In this podcast, Lee Quinn discusses the commonly asked question relating to boating offences and their impact on your motor vehicle licence.
Not happy with a decision that has been handed down in your criminal law matter? In this podcast, Daniel Hannay, Criminal Lawyer from Hannay Lawyers on what you need to know if you wish to lodge an appeal.
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 3063 9799.
Magistrates Courts across Queensland are open and hearing cases. This Practice Direction positions the Court to respond to the evolving situation. Arrangements are being put in place to respond to COVID-19 to ensure the spread of the infection is limited as far as possible and to continue to provide Court services to the Queensland community.
Read More Here
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 criminal lawyers today for an initial consultation on 07 3063 9799.
Search warrants often form the evidentiary basis of criminal charges, yet criminal lawyers can often overlook scrutinising those warrants to ensure they were lawful.
Hannay Lawyers’ Lee Quinn shows what happens when diligence and experience is applied to the analysis of search warrants.
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.
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 Gold Coast 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 criminal lawyers today on 07 3063 9799.
The name of leading criminal law practice “Hannay Lawyers” is becoming synonymous with supporting young boxers on their way to ring success.
To date, their most notable protégé has been Jeff Horn, the Australian professional boxer who held the WBO welterweight title from 2017 to 2018 who returns to the ring in April against Tim Tszyu.
However, prior to capturing both the attention and heart of a nation, Horn, the well-spoken young boxer who outside the ring is a school teacher, was sponsored by Hannay Lawyers on his early path to glory.
“We knew Jeff had something special as soon as he came into the office,” Daniel Hannay said.
“Both my father, Chris and I liked his demeanour, professionalism and vulnerability. He was honest and transparent and had all those qualities of a good young bloke that are hard to get in a boxer.”
Daniel admitted that the firm “copped it” a little from the unbelievers when the firm signed up to sponsor Horn.
This time around, Hannay Lawyers is doing it again with another up and coming charge, Joel Camilleri.
“We’re seeing something in Joel that we saw in Jeff and we believe with the help of Dundees Boxing & Fitness Gym, he’s on his way to become a World title-holder,” Daniel Hannay said.
Bail is a very important concept if you’ve been charged with a criminal offence. Understanding how it works can be the difference between staying in police detention until the charges against you are heard and decided, or remaining at liberty until your day in court.
If you’re granted bail and remain free until it’s time to go to court, you have the advantage of the support network of your family and friends during a difficult time, as well as a better chance to prepare a defence to the charges. Both these things are harder if you’ve been remanded in custody.
There are a number of steps involved in applying for bail, governed in Queensland by the Bail Act 1980. This article touches briefly on the initial steps but focuses on the role of the Supreme Court in deciding applications. For some of the more serious criminal charges, such as murder, only the Supreme Court can hear bail applications.
What is the process of applying for bail?
Bail is a written promise you sign, referred to as an undertaking, that allows you to remain free until you attend court on the date written on the undertaking to face the charges against you.
Being granted bail generally means you agree to a number of conditions, some of which include regularly reporting to a police station; living at a certain address; and having someone act as a surety (a sum of money provided by a person, which is forfeited if you later fail to show up at court). Bail can be revoked, or prompt a new charge of breaching bail, if you fail to comply with these conditions.
In smaller, less serious criminal matters, the decision on granting bail can be made by a police officer at the watch house. If the matter is more serious or the police refuse you bail, they are obliged to take you to court as soon as practicable to apply for bail. The District, Magistrates and Supreme courts can hear bail applications. Generally police will take a charged person to the Magistrates Court for them to apply for bail. If a person is refused bail by a Magistrate, they may apply for bail to the Supreme Court. As discussed, certain serious charges such as murder can only be heard by the Supreme Court.
Applying for bail in the Supreme Court
In order for the Supreme Court to hear a person’s bail application, an application must be made to the Court’s registry which includes any affidavits or other supporting documentation. If you were refused bail by the police or in a lower court, state this in the supporting affidavit and explain any change of circumstances that justifies a reapplication.
Once the indictment (or charge) has been presented, you can apply for bail in the Supreme Court.
In considering a bail application, the Court will consider:
- The seriousness of the crime you’re charged with;
- whether you have a place to live and are employed;
- whether you’re of good character and background;
- whether you have previous criminal convictions;
- whether your charges relate to domestic and family violence matters;
- whether you have breached bail before;
- whether you are likely to appear in court;
- whether you will endanger the public’s safety or welfare if allowed to remain at liberty;
- whether you’re likely to interfere with witnesses or otherwise obstruct the course of justice; and
- whether you are likely to reoffend.
