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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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.

Ex-Bikie Knocked Unconscious During Brawl

Paul Van Tongeren yesterday pleaded guilty to being involved in a fight at the Royal Hotel in Ruthven Street, Toowoomba.

Mr Tongeren’s lawyer, Nathan Bochier of Bosscher Lawyers, explained to the court that the initial fight had started due to a number of lewd comments being made about a woman that Mr Tongeren was associated with. In the ensuing brawl, Mr Tongeren was knocked unconscious, and later was helped into a vehicle in a semi-unconscious state.

Magistrate Bruce Shemioneck took into account the 13 days Mr Tongeren spent in jail awaiting bail from the Supreme Court when he issued Mr Tongeren a fine of $500 and banned him from the Royal for a period of 12 months.

At the time of the offence Mr Tongeren was a member of the Bandidos and the primary carer for his 10 year old son. Due to his association with the Bandidos, Mr Tongeren was required to apply to the Supreme Court for bail, which he successfully obtained on the 18th of November, 13 days after his arrest on the 5th of November.