Destruction of Evidence

We are often asked about what rights flow for individuals with respect to their personal property and in particular their property which is in the possession of the police (having been seized) and personal property that may become the subject of a police investigation (not yet seized).

This blog focuses on important considerations of how people can lawfully act in relation to their property which may tend to be used in evidence.

In the old days, which are not so long ago, our advice may have been limited to evidence of a physical kind, such as blood stains on clothing, shoe imprints, fingerprints and so on.  Our world now is becoming increasingly more technically driven and people increasingly store information on electronic devices rather than in physical form.

Police investigations are also changing and evolving in order to keep up with technological advancements.  There are dedicated units of the police force whom specialise in extracting electronic evidence from devices including deleted data and data stored in cache (temporary files).

Regardless of whether the evidence is physical or electronic the consequences of attempting or actually destroying evidence are serious.  If a person is suspected of having attempted to or actually destroying evidence the police may charge them with any of the following offences:-

  • s129 of the Criminal Code – damaging evidence with intent; and/or
  • s132 of the Criminal Code – conspiring to defeat justice; and/or
  • s133 of the Criminal Code – compounding an indictable offence.

All of these offences carry a head sentence of 7 years imprisonment.  It is very likely that if convicted a person will be sentenced to serve actual time in custody for offences of these kinds, although each individual case varies.

In an attempt to play hard ball with the police people may consider destroying evidence or attempting to destroy or lock the police out of electronic evidence.

Deleted material is recoverable most of the time which includes SMS text messages, call logs, emails, web searches and so on.  Even if a device can be “wiped” data such as text messages and telephone logs are generally also available through network provider for a period in excess of 6 months.  That means for example that even if the police are unable to recover the SMS text messages from a phone itself, they will likely be able to obtain them from the network provider in full form.  We have had matters were the police have successfully obtained text messages by taking that course.

Importantly taking action to destroy electronic evidence may be capable of being evidenced by police electronic evidence experts who will attempt to access a device and its contents.  In taking a forensic image of a device the police may be able to establish that material was “wiped” or “deleted”.  Using specialised programs the police may even be able to recover deleted material either in fragment or in full.  They may also be able to establish how and when data was “wiped” or “deleted” or how a device was “locked” and from what device those actions were initiated.

If you are being investigated for an offence or you have already been charged with an offence it is important that you obtain legal advice about how to manage your circumstances within the law.  Taking steps to “damage control” by attempting to or actually destroying evidence may harm you further and result in further charges.  Obtain legal advice before taking any such action.


Transgender Rights in Criminal Law

There are particular practices that the police must employ when they are interacting with members of the Queensland Transgender community.

The guidelines within which the police must operate are set out in two main sources, the Queensland Police Operational Procedures Manual and the Good Practice Guide for Interaction with Transgender Clients.  The police must also act in a manner which avoids behaviour amounting to discrimination as provided in the Anti-Discrimination Act.

It is an offence for a police officer to discriminate against a Transgender person either directly or indirectly.  Under section 131A of the Act it is an offence to incite hatred/contempt/ridicule against a Transgender person or to encourage others to incite hatred/contempt/ridicule.  It is also an offence to threaten (or have others threaten) physical harm towards a Transgender person.  Fines and periods of imprisonment can apply if an officer is convicted of the offence.

Both the OPM and the Guide are updated and reviewed by the police from time to time and can be found on the QPS website (see the current links provided at the end of this blog).

The Guide explains to police the importance of respect and understanding of Transgender persons.  The police are required to abide by the following general principles:

  • Respect the Transgender person’s gender identity.
  • Respect the Transgender person’s need for privacy.
  • Reassure Transgender clients that confidentiality will be maintained; and
  • Recognise the difference between gender identity and sexuality.

An LGBTI liaison program has also been established by QPS.  The State Coordinator of the LGBTI program is located at the Community Safety and Crime Prevention Branch.  Police officers volunteer to act in the capacity of an LGBTI liaison officer and they are obliged to assist.

During all interactions with the police, a Transgender person has the ability to contact an LGBTI liaison officer for information and assistance.  This service cannot be unreasonably refused by the police.

Special procedures apply to the searching of Transgender persons (only an officer of the same biological sex can search the person) and detention (Transgender persons must be held separately from others whilst in custody).

If the police fail to uphold the guidelines or procedures as set out in the OPM or Guide, an alleged contravention should be immediately reported to QPS for investigation.  In some circumstances a complaint can also be made to the Crime and Misconduct Commission.

In addition, a complaint can be made to the Anti-Discrimination Commission Queensland. The ADCQ Commissioner can examine the allegations and are able to (where relevant) conciliate the matter or refer the matter to the ADCQ Tribunal for determination.

If a matter is referred to the Tribunal, the Tribunal may make Orders under the Act that the officer pay the complainant compensation for loss or damage caused by the contravention.

Current Link for the Act.

Current Link for the OPM.

Current Link for the Guide.


