Will a Conviction Be Recorded Against Me?

When a person is convicted of an offence, whether it is a serious or relatively minor offence, the effect on their life can be profound. Even after serving your sentence, paying your fines, and accepting the punishment imposed upon you by the court, you may continue to face the stigma that can be attached to those with a criminal record.

The effects of a criminal conviction

You may be asked to disclose your criminal history in everyday situations including: certain licence applications, job applications, rental agreements and blue card applications.  Often, having a criminal history can affect your eligibility for a job by colouring the opinion of the person reviewing your application. The legal system does allow individuals to keep their criminal history to themselves after a certain period of time has passed.

Spent convictions

‘Spent’ convictions are convictions which no longer have to be disclosed because enough time has lapsed since the conviction. The time that must pass in order for a conviction to be ‘spent’ will depend on the court in which the person was convicted.

Magistrates Court

If you were convicted in the Magistrates Court, you do not have to disclosure your conviction if:

  • the conviction was five or more years ago;
  • you did not serve a term of imprisonment, or your term of imprisonment was for 30 months or less;
  • you have fulfilled all other court orders in relation to the sentence;
  • you have not been convicted of another offence within the five years since your initial conviction; and
  • no exceptions apply.

If all of these requirements are met, your conviction will be considered ‘spent’ and there will no longer be an obligation to disclose.

District or Supreme Court

Similarly, if you were convicted in the District or Supreme Court, you will no longer be required to disclose your conviction if:

  • the conviction was 10 or more years ago;
  • you did not serve a term of imprisonment, or your term of imprisonment was for 30 months or less;
  • you have fulfilled all other court orders in relation to that sentence;
  • you have not been convicted of another offence within the 10 years since your initial conviction; and
  • no exceptions apply.

If all of these requirements are met, your conviction will be considered ‘spent’ and there will no longer be an obligation to disclose.

Exceptions

Even when all other criteria are met, you may still be required to disclose your criminal history if one of the many exceptions apply.

The exceptions listed in the Criminal Law (Rehabilitation of Offenders Act) 1986 (Qld) are too numerous to list in this article however, it is important to note that people in certain positions have disclosure obligations that relate to the terms of their employment and their professional responsibilities. People employed within the Department of Education or the criminal justice system such as police and Justices of the Peace need to be especially aware of their obligations in this regard.

If you or someone you love has been convicted of a crime and needs advice as to their disclosure obligations, an experienced lawyer will be able to help you determine if any exceptions exist, so please contact our criminal lawyers Brisbane one as soon as possible.

man acquitted after pub brawl

Man Acquitted After Pub Brawl

It didn’t take the Toowoomba District Court jury for its deliberation to acquit a man that has caused grievous bodily harm towards a colleague at work by punching him during their Christmas party.

The person who has been charged with causing grievous bodily harm was Carrie Howard Tane, age 38 and the victim was Angus Rogie. The incident took place during their Christmas party at the Royal Hotel in Toowoomba in the evening of December 18, 2012.

What actually happened was, Tane punched Rogie twice and the latter fell to the floor at the pub’s smoking are and sustained a fractured jaw during the brawl.

The Crown hotel however, could not tell which punch had caused the injury, which could have been sustained when Rogie fell on the stool before he landed to the floor. Tane got accused of causing the injury.

The accused pleaded not guilty and was accepted during the trial and Rogie’s injury amounted to grievous bodily harm in the court of law.

The main question addressed to the jury now was, had the actions of the accused in striking the victim been unlawful?

This question has been thoroughly deliberated judging from the evidence gathered from a number of witnesses at the trial. Bottom line is that Rogie was drunk and annoying throughout the night. He had taunted Tane who is bigger in size and coaxed him for a fight before the incident and also passed a racial comment to the accused. These evidences where all heard by the court.

complaints_against_police

G20 Police outside Queensland to Be Exempted from Local Investigations

Trying to resolve complaints against 1,500 police outside Queensland for the G20 is next to impossible

While there will a number of New Zealand and Interstate police sent to boost the G20 security in Brisbane, there is concern that because they will be operating outside their own jurisdiction, they may have immunity from investigations that may arise from any alleged  abuse of power or misconduct that any member of the Queensland public may wish to assert.

