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Drug Offences

Which Court Will I Appear in When Charged with Certain Drug Offences

By | Criminal Law, Drug Charges

While the jurisdiction of the different courts in Queensland is probably only an interesting topic to lawyers, when it comes to drug offences which court you end up to face the charges can be very important.

If your case ends up in the Supreme or District Court of Queensland, it will generally mean that your offence is at the serious end of the scale and you are potentially facing a lengthy term of imprisonment. If your matter is dealt with by the Magistrates Court, by comparison, it means that if you are convicted of a drug offence you will not face a sentence of more than three years.

Since January 2018 Queensland has also operated the Drug and Alcohol Court in Brisbane, designed with the aim of rehabilitating those whose severe drug and alcohol use is directly associated with their offending. Sentencing focuses on treatment to help offenders deal with their dependencies and criminal proclivities, and involves regular, random drug tests; regular appearances before the court; and incentives to keep offenders on track with their treatment.

How does the law determine which court you will appear in for a drug offence? That’s what we’ll address below but whichever court you come before, if you’re facing charges for drug offences, it’s imperative you speak with expert criminal lawyers such as Hannay Lawyers as soon as possible.

How jurisdiction between courts works

In Queensland which court you appear in is determined by the type of offence you’re charged with as set out in the Drugs Misuse Act 1986 (Qld), as well as whether your offence involves what are known as either Schedule 1 or 2 drugs.

The Magistrates Court is where the bulk of drug offences in Queensland are heard. The following offences (or attempts to commit such offences) are dealt with ‘summarily’ (i.e. without a formal trial or drawn-out legal proceeding) in the Magistrates Court if the person, on conviction of the offence, is not liable to more than 15 years imprisonment:

  • supplying dangerous drugs;
  • receiving or possessing property obtained from trafficking or supplying (in certain circumstances);
  • producing dangerous drugs;
  • possessing dangerous drugs;
  • possessing, supplying or producing relevant substances or things;
  • possessing things;
  • permitting use of place;
  • being party to offences committed outside Queensland.

A case where a person may be liable for a sentence of imprisonment of 15 years for possession of a dangerous drug can still be heard in the Magistrates Court, provided the prosecution does not allege that the possession of the drug was for a commercial purpose.

Summary prosecutions in this manner mean that if convicted, a person will not be sentenced to more than three years imprisonment. If the charge is more serious, or will require a sentence greater than three years, the Magistrate will refer the matter to a higher court such as the District or Supreme Court as an indictable offence that cannot be dealt with summarily.

For more serious charges such as supply or trafficking in commercial quantities of a drug, which can carry a penalty of up to 25 years imprisonment, the determination of whether your case will be heard in the District or Supreme Court depends on the type of drug it’s alleged you’re involved with.

Schedule 1 drugs in Queensland include heroin, cocaine, LSD, amphetamines and ecstasy. Schedule 2 drugs are considered less serious and include cannabis, morphine, methadone and barbiturates.

The full list of Schedule 1 and Schedule 2 illegal drugs can be found in the Drugs Misuse Regulation 1987.

Where the maximum penalty for a drug offence is 20 years or less, these matters will generally proceed on indictment to the District Court. All other offences likely to draw a higher sentence will be heard in the Queensland Supreme Court.

Supply of a drug specified in Schedule 2, for example, attracts a sentence of 15 years or 20 years for an aggravated instance of the offence (such as where drugs are supplied to a minor over 16 years, an intellectually impaired person, or the supply is to an educational institution or correctional facility), and will be dealt with by the District Court. Supply of a Schedule 1 drug, if the circumstances are not aggravated, will also be heard in the District Court and attracts a term of imprisonment of 20 years. Aggravated supply of a drug listed in Schedule 1, however, is imprisonment of 25 years and will be heard by the Supreme Court.

Unlawfully trafficking in dangerous drugs may constitute a single sale of a drug quantity combined with proof that a business was being carried on. Trafficking in Schedule 1 drugs is an offence punishable by up to 25 years imprisonment and will be dealt with by the Supreme Court, while the District Court may hear the offence of trafficking in Schedule 2 drugs as it is punishable by a maximum term of 20 years imprisonment.

A conviction for drug trafficking in Queensland also carries a mandatory minimum non-parole period of 80% of the term of imprisonment.

How a criminal lawyer can help

The take-out from this article is that the severity of punishment for a drug offence in Queensland is determined by the type of offence you’re charged with, the nature of the drug involved, and the jurisdiction of the court you’re matter is heard in.

At Hannay Lawyers, we have years of experience and expertise in representing people facing drug offence charges in Queensland’s court. We understand the intricacies of the law and the best ways to protect your rights in relation to any drug offence charges.

Given the length of some prison terms imposed for drug offences, it makes sense to avail yourself of the best possible legal representation so call our Gold Coast criminal lawyers today on 1800 431 603 for an understanding initial consultation.

What Happens if I Breach a Court Order

What Happens if I Breach a Court Order?

By | Criminal Law

When you come before a court on a criminal matter, there are a range of sentences the court can impose, many of which are designed to avoid the severity of a jail sentence.

These non-custodial options include good behaviour bonds, suspended sentences, probation, intensive correction and community service orders. There is also parole, which can be imposed either immediately after sentencing or after a period of imprisonment.

Such sentences ensure you remain in the community but are also accompanied by strict conditions to ensure that you actually serve the sentence and understand its consequences. Breaching the conditions of any of these sentences can be a serious offence resulting in possible re-sentencing and, in some cases, imprisonment.

This article will take a look at few of the most common breaches of court orders and the implications of such breaches. Anyone who is charged with breaching a court order should consult an experienced criminal lawyer immediately to ensure their rights and responsibilities are properly explained to them.

Breach of a Good Behaviour Bond

Imposition of a good behaviour bond means the court has found you guilty of a criminal offence but decides to release you into the community on a promise to be of good behaviour for a set period of time. The bond may include a surety – a guarantee or an amount of money – as well as other conditions you must observe.

Should you commit and be convicted of an offence which may attract a sentence of imprisonment while you are subject to the good behaviour bond, the judge will have to also consider your breach of the bond and you may be re-sentenced for the original offence. You will also likely forfeit the surety for the bond.

Breaching a Suspended Sentence

In Queensland suspended sentences may be imposed under Part 8 of the Penalties and Sentencing Act (Qld) for terms of imprisonment five years or less in duration. A sentence may be partly suspended so that you serve part of the term in prison and part in the community under strict conditions. In other cases, the sentence may be wholly suspended.

But if you breach the conditions of your suspended sentence, by committing an offence which is punishable by imprisonment, for example, the court will not only consider what sentence to impose for the new offence but also the implications for your suspended sentence. It may remove suspension of the original sentence, in whole or part, and make you serve it in custody. It may also allow you to remain in the community but impose stricter parole conditions on you, or it may extend the length of the suspended sentence.

Breaching a Community Service Order

Community service orders are imposed by the court, with the consent of the offender, and requires you to perform unpaid community service under the supervision of a corrective services officer for a period not less than 40 hours and not more than 240 hours, to be completed within one year of the court making the order or by another date it specifies.

If you choose not to comply with the hours required by the order, or do not attend job sites as directed without reasonable cause, you will be in breach of the community service order. This may cause the corrective services officer to apply to revoke the order and for the court to reconsider its sentencing options regarding your original offence. If you do not appear in court during the application to revoke the order, a warrant may be issued for your arrest.