Apart from the conditions outlined above, the court may also impose other conditions on the granting of bail including limiting your contact with the complainant or any witnesses to the alleged criminal act; non-consumption of alcohol or drugs, or attendance at rehabilitation; curfews, if the offender is a youth.
A further application to court will be required if you’re granted bail but wish to change the conditions imposed on you. The advice of an expert criminal lawyer should be sought if you wish to vary your bail conditions. In some circumstances, the Director of Public Prosecutions (DPP) may agree to the conditions being changed.
There are a number of stringent procedures to follow in order to apply for bail, particularly if you’re making an application to the Supreme Court. This is where the guidance and expertise of highly experienced lawyers such as our professional team at Hannay Lawyers is invaluable. Our in-depth knowledge of the steps involved in applying for bail allow us to help you navigate the administrative process and give you the best chance of a successful bail application, at a time when you will need all the help you can get.
Perhaps you’re involved in a civil dispute with your neighbour about a dividing fence. Maybe you’re a tenant who has an issue with your landlord. You might feel you’ve been discriminated against in the workplace, or you need to apply for guardianship of an elderly relative. Perhaps you are on the wrong end of a decision by a government agency, or wish to pursue a disciplinary issue against police or health professionals. In any of these cases, you will likely end up interacting with the Queensland Civil and Administrative Tribunal (QCAT).
QCAT exists to resolve disputes and make decisions in a way that is “fair, just, accessible, quick and inexpensive”. Its set-up is less formal than a court, but it can still make final decisions that are binding on the parties. For that reason, if a judicial member of QCAT (someone able to make an ‘enforceable’ decision) makes a decision with which you don’t agree, there are avenues of appeal.
Who classifies as a judicial member of QCAT?
A judicial member of QCAT includes:
- the tribunal’s president and deputy president;
- a supplementary member who is a Supreme Court judge or District Court judge;
- a senior member or ordinary member who is a former judge and the president nominates to exercise the tribunal’s power to make an order or give a direction.
Non-judicial members are all other QCAT members, including adjudicators.
How is an appeal made?
If you disagree with a decision made by QCAT, your avenues of appeal are to the QCAT Appeal Tribunal or Queensland Court of Appeal (a division of the Queensland Supreme Court).
Only decisions made by non-judicial members of QCAT can be made to the QCAT Appeal Tribunal. Decisions made by judicial members of QCAT must be appealed to the Court of Appeal.
In order to make an appeal to the Court of Appeal, you must demonstrate that it is based on:
- a question of law, i.e. a question which must be answered by applying relevant legal principles, by an interpretation of the law; or
- a question or fact, i.e. a question which must be answered by reference to facts and evidence, and inferences arising from those facts; or
- a question of mixed law and fact.
If you’re applying on a question of law, you do not have to ask the Court of Appeal for permission to appeal QCAT’s decision. If you are appealing on a question of fact, or a mixed question of fact and law, you must seek the Court’s permission in order to appeal.
In hearing the appeal, the Court will conduct a new hearing which will consider the original information and evidence presented. Any new information and evidence may only be presented if you make an application to the Court of Appeal and your request is approved.
It should be noted that an appeal does not affect the operation of the original QCAT decision, although in some cases the QCAT or the Court of Appeal can make an order staying, or temporarily stopping, the decision from being carried out until the appeal is finalised.
Deciding whether to appeal
In order to decide whether you have grounds to appeal an QCAT decision based on the reasons above, you should first apply for written reasons for the decision. A person is entitled to request reasons for a decision within 14 days after the decision takes effect, which is usually the day on which the decision was made. Applications can be made online at the QCAT website or by completing the QCAT ‘request for reasons form’.
QCAT must respond to your request within 45 days and this may result in provision of a transcript or audio recording of the part of the hearing during which the reasons for the decision were orally given.
In reviewing these reasons it’s important to identify any errors which would justify you commencing an appeal, and this is where expert legal advice can prove vital in determining whether an appeal is the wisest course.
A lawyer with expertise in QCAT processes can help answer questions such as:
- What findings of fact were made?
- What legal rules did QCAT apply and how did it apply them to the facts?
- Were there any defects or errors in the procedures that QCAT used?
- Did QCAT consider everything that it was required to consider, or omit to consider anything that it was required to consider?
