What You Need to Know About Dangerous Drugs in Queensland

Queensland is renowned for many things, including its fantastic climate, beautiful beaches and resorts. Collectively these attributes make the ‘Sunshine State’ a desirable place to live, and a national and international tourist destination.

Accordingly, there are strict rules in place to protect residents and visitors. In fact, Queensland has some of the toughest drug laws in Australia. Being charged with a dangerous drugs offence here brings the potential for significant punishment upon conviction. This makes it imperative for anyone facing such charges to enlist the help of a qualified defence lawyer as soon as possible.

Offering many years of experience in the field of criminal law, the legal team at Bosscher Lawyers is fully prepared to help if you find yourself involved in a drug matter. Here are some important things you need to know about dangerous drugs in Queensland.

What is a dangerous drug?

For starters, you’ve got to understand how the authorities define “dangerous drugs”. The official definition can be found in the Drugs Misuse Regulations 1987 (Qld), which actually separates them into two categories (Schedule 1 and Schedule 2).

Schedule 1 drugs include but are not limited to:

  • Cocaine
  • Acid (LSD)
  • Heroin
  • Ecstasy (MDMA)
  • Methamphetamine

Examples of Schedule 2 drugs are:

  • Cannabis
  • Opium
  • Barbituates
  • Tranquilizers or benzodiazepines

It’s crucial to understand the difference because Schedule 1 drug offences tend to carry harsher penalties. This is because is the listed drugs pose a greater risk to the general public.

What qualifies as drug possession in Queensland?

In Queensland, state laws prohibit the possession of any dangerous drug.  However the term “possession” is broadly defined when used in this context. You may be accused of drug possession if:

  • You are aware that the substance in question exists and have control over it. You must also be aware, or have reason to believe, that the substance in question is a drug.
  • You meet the criteria specified above, but the drug/s belong to someone else.
  • The substance is discovered in your vehicle, residence or any other property that you are in control of, even if it is not found on your person.
  • You are aware or have reason to believe that there are drugs in a location that you frequent, even if the drugs don’t belong to you.
  • You meet the criteria specified in any of the previous bullet points, even though you didn’t buy, use or intend to use the substance in question.

Activity classified as illicit drug supply

Numerous activities can also be classified as illicit drug supply under Queensland law. It is important to note that you don’t have to give someone drugs in return for money (or anything else of value) to be charged with supplying drugs. All you have to do is give some drugs to someone else, or offer to do so without actually relinquishing anything.

Technically, supplying illicit drugs includes the following:

  • Selling, dispensing, providing, distributing, or transporting drugs;
  • consenting or volunteering to do any of those things;
  • preparing to dispense, provide, distribute, sell, transport or supply drugs.

Penalties upon conviction for these activities depend on several factors. These include drug quantity, who receives it, and whether the supplier benefited (financially or otherwise).

Aggravating factors – circumstances that add to the severity of the crime and carry harsher penalties – generally include those in which the supplier:

  • Is an adult who provides the drugs to a minor or an intellectually challenged individual;
  • provides drugs to someone who is incarcerated, or in a school, university, etc.; or
  • provides it to someone who is unaware of what it is.

Drug trafficking

A point of law that is often confusing to the general public is the difference between drug supply and drug trafficking. Hence the terms are sometimes used interchangeably.

However, there is a difference and charges vary accordingly. The key difference between supplying drugs and drug trafficking is that the latter involves the on-going supply so as to constitute a business. It is important to note not all business are profitable, therefore the lack of profits does not necessarily mean a person cannot be convicted of trafficking.

The provision of drugs in this context is often – but not always – coordinated through street gangs or similar criminal organisations. Individuals are subject to drug trafficking charges simply for buying drugs to sell to their mates.

You should also be aware that there are usually tougher sanctions upon conviction for trafficking because it is done for profit. For instance, trafficking in Schedule 1 drugs such as cocaine or heroin carries a maximum punishment of 25 years imprisonment.

Illegal drug production

In Queensland, it is not only illegal to provide and possess dangerous drugs, it is also illegal to cultivate and produce them.

Under applicable laws, cultivating illegal plants is broadly defined as any activity associated with their growth and care. This means that something as simple as watering one could be legally defined as cultivation, and you could be charged accordingly.

On the other hand, illegal drug production includes any activity associated with the manufacturing process. This includes but is not necessarily limited to preparation, assembly and/or packaging, or volunteering to assist with any aspects of the process.

You can be charged with a drug production offence no matter how limited or extensive your participation is. However, the extent of your participation, along with the quantity of drugs, generally determines your punishment.

Under Queensland law, you can also be charged with publishing or even having a formula for the production of an illegal or dangerous drug. If convicted, you face up to 25 years imprisonment for a Schedule 1 drug, or 20 years for a Schedule 2 drug.

Additional drug offences

In Queensland you can also be charged with a criminal offence if you are caught with drug paraphernalia or suspected drug paraphernalia. You can also be charged with a criminal offence if you allow a dwelling, building or property to be used for any purpose related to the use, sale, possession, distribution or production of drugs.

If you are facing any sort of dangerous drug charges, your freedom and your future are at stake. Contact us today on 1300 729 316 to learn how we can help you.

What Are the Proposed New Trespass Laws?

As the battle between animal activists and New South Wales farmers rages, it seems the state government has chosen sides. And it has sided with the farmers. On August 1, 2019, tougher laws took effect targeting people entering farms without permission to raise public awareness about alleged animal cruelty. These sanctions hit illegal trespassers with hefty fines, and possibly jail time. If you are an animal rights activist who has been charged with trespass under the enhanced laws, we are here to help. In the meantime, here’s what you need to know about the new laws.

Changes to the Biosecurity Act

The enhancements to the Biosecurity Act subject illegal trespassers on NSW farms to immediate fines amounting to $1,000. But that’s just the beginning. According to published reports, the maximum potential fine is a staggering $440,000. More specifically, news reports indicate that the top fine for an individual trespasser is a mind-blowing $220,000 and the maximum possible fines for groups exceed $400,000.

The NSW government adopted these measures at the federal government’s behest, following numerous incidents at farms and abattoirs. In one case trespassers reportedly gained access to a NSW farm 10 times in 2014. Footage from the cameras they hid on the premises was then shared online, leading to alleged harassment of the farmer.

