Legislation update: Reopening Coronial inquests and the powers to be applied
The powers of a Coroner in conducting an inquest are far reaching. In 2003 when the Coroner’s Act 2003 commenced, section 39 introduced a provision which allows the Coroner to direct and require a witness to give evidence that would tend to incriminate the witness. A Coroner may only make such a requirement if satisfied that it is in the public interest for the witness to do so.
There are any number of acts of parliament which seek to abrogate this privilege. The right to claim privilege against self-incrimination is the right of an individual to refuse to answer a question or produce any document or thing that might tend to bring the person into the peril and possibility of being convicted of a crime. It is a fundamental and substantive common law right and not just a rule of evidence. The right to silence protects the right not to be made to give evidence against oneself whether that evidence is incriminating or not.
In order to balance the abrogation of this right, the Coroner’s Act 2003 makes clear that the evidence which tends to incriminate the witness is not admissible against the witness in any other proceeding, other than a proceeding for perjury. In addition, the Coroner’s Act 2003 states that derivative evidence, being information, documents or other evidence obtained as a direct or indirect result of the evidence of the witness, is not admissible against the witness in a criminal proceeding.
It is as a result of these provisions that the Coroner’s Act 2003 has sought to strike a balance between the abrogation of this basic privilege and the uses which can be made of any evidence provided because of it.
On 20 May 2020, the Justice and Other Legislation Amendment Bill 2019 was passed by the Queensland Parliament. The bill introduces provisions to the Coroner’s Act 2003 that allow the repealed Coroner’s Act 1958 to continue to apply to a pre-commencement fire or an unfinished inquest. The amendments allow a Coroner to stop an unfinished inquest under the repealed legislation and reopen the inquest under the Coroner’s Act 2003. If a death occurred before the Coroner’s Act 2003 commenced, and an inquest is reopened under the current legislation the provisions and powers which allow a Coroner to require evidence that would tend to incriminate the person will apply.
It is important to remember though that, although this will remove the privilege against self-incrimination for many who may be required to appear before the Coronial Court in relation to an inquest, the use that can be made of any evidence given in criminal proceedings against the person is limited. These protections provide an important balance in the coronial jurisdiction.
If you would like any further information about the coronial process, please see our Coronial Inquests page, here.
If you would like to discuss a coronial inquest and the impact of these legislative changes on a pre-2003 inquest that you or your family have been involved in, please contact our office on 07 3034 0000
Searching people | A review of NSW and Queensland Police search powers
The search practices of the New South Wales Police Service have come under scrutiny following a recent report by the Law Enforcement Conduct Commission (LECC). The report, which highlights the importance of consistent and comprehensive standard operation procedures, found evidence that police had conducted a number of unlawful and morally reprehensible strip-searches. Given the serious criticisms levelled at the NSW practice and procedure for strip searching, we wanted to review the Queensland Police Service powers.
Queensland’s police search powers
In Queensland the police have broad powers to search a person and anything in a person’s possession without a warrant under s29 of the Police Powers and Responsibilities Act 2000 (‘PPRA’).
However, the search powers may only be used when a police officer reasonably suspects that one of the prescribed circumstances applies to the person. The prescribed circumstances include possession of a weapon or item used in the administration of drugs. There are a number of prescribed circumstances in the PPRA in section 30.
Pat down
The use of pat down searches by police on the street and in particular of children and young people is prevalent. While there is no reference to a ‘pat-down’ power in the PPRA, the search of persons without warrant is covered. The process for that search is known as a ‘pat-down’ search. The process to be adopted comes from the Queensland Police Service Operational Procedure Manual which describes this type of search of persons as involving a search of a person’s outer clothing, a search that requires grabbing, squeezing and/or a pat technique over the outer clothing of a person except a person’s genitals, or use of a metal detector.
A common form of a pat-down is removal and inspection of an outer garment worn by a person or other items in their immediate possession. An outer garment is any item of clothing that does not reveal underwear or expose skin generally covered by underwear when removed. Common examples of outer garments include jackets, shoes, socks and hats. ‘Other items’ is a deliberately broad term. Common examples of other items include handbags, backpacks or other containers. It is important that if you are stopped by police, you are aware of the limits of what police officers can search and on what basis they can search you.
Strip-Search
Police may require a person to remove items of clothing for the purposes of conducting a search, commonly known as a ‘strip-search’, according to s629 of the PPRA:
A police officer conducting a lawful search of a person under this Act may require a person to remove all items of clothing or all items of outer clothing from the upper or lower part of the body
The significant personal intrusion associated with strip-searches and the public importance of privacy are reflected in the operational procedures and legislated protections. According to the OPM:
A police officer’s or watchhouse officer’s general duty of care toward a person is not in itself sufficient justification to conduct an unclothed search. An unclothed search should only be conducted when a responsible officer reasonably suspects the person poses a particular risk and an unclothed search is necessary to mitigate the risk.
The discretionary decision to strip search someone should be based on factors such as the risk a person possesses something that is capable of causing damage to themselves or others, able to aid escape if detained or evidence of the commission of an offence. Other factors that should be considered at the very least include whether the risk can be mitigated by some other means, the circumstances in which a person has been or will been held in custody, the demeanor of the person and any known personal history.
Prior to conducting any search the police officer should, as reasonably practicable, inform the person that they will be required to remove clothing, explain why it is necessary to remove the clothing, and request general cooperation.
A police officer must adopt procedures to protect the dignity of a person during a strip-search. A requirement of dignity is reasonable privacy. This means that a search should be conducted by an officer of the same sex as the person where reasonably practical, without anyone else who does not need to be present. If there is CCTV in the area where the search is performed, an officer must ensure the camera is turned off. If this is not possible the search must be moved out of view of the camera. Exceptions to this is if the footage is monitored only by a police officer of the same sex or if turning off the camera would pose a significant risk to another. In either event the video must be handled appropriately pursuant to s 632 PPRA.
A strip-search must be conducted as quickly as reasonably practicable. During the search there must, if possible, be an opportunity to remain partly clothed to minimise personal exposure. For example, a person should be given the opportunity to dress their upper body prior to removing their clothing covering the lower body. A person should be able to dress themselves as soon as the search has been completed. If any item of clothing is seized during the search, alternative reasonably appropriate clothing must be arranged.
An officer must not, under any circumstances, make contact with the genitals or anal areas of a person. It is permitted for the officer to give specific directions that allow for visual examination. Common directions include asking the person being searched to stand with legs apart and bend over or raise their hands.
Children, or those with impaired capacity, must have a support person present during a strip-search. A search may nonetheless be performed if the police officer reasonably suspects further delay is likely to result in evidence being concealed or destroyed, or to protect the safety of the person.
What is the NSW Commission recommending
The Law Enforcement Conduct Commission (LECC) expressed concern with what it opined were inadequate standard operating procedures. Amongst other issues, the procedures were inconsistent, cited outdated legislation and failed to provide any significant guidance to deal with increasingly common situations. The recommendations of the commission included:
- The custody standard operating practice should provide guidance to police about how to form a suspicion on reasonable grounds that a strip search is necessary for the purposes of the search.
- The custody standard operating practices should clarify the role of the custody manager in deciding whether a general or strip search is necessary in the circumstances.
- The custody Standard operating practice should include consistent guidance to police officers about:
- whether it is appropriate for strip searches to be filmed by CCTV or other recording equipment;
- whether practices such as requiring a person to squat and cough, bend over, lift their genitalia or remove all clothing at once are appropriate;
- when it is appropriate to use force in the conduct of a strip search;
- the requirements for police to record the reasons for the search;
The Commissioner of Police has confirmed that the NSW police force supported all of the recommendations of the commission. The NSW Police Force implemented two new policy documents dealing with personal searches – Charge Room and Custody Management Standard Operating Procedures and a Person Search Manual.
Although the Operational Procedure Manual for Queensland Police has been updated in recent versions to provide greater guidance about factors to be considered prior to and during search procedures, the Queensland Police Service have not published similar specific and detailed policy documents or manuals for search procedures.
What to take away
People who are being searched, either by a pat down or strip search, by Queensland Police Service officers often feel vulnerable. It is important for you to understand the extent of the police powers to search and the circumstances in which you may be subjected to a strip search.
Written by Emma Higgins
Dear RSE Licencee holders – A letter from your co-regulators
On Friday, 14 February RSE licensees received a letter from ASIC and APRA jointly written to address the proposed law reform to the roles of these regulators. While this legislation is currently in the consultation stage, it remains important that industry are aware of the proposed expansion of the regulators roles especially when it comes to criminal and civil penalty provisions.
