warrant to arrest
s.(1)

Back 73

(1) on filing a charge sheet under s.6, an application may be made to a registrar if Magistrate's Court for issue of
a) summons to answer charge
b) warrant to arrest

Front 74

s.12 Court may issue summons or warrant to arrest
s.4

Back 74

on application under subsection one, the registrar must, if satisfied the charge discloses an offence known to law
a) a summons or
b) a warrant to arrest

Front 75

s.12 Court may issue summons or warrant to arrest
s.5

Back 75

a registrar of the Magistrate's court must not issue a warrant unless satisfied by sworn evidence, by oral or affidavit, that-
it is probable the accused will not answer summons
the accused has avoided summons
warrant is required for other good cause.

Front 76

s.13 CPA

Back 76

summons/ warrant to be accompanied by charge-sheet and notice when served.

Front 77

15. CPA Contents of summons

Back 77

must direct accused to appear at the venue of the Magistrate's court at specified time and date

- a summons for an indictable charge on a corporate accused will proceed if accused does not show.