Reopening proceedings and setting aside decisions
In some cases an appeal of a QCAT decision may not be appropriate. Instead, in cases where you did not attend the hearing at which the decision was made, or you have been made aware of significant new evidence since the time of the hearing, it’s possible under the QCAT Act to apply to re-open the proceedings.
It’s also possible to apply to have the decision set aside if QCAT made a decision by default when you did not respond to an application made against you. In deciding an application to set aside a default decision against you, QCAT will consider:
- whether the applicant can demonstrate a prima facie defence;
- whether the applicant can provide an explanation as to why they failed to file a response;
- whether the applicant delayed in making the application to set aside the decision;
- the applicant’s good faith, including their conduct in the proceedings before and after the default decision was made; and
- whether the other party would be prejudiced if the default decision was set aside.
You should also note that an application to appeal against a QCAT decision to the Court of Appeal must be lodged within 28 days of you receiving the reasons for the decision.
Seek legal advice
QCAT makes findings on what can often be controversial issues between citizens, sometimes later enforceable in court when made by a judicial member of the Tribunal, so disagreement with some of their decisions is inevitable.
If this is your situation, it’s advisable to seek legal advice as to the best way to proceed. Hannay Lawyers can help analyse your matter to determine whether you should apply to reopen the proceedings, have the decision set aside, or appeal the decision to the Court of Appeal. Call our Gold Coast criminal lawyers today on 07 3063 9799.
In Queensland a charge of causing grievous bodily harm (GBH) is a very serious criminal offence. The Queensland Criminal Code defines three types of GBH offence: intentionally causing GBH, unlawfully doing GBH, and dangerous driving causing GBH.
While a custodial sentence will often be the result of committing one of the offences above in Queensland, it is not inevitable if you are properly advised by an experienced Brisbane criminal lawyer. The prosecution must prove you committed the offence beyond a reasonable doubt and there are other defences available, some of which are outlined below.
What Is GBH?
Section 1 of the Queensland Criminal Code defines GBH as:
- the loss of a distinct part or an organ of the body; or
- serious disfigurement; or
- any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health.
What do the various charges mean?
The most serious charge is that you intentionally caused GBH (rather than that you simply caused it without lawful excuse), which carries a maximum penalty of life imprisonment.
Under section 320 of the Queensland Criminal Code, unlawfully doing GBH carries a maximum sentence of imprisonment of 14 years. ‘Unlawful’ is generally defined as “not authorised, justified or excused by law”. It should be noted that a charge of unlawfully doing GBH does not require any proof of intent. It is also important to note that it is not necessary for the prosecution to prove that the defendant was the sole cause of the injury. As the High Court decided in 1991 case Royall v The Queen, conduct that constitutes a significant or substantial cause of the injury can be enough.
In Queensland, dangerous driving causing death or grievous bodily harm is a serious criminal offence that carries a maximum penalty of 10 years imprisonment. In order for you to be convicted of an offence of dangerous driving causing death or grievous bodily harm, the police must prove that:
- You were driving a motor vehicle, or you interfered with someone who was, and;
- your driving, or interference, was dangerous, and;
- as a result of your driving or interference, another person was killed or suffered grievous bodily harm.
In some cases certain facts will be treated as ‘aggravating’ and therefore deserving of increased punishment. In GBH offences, aggravating circumstances includes where:
- A person is a participant in a criminal organisation and is convicted of causing GBH. This can result in the imposition of a minimum of seven years’ imprisonment in actual custody, on top of the sentence for unlawfully causing GBH.
- If the GBH offence was committed in a public place while the person was adversely affected by an intoxicating substance. In this event, community service must be ordered as part of the punishment, whether or not the court imposes another punishment.
- If the GBH is part of a ‘domestic violence offence’, the court will treat this fact as an aggravating factor unless it is not reasonable because of the exceptional circumstances of the case.
What are the defences to a GBH charge?
There are a number of possible defences available to someone charged with a GBH offence. The guidance of a criminal lawyer with experience in this area is highly advised in order to work out the best strategy to defend any charge.
It is up to the prosecution to establish all the elements of the offence beyond a reasonable doubt. This is sometimes referred to as a ‘default’ defence in criminal matters.
Other common defences to GBH include:
Accident: If an ‘event’ occurs that the person does not intend or foresee as a possible consequence, and an ordinary person would not reasonably foresee as a possible consequence, then a person may have a defence to a charge of GBH. But a person is not excused from criminal responsibility for GBH that results to a victim because of a physical defect, weakness or abnormality, even though the offender does not intend or reasonably foresee the death or grievous bodily harm.