What’s this all about?
On the back of the royal commission into financial services, various recommendations were made in particular around regulation and enforcement. We have already seen a number of changes introduced to the ASIC enforcement process and the reforms released on 31 January 2020 are an expansion of that.
Under this proposed legislation, the two regulators, ASIC and APRA would perform their roles as co-regulators. APRA would continue in its day to day management of member-outcomes and developing a comprehensive framework of prudential standards and prudential practice guides. ASIC’s role under this proposal would expand to the administration with APRA of more civil and criminal penalty provisions that relate to consumer protection and market integrity.
Should I be concerned?
There are some concerns that the regulators have identified that industry may have in relation to the proposed reforms. As identified by APRA and ASIC in their joint letter to RSE licensees, the co-regulators recognise that there is likely to be some concern around the different roles and, I would suggest, blurring of the lines between the two regulators. It is important that clear lines of demarcation exist in relation to who is responsible for investigating particular conduct and that industry knows when they will be required to deal with one entity over another.
The co-regulators will both retain formal enforcement powers. It is a concern that APRA and ASIC have acknowledged in their letter may concern some and which they have said will be addressed by determining which agency has the best available tools to address the conduct. The way that is to be determined by APRA and ASIC is not clear from their current statements. However, it is important that there is clear guidance around when each regulator will use their enforcement powers. If both regulators were to use enforcement powers against a licensee, issues of double jeopardy and double punishment abound.
The reason that this concern arises is that under the proposed legislation, the relevant provisions of the SIS Act which will be co-regulated are:
- False representation about status as an RSE licensee
- Governing rules covenants for registerable superannuation entities and the consequences for breaching these covenants
- Duties on trustees to identify multiple superannuation accounts of members
- Offences for disqualified persons to be trustees, investment managers or custodians of superannuation entities.
- Civil and criminal consequences of contravening the civil penalty provisions
Ultimately, it is proposed that APRA and ASIC have a role in administering the obligations contained above (among others) including, for example, determining and enforcing compliance.
What can licensees do now?
At this stage, these reforms are proposed only. The draft legislation is currently being considered but it is noted that the regulators do jointly support these proposed reforms.
If you are contacted by one of the regulators the following matters should be borne in mind:
- Which regulator has made contact with you?
- What are the powers that regulator has?
- What is the issue that the regulator has identified?
- Are you aware of any intention to share information with another regulator?
- Are there issues of non-compliance being raised by the regulator?
- If there are issues of non-compliance, is the particular allegation one that could lead to a penalty whether civil or criminal?
In the event that you are concerned about your response to a regulator’s enquiries or wish to seek advice before or throughout an investigation, our specialists are able to assist and advise you.
Written by Emma Higgins
Restrictions on the use of cash
On 24 October 2019, the Commonwealth House of Representatives considered the Currency (Restrictions on the Use of Cash) Bill 2019.
During the course of the second reading speech, the assistant Treasurer the Hon Michael Sukkar said of the bill “The government is sending a strong message to the community, and to criminal syndicates, more importantly, that using cash to avoid obligations and potentially engage in criminal activity is a serious matter that requires a sufficient level of deterrence.”
Over the past several years, there have been a number of changes to anti-money laundering requirements for businesses including law firms and financial institutions. This particular bill, introduces offences for entities that make or accept cash payments of $10,000 or more. An entity will include, for the purposes of these offences, an entity as provided for by the Income Tax Assessment Act 1997:
- An individual
- A body corporate
- A body politic
- A partnership
- Any other unincorporated association or body or persons
- A trust
- A superannuation fund
- An approved deposit fund.
It is proposed that these offences would not apply to certain types of cash transactions pursuant to a set of rules.
Robertson O’Gorman Solicitors are leaders in the field and experts in assisting businesses, entities and individuals who are the subject of investigations into suspected money laundering activities. Our lawyers have specialist knowledge of the laws under which the agencies investigating this conduct, namely AUSTRAC, the AFP, the ATO and the Australian Criminal Intelligence Commission (ACIC) operate.
If you require advice in relation to your compliance with the complex anti-money laundering legislative regime, contact Robertson O’Gorman Solicitors.
ASIC's corporate plan for 2019-2023
The Australian Securities and Investments Commission has announced its corporate plan for 2019-2023. The corporate plan reflects the shift in ASIC’s focus towards litigation and prosecution. Directors, companies and corporate officers must be vigilant to protect their business in the face of investigations.
The corporate plan sets out a number of strategic initiatives that ASIC will continue to implement and reflects the commitment by ASIC to implement the Financial Services Royal Commission recommendations.
The plan reflects a policy change through the proposed ‘Why not litigate?’ operational discipline. ASIC’s enforcement work will now be guided by the ‘Why not litigate’ operational discipline. It says that this policy reflects community expectations that unlawful conduct should be punished. ASIC has stated their commitment to increasing and accelerating their enforcement work. This will likely result in a significant increase in the number of prosecutions being conducted by ASIC through the criminal court process.
The corporate plan also reflects the role of the newly created Office of Enforcement which commenced on 1 July 2019. The Office of Enforcement will be responsible for most important enforcement matters across the Commission and monitor and report on ASIC’s enforcement activities.
There remain important investigatory and decision making processes which ASIC undertake before a decision to litigate or a referral to the Commonwealth Director of Public Prosecutions to prosecute will be made. A shift in ASICs focus towards prosecuting and litigating corporate crime will mean that companies, directors and corporate officers who are contacted by ASIC should seek advice from experienced corporate crime lawyers at the earliest opportunity in order to ensure that the impact on their business is minimised.
To learn more about the ASIC prosecution process and powers, please read our ASIC page and download our factsheet on the process.
Health practitioners and health assessments
Registered health practitioners are subject to a number of regulatory schemes administered by AHPRA and the Office of the Health Ombudsman. It is important to understand the nature of the powers to investigate and assess health practitioners and students.
A National Board may require a registered health practitioner to undergo a health assessment if the Board reasonably believes, because of a notification or for any other reason, that the registered health practitioner may have an impairment. For the purposes of the Health Practitioner Regulation National Law Act 2009 (Qld) the word ‘impairment’ means the person has a physical or mental disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the person’s capacity to practice.
As part of an investigation, it may be that some information has been provided which requires expert advice through a health assessment. This assessment may be used by the National Board to take action in relation to the registered health practitioner’s registration including in relation to the conditions of that registration.
The National Agency will appoint an assessor chosen by the National Board to carry out the assessment. A requirement for a health practitioner to attend a health assessment must be made in writing. For the purpose of conducting the assessment, the person may be required by that notice to give stated information to the assessor within a stated reasonable time and in a stated reasonable way or attend before the assessor at the stated time and place. A health practitioner may be required to participate in a health assessment for the purpose of the Board investigating relevant information.
It is important for practitioners to be reminded of the right to appeal against any conditions imposed on the practitioner’s registration particularly as a result of these health assessments. In the case of an appeal to the Queensland Civil and Administrative Tribunal, there are a number of review powers that QCAT is able to exercise to reconsider and assess the appropriateness of the actions taken.
In a recent decision of the Queensland Court of Appeal, Nursing and Midwifery Board of Australia v HSK [2019] QCA 144 the Court considered whether or not QCAT had the power to compel, as part of that review process, a further health assessment to be undertaken. The Court endorsed the decision of QCAT, namely, that QCAT did not have the power to compel a registered practitioner to attend a further health assessment as part of a hearing of the review of a reviewable decision.
A registered health practitioner should obtain advice at the earliest opportunity in relation to any investigation by AHPRA or the Health Ombudsman.
If you require advice, contact one of our occupational discipline specialists to discuss how we can help you protect your livelihood and professional reputation.
ASIC Investigations – Stepping you through the process
If you and your business understand the ASIC investigation process, you will be able to better manage the investigation with as little disruption as possible to your business.
The Australian Securities & Investments Commission is Australia’s company regulator. ASIC is responsible for investigating company misconduct and enforcing company law.
A complaint is taken
ASIC may be informed of company misconduct from a number of different sources. These sources may include a member of the public reporting misconduct. This may occur when a client or customer of the business is dissatisfied with an aspect of the company’s handling of a particular matter.
There are a number of referrals made by other agencies and regulators who may report misconduct to ASIC. This is the case where there may be an occupational regulator whose ambit does not extend to addressing a particular part of the complaint which would be dealt with by ASIC.