According to the lawyers – referring to this issue, these officers are entitled to legal immunity from any disciplinary actions over any participation in rough policing. The police officers will wear the G20 police caps while keeping their own uniforms and be sworn in temporarily as Queensland police.

The Independent Police Conduct Authority (IPCA) spokeswoman in NZ said that they would retain their jurisdiction over any NZ police officers that are in question with regards to their conduct during the G20. So in this case, any members of the public can lodge a complaint to IPCA for any alleged misconducts by any NZ officer.

According to Michael Bosscher, who is a prominent Queensland criminal defence lawyer and is known to practice in 4 states and territories, the opportunity of resolving any complaint against the outside police is “close to impossible”.

From a legal standpoint, this raises several concerns to the public with regards to the wide-ranging powers given to police under the G20 security act.

Read more from the source here.

fighting over parking meter

Fighting the Meter

Parking tickets create an enormous amount of frustration for drivers but there appears to be an increasing number of them being successfully overturned.

If you have been issued an infringement notice for parking related offences and you believe there may be grounds for it to be waived, you should request Council to review the fine.

Mr Alex Jones recommends that if you have been issued a ticket and you believe that you have cause to seek that it be waived, to ensure that you provide supporting evidence when you lodge your request in writing.

If you do not agree with the decision from Council, you can request a second review by the Council’s Disputes Commissioner.

In Brisbane alone, out of 33,000 parking tickets issued this year, more than 11,000 of them were successfully overturned.

cyber bullying

Is Your Child being Bullied Online?

The death of Charlotte Dawson earlier this year placed the spotlight back on cyberbullying and the devastating effects that this behaviour can have on a person’s life.

If your child has experienced any of the following, please seek legal advice:

  • abusive emails and/or texts online that are cruel and hurtful;
  • photos that are embarrassing, misleading and inappropriate;
  • online threats that target them or a group of their friends.

“Why, what can we do?”

Did you know that cyber bullying can amount to a criminal offence?

Cyber bullying can be considered abuse of the internet and phone services and presently, there are laws in place that provide a form of redress for individuals who have been targeted.

Under the Criminal Code Act 1995(Cth), offenders can be charged with using a carriage service to menace, harass or cause offence. The penalty for menacing, harassing or offensive cyber bullying is up to 3 years in jail.

If someone has posted content online that is inappropriate, ask the person responsible to remove it. If the person fails to remove the content, contact the service provider. There is an obligation that social network sites remove content that is offensive and intimidating.

Cyber bullying can be a complex issue, if you believe your child is being bullied online, please seek legal advice immediately.

bikie_laws

Bikie Prison Segregation to End

Following an apology to the people of Queensland, Premier Campbell Newman announced changes to several controversial policy decisions.

On Monday, Premier Newman made the announcement that the uniform and segregation arrangements for criminal gang members will cease.

Previously arrangements were in place that allowed for criminal gang members who were in custody to be separated from the rest of the prison community, and required to wear a pink uniform.

 

 

 

Australian court

Brothers Jailed For Dealing Heroin

Brothers William Garnett Phillips and Leigh Garnett Phillips have been jailed after a Supreme Court Trial in Brisbane relating to an array of offences relating to a drug business.

Mr William Phillips was represented by barrister Alastair McDougall. Mr Leigh Phillips was represented by barrister Angus Edwards. Counsel was instructed by Bosscher Lawyers solicitors Tim Meehan and Sam Breach.

The brothers were targeted during Operation Hotel Foot in 2009 and 2010. Police found $7505 in a wallet and an ounce of gold bullion, as well as various amounts of heroin in sealed containers. Tick sheets, digital scales, seal bags, weapons and quantities of meth, cocaine, cannabis and three tablets of Subutex were also found.

Both Willam and Leigh were arrested and charged on April 20 , 2012.

Alastair McDougall, for William, presented the Court with a psychiatric report entailing his clients mental health issues and upbringing.

Angus Edwards, for Leigh, informed the Court of Leigh’s heroin addiction following a serious car crash in 2007 and the death of his mother. Ultimately this led to his failed marriage and moving to live with his brother, where the offending began.

