DO YOU KNOW
1. The important features of a codified criminal law and the interaction of the code with common law.
The offence as written in the code determines what constitutes an offence.
Section 4 of the criminal code compilation act 1913 state that an offence must satisfy the elements of the statute and if not no offence is said to have taken place.
Criminal law in WA is found if statutes other than the criminal code.
One aspect of common law that remains in the code is a reference to statuatory interpretation, in particular the principle of strict construction and it would have that ambiguity in meaning of a word may be resolved by providing a “narrowest ambit of criminal liability” (Linden and Laufer, 1994, p. 7).
The common law contains the principles of Criminal law that the Griffith code embodies yet the code alone determines the elements of an offence.
This statement is made with reference to section 4 of the criminal code compilation act 1913 which in brief implies that an offence if either a crime, misdemeanour or simple offence if it is so stated in the statutes of the criminal code.
2. How federal criminal laws impact on WA & the way in which WA courts deal with them.
Criminal law gets its source in the WA parliament. Federal law gets its source from Canberra S 51 (xxxix) of the constitution provides that federal agencies and agents in a given stat or territory are subject to laws made by the federal parliament. (See Kenny p 2) The powers of the federal parliament include Exclusive powers and concurrent powers though there are no express provisions in the constitution to allow federal parliament to make criminal laws in relation to the state of Western Australia. (Kenny p 2-3). This was a problem in WA as its criminal laws come into conflict with several agencies in its jurisdiction that were governed by federal law. This was overcome by statutes that allow the WA Parliament to enforce the criminal code and other relevant statutes in WA’s jurisdictions irrespective of exclusive or concurrent powers. The commonwealth places act (administration of laws) act 1970, (Application of Laws act 1970) CTH (Kenny p. 3).The WA courts can put on trial any person whom has committed a Federal offence or breached a state law if the particular offence falls to the HIGH Courts jurisdiction. West Australian Criminal Law is made in the west Australian parliament, while Federal Criminal Law is made in the Federal Parliament. Federal places n WA came under the commonwealth places act (administration of laws) 1970 and application of Laws act 1970 (cth). This legislature allows law enforcement of state law in commonwealth and s 51 (XXXix) of the constitution. The west Australian courts may also put on trial any person whom has committed a federal offence if the offence falls under the high courts jurisdiction.
3. The way in which offences are classified in WA and the section of the code that proscribes such classification.
Section 3 of the criminal code (WA) classifies offences as crimes, misdemeanors and simple offences (Kenny p 32). A further classification is that misdemeanors and crimes will be classified as indictable offences set apart from simple offences.
Indictable offences are more serious than simple offences and subsequently the penalties as such are far greater.(Kenny p 34) Indictable offences are usually dealt with in the district of supreme courts unless an election is made for it to be tried summarily and if provisions permit it( Kenny p 36). Further more an indictable offence triad summarily only attracts the same level of seriousness as a simple offence. See Kenny pg 37.Simple offences are dealt with in the court of petty sessions where as indictable offences are tried at the District and Supreme courts. Subject to xiviii of the code.
4. The significance of the classification of offences.
Kenny states that how a offence is dealt with is significant noting the following reasons (see Kenny p 32-33) (i) Indictable offences may need to be heard in the presence of both a judge and a jury (ii) A simple offence can be heard in a court of petty sessions. (iii)An indictable offence may be heard in summary proceedings if the legislation provides for it (iv) State law other than the code can also be dealt with in summary proceedings as longs as they are classified as simple offences.(v) The importantce of determining which mode of trial will apply is a distinction between indictable offences and simple offences.
5. The meaning of an Indictable offence triable summarily and the part of the code that governs this aspect.
An indictable offence may lead to a trial upon indictment before a jucge and jury though indictable offences in WA will be dealt with in summary proceedings, that is, without a jury (See Kenny p. 32). An indictable offence triable summarily is any offence in the state or commonwealth law that can be triad in a summary hearing by a Magistrate in the court of petty sessions, as opposed to a more serious trial in the district court or supreme court in front of a justice and a jury.( See Kenny pg 32)Some statutes in the code make a specific provision as to the ability of a magistrate to hear a matter summarily and this is also subject to section 5 of the code which that outlines the requirements of a Magistrate to heat a matter summarily (see Kenny pg 36) Kenny also points out that Sections 426, 426a, 465 are the general provisions for a indictments to be triad summarily.(see Kenny pg 36)
6. Any perceived benefits or disadvantages of having and indictable matter heard summarily
In some cases a crime may well fit the description of the code however in reality it may not be as serious and as such it would be more fair to a defendant to have the matter dealt with summarily to avoid a high penalty (Kenny pg 39). The magistrate has discretion to take into consideration such factors such matters of fact and determine the degree of seriousness of an offence compared to the most serious meaning in an indictment and award a punishment accordingly. This is subject to the code (WA) provisions ss 426, (2a) , 3. See Kenny pg 37. A Disadvantage is that any matters of fact are left to the discretion of a Magistrate’s discretion. The standard of proof for a matter of fact is beyond a reasonable doubt and the premise remains that a trial by ones peers is preferred as it is less easy for a normal everyday person to come to a conclusion on a matter of fact than it is for a Judge who has understanding of legal processes and thus may be prejudiced to what is reasonable or not.
