Category

Criminal Law

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.

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.

Supreme Court Bail Applications

All You Need to Know About Supreme Court Bail Applications

By | Criminal Law

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.

In summary

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.

Contact our award-winning professionals at Hannay Lawyers today on (07) 3184 2323 if you’re facing criminal offence charges and need help straight away.

Charged with Grievous Bodily Harm

Charged with Grievous Bodily Harm? What You Need to Know

By | Criminal Law

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 Gold Coast & 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:

  1. the loss of a distinct part or an organ of the body; or
  2. serious disfigurement; or
  3. 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.

Aggravated circumstances

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 Brisbane or Gold Coast offices today on (07) 3184 2323 for a free initial consultation.

Charged with a Criminal Offence

What to Do When Charged with a Criminal Offence

By | Criminal Law

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 & Gold Coast 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) 3184 2323.

police search of your property

A Police Search of Your Property – What You Need to Know

By | Criminal Law, General News, Major Criminal Law

The police do not have limitless rights when it comes to searching people or their property.

Laws are in place to protect everyone – including you – from law enforcement officials overstepping their bounds. The following will give you the basics of your rights when it comes to a police search of your property.

The Police Don’t Always Need a Warrant

There are circumstances when the police can enter your home without requiring a warrant. These include –
– Handing over or serve a legal document
– In urgent circumstances, for example, injury to a person
– To investigate a traffic offence, for example, to take a breath test for alcohol
– To catch someone who has escaped from prison or from being arrested
– To search for evidence if they reasonably suspect it may otherwise be hidden or destroyed
– To arrest someone
– To reach a crime scene
– To detain someone under an anti-terrorism ‘preventative detention order’—if they reasonably believe that the person they’re looking for is on your property
But if none of these circumstances applies, and should they not have a warrant, you have a right to refuse entry to the police. All you need to do is clearly state that you do not grant permission for the police to enter your property, and if possible say so in front of a witness. Should the police still insist on entering, or if you disagree with the validity of their claims, contact your lawyer immediately.

Warrants Come with Terms and Conditions

Search warrants do not give the police blanket authority to do anything they want inside your home. The warrant will explain exactly what the police are allowed to do and may include digging up a portion of your property, opening locked items if needs be, searching individuals on the premises, or removing wall or ceiling panels. However, if it is not included on the warrant, then the police are not allowed to do it without additional authorisation. Ask for a copy of the warrant, and contact your lawyer.

The Police Can Only Stay for a ‘Reasonable’ Time

This means, that if the warrant to search your property says that the police can enter your home and arrest an individual, they can only stay for the time required to carry out that activity. It could be said that if the police then sit down and begin questioning the individual, that they have gone past the reasonable allocated time and could be asked to leave. In these circumstances, contact your criminal lawyer and ask their advice.

caught out drug driving

Drug Driving: Could YOU Be Caught Out 

By | Criminal Law, General News, Major Criminal Law

The number of drivers being charged with drug driving is on the rise.

Queensland Police have carried out a number of ‘blitzes’ and advertising campaigns designed to educate the driving public. Most people are now aware that roadside saliva tests can be carried out by police in the same way as an alcohol breath test. What is less well known is what substances the tests will identify, and what is considered an illicit drug.

1. Saliva Samples Don’t Test for Everything…Yet

At the moment, the saliva sample will test for known active ingredients in certain drugs –

  • Methylamphetamine – Speed or ice
  • MDMA—Active ingredient in ecstasy
  • THC—Active ingredient in cannabis

Of course, this test is always being improved, and it’s unsafe to assume that other drugs won’t be identifiable through a saliva sample in the near future. There may also be other tests introduced to broaden the number of testable substances.

2. Driving Under the Influence of Prescription Drugs

The Queensland Government warns members of the public not to drive under the influence of ANY substance – including some prescription medications.  It’s important to read the warnings associated with your medications and to take them seriously. Importantly, if you are pulled over by the police, and they ask about your prescription medication then do not make any statement that may incriminate you. The police may rely on your admission at a later date.