With the enhancements to the Biosecurity Act in place, however, the NSW government boasts that it now has some of the harshest laws on the books to combat trespassing on farms.

And while farmers welcome the changes, Aussie Farms, a group that publishes farm locations online, is furious. First of all, it says that activists don’t pose any threat to biosecurity. Secondly, it contends that the government is imposing harsh sanctions to prevent further public awareness of what it calls “systemic animal cruelty”.

Brace for tougher federal sanctions, too

Aussie Farms has already paid a steep price for its commitment to animal rights. Its publication of an interactive map listing the locations of rural properties across the country earlier this year allegedly prompted a series of “farm invasions”. The federal government then listed the organisation under the Privacy Act (which carries fines up to $2 million). It also promised to implement stronger laws.

Now the federal government wants to crack down on any individual or group that uses the Internet or a phone to instigate trespassing and other acts targeting farmers.

On one hand, this is nothing new. Using the Internet or a phone – which are classified as “carriage service” – to promote any criminal activity is prohibited under federal telecommunications law.

But then again, proponents say, it is important to introduce specific rules to address the ongoing conflicts between animal activists and the farming/livestock industries. So, as proposed, the maximum punishment upon conviction for the use of a carriage device to incite trespass would be one year in jail. The maximum punishment upon conviction for use of a carriage device to incite theft or property damage would be up to five years.

The government maintains the measures are necessary not only to protect farmers from criminal activity, but also to ensure that they don’t incur any undue financial burdens.

The provisions of the Criminal Code Amendment (Agricultural Protection) Bill 2019 have been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report. The committee is expected to issue is findings by September 6, 2019.

In the meantime…

Meanwhile, the federal government says, it can only do so much. First of all, even though it can make laws to prevent inciting crime it is much more difficult to prevent any organisation or individual from sharing relevant information.

Secondly, because trespass is prohibited under state law, it is up to the individual states and territories to create even stronger measures to help combat trespass on agricultural properties. In light of this, the Queensland government is reportedly following the NSW government’s lead by drafting stronger penalties for farm trespass under its Criminal Code Act.

And then there’s the matter of enforcement. For effective enforcement, experts say, the state/territorial police will need more education, equipment and manpower. In other words, only time will tell how effective these new laws will actually be.

We are here to fight for you

Here at Bosscher Lawyers, we believe that activists have the right to shed light on animal cruelty occurring in the Australian agriculture and livestock industries. While we do not condone violence, threats of violence or any other illegal activity, we do believe in fighting for those who have been wrongly charged and/or convicted. If you are an animal rights activist and you were charged with trespass or any other crime while on an agricultural property, contact us on 1300 729 316 to learn more about how we can help.

drug driving lawyers Brisbane

What You Need to Know About Drug Driving Charges

Just like drink driving, drug driving can have devastating consequences. In a worst case scenario it can cause a catastrophic or fatal crash. And because it jeopardizes innocent lives, motorists who knowingly (or unknowingly) engage in this activity face harsh punishments when they are caught. Here’s what you should know about drug driving charges in Queensland.

Queensland’s drug driving laws

Under the Transport Operations (Road Use Management) Act 1995, there are two general classifications for drug driving offences in Queensland.  The first is Driving Under the Influence of a Drug. The second category is Drug Driving (with Relevant Drug Present).

Driving under the influence of a drug

To charge a motorist with the former, police must have sufficient reason to believe that he or she is affected by one or more drugs while driving. In many cases, erratic driving such as swerving, speeding, or failing to obey traffic signs, alerts police that something is amiss. In others, police arrive at an accident scene to find a seemingly uninjured driver acting strangely. In either case, police rely upon experience, training and personal observations of a driver’s behaviour and appearance to determine that he or she is likely affected by drugs at the time. Blood tests may also be administered in an effort to confirm an officer’s suspicions.

In this context, it is important to note that it doesn’t matter whether you are under the influence of a legal (prescription or over the counter) or illegal drug while driving.  A positive blood test coupled with other evidence will likely result in conviction.

Drug driving (relevant drug present)

As detailed in section 79(2AA) of the Transport Operations (Road Use Management) Act 1995, someone can be charged with this offence if they have drug residue in their blood or saliva.

In most cases, police use a roadside saliva swab test to detect the presence of drug residue. These tests are specifically designed to react with ingredients of certain drugs and immediately yield a ‘positive’ or ‘negative’ result. If there is a positive finding, additional evaluation and assessment is generally done to confirm the presence of the active ingredients in marijuana, ecstasy, or speed/ice.

Having said that, police can test for the active ingredients in other illegal drugs. And although they don’t use field kits to detect ‘legal’ drugs, the detection of prescription medicines such as Methadone and Pethidine isn’t unheard of.

Therefore it is important to consult your physician or healthcare provider about how long any traces of prescription medicines will remain in your system and how the use of prescription medicine may affect your ability to drive before you get behind the wheel.

Doing so is especially important because drug driving with a relevant drug present is a strict liability offence. This means that there are minimum standards of proof required for the charge to ‘stick’. Police and prosecutors don’t even have to prove that the amount of drug residue found in the driver’s system meets or exceeds a certain threshold. In fact, the only real evidence required to secure a conviction is a positive test result.

Punishment upon conviction

In general, the types of punishment you may face upon conviction for these offences include:

  • fines;
  • imprisonment;
  • loss of driving privileges.

The severity of the punishment depends on a few factors, including your past convictions for other, unrelated traffic offences (if any); or prior convictions for the same offence you are now charged with.

Within this context, you should be aware that Section 187 of the Penalties and Sentences Act 1992 (Qld) gives a court the power to rescind your driving privileges for life if you are convicted of an offence connected with driving a vehicle. You should also be aware that this applies to first-time and repeat offenders, regardless of the mandatory disqualification period specified by law. However, a court can only impose a lifetime ban if it believes that doing so is ‘in the interests of justice’.

Something else to keep in mind regarding disqualification periods is that they must be served cumulatively, not concurrently. This means you must finish serving one before you start serving the other; you cannot serve both at once.

Punishment upon conviction for DUI-Drug

The range of punishments for DUI-Drug offences in Queensland are as follows:

First offence of DUI of a drug: If you haven’t been convicted of any major traffic offences in the past five years, you face up to nine months in jail and/or a fine of $3,298 (28 penalty units).

