Clarity Law

Have you been accused of possessing something that was stolen or unlawfully obtained? If so, you may have been charged with an offence under section 16 of the Summary Offences Act (Queensland). This offence is commonly known as unlawful possession of suspected stolen property and it carries a maximum penalty of 20 penalty units or one year's imprisonment.

What does the offence mean?

The offence of unlawful possession of suspected stolen property means that you have something in your possession that you reasonably suspect has been stolen or unlawfully obtained by someone else. For example, if you buy a laptop from a friend who tells you that they got it from a car they broke into, you are likely to be committing this offence.

The key element of this offence is that you must have a reasonable suspicion that the thing you possess is stolen or unlawfully obtained. This means that you must have some facts or circumstances that would make an ordinary person in your position suspect that the thing is not lawfully yours. It is not enough to have a vague feeling or a hunch that something is wrong.

Do the police need to do anything before they arrest someone?

Pursuant to the Police Powers and Responsibilities Act the offence of unlawful possession of suspected stolen property is a “declared offence”. This means that in order to arrest someone the police should first, if reasonably practicable, give the person a reasonable opportunity to explain how the person came to have possession of the thing.

If:

1. The person fails to give an explanation; or
2. The police officer considers the explanation given is not a reasonable explanation; or
3. Because of the person’s conduct, it is not reasonably practicable to give the person a reasonable opportunity to give an explanation;

The police officer may start a proceeding against the person for the declared offence.

What does the prosecution need to prove?

The prosecution does not have to prove that the thing was actually stolen or unlawfully obtained, only that you reasonably suspected it was. However, if the thing was in fact lawfully yours or you had a lawful excuse for possessing it, you may have a defence to the charge.

The prosecutions must prove the following:

1. That the defendant unlawfully;
2. Possessed;
3. A thing that is reasonably suspected of having been stolen or unlawfully obtained.   

Lets look at those keywords in more detail.

Unlawfully

In general “unlawfully” means without authorisation, justification or excuse by law.

In Castle v Farmer The judge said about what unlawfully means as follows

“There is no burden on a suspected person to prove a satisfactory explanation on the balance of probabilities. The consequence is that the burden of proving unlawful possession is upon the prosecution, and the standard of proof will be beyond reasonable doubt. Any explanation will be part of the evidence at the trial”

Possessed

“Possession” includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.

A thing that is reasonably suspected of having been stolen or unlawfully obtained

It requires the existence of facts which are sufficient to induce that state of mind in a reasonable person that the item was stolen or unlawfully obtained.

What are some possible defences?

There are several possible defences to the charge of unlawful possession of suspected stolen property, depending on the facts of your case. Some of these include:

• You did not possess the thing at all. For example, if the thing was found in your car but it belonged to someone else who left it there without your knowledge.
• You did not have a reasonable suspicion that the thing was stolen or unlawfully obtained. For example, if you bought the thing from a reputable store or online seller and had no reason to doubt its legitimacy.
• You had a lawful excuse for possessing the thing. For example, if you were holding the thing for someone else who had a lawful claim to it, or if you were acting under a legal duty or authority.
• You acted honestly and reasonably in relation to the thing. For example, if you found the thing and reported it to the police or tried to return it to its owner.

What are the likely penalties?

The law sets the maximum penalty at 1 year imprisonment and 20 penalty units (currently $3,096).

In general, for a first offence the court will be looking to impose a fine or a good behaviour bond.

The court has the discretion whether to record a conviction or not. When deciding whether to record a conviction to court looks at the following;

• The nature of the offence
• The offenders character and age
• The impact on the offenders
  • Economic or social wellbeing; or
  • Changes of finding employment

If the court imposes a bond then it cannot record a conviction.

If you are charged with this offence in Queensland, it is important to seek legal advice from an experienced criminal lawyer who can advise you on your options and represent you in court. A criminal conviction can have serious consequences for your future, such as affecting your employment opportunities, travel plans and reputation.

In Queensland, it is an offence to possess a knife in a public place unless you have a lawful excuse.

The offence is found in section 51 of the Weapons Act 1990.

What is a knife?

For the purposes of the Weapons Act, a knife is defined as " a thing with a sharpened point or blade that is reasonably capable of being held in 1 or both hands; and being used to wound or threaten to wound anyone when held in 1 or both hands.”