3. Breath Test Rules Apply to the Saliva Test

The rumour that you are not legally obligated to provide a saliva sample for drug testing is simply not true. In fact, failing to do so will – in all likelihood – make things much worse for you. Failing to provide a sample will result in you being fined and potentially imprisoned. You may also be charged with driving under the influence of drugs, despite no sample being present.

Drug driving charges are serious; in that, they may come with other drugs charges attached, such as possession, or worse.

If you are charged with any drug offence, ask to speak with a lawyer as soon as possible and contact criminal lawyers Gold Coast & Brisbane at Hannay Lawyers HERE.

possessing dangerous drugs

Possessing Dangerous Drugs – What You Need to Know 

By | Criminal Law, Major Criminal Law

Possessing Dangerous Drugs – What You Need to Know

Drug possession laws have been designed, over time, to remove any potential loopholes. They are intentionally broad and include a significant amount of leeway, allowing law enforcement officials to make assumptions when building a case against you.  Of course, the following article is generic advice only and does not take your personal circumstances into consideration. If you require legal assistance, please contact us directly.

Here are just a few things you need to know about the possession of dangerous drugs, and the related laws:

1. Possession Means “Control” and “Knowledge”

In court, the onus will be on the prosecution to prove that you had knowledge of a dangerous drug, and that you also had control of it. Where many defendants get confused is the definition of control. For example, the drug does not need to be on your person in order for control to be proven. Nor does it need to be in your primary residence, or personal motor vehicle. According to the law, control simply means that you have the ability to gain physical access to it.

Dangerous Drugs are Broadly Defined

While you are probably aware that dangerous drugs are, “graded,” for their severity, the law has been tailored to accommodate for drugs that don’t fall into any of the existing categories. For example, if you are found to be in possession of a drug that has a similar chemical makeup, effect, or other pharmacological similarities, then it can still be defined as a dangerous drug. In other words, don’t think that just because the type of drug you are in possession of isn’t a chemical match for any of the drugs that exist on the list, that you won’t be convicted of a crime.

There are Defences Open to You

The law is not one-dimensional, and there are opportunities for you to defend yourself. This may include proving that the drug was not, in fact, dangerous, or that you were forced to possess the substance against your will. You may also be able to take the approach that you weren’t aware that the substance you were in possession of was dangerous.

At Hannay Lawyers, we have extensive experience in drug and banned substance cases.

To talk to one of our team about your case and the avenues open to you, please contact our criminal lawyers Brisbane & Gold Coast.

your rights criminal law

Your Rights When Charged Under Criminal Law

By | Criminal Law

If you’ve been charged under criminal law, you will be introduced to a process that can feel overwhelming.

The purpose of this article is to help you understand your rights and to offer some generalistic tips. Importantly, if you are charged with a crime then your first step should be to get legal advice; an experienced criminal lawyer will be able to guide you through the process and explain the implications of any actions you may be considering.

  1. This is Not an American Crime Show

In Queensland, unless the police want to question you in relation to a serious offence, they are under no obligation to “read you your rights.” If arrested, you will be told that you are under arrest and the reason or reasons they are arresting you. Regardless of this, you do have the right to remain silent but you still must tell the police –

– Your name and address

Failure to do so may result in additional charges.

Importantly, they cannot coerce a confession from you by making promises or threatening you, nor can they formally interview without informing you have the right to lawyer, a family member or friend.

Follow the directions of the police officers, tell them who you are, ask for the charges in writing and tell them you wish to speak to a lawyer.

  1. Don’t Assume Anything

If you have been arrested and feel that your rights have been breached, remember there is a time and a place for everything. Do not attempt to rectify the situation in the police car, or – more importantly, resist arrest, as this may result in additional charges. If you have been injured during your arrest, make your Lawyer aware and take pictures of your injuries, you may also wish to ask to see a doctor if your injuries are severe.