The court must disqualify you for at least six months, and can extend this period depending on the specific circumstances of your case.

Second offence of DUI of a drug: If this was your second significant traffic offence within the past five years, you face up to 18 months in jail and/or a fine of $7,068 (60 penalty units).

Upon conviction, the Court must disqualify you for at least one year, but may extend this period at its discretion.

Third or subsequent offence of DUI of a drug: If this was your third or subsequent major traffic offence within the past five years, you face up to 18 months in jail and/or a fine of $7,068 (60 penalty units). You will also lose your driving privileges for at least two years, but the court may increase this period at its discretion.

Punishment upon conviction for Driving With a Relevant Drug Present

The range of punishments upon conviction for Drug Driving – Relevant Drug Present are as follows:

First offence of Drive with Relevant Drug Present: If this was your first offence, you face up to three months imprisonment and/or a$1,649 fine (14 penalty units). You also face disqualification for at least one month.

Second offence of Drive with Relevant Drug Present: If this was your second offence within five years, you face up to six months in jail and/or a $2,356 fine (20 penalty units). You also face disqualification for at least three months.

Third (and subsequent) offence of Drive with Relevant Drug Present: For a third, and any subsequent, offence within five years, you face up to nine months in jail and/or a $3,298 fine (28 penalty units). You also face disqualification for at least six months.

You need an experienced lawyer to mount a successful defence

Clearly, these are very serious charges. If you are convicted, you will undoubtedly lose your driving privileges, spend time in jail, and end up paying some staggering fines. With the help of an experienced criminal lawyer Brisbane, however, you may be able to avoid these penalties. Don’t leave anything to chance. Contact us to learn more about how we may be able to help you today.

Driving While Suspended or Disqualified in Queensland: What You Need to Know

For Australians, the ability to drive legally is essential. A valid driving licence allows us to get to work and school, to get groceries, to get to the doctor, and to places of worship. In rural Queensland, the ability to drive without running afoul of the law provides a vital link between neighbours. But the bottom line is that driving is a privilege, not a right. This is why driving while your licence is suspended or disqualified is so serious. Here’s what you should know about these offences.

Driving on a suspended licence in Queensland

Under the Transport Operations (Road Use Management) Act 1995, it is illegal to drive on a public road in Queensland without a valid driver’s licence. This means you can be punished if police catch you driving on a public road while your licence to operate a motor vehicle is suspended or expired. To be convicted of driving on a suspended licence, there must be sufficient proof that:

  • you were driving a motor vehicle on a public road; and
  • you did not hold a valid driver’s licence; and
  • you did not hold a valid driver’s licence in Queensland because it was suspended.

If you are convicted, the extent of your punishment will depend on your specific circumstances, including any mitigating or aggravating factors.

Driving whilst disqualified in Queensland

Aside from sending someone to jail or prison, disqualification is one of the harshest punishments a Queensland judge or magistrate can impose for certain traffic offences. When someone’s licence is ‘disqualified’, it is confiscated and their driving privileges are revoked for a specified period. In such cases, they must apply for a new licence once that time has elapsed.

To be clear, you cannot drive once your driver’s licence is disqualified. One exception to this is if you qualify for and obtain a restricted driver’s licence (ie: for work-related purposes). If you don’t have one and the police catch you driving on a public road, they can charge you with driving whilst disqualified.

Again, the penalties that may be imposed upon conviction will depend on the specific circumstances of your case. Mitigating and aggravating factors will be considered.

Penalties for driving on a suspended licence and driving whilst disqualified

In Queensland, someone convicted of driving on a suspended licence faces the same penalties as someone convicted of driving without a valid licence. If this was your first offence, you could end up paying a $4,400 fine and spending up to a year in jail.

However, you should be aware that you may be able to avoid going to jail if you haven’t committed a similar offence within the last five years. This is because police have some discretion in these circumstances. Specifically, they can issue a maximum fine of $4,400 if they so choose.

On the other hand, Magistrates Courts, which usually hear these matters, don’t have any leeway regarding disqualifications. If you are found guilty of driving while your licence is suspended, your licence will be confiscated for a maximum of six months. It does not matter if you have received any other punishment in connection with the offence.

Because the offence is so serious, the penalties for driving whilst disqualified tend to be severe. At the very least, your driver’s licence will be confiscated for two to five years. You may also end up paying hefty fines and going to jail for up to 18 months.

You need experienced Queensland criminal lawyers to fight for you

If you have been charged with driving on a suspended licence or driving whilst disqualified in Queensland, you need a qualified lawyer on your side. Our criminal law team can quickly assess your situation and devise an effective defence. Depending on your specific circumstances, we may argue that:

  • you actually had  a valid licence at the time of the offence;
  • you were not driving on a public road as defined by law at the time of the offence;
  • you were suspended from driving on valid grounds and/or there is a dispute as to the validity of your  licence;
  • you had to drive because you were being threatened with violence or you were otherwise under significant duress;
  • you had to drive because of an extreme emergency (a matter of life and death) or a similar situation.

With your livelihood and your freedom at stake, there is no time to waste. Contact our criminal lawyers Brisbane to learn more about how we can help you today.

What Does Bail Mean and Will I Get It?

These days, it seems like every channel that you flip to on the television is some kind of cop show or procedural drama. Because of this, even the average lay-person can use terms like ‘parole’ and ‘bail’ in everyday conversation. However, that doesn’t signify that the meaning of these terms are clear. Despite inclusion in the common vernacular, the reality of bail may be a bit more significant than you might expect.

What is ‘bail’?

Bail is a pivotal aspect at the start of a person’s criminal defence. When awaiting trial, a defendant may apply for bail which, if the application is approved, will allow them to await trial while remaining free in the community. If the application for bail fails, the offender will need to remain in police custody until the trial. Bail is a written agreement, known as an undertaking, for the offender to show up for their trial at a specific date and time. Bail may also include additional considerations such as: reporting (to a police station, for example), residential conditions (not moving while on bail), and fines.

Watch-house bail: The most basic form of bail, watch-house bail, is granted when you are arrested and charged with an offence but you are allowed to remain at liberty within the community, provided that you sign a bail undertaking stating your agreement to appear before the court at a specific day and time.