William was sentenced to five years and nine months imprisonment, and will be eligible for parole on December 22, 2014.

Leigh was sentenced to five years and five months, and will be eligible for parole on November 22, 2015.

Bikie Numbers Fall

More than six months since the Vicious Lawless Association Disestablishment Act was passed on 16 October 2013, police report gang numbers falling by 25%.

Approximately 30 members from Hells Angels, Red Devils, and Bandidos have handed their colour in at the Bosscher Lawyers Brisbane office. Mr Bosscher strongly recommends that ex-members seek legal advice to ensure they are no longer members of a club. Ex-members may be required to make statements to the effect that they are no longer members, which then may have to be used in court.

Read More

This Party is “Out-of-control”

It’s the end of the financial year. And we all know that such an occasion demands one thing, a massive party.

Well, perhaps not.

But whether dancing away your sorrows, or grooving to a good year, revellers and organisers should be aware of some of the laws surrounding events (which include parties). Partygoers would be forgiven for being unaware of some of the more recent amendments to Queensland criminal law that extends the powers of police and allows them to deal with out-of-control events.

An out-of-control event

The basic requirements for an event to be deemed out-of-control are:

  1. That there be 12 or more people gathered at the place;
  2. That three of more people associated with the event engage in conduct which is considered out-of-control; and
  3. That the conduct occurred at or near the event.

Conduct

Out-of-control conduct is conduct that could cause people to be unable to move through, or peacefully be in, a public place. Alternatively it is conduct that causes a person to reasonably fear violence to somebody or damage to property.

Out-of-control conduct can therefore extend to activities such as fighting, causing an obstruction to pedestrians or traffic, public drunkenness, and the damaging of property.

Associated

Being associated with the event extends to include not only those persons who are at the event, but also individuals that are near the event and intending on going to the event, and individuals that are near the event and are leaving the event. It is not relevant to whether a person is associated with an event whether they were invited or not.

Police Powers

Police have broad powers that allow them to break up an out-of-control event. They are able to stop vehicles and enter premises without a warrant, and may give directions to persons to cease their current conduct and leave the area.

Police also maintain their existing powers, such as the ability to give noise abatement directions.

Police may also take any other step that an officer considers is reasonably necessary, given the situation.

Offences

Special offences exist for persons who cause an event to become out-of-control. This includes persons who commit the acts that cause the event to become out-of-control (for example the individuals destroying or damaging property), and also persons who organise an event that becomes out-of-control. If a person is organising an event they must take appropriate steps to avoid an event from becoming out-of-control, or they face the possibility of being charged should the event become out-of-control.

These special offences do not preclude a person being charged under any other existing law in addition to being charged under the out-of-control event provisions.

Costs

Costs orders are also a possibility if a person has been charged over an out-of-control event. The court may order a person who is found guilty of an offence that relates to an out-of-control event to pay a proportion or all of the costs associated with the police having to shut down and break up the event.

Exclusions to the laws regarding out-of-control events apply to certain events. These events include political advocacy, protest or industrial action events, authorised public assemblies, major sports events and others.

Legal Advice

Criminal Lawyers Brisbane at Bosscher Lawyers brings 100 years of collective experience to the field of criminal law. Call 1300 729 316 and let Bosscher Lawyers put their experience to work for you.

Conviction Recorded

In most circumstances where a conviction is not recorded, the decision would not normally be available publicly online. Almost all convictions that are not recorded are convictions that take place in the Magistrates Court. The Magistrates Court does not publish its decisions, but decisions are available from transcripts on request in most instances.

When DHG pleaded guilty before the Industrial Magistrates Court in 2011, he was fined and ordered to pay costs. In its decision the Industrial Magistrate also ordered that no conviction be recorded. It was determined that recording a conviction would unfairly impact the employment prospects and economic wellbeing of DHG.

Subsequently the Department of Justice and Attorney-General (The Department) published via its website details of the case, including DHG and his sentence.

In 2013, a Google search of DHG’s name returned the publication. As a result DHG sought orders from the Supreme Court to remove the publication.