Breaching an Intensive Correction Order

A court generally makes an intensive correction order (ICO) in cases where someone has a history of offending, as a last resort before imposing a sentence of imprisonment. The order is made for those who have been sentenced to imprisonment of one year or less and have had a conviction recorded, allowing them to serve their sentence in the community. Someone subject to an ICO must report to a corrective services officer; avoid committing further offences during the period of the order; undertake community service; undergo counselling and other programs; and reside at community residential facilities for periods not longer than seven days at a time, as directed by the officer.

Breach of an ICO, such as committing another offence while under the order, may see you serve the time that remains on your sentence at the time of the offence in a correctional facility, unless there are exceptional circumstances as to why this should not happen.

Breaching a Probation Order

Under a probation order you may remain in the community either immediately after the court makes the order, for a period not less than six months and not more than three years, or after a term of imprisonment for not less than nine months nor more than three years.

While on probation you are under the supervision of a corrective services officer and must comply with certain conditions. These orders are sometimes combined with community service orders, particularly for younger offenders, keeping them out of prison but remaining under supervision in the community.

A strict condition of a probation order is that you refrain from committing another offence. You must also comply with any community service order or ICO ordered as part of your probation. Breaching the order in any of these ways may result in punishment both for the breach and also cause the court to re-sentence you in regard to the offences which led to the probation order. Breaches of probation are considered serious by the court.

Breaching of parole

If you are sentenced to a term of imprisonment, a ‘non-parole’ period may also be set by the court, after which you are eligible to apply for parole and be released into the community under strict conditions. There you will be supervised by Corrective Services under the period of your sentence is complete.

The consequences of breaching your parole conditions can be significant, but also depend on whether your parole conditions were court-ordered or set by the Parole Board. In the first situation, the Parole Office may amend the parole order to impose stricter conditions on your release, or provide a warning and closer surveillance of your movements. More severely, they could suspend your sentence and take you back into custody for a maximum of 28 days.

In the case of the Parole Board, it may also amend your order, or suspend it indefinitely or for a specified period of time. It may also cancel your order. This decision must be accompanied by a ‘show cause’ letter which you may respond to for the Board to consider. You may also apply to the court for a review of any decision the Board makes.

It should be noted a parole order may be cancelled automatically if you are sentenced for another offence, except in certain circumstances.

The importance of proper legal advice

In any of the situations detailed above, it’s vital you are represented by legal professionals with detailed knowledge and experience of Queensland’s criminal justice system.

If you are facing any of these scenarios, your first call should be to Hannay Lawyers. We are an award-winning criminal law firm that will fully advise you on what you should do next if you have breached a court order. We make every effort to achieve the best possible result for our clients. Call our Gold Coast criminal lawyers for a free initial consultation today on 1800 431 603.

When Will No Conviction Be Recorded for Commonwealth Offences?

By | Criminal Law

Australian courts have frequently recognised the impact of recording a conviction for a person found guilty of an offence. In some circumstances it’s acknowledgeded that recording a conviction for the offence is punishment in itself, with accompanying harsh effects on the offender’s employment prospects, ability to travel and other adverse legal consequences.

These concerns are one of the reasons for the existence of section 19B of the Crimes Act 1914 (Cth) – ‘Discharge of offenders without proceeding to conviction’. This provision in the Commonwealth legislation allows a court to find that while a Federal offence has been proved, it can dismiss any charge without recording a conviction (s 19B(1)(c))  or conditionally discharge a person without recording a conviction (s 19B(1)(d).

In Queensland, this discretion in Federal legislation is reflected (with some differences) in section 12 of the Penalties and Sentences Act 1912.

What sort of offences are captured by section 19B?

Commonwealth offences fall under the law-making responsibilities of the Australian federal government, as opposed to those covered by state legislation.

Examples of Commonwealth offences include child sex offences by Australians in foreign countries, cyber-crimes committed against Federal government departments, drug importation and exportation, people smuggling, human trafficking, terrorism, fraud against government departments such as the Australian Tax Office, Medicare or Centrelink, and threats made against government officials.

A ‘conviction only’ finding is not possible when sentencing someone for a Federal offence. A judicial officer cannot convict someone of a Federal crime without making another sentencing order, nor can they impose a sentence without convicting an offender.

How is section 19B activated?

This section of the Crimes Act sets out the circumstances when no conviction will be recorded. A two-step analysis is undertaken under s 19B(1)(b), where a Federal charge is proved against an offender and the court is satisfied:

  • having regard to the character, antecedents, age, health or mental condition of the person; or
  • the trivial nature of the offence; or
  • the extenuating circumstances under which the offence was committed, that it is:
  • inexpedient to inflict any punishment; or
  • inexpedient to inflict any punishment other than a nominal punishment; or
  • expedient to release the offender on probation.

Depending on the assessment of the factors above the court may then:

  • dismiss the charges in respect of which the court is satisfied (s 19B(1)(c)); or
  • discharge the person without conviction, conditional upon the person giving security to be of good behaviour for up to three years, the payment of restitution/compensation or costs (if any), and compliance with any other condition the court sees fit to impose (s 19B(1)(d)).

Additionally, the court must explain any such order under s 19B to the person who will be subject to it in language likely to be readily understood by the offender.

This section in operation

The factors listed in s 19B(1)(b) do not all need to be present in order for the court to move to the second stage of the two-step process.

The use of the discretion to not record a conviction under s 19B has been judicially described as ‘exceptional, ‘rare’ and ‘special’.

Cases in which the provision has featured emphasise that the matter involved must be distinguished from a typical breach. In some cases the importance for general deterrence will override the application of s 19B, such as a case involving dishonesty by a public official.

While one of the purposes of the discretion in s 19B is to assist in the rehabilitation of the offender (see King CJ in Uznanski v Searle (1981) 26 SASR 388), good prospects of rehabilitation do not necessarily mean the provision is activated. The use of s 19B will be exceptional in cases involving fraudulent or deliberately deceptive conduct, such as one example where the offence was using a telecommunications service to menace another person.

Under s 19B(1)(d)(ii), a condition of an order made under s 19B bond may be that an offender make reparation or restitution, or pay compensation or costs, on or before a specified date, or by specified instalments. Under s 19B(1)(d)(iii), a s 19B order may also include a condition that the person is subject to the supervision of a probation officer and must obey all reasonable directions given by that officer,. One criticism of this provision has been that there does not appear to be any statutory mechanisms or administrative arrangements for these functions to be performed by state or territory probation officers.

Contact us for guidance

Hannay Lawyers is a firm of expert criminal lawyers in Gold Coast with broad experience in representing people facing either Federal or state charges.

Our award-winning team can help you navigate the complexity of the criminal justice system. Ideally, depending on the nature of your matter, we can help you achieve a ‘no conviction’ result on the basis addressed in this article.

For any questions on anything raised in this article, please call us today on 1800 431 603.

What are the Consequences for a Lawyer Convicted of a Criminal Offence?

By | Criminal Law

A key requirement for a person to be admitted as a practising lawyer is that they are a ‘fit and proper’ person.

Lawyers are expected to uphold certain standards of ethical behaviour as a consequence of their unique and important duties to the court, to the law, and to their clients. These standards apply to how they conduct themselves both while practising law and outside of their work duties.

In Australia these requirements are expressed in legal professional conduct rules and governed by legislation in each state and territory. Under these rules a lawyer must avoid conduct which would:

  • be prejudicial to, or diminish the public confidence in, the administration of justice; or
  • bring the profession into disrepute.

A lawyer who fails to uphold these standards may be found to have engaged in unsatisfactory professional conduct or the more serious finding of professional misconduct.

As previous cases have demonstrated, a lawyer who is convicted of a criminal offence is likely to be found to have engaged in professional misconduct and be subject to disciplinary action at the Queensland Civil and Administrative Tribunal (QCAT).