Most importantly, pay attention to everything so that you can explain it clearly to your lawyer when you speak with them.

  1. Without an Arrest, Nothing Happens

If the police ask you to accompany them to the police station, you have the right to refuse. In fact, the only time you are obligated to accompany police is when you have been formally arrested. Ask the police to clearly explain whether you are being arrested or asked to accompany them to the police station. If it is the latter, tell them you will speak to your lawyer before taking any further action. it may be that should you refuse to attend, then they will place you under arrest, at which time you are compelled, if you refuse you may be charged with further offences.

In all matters, do your best to comply with police, pay attention to both the charges against you and the circumstances of your arrest, and ask for legal representation as soon as possible.

corporate crime and fraud

Corporate Crime and Fraud – What You Need to Know

By | Criminal Law

Corporate crimes and fraud fall within the remit of a number of law enforcement and government agencies. State and Federal Police, ASIC, the ATO and the ACCC may get involved, depending on the nature of the accusation.

While most cases of white-collar crime that reach the public consciousness have to do with embezzlement or tax fraud, there are many other categories, such as corrupting commission or rewards and obtaining benefit by fraud. Company directors should make themselves familiar with their obligations under the Corporations Act 2001 in order to avoid any unintentional breach.

Every case related to companies and fraud is different and depends on the nature of the business, and the way the business is managed – usually from a financial point of view. The nature of the accusation also has a significant impact on the case. For example, if accused of Obtaining a benefit by Fraud, and the accused is alleged to be director, it must be proven that –

  • The accused was an officer of an organization
  • The accused made or published a statement
  • The making of the statement was dishonest
  • The statement was knowingly false or may be false
  • The making or publishing of the statement was intended to deceive members or creditors of the organization about its affairs
  • The accused obtained a benefit

While this level of complexity provides protections for companies and individuals who arefalsely accused, it also makes the defence of white-collar crime a highly specialised and technical discipline. Many cases, due to the amount of information required which needs to be accessed from what is often many thousands of pages of data, can take a considerable amount of time to conclude.

If you have been accused of a white-collar crime, you should obviously seek legal advice immediately. This is doubly important if law enforcement and government agencies are not yet involved in the process. Misunderstandings and unintentional breaches can be rectified through mediation, without the need to burden the courts. Having legal counsel in place, who can assist both parties in understanding the relevant legislation, and the legal implications of additional action can aid in amicably and gracefully concluding matters. Whether a matter is deemed to be one of professional impropriety, or something more serious can only be determined by referencing the relevant legislation.

To talk to us about your concerns, or if you have been accused of a crime, call or email us directly.

any lawyers

Will Any Lawyer Do?

By | Criminal Law, Major Criminal Law

Whether you are hiring a criminal lawyer, family lawyer or a corporate lawyer, it’s sometimes hard to compare apples with apples.

After all, every lawyer you find will be suitably qualified, come with some experience and will have the ability to talk to you about your case. They will tell you how confident they are when it comes to “this type of case,” and perhaps even mention a few judge’s names to impress you.

And maybe they are the best person for the job – but does the best salesperson necessarily make the best lawyer?

Spend a bit of time online and you will quickly discover that what may appear to be the right decision has the potential to turn into a choice that costs defendants thousands of dollars, years of their life or both.

Specialisation is Crucial

It is not enough for a lawyer to be able to “talk the talk,” and demonstrate an understanding of the merits of the case; your lawyer should be a specialist. In order to understand the true definition of a specialist – beyond generic claims and website boasting –  we need to dig a little deeper.

Your lawyer should be able to discuss your case in detail and relate it to other cases, both those they have taken part in and others that are relevant to your circumstances. They should be able to not only express their confidence but also demonstrate legal precedent that they will refer to during the case. When offering an opinion, it should be backed by a legal argument, without unnecessary bravado.

This is important, because when in court your argument will be put in front of the judge or jury based on the law as it stands today. All the emotional pleading, confidence and empathy in the world won’t make any difference if the underlying legal framework is not solid.