Justice at any cost is not justice at all

Justice is a concept of “moral rightness” which is open to individual interpretation. The concept of justice, as held by individual defendants and respondents, often gets in the way of the clarity required to reason and seek out alternative resolutions in the face of complex and sometimes serious problems.

Despite wanting to “take the police on”, fight a charge or an allegation, each individual must stop and think about their matter from all angles before proceeding blindly in the pursuit of justice.

Defendants and Respondents in criminal or quasi-criminal proceedings need to give consideration to what options might be explored throughout their matter to push for early resolution.  Charging forward to a hearing or trial might sound like the way to achieve justice but the consequences can be severe if you fail.  For example, if you are convicted after a criminal trial a harsher penalty will likely be imposed on you.

In the civil law world, options that achieve early resolution are frequently explored as a matter of course: without prejudice offers to settle, dispute resolution before filing proceedings and dispute resolution or mediations after proceedings have commenced.  In family law matters, as a rule of thumb, all litigants must first attempt to resolve their matter through mediation.  Without having ticked that box proceedings cannot be commenced and the Court registry will not file your application material.  The system in the civil world works quite well. Even the most steadfast civil litigant will often consider resolving a legal proceeding at the doors of the Court to cut their losses and avoid a legal battle.

Unfortunately the police are not required to, nor are they funded to, give any thought to ticking such a box.  Unlike civil matters, most criminal law and quasi-criminal law matters do not have the powerful incentive that pushes for early resolution in civil matters: Costs Orders.  There are limited exceptions, see our blog: “Costs Applications against the police” dated Thursday January 2, 2014.

There are however, a plethora of options available in criminal and quasi-criminal matters for early resolution. These need to be considered and explored on a case-by-case basis.

Justice Mediation is available for a number of matters and advice should be sought about this option. If successful, mediation can result in a criminal charge being discontinued in Court thus avoiding a criminal record, any penalty that might have otherwise been imposed by a Court and the legal fees associated with fighting the allegation raised.

In Domestic and Family Violence and Peace and Good Behaviour matters there might be some ground for an application to strike out the proceedings.  The timing and execution of such an application has to be well thought out and executed but the results can be hugely beneficial.  Such an application could be made on the basis that an application is an abuse of process, vexatious, frivolous or if the application is doomed to fail. Costs are rarely able to be awarded in these matters.

In both the summary and indictable jurisdiction a system of case conferencing exists and might allow a negotiation with the prosecution about charges and could see a charge either being amended or discontinued.

Prosecutions in relation to indictable offences might reveal, when properly prepared by the defence, some ground for an application to dismiss the matter at a committal stage.  An application to dismiss a matter can be made if it can be demonstrated to the requisite standard that no jury, properly instructed, could possibly convict the defendant.

Fighting for justice is important but the concept of justice might not be the only important consideration.  Justice achieved at any cost might not achieve justice at all.  Before battling on, think about your options and source out focused advice so that you can explore whether you have an avenue for early resolution.


Costs Applications against the police

If you are charged with a summary offence, for example, committing a public nuisance or obstruct police, and the charge is dismissed, there is provision under the Justices Act for making an application for costs against the Commissioner for Queensland Police.

Far too often matters are finalised in Court without an application for costs being made by the defendant.

You can apply for an order for costs on dismissal or in circumstances where the Magistrate chooses to exercise their discretion to do so.  The discretion is not readily exercised in favour of an applicant but it should be attempted in appropriate cases.

You can apply for your costs on a scale which includes the following:-

  • Instructions and preparation for the hearing, including attendance on day 1 of the hearing (up to $1,500.00)
  • Costs for each day of the hearing after day 1 (up to $875.00)
  • Other Court attendances, other than the hearing of the complaint (up to $250.00)

If you have had the expense of legally represented mentions, preparations or attendances at a hearing for a summary offence and your matter is then dismissed, you may hold some prospects of making an application for Costs in accordance with the scale.

In October 2013 Robertson O’Gorman Solicitors made an application for costs on behalf of a client charged with two obstruct police charges.  The police in that case had failed to comply with the Court’s directions to disclose material to the defendant.  We wrote to the prosecution setting out the failure to disclose material and requested that they comply.  The prosecution then obtained the missing material from the police and after considering the material made the decision to discontinue the charges against our client.

Ordinarily the prosecution discontinue summary charges by offering no evidence against the defendant in Court at a mention.  In those circumstances people are usually relieved that the matter is over and give no further consideration to whether there is any avenue to take against the police for the charge being made in the first place.

In our October 2013 case the prosecution offered no evidence against our client and the charges were accordingly dismissed by the Presiding Magistrate.  We then made an application for costs against the Commissioner for Queensland Police for the costs of two represented mentions and preparation for a hearing.

Our application was met with fierce opposition by the prosecution but our application was pressed and ultimately succeeded.  The Presiding Magistrate awarded costs to our client in the sum sought, which was in the amount of $1,600.00.

If you are charged with a summary offence or offences, you must consider whether you hold any prospect of making an application for costs upon dismissal or in other circumstances.  It is important to obtain advice about your options and the procedure involved in pursuing an application in Court.