As a result, the Tribunal may order the lawyer be prohibited from practising law any further by being struck off the roll of legal practitioners, be suspended from the practise of law, or only allowed to practise under certain conditions. Action may also include pecuniary penalties, compensation orders and orders to pay the costs of the complainant.

What happens if a lawyer is convicted of a criminal offence

Like anyone else charged with a criminal offence, if a lawyer engages in criminal conduct either while practising law or outside of the workplace, it will first be dealt with by the police and the criminal justice process.

If the lawyer is convicted of the offence, then the investigation by the Legal Services Commission (LSC) – the body that deals with conduct complaints against lawyers – may commence to determine whether the conviction means the lawyer has engaged in professional misconduct and is not a fit and proper person to practise law.

Case examples: In 2017 high-profile Queensland criminal lawyer Tim Meehan was sentenced to five-and-a-half years imprisonment after pleading guilty in the Brisbane Supreme Court to one count each of aggravated fraud in excess of $30,000 and eight counts of fraudulently falsifying a record.

As a result the LSC commenced disciplinary action against Meehan in QCAT (Legal Services Commissioner v Meehan [2019] QCAT 17) for professional misconduct. Because Meehan admitted to his conduct, the Tribunal was left only to make orders against Meehan. It ordered he be removed from the roll of Queensland legal practitioners and pay the LSC’s costs in bringing the application. An order to be struck off the roll is only made where the Tribunal believes it is probable that the solicitor is permanently unfit to practise.

In Legal Services Commissioner v GR Woodman [2017] QCAT 385, the question to be decided was whether a solicitor of 33 years standing with an untarnished professional record was permanently unfit to practise, or not a fit and proper person to be a legal practitioner of the Supreme Court, after he had been convicted in 2015 on two counts of grooming a child under 16 years, and one count of using the internet to procure a child under 16 years.

The Tribunal found that although Woodman’s conduct did constitute professional misconduct, his case did not support a finding that he was permanently unfit to practise, or that he is not a fit and proper person to be a legal practitioner. Instead it ordered that his practising certificate be suspended for four years and that he pay the LSC’s costs in bringing the disciplinary action.

While the Tribunal recognised Woodman’s behaviour was ‘serious and distasteful’, it distinguished his case from others where legal practitioners had been struck off because there had been ‘sustained misconduct of a kind where the person would never be fit to trust with the powers and functions entrusted to a solicitor’.

Bringing a complaint

Lawyers have a crucial and trusted place in the administration of justice. They are entrusted with confidential information about their clients and, sometimes, large sums of money. Many lawyers are also under significant stress from their workload, which impacts on other areas of their lives. Like any of us, this means they can be prone to mistakes and misjudgements in terms of their behaviour.

Complaints about a lawyer, including one convicted of a criminal offence, can be made to the Legal Services Commission using the appropriate form. Complaints must be in writing, identify the person making the complaint and the lawyer or law practice employee mentioned in the complaint. The complaint must also describe the conduct being complained about.

If you need advice about anything raised in this article, contact expert criminal law firm Hannay Lawyers for a free consultation today on 1800 431 603. Our experience representing people facing criminal prosecution and/or disciplinary proceedings is second to none.

White Collar Offences: What Are They ?

By | Criminal Law

It was American sociologist and criminologist Edwin Sutherland who coined the term ‘white-collar crime’ in the late 1940s, a neat way to describe crimes committed by an individual or individuals during the course of their occupation or against the business or company they work for.

On its face, the term seems to suggest benign, non-serious crimes – respectable businesspeople maybe bending the rules a little bit here and there. In fact, corporate or financial misconduct is very serious and as a result, carries serious penalties, including long terms of imprisonment.

Below we’ll look at some of the most common examples of white-collar crime in Australia, who enforces the law in this area, and how we at Hannay Lawyers can help should you or someone you know be implicated in an activity that could be classed as white-collar crime.

What sort of activities qualify as white-collar crime?

White-collar crime can cover a very broad spectrum of offences but some of the most common in this area include bribery, embezzlement, tax evasion, forgery, fraud, identity theft, insider trading, money laundering and regulatory offences.

“The motive for the commission of these crimes is to obtain money or property or avoiding the payment of money or debts,” wrote Professor Michael Adams, Dr Tom Hickie and Mr Ian Lloyd QC in a joint submission to the national parliament’s Economics References Committee in a 2015 inquiry. “Thus, generally, the aim is to obtain some form of financial advantage.”

The penalties for some of these offences can be severe. Under section1 41 of the Commonwealth Criminal Code, for example, bribery of or by a Commonwealth public official  – the act of giving money or giving a gift to alter the behaviour of the recipient – is punishable by a maximum penalty of imprisonment of 10 years.

Under s 408C of Queensland’s Criminal Code, fraud – using or obtaining property belonging, in whole or in part, to somebody else, as one example – carries a maximum penalty of five years of imprisonment. But this sentence can be increased up to 12 years of imprisonment where a corporation is defrauded by a director or member of its governing body, or an employer is defrauded by their employee.

Insider trading – where you possess and use non-public information that, if generally available, a reasonable person would expect to have a material effect on the price or value of securities of a body corporate – carries a penalty of up to 10 years imprisonment and/or a fine of $450,000 for an individual, and a fine of up to $1.1 million for a company.

Those who engage in white-collar crime can be prosecuted under a variety of pieces of legislation, both Federal and state. Chief among them is the Corporations Act 2001, which is enforced by the Australian Securities and Investments Commission under the Australian Securities and Investments Act 2001. Besides law enforcement agencies such as the police, other regulatory bodies can also become involved, including the Australian Competition and Consumer Commission (ACCC), the Australian Financial Security Authority (AFSA), and the  Australian Taxation Office (ATO).

How are investigations into white-collar crime conducted?

ASIC, for example, has extensive powers to fight corporate crime in Australia in order to maintain public confidence in our economic system. A notice of formal investigation from ASIC should be taken very seriously because non-compliance is recognised as a criminal offence. ASIC only takes such action if it believes there has been a contravention of the law for which it is responsible. For this reason, you should contact a legal representative with expertise in this area as soon as possible.

ASIC has powers to execute a search warrant on a business’ premises and compel a person or entity to produce documents for inspection and disclose other information, as well as attend an examination to answer questions and/or provide reasonable assistance. You should ensure you make copies of any documents furnished to ASIC as part of its investigation.

On its site, ASIC lists the rights and responsibilities of those who are the subject of a formal investigation, including:

  • A requirement that you produce the specified information irrespective of whether it might tend to incriminate you or make you liable to a penalty.
  • A right to refuse to disclose information that is covered by a valid claim of legal professional privilege. If you claim this privilege, you need to be able to explain why it applies to that information.

Where you’re asked to attend an examination, your rights include:

  • That the examination will take place in private;
  • that you may be represented by a lawyer;
  • that a record of the examination will be made if you request it;
  • a right to refuse to answer questions on the basis that the answer would disclose information that is covered by a valid claim of legal professional privilege;
  • a requirement that you answer the questions put to you, irrespective of whether the answer may tend to incriminate you or make you liable to a penalty. You may make a claim for privilege on the basis that the answer you give may incriminate you and, in this case, any incriminating information you provide may not be used in a criminal prosecution of you or in proceedings to impose a pecuniary penalty on you, other than in perjury proceedings.

The value of legal advice

The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry conducted by former High Court justice Kenneth Hayne between December 2017 and February 2019 brought corporate misconduct back into sharp focus in Australia. It lead to harsher civil and criminal penalties passed by the Federal Parliament, including maximum prison penalties of up to 15 years for the most serious corporate offences such breach of directors’ duties, false or misleading disclosures and dishonest conduct.