There are also a number of reports which ASIC receives as required by law which may prompt an investigation. For example, through statutory reports from auditors, insolvency practitioners and licensees.
Scope is assessed
Once a complaint is taken, ASIC will assess whether or not the complaint falls within the scope of their regulatory responsibility. If it does not, it will be referred to another entity or regulator as appropriate.
In order to assess whether or not the complaint falls within the scope of ASIC’s regulatory powers the following is considered:
- The extent of the harm or loss;
- The benefits of pursuing the misconduct relative to the cost of public monies;
- The type and seriousness of the misconduct alleged and the strength of evidence supporting the complaint;
- Alternative courses of action other than formal investigation.
The seriousness of the alleged misconduct includes a particular impact on market integrity or the confidence of investors and financial consumers will guide the course of an investigation by ASIC. The regulator will look to the impact and consequences of the misconduct in order to assess whether or not it is worth pursuing.
The regulator will also consider the extent of the misconduct and whether or not it is a widespread concern or part of a growing trend.
Perhaps one of the most pressing considerations for businesses is to see whether or not ASIC would consider alternatives to formal investigation through other regulatory tools. Other regulatory tools may include engagement with stakeholders, surveillance, guidance, education and policy advice instead of enforcement action.
Evidence gathering methods
Once ASIC decides whether or not a formal investigation will be pursued, it has a number of information gathering tools which it is able to use. These tools include:
- Requiring the production of documents;
- Inspecting company documents;
- Requiring disclosure of information;
- Requiring company officers or employees to attend compulsory examinations;
- Compelling assistance with an investigation; and
- Applying for a search warrant.
The information gathering tools that ASIC have are powers that compel information and documentary evidence from individuals and the company. In relation to each of these powers, it is important that company officers and employees are aware of their rights and responsibilities in relation to that compliance. Before you provide any documents to ASIC or any other regulator, it is important that you obtain advice.
It may be that while ASIC makes a request from you for documents, there may be no basis upon which you might be compelled to provide that material at that time. If you are given a notice by ASIC which sets out a requirement to produce documents or information you may be compelled to produce documents or information. Before you comply with such a notice, you should seek advice from a lawyer. Documents may tend to incriminate you or the company in relation to certain aspects of your operations. This can have significant consequences for you and the company if not handled appropriately.
You will not be required to produce documents which are the subject of legal professional privilege. If you are unsure about how to comply with a notice given to you by ASIC, you should seek advice at your earliest opportunity.
Penalties for misconduct
If an alternative course of action is not available, ASIC will assess appropriate remedies and enforcement tools. These may include:
- Punitive criminal penalties
- Protective action
Punitive criminal penalties can include terms of imprisonment, community service orders, financial penalties under criminal law and the possibility of convictions. If you are facing a criminal proceeding for company misconduct, the penalties may include very serious consequences for you and the company.
Protective actions are actions which are designed to deter the conduct in a way that does not involve criminal penalties. These actions may include disqualification from managing operations or revocation, suspension or variation of licenses and public warning notices. Although not personally punitive in the way that a jail sentence would be, these protective actions can have devastating effects on companies and businesses.
Preventative action
There are a number of proactive governance, risk and compliance practice that you can engage in to ensure that your practice limits the risk associated with ASIC investigations or to avoid ASIC investigations altogether.
It is important that you review your current compliance, risk and governance documentation, policies and structure to assist you to develop more effective frameworks. You may undertake systematic file reviews or peer reviews in order to ensure compliance across your company. You may undertake a legal risk assessment or engage an external advisor to review your operations. Taking these steps may assist you to ensure that, in the event of ASIC receiving a complaint, you are able to demonstrate the proactive steps you have taken and minimize the risk to your overall operations.
How can Robertson O’Gorman Solicitors help you?
If you are concerned about a complaint of misconduct being made against you or your company, it is important that you immediately seek legal advice. Delays in obtaining advice can lead to significant consequences for your company and you as a company officer or employee.
At Robertson O’Gorman Solicitors we pride ourselves on protecting your interests in the face of an investigation by the regulator so that your business can get back on track.
Judge Robertson - See No More Evil
On 9 June 2018, the Courier Mail’s QWeekend published “See no more evil” an article chronicling the life and work of Judge John Robertson who recently retired from the District Court of Queensland.
Judge Robertson, one of Robertson O’Gorman’s namesakes and founding partner, was appointed to the District Court in 1994. He was the first solicitor appointed to the District Court.
Terry O’Gorman, who worked with Judge Robertson for many years before his appointments spoke to the Courier Mail for the article.
“What has mapped him out as a good judge, and he enjoys a very good reputation across the legal profession, is that he is balanced, thoughtful and not a soft touch but also that he’s given a lot of critical thought to the issues of sentencing.”
“If what you expect in a judge is someone who is fair, someone who tries to fashion sentences that meet the expectation of punishment and retribution, while at the same time giving the person being sentenced a change to be rehabilitated, well, he walks that tightrope exceedingly well.”
Judge Robertson has been appointed to the Queensland Sentencing Advisory Council as its chair allowing him to put his knowledge and experience in sentencing people to good use for the benefit of Queenslanders.
The full article has been extracted here.
MEDIA RELEASE - Melbourne African street crime Law and Order debate
4 January 2018
MEDIA RELEASE BY TERRY O’GORMAN PRESIDENT, AUSTRALIAN COUNCIL FOR CIVIL LIBERTIES
The almost daily intervention and involvement by Home Affairs Minister Peter Dutton in the Melbourne African street crime Law and Order debate lays bare the politics behind the creation of the Federal Government’s new Home Affairs Ministry.
Australian Civil Liberties Council President Terry O’Gorman said that Mr Dutton, an ex‑Queensland detective, is using his position as new Home Affairs Minister to politicise Victorian Law and Order issues to gain more Commonwealth power over State policing and to use the Home Affairs Ministry to interfere and gain advantage for Liberal Party politicians in the Victorian Law and Order debate ahead of the next Victorian State Election.
“When the new Home Affairs Ministry was announced jointly by Prime Minister Turnbull and then Immigration Minister Peter Dutton in mid‑2017, it was touted as an exercise to ‘break down the silos’ and maximise information sharing between Federal and State Law Enforcement and Intelligence Service agencies primarily to improve the fight against terrorism in Australia”, Mr O’Gorman said.
“Critics of the new super Ministry concerned about the concentration of so much power in the hands of Minister Dutton were assured by him and his Departmental Secretary Michael Pezzullo that operational policing decisions would remain independent when the new Home Affairs Ministry was created”, Mr O’Gorman said.
“Yet over the last two weeks we have seen first the Prime Minister support Victorian based Federal Liberal MPs attacks on the Victorian Police Force and the Victorian Government, and now we are seeing Minister Dutton taking his interference in Victorian State policing operations to a new level”, Mr O’Gorman said.
Mr O’Gorman said that today’s Melbourne Age reports that in a dramatic intervention in Victoria’s crime debate, Mr Dutton yesterday accused Victorian Premier Daniel Andrews of undermining the State’s Police and the Courts with Mr Dutton saying that political correctness had “taken hold” in Victoria.
“Whatever the real facts and solutions to the issue of African street crime in Melbourne are, they are absolutely no business of the Federal Home Affairs Minister Peter Dutton”, Mr O’Gorman said.
Mr O’Gorman said that Mr Dutton should butt out of State Law and Order issues.
“It is a misuse of his new role as Minister of Home Affairs to involve himself in local Victorian Law and Order politics”, Mr O’Gorman said.
Mr O’Gorman said that Mr Dutton’s adoption of Police Association tactics to insert himself into Victorian Law and Order issues justifies the concerns of those who not only opposed the creation of the new Home Affairs Super Ministry but also voiced opposition to the ex-Queensland detective heading it.
Mr O’Gorman can be contacted during business hours on 07 3034 0000
MEDIA RELEASE - Turnbull Government’s review of religious freedoms in Australia
3 January 2018
MEDIA RELEASE BY TERRY O’GORMAN PRESIDENT, AUSTRALIAN COUNCIL FOR CIVIL LIBERTIES
Today’s announcement that public submissions to the Turnbull Government’s review of religious freedoms in Australia will be kept secret has been attacked by the Australian Council for Civil Liberties.
Australian Civil Liberties Council President Terry O’Gorman said that a fundamentally important aspect of all law reform which has been followed fastidiously by the Australian Law Reform Commission for decades is that all law reform submissions should be made public with limited exceptions for submissions containing private information.
“The Religious Freedoms Enquiry is extremely important and has long term ramifications for freedom and civil liberties in Australia”, Mr O’Gorman said.