Self-defence: This defence is divided into whether you were subject to an unprovoked assault, or provoked an assault. In terms of the former, Section 271 of the Criminal Code makes it legal for a person to use such force as is reasonably necessary to defend them against an unprovoked assault. The force used must not be intended or likely to cause death or grievous bodily harm, and must be proportionate. If the person being assaulted reasonably fears that their attacker may cause death or grievous bodily harm, that person can use necessary force to defend themselves (or the person being attacked) even if the force causes the death of, or grievous bodily harm to, the attacker.
Mistake of fact: A person is not criminally responsible if they did something based upon an honest and reasonable mistake of fact.
Extraordinary emergency: A person is not criminally responsible for an act or omission done under a sudden or extraordinary emergency that an ordinary person, possessing ordinary powers of self-control, could not reasonably be expected to act otherwise.
Insanity: A person is insane and not criminally responsible if they are deprived of one or more of the following capacities: understand what they are doing; control of their actions; know that they ought not to be doing it.
There are other defences as well and again, an experienced criminal lawyer will be able to determine which may suit the offence you’ve been charged with.
The need for good representation
Clearly, a charge of GBH is a very serious matter and requires expert legal advice and guidance. Hannay Lawyers has many years of experience dealing with the Queensland criminal justice system, calling on an extensive knowledge of relevant laws and the vital practical experience of appearing in many Queensland courts on behalf of people charged with such offences.
If you’ve found yourself in the difficult position of facing a GBH charge, or are trying to help someone who is, contact our Gold Coast Criminal Lawyers today on 07 3063 9799 for a free initial consultation.
While most business owners strive to run their enterprise with minimum distraction from external agencies, the fact is we live in a highly regulated, legalistic society. For businesses, the Australian Securities & Investments Commission (ASIC) is Australia’s top company regulator and is responsible for investigating company misconduct and enforcing company law.
If you run a business and are served with a notice under Section 19 of the Australian Securities and Investment Commission Act, ASIC is asking you to provide it with information and may subject your enterprise to a compulsory examination. This is no trifling matter. Failing to reasonably cooperate in accordance with a Section 19 notice issued by ASIC can be a criminal offence that may be punishable by a term of imprisonment. For this reason, expert legal advice should immediately be sought.
How Does An ASIC Investigation Start?
A complaint (usually about misconduct) is generally the starting point for an ASIC investigation into a company. There are a number of ways ASIC may receive these complaints, including:
- From a member of the public, often a client or customer of the business who is dissatisfied with an aspect of the company’s handling of a particular matter.
- A referral from other government agencies and regulators who may report misconduct to ASIC.
- From reports ASIC receives as required by law, such as those from auditors, insolvency practitioners and licensees.
Once a complaint is received, ASIC will go through a process to work out whether it should investigate based on the scope of its powers, taking into account:
- the extent of the harm or loss;
- the benefits of pursuing the misconduct relative to the cost of public monies;
- the type and seriousness of the misconduct alleged and the strength of evidence supporting the complaint;
- alternative courses of action other than formal investigation;
- whether the alleged misconduct includes a particular impact on market integrity or the confidence of investors and financial consumers;
- whether or not the misconduct is a widespread concern or part of a growing trend.
What will happen during an investigation?
ASIC has a number of powers by which it will conduct an investigation to gather evidence, including requiring a business to produce documents and disclose other information for its inspection, requiring company officers or employees to attend compulsory examinations, and employing search warrants.
It should be noted that under a Section 19 notice, people other than company directors or employees such as the company’s lawyers and accountants can also be required to provide information and assistance. ASIC’s powers allow it to question people who “on reasonable grounds, [it] suspects or believes … can give information relevant to a matter it is investigating, or is to investigate”.
What are your rights and responsibilities in this situation?
Obviously if an ASIC investigation commences into your business, you should avail yourself of the advice of an experienced corporate law firm. Company officers and employees need to be aware of what they can and can’t do in complying with ASIC’s requests. There may be no legal basis for ASIC to request certain documents from you, particularly if they might incriminate you or the company in relation to your operations. You will not be required to produce documents, for example, which are the subject of legal professional privilege.
Take pre-emptive action
One thing your business can do to avoid or reduce the likelihood of an ASIC investigation is to discuss with your corporate lawyer how to develop proactive, effective and fit-for-purpose governance, risk and compliance processes within the organisation.