In light of these more severe penalties, it’s very important to consult multi-award-winning criminal law firm Hannay Lawyers if you are contacted by a corporate regulator or law enforcement about a possible white-collar crime. We have real-world experience in representing people facing investigation and will provide timely, relevant advice to put you in the best possible position to protect yourself and defend your interests. Call our Brisbane criminal lawyers today for a free consultation on 1800 431 558.

Can Police Search My Car?

By | General News

We all recognise that our police force play an essential role in maintaining law and order in our community. For most people, the police will be the first phone call they make if they believe their personal security or property is breached or threatened.

But there are also limits on police powers, necessary to ensure that citizens are not subject to arbitrary or wrongful searches and seizure of personal property. In Queensland, these limits are primarily set out in the Police Powers and Responsibilities Act 2002 (‘PPR Act’). While no-one expects you’ll be familiar with the fine detail of this piece of legislation, it’s worthwhile for everyone to be aware of their rights and responsibilities if for some reason you are subject to a police search.

This article will take a closer look at the situation where police wish to search your vehicle. What should you do in this situation? What happens if the police don’t have a search warrant? What does it mean if they do?

If a police officer asks to search your vehicle it’s best to say “no” as if you consent to the search, then the police are no longer subject to the restrictions imposed by the PPR Act. In all other respects (being asked your name and address, for example), you should comply with police directions lest you risk being charged with obstructing police. By refusing to consent to the search, the onus is then on the police to decide whether they have the power to search your vehicle with or without a search warrant.

If you find yourself in this situation you should, as soon as possible, contact legal professionals such as Hannay Lawyers with experience and specialty in this area of the law. We can help you respond to the police in the appropriate way. Meanwhile, here are some things you should know…

In what circumstances can police search your vehicle?

Police have the power to stop and detain a vehicle, as well as its occupants, in order to conduct a search without a warrant under sections 31 and 32 of the PPR Act and ss 31 to 35 of the Transport Operations (Road Use Management) Act 1995 (Qld). In order to do so, the police officer must reasonably suspect that the vehicle may contain:

  • A weapon or explosive that a person may not lawfully possess;
  • an implement that could be used for housebreaking, stealing a vehicle or administeing a dangerous drug;
  • tainted property;
  • evidence that a serious (i.e. indictable) offence has been committed;
  • something the person intends to use to harm themselves or someone else;
  • an unlawful dangerous drug.

Police can also stop, detain and search a vehicle:

  • To arrest someone in the vehicle;
  • if they reasonably suspect the vehicle is being used unlawfully;
  • if they reasonably suspect that the vehicle is being used by or is in the possession of a participant in a criminal organisation;
  • if it’s not practical to search the vehicle where it’s been stopped, the police can take it somewhere else to complete the search;
  • in relation to an out-of-control event (where 12 or more people are gathered together at a place, and three or more people associated with the event engage in out-of-control conduct at or near the event).

Police must also conduct a ‘lawful’ search. This means they may only use ‘reasonably necessary force’ which is not likely to cause grievous bodily harm or death in order to make the search, unless the situation is considered ‘critical’ (i.e. an emergency). Where a person obstructs a lawful search, police must provide a warning to the individual that it is an offence to do so and give the person a reasonable opportunity to stop obstructing the search.

What should you do if police have a warrant?

A warrant is an official document issued by a Supreme Court judge, a magistrate or even a Justice of the Peace that provides police (or someone else) with the power to:

  • Arrest someone;
  • search you, your vehicle, or your home;
  • take and keep your things found in a search;
  • put you in jail.

If police execute a warrant upon you to search your vehicle, you should attempt to get legal advice as soon as practicably possible. In any event at the time police present the warrant, read it and check that your name and address are accurately recorded on the document. If any details are incorrect, point them out to police. It’s best not to argue with or obstruct the police because, as we’ve mentioned, you may be charged with additional offences. You should also refrain from answering any questions put to you by the police during the search with a warrant until you’ve had a chance to speak to a legal representative.

How we can help

We are a multi-award winning criminal law practice with offices in Brisbane CBD and Southport, Gold Coast. We are specialists when it comes to Queensland’s criminal justice system, with extensive knowledge of the applicable laws and years of practical experience appearing in courts for clients who may have been the subject of a police search, with or without a warrant.

If you are the subject of a search or have any questions about any of the information raised in this article, call our Gold Coast criminal lawyers today on 1800 431 567 for a free initial consultation and practical, prompt advice on what steps you should take.

Mandatory Penalties

When Do Mandatory Penalties for Certain Offences Apply in Queensland?

By | Criminal Law

The issue of mandatory penalties is a controversial one in the law. Many judges and legal commentators criticise the inclusion of mandatory penalties in sentencing as restricting the discretion of judges to impose penalties that are proportionate to the crime, and as unfairly impacting disadvantaged members of society.

High profile crime issues such as the rash of incidents in the past decade involving outlaw bikie gangs on the Gold Coast, as well as ‘one-punch’ assaults causing death in nightclub precincts, have brought the subject of mandatory penalties to the fore as the state government has strived to appear ‘tough on crime’ in response.

To be clear, a mandatory sentence is a fixed penalty prescribed by the Queensland Parliament for committing a criminal offence. The most common form of mandatory sentencing is one in which the government sets a minimum threshold but leaves the court to impose a harsher sanction where it believes it is appropriate, such as an aggravated example of a crime. The mandatory minimum non-parole period for someone sentenced to life imprisonment for murder or a repeat serious child sex offence, for example, is 20 years.

What sort of mandatory penalties apply in Queensland?

There are currently different forms of mandatory penalties in Queensland. These include:

  • Mandatory penalties that apply to a particular sentence type and sentence length (for example, the mandatory sentence of life imprisonment for murder and mandatory licence disqualification periods for certain offences under the Transport Operations (Road Use Management) Act 1995 (Qld).
  • Mandatory penalties applying to the sentence or penalty type only, but in some cases include a discretion to impose a different sentence if there are exceptional circumstances (such as the requirement that a person who commits a child sexual offence be sentenced to serve an actual term of imprisonment).
  • Mandatory minimum non-parole periods, which apply to the term of imprisonment imposed. A person convicted of a serious violent offence (SVO) – manslaughter, grievous bodily harm, torture, robbery, sexual assault and sex offences such as rape, assault occasioning bodily harm, and drug offences such as trafficking, supplying or producing a dangerous drug, for example, must serve the lesser of 80 per cent of the sentence imposed or 15 years’ imprisonment before being eligible to apply for release on parole.

Newer mandatory penalties

As suggested above, certain crimes that make newspaper headlines have in recent years resulted in stiffer sentences involving mandatory penalties.

In 2016 the current Queensland Government passed the Serious and Organised Crime Legislation Amendment Act 2016, overhauling the previous Newman government’s Vicious Lawless Association Disestablishment Act (VLAD) Act 2013. Designed to curb the activities of outlaw motorcycle clubs, but also other organised criminal groups, the new law banned outlaw motorcycle club members from wearing their club colours in public places and made it illegal for a person to habitually consort with two or more convicted offenders after being warned by police not to do so.

Most significantly, the new legislation prescribed lengthy mandatory jail terms for those who committed certain serious organised criminal offences committed with a circumstance of aggravation. Under s 161R of the Act an offender convicted of this circumstance will receive a sentence with a mandatory component for the lesser of either seven years or the period of imprisonment provided for under the maximum penalty for the prescribed offence.

A couple of years earlier in 2014, the Queensland parliament introduced a new offence of ‘unlawful striking causing death’ – also known as the ‘one-punch law’ – into the Criminal Code.

