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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 us 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 us today 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 Brisbane & 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 Brisbane & 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 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 Hannay 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 & Gold Coast 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.

Queensland Racing Integrity Commission

What You Need to Know About the Queensland Racing Integrity Commission

By | General News

The Queensland Racing Integrity Commission (QRIC) was formed by the Queensland government in 2016 to oversee and enforce standards of integrity in the sports of thoroughbred, greyhound and harness racing, as well as safeguard the welfare of the racing animals involved.

Reporting to the Queensland Minister for Racing, the QRIC sets out the standards under which the racing industry operates and also the penalties incurred when those standards are breached. By doing so it seeks to prevent and detect crime, as well as uphold the Rules of Racing.

Some of the QRIC’s functions

In upholding the integrity of the industry and the standards of welfare expected for racing animals, the QRIC is empowered to perform a number of functions, some of which include:

  • Administering the licensing of animals and industry participants;
  • managing the integrity of race meetings through stewarding activities;
  • managing the testing of animals and industry participants for the use of banned substances;
  • safeguarding the welfare of animals involved in racing;
  • investigating compliance with the Racing Integrity Act 2016, the Racing Act 2002 and other relevant laws;
  • collaborating with other agencies responsible for investigating and prosecuting animal welfare offences;
  • reviewing and assessing the practices of participants and clubs in the racing industry; and
  • conducting audits and investigations of racing control bodies.

In carrying out its role, the QRIC Commissioner can request that a person attend and provide answers to questions asked by the Commission in relation to an audit or investigation. That person may also be asked to provide information, documents or a thing.

Authorised QRIC officers have investigative powers similar to those given to RSPCA inspectors to gather evidence in cases of animal cruelty, including the power to enter property, seize animals, issue animal welfare directions, take notes and initiate prosecutions.

Stewards appointed by the Commissioner are there to enforce the Rules of Racing and can penalise any person in breach of these rules.

What to do if you are called before the QRIC

Any person associated with the activities the QRIC is empowered to monitor and penalise in case of breach may be called before the QRIC as part of an investigation or audit.

The QRIC can issue suspensions, disqualifications and fines for breaches of the standards. Toowoomba thoroughbred trainer, Ben Currie, for example, was disqualified from training horses for two years in June 2019 after he was found guilty of 12 race day treatment charges under the Rules of Racing.

In that case, Mr Currie was permitted legal representation to appear before the Commission, as well as for a subsequent internal review which confirmed his disqualification.

If you are called before the QRIC, therefore, it’s advisable to seek the advice of experienced legal practitioners as soon as possible in order to prepare the best possible defence to any allegations made against you by the Commission under its powers.

Right of review

The QRIC operates within the appeals system of internal review and the Queensland Civil Appeals Tribunal (QCAT) as set out in the Racing Integrity Act.

If a person the subject of a QRIC investigation or audit is dissatisfied with a decision made by the Commission in relation to a Right to Information request, they can apply to have that decision examined under internal review by an officer within the Commission of equal or higher level. They may also apply directly to the Office of the Information Commissioner for an external review, whether or not the Commission has internally reviewed the decision.

An application to have a decision internally reviewed must be made within 20 business days of the date of the letter communicating the original decision.

For external review by QCAT, for instance, you must apply in writing to the Information Commissioner within 20 business days of the date of the internal review decision or within 20 business days of the original decision. In Mr Currie’s case, for example, he was granted a stay of proceedings by QCAT against the decision by QRIC stewards to refuse to accept nominations of his horses for racing, allowing him to continue to train horses. A subsequent QRIC internal review then confirmed his disqualification from the industry.

It’s important to seek the expertise of a legal professional should you be the subject of a QRIC investigation or audit. Hannay Lawyers can help you prepare for an appearance before the Commission, gather evidence for your defence, and help clarify your appeals options in the event a decision goes against you. We’re an award-winning firm with wide experience in advising and representing people before statutory bodies such as the QRIC, so contact our Brisbane & Gold Coast criminal lawyers today on (07) 3184 2323.

Coercive Hearings

What You Need to Know About Coercive Hearings

By | General News

In the past couple of decades several government agencies – particularly those formed to fight organised crime – have gained important coercive powers as part of their investigatory role which allow them to compel a person to appear before them to answer questions, often in secret.