Court bail: If you are denied watch-house bail, your alternative option is to apply to court to be granted bail. Once you sign the agreement, you will be released from custody and will be free to remain in the community until your agreed-upon court date and time. If your agreed-upon court date is then rescheduled, you will be required to sign an additional bail agreement or else you might be arrested.

Bail enlargements: Sometimes, a person who has been charged with an offence will be assigned multiple court dates. In this case, the person may want to apply for a ‘bail enlargement’ so that they can remain in the community until the later court date, rather than needing to apply for multiple bail agreements at each stage of the process.

What does the court consider when considering a bail application?

After a person applies for bail, the court must then decide whether or not to grant the application or deny it. There are a number of factors that the court must consider. The Bail Act 1980 (Qld) states that an application for bail will only be granted if custody is not necessary to ensure the safety of the applicant and the applicant is not considered an “unacceptable risk” of:

  • failing to appear at the agreed upon date and time;
  • failing to surrender into custody;
  • committing an offence while released on bail;
  • endangering the victim of the offence for which the applicant was charged;
  • endangering any other person;
  • interfering with the investigation, witnesses, or otherwise obstructing justice.

There are numerous other aspects of an individual’s circumstances that the court will consider, including (but by no means limited to):

  • Personal matters: job, children, residence.
  • Previous history with the criminal justice system, such as their criminal record. Also, have they missed court dates before?
  • Risk of releasing back into the community: Are they likely to flee? Are they dangerous? Are they likely to commit further offences?
  • The matter at hand: nature and severity of the offence charged; strength of the evidence against them; are they/someone they know able to provide surety/financial collateral if bail is breached?
  • Any other issue the court deems relevant to the matter.

While bail is a beneficial mechanism for many individuals as they await trial, there is a great deal of rationale behind the court’s decision to either grant or deny bail. If you or a loved one have questions or concerns about what bail really means, or how you might apply for it, please contact an experienced lawyer today. They will be your best resource as you attempt to navigate the criminal justice system.

How Do I Make Changes to a QLD Domestic Violence Order?

For the authorities, combating domestic violence in Queensland is an ongoing challenge. Thousands of applications for domestic violence orders (DVOs) are initiated annually, and there are no signs the trend is changing. In fact, statistics provided by the Queensland Courts indicate:

  • the number of new applications for DVOs lodged statewide in 2018-2019 stood at more than 25,800 (as of 30 April, 2019);
  •  the total number of new applications lodged statewide for all of 2017-2018 was 30,381;
  • the total number of new applications lodged statewide for 2016-2017 was 32,072.

A closer look at the 2018-2019 data reveals that Queensland Courts have issued more than 41,200 DVOs as of April 30, 2019. Of those, more than 20,800 were protection orders. More than 14,500 were temporary protection orders. Only 5,861 were ‘vary protection’ orders.

Of significance here is that Queensland Courts only issue the latter order to people seeking changes to existing DVOs.

Who can request changes to a DVO?

Technically, anyone whose name appears on a DVO can request changes. It doesn’t matter if you are the aggrieved, respondent, applicant or a named person (such as a relative). Nor does it matter if the DVO is a temporary protection order or a protection order. As long as your name is on the order, you can ask a court to change it.

Having said that, if you are the aggrieved person (victim) you can also authorise someone else to request the changes on your behalf. Additionally, if you are a ‘named person’, you can only request changes to the portion(s) of the DVO that pertain directly to you.

When changes to a DVO can be requested

If you meet the criteria we just discussed and your circumstances have changed, you can apply for a variation of the order. This is so even if the police made the original application to the court.

Based on changes in your situation, you can request the following changes to an existing DVO:

  • the addition or removal of conditions;
  • the addition or removal of named people (e.g. children, other family members, and associates);
  • an extension or reduction of the time the order is in effect.

If you are requesting the removal of stipulations which potentially lessen protection for the victim, be prepared to explain:

  •  specific changes in circumstances;
  •  how the victim and any named individuals  will remain free from harm.

Remember, the safety, protection and well-being of people who fear or have been victims of domestic violence, including children, is paramount to police and the courts.

The magistrate will take your testimony and the police officer’s testimony into account before making a decision.

We are here to help

At Bosscher Lawyers, we are dedicated to securing the best possible outcomes for our clients. If you need assistance with obtaining or changing a domestic violence order, we are here to help. Contact us to learn more today.

Five Ways To Reduce Legal Fees

Let’s be honest. One of the single biggest factors, if not the biggest factor, that prevents people from seeking legal representation is the cost. But what people sometimes fail to consider is that by not obtaining proper legal advice and representation, their matter can often end up being more expensive in the long-term. With that said, here are five ways to reduce your legal fees.

Exercise discretion

Being involved in a court case of any kind can be incredibly stressful so it’s understandable if you are anxious. However, it’s important that you don’t bombard your lawyer with constant requests for updates by email or phone. A qualified and experienced legal professional will keep you fully informed of any relevant developments. Another point to keep in mind is that a good lawyer will also welcome questions about specific issues or concerns.

Be prepared

Time is money for you and your lawyer, especially if they are billing by the hour. You can minimise the amount of time spent in meetings with your lawyer by being prepared. But what does this actually mean?

Simply put, it means you should do the following:

  • Ask your lawyer what, if anything, you should bring to the meeting, and act accordingly.
  • If you bring a stack of unorganised papers, you or your lawyer will end up wasting valuable time sorting through it during the conference. Once you know what your lawyer needs, organise the documents by subject matter or date. If you need to keep the originals, make the copies yourself.
  • Think carefully about what you’d like to discuss with your lawyer prior to the meeting. Put those thoughts in writing (a list is a good idea), and don’t forget to bring your notes to the meeting or conference.
  • Be sure to arrive at the meeting on time, or even a few minutes early. By doing so you will give yourself time to catch your breath. If need be, you can use the time to jot down a few last-minute thoughts. This will also allow you to make the most of the available time that you do have with your lawyer.

Ask your lawyer if you can do some of your own research

More often than not, lawyers must devote a significant amount of time to researching various aspects of their clients’ cases. While they are well-equipped to do so, there might be some factual research that you can do, too. Depending on the circumstances of your case, you might be able to help by locating information or witnesses. You may also be able to create a timeline or draft statements regarding the facts of your case.

As long as you don’t bombard your lawyer with tons of completely irrelevant material, your lawyer will probably appreciate your efforts. Better yet, you’ll effectively reduce your legal fees because your lawyer won’t have to do the research.