This process may include a review of your current documentation and policies in these areas, including asking your legal representative to conduct a legal risk assessment of the business. Undertaking this process will also be of benefit in demonstrating your proactive approach should an ASIC investigation later arise as the result of a complaint.
ASIC has a number of remedies and enforcement tools at its disposal if it can prove the alleged misconduct. Most serious of these is punitive criminal penalties, which can include terms of imprisonment, community service orders, financial penalties under criminal law and the possibility of convictions.
Another option is ‘protective actions’ – such as disqualification from managing operations or revocation, suspension or variation of licenses, and public warning notices. While this option avoids the need for criminal penalties, the effects of a protective action can obviously still have terrible effects on the reputation of both yourself and your business.
An effective legal representative will also explore, before ASIC decides to proceed with an investigation, whether alternatives such as engagement with stakeholders, guidance, education and policy advice may be better and more effective options than enforcement action.
If you believe your business is about to become the subject of an ASIC investigation, or need more guidance on how compliant your business really is in terms of internal governance and the wider regulatory environment, contact experienced corporate law firm Hannay Lawyers today on 07 3063 9799. We’ll be happy to assess your particular circumstances at our Gold Coast or Brisbane offices as soon as possible.
Though all of Australia takes punishment of drug offences seriously, Queensland has always been well-known as one of the tougher states when it comes to legal penalties for such offences. If you or someone you know has unfortunately found themselves charged or convicted with a drug offence in Queensland, there are some basic things you should know before contacting a criminal lawyer.
What Exactly Is A Drug Offence?
Though seemingly a simple question, the answer is more nuanced than you might think. There are many different levels of drug offence, all of which vary in both severity and penalty type. The seriousness of your offence will likely hinge on: the classification of the substance(s) in question, the amount of the substance(s) in question, and your intended purpose with the substance(s) in question.
Possession: This offence doesn’t refer to the basic meaning of the word ‘possess’. While it will include drugs that are on your person or in your possession, it also includes a variety of other situations where the substances are still considered to be ‘in your possession’. The offence of possession simply refers to a person or party receiving and controlling a drug. This does not require it to be your drugs, and you may not even be required to be aware that the substance in question is an illegal drug.
Possession can involve holding a drug (knowingly or unknowingly) for a friend, illegal substances in your house, car, or personal items, as well as ownership of drug paraphernalia, even when the paraphernalia in question hasn’t been in direct contact with the illegal substance. If you are living with someone who is in possession of drugs, you may be considered guilty of possession as well. The more serious the classification and the larger the amount of the substance in question, the more serious the penalty for a possession charge will be.
Supplying: The charge of supplying isn’t exclusive to selling drugs, though that is a common misconception. You can be found guilty of supplying drugs even when you are receiving nothing in return for the exchange. And, in fact, you may be found guilty of supplying drugs through merely offering an illegal substance to someone.
If you supply, distribute, administer, or offer to do any of the three, you may be found guilty of the offence of supplying. The severity of the penalty levied against you will again be affected by the classification and amount of the substance involved, however the characteristics of the person you were supplying the substance to will also play a large role in your sentencing as well. Supplying to vulnerable individuals such as minors, the developmentally disabled, or unknowing victims will result in much more severe sentencing.
Trafficking: Trafficking drugs differs from supplying drugs in that it must be a commercial act, usually (but not always) at a larger scale and with a higher level of organisation. Trafficking, unlike supplying, must have a financial component and this is the offence most associated with organised crime and gang activity. However, this can still include smaller scale sales like selling to friends. Because there is a commercial gain involved with this crime, the penalties for trafficking are more severe than for those involved in supplying.
Importing: Essentially, importing is trafficking drugs internationally and will be considered a Commonwealth offence with extremely harsh penalties, including the possibility of a life sentence.
Producing: Drug production is as straightforward as it sounds: whether you are cooking or growing, owning the operation or merely participating, you can be found guilty of producing and will be subjected to extremely harsh penalties. Though there will be harsher penalties for more serious classifications of drug, you will still be liable regardless of the scope of your drug production.
Whether it’s your first time or you already have a criminal record, being charged with a criminal offence can be one of the most stressful experiences in a person’s life. An experienced criminal lawyer, however, can alleviate at least some of this burden by lending their knowledge and support to your situation, ensuring that your rights are protected and all legal requirements are met.
Being charged with an offence
Depending on the circumstances surrounding your offence, the charging process can markedly differ. There are three primary methods by which a person may be charged: by notice to appear, through complaint and summons, or via arrest.