Mr O’Gorman said that the Prime Minister Department’s position that submissions to the Expert Panel will not be published online but where individuals provide consent submission extracts may be included in public materials, is a totally unacceptable situation.
“The same sex marriage debate saw claims, some of them extreme, from opponents of same sex marriage that the successful plebiscite would seriously hamper religious freedoms in Australia”, Mr O’Gorman said.
Mr O’Gorman said that he will this week be writing to the Secretary to the Prime Minister’s Department and to the Prime Minister urging that all submissions to the Religious Freedoms Enquiry be automatically published by the Expert Panel with the usual exception that if a particular submission contains obviously personal matters which unacceptably infringe on the privacy of a particular person, that part of the submission can be redacted.
Mr O’Gorman said that the Religious Freedoms Enquiry is the first major enquiry into religious freedom as a standalone issue in Australian politics for a decade, and the Enquiry’s recommendations will have ramifications for freedom of religion and civil liberties generally for decades to come.
“It is for this reason that not only should the submissions be quickly and automatically made public, but the deliberations of the Expert Panel itself should be conducted in public at least in part by way of public hearings”, Mr O’Gorman said.
Mr O’Gorman can be contacted during business hours on 07 3034 0000
YOU NEED TO WORRY ABOUT MORE THAN YOUR IPHONE
A recently dismissed murder case in Arkansas shows that concerns that law enforcement are unjustifiably accessing data from mobile phones is only a part of the problem.
In a murder case where James Bates was charged with first degree murder in the 2015 death of retired police officer Victor Collins after a night of drinking after Collins had been found floating face down in Bates’ hot tub the Prosecutor dropped the case after evidence that was stored in an Amazon Echo speaker emerged.
The Prosecutor in dropping the charge told the Judge “I can’t stand in front of a jury and ask them to convict someone beyond a reasonable doubt if I myself have a reasonable doubt”.
The Amazon Echo ended the murder case because someone present on the night of Collins’ death recalled hearing music streaming through the device that evening.
According to Amazon Echo works by constantly listening for the “wake word” – “Alexa” or “Amazon” and then records your voice and transfers it to a processor for analysis so that it can fulfil requests or answer questions. The recordings are streamed and stored remotely and can be reviewed or deleted over time according to Amazon.
On the night of the incident Bates had invited his friend, former police officer Collins aged 47 to his home and they watched football and drank beer and vodka and they then decided to get into Bates’ hot tub and Bates said he went to bed at 1.00 am and when he woke up the next morning Collins was floating face down in the tub.
Bates’ attorney argued that Collins’ death was a tragic accident possibly stemming from him having a blood alcohol content of .32.
OBSERVATION
This case highlights the extent to which electronic material in ever expanding fields and forums needs to be sought out by the defence. One wonders whether an Australian Crown Prosecutor would have taken the same course of action as the American Prosecutor in this case.
‘Criminal Process in Queensland’ Second Edition: Co-authored by Emma Higgins
Emma Higgins, Solicitor at Robertson O’Gorman has co-authored the Second Edition of ‘Criminal Process in Queensland’.
The book covers topics such as proving offences, policing and police accountability, bail, pleas and double jeopardy, the trial process, considerations underlying sentence and appeals.
In the foreword of the text, Margaret McMurdo Ac, President of the Queensland Court of Appeal 1998-2017 said:
‘Its publication is timely because of the many chances to Queensland criminal procedural law in recent years. Whilst written for undergraduate law students, it would be a valuable addition to the library of legal practitioners and judicial officers at all levels. I regret that such a useful and accessible publication on the criminal law was not available when I was a student’.
All of the royalties made from the sale of this book will be donated to the Caxton Legal Centre, Queensland’s oldest and largest pro bono legal centre.
Key changes to Queensland's domestic violence laws
Recently introduced legislation heralds many new changes and protections in regards to domestic violence in Queensland.
Key features include an increased maximum penalty for repeated breaches of domestic violence orders. For first time breaches the maximum penalty is now three years with the possibility of five years jail for subsequent breaches.
Domestic violence victims will now automatically be special witnesses under the Evidence Act. This means witnesses gain increased access to orders and protections of the court for example the ability to give evidence via video tape and from a separate room.
Courts now also have the discretion to declare previous crimes on an offender’s record as domestic violence crimes. This retrospective approach was opposed by many legal groups but was passed nevertheless. The goal of this provision is said to allow for ‘signposting’ of criminal records so authorities and courts can identify patterns of behaviour or an escalation in violence.
An independent Family and Domestic Violence Death and Advisory Review Board will be established to identify systemic issues.
Robertson O'Gorman is experienced in Domestic Violence matters.
You may be suffering from domestic violence, in which case our solicitors will help you through the process of applying for a domestic violence order to protect yourself and your family. We will represent and support you at all stages of this process.
Alternatively, your life may be restricted by an order made against you. While being the respondent to an order is not a criminal offence, there can be very serious repercussions to simply consenting to an order which is made on unreasonable grounds. As such, you should seek legal advice when required to respond to an application for a domestic violence order.
Whether you are looking to apply for a domestic violence order, or seeking advice in responding to an order, we are here to help. Our solicitors are available in emergencies 24/7 on 3034 0000. If the matter is not an emergency, please call during business hours.
Update: Changes to Queensland Domestic and Family Violence Laws
On 16 August 2016 the Domestic and Family Violence Protection and Other Legislation Amendment Bill 2016 was presented to the Queensland Parliament. The Bill incorporates many of the recommendations made by the Special Taskforce on Domestic and Family Violence in Queensland in its report, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland.
The objectives of the Bill are to:
- provide victims of domestic and family violence with access to earlier and more tailored protection
- ensure victim safety is at the forefront of the justice response to domestic and family violence
- require police to consider how immediate and effective proection can be provided to victims pending a court’s consideration of an application for a domestic violence order (DVO)
- provide for the automatic mutual recognition of DVOs made in other Australian jurisdictions through the National Domestic Violence Order Scheme (NDVOS), and
- hold perpetrators of violence more accountable and encourage them to change their behaviour
A long list of actions and amendments addressing those objectives is included in the Explanatory Notes. Below is a short summary of the main changes this Bill will make if it is passed through Parliament.
Police Protection Notices (PPNs)
PPNs are preliminary orders that police officers can issue while in the presence of the respondent. They generally involve standard good behaviour conditions and a 24-hour ‘cool-down’ provision that prohibits the respondent from entering the family home or contacting the aggrieved.
If passed, this Bill gives police the power to make these orders while not in the presence of the respondent. Police would also have the power to include additional conditions in PPNs such as no-contact conditions and ouster conditions. A number of these specific conditions must be imposed on respondents initially taken into custody but subsequently released before any Domestic Violence Order is made.
The Bill also allows police to broaden the scope of the order by naming children and associates of the aggrieved on the PPN.
Definition of domestic violence
Currently, the definition of domestic violence was somewhat confusing in that it may have been interpreted such that DVOs could only be ordered following an act of physical violence.
The Bill makes it clear that DVOs can be ordered by a court on the basis that victims have been threatened or have a fear that the respondent will commit domestic violence.
DVO conditions
Courts have the discretion to impose specific conditions when making a Domestic Violence Order. The Bill makes it compulsory for courts to consider whether these additional, more specific conditions should be included in the order.
Duration of protection orders
Protections Orders currently last for up to two years, unless courts are satisfied there are ‘special reasons’ for imposing a longer duration.
The Bill broadens the court’s discretion in relation to the duration of protection orders. The Bill also provides that, unless otherwise specified, Protection Orders will now remain in force for five years from when they are made. Furthermore, there must be express reasons given for granting an order that lasts less than five years.
Family law matters
Courts currently have the discretion to consider existing family law orders when making DVOs. The legislation also grants the power for Magistrates to amend those orders in light of the proposed conditions in a DVO. The Taskforce found that because Magistrates are often hesitant to alter an order under the Family Law Act 1975 (Cth), these orders are often inconsistent with the issued DVO.
The Bill alters the previous position by now requiring a court to consider any existing family law order they are aware of and to always consider whether to exercise their powers to resolve any inconsistency between the order and the proposed DVO.
Voluntary intervention orders
Courts may make a voluntary intervention order when respondents agree to attend an approved intervention program or counselling. Compliance with these is often considered when making a protection order.
