Friday, December 6, 2019

Research Memorandum

Question: Describe about the Research Memorandum. Answer: Facts: Catriona Robertson charged with the drug transportation mainly of one of the dangerous drug of methylamphetamine and arrested for the same. Not only this, but she was accused of some other charges as well. The charges include; Dangerous drug trafficking which included mainly methylamphetamine in 200 grams or excess of the said quantity. The accused is a possession of property in question, primarily obtained from the dangerous drug trafficking. The accused kept the connections available that are useful for her purpose of trafficking. The accused even produced the drugs of heroin and methylamphetamine. Under such circumstances, the police surveillance used in the matter for over six months that covertly recorded many conversations of the accused and such details can use for evidence. The evidence coveted by the police includes the particulars of the conversation carried out and also various activities involving the processing of the business in the drug dealing. The police even found lot cash and other accessories related to the drug dealings. Now the main issue that comes here is, if the sentence goes against her, then she might have to spend a long time incarceration and her age is young[1]. At the same time, her crime record is not that gross to not grant bail. Her bail petition was also refused on 19th may, 2016 on the ground of her submission which is unyielding against her in providing the evidence for the matter. The main concern here is to challenge the decision and apply for a fresh bail appeal which is her right under the bails act 1980 (Qld). Issue: With the situation given here, what are the grounds that can deny the bail appeal concerning the circumstances arose against Catriona? What is the evidence that the accused Catriona must show in the court to grant an appeal for the revision of the judicial decision regarding the refusal of bail? Unlike from the above issue, if the accused applies for a fresh bail petition, then what are facts she must produce in the court to grant her bail. What is the best option to put forward after seeing the matters for whether Catriona can appeal or must go for a fresh bail petition? Discussion: At the Bails act[2], under the section of 16, the court holds the power to refuse the grant of bail, if certain conditions not fulfilled from the part of the accused. We will now look further to the act and the clauses under which the court holds the power to grant the bail. Sec 16 (a) explains that there might be a risk in the release of the accused on bail. The statement made under the sec 16 (a), also has two subclauses. Sec 16 (a) (i) claims that the accused may not appear to the court on the release of the bail and also fail to surrender before the forum if released on bail. Sec 16 (a) (ii) (A) explains and claims that the accused may further commit another offence if released on bail. Sec 16 (a) (ii) (B) explains that the life of the claimed victim might fall under the danger since that individual might be the defendant against the accused and also might risk other persons safety welfare. Sec 16 (a) (ii) (C) explains that if the accused s released on bail[3], then there might be interference on the part of the witness who prepared against the accused to come to court. The act of the accused may further obstruct the going process of the court with the justice and that may get delayed. Any other person related to the matter acting against the accused can also come in under the hindrance and the freedom to live ay get violated. Sec 16 (b) explains that sometimes the bail not granted on the ground that it is of the defendant's or the accuser's risk because if they are released on bail, then they fall into prey of violence. Sec 16 (1A) of the Act explains that the insufficient amount of the information against the defendant that is needed to decide the matter whether to grant the bail or not, then the court holds the power to restrict the bail on such grounds. Under the subclause of 1, it is defined that if there is less time regarding the decision of the matter to be carried out, then the court denies the bail upon special grounds. Clause 2 of the subsection 1(a) explains that the court or the police are to record all the incidents regarding the defendant before arresting and after kept in the custody. All the recorded incidents will take into account while the grant of bail to be approved from the part of the court. The records of the incidents include the following: Sec 16 (1A) (2) (a)- explains that the nature of the incident and how serious is it impact are prior in the record. Sec 16 (1A) (2) (b)- background of the accused or the defendant and also the environment and the personal character must be on the record. Sec 16 (1A) (2) (c)- the records and history of the previous appeals and grants of the bail and also any past record of offence with the ground for grant of bail. Sec 16 (1A) (2) (d) - the evidential strength of the defendant also all the evidence gathered against and for the respondent to be produced before the court when the bail petition prayed. Sec 16 (1A) (2) (e) (i)- explains that even the relationship f the defendant with the community will also put under while the appeal made for bail. (ii) Explains that the cultural considerations if any and also in (iii) any considerations and the services where the defendant participated and all the records that the court needs during the time of grant of bail. Sec 16 (3) of the Act explains that the court has the right to restrict the bail on the ground if the defendant found to be committing nay nuisance after the grant of the bail in the previous hearing. The description for subclause (b) explains, if the offence did concerning the section of 13[4] under the act, then the restriction over the grant of bail called by the