Under this law, offenders who cause the death of another person by unlawfully striking a blow to the head or neck are guilty of a crime, regardless of whether they intended the victim to die, or foresaw death as a possible consequence of striking the blow. The offence carries a maximum penalty of life imprisonment and also prescribes a mandatory minimum sentencing regime, with courts given a wide sentencing discretion in regard to this offence. If a person convicted of this offence is sentenced to a period of imprisonment, the court must order that they serve the lesser of 80% of the term of imprisonment imposed for the offence, or 15 years. In effect, this means the courts cannot set a non-parole period that is less than 80% of the base sentence, or 15 years (whichever is less).

Seek help from experienced criminal lawyers

At Hannay Lawyers, we have wide experience and expertise in helping people who may be facing conviction that includes a mandatory penalty. We can help you present the best possible case to hopefully avoid or mitigate the harshness of mandatory penalties for ceetain offences. If any of the issues raised in this article apply to your situation, please call our Brisbane criminal lawyers immediately for a free consultation on 1800 431 513.

Hannay Lawyers

What You Need to Know About Licence Disqualifications for Driving Offences in QLD

By | Traffic Offences

Disqualifying a driver is one of the harshest penalties a court can impose for certain traffic offences in Queensland. When your driver’s licence is disqualified, it is confiscated and all driving privileges are revoked.

Below we’ll detail a number of offences which can result in disqualification of a driver’s licence. Disqualification is the result of a court order, and means you must reapply for a new licence once the period of disqualification ends. This distinguishes it from suspension of a licence, which is often imposed for offences such as unpaid fines or an accumulation of demerit points. Once the period of suspension expires – unlike disqualification – your driver’s licence reactivates.

The penalties for driving whilst you are already disqualified are serious. Your driver’s licence may be confiscated for two to five years, plus there is the possibility of large fines and even terms of imprisonment for up to 18 months.

If you are facing the situation where your licence may be disqualified, or you were found driving while already disqualified, you should seek expert legal advice as soon as possible.

What offences can result in disqualification from driving?

In Queensland you will be disqualified from holding a driver’s licence for a stated period if convicted of:

  • a drink driving or drug driving offence;
  • a dangerous driving offence;
  • a criminal offence involving the driving or use of a motor vehicle.

Under the Transport Operations (Road Use Management) Act 1995, it is illegal to drive on a public road in Queensland without a valid driver’s licence. A driver’s licence is not valid if you have been disqualified from holding or obtaining a driver licence, or, after completing a period of disqualification, you did not obtain a driver’s licence before driving again.

Likewise, if you have had your licence suspended – for unpaid fines or for drink driving before the charge is heard by the court, for example – and you then drive a motor vehicle in Queensland, you will be charged with unlicensed driving. If convicted of this offence, the court must disqualify you from holding a driver’s licence for two to five years. You may also receive a fine of more than $5,300 or be imprisoned for up to one year.

Since May 2008, those drivers convicted of more than one drink or drug-related driving offence will also serve cumulative disqualification periods – one after the other – rather than all at the same time (or concurrently).

Driving while disqualified

Because it’s made clear to an offender that they are not to drive while their licence is disqualified, the penalties for doing so can be severe. Mitigating and aggravating factors may be considered by the court but at minimum, the court must disqualify you from holding a driver’s licence for a period of between two and five years. You may also receive a fine of more than $8,000 or be imprisoned for up to 18 months.

Exceptions and reapplying for your licence

Once your licence is disqualified you are not allowed to drive unless you qualify for and obtain a restricted driver’s licence, which is only granted in specific cases by a magistrate for work-related reasons, i.e. your job involves driving. Expert legal advice should be sought in applying for a work licence as a number of criteria need to be met to establish your eligibility.

Once you have served a period of disqualification of licence, you may be eligible to apply for a probationary licence. If you were absolutely disqualified from holding or obtaining a Queensland driver’s licence for unlicensed driving before 13 March 2002, the Department of Transport and Main Roads maintains an absolute disqualification checklist (FS4849) on its website that allows you to see if you are eligible to have your disqualification removed. If successful, you can then re-apply for your licence.

The impact of having your licence disqualified can be harsh, including losing employment and the ability to move freely to visit family and friends. The legal professionals at Hannay Lawyers are specialists in representing people facing charges relating to traffic offences and the potential loss of licence. We have the expertise to promptly advise you of the best way forward so contact our Brisbane criminal lawyers on 1800 431 603 for a free consultation if you have questions about anything raised in this article.

Search Stored Communication Devices

What Powers do Authorities Have to Search Stored Communication Devices in Queensland?

By | General News

The spread of terrorism throughout the world in recent decades has resulted in a substantial increase in the powers of government authorities to detain and search people passing through international airports.

In particular, these powers have been extended to allow bodies such as the Australian Federal Police (AFP) and Australian Border Force (ABF) (including Customs officers) to gain access to information held on a person’s ‘stored communication device’. As has been revealed after the fact, many terrorist operations have been organised almost entirely over smartphones.

These powers can apply, for example, to information you hold on a smartphone, tablet or laptop; whether you’re an Australian citizen or overseas visitor; and whether you arrive by air, land or sea.

While we all understand that the authorities monitoring our borders should have powers to search incoming passengers if they suspect they are carrying illicit goods, banned items or agricultural products from overseas, powers to search a device such as a phone or computer is a different proposition given the amount of personal information we generally store on these devices these days.

How extensive are the powers in relation to searching your devices?

Under Section 186 of the Customs Act 1901, Australian Border Force or Australian Customs officers have the power to examine all goods at the border, including electronic documents and photos on mobile phones and other personal electronic devices.

If you refuse to comply with a request for an examination of your electronic device, that device may be held until the ABF is satisfied that the item does not present a risk to the border.

The ABF says it will conduct such a search when it identifies travellers either arriving and departing at the Australian border who “may be of concern” for immigration, customs, biosecurity, health, law-enforcement or national security reasons.

As some commentators have pointed out, in normal circumstances, i.e. not at the border, the authorities would need to clear a number of hurdles – such as procurement of a warrant – in order to search a person’s phone or computer, but this does not apply at border points.

The 2018 case of British-Australian software developer Nathan Hague is illustrative. Hague was stopped at Sydney Airport and had his phone and laptop taken from him by ABF officers for 90 minutes.

Hague later told the media that the ABF officers refused to tell him why they had confiscated his devices, what would be done with them, and whether any of his stored data was being copied and saved. The ABF later acknowledged that Hague’s devices were examined but would not comment on whether his files had been copied.

In 2015 an Australian man leaving the country to visit family in Turkey and Cyprus was detained at Sydney International Airport for almost four hours while Customs officers not only confiscated his mobile but also sent text messages on it. It was later revealed the officers had no reasonable grounds to suspect the man had committed or intended to commit any offence. The man later took action in the District Court of NSW for false imprisonment, unlawful detention and harassment.

The legal position regarding searches of stored communications

As the above cases illustrate, border entry/exit points to Australia are somewhat exceptional in terms of the powers of authorities such as the ABF due to the operation of the Customs Act.

More generally speaking, the ability of authorities to access data on stored communications devices is governed by the Telecommunications (Interception and Access) Act 1979(Cth) (the TIA Act). The TIA Act provides that stored communications may be accessed by enforcement agencies under a stored communications warrant to investigate a “serious contravention” of the law.

Stored communication is defined as:

  • Not passing over a telecommunications system;
  • held on equipment that is operated by, and is in the possession of, a carrier; and
  • cannot be accessed on that equipment, by a person who is not a party to the communications, without the assistance of an employee of the carrier.