One of the primary reasons for the discretion afforded in recording a conviction is the potential for social prejudice against the defendant to be so grave that they will be continually punished well after their appropriate punishment has been served. This social prejudice severely impacts any potential of rehabilitation.

Where a conviction is not recorded, the conviction is not to be entered into any record, except the records of the court, and in the offender’s criminal history (for the purpose of appeals, proceedings against the offender for subsequent or same offences, and for proceedings in regards to contravention of the sentence).

A further (and more recent) exemption applies to departments, prosecuting authorities and legal representatives who may record the conviction if the recording is necessary for the legitimate performance of their respective functions. For example, a prosecutor may make a note on their file about the outcome.

DHG argued that the publication of the details of the case breached the provision against making a record of a case where a conviction is not recorded.

The Department argued that the publication was not a record for the purpose of the Act as it is informal and will be removed in 5 years time. In the alternative, the Department argued that the record was kept as a result of the legitimate performance of the department’s function.

The Court determined that the term record included the publication on the website. A record includes less formal documents, and a written record is permanent at the time of publication, despite plans later to have it destroyed.

Furthermore the Court determined that it was not necessary for the legitimate performance of the functions of the department to publish the record to the public.

Legal Advice

Criminal Lawyers Brisbane at Bosscher Lawyers brings 100 years of collective experience to the field of criminal law. Call 1300 729 316 and let Bosscher Lawyers put their experience to work for you.

Confessions Under The Influence

Where a person is questioned whilst under the influence of drugs or alcohol, the court may choose to disregard any of the evidence that was obtained through improper, unfair or unlawful methods.

Where the Court Will Exercise Discretion

On the 29th of June 2013 at 1:40 am, a Constable and Senior Constable observed a motorcycle parked outside of a seven eleven store. They observed a man, the defendant, standing near the counter. The man was constantly moving and fidgeting. Police checked the registration of the bike and were informed that the owner of the vehicle had previously been charged with possession of drugs.

Police proceeded to intercept the man, and conduct an interview with him. The interview ran for a total of 54 minutes. A small amount of methylamphetamine was found on his person, as well as weighing and smoking instruments.

The defence sought to have the field interview excluded from the evidence in the case pursuant to the courts discretion. The defence contended that the interview breached section 423 of the Police Powers and Responsibilities Act, which provides that police should not conduct an interview with a person who is apparently intoxicated or under the influence of drugs. As such the defence requested the evidence be excluded from trial due to unfairness and/or public policy grounds.

During a pre-trial hearing, the defendant gave evidence to the effect that he had been smoking methylamphetamine that evening at a friend’s house. Leaving that place in the early hours of the morning he was then intercepted by police after stopping at the 7-11. His recollection of the interview is hazy.

At the time of interview, the defendant stated to police that he was fine and believed the drugs did not affect him. However subsequent to the interview the defendant concedes that he was wrong. After the playing of the police interview tape, and cross examination of the police officers conducting the interview, it became apparent that the defendant was, at the time of the interview, displaying signs consistent with being under the influence of drugs and that at least one officer had initial concerns over whether he was affected by drugs.

The court reached the conclusions that the defendant was affected by drugs at the time of the interview, having given thought to the evidence provided. The court also noted that the very reason police spoke to the defendant was due to him appearing drug affected. Also of consideration was the fact that the defendant had previously been arrested and had never attended or taken part in a police interview. This pattern was a stark contrast to the current state of affairs where not only did the defendant take part in a police interview, but he made concessions to police that were not in his interests. The court determined that the interview took place contrary to the provisions of the PPRA.

The mere fact that the interview was undertaken in a manner contrary to the PPRA does not however exclude the evidence automatically; it does however enliven the court discretion to exclude the evidence.

The court was concerned over the lack of compliance with the PPRA, the location of the interview, and the lack of videotape. The location of the interview, having taken place outside of a 7/11, was public and in an informal setting which led the court to be concerned over whether the defendant knew how serious the interview was. The lack of videotape evidence means it is impossible to assess the mannerisms of the defendant during the interview.

The record of interview was excluded from the trial as evidence.

