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.
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.
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) 3184 2323 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.[/vc_column_text][/vc_column][/vc_row]
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 Gold Coast & Brisbane criminal lawyers today if you need to discuss any of the issues raised in this article.