What does possession mean?

For the act possession can obviously mean having the knife on your person. However it is not limited to physical possession it can also apply by;

a)       Having the thing in one’s custody; or

b)      Having the thing under one’s control in any place, whether or not another has custody of the thing; or

c)       Having an ability to obtain custody of the thing at will; or

d)      Having a claim to custody of the thing which the claimant has committed to the custody of another, notwithstanding that the thing is temporarily not in the control of the person having such claim.

In R v Boyesen the judge hearing the case defined possession like this:

Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control. You may possess a thing without knowing or comprehending its nature: but you do not possess it unless you know you have it

Therefore things like giving the knife to another person to hold or having it in your bag, leaving it in your car or even having put the knife on the ground but intending to collect it when you leave a public place could be considered to be possession.

What is a public place?

A public place is any place to which the public is entitled to use, is open to the public, or used by the public, whether on payment or otherwise. The act also includes a school as being a public place.

Importantly a public place includes a motor vehicle that is in a public place.

What is a lawful excuse?

There are a number of lawful excuses for possessing a knife in a public place. These include:

• To perform a lawful activity, duty or employment; or
• To participate in a lawful entertainment, recreation or sport; or
• For lawfully exhibiting the knife or
• For use for a lawful purpose

Examples of lawful possession of a knife in a public place include;

• a person who collects knives may exhibit them at a fete or another public gathering
• A person may use a knife to prepare to cut food at a restaurant in a public place or when having a picnic in a park
• A person may carry a pen knife or swiss army knife for use for its normal utility purposes
• A fisher may carry a knife for use while fishing
• To physically possess a knife for genuine religious purposes
• Someone using a knife wile working

In deciding what is a reasonable excuse regard may be had, among other things, to whether the way the knife is held in possession, or when and where it is held in possession, would cause a reasonable person concern that he or she, or someone else in the vicinity, may be threatened or harmed.

Importantly it is not a lawful use to possess a knife in a public place for the purposes of self defence.

Penalties for possessing a knife in a public place

The penalties for possessing a knife in a public place depend on the circumstances. If you are convicted of the offence, you could face:

• A fine of up to $6,192.
• A term of imprisonment of up to one year.
• Recording of a conviction that will last 5 years

What to do if you are charged with possessing a knife in a public place

If you are charged with possessing a knife in a public place, it is important to speak to a lawyer as soon as possible. A lawyer can help you understand the charges against you and can advise you on how to best proceed.

Conclusion

Possessing a knife in a public place is a serious offence in Queensland. If you are convicted of the offence, you could face significant penalties or the recording of a conviction that might affect your future.

If you are charged with this offence, it is important to speak to a lawyer as soon as possible.

The penalties that apply in Queensland for a charge of supplying a dangerous drug depend on several factors, such as the type and quantity of the drug, the circumstances of the offence, and the criminal history of the offender. In this blog post, we will explain the legal framework and the possible outcomes for this serious offence.

Introduction

Supplying a dangerous drug is defined as giving, distributing, selling, administering, transporting or offering to do any of those things with a substance that is listed in the Drugs Misuse Act 1986.

The Act categorises drugs into two schedules: Schedule 1 and Schedule 2.

Schedule 1 drugs are considered more harmful and include substances such as heroin, cocaine, methamphetamine, MDMA and LSD.

Schedule 2 drugs are considered less harmful and include substances such as cannabis, morphine, codeine and steroids.

What penalties can be imposed for supply a dangerous drug?

The maximum penalty for supplying a dangerous drug varies depending on the schedule of the drug and the quantity involved. For example, supplying more than 2 grams of a Schedule 1 drug carries a maximum penalty of 25 years imprisonment, while supplying less than 1 gram of a Schedule 2 drug carries a maximum penalty of 15 years imprisonment. However, these penalties can be increased if there are aggravating factors, such as supplying to a minor, supplying in an educational institution, or supplying for a commercial purpose.

The actual penalty that is imposed by the court will depend on the individual circumstances of the case and the offender. The court will consider factors such as the nature and seriousness of the offence, the level of involvement and culpability of the offender, the impact on the victims and the community, and the prospects of rehabilitation and deterrence. The court will also take into account any mitigating factors, such as cooperation with authorities, remorse, guilty plea, good character and personal hardship.