Don’t let your emotions get the best of you

Being a party to a legal matter is an emotional experience. It doesn’t matter if you are involved in a business dispute, a family matter or any other civil or criminal matter. You may be angry, frustrated, stressed, overwhelmed or frightened. However, it’s important that you don’t let your emotions get the best of you, especially when it comes to making important decisions. If you do, you may make choices that delay the resolution of the matter (costing you more in legal fees), or cause the court to award the other party their costs. In a criminal matter, making the wrong choice based on your emotions could mean you have to pay more in fines, or spend more time in jail.

Be honest with your lawyer, no matter what

Don’t be surprised if there are times when your lawyer asks you a question that you’d really rather not answer. Depending on the question, you may feel embarrassed or concerned that it could harm your case.

But when all is said and done, your lawyer’s job is to help you. Failing to disclose important information or details when asked could not only unnecessarily delay your case (resulting in more fees and costs) but it could even wreck your case completely (meaning you’ll just end up wasting your money).

Consequently, it is extremely important that you are always open and honest with your lawyer. If you don’t feel like this is the case with your current lawyer, you may have to switch legal representatives so you can work with someone that makes you more comfortable.

At Bosscher Lawyers, our clients always come first. We also believe in providing honest, efficient and cost-effective advice. To help with the costs of representation, ask us about fixed fees for our services.

To learn more about how we can help you, phone us on  1300 729 316, use our contact page, or send an email to: [email protected]

Police Powers and Responsibilities – Seized Property

Sometimes, police seize property in the course of exercising their duties and investigating crime. If your property has been seized by police, it is important to know your rights and how you can you go about having that property returned.

Hang on to your Field Property Receipt

The Police Powers and Responsibilities Act (PPRA) gives police powers to seize property in certain circumstances. In most circumstances, when a police officer seizes property from a person, they must provide that person with a receipt. This is called a Field Property Receipt and will list the items police have taken. This receipt can help you or your lawyer get your items back so it’s important that you hang on to it.

How long can police keep my stuff?

When a police officer seizes property, that officer is responsible for the safekeeping of the property until it is delivered to a property officer or property point. Unless the property is the subject of a charge, police may retain seized property for up to 30 days. After this time, they will need to obtain an order from a Justice of the Peace or a Magistrate. There are some obvious exceptions to this requirement like property that is perishable or has no intrinsic value.

Without such an order, a police officer MUST return the property to the owner or the person who lawfully had possession of the thing before it was seized. This means that you may be entitled to have property returned to you even if you are not the lawful owner. For example, you do not own property that you borrow or rent but because of the agreement you have with the owner, you have lawful possession of it.

It’s important to remember that the law requires the Commissioner of Police to take reasonable inquiries and efforts to locate persons claiming to be entitled to possession of certain property and facilitate the disposal or return of that property. You are entitled to insist that your property be returned.

Documents you need now…

If police seize documents from you, unless they have an order from a Magistrate or a coroner, they must let you inspect the documents and take extracts or make copies of it. You must be allowed to inspect the document at any reasonable time and from time to time. While this provision relates to documents, it also encompasses computers that store documents. This provision can be helpful if computers or paperwork relating to your business have been seized.

If you or someone close to you has had property seized and would like to discuss arrangements for the return of that property, please contact our Brisbane criminal lawyers today.

Why the Defence of “Mistake of Fact” in Rape Cases Matters

“That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved” – Benjamin Franklin.

Recently, certain commentators have called to abolish the defence of ‘mistake of fact’ in rape cases. Some advocates for reform have written extensively on the subject but in doing so have misstated how the defence is established and mischaracterised its application in the case law.

The Queensland Criminal code states that “Consent means consent freely and voluntarily given by a person with cognitive capacity to give consent” (Section 348(1)).

The Code also provides a defence of mistake of fact where “a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things” (s. 24).

Importantly, an honest belief must be a belief that is genuinely held and a reasonable belief is one that a person holds that, in the particular circumstances, is reasonable.

Bri Lee, author of consentlawinqld.com states that reform is needed as the law as it currently stands allows ‘calculated, predatory offenders, as well as reckless and opportunistic ones’ to use the defence to ‘evade responsibility.’

When a defendant contests a charge of rape at trial, if the defence of mistake of fact is raised, the reasonableness of the defendant’s belief is to be considered and determined by the jury – 12 members of the public.

It is difficult to imagine circumstances where the defendant’s behaviour was reckless AND reasonable.

The defence is a ‘loop-hole to escape liability.’ It is also incorrect to say that it is irrelevant as to whether consent is given, so long as a person thinks they have consent. The law clearly states the belief as to consent must be genuine and reasonable and those questions are, again, to be determined by a jury, not lawyers or judges.

The state of these laws in Queensland, or anywhere else, is imperfect. We as society live with many grey areas that are subjective and cannot simply be governed or assessed as ‘black or white’ scenarios. This is exactly why our justice system utilises juries, made up of ordinary citizens, to apply common sense and logic to situations. Of course, juries are obligated to make decisions within the bounds of the laws, however issues such as ‘reasonableness’ or ‘genuine belief’ are to be interpreted and applied as they would ordinarily be in any scenario.

It is suggested the law allows a person greater leniency for their actions/decision if they were intoxicated at the relevant time. Again, this is incorrect. The case of Hopper illustrates this point by the comment of the court that, “a mistaken belief that is induced by intoxication is not one that can be considered ‘reasonable’ as distinct from honest” and “if the appellant’s belief that the complainant was consenting was not capable of being considered ‘reasonable’, then it could not affect the verdict in the case.”

In summary, whilst a person’s level of intoxication may affect how ‘genuinely’ or how ‘honestly’ they believe in a certain state of affairs, but it simply does not affect the reasonableness of that belief.

Calls for reform in this area give insufficient consideration to the role of the jury in applying the defence.