To avoid ‘bargaining’ approaches taken by some courts, the Bill amends the effect VIOs have on subsequent stages in proceedings. In particular, the Bill now prevents courts from refusing to make a protection order or vary a DVO solely on the basis that a respondent previously complied with a VIO. The Bill also requires courts to specifically consider the non-compliance with a VIO when making a protection order or when varying a DVO. Further to that, voluntary intervention orders have been renamed to intervention orders to make it clear to respondents that they must be complied with in the same way as any other court order.
Information sharing
The Bill introduces a framework that enables certain government and non-government service providers to share victim and perpetrator information in certain circumstances. This is to be introduced as a replacement to the existing complicated overlay of legislative provisions regarding information sharing.
Although the Bill prefers consent in the sharing of information, consent is not required. Instead, the safety of victims and their families is considered paramount and as such information may be shared for the purposes of assessing risk and managing cases where there is a serious threat to a person’s life, health or safety because of domestic violence.
Information may be shared for the following reasons:
- To be used for assessing threat of domestic violence
- To be used to respond to a serious domestic violence threat
- To be used to refer a person to a specialist DFV service
Information must be used only in the following ways:
- To assess whether there is a serious threat to a person’s life, health or safety because of domestic violence
- To lessen or prevent a serious threat to a person’s life, health or safety
The Bill includes specific safeguards to prevent to inappropriate sharing of information, including the requirement for the chief executive of the Department of Communities, Child Safety and Disability Services to develop guidelines. This must be done in consultation with the Privacy Commissioner. The Bill also includes a penalty of up to two years imprisonment or 100 penalty units for the inappropriate use or disclosure of information.
The Bill provides that the provisions will operate in conjunction with the Information Privacy Act 2009. As such, existing grounds to share information will remain valid.
NDVOS
For a DVO made anywhere in Australia or in New Zealand to have effect in Queensland, an aggrieved person must manually register their order with a Queensland Magistrates Court.
The Bill alters this requirement by putting in place the legal framework for a cross-jurisdictional system whereby victims will be protected regardless of the state they are in at one particular time. The Bill removes the manual registration process and instead introduces an automatic register of orders across jurisdictions. Naturally, extra-jurisdictional orders will be given the same legal effect as an order made in Queensland, including the recognition of interstate weapon license disqualifications.
Increased penalties
The Bill increases the maximum penalty for breaching a PPN or a release condition from two years imprisonment or 60 penalty units, to three years imprisonment or 120 penalty units.
The Bill itself is over one hundred pages long and contains several additional changes to various pieces of legislation regarding domestic violence.
You can find copies of the documents at the following links:
- Domestic and Family Violence Protection and Other Legislation Amendment Bill 2016
- Explanatory Notes
- Hansard
The solicitors at Robertson O’Gorman are highly experienced with matters involving domestic violence. Call us today for 24-hour comprehensive legal advice on 3034 0000.
What does the Mental Health Act 2016 mean for Queenslanders?
The Palaszczuk Government passed the Mental Health Act 2016 through parliament on 18 February 2016 but it is still yet to commence.
The Act generally deals with two broad issues. First, maintaining and improving the health and wellbeing of persons who do not have capacity to consent to treatment. Second, the ‘forensic’ purposes of the Act where persons are charged with committing an unlawful act. Much of the terminology under the previous Act has been replaced in an attempt to revise and update the language used. The new Act, in many ways, simplifies and streamlines the provisions of the previous Act.
The Act amends the names of some of the orders that can be made by the Mental Health Review Tribunal. These include the following.
An ‘examination authority’ replaces a ‘justice’s examination order’. The substance of this type of order is essentially unchanged.
An ‘emergency examination authority’ replaces an ‘emergency examination order’. The substance of this type of order is essentially unchanged. However, the new Act grants the option to extend detention in an authorised mental health service or a public sector health service facility for a further 6 hours if required.
The Act introduces a new type of order called a ‘treatment support order’. These orders are made in an effort to protect the safety of the community by imposing various conditions upon the person such as prohibiting contact with an alleged victim. Treatment support orders are less intensive than the other orders available to the Court and often will not involve stringent oversight.
Under the new Act, the Chief Psychiatrist is required to be notified if a relevant person is not transferred to an authorised mental health service within 72 hours. This allows the Chief Psychiatrist to take timely action and ensure the patient receives adequate treatment.
The Act limits the jurisdiction of the Mental Health Court to ‘serious matters’, which are indictable offences, other than offences that must be heard summarily. The Act removes the requirement for a psychiatrist’s report to be prepared for an involuntary patient for any offence. Psychiatric reports will only be prepared if a patient, subject to an Order, is charged with a ‘serious offence’. A ‘serious offence’ is an indictable offence, other than an offence that must be heard by a Magistrate.
The Act amends the definition of ‘unsound mind’ to mean a state of mind to which the provisions of the Criminal Code regarding insanity and intoxication apply. Unsound mind does not, however, include a state of mind resulting from self-induced intoxication.
The Act allows a Magistrate to discharge a person charged with an offence if the Court is reasonably satisfied that the person was of unsound mind when the offence was allegedly committed or is unfit for trial. Magistrates may also order that a person before the court be examined by an authorised doctor to decide if a treatment authority should be made for the person or to make recommendations about the person’s treatment and care.
The Act lists a number of standards that must be met regarding the treatment and care of patients. These update the limited provisions in the previous Act. For example, the Chief Psychiatrist is no longer permitted to impose a condition for a patient to wear a GPS tracking device. Included in these standards are a number of complex criteria that must be assessed when making decisions regarding various treatment options.
An entire chapter of the Act is devoted to enumerating the rights of patients and others. This includes the right to communicate with other persons by phone or electronic device except in exceptional circumstances. Higher standards and requirements regarding involvement of support persons and the communication of explanations and advice by doctors are imposed by the Act.
You can read more about the new Act here.
Robertson O’Gorman is experienced with mental health matters. Call us for advice today on 3034 0000.
Traffic offences and mobile phones
Since September 2015 new laws have been in place targetting those who use their mobile phones on the road.
It is an offence for a driver to “use” a mobile phone they are holding in their hands while their vehicle is moving or stationary but not parked. The term “Use” can include holding the phone to your ear, sending or reading a text message, turning on or off a phone or “operating any other function of the phone”.
You can use a blue tooth or hands free device except if you are under 25 and on your L or P plates.
This offence will lead to a standard fine of $353 as well as 3 demerit poits.
The new laws sought to increase the penalty for repeat offenders. The new regulation imposes 3 additional demerit points (for a total of 6 points) on a driver caught for mobile phone offences within a year of a previous offence under the same sections.
Criminal Process - Brisbane Magistrates Court
The way your matter will progress through the Magistrates Court depends on the seriousness of your offence and any pleas entered by you. The following steps outline the basic process for a matter in the Brisbane Magistrates Court.
First mention date
This is your first date in court. You cannot miss this court date. The date will appear, for example, on the Notice to Appear you may have been issued.
If in Brisbane then this mention will occur in Court 1 which is in the Roma St Precinct separate from the other Magistrates Courts on George St.
After a mention in Court 1 you may be granted bail at your own undertaking. It is important to sign these papers at the registry before leaving the building.
Summary Offences:
If it is a summary offence then your options are;
- Seek an adjournment so you can consider your plea further
- Plead guilty which will allow the magistrate to then decide a penalty or set a date for a sentence hearing depending on the case
- Plead not guilty which will mean a date for a summary trial is set.
Indictable Offences:
If your matters is an indictable one then you can;
- ask the magistrate to adjourn the case and set a new date if you need more time to consider your plea
- Plead guilty to a minor indictable offence— the magistrate may decide the penalty at the first mention or set a date for a sentencing hearing.
- Plead guilty to other indictable offences—the magistrate will commit you for sentence to either the District of Supreme Court depending on the charge.
- Plead not guilty to a minor indictable offence—the magistrate will set the matter for trial in a Magistrates Court.
- Plead not guilty to a other indictable offences—the magistrate will set a committal hearing date to determine if there’s enough evidence to send you to trial in either the District of Supreme Court.
Further mentions
The magistrate may set other 'mentions' before a summary trial to confirm that each party has enough evidence and organised witnesses, and that you’ve finalised your plea.
Depending on the charge your matter will either remain in the summary call over stream or the committall call over stream. Adjournments may be sought to allows for briefs of evidence to be disclosed or your laywers to take instructions from you.
Bail & Custody
If the proceeding is not finalised at the first mention date you may be held in prison or released on bail until it is finalised, or bail is revoked.
You may be held in prison until your trial if the magistrate thinks you’re a risk of not returning to the court when required or a danger to the community or yourself.