Between 2013 and May 2021 2,588 Queenslanders were charged with supplying a schedule 1 drug. 70% of those charged received a prison sentence though not all had to serve time in prison. The court can wholly suspend sentences or set immediate parole release dates meaning an offender spends not time in prison.

What court hears the charge?

The charge will in most cases be dealt with in the District court for the supply of a schedule 1 drug or the Magistrates court for the supply of a schedule 2 drug. Note all matters initially commence in the Magistrates court.

The court has a range of sentencing options available, such as

• imprisonment
• intensive correction order
• probation
• community service order
• fine or recognisance.

The court may also impose ancillary orders, such as forfeiture of property, restitution or compensation, or disqualification from driving. In some limited cases, the court may decide to impose no conviction or no further punishment.

Some notable cases

In R v Holmes [2008] QCA 259 a 20 year old offender pled guilty to one count of possession of MDMA, three counts of supplying MDMA (then a schedule 2 drug) and summary charge of possession of money. Offences had been bought to the attention of the authorities when a person became sick at a hotel after consuming a MDMA pill. The offender co-operated with police and admitted to selling MDMA on three occasions. The Court of Appeal overturned a prison sentence and sentenced him to 2 years probation and no conviction recorded

In R v Pratt [2008] QCA 402 a 25 year old offender pled guilty to one charge supplying Methylamphetamine (a schedule 1 drug) and one count each of possession of cannabis and Methylamphetamine. The offender was 24 at the time of the offending and had one minor criminal conviction on her record. The Supply charge involved the supply to 5 friends over an unstated period of time and did not profit from the supply and co-operated with authorities. On appeal the offender was resentenced to 18 months probation and 100 hours of community service, a conviction was recorded

In R v Anable [2005] QCA 208, a 38 years old offender sold $300 worth of methylamphetamine to an undercover police officer and agreed to supply more of the drug at a later date. The offender had no criminal history. She was sentenced to 9 months imprisonment. The Court of Appeal did not overturn the decision. A conviction was recorded.

Can you negotiate with the prosecutor to get a lesser charge or penalty?

Yes, it is possible to negotiate with the prosecutor to get a lesser charge or penalty. This process is called case conferencing. During case conferencing, the prosecutor and the defence lawyer will discuss the facts of the case, the evidence, and the potential penalties. They may then reach an agreement in which the defendant pleads guilty to a lesser charge or the facts are changed to more favourable to the defendant.

There are a number of factors that the prosecutor will consider when deciding whether to agree to a change in charges or facts. These factors include the strength of the evidence, the defendant's criminal history, the defendant's willingness to plead to a lesser charge or the interpretation of the law.

However, it is important to remember that case conferencing is not always successful, only an experienced criminal lawyer can advise on the chance case conferencing will be successful and if so exactly what can be achieved,

We have an article on negotiating charges with a prosecutor

What we have achieved for clients

We have a proven track record of achieving great results for clients charged with supplying dangerous drugs. Here are a few examples:

• Case 1: Our client was charged with supplying a schedule 1 drug at a music festival. He was young and had no previous criminal offending. We were able to convince the court to impose probation and community service, and to not record a conviction. This meant that he was able to travel to the USA as planned.
• Case 2: Our client was charged with supplying schedule 2 drugs to friends. We were able to get the court to impose a fine only, and to not record a conviction.
• Case 3: Our client was charged with supplying a schedule 1 drug. He was young and had no criminal history. The police agreed to reduce the charge, and he was able to plead guilty in the Magistrates Court and receive a fine and no conviction was recorded.
• Case 4: Our client was charged with supplying a schedule 1 drug. We were able to have the charges dropped on the basis that the police could not prove that he knew the drug was a dangerous drug.
• Case 5: Our client was charged with supplying LSD. He had bought the drugs for friends and made no profit from the sale. He was only caught because one of the friends wandered away from the party and was found walking down the middle of the street by police. We were able to get the court to impose probation and not to record a conviction.