Examples of stored communications include emails or SMS messages held by a carrier. ‘Enforcement agency’ includes the AFP; the ABF; a police force of a State; Australian Commission for Law Enforcement Integrity; the ACC; the Crime Commission; the Independent Commission Against Corruption; the Police Integrity Commission; the Crime and Misconduct Commission; the Corruption and Crime Commission; the Independent Commissioner Against Corruption; or an authority established by or under a law of the Commonwealth, a State or a Territory.

Under Section 3LA of the Crimes Act 1914, a member of the Australian Federal Police (AFP) or a state police force can apply to a magistrate for an order requiring a specified person to provide any information or assistance that is “reasonable and necessary” to allow the member to “access data held in, or accessible from, a computer or data storage device” subject to a warrant.

The magistrate may grant the order if he or she is satisfied that there are “reasonable grounds for suspecting that evidential material is held in, or accessible from, the computer or data storage device”, and that the person specified in the application is either “reasonably suspected of having committed the offence stated in the relevant warrant” or a person who is or was a system administrator for the relevant system that includes the computer or device.

Consult a specialist legal firm

At Hannay Lawyers we have helped many people who have been subject to random searches by government authorities. We understand the frustration, inconvenience and distress such interactions can cause. We can help advise you of your rights and options should you experience such an event at an Australian border point. Contact our Brisbane & Gold Coast criminal lawyers today on (07) 3063 9799 for a free, initial consultation.

Police Powers COVID-19

Police Powers During COVID-19

By | General News

While the severity of the global COVID-19 pandemic appears to be subsiding in Australia, at least, the changes to how we live and some of our laws are expected to remain for quite some time yet.

In Queensland, police have been given additional emergency powers in addition to their usual powers in order to enforce the special public health directions announced by Queensland’s Chief Health Officer (CHO) under the Public Health Act 2005 (Qld) (‘Public Health Act’).

These directions include the ability of police to restrict the movement of people, restrict access to public spaces, and if necessary, shut down businesses.

Many police enforcement powers provide for officers to use their discretion, particularly where people affected by the COVID-19-related rules seek to be excepted because they have a “reasonable excuse” (such as the need to travel to care for a family member, for example).

The combination of police discretion and someone with a reasonable excuse can prove problematic. Police can be over-zealous in enforcing the emergency rules, or misintepret a person’s reasons for not complying with them. Consulting a legal professional may be required if you feel you have been dealt with unfairly as a result of the special public health rules introduced to combat the pandemic.

More detail on police powers

The amendments to the Public Health Act allow police (and some other emergency workers) to:

  • Require a person to remain isolated in a place such as their home, or a hotel room or a hospital.
  • Enter private property to save human life; prevent or minimise serious adverse effects on human health; or do anything else to relieve suffering or distress.
  • If they enter private property for that purpose, police may also search the property and inspect and remove items.
  • Require a person to provide their name and address, and answer questions relevant to the public health emergency.

In the case that police issue their own direction to a specific person, they must give that person a chance to comply first before they consider a fine. A fine should only be issued if a person refuses to comply when directed to by police. Those who claim a reasonable excuse for breaching a CHO directive might still be questioned by police, but should not be fined.

Police are not obligated to provide a warning when enforcing a CHO direction because the direction itself has been made public. If a person misleads police, by lying about what they are doing or obstructing police in their duties, for instance, additional charges may apply.

What to do if you receive an infringement notice

Because the public health directives from the CHO are being constantly changed and updated as the course of the pandemic proceeds, there can be public confusion when it comes to compliance.

If you receive an infringement notice claiming you have breached a directive of the CHO, you have 28 days to challenge the notice by electing to have the matter determined in court. While information about how to do this is included on the notice itself, it’s advisable to consult with a law firm experienced in this area such as Hannay Lawyers before taking this course of action.

We can help clarify the best way to respond to the notice or, alternatively, help you ask police to review the decision on issuing an infringement notice. In some cases it can be shown that the notice will have an adverse affect on your ability to conduct your life normally, or that you did have a genuine and reasonable excuse for breaching the rules.

If you find yourself interacting with Queensland Police regarding breaching the special COVID-19 rules, contact our Gold Coast criminal lawyers today for a free evaluation of your case on (07) 3063 9799.

KNOW ABOUT SCHEDULE 1 DRUGS VS SCHEDULE 2 DRUGS

What to Know about Schedule 1 Drugs vs Schedule 2 Drugs

By | Criminal Law

It’s no revelation that having anything to do with illegal drugs can lead to severe criminal penalties if you’re caught, but what many people may not realise is that those penalties vary significantly depending on the type of drug.

In Queensland, illegal drugs are divided into Schedule 1 and Schedule 2 drugs. This article will detail the differences between the two types as well as how the penalties differ depending on whether someone is caught possessing, supplying or trafficking these drugs.

The amount of each drug is also a factor in drug offences, with possession of a small amount of cannabis for personal use obviously treated differently to possessing multiple bags which you intend to sell to others.

Schedule 1 drugs

More serious penalties apply to Schedule 1 drugs than Schedule 2 drugs. In Queensland, Schedule 1 drugs are divided into Part 1 and 2 drug types.

Schedule 1, Part 1 drugs include:

  • Heroin;
  • cocaine;
  • amphetamine
  • methlyamphetamine (commonly known as ice, or crystal meth);
  • phencyclidine (commonly known as angel dust);
  • lysergide (commonly known as LSD);
  • methylenedioxymethamphetamine (MDMA, commonly known as ecstasy);
  • paramethoxyamphetamine (PMA) and paramethoxymethamphetamine (PMMA) (drugs which are sometimes sold as ecstasy but are actually more powerful).

Schedule 1, Part 2 drugs includes all anabolic and androgenic steroidal agents.

Schedule 2 drugs include – but are not limited to:

  • Cannabis;
  • morphine;
  • pethidine;
  • ketamine;
  • diazepam;
  • codeine.

Schedule 2 drugs number over 100 – for the full, more extensive list of illegal drugs, check the schedules in the Drugs Misuse Regulation 1987.

Drug offences

You should seek immediate legal advice from experienced Gold Coast criminal lawyers if you find yourself charged within any of the offences relating to drugs outlined below.

It’s illegal to possess illegal drugs. It’s always important to understand that you can be guilty of possession even where you don’t own the drug and haven’t used it. Someone storing drugs in your bedroom in a share house could, potentially, constitute possession on your behalf. This is called ‘deemed possession’ and results in a presumption that if drugs are found on or in your property or premises, the court will automatically believe the drugs are yours unless you can prove that you didn’t know about them.

It’s illegal to supply drugs, including giving, distributing, selling, administering, transporting or supplying; offering to give, distribute, sell, administer, transport or supply; doing or offering to do anything in preparation for giving, distributing, selling, administering, transporting or supplying.

It’s illegal to traffic drugs, which involves supplying drugs as part of a business or commercial operation. It should be noted that just one transaction can qualify as ‘trafficking’.

It’s illegal to produce illegal drugs by growing, preparing, manufacturing and packaging drugs, or offering to do any of these things.

It’s also an offence to possess items for drug use, such as a bong, pipe or syringes, or to possess equipment for producing drugs, such as scales, lights and agricultural equipment.

Penalties

The penalties for drug offences vary depending on the type of drug, the amount you’re involved with and whether there are aggravating circumstances.

