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.