We have hundreds more examples of great results for clients charged with supplying dangerous drugs. If you are facing these charges, we urge you to contact us as soon as possible. We will fight hard to protect your rights and to achieve the best possible outcome for you.

Do I need a lawyer?

Supplying a dangerous drug is a serious offence that can have severe consequences for both the offender and the society. If you are facing such a charge, it is important to seek legal advice from an experienced criminal lawyer who can explain your rights.

We understand that being charged with a drug offence can be a very stressful and worrying time. We are here to help you through this difficult process and to provide you with the best possible representation. We have a team of experienced and dedicated lawyers who are committed to fighting for your rights. We will work tirelessly to get you the best possible outcome, whether that is a dismissal of the charges, a reduced charge, or a lenient sentence.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further no obligation information or advice then you can either;

1.       Use our contact form and we will contact you by email or phone at a time that suits you

2.       Call us on 1300 952 255 seven days a week, 7am to 7pm

3.       Book a time for us to call you

4.       Email the firms founder This email address is being protected from spambots. You need JavaScript enabled to view it.

5.       Send us a message on Facebook Messenger

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about the charge. You wont be chased or hounded to engage us.  Remember its critical you get advice before going to court, this offence can have an impact on you, your family and your employment or business.  

As a senior lawyer practicing in Queensland, I frequently encounter cases involving domestic violence and the intricate legal framework surrounding it. One crucial concept that often arises in such cases is "show cause bail." In this blog post, we will delve into the legal concept of show cause bail and examine its relevance to the criminal charge of breaching a domestic violence order (DVO) in Queensland.

Presumption of Innocence and Bail

Before delving into show cause bail, let's first establish the importance of the presumption of innocence. Under the Australian legal system, every person is presumed innocent until proven guilty. This principle forms the bedrock of our justice system and ensures fairness and protection for individuals facing criminal charges.

When a person is charged with an offence, they may be taken into custody or released on bail. Bail refers to the temporary release of an accused person, pending their trial or other legal proceedings. It allows individuals to maintain their freedom unless there are compelling reasons to justify their detention.

Show Cause Bail: The Burden of Justification

Show cause bail is an important aspect of the bail process in Queensland. Unlike ordinary bail, where the accused person only needs to show they are not an "unacceptable risk," show cause bail places an additional burden on the accused.

Essentially, show cause bail requires the accused person to demonstrate why their continued detention is not justified in the circumstances. It reverses the usual presumption of bail and places the onus on the accused to present compelling reasons why they should be granted bail.

Domestic Violence Order (DVO) Breaches and Show Cause Bail

In the context of breaching a DVO in Queensland, show cause bail assumes even more significance. A DVO is a court order designed to protect individuals who are or have been subjected to domestic violence. It imposes restrictions on the respondent, prohibiting them from engaging in certain behaviours or approaching the protected person(s).

When a person is charged with breaching a DVO, the court takes the matter seriously due to the potential harm and trauma associated with domestic violence.

Where a person is charged with breaching a domestic violence order and in the last 5 years they have a conviction for breaching a DVO then the law automatically puts that person in a position of show cause. We have a whole article on Breaching a Domestic Violence Order for the Second Time in Queensland.

To secure bail in the case of a DVO breach matter where that person has a previously been convicted of the same offence, the accused must provide compelling reasons to convince the court that their continued detention is not necessary. They must demonstrate that they do not pose a risk to the protected person(s) or the community at large and that they are likely to comply with the conditions imposed by the court.

Factors Considered in Show Cause Bail Applications

When assessing a show cause bail application for a DVO breach, the court considers several factors, including:

1. Nature and seriousness of the breach: The court will assess the circumstances surrounding the alleged breach, considering factors such as violence, coercion, or disregard for the court order.
2. Where the accused will live. The
3. Risk of harm: The court will evaluate the potential risk the accused poses to the protected person(s) or the community if released on bail. This may include considering any history of violence, threats, or previous breaches.
4. Likelihood of compliance: The court will examine the accused's history of complying with court orders and bail conditions. Evidence of cooperation with previous orders can be influential in persuading the court to grant bail.
5. Sureties and conditions: The accused may propose sureties (individuals who guarantee their compliance with bail conditions) or suggest additional conditions that mitigate the risk associated with their release.