Court processes and rules can be confusing - at Robertson O'Gorman we can guide you through your various court dates and responsbilities. Call us on 3034 0000 if you or someone you know needs legal advice.
Being charged with an offence in QLD
It is important to remember that there are two types of offences in QLD;
1. Simple offences (or summary offences). Examples include disorderly behaviour, traffic offences and minor criminal offences.
2. Crimes and misdemeanours (or indictable offences) including murder, rape, robbery, assault, and break and enter.
There are also numerous ways or methods that people can be charged with an offence;
- Arrest: where you arrested and taken to the watchouse to be formally charged;
- Complaint / Summons: this is a charge in writing which has been sworn on oath before a JP and served on you. This will require you to appear in the local Magistrates Court but you need not attend the police station.
- Notice to Appear: this is a form that provides you with a description of the offence and can be issued on the spot at any time. This will also have a date for your first appearance.
New DV laws - the next step
Late last year we looked at the introduction of various DV related laws and amendments under the Criminal Law (Domestic Violence) Amendment Act 2015. This legislation heralded changes such as the ability of courts to 'signpost' previous offences of domestic violence on an offender's criminal history.
Another bill is currently being considered by parliament and the relevant committee - the Criminal Law (Domestic Violence) Amendment Bill (No. 2) 2015.
This second bill will seek to amend the Criminal Code, the Penalties and Sentences Act 1992 (PSA) and the Youth Justice Act 1992.
Of particular note is a new offence inserted into the Criminal Code. Section 315A will make choking, suffocation or strangulation in a domestic setting a crime. This charge would carry a maximum penalty of 7 years.
The bill also seeks to make domestic violence an aggravating factor for sentencing considerations under the PSA.
The Legal Affairs and Community Safety Committee will report to the House on this second bill by 7 March 2016
If you need any advice regarding domestic violence matters get in touch with Robertson O'Gorman on 3034 000.
One Punch Laws
In the wake of recent events the topic of one punch laws is back in the spotlight. It is therefore timely to remember the 2014 changes that were introduced by the Safe Night Out Legislation Amendment Bill.
The bill, which amended 12 pieces of Queensland legislation, intended to reduce alcohol and drug related violence in Queensland’s nightlife. In particular the government introduced a new specific one punch can kill offence namely “Unlawful Striking Causing Death”.
This offence is separate to murder or manslaughter and prevents a person from relying on the accident defence. The explanatory notes which accompany the bill indicate that the new offence prevents a person from attempting to argue that “although the strike was deliberate and wilful, the death of the victim was an ‘accident’.”
The maximum penalty for this offence is life imprisonment. If a term of imprisonment is imposed for this offence, the Court must make an order that the defendant not be released from prison until they have served either 15 years in prison or 80 percent of the term of imprisonment for the offence (whichever is the lesser amount of time). In particular this should be contrasted with the offence of manslaughter, which leaves the decision of sentencing to the court in each particular case.
In all cases involving allegations of assault or street violence it is vital to obtain independent legal advice very quickly.
If you or someone you know has had the unfortunate experience of being charged after a night out our solicitors would be happy to give them advice in relation to how best to resolve any offences.
Call us on 3034 0000
Basha Hearing
There’s been a longstanding procedure in respect of Queensland District and Supreme Court trials for the defence to cross-examine particular witnesses before trial starts. This is known as a Basha hearing, named after a New South Wales case.
In early December 2015 the use of the Basha hearing was approved by a Supreme Court judge to allow the Prosecution to ask questions of a witness who is unwilling to give evidence for the Prosecution.
In that case the person concerned provided a record of interview to Police but refused to provide a statement and his lawyer indicated to the prosecution that he would not give evidence for the prosecution on a trial against his co-accused.
The witness when called on the Basha hearing refused to answer questions and he was charged with contempt.
The witness’ lawyer argued that the prosecution should not be able to use a Basha hearing to ascertain what evidence the witness would give at the trial. However Justice Mullins found that there was no impediment to the prosecution using the Basha hearing process for the purpose of ascertaining whether or not he would refuse to give evidence if called at the trial.
Justice Mullins found that “the criminal justice system, however, has to be preserved in the sense that it depends on witnesses who have relevant knowledge of criminal offending giving evidence when called to do so”.
In respect of this witness Justice Mullins sentenced him to six months’ imprisonment for contempt for his refusal to answer questions on the Basha hearing.
Alcohol Interlock Devices
The Queensland Government introduced the Alcohol Ignition Interlock Program in 2010.
Participation in the program may be required after a conviction for the following offences:
- driving under the influence of alcohol
- failure to give a specimen of breath or blood for analysis
- having two or more drink driving offences (of any kind) within a 5 year period (on or after 6 August 2010)
- dangerous driving while affected by alcohol, or
- any offence involving a breach of the alcohol ignition interlock program requirements.
If convicted, you will be required to install an ignition interlock device which requires you to provide a breath sample of 0.00% blood alcohol concentration to start your car. These devices cannot be tampered with and there are serious consequences for failing to adhere to the program’s rules.
The program lasts for 2 years and you cannot drive without a reading of 0.00% BAC for that period. Other people can drive your car but they must also have a reading of zero blood alcohol to start the car.
You can apply to leave the program at the end of the first 12 months if you have followed the rules during that time and meet the following conditions:
- you must hold a valid Queensland driver’s licence with an ‘I’ (for interlock condition) on it;
- you must have an approved interlock device fitted to your vehicle; and
- your vehicle details must be provided to an interlock supplier.
The maximum 2 year timeframe can be extended if you do not follow the rules during this time.
You will need to pay for the rental, installation and servicing of your interlock device, though financial assistance is sometimes available. Although the price may vary, it generally costs around $1800 to have the device installed and removed and to rent it for a year. This cost will increase significantly if you have to complete more than 12 months on the program.
In limited circumstances, you may be eligible to apply for an exemption from the program. Usually, this is for living in remote areas, or for medical or other extenuating circumstances.
If you are required to install an alcohol interlock device and wish to seek legal advice about a potential application for an exemption, please contact one of our solicitors.
If you are charged with a drink driving offence, subject to certain qualifiecations, you may be eligible for a work licence.
If you plead guilty to a drink driving offence, your license will be disqualified and engaging experienced legal representation would ensure the best chance of obtaining the lowest possible disqualification period.
Robertson O’Gorman solicitors are experienced solicitors in drink driving law and will work tirelessly to achieve the best outcome for you.
Are 'legal highs' ever legal?
The use and sale of synthetic drugs has increased rapidly in recent years. This has been met by changes to Queensland legislation to combat what are often referred to as ‘legal highs.’
In Queensland the Drugs Misuse Regulation 1987 lists in Schedules 1 and 2 those drugs deemed to be ‘dangerous drugs.’ The Drugs Misuse Act 1986 then makes it an offence to possess, supply and traffick these drugs which include substances such as heroin and methamphetamines. Different drugs and different quantities will lead to different charges and potential outcomes in court.
However, what is crucial to remember is that section 4 of the Act defines a ‘dangerous drug’ as including a substance that has a substantially similar chemical structure or pharmacological effect. Therefore in Queensland the possession, sale, supply and trafficking of synthetic drugs is illegal even if their chemical structure is changed.
Of particular significance is the extension of the definition to include those substances which are intended to have a substantially similar effect. This broad definition now captures any substance that was intended to mimic the effect of another illicit drug – even if the substance itself is not a drug per se and is chemically distinct.
If you need legal advice about drug charges call us on 3034 000.
Schoolies Week: Your Rights
With this week marking 2015’s Schoolies Celebrations it is important school leavers and their families keep in mind common legal issues that arise from the events. The first thing to remember is people who are 17 and older are treated as adults under Queensland’s criminal law.
Reminders:
- If approached by police you do need to give your name, your address and, if under 17, your age. Aside from these details you have a right to remain silent and are not required to answer police questions.
- Unless you have been specifically arrested you do not need to accompany the police to the station.
- You should never participate in an interview with police until you have discussed your situation with a lawyer.
- Always ask to call your family and or lawyer if arrested.
- Obstructing police can lead to
Alcohol
Police and can issue on-the-spot fines for:
- drinking in a public place (18 years and over)
- underage drinking or possession of liquor in a public place, even if you're holding a drink for your friend who is over 18
- being under 18 and found on licensed premises
- being under 18 and found drinking or just holding a drink for a friend on licensed premises
If you’re 18 at schoolies and you supply alcohol to your underage friends you could face a fine of $9424.