A sampling of penalties under Queensland’s Drugs Misuse Act includes:

  • Sentences of up to 25 years imprisonment for unlawfully trafficking Schedule 1 drugs or 20 years for Schedule 2 drugs.
  • Supplying dangerous drugs attracts a penalty of up to 20 years imprisonment for Schedule 1 drugs or 15 years for Schedule 2 drugs. Harsher sentences apply for aggravated circumstances, such as where the drug is supplied by an adult (a person 18 years or over) to: a minor (a person less than 18 years); a person with an intellectual impairment; someone within an educational institution or jail; or a person who does not know they are being supplied with a dangerous drug.

Other than imprisonment, courts can also impose Intensive Corrections Orders, a form of imprisonment served wholly in the community; probation, where a person may serve no longer than one year in prison and then be subject to a probation requirement upon release; or a Community Service Order which requires a person to perform unpaid work within the community for a certain number of hours over a six or 12 month period.

How we can help

Hannay Lawyers are experienced, award-winning criminal legal professionals who can provide expert advice and guidance if you are unsure about where you stand on the question of Schedule 1 or 2 drugs and the offences associated with them.

Contact our Brisbane Criminal Lawyers today on 1800 431 533 for a free consultation about how we can help you.

Ponzi Scheme

What You Need to Know About Fradulent Ponzi Schemes and Boiler Room Scams

By | Criminal Law

Sadly, a certainty in modern society is that there are always dishonest people willing to take advantage of those who are either gullible, greedy, or both. Australians lost a record $340 million to various scams in 2017.

The best example of this is the increasingly frequent use of fraudulent ‘ponzi’ investment schemes and ‘boiler room’ scams to deprive people of their money.

Queensland’s Crime and Corruption Commission (CCC) and the Queensland Police have attempted to crack down on both these activities in recent years, achieving a number of high-profile arrests and convictions.

In this article we outline the basics of how these schemes operate and how they defraud those who invest in them. Hannay Lawyers brings real world experience in providing legal advice and guidance to those who’ve experienced the consequences of ponzi and boiler room schemes.

What is a ponzi scheme?

A ponzi scheme usually starts with a promoter who offers an investment opportunity to potential investors offering unusually high returns. The promoter uses the initial funds invested to pay good ‘dividends’ to the early investors in the scheme – sometimes as high as 10% per month – thereby encouraging them to promote the scheme to others. As more investors join, often at the invitation of friends or family, the scheme’s funds grow. But eventually nearly all ponzi schemes collapse in on themselves when the promoter fraudulently spends the money invested, or new investors fail to join the scheme.

Perhaps the most famous ponzi scheme ever uncovered was that conducted by US stockbroker Bernie Madoff. Madoff was estimated to have defrauded investors of more than $64 billion in a ponzi scheme that resulted in him receiving a prison sentence of more than 150 years.

There are some hallmarks to look out for if you feel you are being enticed into, or are already in, a ponzi scheme.

  • The return on your investment is unusually, or suspiciously, high;
  • the investment was suggested to you by a trusted family member or friend;
  • the person who entices you into the scheme boasts of higher-than-average returns on their investment.

Recent local examples include the case of Gold Coast hedge fund director Ken Grace, who ensnared high profile sports stars such as Robbie McEwen and Sam Riley in a ponzi scheme run through Grace’s Goldsky Global Access Fund. The scheme collapsed in 2018 with Grace owing $25 million after he spent investors’ funds on himself and his family.

In December 2019, a Sunshine Coast couple were charged with multiple counts of fraud after allegedly scamming investors out of almost $1 million. The pair claimed to be kickstarting the career of a 23-year-old Australian country music singer in Nashville and asked for people to invest in her career in return for regular payments based on her success.

What is a boiler room scam?

A ‘boiler room’ scam is perhaps best known as the technique used by Jordan Belfort, the ‘Wolf of Wall Street’, and involves cold calling people to try and entice them into buying products and/or investments that are either vastly overvalued or completely worthless.

In Australia, offering financial products or interests in managed investment schemes during an unsolicited meeting or telephone conversation is generally restricted without prior consent by the recipient and a disclosure document.

Boiler rooms can operate from anywhere in the world. They are generally set up as an outgoing call centre where telephone sales people, usually operating under an assumed name, pressure those who take their call using dishonest sales methods to invest money, purchase stocks or purchase predictive stock market computer programs.

Those who receive a call from a boiler room scheme have often appeared on an address list purchased by the scammers that identifies those who have a high net worth and also demonstrated an interest in making higher-than-average investment returns.

To help perpetrate the fraud, the scam will often present as a professional and legitimate business, with website, colour brochures and a virtual office in a prestigious CBD building in a major city. Correspondence is provided on official-looking letterhead and signed by apparently reputable office holders such as a Chief Financial Office or Chief Finance Officer.

Once the product purchase proves to be ineffective or even non-existent, the company will usually ‘phoenix’, meaning the ‘face’ company closes and begins trading under a new name, often with the same salespeople using new names. This transformation also involves changing all public information provided about the organisation, including phone numbers and website. Meanwhile, investors’ money has been laundered to finance the scammers’ activities and lifestyles.

In 2016, the CCC and Queensland Police arrested and charged seven people on the Gold Coast for running a boiler room scam. The operation was peddling software packages and investment schemes which allegedly earned them between $10-20 million.

Should you receive a cold call about an investment opportunity, remind yourself of the following:

  • Beware of offers to make quick and easy money.
  • Obtain independent, expert legal and/or financial advice before making any hasty investment decision.
  • Check with ASIC as to whether the organisation you’re dealing with is registered and legitimate.
  • Check everything else you’re able to about the people who have called you.

Speak with experienced lawyers

If you have been approached to put your money into an investment scheme, whether by a family member, friend or someone cold-calling on the phone, stop and think before acting. This is doubly the case where the offer sounds too good to be true, or promises better returns than from any other investment you hold. As some of the examples we’ve included in this article show, there’s every chance it’s a scam.

If you’ve already made the fateful decision to act and now fear you won’t see your money again, speak today with Hannay Lawyers. We have years of experience in providing understanding advice to those who’ve been victims of fraud and misrepresentation. We’ll provide a free consultation right now on 1800 431 513.

Covid-19 Court Proceedings

The Effects of COVID-19 on Court Proceedings

By | General News

All areas of the Australian community have been heavily impacted by the onset of the COVID-19 pandemic. From school closures to the shutting down of workplaces, shops and even beaches and parks, the efforts to stop the spread of the disease is and will have far-reaching consequences for the way we live.

This includes the judicial system. The need for social distancing to prevent further community transmission of COVID-19 obviously impacts the ability of the court system to conduct proceedings in its usual way, particularly those elements that require people to be in close contact for extended periods of time such as jury trials.

This article serves as an overview of the ways the courts have reacted to the measures implemented to halt the march of the pandemic, and how it might affect you if you were waiting on a date to appear in court, have a legal matter ‘on foot’ (already before the court), or need a resolution of some other matter to be determined by the courts.

The state of play

While Australian courts remain ‘open’, during March most courts issued new procedures for their continuing operation in light of the necessary safety measures required by the COVID-19 pandemic. Both Federal and state courts have now primarily moved to video conferencing and electronic filing of documents in order to reduce the need for person-to-person contact in conducting their daily business.

High Court: The highest court in the land, the High Court of Australia, announced that it would not sit in Canberra or on circuit from April 2020 until June 2020, after which future sittings will be reviewed. The High Court will continue to deal with special leave applications, including hearings as necessary at individual registries, as well as any urgent matters that may arise by video link between registries and Canberra.

Family courts: Both the Family Court and the Federal Circuit Court of Australia also announced new practice directions during March in light of the safety measures made necessary by COVID-19. Judges, Registrars and staff remain in place to conduct hearings both via videoconferencing through the use of Microsoft Teams or other platforms, or by telephone. The Courts are also conducting mediations electronically and through other safe means.