Sex Offences

R v Phillips: Client convicted of several counts of rape. Appeal to the Queensland Court of Appeal dismissed. Further appeal to the High Court of Australia. Convictions overturned.

 

R v M: “M” was charged with possession of child exploitation material.  On our advice he, after being charged, engaged in significant counselling to address the underlying issues which led to him accessing material. We argued his sentence in the Brisbane District Court and he received a wholly suspended term of imprisonment.


Offences against a person - Common Assault to Murder

R v G: We acted on behalf of “G” who was charged with assault occasioning bodily harm upon his son, “J”. “G” used excessive parental discipline and as a result, the Department of Child Safety became involved in the matter.  With our assistance, “G” proactively engaged in counselling and parenting programs.  We argued his sentence hearing and despite Prosecution attempts at seeking a custodial sentence, “G” received a fine with no conviction recorded.

 

R v M: “M” was charged with assault occasioning bodily harm while armed.  The allegation against him was that he assaulted a male person with a glass bottle during a street fight.  “M” faced a significant risk of custody if his matter proceeded to trial and he was convicted.  We made submissions, which were ultimately successful, to the Police Prosecution Corps arguing that the matter should be referred to justice mediation.  This means that “M” can informally resolve the matter with the complainant and thereby avoid the costs and uncertainty of a trial which for him included a real risk of actual imprisonment.

 

R v F: Client originally charged with murder. One punch death scenario. Client found not guilty after jury trial in the Supreme Court.


Offences against property

R v H: District Court sentence for social security fraud, approximately $70,000.00. Custodial sentence avoided due to exceptional circumstances.

 

R v Wallader: Client convicted in the District Court of possession of counterfeit prescribed securities. Appeal to the Queensland Court of Appeal. Argument centred on the correct interpretation of the definition of the term “counterfeit”. Conviction overturned by Court of Appeal and verdict of acquittal entered.


Crime and Misconduct Commission

WSX v CMC[2012] QSC 405 and EDC v CMC [2012] QSC 406

We acted for both applicants in this recent decision from the Brisbane Supreme Court.  Both applicants were served with attendance notices to give evidence at the Crime and Misconduct Commission in relation to incidences of major crime.  Both applicants claimed a reasonable excuse not to answer questions relating to their fear of reprisal if they were compelled to answer questions.  The CMC denied that the applicants had a reasonable excuse.  This decision was successfully appealed to the Supreme Court and we obtained costs from the CMC.  The effect of the decision is that both applicants do not have to answer questions under compulsion or face charges of contempt.


Other Cases - Peace and Good Behaviour Application

C v H: We acted on behalf of “H” who was the respondent to a Peace and Good Behaviour application by his neighbour “C”.  The factual allegation against “H” was trivial.  We formed the view that “H” should not be put to the expense and time associated with a trial.  We made an application to have the Peace and Good Behaviour application struck out at an early stage.  This was successful.  The Court made comment that if “C” institutes a further Peace and Good Behaviour application we would be in a strong position to seek costs from her.


Amendments to Criminal Sentencing in Queensland

New Criminal Penalties set for certain offenders. 

Brisbane Times, 18 June 2012: Terry O'Gorman comments on the amendments.

Murderers, repeat child sex offenders and people who kill or evade police would be jailed for longer under tough changes approved for Queensland’s sentencing laws.

State Attorney-General Jarrod Bleijie announced that cabinet had on Monday approved amendments to the criminal code, which would be introduced to parliament this week.

Under the changes, murderers would be jailed for life.

The non-parole period would be raised from 15 to 20 years for the murder of a single victim and from 20 to 30 years for multiple victims.

Repeat sex offenders would also face mandatory life imprisonment, with a 20-year non-parole period.

Repeat offenders would be classified as those who had previously been convicted of a sexual crime punishable by life imprisonment such as rape but had been released on parole and committed a similar offence again.

Furthermore, an offender who killed a police officer carrying out their duties would serve at least 25 years before being eligible for parole.

The maximum penalty for a serious assault of a police officer would also double from seven years to 14 years imprisonment.

This be for offences where the assault results in an injury amounting to bodily harm and involves spitting, biting or projecting any bodily fluid, or where the offender uses a weapon.

Lastly, drivers who tried to evade police would face a minimum $5000 fine and two-year licence disqualification.

‘‘These tough new penalties send a clear and strong message that these offences simply won’t be tolerated,’’ Mr Bleijie said in a statement.

Meanwhile, Queensland Council of Civil Liberties president Terry O’Gorman said the changes would prevent a judge or magistrate from sentencing on the peculiar facts of each case and would cause injustice.

He said there was no justification for the announcement, except the new government wanted to appear to be tough.

‘‘It is a politician’s gimmick,’’ he said.

He said there is nothing wrong with the current system as prosecutors have the chance to appeal if they think a sentence is too lenient.

The planned changes would also tie the hands of parole boards, who decide if an offender is sufficiently rehabilitated.