How this Works Practically

When meeting with your lawyer for the first time, take all relevant documentation, and have an open and honest discussion with them. Even if you haven’t formally hired them yet, ask them about the merits of your case, and why they believe they can help you. Hopefully, they will refer to past experiences, other cases and the capacity of their firm to build a solid and robust defence. Many defendants choose to go with a lawyer who demonstrates obvious empathy for their circumstances. While this is a natural human inclination, it also detracts from the core purpose of your legal counsel – presenting your case as it relates to current legal precedent, not just putting on a show.

When hiring a lawyer, take the time to dig deeper by educating yourself with regards to their experience, capability and skill.

Contact our Gold Coast & Brisbane criminal lawyers today for more information.

find best lawyer brisbane

Finding the Best Criminal Lawyer for You

By | Criminal Law

When it comes to hiring a criminal lawyer, there is no shortage of options.

A quick search on Google will yield hundreds of results in your local area, and many more nationally, all claiming to be the very best criminal lawyers in the country. So how do you select the right criminal lawyer for you?

  1. Specific Experience

Criminal law is a broad discipline. In fact, attempting to name all the crimes in existence and their variants would be an enormous task. When seeking a criminal lawyer, look for someone who has specific and meaningful experience in the area of expertise you require. Ask if they have taken on cases like yours before, and what they see as the key to success in your particular scenario. “Experienced in criminal law,” is far too generalistic, you are seeking someone who understands the specifics of your particular case.

  1. Flexibility and Maturity

Some lawyers are eager to get to court; their speciality may be in litigation or they may enjoy the limelight. Likewise, some lawyers will avoid court at all costs, given the option. Seek out a lawyer who will look at a case, and all the possibilities, and make decisions based on their merits. Perhaps there are more options available to you than going to court and arguing your case. A lawyer with flexibility and understanding will seek out the best possible avenue, rather than have a one-track mind.

  1. Local Knowledge

The very best criminal lawyer with specific experience and an eagerness to get you the best possible outcome may still not be the right person for the job. Do they know the judges? Do they have an understanding of local law? This is especially important in Australia, where different states have different laws, and local lawyers have a knowledge of local judges.

Local knowledge can be the difference between a good result and a disastrous one.

  1. Trust

Your lawyer must be someone you trust. In criminal cases you are going to have to be open and honest with them, talk about uncomfortable scenarios and potentially put your freedom in their hands. Make sure that when you sit down with your lawyer, you feel comfortable talking to them and that they are someone who you could work with. Ask about the case, talk about their approach and experience, and decide whether they are the right person for you.

A good criminal lawyer Gold Coast & Brisbane is someone who can put you in the best position to get a good result. Don’t gamble with your freedom and make the effort to find that person and have them in your corner.

do i need a criminal lawyer Gold Coast

Do I Need a Lawyer?

By | Criminal Law

If you’ve been in a legal scrape and you’ve probably asked yourself this question. After all, lawyers cost money and if you can do it yourself, why wouldn’t you?

Here are some examples of when you should contact your lawyer.

  1. When You Are Not Sure What Action to Take

Perhaps you’ve been charged with a crime that you don’t entirely understand. Maybe law enforcement are insisting that you give some kind of statement, or offer some additional information. Perhaps you feel that your rights have been impinged in some way.

Your lawyer’s job is to clear up legal misunderstandings and offer you some clarity. They will explain the next steps, give you options and tell you what to say and – perhaps more importantly – what not to say.

  1. When You Don’t Trust the Situation

The most common example of this is when you are told, “you don’t have to get a lawyer involved just yet.” Statements like this are carefully worded; of course you don’t have to get a lawyer involved, it’s entirely up to you. But not having legal counsel present gives law enforcement time to talk to you, and get you to say things that could potentially incriminate you or enhance the case against you. Other warning statements include, “of course you can call your lawyer, let’s do that shortly,” and other delaying tactics. Don’t say anything, contact your legal counsel and wait for them to arrive. Remember, you are entitled to have a lawyer present, and asking for one is not in any way an admission of guilt.

