Queensland's Top 50 Thinkers
On 8 March 2015 the Sunday Mail released its list of Queensland’s 50 Top Thinkers. The list was described as including the best and brightest of people who have turned their minds to making society better. The people who have made Queensland the smart state. It was drawn from a broad range of backgrounds including science, medicine, education, business, politics, culture and sport.
Terry O’Gorman was included in the list for his work as a criminal defence lawyer and for his role as a civil libertarian, rallying against perceived abuses of police and political power. As the president of the Australian Council for Civil Liberties and vice-president of the Queensland Council Terry has been fighting for the rights of fellow Queenslanders for more than 40 years.
Answering Police Questions
Some people believe that the allegations against them are all a misunderstanding or that police won’t have any evidence; that it was the other person’s fault or that they have done nothing wrong. If they just explain it to the police it will all be resolved.
Many think that simply by denying the allegations or providing false or misleading information all their problems will do away.
Others feel that talking to police is the decent thing to do and necessary to demonstrate that they are not guilty. And yet others feel the need to confess everything to police.
Whatever your circumstances, getting legal advice before speaking to police is advisable. You should understand the full legal consequences of what you are about to do first. This is particularly important if you have a criminal history, are young, have an occupation where having a conviction recorded could be devastating for your future employment or where the potential charge is serious.
It is important to consider factors including the following:
- If police believe they have enough evidence that you have committed an offence, generally you will be charged even if you deny the allegation.
- Denying the allegations will rarely stop the charge process as it is up to the courts to decide innocence or guilt.
- If police have approached you as a potential suspect and requested an interview, it is highly likely, almost certain, that they will charge you, regardless of what you say when questioned.
- Do you want to add to the evidence that can be used against you?
Lawyers generally advise clients against answering police questions because it is the responsibility of the State to gather enough evidence to prove guilt beyond reasonable doubt and we all have the right to silence. Exercising your right to silence cannot be held against you in court. However, there are limited circumstances when giving your version of events in a police interview may be in your best interests.
Remember that you are only required to provide your name and address to police. You do not have to answer any other police questions. We strongly advise that you get legal advice before answering any questions. Police are required to delay questioning for a reasonable time to allow you to telephone or speak to a lawyer.
If you need legal advice, we are contactable 24 hours a day 7 days a week in emergencies so that even if police arrest or approach you after business hours we can still help.
ROBERTSON O’GORMAN 24hr EMERGENCY ASSISTANCE 3034 0000
If your call is not urgent please call during business hours.
Animal Cruelty Charge Dismissed
On 2 October 2014 the Brisbane Magistrates Court dismissed a charge of animal cruelty against our client, Mr Gunn.
Mr Gunn was represented by Kate Clark, solicitor of our firm.
In the face of significant public vilification Mr Gunn always maintained his innocence in the matter.
You can read more about this story here.
Blue Card Applications
We acted on behalf of “CON” who was the applicant to a QCAT application for the review of a decision made by the Commissioner for Children and Young People and Child Guardian. The Commissioner issued a negative notice to CON in response to their application for a Blue Card and positive notice. CON had previous convictions for assault and had been the respondent to Protection Orders in the past. The Commissioner had formed the view that CONs case was “exceptional” and that it would not be in the best interests of children to grant the application.
We sought the independent views of a registered psychologist and called witnesses at a contested hearing before QCAT. Kate Clark of our firm appeared as Solicitor Advocate at the contested hearing. QCAT made Orders to set aside the Commissioners decision to issue CON with a negative notice and to instead issue CON with a positive notice and Blue Card.
A copy of the full decision of QCAT may be found here.
WHAT IF WE ARE WRONG? THE RISKS ASSOCIATED WITH PREVENTIVE JUSTICE
On 29 July 2014 I attended a lecture delivered by Professor Lucia Zedner FBA Law Fellow, Corpus Christi College and Professor of Criminal Justice, University of Oxford, Conjoint Professor, Faculty of Law, UNSW. The lecture presented by Professor Zedner and delivered by the Australian Academy of Law analysed the balancing act between protecting society from harm and the rights of the individual. It also explored the roles of lawyers, Judges and academics in “distinguishing and delimiting preventive measures”.
During the course of the lecture the words “What if we are wrong?” rang through my ears.
Preventive justice is supposed to detect and anticipate when someone will likely commit an offence and then put into place protective features to stop them from doing so. It is not supposed to be anticipatory punishment but rather a protective mechanism for society.
Our policy writers hold the overwhelming power associated with installing preventive laws into our justice system. As we know, with great power comes great responsibility. More recent legislative reforms would have us question whether this responsibility is being appropriately managed. The introduction of the VLAD legislation, amendments to our Penalties and Sentences Act 1992 and the wide powers provided to star chambers are all cause for great concern.
In Queensland we have many preventive justice mechanisms embodied within our laws. They range in terms of their implications. The most basic form exists within our Police Powers and Responsibilities Act 2000 and Criminal Code. In Chapter 2, Part 6 “breaches of the peace, riots and prevention of offences” for example provide the police with powers to detain people and suppress riots where they assess that there is “an imminent likelihood” that something is about to occur. How is this power balanced to ensure that a full assessment is undertaken and not abused? How is the deprivation of citizen/s liberty balanced with the protection of society? What training do the police have to assess imminent risk on the fly? What consequences exist if this preventive power is inappropriately applied?
In the Child Protection (Offender Reporting) Act 2004 those who have committed certain offences of a sexual kind are subject to strict reporting requirements for either 8 or 15 years. The purpose of the Act is to “require particular offenders who commit sexual, or particular other serious, offences against children to keep police informed of their whereabouts and other personal details for a period of time after their release into the community:- (a) to reduce the likelihood that they will re-offend; and (b) to facilitate the investigation and prosecution of any future offences that they may commit.” Many hold the view that the legislation provides another punitive measure imposed by the State in addition to the penalty imposed by the Judiciary at sentence. The unfortunate reality is that there is no sliding scale on which the Act is assessed or implemented. It is an all or nothing register which restricts the individual, waters down their privacy and also costs our State a great deal to implement.
The VLAD laws are the most frightening of all preventive measures taken to date. These laws operate to discriminate unfairly against particular persons within our society. The appropriate checks and balances of allowing the laws to be scrutinised by the legal community did not occur.
Without adequate debate and scrutiny we run the risk that we are wrong and that our laws will be vague and applied erratically or in a manner which is open for abuse. Poorly assessed preventive laws do not offer our community security, they deprive citizens of their liberty, their rights and fosters injustice.
What if we are wrong?
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.