Legal Advice

Bosscher Lawyers brings 100 years of collective experience to the field of criminal law. Call 1300 729 316 and let Our Brisbane criminal lawyers put their experience to work for you.

Making Bail

Due to a variety of reasons, persons charged with an offence will often seek to be granted bail. It may be that bail will allow a defendant to continue to work and support their family, or that bail will avoid a defendant having to spend an excessive amount of time in custody whilst they await their trial.

2 Types of Bail

The Police

In Queensland, after having arrested and charged a person, may grant that person bail until their upcoming court date. After which the defendant will be required to apply to the court to have the bail varied or enlarged (continued until your next court date).

If refused bail by police, a defendant will be required to apply to the court for bail.

The Courts

If you are applying for bail in a lower court, you may appeal a bail decision to the Supreme Court. In some cases a bail hearing may only be heard by the Supreme Court. For example, where a person charged with an offence carrying a penalty of life imprisonment that may not be varied, or an indefinite sentence a person may only be granted bail by the Supreme Court, or by a judge of the Supreme Court.

The Process

Under the Bail Act 1980, there is generally a presumed entitlement to bail where a person in held in custody and faces criminal charges. However this presumption is capable of being rebutted by the prosecution. A presumption to bail does not entitle any person to automatic bail.

Show Cause

It is not always the case that a defendant will have a presumed entitlement to bail, some charges reverse this presumed entitlement, and require the defendant to prove why bail should be granted.

Show Cause Due to the Nature of the Offence

An example of where the presumed entitlement is rebutted, and the defendant is required to show cause as to why custody is not justified is where a defendant has been charged with an indictable offence in which the defendant is alleged to have used or threatened the use of a firearm, offensive weapon or an explosive.

Show Cause Due to the Nature of the Defendant

Other examples of show cause applications include where a person is a participant in a declared criminal organisation. Section 16 (3A) requires that a defendant that is or has been at any time a participant in a criminal organisation be refused bail unless the defendant is able to show cause as to why custody in unjustified. If bail is granted to a defendant who falls under the scope of 16 (3A), the defendant is required to surrender their current passport, and will be held in custody until it is surrendered. It is not relevant for the purposes of 16 (3A) what offence the defendant is charged with (be it indictable, summary or regulatory), nor whether the defendant was a participant in the organisation at the time of the alleged offence or even if there is a link between the offence and the alleged participation in a criminal organisation.

Considerations

Upon receiving an application for bail, the court is capable of making investigations on oath that concern the defendant, but may not cause the defendant to be examined or cross-examined in regards to the offence. The court will often take into account various factors in regards to the defendant, some of which relate to prior criminal convictions, other which relate to the standing of the defendant in society.

Considerations the court is likely to take into account include:

Any prior criminal record by the defendant, with particular relevance to offences regarding the breaching of bail, or interfering with a witness;
The charge;
The reliability of the defendant;
Whether the defendant has a job and a stable place of residence;
Whether it is likely that the defendant will break the law whilst on bail;
Whether the defendant is likely to endanger the safety or welfare of the public.

Conditions and Varying Your Bail

If a person is granted bail, the court may place conditions on the grant of bail. These conditions must be adhered to if the defendant wishes to retain the grant of bail. Conditions can be changed by the police if the bail undertaking states that the police may vary your bail, otherwise a defendant is required to apply to the court to vary their bail.

Jury Duty – Court Rules Juror With Hearing Impairment Ineligible to Serve

An individual selected to perform jury service has been ruled ineligible to serve by the Supreme Court. The individual was selected on a jury panel during the current sittings of the District and Supreme Court, and subsequently advised the Sheriff that if selected, she would require an Auslan interpreter.

The Sheriff then referred the matter to the Supreme Court, seeking a determination.

The question before the Court was whether deafness was a disability that would make an individual incapable of performing the function of a juror, pursuant to s 4(3)(1) of the Jury Act. Supplementary to this primary question was whether the use of an interpreter would be sufficient to overcome any incapability, and whether the use of an interpreter for a jury member is appropriate.