Notice to Appear: You may receive a notice to appear in court. This notice may be issued immediately by the police and will generally describe the alleged offence with which you are being charged, without the particulars.
Complaint and Summons: If you are charged via a complaint and summons, you will likely not need to visit the police station as these charges are sworn under oath by a justice of the peace. When faced with a complaint and summons, you will need to appear in court in the following weeks, depending upon the severity of the charge and the immediacy of the summons.
Arrest: The most commonly thought-of form of charge, an arrest often involves force as it requires taking the accused into custody. Formal charges will be issued after the accused is taken to a police station or watch house.
Types of criminal charges
There are two kinds of criminal charge that you may be served with: simple offences, or crimes and misdemeanours. The type of offence that you are charged with will affect the method by which you’re charged. The more serious the crime, the more immediate your charge will be. For instance, an offender who commits assault is likely to be charged while being arrested, whereas an offender who commits a traffic offence will likely receive a Notice to Appear.
Simple Offences (also known as Summary Offences): These can include minor infractions such as disorderly conduct and traffic offences.
Crimes and Misdemeanours (also known as Indictable Offences): These cover more serious infractions, including (but not limited to) robbery, murder, and assault.
How will you plead?
Once charged with a crime, you will need to decide how you will plead: guilty, or not guilty. The way you plead is of crucial importance and at this stage, you will definitely benefit from the professional advice and expertise of a lawyer experienced in criminal law.
Guilty: Pleading guilty is generally a straightforward process, though it is important to make sure that you understand in full the charges being leveled against you and the implications thereof.
Not Guilty: Pleading not guilty is a more elaborate process as, once you enter this plea, you will be required to take the matter to trial. In preparation for trial, you and your lawyer will need to carefully review the details of your case, including the evidence the police have against you and the prosecution documents.
There are strict time limits, legal requirements, and detailed arguments to be made after being charged with a criminal offence. The most important thing you can do to pursue your best interests is to fully understand the charges you are accused of, the implications of these charges, and your potential plea options.
You can count on a professionally trained criminal lawyer Brisbane to represent your best interests and help clarify your options moving forward. Hannay Lawyers are specialists in criminal matters so contact us today on 07 3063 9799.
Drug trafficking is one of the most serious offences involving dangerous drugs in Queensland, carrying heavy terms of imprisonment. But given there are many different types of drug offences in Queensland legislation, it’s helpful to know at the outset what ‘trafficking’ and ‘dangerous drugs’ actually means.
In simplest terms, trafficking means you traded in or dealt with dangerous drugs, including selling them. In a court, this will require the prosecution to prove that you were ‘carrying on a business’ in dangerous drugs.
Schedule 1 and 2 of the Drugs Misuse Regulation 1987 list the drugs considered ‘dangerous’ drugs, including (but not limited to) in Schedule 1 amphetamine, cocaine, heroin, lysergide, methylamphetamine and ecstasy. Schedule 2 lists over 100 less serious drugs, including cannabis, codeine, methadone, morphine, opium, oxycodone and Psilocybin (magic mushrooms).
How Are Drug Trafficking Charges Treated By The Legal System?
To be prosecuted for drug trafficking, the prosecution will need to prove beyond a reasonable doubt that you carried on an unlawful business in which you trafficked a dangerous drug.
In order to prove this the police will need to show that you conducted several transactions over a period of time, though you don’t need to have traded indefinitely nor have made a profit from drug sales in order for it to be considered trafficking. Earlier cases suggest you might be carrying on a business to sell drugs if activities such as the following have occurred:
- Advertising or promoting the ‘product’ by communicating with prospective buyers;
- setting up lines of supply;
- negotiating the process and terms of supply and payment;
- soliciting and receiving orders; and
- arranging places and times of delivery.
It should be noted that a one-off deal can still be considered trafficking in dangerous drugs, as a business can be said to have been carried on from the point of the first transaction. To determine this the court will look at whether in this particular situation you intended – in selling the drug – to make a financial gain (either for yourself or someone else).
Are there defences to a trafficking charge?
If you are charged with drug trafficking, you may be able to plead a defence to the charge which will either reduce your penalty or, in a best-case scenario, see the charge dropped. The most common defences to this charge are:
- That the drug was not a dangerous drug;
- that there was a mistake of fact, meaning you had an honest and mistaken belief that it was not a dangerous drug;
- that you acted under duress, meaning you were not acting with free will but because someone else had, for example, threatened you.