Our laws quite appropriately provide for defences which, if successful, require that a jury be satisfied to the requisite standard. To that end, we have summarised below some of the cases identified in the articles and the relevant website, to provide a more comprehensive and accurate reflection of the state of those cases:

R v PHILLIPS

  • A 13-year-old complained of having been raped on four occasions by a family friend;
  • Her version of events suggested the rapes were forceful and without consent, despite admitting only resisting on one occasion;
  • The defendants’ versions were starkly different in relation to the events, in that he stated there was no sexual contact between them;
  • The jury found the defendant guilty of rape x 1 and unlawful carnal knowledge x 2;
  • The only reasonable explanation for the jury’s verdicts are that they did not believe the defendants story and somewhat accepted the complainants version;
  • Obviously, the jury were satisfied that in all the circumstances, a reasonable person would have believed the girl was consenting;
  • The Court of Appeal ruled that the conviction for rape was inherently inconsistent with the two convictions for carnal knowledge. Therefore, the conviction for rape was substituted with a third conviction for carnal knowledge;
  • Significant discussion was conducted about whether to order a re-trial due to the inappropriate behaviour of the Judges associate during the trial.

R v SOLOMON

  • Solomon convicted of rape after trial;
  • Solomon and complainant’s versions of what occurred varied considerably;
  • Complainant claimed she woke up to Solomon raping her;
  • Solomon claimed they engage in consensual sex after spending the night together, drinking, consuming marijuana and flirting;
  • Solomon detailed many, inherently consensual, sexual acts that preceded consensual intercourse;
  • Jury obviously preferred complainant’s version and convicted Solomon of rape;
  • Appeal granted and re-trial ordered because jury were not made aware of ‘mistake of fact’ defence – which would have allowed the jury an alternative consideration, that being the genuine and reasonable belief of Solomon;
  • At trial, jury effectively only had a choice of who’s version to believe;
  • Solomon’s intoxication would only be relevant to his ‘belief’, not ‘reasonableness’.

Murder in the Third Degree? Does This Apply in Australia

Recently, an American police officer, Mohameed Noor, was found guilty of Murder in the Third Degree for the killing of Australian woman, Ruszczyk Damond.

Noor and his partner, Matthew Harrity were responding to a 911 call at a residence when they claim to have heard a loud bang on the front of their car. Immediately after hearing the sound, a woman with a raised arm appeared at Noor’s partners window. Noor shot at the woman. Later claiming he did this to protect his partner.

A jury found Noor guilty of Third-Degree Murder. In Minnesota, where Noor was convicted, third degree murder is essentially murder without the intent to kill. It can be as a result of indifference, negligence or recklessness. The statute of Minnesota (Section 609.195) gives two types of 3rd degree murder, the first of which is the relevant section for this case. It stipulates that “without the intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and envincing a depraved mind, without regard for human life.” The maximum term of imprisonment for that offence is not more than 25 years.

The average sentence in Minnesota for third-degree murder where a person doesn’t have a previous criminal history, is in the range of 10 to 15 years in prison. Inmates typically serve two-thirds of their sentence while incarcerated.

Confusion arises when attempting to compare the American laws surrounding Murder/Manslaughter and the different ‘degrees’ to the relevant Queensland laws.

The Criminal Code Act (QLD) 1899 contains the offences of both Murder and Manslaughter. However, there is no ‘degree’ of either offence.

In summary, s302 defines Murder as the unlawful killing of another under any of the following circumstances: –

  • With intent to cause death or Grievous Bodily Harm to any person;
  • Occurring in the prosecution of an unlawful purpose which would likely endanger life;
  • With intent to do Grievous Bodily Harm in an act of committing a serious offence/fleeing from having committed a serious offence;
  • If the death is caused by administering any stupefying or overpowering thing for the purposes mentioned in (c);
  • If the death is caused by wilfully stopping the breath of any person.

The punishment for murder is mandatory imprisonment for life. An offender can typically apply for release on parole after serving 20 years.

Manslaughter is defined in section 303 of the Criminal Code (Qld) as, the unlawful killing of another under such circumstances as to not constitute murder.

It is commonly understood that Manslaughter is the appropriate charge for an unlawful killing where the defendant acted without the requisite intent for the offence of Murder.

The maximum penalty for manslaughter is life imprisonment. Inmates typically serve between one-third and one-half of their sentence prior to release on parole.

It seems that should Mr Noor have committed his offence in Queensland, manslaughter would likely have been preferred to a charge of murder. Interestingly, that would have meant him facing a significantly heavier maximum penalty than he is currently facing.

Judicial Review

The Judicial Review Act 1991 (Qld) enables a person to challenge the legality of administrative decisions such as decisions made by Government Departments and agencies and Magistrates/Judges.

A Judicial review is effectively an appeal whereby a person seeks to challenge the legality of a decision, as opposed to the merits of that decision. It is essentially a review of whether the decision was made properly rather than whether the outcome was correct.

The most common grounds relied upon in Judicial Reviews are:

  • That a breach of the rules of natural judges happened in relation to the making of the decision;
  • That the making of the decision involved an error of law;
  • That the making of the decision was an improper exercise of power; and
  • That there was no evidence or other material to justify the making of the decision.

Recently, Bosscher Lawyers made a rare application challenging administrative decisions of two Queensland Magistrates. The Judicial Review was argued on the basis that both Magistrates made errors of law in making their respective decisions.

The relevant decisions were firstly, to refuse to allow cross-examination of witnesses at committal hearing and secondly, to conduct a committal hearing and commit the matters to trial in the District Court without the defendants’ consent.

When hearing the application before the Supreme Court of Queensland, Her Honour Chief Justice Holmes accepted our argument and ultimately our application was successful. Her decisions were published and can be found at Atherton & Anor v Eaton & Ors [2019] QSC 66.

An application for Judicial Review can be made with respect to an array of decisions including:

  • Parole Bard decisions
  • Decisions made by a board constituted by legislation (Eg Harness Racing Board)
  • Decisions made by adjudicator pursuant to legislation (Eg Building and Constructions Industry Payments Act)
  • Queensland Building and Construction Commission decisions
  • Administrative decisions made by a court/tribunal

Should you be aggrieved by an administrative decision or wish to obtain advice in relation to Judicial Reviews, you should contact Bosscher Lawyers on (07) 3229 3166.

Have You Been Charged with Driving Without a Licence?

In Australia, driving isn’t an entitlement or a right. It is a privilege and a responsibility that shouldn’t be taken lightly. That’s why everyone needs a licence to do it.

But sometimes even honest, law-abiding citizens make mistakes. And in some cases, people just don’t think the rules apply to them. So they end up driving without a valid licence. But what happens if they get caught? Here’s what you need to know about being charged with driving without a licence.