It was accepted that, whilst the prospective juror was able to lip read, she admittedly might miss parts of the court proceedings. In addition, the jury room (made up of 12 chairs and a table) was not well suited to lip-reading, as it would be difficult to ensure that the juror could see the juror talking to a sufficient standard that the prospective juror would not miss integral parts of jury room discussions. The prospective juror would also require an interpreter in order to speak to the group. Without an interpreter, the Court ruled that there is a very real risk that the prospective juror would miss integral parts of jury deliberation.

Swearing in a “13th Juror”

The Court had effectively answered the first two questions in the affirmative. The deafness in question was sufficient enough to render an individual incapable of serving the functions of a juror, however the use of an interpreter would overcome the disability and allow the prospective juror to serve.

The Court then turned to whether an interpreter would be allowed to assist the prospective juror.

It was accepted by the Court that the use of an interpreter is unlikely to cause any issue during trial proceedings. The difficulty rested with jury deliberation.

A person is prohibited from communicating with a juror without the trial judge’s leave. It was unclear to the Court whether leave from the trial judge would permit the interpreter to enter the jury room during juror deliberations however, due to overriding concerns in regards to the secrecy of jury deliberations. Whilst other jurisdictions have made specific provisions for such situations, Queensland has not.

A further problem that arose was that even if the interpreter was to be allowed into the jury room during deliberations, the Court lacked an explicit power to require them to make an oath or affirmation to maintain the secrecy of deliberations. The judge would be potentially committing an offence under s 96 of the Criminal Code by administering an oath or affirmation without authority.

The Decision

The Court was tasked with determining a single question:

  1. Was the deafness of the prospective juror of a nature that would make her incapable of performing the functions of a juror?
    1. If yes, could this incapability be overcome by the use of an interpreter?
    2. If yes, was the use of an interpreter appropriate?

The Court found that the state of the prospective jurors hearing would negatively effect her ability to perform the functions of a juror, and that whilst this negative effect could be overcome with the use of a translator, the lack of specific legislative provisions would place the secrecy of jury room deliberations in jeopardy. The judge also provided that should the decision about the prospective juror be incorrect, that the juror is excused from jury service by virtue of the discretion of the judge.

Parliamentary Inquiry into Queensland Crime

The Queensland Attorney-General Jarrod Bleijie and the Minister for Police, Fire and Emergency Services Jack Dempsey announced a state parliamentary inquiry into crime in Queensland in a joint statement on Thursday.

The Inquiry will investigate:

  • Trends and types of crimes being committed in Queensland;
  • The impact of crime;
  • Contributory factors that lead to crime; and
  • The effectiveness of crime prevention strategies.

In addition the Inquiry will also seek to hear the experiences of those involved in the criminal justice system, including victims and their interactions with police, the courts, prosecutors, support services, and the compensation process. The Inquiry will also examine potential collaboration between participants in the system.

Ultimately the inquiry will recommend measures to reduce crime and recidivism. The Inquiry will complete its report by 31 October 2014.

During the Inquiry, the Committee will be holding both public and private hearings throughout Queensland, as well as accepting public and private submissions.

Bosscher Lawyers Proud to Support QUT Faculty of Law

Criminal Lawyers Brisbane at Bosscher Lawyers was proud to continue its tradition of supporting high achieving students by presenting and sponsoring awards at the Queensland University of Technology Faculty of Law Prize Ceremony on Tuesday 13 May.

The ceremony provides a unique opportunity for Bosscher Lawyers to not only recognise academic excellence, but to engage with the next generation of lawyers.

Alex Jones from Bosscher Lawyers appeared on the night to award prizes to students on behalf of everyone at Bosscher Lawyers. Alex was well suited to award the prizes as he began his career as a law clerk for Michael Bosscher in 2008, whilst studying a dual degree of law and business at QUT.

Congratulations to all student recipients of prizes, Bosscher Lawyers wishes you all the best in your future careers!

Criminal Law Overhaul Continues

The Queensland Government has continued its overhaul of Queensland criminal law, adding to an already substantive lists of changes.

The changes, announced by the Attorney-General Jarrod Bleijie last Thursday are wide ranging and include for the most part an increase in penalties to offenders, but also some attempts to modernise the criminal court process. Overall 74 amendments are contained in the Criminal Law Amendment Bill 2014, which consists of a total of 58 pages.