court against the defendant. The subclause (c) explains that the bail will be restricted to the defendant if found to be using any dangerous weapon[5] against the victim or even threatened to have used one then upon such grounds the bail not granted. Subclause (d) specifies all the acts done by the defendant that goes against the act then the grant of the bail may be restricted. The meaning of the statement includes all the offences done against the section of 33(3) with the charges prescribe under sec 33(6). Subclause (e) explains that the action against the sec of 24 and 38 under the Criminal Organisation Act, 2009[6] a re non-bailable in nature. Subclause (f) says about the offences done with the charges against the sec of 359[7] with the aggrieved circumstances concerning the act of Criminal Code[8]. In all the circumstances the court or the police hold the right unless the defendant can prove that detention not justified from the part of the forum. Subsection (3A) of the section of 16 under the Bail's Act[9] explains that the bail petition can get rejected, if the defendant found to be a member of the criminal and has involved in such activities, then the court or the police hold the right to reject the bail petition. Applying the rules to the given matter of Catriona we can find that the accused here have enough grounds to challenge the decision of the judicial division. Eligibility for bail: While taking the reference from the section of 16(3) to grant the bail[10], we find that Catriona falls under the section where the decision can be challenged. The statement made on the basis that most of the jurisdictions in Australia[11] have the right to grant the bail and also make the presumption for the favour of granting bail. In the Australia itself, there are two jurisdictions[12] of the grant of bail. The presumption of the bail based on the combination of the both laws depends on upon the detention of the defendants detain the custody and also the measure of the offence done as stated under the bail act. If there are minor crimes, then the bail granted in one attempt but for some matters the grant becomes complicated. As discussed in the issue of kuczborski v the state of queensland[13], the grant of the bail is a mandatory in regards to the offence and it is to make clear prosecution and the outcome must be an active case for the rejection of the bail. In the petty sessions of the court, the grant of bail involves the combination of the right and the presumption as stated in the pg 74 of 3741 of the act. The major matters like the murders are only decided by the Supreme Court whether the grant of bail can be justified or not. The matter of Catriona for the appeal of bail decided at the Queensland Supreme Court[14] on the grounds held under sec 16(3). Under the section of 16(3), there is a clear mention that the bail cannot grant under the offence committed with or without the grant of bail. In this context, we must note the point, which the court did not allow Catriona to produce any pieces of evidence from the defence. Not only that even the charges made by the police did not arrive at the defence against Catriona. Hence, we see that the bail was refused on the ground of the assumption of the weight of the offences and no evidence was produced for or against her. Even there were no relevant charges that can be applied with the reference of sec 16 (3) of the act then also, the Judge Quant J brought some serious issue and assumption of the risks related if there was a grant of bail. The situations occurred in the matter of Catriona along with following the rules under the Bails Act, the remedy advisable to Catriona to revise the decision of the judicial division. Along with that Catriona must also produce the shreds of evidence that shows off her previous criminal record if any and then the grant of the bail can depend on upon such references produced by her. The counsel of Catriona must also highlight the fact with which the decision was passed while challenging the same. Also, the challenge must include that Catriona will not spread any danger to the normal society after the grant of bail and she will be present during the prosecution. The date is a long time gap from the date the bail issued so the court must allow the bail under the consideration fact, R v. Light[15]. Another matter of the Burton v. R[16] also explains about the bail in consideration. Conclusion: It is the prima facie right[17] of Catriona to attain a bail under the bail's act R v. Fisher[18]. Various courts adopted the decision regarding this case in deciding the grant of bail under the unusual circumstances and the presumed matters. The prima facie fact also includes the liberty of the accused to plead for grant of bail. Based on the decision of the various courts, the rejection of the bail from the part of Catriona seems to have been done under some ideal conditions. While going through the matter for her, it is always possible to apply for the revision of the bail decision passed by her honour. In the reference to the sec 16 (3), if the bail moved in that manner then there is scope for the revision as the claimed accuse seems to be missing from her matter so as not to grant the petition for bail. Hence, in the given situation, the best route is to go for the revision of the decision with the surrender of documents specially the passport. Bibliography: A, Robinson and Bartkowiak Thron, "Policing Youth Curfews" [2014] The'Wee Willie Winkie'model of enforcing bail conditions. An Application For Bail (2016) Applying For Bail | Your Rights, Crime And The Law | Queensland Government (2016) Bail - Queensland Courts (2016) Criminal Code Act 1899 (2016).053.pdf High Court Of Australia (2016). High Court Upholds Validity Of QueenslandS Criminal Organisation Act 2009 - Crown Law (2016) Social Democacy.

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