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Search Stored Communication Devices

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

By | General News

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

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

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

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

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

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

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

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

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

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

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

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

The legal position regarding searches of stored communications

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

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

Stored communication is defined as:

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

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

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

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

Consult a specialist legal firm

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

Police Powers COVID-19

Police Powers During COVID-19

By | General News

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

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

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

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

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

More detail on police powers

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

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

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

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

What to do if you receive an infringement notice

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

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

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

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

Covid-19 Court Proceedings

The Effects of COVID-19 on Court Proceedings

By | General News

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

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

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

The state of play

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

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

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

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

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

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

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

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

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

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

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

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

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

By remote means, the courts will continue to hear:

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

Speak with experienced legal professionals

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

Bail Applications

How Has Covid-19 Affected Bail Applications in Queensland

By | General News

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

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

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

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

Are the courts still hearing applications for bail?

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

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

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

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

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

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

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

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

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

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

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

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

Consult experienced legal professionals

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

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

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

Queensland Racing Integrity Commission

What You Need to Know About the Queensland Racing Integrity Commission

By | General News

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

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

Some of the QRIC’s functions

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

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

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

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

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

What to do if you are called before the QRIC

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

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

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

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

Right of review

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

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

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

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

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

Coercive Hearings

What You Need to Know About Coercive Hearings

By | General News

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

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

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

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

Which type of agencies conduct coercive hearings?

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

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

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

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

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

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

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

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

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

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

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

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

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

Seek legal advice

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

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

What to do During a Search Warrant Execution

What to do During a Search Warrant Execution

By | General News

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

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

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

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

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

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

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

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

Answering police questions

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

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

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

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

In conclusion

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

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

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

Can I Appeal a Decision Made by a Judicial Member of QCAT

Can I Appeal a Decision Made by a Judicial Member of QCAT?

By | General News

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 us today on (07) 3184 2323.

ASIC Investigations

What You Need to Know About ASIC Investigations

By | General News

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.

Penalties

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) 3184 2323. We’ll be happy to assess your particular circumstances at our Brisbane or Gold Coast offices as soon as possible.

Men See building

How to Apply for Bail in Queensland

By | Break & Enter Charges, Drug Charges, General News

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]

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.

family law disputes

Resolving Family Legal Disputes

By | General News

Family disputes can be emotionally draining and impact on, not only your life but also those of your extended family.

It’s important to realise that entering a formal legal process with your family should be considered a fall-back position rather than a primary option, but it is available to you if all avenues have failed. Here is what you need to know before you begin the process, and as always, we recommend you seek advice from a qualified practitioner who understands family law before taking any action.

Know What You Want

Before stepping into court, you will likely have to go through a dispute resolution process. This will involve formal mediation facilitated by a court-appointed practitioner. Before you begin, you should define, not only what you consider to be a best-case scenario, but also your fall-back position. While this is often difficult to think about, if mediation is successful and you can find a middle ground that everyone considers acceptable, you can move on with your life and perhaps rebuild relationships. Have a clear picture of what you want before starting mediation.

Dispute Resolution Services

As mentioned, before going to court, you will likely be required to undergo a mediation process using dispute resolution services. This will mean meeting with a mediator and other family members and attempting to find a middle ground. It’s important to seek advice before entering into dispute resolution, as you need to know the strength of your argument and, based on that, the strategy you should pursue. Don’t assume that you have a good case which will stand up in court (if you reach that stage) without having a thorough understanding of your legal requirements and obligations.

Dispute resolution and mediation work well if both parties enter into it with a view to finding a middle ground. This is not the time to be overly aggressive, to alienate any family members or to react emotionally if things start to get personal. Keep a cool head, listen carefully to what everyone has to say, and attempt to have a constructive dialogue. The mediator will make sure everyone gets an opportunity to speak, and you may be surprised to find that you and your family are closer to a resolution than you thought. If you cannot reach an agreement, however, you may need to go to court. Before you decide to do so, however, speak to your lawyer and again discuss the merits of your case.

Going to Court

If dispute resolution doesn’t work and you proceed to court, your lawyer will guide you through the process. They will argue the case and your behalf and lay out what they consider to be the best course of action. Your case will form the basis from which a decision will be made, and it’s important to keep in mind that any decision will be legally binding. This matters because the decision will be based on what is dictated by the law, rather than by what is “fair. “The law is designed to be impartial, so what you think you may be entitled to matters less than what is dictated by legal precedent.

For more information or to start a discussion, please contact our Brisbane & Gold Coast criminal lawyers.