The amendments can be broadly put into 5 categories, and a summary is listed below. However this is not an exhaustive list of all amendments made by the Bill.

Changes to Sex Offender Laws and Offences of a Sexual Nature

The amendments include:

  1. Mandatory imprisonment of one year for the removal of a GPS monitoring bracelet by a sex offender. A maximum penalty of 5 years exists for the offence;
  2. An increase to the maximum penalty for the procurement of a child or a person with a mental impairment for prostitution to a maximum of 20 years. Previously the maximum for this offence was 14 years; and
  3. Where a person is caught attempting to groom a child, they may be listed as a Dangerous Offender by the court even where the child in question did not exist (for example, the child may have been a police officer pretending to be a child).

Changes to Animal Cruelty

The amendments include:

  1. The creation of a new offence, serious animal cruelty will carry a maximum penalty of 7 years imprisonment. The offence will apply where a person who, with the intention of inflicting severe pain or suffering, unlawfully kills, causes serious injury to, or prolongs the suffering of, an animal.

Match Fixing

The amendments include:

  1. The creation of the new offences
    1. Engaging in match-fixing conduct;
    2. Facilitating match-fixing conduct or match fixing arrangement;
    3. Offering or giving benefit, or causing or threatening detriment, to engage in match-fixing conduct or match-fixing arrangement;
    4. Using or disclosing knowledge of match-fixing conduct or match fixing arrangement for betting;
    5. Encouraging persons not to disclose match-fixing conduct or match-fixing arrangement;
    6. Using or disclosing inside knowledge for betting.
  2. Each offence carries a maximum penalty of 10 years imprisonment. It is not material to a matter the success of a person in affecting the outcome of an event.

Technological and Procedural Reform

Amendments include:

  1. The ability for a defendant to enter a plea of guilty for a minor offence via an online service;
  2. The establishment of a presumption that an expert witness be able to give evidence via a video link. This presumption may be overridden by the court;
  3. Appeal power of the Attorney-General to include simple offences disposed of summarily.

Youth Justice Act and Boot Camps

Amendments include:

  1. Courts when sentencing a child will be able to be informed as to whether the child is subject to the child protection system;
  2. Boot camps will be able to be staffed by detention centre employees. Detention centre employees may provide services to maintain good order and discipline at the centre.

Double Jeopardy Reform

Double Jeopardy Reform

In 2007 the Queensland Government passed reforms on the defence of double jeopardy. The Criminal Code (Double Jeopardy) Amendment Act 2007 amended the Criminal Code, allowing for 2 exceptions to the double jeopardy rule, allowing persons acquitted of an offence to be retried.

  • The Court may order a person to be retried for the offence of murder where there exists fresh and compelling evidence; alternatively
  • The Court may order a person be retried for an offence that is punishable by life imprisonment or by a period of imprisonment of 25 years where there is evidence of a tainted acquittal. A tainted acquittal is an acquittal where the accused or another person has been convicted of an administration of justice offence in relation to the proceedings that led to the acquittal, and if not for the offence a conviction would have been more likely than not.

Notably however:

  1. These changes only apply to acquittals that occurred after the passing of the law; and
  2. The changes also do not apply if the person was acquitted, but found guilty of a lesser offence, e.g a person is acquitted of murder, but found convicted of manslaughter.

Early this month the Queensland Attorney-General stated that a ‘significant roadblock to justice will be removed’ by removing the clause restricting the exceptions to double jeopardy to acquittals that occurred after the amendments were passed in 2007.

This would mean that a retrial would be allowed for any past acquittal on the charge of murder where fresh and compelling evidence arises, or where an offence punishable by 25 years or life imprisonment is the subject of a tainted acquittal. The law would no longer have regard to when the acquittal occurred. This puts Queensland into line with other States.

Some media outlets have reported that the double jeopardy defence is being removed in its entirety. This is not the case. As recently as R v Dribble double jeopardy has been used as a valid and effective defence post the 2007 reforms.