Many prominent legal experts regard the growth of these coercive powers as infringing on individual rights and wider rule of law principles in Australia. This is because a coercive hearing is not like a court hearing in a couple of important ways: firstly, you do not have the right to silence when summonsed to appear before a body exercising its coercive powers; and secondly, the usual privilege against self-incrimination is not permissible as a basis for refusing to answer the questions put by the agency.

Another important distinction is that coercive hearings are not conducted to make findings of guilt and innocence, but to determine the truth of the matter under investigation. This means that if a witness is compelled to give evidence during a hearing that may incriminate them in a criminal offence, that evidence cannot later be used against them in any criminal, civil or administrative proceedings. The evidence can be used, however, to assist the investigation and as the basis for calling the witness to give evidence in a court against another person at a later trial.

Anyone compelled to give evidence at such a hearing is entitled to legal representation. This is obviously a sensible course to take given witnesses are obliged to answer the questions put to them.

Which type of agencies conduct coercive hearings?

Queensland’s Crime and Corruption Commission (CCC), the Australian Crime Commission (ACC) and the Australian Securities and Investment Commission (ASIC) are three prominent examples of government agencies, at both state and federal level, that have the power to conduct coercive hearings. Below is what to expect if called as a witness by any of these statutory bodies.

CCC: In Queensland the CCC has the power to compel the attendance of witnesses and require them to answer questions and/or produce documents where the Commission is undertaking a major crime investigation or a specific intelligence operation.

The CCC notes that its coercive hearings power is usually at the request of Queensland police and is most often used for unsolved murders, the abuse of children and organised crime investigations involving drug trafficking, money laundering, or crimes involving the use of weapons.

As mentioned, a witness compelled to appear before the CCC must answer the questions put to them. It should also be noted that it is an offence to lie at a CCC hearing and doing so may make a witness liable to prosecution for perjury.

There is oversight of how the CCC uses its coercive hearings power. The Parliamentary Crime and Corruption Committee (PCCC) and the Parliamentary Commissioner monitor and audit the Commission’s exercise of these powers, and handle relevant complaints against the CCC. It’s important to note that certain decisions connected to how hearings are conducted may be appealed to, or judicially reviewed by the Supreme Court. Expert legal advice should be sought in these circumstances.

ACC: This is a Federal statutory authority providing intelligence, investigation and criminal database services in order to tackle serious and organised crime. It has substantial powers to summon witnesses before an Examiner to give evidence or to provide documents or other materials as part of one of its investigations.

It is an offence to refuse to appear before the Examiner, or give evidence, or provide documents or other things to the Examiner, if requested. The penalty for committing this offence can be as severe as imprisonment.

ASIC: ASIC is the statutory body that regulates Australia’s companies, financial markets, and financial services organisations and professionals who deal and advise in investments, superannuation, insurance, deposit taking and credit.

ASIC has the legislative power to require a person attend an examination and answer questions on oath or affirmation. It can only call on this power if it suspects or believes the person can provide information that is relevant to a formal investigation ASIC is, or intends to, conduct. Commencing a formal investigation requires that ASIC has reason to suspect a contravention of the law has occurred, and that the reason to suspect this is more than mere speculation.

If you are asked to appear before an ASIC hearing conducted as part of an investigation, ASIC must issue you with a notice in writing. The notice must state the general nature of the matter it is (or intends to) investigating, but does not need to inform you of the nature of the questions to be asked. It should also set the time and place for the examination.

You have several rights to be aware of if called to appear at an ASIC hearing, including the right:

  • To be represented by a lawyer;
  • to know the examination will take place in private;
  • to request a record of the examination is made;
  • to refuse to answer questions because the answer would disclose information that is covered by a valid claim of legal professional privilege (note: you will need to be able to explain why legal professional privilege applies to the answer).

Like the CCC and ASC hearings, it is a requirement that you answer the questions put to you at an ASIC hearing, irrespective of whether the answer may tend to incriminate you or make you liable to a penalty. Again, any incriminating information you provide may not be used against you in a criminal prosecution or to impose a pecuniary penalty on you, other than in perjury proceedings.

