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QLD No Prima Facie Case - Can Prosecution Alter the Charge?

Discussion in 'Criminal Law Forum' started by AnthonyC, 6 January 2017.

  1. AnthonyC

    AnthonyC Well-Known Member

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    My question relates to a situation where there is clearly no Prima Facie case, ie. the Accusation had not been made by the Complainant in the course of the initial Interviews:

    Can the Prosecution later alter the charge based on claims made in Cross-Examination?

    And if so, can it be said under criminal law that the arrest was wrongful / unlawful if there was also clearly no case to answer for the initial Charged Act?
     
  2. Tim W

    Tim W Lawyer
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    It's part of good prosecution practice to lay a charge (and often, a backup charge)
    that best fit the facts and circumstances of the alleged offence(s).

    An arrest can also be made to prevent continued offending (ie the same offence continuing)
    or to prevent the commission of further new offences (of the same or a different nature).
    Further offences can include interfering with a witness or destroying evidence or potential evidence.

    And no, an arrest is not unlawful if it is made pursuant to a reasonable suspicion,
    even if the arrest is later discontinued (eg if the person is, as they say "released without charge").
     
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  3. AnthonyC

    AnthonyC Well-Known Member

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    OK, so let me get this straight... Police are free to arrest anyone they want on any pretext, hoping that the prosecution will pick up a better charge after Cross-Examination?

    So essentially they can put whatever they want on the Court Brief, knowing that once a Prosecution is launched, it's unlikely to be dropped?

    I really don't like where this is going...
     
  4. Tim W

    Tim W Lawyer
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    No. You have that fundamentally wrong.
    At the minimum, police have to have a reasonable suspicion, or one of the other grounds I referred to above.
    Even in Queensland.
    No. You have that fundamentally wrong.
    Cross-examination only happens to a sworn witness in a trial.
    Outside of terrorism matters, police cannot arrest somebody on spec
    just to see if they've done something.
    Even in Queensland.
    No, that's not correct.
    Speculative prosecution and weak cases that go ahead anyway, are different things.
     
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  5. AnthonyC

    AnthonyC Well-Known Member

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    So I'm guessing that there would have to be something fundamentally unlawful (or at the very least, unfair) about "speculative prosecution" then?

    Waiting until Cross-Examination in the hopes of picking up a "better" Charge doesn't exactly fit the ethical model of how a reasonable and fair System of Justice should operate?

    Even in Queensland :)

    Seriously though, are they actually free to proceed with a Charge that essentially didn't exist before Cross-Examination? Surely there is something wrong if the Charge has not even been made out at the time of launching the Prosecution?
     
  6. Tim W

    Tim W Lawyer
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    Kindly explain what you mean by "cross examination",
    because you do not seem to be using it the way I would.
     
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  7. AnthonyC

    AnthonyC Well-Known Member

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    Of course I am referring to that category of Cases where Cross-Examination is pre-recorded and there's no such thing as "evidence", only word-against-word ....

    Can they decide to "alter" the Charge after the pre-recording is done?
     
  8. Tim W

    Tim W Lawyer
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    Cross examination is by definition unable to be pre-recorded.
    This because cross can only follow evidence given by
    a sworn witness in a trial (lawyer speak for this is "examination in chief").

    Perhaps you are not talking about cross-examination.
    Perhaps you are talking about either
    • a complaint from a child that has been recorded
      in an interview with police (this may include from a child
      who is too young to take the oath), or

    • sworn evidence given by a child sworn as a witness in a trial
      in a place outside the court room, such as via video link.
    I note from reading your other posts that you already have a lawyer.
    You should ask these questions of your lawyer, and take their advice.
     
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  9. AnthonyC

    AnthonyC Well-Known Member

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    Yes - Pre-recorded, from a Child. No - I don't currently have a Lawyer.

    Can they alter the Charge late in the piece after this Pre-recording / Cross-Examination is done?
     
  10. Tim W

    Tim W Lawyer
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    Certainly.
     
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