Armed robbery (1 Viewer)

[chocolatecake]

This might sound like a silly question, but is someone charged with armed robbery granted presumption in favour of bail or against? Because I'm getting mixed answers and thoughts...

 

[Lara1986]

I am assuming you're asking for a uni assignment so - just look through all the presumptions (i.e. Bail Act ss 8A - 9D).

It depends on what category of 'robbery' you are talking about as to which will apply, in addition to other circumstances, eg were they on parole at the time; was an offensive weapon used etc


Look at the facts you're given, and go through each of the relevant Bail Act sections and just see which ones apply - its not really a question that you can give a single answer to without knowing the facts you have been given.

 

[chocolatecake]

I am assuming you're asking for a uni assignment so - just look through all the presumptions (i.e. Bail Act ss 8A - 9D).

It depends on what category of 'robbery' you are talking about as to which will apply, in addition to other circumstances, eg were they on parole at the time; was an offensive weapon used etc


Look at the facts you're given, and go through each of the relevant Bail Act sections and just see which ones apply - its not really a question that you can give a single answer to without knowing the facts you have been given.

Thanks Lara1986, yes I'm doing the bail applications.

Can I just add to the case that the accused was holding a sawn off shot gun and caused a deep laceration to one of the staff members. He was not on any parole at the time.

I'm just reading the Bail Act now section 8B how it says Presumption against bail for serious firearms and weapons offences. It doesn't say sawn off shot gun is a 'serious weapon' but I have mixed thoughts that all guns are firearms and robbing someone with a gun is serious anyways? Or I'm also thinking if he's charged under section 98 of crimes act which is armed robbery so that means he's not chraged with any sections under Firearms Act.?

Hope I didn't confuse you Lara! Please help me!!
Thanksss!

 

[Lara1986]

Thanks Lara1986, yes I'm doing the bail applications.

Can I just add to the case that the accused was holding a sawn off shot gun and caused a deep laceration to one of the staff members. He was not on any parole at the time.

I'm just reading the Bail Act now section 8B how it says Presumption against bail for serious firearms and weapons offences. It doesn't say sawn off shot gun is a 'serious weapon' but I have mixed thoughts that all guns are firearms and robbing someone with a gun is serious anyways? Or I'm also thinking if he's charged under section 98 of crimes act which is armed robbery so that means he's not chraged with any sections under Firearms Act.?

Hope I didn't confuse you Lara! Please help me!!
Thanksss!

I won't tell you the answer since you really should figure it out yourself as that's the best way to learn

But i'll point you in the right direction - look at what section of the Crimes Act they are charged under. Then have a search through the presumptions for that section and it will give you the answer.

Quickest way to do it is to copy and paste the sections that contain the presumptions into a word doc and then do a search within that doc for the section of the Crimes Act they're charged under (you can just search within the Act on Austlii or wherever you are looking, but that will probably bring up heaps more sections, most of which are irrelevant).

 

[Timbo650]

I won't tell you the answer since you really should figure it out yourself as that's the best way to learn

But i'll point you in the right direction - look at what section of the Crimes Act they are charged under. Then have a search through the presumptions for that section and it will give you the answer.

Quickest way to do it is to copy and paste the sections that contain the presumptions into a word doc and then do a search within that doc for the section of the Crimes Act they're charged under (you can just search within the Act on Austlii or wherever you are looking, but that will probably bring up heaps more sections, most of which are irrelevant).

What Lara said, yeah.

The bail presumption will be in one of three forms - expressly for, expressly against, or neutral (ie says nothing either way).

Also, don't get too hung up on the presumption itself. Get it right, yeah, but don't obsess.
I say this because the presumption will amount to one sentence in your whole application.
Concentrate on your Section 32 criteria.

If you follow Lara's suggesstion, you should be OK.

 

[chocolatecake]

Ok thanks everyone. I'm just going with Presumption against bail because sawn off shotgun is under serious firearms and weapons offences so there is presumption against.

That means I will need to persuade the Judge with the s32 criteria.

 

[Lara1986]

Hint - you might wanna re check the presumptions that relate to section 98

Section 8B from memory lists the offences that count as relevant firearms ones and i don't think section 98 is under that section... but it is mentioned under another

 

[chocolatecake]

Hmm...
I see that section 98 is mentioned in Section 9 (1)(c) of Bail Act and that says
Presumption in favour of bail for certain offences except:
offences under section 26,27,28......98 of the Crimes Act 1900.

so that would end up being Presumption Against. Are you trying to give me that hint?
So do I address the case as Presumption against bail since it is an exception?
Hope i'm thinking in the right direction!!

 

[Lara1986]

Hmm...
I see that section 98 is mentioned in Section 9 (1)(c) of Bail Act and that says
Presumption in favour of bail for certain offences except:
offences under section 26,27,28......98 of the Crimes Act 1900.

so that would end up being Presumption Against. Are you trying to give me that hint?
So do I address the case as Presumption against bail since it is an exception?
Hope i'm thinking in the right direction!!

An exception to a presumption in favour isn't the same thing as a presumption against...

If you don't already have it - a really helpful guide is the guide to making bail applications written by Tracy Booth (an ex-lecturer at UWS). It was what we were given for crim bail applications back in 2005 and also this year in PLS 2.

It should answer your questions and direct you to the right conclusions.

 

[chocolatecake]

Thanks for posting the guide up! We got the same guide too in class. Am I right in saying there is no presumption for or against the granting of bail. Under s 13, an accused is still eligible for bail even though there is no entitlement to bail under ss 8A and 9.

 

[Lara1986]

Yep you're on the right track now (I may be wrong, but i don't think I am as I had a similar assessment recently)


It is a bit tricky at first when you're new to the presumptions, but you just gotta keep in mind for any future bail problems - there's presumptions for, presumptions against, exceptions to presumptions for etc and they're all different.

It's always easiest to first look at teh section they're charged under because if there is a presumption specified for it, saves having to figure it all out yourself

 

[chocolatecake]

Yay!!
Thanks for your guidance Lara!!!

 

[Lara1986]

No worries, happy to help

 

[jess19]

Hey chocolatecake,

I'm doing the same question as you (question 2 right?)

Ok i'm finished but looking over the bail app, did u mention anything about the credibility of the witness ? or the finding of the gun at his brothers house? the prosecutions case in general ?

 

[chocolatecake]

Hey jess19, yep I'm doing question 2.

I mentioned the witness and said the it does not match with the forensic test so therefore the evidence is not very strong.

I'm still thinking how to include the finding of gun at brother's house....where should I include it in the s32?

 

[jess19]

I've just basically put them all under s32(a)(iii) the circumstances of the offence, saying how weak the prosecution case is due to the evidence against Andrew i.e the moustache, the 'big nose' and the finding of a 'similar gun' in his brothers house.

 

[chocolatecake]

I see, i think i will include it under that too.. How will you be addressing the s32? Do you say "[FONT=&quot]Your Honour, I would like to address section 32 to be considered in this matter" and then start listing the good things about him and things that works for him in the s32?[/FONT]

Just wondering, you will be seeking conditional bail right?

When are you doing it? At Parra or Campbelltown? I'm doing it Wednesday 12 parra!