7. What a preliminary hearing is and some of the broad procedural rules relation to such hearings. How does this form of committal differ from an ex officio indictment?
A preliminary hearing is a vehicle used to determine whether there is a prima fascia case against the defendant sufficient to commit him to trial in either the district of Supreme Court. Kenny p. 12. 56, 43) A defendant needs to be present at the committal hearing (Kenny pg 41, 58) A preliminary hearing only takes place at the election of the defendant
The committal procedure consists of public procedure of Justice. Kenny (pg 43) states the procedure to include a possibility of a no case to answer discharge for a defendant, a defendants right to view a copy of the prosecutions case and to hear on oath and test the evidence tendered by the prosecutions witnesses by cross examination. (p 43).
An exofficio indictment is a vessel by where the committal procedure can be bypassed by the “Attorney general of person appointed by the governor to present indictments “ (Kenny p. 43) and a trial is commenced in the Supreme of District court. Charges may also be added to an indictment that has passed through the committal stages of a trial, even if the defendant was discharged.
8. When it is appropriate for an arrest to be executed with or without a warrant,
Arrest without a warrant is appropriate when an offence in question is not serious offence. A justice of the peace can decide not to issue a warrant subject to section 58 of the Justices Act (1902) WA (Kenny p 46). The general provisions for Arrest in the WA code are as follows s 220-230, S 226-236, 564-569 of the criminal code (WA) 1902
S 15 & 35 – 39 of the police act 1892 (WA) (Kenny pg 46).
Section 564 of the criminal code clearly states that an arrest may be made in prescribed circumstances without a warrant. These circumstances are described in s 564, for an arrest made by a police officer and by a private citizen. (See Kenny p 47). The police act 1892 (WA) s 43. Just cause to suspect or reasonably believe a person has committed or about to commit an offence. A warrant may be issued by a justice of the peace were a complaint has been made that a person is the suspect for an offence subject to Justices act 1902 (WA) ss 58, 59. irrespective of the serious ness of the offence. Kenny (pg 33) states regarding s 564 of the code “ the capacity to arrest with out a warrant now depends upon whether the offence is punishable by imprisonment.
9. The major factors taken into account when deciding a bail application and d the obligations of police officers in relation to the same.
In all cases section 13 and schedule 1, 2 of the bail act (1982) outline the necessary guidelines for those authorized to grant bail. It is necessary that all people must have bail considered subject to section 5 of the bail act 1982 (WA). The Major exceptions are that the supreme court may only grant bail for a charge of willful murder or murder, and that a person who is in custody subject to a warrant must be brought before a Justice, subject to section 15 and 16 of the Bail act 1982 (WA) respectively. Therefore a police officer may consider but not grant bail for those subject to a warrant or a charge of murder or willful murder. In all other cases an authorized police officer must consider bail for a defendant as soon as is practicable. This is subject to section 13 of the Bail act 1986 (WA) and schedule 1 of the bail act that authorizes a police person to grant bail in certain circumstances. Kenny states “an authorized police office, that is, a sergeant or higher rank of officer in charge of a police station of lock-up“(Kenny, 1999, p. 52). The authorized police person needs to consider if the person is likely to re offend and exceptional reasons favoring the grant of bail must be shown subject to the bail act (WA) cl 3a Pt C sch 2 for any serious offences listed that have been committed, for example s. 298 of the criminal code: disabling in order to commit an indictable offence.
10. What constitutes an unlawful arrest?
According to Kenny pg 51, 52, Where the statutory provisions for an arrest at the time of an arrest are not adhered to this will constitute and unlawful arrest. The legislation governing arrest in WA , general provisions the code ss 226-236 & 264-269. read with the Police Act 1892 (WA) ss 43-50.
Arrest without a warrant by is outlined by s 564 of the Code WA. (See Kenny pg 47) however a police person only needs to have a reasonable suspicion that an arrestable offence has been committed .Use of force is allowable that does not exceed reasonable force to enable arrest. Subject to the Code (WA) ss 231, 233, 235, (See Kenny pg 49). A police officer however may act justifiably where deadly force was used preventing the escape of an individual in custody for a serious offence subject to the code WA ss 233, 235. A degree of reasonableness needs to be asserted when notifying the person that they are being taken into custody subject to s 232 of the code (WA) see Kenny pg 49- 50.A balance needs to be struck between public interest and the rights of a citizen to make sure no unlawful detention has occur as a result of an arrest. (See Kenny, p, 47.)
References
Kenny, R. G. (2000) An introduction to Criminal Law in Queens land and Western Australia. Australia: Buuterworths
Colvin, E. & Linden –Laufer, S (1994).
Criminal Law in Queensland and Western Australia. Cases and commentary.
Butterworths: Sydney. p 1-8.