It remains to be seen which cases the Queensland Government will seek to be retried

Facebook ID Excluded – Charges Against Bartz Dropped

Bosscher Lawyers solicitor Tim Meehan and barrister Angus Edwards have successfully argued for the exclusion of evidence identifying Wade Anthony Bartz as being present during an armed robbery that involved three men and a woman on Australia Day in 2012.

The female victim, and Crown witness, had trawled through Facebook photos after one of her daughters suggested that she might know one of the intruders, based off the description of “covered in tattoos” and “offer her face on drugs”. Whilst looking through Facebook, the woman recognised a “big muscular chap” as the man who stood guard at the door. The woman had stumbled upon a photo of Mr Bartz. The woman had shown the police this photograph, and police requested that she cease looking at the photos but included a photo of Mr Bartz in a photo board identification test.

Mr Edwards asserted that the identification test was tainted due to the woman already having shown police a photograph of Bartz. It also became apparent that there was a lack of transparency by police in regards to how Bartz was identified.

Judge Brian Harrison ordered that the identification of Bartz through Facebook, and the subsequent photoboard identification would be excluded at trial. Following this decision, the Crown ceased proceedings against Bartz.

IT Worker Sentenced Over Online Chat Session

Arthur Borg, 51, an IT worker employed by the Queensland Department of Education was sentenced to 18 months after pleading guilty to four charges of using the internet to procure a child under 16 years. The offences were committed between February 15 and 19 in 2013 after Mr Borg had engaged in sexualised online chat sessions with a police officer on an incest-themed site. Mr Borg believed the police officer to be a 14-year-old girl. On February 20, Mr Borg had arranged to meet the girl at Nundah train station, but was instead was met by police officers.

Alex Jones, a Senior Associate with Bosscher Lawyers, along with barrister Jeff Hunter QC, led the defence of Mr Borg. The Court heard that Mr Borg had since resigned from his position with the Queensland Government, adopted the Buddhist faith, and has begun regular counseling that adresses his offending behaviour.

Judge Harrison accepted that Mr Borgs remorse was legitimate, and that he has taken steps to address his behaviour. Mr Borg will be released on a suspended sentence after serving 3 months in jail.

Fighting the Ticket

A speeding ticket is one of the most commonly issued traffic infringements. Depending on your circumstances, a ticket could mean some trouble at home and an annoying fine, or losing your licence and potentially losing your job.

Speeding is a ticketable offence. Essentially this means that a person can be charged but simply issuing an on the spot ticket, the fine and any demerit point deduction is standardised and determined by the nature of the ticket.

This doesn’t mean that it can’t be fought. But if it is going to be fought, it must be fought on certain grounds. Common excuses, which many would sympathise with, simply don’t cut it in front of a magistrate.

These excuses include

  • Being late for work;
  • Not realising your speed;
  • Going downhill;
  • Not noticing the camera.

There are, however, specific defences that are acceptable. Possible defences arise when the accused was:

  • Not in fact speeding;
  • Not the driver of the vehicle;
  • Under duress;
  • Driving due to necessity; or
  • Subject to a mistake of fact.

Whilst on face value these defences may seem straightforward and simple, it can be difficult to prove them without the requisite knowledge and expertise.

For example, proving that you weren’t speeding can involve technical experts, multiple statements from various parties, reports and complex legal technicalities.

Another example is where terms have a specific legal meaning, a meaning that has been developed over many years of case law. A mistake of fact may arise where a road is incorrectly signed, and the accused has a bona fide belief on reasonable grounds that the speed limit for the road was different to what it actually was. A mistake of fact would not arise if the person was simply mistaken as to the law in question, for example where a road is unsigned and a person mistakenly believed that the speed limit was therefore 60km/h in a build-up area.

Duress is another term that has a specific legal meaning. It does not simply mean that a person was stressed or under a lot of pressure, because for example, they were running late. The test for the defence of duress involves many factors, including that an actual threat was made, of death or serious injury, of sufficient gravity, and the acts undertaken subsequent must be as a result of the continuing threat acting on their mind.

Bosscher Lawyers has the knowledge and experience to tackle any criminal law case, big or small. Call our Criminal Lawyers Brisbane on 1300 729 316 and put our 100 years of collective experience in the field of criminal law to use.