Seek legal advice

Being compelled to appear before investigative bodies such as the CCC, ACC and ASIC is a serious matter. The fact hearings are conducted with strict confidentiality and that there are firm penalties for refusing to appear or refusing to answer questions mean that the advice and guidance of legal professionals with experience of dealing with these agencies is crucial.

At Hannay Lawyers, we have award-winning legal professionals with years of experience in advising and representing people asked to appear before statutory bodies such as the CCC. If you’ve been given notice to appear, contact our Brisbane & Gold Coast criminal lawyers today for an initial consultation on (07) 3184 2323.

What to do During a Search Warrant Execution

What to do During a Search Warrant Execution

By | General News

While most of us have no doubt seen police brandishing search warrants to enter someone’s home in cop shows, it’s doubtful many of us are actually aware of what our rights are in this situation.

In Queensland, police are not generally permitted to enter your premises. If they attempt to do so, you are entitled to refuse them entry at the front door and clearly state that you have not invited them in and do not give consent for the officers to enter or remain on your property. There are certain circumstances where police can enter your premises without warrant, detailed in the Police Powers and Responsibilities Act 2000 (‘PPR Act’), including if they reasonably suspect that evidence of an indictable offence (or a limited number of other offences) is on your property, and that the evidence may be concealed or destroyed unless the place is immediately entered and searched. They can also enter to serve a legal document, in an emergency, to arrest someone, or to reach a crime scene.

But in all other circumstances, police require a search warrant applied for through a Justice of the Peace, Magistrates Court, or Supreme Court. A warrant sets out their search powers and so it’s important to understand what your rights are if your premises are the subject of the warrant.

You’ve been presented with a search warrant – what do you do next?

If police arrive on your doorstep and say they have a search warrant, it’s important at the outset to maintain a firm but co-operative attitude. You are entitled to ask them to produce the document for your perusal. You should challenge any incorrect details on the warrant. The police are obliged to give you a statement of their powers under the warrant. Most warrants will include powers to:

  • Detain anyone present;
  • remove wall panels, floor panels and ceiling panels to search for evidence;
  • take photographs of items that may be seized for evidence
  • dig up your yard;
  • open locked areas such as safes, filing cabinets, or cupboards, and;
  • search anyone on the premises.

It should be noted that the police cannot damage a building’s structure unless the warrant was issued by the Supreme Court and this act is clearly stated as a term of the warrant. Under the PPR Act, police may enter premises to the extent permitted by the warrant and use all powers necessary to execute it, including reasonable force.

Despite the powers given to police in the warrant, if it’s the case that consent to enter would not otherwise be given, you should make this clear to the officers and, if possible, record the interaction. This is important in case your legal representative later decides you have grounds to challenge the validity of the warrant.

Answering police questions

Be careful in responding to any questions asked by police during the execution of a search warrant. Ideally you should speak with an experienced legal representative before responding to police questions.

Be aware that in conducting a search of premises under the terms of a warrant, police will usually record their interactions with you (either openly or covertly) and therefore you need to be wary about how you respond to any questioning as these answers may become evidence in a later legal proceeding against you or others.

Attending police officers must give you a receipt for any items seized from your property that they believe to be evidence supporting a criminal charge. Be aware that if any of your property is damaged during a search, you won’t necessarily be compensated afterwards, depending on the terms of the warrant.

This property may include your mobile phone, which will obviously contain a large amount of personal information. Under the PPR Act, it is an offence to refuse to give police the password/PIN code to your mobile device, other storage device and the apps stored on them, if they have a search warrant. Be sure to check the warrant to ensure police have the power to search and seize personal devices, otherwise you should not consent to police looking at your mobile phone.

In conclusion

Being confronted at your front door by police officers brandishing a search warrant can be an intimidating and frightening experience. By following some of the suggestions above you can protect, as best as possible, your rights and entitlements in this serious situation.

As soon as possible, however, you should speak with an experienced criminal law professional to assess your situation, particularly if you did not provide consent for police to enter., or if you are unsure about whether the powers in the warrant were complied with, or if you had personal property seized as evidence.

Hannay Lawyers has years of experience in these particular situations and has won numerous industry awards for our ability to represent people in criminal matters. If you have any queries or concerns about being presented with a search warrant, contact our Brisbane & Gold Coast criminal lawyers today on (07) 3184 2323.