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.

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Double Jeopardy

“A person can not be twice punished… for the same act or omission…” 

Double jeopardy is a fundamental and integral part of our legal system. It prevents a person from being tried or convicted more than once for the same act. A recent case in the Supreme Court of Appeals highlights the practical application of this concept.

In the case of R v Dibble, Mr. Dibble was charged and convicted for committing a public nuisance, in which police observed him swinging haymaker style punches as the complainant. As a result of which, the complainant suffered significant facial injuries. Mr. Dibble was sentenced in the Magistrates Court to pay a fine of $400 after he entered a plea of guilty. No conviction was recorded.

More than a year after the judgment was handed down, police charged Mr. Dibble with causing grievous bodily harm. The new charge was the result of the police having received a medical opinion about the injuries sustained.

Mr. Dibble fought these charges on the basis that they related to, and relied upon acts that he had already been punished for.

The Crown however sought to differentiate the acts required for a public nuisance charge from a charge of grievous bodily harm. Essentially arguing that a public nuisance charge did not require the blows to land and as such the landing of blows was not an act or omission that Mr. Dibble was punished for in his original sentence.

The Crown therefore proposed that Mr. Dibble should be able to be charged with grievous bodily harm. As this charge relates and relies upon the landing of the blows, an act that the Crown contends was unpunished in the previous charge.

In the Supreme Court of Appeal, Fraser, Gotterson JJA, and Boddice J indicated that the defining of the punishable act in a conviction relies heavily upon how the original charge was particularised. In this case, the original charge made explicit and clear mention of multiple punches landing on the complainant, the conviction also indicates clearly that the defendant was convicted on the basis of these actions.

The punishable act or omission in question therefore included the punches that landed on the complainant. As such, Mr. Dibble was unable to be charged a second time with the more serious offence of grievous bodily harm.

Bosscher Lawyers has over 100 years of collective experience in the field of criminal law. If you have a criminal law problem, our Brisbane Criminal Lawyers are here to help. Call Bosscher Lawyers on 1300 729 316.

By Alison Campbell

“Hoon Laws” in Queensland

Since the beginning of November we have seen the implementation of tough new anti-hoon laws in relation to driving offences. These new laws mean the Queensland has the toughest impoundment penalties in Australia for these offences.

The Police Powers and Responsibilities (Motor Vehicle Impoundment) and Other Legislation Amendment Bill extended the 2 existing categories of vehicle offences to include more offences, and also increased the period of impoundment for an offence from 48 hours to 7 or 90 days, depending on the offence committed.

It is important to note that the towing and storage costs of impounding the vehicle are paid by the driver, and not by Queensland Police or the Queensland Government.

Type 1 offences are considered the most serious offences. A type 1 offence can be generally classified as involving the dangerous or careless operation of a motor vehicle. Type 1 offences include actions such as evading police, street racing, speed trials, drifting, and willfully making unnecessary noise or smoke from a vehicle.

Previously a type 1 offence would result in your vehicle being impounded for 48 hours. Under the new laws your first offence will cause your vehicle to be impounded for 90 days, a subsequent type 1 offence will force you to forfeit your vehicle.

Type 2 offences are considered less serious than type 1 offences, but still carry heavy penalties. Type 2 offences include the driving of an uninsured and unregistered vehicle, driving without a valid licence, driving under the heavy influence of alcohol, driving over the speed limit by more than 40km/h, or failing to properly comply with vehicle or safety standards.

For the first breach of a type 2 offence, the vehicle will not be impounded or immobilised. In the event of a second breach of a type 2 offence a vehicle will be immobilised or impounded for a period of seven days, a subsequent breach will cause the vehicle to be impounded for a period of 90 days. Any subsequent commission of a type 2 offence will cause a vehicle to be forfeited.

What To Do If My Vehicle Has Been Impounded?

If your vehicle has been impounded you may be eligible for the early release of the vehicle, upon application to the Commissioner of Police. If the Commissioner deems you ineligible for the early release of your vehicle, you may appeal this decision in the Magistrates Court.

Criminal Lawyers Brisbane at Bosscher Lawyers is experienced in all aspects of traffic matters and can assist you if you have been charged with an offence, if you wish to apply to the Commissioner of Police for the release of your vehicle, or in appearing before a Magistrate under any circumstances.