When can you be charged with unlicensed driving?

In Queensland you can be charged with unlicensed driving if the police catch you behind the wheel and:

  • you have never had a licence at all;
  • your licence is expired;
  • you are driving with the wrong type of licence;
  • a doctor has declared you medically unfit to drive;
  • you gave up your licence voluntarily;
  • your licence has been temporarily suspended.
  • A court has disqualified you from holding a licence for a period of time
The penalties for driving without a licence

The punishment that will be imposed if you are convicted of driving without a licence will depend on the specific circumstances of your case. At most you can be sentenced to 18 months imprisonment and 60 penalty points.

An infringement notice may be issued in lieu of a tougher punishment, but only in certain circumstances. Specifically, this type of notice may be issued as long as you haven’t been convicted of driving without a licence in the preceding five years; you have not had your driver’s licence disqualified in the previous two years for drink driving; and you have had a valid driver’s licence before.

Within this context it is also important to note that an infringement notice won’t be issued in your case if:

  • You are interlock driver (an alcohol ignition interlock is a breath test device linked to the ignition system of a vehicle) whose licence was not reinstated after a disqualification period for drink driving; or
  • you are an interlock driver who didn’t have a valid Queensland driver’s licence  when the offence occurred and your interlock period has not ended; or
  • you are an interlock driver whose Queensland driver’s licence had expired more than a month before the offence and your interlock period has not ended.
How your punishment is determined

If you have been convicted of driving without a licence and you are a repeat offender or a disqualified driver, the court weighs several factors when deciding how you should be punished. These typically include:

  • The entirety of your case including any aggravating and mitigating circumstances;
  • the public interest;
  • your criminal and traffic records (if any);
  • relevant information provided to the court about your medical history, mental  or physical impairment or physical ability;
  • if you were driving without a licence during the commission or attempted commission of another offence, and the type of offence;
  • any additional matters of interest to the court.
Driving with a suspended licence

Driving while your licence is suspended is also classified as unlicensed driving. Your licence could be suspended for a short time if you have accumulated too many penalty points for excessive speeding or for failing to pay certain fines. If you were charged with driving under the influence of alcohol or drugs, your licence may also be subject to immediate suspension pending determination of the matter.

In any case, you are not allowed to drive while your licence is suspended. If you are caught driving with a suspended license, you will face harsher penalties than other types of unlicensed driving.

Your punishment will be based on the specific circumstances of your case. In other words, it will depend on why your licence was orriginallyvsuspended. If it was suspended for failure to pay certain court ordered fines, you could receive anywhere between a one to six month license disqualification. If it was suspended because you accumulated too many penalty points, or engaged in excessive speeding, you could lose your licence for six months. All of these situations can also carry the maximum fine of 40 penalty units, or imprisonment of up to one year.

If you are caught driving on an immediate suspension your punishment could be a two to five-year licence disqualification, maximum fine of 40 penalty units, and a prison sentence of up to one year.

Driving with a recently expired licence

A ‘recently expired licence’ can be legally classified as one that lapsed less than a year prior to the commission of the offence; or as one that was rescinded (as a result of a physical or mental ailment that renders you unable to drive) less than a year prior to the commission of the offence.

If you have been charged with driving on a recently expired driver’s licence, a police officer may grant you a permit that allows you to drive to a specific location where you can safely store your vehicle.

Keep in mind that to be valid, this permit must:

  • Be in an acceptable form;
  • indicate the infringement notice number;
  • state the duration, which cannot exceed 24 hours, for which it is issued;
  • stipulate the conditions, if any, on which it is issued.

If you have been charged with driving without a licence, it is important to get sound legal advice as soon as possible. Contact our Brisbane Criminal Lawyers today.

Brisbane criminal lawyers

Unlawful Striking Causing Death – “One Punch Can Kill”

In 2018, the sentencing of a Brisbane man to nearly 10 years imprisonment brought renewed attention to Queensland’s unlawful striking causing death – or “one punch can kill” – law. Here’s what everyone should know about this important law and the consequences of breaking it.

The back story

The case in question stems from an incident that occurred on 3 January, 2016. At that time, Armstrong Renata was kicked out of a Fortitude Valley nightclub. Afterwards, Renata and another person tried to initiate a physical altercation with two men, identified as Cole Miller and his friend, Pace, whom they allegedly followed. Then Renata and the other person attacked, first punching Pace and then targeting Miller when the two victims tried to flee. Renata then sent a sucker punch or ‘king hit’ to the side of Miller’s head that caused a fatal brain injury. Renata was 23 when he killed Miller, who was just 18.

Renata pleaded guilty to unlawful striking causing death, which is an illegal act under section 314A of the Criminal Code 1899 (Qld). Although he faced at least 15 years and a maximum penalty of life imprisonment upon conviction, Renata was initially sentenced to only seven years imprisonment based on the court’s assessment of the entire case and applicable sentencing guidelines. The court also determined that he had to serve 80 percent of that time before he could apply for parole.

After legal wrangling that ultimately resulted in an appeal, Renata’s sentence was increased to nine years and six months imprisonment.

Queensland’s unlawful striking causing death law

To secure a conviction for unlawful striking causing death, the prosecutor must prove that the defendant illegally hit another person in the head or neck and killed them by doing so.

However, the prosecutor does not have to prove that the defendant intended to kill the victim (which would be required in a traditional murder case), or that the defendant could have reasonably foreseen that his or her actions would have resulted in the victim’s death (which would be required to secure a conviction for manslaughter).

Unlawful striking causing death is a relatively new law in Queensland, which has only been on the statute books since 2014. It was specifically created in accordance with the Safe Night Out Legislation Act 2014 (Qld) following a string of deaths involving single punches.

Since its introduction, the law has sparked considerable debate. Critics question whether it is too harsh. Proponents, including the Queensland Homicide Victim Support Group and legislators behind the Safe Night Out Legislation Act 2014 argue that harsher penalties on offenders for this type of crime are necessary deterrents.

Proponents also point out the significance of the law as it potentially pertains to young adults. This is because younger people are more likely to be in situations or engage in behaviour where this law may apply. Specifically, they say it is important that young adults remain aware of the consequences of failing to monitor their alcohol consumption, potentially leading to violence where someone is killed by a single punch during a night out clubbing or partying. They also need to understand that it doesn’t matter whether the attacker meant to kill the victim.