What are the penalties?
Trafficking in a dangerous drug is what’s known as an indictable offence, meaning a serious crime likely to be heard before a judge and jury in the Supreme Court.
The maximum penalty for trafficking of a dangerous drug specified in Schedule 1 of the Act outlined above is 25 years, and 20 years for a drug specified in Schedule 2.
A number of other factors are taken into account by a court in determining a jail sentence less than the maximum penalty for this offence, including the type and purity of the drug; its street value; the value of the trafficking business and the time frame over which it was conducted; as well as the level of your involvement and your personal circumstances.
The importance of legal representation
As can be seen from the penalties above, being charged with drug trafficking is a very serious matter and requires the guidance and assistance of an experienced criminal lawyer for anyone charged with the offence. Prosecution carries not only jail time but permanent damage to your reputation and restrictions on your ability to work and travel.
The State can also commence proceedings against you under the Criminal Proceeds Confiscations Act 2002, applying to seize or otherwise deal with your property and assets if you’ve been charged with drug trafficking. If this happens you will need immediate legal advice as strict time limits apply in such matters.
In any event, the criminal justice system in Queensland is complex. A law firm like Hannay Lawyers has many years of experience navigating this system, with an extensive knowledge of relevant laws and the vital practical experience of appearing in many Queensland courts on behalf of people charged with such offences.
If you’ve found yourself in the difficult position of facing charges for drug trafficking, or are trying to help someone who has, contact our Gold Coast & Brisbane criminal lawyers today on 07 3063 9799 for a free initial consultation.
Bail is a feature of our criminal justice system that allows a person to continue living in the community after they’ve been charged with an offence.
In precise technical terms, bail is the written undertaking the person charged with the offence signs, promising to appear at court at a date set down on the undertaking, also called a ‘Notice to Appear’. Bail is something a person needs to apply for and the conditions covering such an application are set out in the Bail Act 1980 (Qld).
Bail conditions can include such things as a reporting condition (requiring you to sign in at a police station on certain days of the week) and a residential condition (requiring you to reside at a stated address and not relocate without prior permission of the court or police).
Someone on bail must also undertake not to commit any further offences (that attract jail time) or face more severe penalties.
How Does Bail Work If I’m Arrested?
If you’re arrested by police they may then release you on ‘watch-house bail’ after you sign a bail undertaking to attend court on a certain date and comply with any further conditions on the undertaking.
If police refuse you bail, the next step is to apply for bail to the Magistrates Court where the matter will be dealt with more expeditiously and with less cost than in a higher court. If the Magistrate also refuses bail, you will be held in custody until the charges against you are finally dealt with or you then make a formal application to the Supreme Court. Where there are very serious charges involved – such as in domestic violence cases or other incidents of violence – you will need to demonstrate to the court why your detention in custody is not justified. If the Supreme Court refuses you bail, you can apply again, but you may be required to show a “material change of circumstances” – how things have changed before your first application and this one – as to why bail should now be granted.
What factors are taken into account in granting bail?
While there is generally a presumption in favour of bail, in cases where the charges are of a more serious nature the court will consider whether the person applying for bail constitutes “an unacceptable risk”.
This risk is assessed on numerous factors including:
- The nature and seriousness of the offence;
- the character and background of the defendant;
- the history of any previous grants of bail to the defendant;
- the strength of the evidence against the defendant;
- whether a defendant will either fail to appear in court as required;
commit further offences; endanger the safety or welfare of a person; or,
interfere with witnesses or obstruct the course of justice.
A person may also be refused bail for their own protection. It’s important to note that at this stage of the process, the onus is on the police to show the court why it shouldn’t grant you bail.
The consequences of breaching bail
By not following the conditions of a bail undertaking, you risk arrest and will likely impair any future bail application you might make. It’s possible to face up to two years imprisonment for this offence alone.
Additionally, any money or other security lodged for the bail may be forfeited and the person who acts as surety for your bail may be ordered to pay the security sum to the court. If the surety fails to pay, the court can actually imprison that person for up to two years.
The court may listen to a ‘reasonable excuse’ for why bail conditions weren’t complied with, but this will require supporting evidence such as medical certificates. In this instance, experienced legal advice is highly advisable.