  1. When You Need Support

Being arrested, or asked questions by police can be an intimidating experience. Maybe you are worried about what you are going to say, or perhaps you don’t know what to expect. Your lawyer can act as a support person for you, someone who understands the the process and can walk you through it. Sometimes it’s nice having someone in the room with your best interests at heart.

  1. When You are Going to Court

Self-representation is almost always a mistake. Even if you are incredibly articulate, with a good basic knowledge of the law, the advantage always lies with the side who has a professional as their representative.

Litigators salivate at the prospect of not having to deal with an experienced opposition council, because the complexities of the law – rather than just the merits of the case – can be used as a tool. Many good cases have been lost because defendants chose to represent themselves, assuming that their argument required no interpretation or legal precedent. Something that is regarded as ‘common sense’ by a defendant, may not be by a judge or jury.

When deciding whether you need a lawyer or not, consider both sides of the argument. Not only how much money you will save by not having legal counsel, but also how much money or time you may lose through not making the call. For the sake of a few dollars, it sometimes better to have someone by your side, rather than end up in jail or with a crippling fine.

Contact our Gold Coast & Brisbane criminal lawyers today for more information.

drug offence lawyers Brisbane

Your Rights When Charged with a Drug Offence

By | Criminal Law

If you’ve been charged with a drug offence it’s important to understand your rights and obligations. As always, remember that the following points are generic and haven’t taken your situation into account. To talk in more detail, phone us on (07) 3063 9799 or email us here.

Don’t Say Anything Without a Lawyer

Queensland and Australian drug law is intricate and complicated. The police who have arrested you understand the law, and will use any comments you make against you. For example, there is a big difference between possession and ownership – just because you are in possession of a drug doesn’t mean that you necessarily own it. A good example of this is if your house is searched, drugs are discovered and you live with multiple people.

A foolish comment can have a massive impact on your case. Say nothing, do as you’re told and call your lawyer.

Searches

The police are allowed to search you if they reasonably suspect that you are in possession of drugs or drug paraphernalia. Searches are the one time when you should speak up and make sure you are understood. Explain to the police that you do not give consent in any way to being searched, and ask for written evidence that they understand this. The police are obligated to demonstrate the reasons that they reasonably suspected you were in possession of drugs or drug related products prior to search, unless you voluntarily give permission. “Do you mind if we search you?” Is not just a throwaway comment, it’s a way for the police to gain permission as, to a certain extent, it does away with the police’s obligation to prove reasonable suspicion.

Possession of Drug Paraphernalia

If police have found you in possession of drug paraphernalia, don’t admit to anything else. While they have the right to charge you for possession of a bong or pipe, they may not be arresting you for drug use or possession. Don’t try and be clever, because every comment you make will be used against you by police.

Drug Driving

The police are able to randomly drug test drivers, and you are obligated to complete the test. Even if you haven’t taken drugs for days, it could still show up on the test. Remember that following the test, the police will ask you when you took drugs – tell them you have nothing more to say and ask to speak to your drug driving lawyer.

Just Chatting

If you’ve been arrested and are driving back to the station, the police may use the ride as an opportunity to get more information out of you. Just because the conversation seems relaxed and friendly, doesn’t mean whatever you say is off the record. Nothing, as far as the police are concerned, is off the record. You are under no obligation to maintain a conversation with a police officer, or to say anything until you have adequate legal representation. This isn’t being rude, it’s a practical reality.

Drug laws are intentionally broad and have been designed with the police, not the offender, in mind. A good example of this is the fact that drug trafficking can involve a single customer and multiple transactions, without any currency exchanging hands. Keep this in mind when dealing with police, and don’t assume to know anything. It only takes one comment to change the nature of your charges, and a single slipup can cost you years in prison.

Contact our Gold Coast & Brisbane criminal lawyers today for more information.