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.