Drugs
Possessing or supplying illegal drugs can lead to severe penalties. Supplying others with illegal drugs is a serious criminal offence.
IDs
Using someone else’s ID card of creating a fake card is illegal. Lending someone your own ID can also lead to a fine.
Other common situations;
In the schoolies environment it is important to also remember that assault and sexual assault can lead to severe criminal penalties. Public nuisance, wilful exposure, trespassing, drink driving are other offences to be aware of.
If you need legal advice please contact us on our 24 hour line: 30340000
What to do in a traffic crash?
First and foremost if you or someone else is trapped or injured call 000 straight away.
Always stop if you are involved in a crash however minor to assess the situation and do not just continue driving.
Other instances where you should call 000 include where there is a hazardous environment or threat to public safety exists (e.g. fuel spill, power lines down).
If no one is injured but police are needed to direct traffic or manage any hazards report the instance to Policelink on 131 444. This number should also be called where;
- There is suspected involvement of drugs and/or alcohol;
- A driver fails or has failed or is refusing to provide required details; or
- A driver with an impairment or disability requires police assistance.
If the crash is minor and no one is injured but your car needs towing you still need to report the crash within 24 hours via the above Policelink number. If no vehicles need to be towed and no one is injured you can simply choose to exchange details at the crash site.
Remaining at the Scene
Pursuant to section 92 of the Transport Operations (Road Use Management) Act Queensland, when there has been injuries, you will be required to
(i) remain at or near the scene of the incident and immediately render such assistance as the driver can to the injured person; and
(ii) make reasonable endeavours to obtain such medical and other aid as may reasonably be
Failure to do so can result in criminal liability and time in prison. Always call 000.
Exchanging Information
If you are involved in a crash you must provide your 'required particulars' to any person/s involved in the crash. This will include giving the following information to other drivers, injured parties and owners of damaged property;
- your name and address,
- the name and address of the owner of the vehicle (if you are not the owner),
- the vehicle registration number
If you need legal advice about a recent traffic accident or offence call us on our 24 hour line: 3034 0000
QTOP Program
If you have been charged with any driving offence such as drink or drug driving it is important to not only seek legal advice but also also consider avenues for rehabilitation.
The Queensland Traffic Offenders Program (QTOP) is a program many of our previous clients have used and received great benefit from. The program is designed to increase particpants' understanding of social commitments in general and of traffic laws in particular and overs all traffic offences.
The program covers material from road rules, hazards and injury prevention to substance or abuse and fatigue.
It is good to keep in mind that a court may acknowlegde your particpation in a program like QTOP as a positive change in your attitude and behaviour.
QTOP can be contacted on 0401 344 982 or you can book online at qtop.com.au.
If you need legal advice about a traffic offence, call Robertson O'Gorman's 24 hour line on 3034 000.
UQ Criminal Law Prize
Dan Rogers presented The Robertson O’Gorman Prize in Criminal Law at the University of Queensland’s Law Awards Ceremony on Wednesday 20 May 2015 at Custom’s House.
The event is held each year to recognise and congratulate students who have excelled in individual subjects.
Robertson O’Gorman sponsors two prizes for students that receive the highest marks in Criminal Law and Procedure A and B.
Can police impound my vehicle?
Under the Police Powers and Responsibilities Act, a police officer may impound your car if you commit certain offences. In this area of the law, there are two types of offences, each with different consequences.
The first type of offences includes:
- Evading police, and,
- If committed during a speed trial, a race between vehicles or a burn out:
- The dangerous operation of a motor vehicle
- Careless driving
- Organising, promoting or taking part in racing or speed trials
- Wilfully starting or driving a motor vehicle in a way that makes unnecessary noise or smoke
The police have the power to impound your car for ninety days if you have been charged with having committed one of these offences. If you are charged with another of these offences within five years, and the original charge has not yet been decided or you were found guilty of that original charge, the police may impound your car until proceedings relating to the second charge have been finalised. If you are found guilty of that second offence, your car will be taken from you permanently.
The second type of offences includes:
- Driving a vehicle while it is uninsured and unregistered
- Unlicensed driving
- High-range drink driving – 0.15% and over
- Exceeding the speed limit by more than 40km/h
- Driving an illegally modified vehicle
- Failure to supply a specimen of breath or blood
- Driving while under a 24 hour suspension
If you have been charged with one of these offences, the police may not impound your car. However, if you are charged with a second offence within five years, and the original charge has not been decided or you were found guilty of that original charge, the police may impound your car for seven days. Similarly, if you are charged with a third offence, the police may impound your car for ninety days. If you are found guilty of a fourth offence, your car will be taken from you permanently.
If your car has been impounded by the police and you need legal advice, call Robertson O’Gorman Solicitors on 3034 0000.
Can I get my vehicle back early?
You may be able to apply for an early release of an impounded vehicle in a number of circumstances. The application for early release is made in writing to the Commissioner of Police, who then must make a decision within five business days of receiving it.
1. Where there is evidence of severe financial or physical hardship:
You may be granted an application where it can be shown that to refuse the application would cause severe financial hardship to you or your family, for example by depriving you of your means to earn a living.
2. The offence happened without the owner’s consent:
Your car may be released from impoundment if you can show that the offence occurred without your consent, for example if someone else used your car for purposes you did not consent to.
3. The owner has since rectified the Type 2 offence (unlicensed and unregistered) by licensing and registering their vehicle:
If your car was impounded because you were caught driving unlicensed and unregistered, and you have since licensed and registered the car, you may apply to the commissioner to release your car early.
4. The grounds for impoundment or immobilisation were unreasonable:
If there were no reasonable grounds for the police to impound your car you may apply to the commissioner for early release of your car.
The commissioner may or may not agree to release your vehicle. If he does, it may come with conditions, for example that you only use the vehicle for work purposes. If you disagree with the commissioner’s decision, you may appeal it in the Magistrates Court.
We at Robertson O’Gorman are able to assist you with legal advice if your car has been impounded, including the preparation of an application for early release from impoundment.
Contravention of Domestic Violence Order
Protection Orders made under the Domestic and Family Violence Protection Act 2012 must be complied with by the Respondent for the entire period of the Order.
An Order takes effect from the day that it is made (or served on the Respondent by police if it is made ex-parte). An Order ends on a date as stated by the Court, usually 2 years or more after the date that the Order is made.
It is an offence to contravene a condition of a Domestic Violence Order (section 177 of the Act). All contravention charges are prosecuted and finalised in the criminal jurisdiction of the Court. A conviction in relation to a contravention offence is recorded on a defendant’s Criminal History: Court Outcomes Sheet.
If convicted of a contravention, the maximum penalty that can be imposed on a defendant is a fine of $6,600 or 2 years imprisonment. In circumstances where a defendant has, in the last 5 years prior, been convicted of an earlier contravention offence, the maximum penalty increases to a fine of $13,200 or 3 years imprisonment.
The Magistrates Court will have regard to imposing a penalty on a defendant which could include any of the following:-
- No further punishment
- Good Behaviour Bond
- Fine
- Probation
- Community Service
- Intensive Correction Order
- Imprisonment (partly or wholly suspended)
- Imprisonment with parole (immediate release or parole eligibility)
In circumstances where defendants commit ongoing offences of a contravention of a Domestic and Family Violence Order, the penalty imposed is likely to increase.
Many contravention offences occur in circumstances where there is an underlying cause. Often defendants commit offences when they are under the influence of alcohol or drugs. Some offences are committed in circumstances where a defendant has become depressed, anxious or stressed/upset/ agitated about an issue and act impulsively.
A new diversion program has been introduced by the Queensland Police Service who have partnered with Queensland University of Technology (QUT). Suitable defendants can be referred to the QUT Psychology Clinic’s ‘Positive Change’ program. The program is designed to identify underlying causes of domestic violence behaviour and provide strategies to defendant’s to deal with the underlying causes or avoid further offending behaviour in the future.
In order to participate in the diversion program a defendant must plead guilty to the alleged offence.
If you are charged with a contravention offence, call Robertson O’Gorman Solicitors in order to obtain legal advice about the charge and whether you are suitable for referral program.
One Punch Legislation
On 6 June 2014, Queensland Premier Campbell Newman introduced the Safe Night Out Legislation Amendment Bill 2014. This Bill amends 12 pieces of Queensland legislation with the intention of reducing alcohol and drug related violence in Queensland’s nightlife.
This blog focuses on the insertion of the new offence to provide for the one punch can kill scenario.
The Bill inserts a new offence into the Queensland Criminal Code, “Unlawful Striking Causing Death”. This offence is separate to murder or manslaughter and prevents a person from relying on the accident defence.