The importance of getting sound legal advice

Currently, there is widespread government support for implementation of tough sentencing regimes for offences occurring in safe night precincts like Fortitude Valley and Surfers Paradise. Therefore, it is crucial that you get proper legal advice if you have been charged with an offence involving violence whilst under the influence of alcohol or drugs. Don’t leave anything to chance. Contact our Brisbane Criminal Lawyers today.

Criminal Lawyers Brisbane

What is a Conviction & How Can I Prevent it From Being Recorded?

Everyone knows that if you are found guilty of a crime, you’re convicted of the offence. Convictions, unsurprisingly, have serious ramifications and can potentially follow you for the rest of your life, regardless of your court imposed punishment. If a conviction is recorded it can affect you when applying for jobs and prevent you from travelling. Not all convictions, however, need be recorded. Below, we discuss non-recorded convictions and what that may mean for you.

Penalties and Sentences Act 1992

The Court is granted the discretion to not record a conviction by Section 12 of the Penalties and Sentences Act of 1992, even when the person in question has been found guilty and sentenced by the Court. When exercising this discretion, the Court will look at a variety of factors in determining whether or not the individual circumstances warrant leniency.

Factors that Influence Discretion

Nature of Offence: The type of crime for which you’ve been found guilty will play a role in the discretion of the Court, with minor offences more likely to be non-recorded than major offences.

Age & Character: The offender’s age and character will be taken into account. Because the goal of the criminal justice system generally revolves around fairness and rehabilitation, young offenders and those with no prior history with the criminal justice system are more likely to receive leniency, as they are more likely to resume behavior as law-abiding, productive members of society. This isn’t to say that older offenders will always have their conviction recorded, especially if they have a clean or minor record. It is important to remember that anyone with a clean or minor record has the right to request that their conviction not be recorded, even if they are not excused by youthful indiscretion.

Impact: When determining whether or not to record a conviction, the Court will also look at the potential consequences that a criminal record will have on the offender. In particular, they estimate the impact on the offender’s economic security, social wellbeing, and ability to find appropriate employment. However, it is important to note that merely asserting that a recorded conviction will increase the difficulty of finding a job may not be enough to inspire the Court to exercise leniency. The Court would rather deal in specifics so a letter from an employer or a list of criteria from the offender’s chosen career would be necessary to support this argument.

Disclosure

If you are not able to prevent your conviction from being recorded, you will be required to disclose this conviction in many circumstances, most notably when you are applying for jobs or travelling out of the country for work. There are other times, though, when you are not required to disclose.

Magistrates Court: If your conviction was in the Magistrates Court, you will no longer be required to disclose this conviction when: the conviction was at least five years ago; the term of imprisonment was only 30 months or less (or there was no term of imprisonment); you have completed any other court order; you have not committed any other offence within the five-year period; and no exceptions apply. If you meet all of these requirements, you will not be required to disclose and it will likely be unlawful for any other person to disclose it as well.

District or Supreme Court: Unlike a conviction in Magistrates Court, a conviction in a District or Supreme Court has a much longer lapse period. In order for your conviction to be spent so that you no longer have to disclose it: 10 years must have passed and you were not convicted during that time; you served a term of imprisonment 30 months or less (or were not assigned a term of imprisonment); no exceptions apply; and you have complied with and completed any other order of the court.

Preventing your conviction from being recorded can be imperative if you are hoping to keep your professional and personal life on track. Contact our Criminal Lawyers Brisbane today so that you have a professionally trained advocate to argue on your behalf.

What are Your Rights under Criminal Law?

Thanks to TV shows and pop culture, many people believe they understand how the criminal justice system works. Police shows, procedural dramas and legal adaptations tend to create a false sense of familiarity with the criminal justice system in the average person. But while loose cannon cops and lawyers who bend the rules make good television fodder, they have very little in common with the realities of police-work and legal professionalism. If you find yourself caught within the criminal justice system, it is important to remember that you have rights.

Arrest

When being arrested, there are three procedural steps that officers are required to follow. The officer must tell you that you are under arrest and briefly explain why, and you must either voluntarily surrender to the officer or you will be taken into custody through force. Police in Queensland do not have to “read you your rights“, and though you do have the right to remain silent, you are still required to inform the arresting officer of your name and address in order to avoid additional charges. Once arrested, you will escorted by the arresting officer to a police station or watch-house to be processed and await court or given bail.

Warrants

The police are not required to have a warrant in order to arrest you. If they have a reasonable suspicion that you are breaking the law, have broken the law, or are about to break the law, they have the power to arrest you as a reasonable necessity, because of the type or seriousness of the offence, or in order to:

  • stop you from breaking more laws;
  • discover your identity;
  • ensure a court appearance;
  • obtain or retain evidence;
  • prevent the creation or destruction of evidence;
  • prevent witness harassment or interference;
  • protect your safety and the safety of others;
  • prevent your escape; or
  • hold you for questioning.

The threshold for demonstrating reasonable necessity is generally low and the police will likely be allowed to arrest you without a warrant. It is in your best interests to calmly comply, ask for a lawyer as soon as possible, and remain silent except for providing your name and address, until your lawyer arrives.

What Are My Rights?

You have the right to remain silent and wait for the arrival of your lawyer. You cannot be formally interviewed until the police inform you that you have a right to a lawyer, a family member, or friend. Importantly, you must remember that the police are not allowed to coerce a confession out of you by making false promises or threats. As mentioned above, the police must inform you that you are being arrested and explain to you why.

Additionally, you have the right to go to court for a bail application at the earliest reasonable opportunity, and if you are not taken straight to court, you have the right to ask the police for bail. Remember that without an arrest you do have the right to refuse a request to come to the police station, but be careful to handle the situation calmly and respectfully or else risk an actual arrest or additional charges.

Being Arrested for Questioning

When the police have a reasonable suspicion that you have committed an indictable offence, they are able to detain you for a reasonable amount of time in order to conduct an investigation and/or question you about the offence. Police may detain you for up to eight hours, but can only question you for four hours out of the eight. If they want to keep you longer, the police must petition a magistrate or justice of the peace to question you for a further period. During this time period, you still have the right to remain silent after sharing your name and address.