In exceptional circumstances, a small number of face-to-face in-court hearings will be conducted by the Family Court, with social distancing requirements strictly followed. Face-to-face interviews by family consultants will only take place in exceptional circumstances.

The Family Court’s registries remain open for telephone appointments, electronic filing and the listing of urgent cases.

Federal Court: The Federal Court has modified its practices to minimise in-person appearances before the Court. Parties to proceedings have been requested to identify (with the assistance of the Court) opportunities by which listings may proceed either by way of telephone conference or other remote access technology.

Any listings that would usually be dealt with by in-person attendance and can’t be dealt with by alternative means have been vacated or adjourned until the end of June 2020 unless in exceptional circumstances and with the authorisation of the Chief Justice. The court is attempting to operate at 50-60% of normal capacity via electronic means and by ‘triaging’ newly filed judge matters. All documents must be filed electronically or, if this is not possible, by calling the registry for assistance on how to file.

Queensland Supreme and District courts: Like other courts, the Queensland courts are seeking to minimise physical attendance by parties and legal representatives during the course of the COVID-19 pandemic. Accordingly, lawyers in civil matters have been encouraged to use telephone or video link to make applications and call witnesses wherever possible; making applications on the papers where feasible; minimise the number of people who need to attend court for any given matter; and seek to resolve issues to reduce the need to attend court in person.

In criminal matters, legal practitioners have been asked to identify trials which are urgent because defendants in custody have spent time on remand approaching the period likely to be served on any sentence. They have also been asked to consider seeking adjournment of sentencing matters where clients are complying with bail conditions, appear by phone for mentions and reviews, and consider bringing on matters that don’t require witnesses or the presence of defendants in court.

On March 19 it was also announced that all new trials requiring a jury in Queensland would be suspended until further notice. Criminal trials that had already started before a jury in the Supreme and District Courts would continue until their conclusion. Jurors with a summons to attend court were directed to contact the number shown on their summons.

Queensland Magistrates Court: From March 30, the Queensland Magistrates Court has announced there will be no physical appearances in any matter except:

  • By an aggrieved person in an urgent non-police, private domestic violence application;
  • the media;
  • with leave of the Court.

All matters will also be conducted by telephone or video conference, including appearances by persons in custody. Parties to a proceeding may contact the Court in which the proceeding is listed to obtain the telephone contact details to enable the party to participate in a conference call.

By remote means, the courts will continue to hear:

  • Overnight custody arrests – both adults and children.
  • Urgent domestic violence applications including applications to vary domestic violence orders.
  • Urgent child protection applications including applications to vary existing child protection orders.
  • Bail applications including applications to vary bail.
  • Domestic violence applications currently before the Court which have not been considered.
  • Sentences, including lengthy sentences, where a person is likely to be released from custody.
  • Where a defendant is in custody – committal and summary mentions.
  • Urgent regional Queensland Civil and Administrative Tribunal (QCAT) matters heard in the Magistrates Court.
  • Applications under the Police Powers and Responsibilities Act 2000.
  • Civil applications dealt with on the papers.
  • Other matters where leave is given by a Magistrate.

Speak with experienced legal professionals

These are unprecedented times requiring an emergency response that has disrupted all of our normal, routine procedures. If you are unsure about the status of your legal matter in terms of court appearances – upcoming, current, or future – contact our Brisbane and Gold Coast criminal lawyers today on 1800 431 533 for a free consultation about where you stand.

Bail Applications

How Has Covid-19 Affected Bail Applications in Queensland

By | General News

The COVID-19 pandemic has affected every part of society for the foreseeable future, including how courts treat applications for bail or variation of bail conditions.

A number of cases in Queensland, NSW and Victoria have already demonstrated how courts are taking a more lenient view on the granting of bail to help mitigate the effects of the disease.

Bail has been granted in circumstances where usually it may not have been, with COVID-19 considered as a factor in the decision. Below we look at how Queensland courts are dealing with bail matters and what it might mean for your matter.

If you’re unsure, call Hannay Lawyers today for up-to-date guidance on how a bail application might be affected by COVID-19 measures.

Are the courts still hearing applications for bail?

The Magistrates courts in Queensland continue to hear bail applications and variations of bail conditions but under modified conditions due to the pandemic. There will be no physical appearances in court except in exceptional circumstances. All matters will be conducted by telephones or videoconference appearances.

In criminal matters where a defendant is on a Notice to Appear or bail, these will be adjourned to a date not less than two months from the first appearance. No attendance is required from the defendant.

Where a defendant has signed an undertaking, bail will be extended in the absence of the defendant. A Notice of Adjournment with the new date will be sent to the parties and their legal representatives.

In regards to sentence hearings in the Queensland Supreme and District Courts, legal representatives in criminal matters have been asked to refrain from seeking to list and consider seeking adjournment of listed matters where they have a client facing a custodial sentence but who is complying with his or her bail conditions. This practice is encouraged both to reduce the number of people attending court and the amount of matters before the court during the pandemic.

The courts’ approach to bail as a result of COVID-19

A number of cases in Queensland, NSW and Victoria before the courts since the onset of the pandemic have given greater scope to successful bail applications in response to new charges, or even where an earlier bail application was unsuccessful.

Bail is still unlikely for cases involving someone charged with murder or where the alleged offending is so serious that conviction would result in a lengthy custodial sentence.

Where an accused is elderly and/or suffers health complications making them particularly vulnerable to coronarvirus, or the Crown case against the accused is considered weak, an exception to the granting of bail is possible. In all other circumstances a detailed justification for bail will be required.

In the recent Queensland case RE JMT [2020] QSC 72, JMT was one of five youths conjointly charged with murder and grievous bodily harm after an incident in December 2019. After 100 days in custody, JMT made an application for bail. In assessing the application the judge considered three impacts of COVID-19 on the matter. Specifically, the significant delay in the finalisation of the criminal proceedings against JMT because of the effects on the justice system of the pandemic; the consequences of imprisonment due to the measures prisons have implemented to prevent the spread of COVID-19; and the risk of transmission of the disease to JMT.

Also taken into consideration was that the Crown case against JMT was “not without difficulties” and that his involvement in the fight leading to the murder was relatively minor. These factors plus the delay in finalisation of proceedings due to COVID-19 meant the judge found JMT eligible for bail and that his continued detention was not justified.

Similarly, Queensland’s Deputy Chief Magistrate recently granted bail to a defendant charged with terrorism-related offences which were alleged to have been committed in New South Wales. The magistrate’s decision was based on the exceptional circumstances created by the pandemic response, specifically:

  • The significant delay associated with the defendant being transferred to New South Wales and obtaining a jury trial, resulting in him spending considerable time on remand.
  • The difficulty for the defendant to have contact with his family and legal      team for a significant period of time.
  • The heightened threat to the defendant of contracting the virus in New South Wales and while in custody.

Consult experienced legal professionals

In summary, for those charged with a criminal offence or in custody awaiting a court proceeding, applications for bail currently have an increased chance of success as a result of the COVID-19 crisis.

The evolving impacts of the disease, including significant delays in criminal matters being heard by courts, the fears of a coronavirus outbreak among prisoners held in correctional facilities across Queensland, plus no-contact and increased movement restrictions placed on prisoners, are all being considered in assessing the merit of bail applications or variations of conditions.

If anything raised in this article applies to your situation, contact our Brisbane criminal lawyers for a free consultation today on 1800 431 513. We are an award-winning law firm with years of expertise in criminal law matters and can help you navigate all issues related to the current COVID-19 pandemic.