Presently the law for accident requires an accused person to raise evidence of the accident but once this is done the prosecutor must disprove beyond reasonable doubt that the accused person intended that the event should occur or foresaw that event as a possible outcome or the Crown has to establish that an ordinary person in the position of the accused person would reasonably have foreseen the event as a possible outcome.
A jury when considering the event and making a determination should exclude possibilities that are no more than remote or speculative. If the defence is raised in a trial, the jury presently will be told that the evidence raises for their consideration the possibility that neither the defendant nor an ordinary person could reasonably have foreseen that the death would occur from the punch or strike delivered by the defendant.
The new offence of “Unlawful Striking Causing Death” specifically removes an accused person of relying on the accident defence. The explanatory notes which accompany the bill indicate that the new offence prevents a person from attempting to argue that “although the strike was deliberate and wilful, the death of the victim as an ‘accident’.”
The offence provides as defence that a person will not be criminally responsible for unlawful striking causing death if the act is done as part of a socially acceptable function or activity (defined as including a sporting event) and reasonable in the circumstances.
The maximum penalty for this offence is life imprisonment. Unless the Court orders that the term of imprisonment be served as an intensive correction order or as a suspended sentence, the minimum amount of time that a person will spend in custody is either 80% of the person’s term of imprisonment or 15 years whichever is the lesser.
This Amendment Bill has been referred to the Legal Affairs committee for submissions to be made and will come back before parliament later this year.
In all cases involving allegations of assault or street violence it is vital to obtain independent legal advice very quickly. For example important witnesses or surveillance footage may be lost if a person does not contact a reputable criminal defence firm at an early stage. This can have major repercussions for mounting a defence to any charge.
If you or someone you know has had the unfortunate experience of being charged after a night out our solicitors would be happy to give them advice in relation to how best to resolve any offences.
Drug Trafficking
There seems to be an ever growing number of young people in our community being charged with the offence of trafficking in drugs. The most concerning thing from a lawyer’s perspective about the trend is that most young defendants do not consider their offending behaviour to be “trafficking” and are often shocked when they find themselves facing such a serious charge.
What is “trafficking”? Surely it involves truckloads of money, huge quantities of drugs, weapons and the Mexican Cartel? Whilst trafficking can involve that level of offending it also encapsulates a much lower level of trade in drugs.
The offence of “trafficking” is set out in section 5 of the Drugs Misuse Act. The offence is as follows: “A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.”
It involves ‘trading in’ or ‘dealing with’ drugs. If a person provides a quantity of drug to another person for some level of consideration (usually money), they are trafficking, whatever the point in the chain of distribution.
Only one sale is technically required for an offence of trafficking but in most cases there is some repetition of the selling of drugs over a period of time.
It must be shown that the person “trafficking” had knowingly engaged in the movement of the drug from its source to the person who uses the drug in some sort of commercial operation.
The relevant consideration in most cases is whether the defendants activities amounted to “carrying on the business” of trafficking in whatever the drug might be, for example, cannabis, ecstasy, heroin and so on.
Think about a business and what is involved in the running of that business. It usually involves a number of activities all undertaken by various employees. In our modern age the running of a business can occur by text message, email, facebook, telephone, in person and so on. Below are some examples of text message chat behaviour which may be considered consistent with carrying on the business of selling drugs:
- Advertising “I can mow your grass for 50”
- Promoting “Should b able to help you out later if ur keen”
- Setting up lines of supply “I need more can I come see you Monday?”
- Negotiating prices “100 or 200?”
- Organising terms of supply “I’ll need it on a tick cause I’m broke”
- Receiving orders “You got any green”
- Arranging supply “Yeah man, come over this arvo”
In terms of penalty there are numerous considerations as to what outcome you could expect in Court if you are convicted of trafficking. Ultimately the maximum penalty is 25 years imprisonment for trafficking in a Schedule 1 drug and 20 years imprisonment for trafficking in a Schedule 2 drug.
There have recently been amendments to the legislation which call for defendants sentenced to a period of imprisonment to now be required to serve 80% of their period of imprisonment in prison before being eligible for parole.
See our Blog “Tragedy Looming” for more information on those laws.
Police Investigations: Your Rights
There are a number of tactics implemented by the police during investigations which appear run of the mill to the person targeted.
It is important that people understand their rights when engaging with the police.
Frequently people hold a number of misconceptions about their obligation to be responsive during police enquiries of them. Your right to silence means exactly that – you do not have to answer any questions.
There are in fact very limited scenarios where a member of the public must answer questions posed by the police.
In many, but certainly not all circumstances, if you are directed to do so by a police officer you must provide your full name and current residential address. If you are uncertain ask the police if you are obliged to give your name and address and ask that they quote the relevant law. If police say you are obliged then it is best to give them the answers to only those questions. You are able to record your interaction with the police on a recording device, for example on your iPhone.
If your motor vehicle has been involved in an incident the scope of questioning to which you must respond may be widened. You should seek advice from a solicitor before you answer any questions or agree to meet with the police.
We have attended with clients during police raids of their homes and businesses. The shock of finding yourself in that situation is often overwhelming.
Importantly the existence of a search warrant does not mean that you have to speak with the police or respond to their questions. If the warrant is valid you are required to comply with the directions of the police whilst you are detained. The search will then occur in your presence but you are not required to answer any of their questions.
You have the right to call a solicitor and you should exercise your right to do so immediately. If you call a solicitor in this situation simply explain to them that the police are in attendance and are executing a search warrant. The solicitor will then ask you for specific information and you should answer those questions without elaborating. You will have an opportunity to speak with your solicitor in confidential circumstances during the police search if it decided between you and the solicitor that the solicitor should immediately attend the search.
It is fundamental that you understand that there is no such thing as an “off the record conversation”. You cannot approach the police with a view to negotiating with them or discussing matters with an intention for those matters to not become part of the evidence building exercise that the police are tasked to achieve.
Robertson O’Gorman Solicitors offer a 24 hour, 7 days per week contact line.
If you receive contact from the police call (07) 3034 0000 for urgent advice from a solicitor.
Evade Police Offences - Queensland
In Queensland the Police Power and Responsibilities Act makes it an offence to evade police when you’re driving a motor vehicle. The Queensland Government has passed legislation amending the penalty for that offence.
If you evade police and are charged with the offence you will be up for a fine of minimum $5,500.00 and a mandatory disqualification period of 2 years. That’s a pretty heavy penalty for an offence where, in our experience, the facts of the offending could be as minor as accelerating around a corner to get away from Police to a high speed chase on the Bruce highway.
However, earlier this year, a Judge of the Supreme Court held that the minimum fine penalty did not exclude Magistrates from imposing other sentences including probation. At present, if a Magistrate takes the view that a probation order, community service or some other order was more appropriate than a fine those sentencing options are available. However if the Magistrate considered that a fine was appropriate, the minimum fine would be $5,500.00.
Following that decision, the Queensland Government has introduced further legislation to close the so called judicial loophole created by the Supreme Court’s decision. The amendment to the Police Powers and Responsibilities Act proposes that the penalty for an evade police offence now be either 50 penalty units ($5,500.00) or 50 days actual imprisonment. This is in addition to the mandatory 2 year disqualification period. That represents a significant restriction on the discretion of Magistrates in sentencing proceedings.
Stay tuned for updates on this legislation as the amendment makes its way through parliament.
Gone to Court – Have you paid your levy?
Any person, other than children, who pleads guilty or is found guilty of an offence in Queensland is now required to pay a levy to the Courts.
The Offender Levy is separate from any fine or penalty that you may receive as a result of your proceedings and is payable irrespective of whether or not a conviction is recorded against you. If you have more than one charge and all charges are dealt with on the same day at the same time only one levy will be imposed on you.
You cannot appeal the levy being imposed on you, but if you successfully appeal your case and your conviction is overturned you will not need to pay the levy.
The government says the levy is designed to help pay for the costs of law enforcement and administration. The levy will be assigned to the State Penalties Enforcement Registry for enforcement or you can simply pay the levy on the day of Court to the Registry.
The prescribed amount of the Offender Levy is:
- For the Supreme and District Court - $310.50; and
- For the Magistrates Court - $103.50
Crime Commissions
Coercion in Crime Commissions and the Abrogation of the Privilege against Self-Incrimination
This article by Dan Rogers discusses the wide powers used by crime commissions when investigating matters. It discusses the privilege against self-incrimination and the legal basis and your rights in respect of the privilege.