Certain breaches of bail will place the defendant in a ‘show cause’ position, where the onus is now on you – rather than the police – to show why you should be granted bail. These breaches include when you:
- Fail to appear at court on the nominated date;
- are charged with an indictable offence alleged to have occurred after you were granted bail for another offence;
- are charged with an indictable offence involving weapons or a threat of violence committed whether the offence is alleged to have occurred before or after bail was granted;
- being charged with an offence that has a maximum penalty of life or indefinite imprisonment, whether the offence is alleged to have occurred before or after bail was granted.
Can bail conditions be varied?
Under section 30 of the Bail Act, bail conditions can only be amended by the court or the police. If it’s by the police, your bail undertaking must state that police may grant variations, such as the condition about residing at a specific address.
If the bail undertaking does not allow variation, a court application must be made. Common requests for variation relate to the police station that you must report at, the days you must report, the number of days that you must report, and to change your residential address. The court will generally not reduce the number of days you’re required to report until your matter is past the committal stage but will take into account work and domestic commitments in making a decision.
Bail can be a complex legal matter which is why seeking prompt guidance from lawyers with experience in criminal matters is highly advised, so all options are explored in securing bail until your matter is properly heard in court.
While everyone is well aware that driving a vehicle after drinking alcohol is illegal unless you have a blood alcohol level of less an 0.05, what’s perhaps less well known is that in Queensland there is ‘zero tolerance’ for driving under the influence of drugs.
You can be charged, therefore, if the presence of any illicit drug is detected in your system after a road-side saliva test. It should be noted you are also breaking the law if you drive a vehicle or are in charge of a vehicle while you are under the influence of over-the-counter drugs (including alcohol) or drugs your doctor has prescribed.
What can I be charged with?
The two most common offences relating to drug driving are ‘driving while a relevant drug is present in blood or saliva’, and ‘driving under the influence of drugs’. The second offence is considered more serious than the first.
Again, if you’re charged with driving while a relevant drug is present in your blood or saliva, the police don’t have to prove that having the drug in your system means you can’t drive safely or that you are driving less safely. It’s enough that it’s in your system.
What is a ‘relevant’ drug? At the moment, the saliva sample police collect from you only tests for cannabis, MDMA (ecstasy) and methylamphetamine (ICE). It should be noted the time period in which the saliva test can detect a drug differs from drug to drug, and may also be influenced by the frequency and amount of your drug use.
It should also be noted that it’s an offence for a driver to refuse to provide a sample of their saliva to a police officer upon request. Failure to do so can result in a fine of up to $4,876 or up to six months imprisonment.
As mentioned, driving under the influence of drugs is a more serious charge reflecting the fact a person’s driving has been seriously affected by drug consumption. The law also allows the police to compel you to take a blood test if they reasonably suspect that you have been driving or have been in charge of a motor vehicle while you were under the influence of any drug.
If you return a positive result on your first saliva test, police will generally require you to do a second test. If this second test returns a positive reading your licence will be suspended for a 24-hour period. If you drive during this period there will be additional charges.
What happens if I’m charged with one of these offences?
If you are charged with driving with a relevant drug present and have no other pending drug driving charges, your driver’s licence will remain valid until the charge is dealt with by a court. If there are other charges pending, your licence will be suspended immediately until your court date.
Penalties for driving with a relevant drug present may include:
- Disqualification from driving for between one to 9 months;
- a fine of up to $1,706;
- a maximum term of imprisonment up to three months.
If you are charged with the more serious offence of driving under the influence of a drug, your licence will be immediately suspended until the charge is dealt with by a court. The penalties imposed may:
- Disqualify you from driving for up to six months;
- fine you up to $3,413;
- impose a maximum term of imprisonment up to nine months.
Repeat drug driving offences (within the last five years) naturally enough draw more severe penalties.
If you’re convicted of the lesser offence of having a drug in your saliva or blood while driving or in charge of a vehicle, you may be able to apply for a ‘work licence’ – a restricted driving licence – during your period of disqualification if you need to drive a vehicle for work. This needs to be applied for before pleading guilty to the offence and so legal advice at this stage is strongly recommended.
The importance of legal advice
Given there is latitude in the sentences and fines a court may impose, the most beneficial reason for engaging an experienced lawyer is that they can potentially minimise your penalty.
By presenting persuasive and relevant information on your behalf in defence, a good legal professional can help mitigate the impact of the offence on you and your family. As discussed above, legal guidance is particularly needed if a work licence is needed or you wish to contest the charges.
Contact our Brisbane criminal lawyers today if you need to discuss any of the issues raised in this article.
A man has been jailed for violently attacking a woman with a chair.