| Legislation: | Case: | Media: |
|---|---|---|
| Non-legal (media) | Ashlee Savins | |
| 19-year-old was allegedly punched numerous times by her partner, broken noise and chipped front tooth, initially the police said that there was insufficient evidence, despite the text messages admitting guilt and report by dentist (injuries could not have been caused by a fall) – outrage on social media lead to the commencement of investigation and inquiry into initial response | SMH 2015 – “NSW police accused of failing alleged domestic violence victim” | |
| BOSCAR 2015 - estimated that only 36% of female domestic violence victims report incidents to police. | ||
| BOSCAR 2019 – estimated that 1 in 6 Australian women have experienced domestic/sexual violence since age 15 |
Paragraph 1: Gathering Evidence
| Legislation: | Case: | Media: |
|---|---|---|
| Evidence Act 1995 (NSW) | ||
| LEPRA 2002 (NSW) | ||
| Both outline the admissibility of evidence – e.g. not relevant to case or chain of custody of evidence has to be well accounted for or collected illegally | R v Gittany 2014 | |
| Murder his fiancé - | ||
| no fingerprints on railing, he claimed she committed suicide (as there would be fingerprints if she did) – CCTV footage of him dragging her body by her hair moments before her death – witness statements by neighbour, Harnam scream “please help me”, eyewitness and witness heard and saw this | ABC 2014 – “Simon Gittany sentenced to at least 18 years for fiancé, Lisa Harman’s murder” |
Paragraph 2: Use of technology
| Legislation: | Case: | Media: |
|---|---|---|
| Evidence Act 1995 (NSW) | ||
| Outlines admissibility of DNA evidence | R v Xie 2017 | |
| Blood stain of 4 victims on garage floor found by DNA testing and shoe prints showed that he acted alone in killing the whole family | SMH 2020 – “Jury was misled about DNA before finding Xie guilty of murder, court told”Xie appealing convictionraises questions to the reliability of DNA evidence |
Paragraph 3: Search and seizure/use of warrants
| Legislation: | Case: | Media: |
|---|---|---|
| LEPRA 2002 (NSW) | ||
| Police are unable to conduct to searches without a warrant if they don’t have reasonable grounds to do so | Darby v DPP 2004 | |
| Sniffer dog sniffed Darby and found large amount of cannabis and meth – however this was inadmissible due to it being an unlawful search outside a nightclub and getting too close to him | ||
| Local court – found to be inadmissible as they dog got too close to him and therefore police were not able to use their discretion to determine whether there were reasonable grounds to search him but this was overruled in the Supreme court and he was convicted | ||
| This case shows the difficulty in establishing whether there is reasonable grounds to search someone without a warrant | ABC news 2020 – “NSW Police set quota for 241,000 personal searches and strip searches in 12 months, documents reveal”This is bad as police may search people without reasonable grounds to fulfil that quota 🡪 abuse of police powers |
Arrest
| Legislation: | Case: | Media: |
|---|---|---|
| LEPRA 2002 (NSW) | ||
| Police can only use force reasonably necessary when making an arrest | Roberto Curti | |
| Died 18th March 2012 after he was tasered, handcuffed, capsicum sprayed, knelt on – Corenor’s report officers involved should be considered for disiplanary action – police was then 🡪 (two charged with common assault and two charged with assault occasioning bodily harm) – they were never convicted, thus no justice for his death | ABC news 2016 – “Roberto Curti: Millions of taxpayer dollars spent defending NSW police involved in taser death” |
Paragraph 1: Main Legislation
| Legislation: | Case: | Media: |
|---|---|---|
| Bail Act 1978 (NSW) | ||
| There are presumptions for and against bail for certain offences. However, some offences didn’t have any presumptions. Leaving it to the judge in charge of that specific case to determine on their own if bail would be granted. There were 85 amendments of this legislation between 1978 and 2013. The NSW Law Reform Commission called it an “unintelligible” “Frankenstein monster”, as this led to a very complex, convoluted law. Therefore, there was a need for a complete overhaul. | R v Bayley 2013 (VIC) | |
| Difficulty to balance the rights of the offender (presumption of innocence) with safety of society | ||
| Bayley raped and murdered Jill Meagher whilst on bail for a 2011 king hit attack and on parole for 16 counts of rape. This crime was easily preventable, as his parole should have been revoked after the 2011 breach. | The Conversation published an article, ‘Locking up legally innocent people before their trial is straining Victoria’s prisons’, in 2019, reporting on the resource inefficiency resulting from keeping accused persons in custody before they are convicted. 33% of Australia’s prison population in 2016 were remand prisoners(media, case, legislation) for this paragraph |
Paragraph 2:
| Legislation: | Case: | Media: |
|---|---|---|
| Bail Amendment Act 2013 (NSW) | ||
| This amendment introduced a risk assessment test and strict bail conditions 🡪 a judge must decide whether an accused poses an ‘unacceptable risk’ before being released on bail. | R v Hawi 2014 (NSW) | |
| In this case, the risk assessment test was conducted and it was found that Hawi did pose an unacceptable risk – he wouldn’t show up to his next court date, but they imposed bail conditions to mitigate this | ||
| R v Fesus 2014 (NSW) | ||
| Charged with the 1997 murder of his wife, Fesus was released on bail after risk assessment was made – might pose risk to community, therefore, Bail Act 2013 may not be effective. | ||
| Both under the 2013 amendment as the 2014 hadn’t been passed yet | SMH 2014: “Accused murderer granted bail under new laws”Link to second case 🡪 media outrage that murderer was released on bail |
Paragraph 3:
| Legislation: | Case: | Media: |
|---|---|---|
| Bail Amendment Act 2014 (NSW) | ||
| Introduced presumptions for serious indictable offences e.g. murder, made it so that an accused person had to show why their detention wasn’t justified | ||
| Bail Amendment Act 2015 (NSW) | ||
| Result of 2015 Lindt café siege – any person charged with a terrorism offence who be denied bail | Man Manis | |
| He had been released on bail after being accused of domestic violence and attempted murder – Lindt café siege | SMH 2015: Lindt Café siege – “Solicitor who elected not to oppose bail for Man Monis had never done a bail application in NSW, inquest hears”Shows solicitor on prosecution side was inexperienced and he should of never been released |
Detention
| Legislation: | Case: | Media: |
|---|---|---|
| LEPRA 2002 (NSW) | ||
| Crimes Act 1914 (CTH) | ||
| Allows a person to be detained where the AFP believes there is an imminent threat of a terrorist attack 🡪 | ||
| Up to 14 days without charge for terrorism 🡪 not always affective as undermines presumption of innocence and may have detrimental consequences for innocent people such as Haneef | Dr Mohamed Haneef | |
| He was arrested at Brisbane airport in 2007 in connection to a failed London bomb plot, he was held under the Crimes Act 1914, for 12 days before being charged 🡪 charged with providing support to a terrorism organisation, however, that charge was unsustainable and dropped, between him being charged and the charge being dropped his visa was cancelled on character grounds and this was later found to be unlawful | SMH 2010: “Haneef compensation about $1mil” – he was compensated for his miscarriage of justice |
Interrogation