Conclusion

The legal concept of show cause bail is a critical element in Queensland's criminal justice system, particularly in cases involving breaches of domestic violence orders. It aims to strike a balance between protecting the rights of the accused and ensuring the safety and well-being of victims of domestic violence.

As lawyers, our duty is to advocate for our clients while respecting and safety of all parties involved. Navigating the complexities of show cause bail in DVO breach cases requires a thorough understanding of the law, a careful examination of the facts, and persuasive advocacy.

So you've been charged with a criminal offence in Queensland, pleaded not guilty and gone to trial and have been victorious or the police drop the charges before the trial. Can you now ask the government to pay your legal costs of defending those charges?

As is often the case the question is harder to answer then you would think.   Under Queensland criminal law defendants are only entitled to have their legal cost paid in certain circumstances and only to a set limit.

What is the basis for awarding costs to the defendant?

In the magistrates court there is a section of the Justices Act that states;

When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.

This would seem to be fair, if you win at trial then you should have your costs paid by the government who bought the charges against you unfairly.   However the government was concerned about the amount of money they would have to pay so they modified the law further to say that in deciding whether to award costs the magistrate must look at a number of factors including;

• whether the proceeding was brought and continued in good faith; and
• whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and
• whether the investigation into the offence was conducted in an appropriate way; and

• whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and
• whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and
• whether the defendant unreasonably declined an opportunity before a charge was laid to explain the defendant’s version of the events; or to produce evidence likely to exonerate the defendant;

• whether there was a failure to comply with a direction given under section 83A; and
• whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and
• whether the defendant was acquitted on a charge, but convicted on another.

This is quite an exhaustive list and is designed to really only allow costs to be paid where police should never have bought the charges in the first place.

The recent case of Wells v Commissioner of Police Illustrates how difficult it is to get costs from the government and how many things the court has to look at when they decide whether you should get costs or not for being successful at a criminal trial.

Wells v Commissioner of Police

This case involved a defendant with a surname of Wells.  Wells was charged with breaching a domestic violence order. The basic facts were Wells’ previous partner stated while she's working on roadworks on the highway she heard someone yell particularly disgusting obscenities at her but could not see who made the comment as they were in a Landcruiser with Victorian plates but she said that she recognised the voice as her former partner’s (Wells).

When the police spoke to Wells he stated that it was impossible that he could have been there but ultimately did not participate in a formal interview with police and was arrested.  At that time the police were telling Wells that they had a statement from a witness saying it was him when in fact they did not have a statement for several weeks after. 

A key piece of evidence was the allegation that Wells was driving a particular white Landcruiser with Victorian plates Wells was at the time of the alleged offence.  Wells’s lawyers wrote to the prosecutor before the trial indicating that Wells was at the time of the offence was working at a location far away from where the alleged offence occurred and that he had no access to a Landcruiser with Victorian plates and the police should search the Victorian Department of Transport to see who owned such a vehicle in Queensland.

Ultimately on the eve of a trial the police dropped all charges and it was up to the magistrate to decide whether Wells should get legal costs paid.  Ultimately they decided that Wells should not get cost paid as he did not participate in a formal interview where he could have explained he was far away from the offence and had no access to a Toyota Land Cruiser with Victoria plates.

Wells then appealed the decision to the district court in Cairns who ultimately decided Wells should get legal costs. 

The district court went through all factors that are required to look at when someone wants to get their legal cost paid in a criminal trial and ultimately decided that the investigation and prosecution were inadequate and the police investigation had flaws from the beginning.  The appeal judge decided they should have investigated Mr Wells' access to the vehicle in question and his decision not to participate in a formal record of interview was not unreasonable (see our article on the right to silence) .  The judge said in regards to the decision not to participate in a formal interview of record that:

On the contrary, on my reckoning, the appellant took the earliest opportunity to explain his position to the best of his ability, considering the interview was unfair, inappropriate, and provocative. Given the circumstances, the appellant could not reasonably be expected to calmly and meticulously analyse the allegations to provide a more temporally exacting and comprehensive alibi. Instead, he did his best in that moment to explain, before any charges were laid, that the alleged conduct was impossible as he had no contact or interaction with the complainant, rendering the complaint baseless and motivated by ill will.

The judge then awarded Mr Wells legal costs.

So the system works & as long as I can prove I should get my costs paid so its all good?

In a word no.  When the Government changed the legislation they not only made it harder to be able to get legal costs paid they did something that's even worse and limited the legal costs that can be paid to a certain scale.  That scale is now so horrendous out of date that Wells was only able to recover just over $2,000 for his costs.  We don't know how much his lawyers charged but there seems little doubt at that best he was awarded perhaps 20% of the legal costs he would have incurred.

This is the worst part you may be charged with a criminal offence, be innocent, need to engage a lawyer who does a good job and ultimately the police withdraw the charges or you are found not guilty and the amount of costs that can be awarded be barely over $2,000.

It should be noted there are different rules apply to criminal trials in the district and supreme court and we are just talking here about magistrate court trials or summary trials.

So what’s the conclusion?

The takeaway from this legislation and the case of Wells really is it is  extremely difficult to get costs awarded unless the investigation by the police was unreasonable and further even if the investigation was unreasonable the amount of costs that is going to be awarded will not cover the total amount of legal costs that you have to pay. 

As an experienced criminal lawyer practising in Queensland, I understand the seriousness and complexity of domestic violence cases. Domestic Violence Orders (DVOs) play a crucial role in ensuring the safety and protection of individuals facing domestic violence. In this article, we'll explore the consequences of breaching a DVO (technically the charge is contravening a DVO) for the second time, providing insights for people who may find themselves in such a situation.

Understanding Domestic Violence Orders (DVOs) in Queensland

First things first, let's clarify what a Domestic Violence Order (DVO) is and why it matters. In Queensland, a DVO is a court-issued order (or a temporary order issued by the police) designed to prevent future acts of domestic violence. Its purpose is to safeguard people and maintain a safe environment for all parties involved.

A DVO comes with specific conditions, such as keeping a certain distance from the protected person or refraining from any contact, or requiring the respondent to give written permission for the aggrieved to in her presence.

Complying with these conditions is of utmost importance. Failure to adhere to the terms of a DVO can have severe consequences.

Consequences for Breaching a DVO in Queensland

Breaching a DVO is considered a criminal offence in Queensland, and the consequences can be substantial. The penalties for breaching a DVO vary depending on the severity of the breach, and they are imposed to deter further breaches and protect the safety of the aggrieved as well as to indicate to the population of Queensland that the courts treat a breach of a DVO seriously.

The recent community focus on domestic violence means the police have the power to respond swiftly when a breach is reported. They can arrest the respondent, charge them with an offence, and bring them before the court. The severity of penalties depends on factors such as the nature of the breach, any harm caused, and the respondent's previous history.

As a lawyer, I've seen how DVO breaches can lead to fines, probation orders and even imprisonment. The court considers a second breach as an aggravating factor when determining the punishment. It's essential to understand that breaching a DVO in the courts mind not only puts the safety of the aggrieved at risk but also leads to serious legal consequences for the person breaching the order.

Breaching a DVO for the Second Time in Queensland

Now, let's dive into what happens when someone breaches a DVO for the second time. Repeat offenders face heightened consequences and increased penalties compared to first-time offenders. The court takes a strong stance against those who persistently breach DVOs, recognizing the importance of protecting victims from ongoing harm.

When it comes to penalties, the courts will impose stricter sentences for repeated breaches. This could mean longer periods of imprisonment or more substantial fines. Additionally, the court may be less inclined to grant bail or allow pre-trial release for individuals who have breached a DVO on more than one occasion.

It doesn’t always mean a second breach will lead to imprisonment but it is a major factor in determining the penalty.

Bail

The law states that where in the past 5 years a person has a conviction for a charge of breaching a DVO and they are arrested for another breach of a DVO (no matter how mild or serious the breach is) they are in a show cause position when it comes to bail.

In most situations, the onus is on the prosecutor to demonstrate the defendant should not be granted bail. However, in a ‘show cause’ situation, the onus is reversed, and the defence must prove the defendant is not an unacceptable risk for bail;

The court when assessing someone‘s suitability for bail will look at the following factors

• the nature and seriousness of the offence
• the defendant’s character, antecedents (such as a personal history including their criminal history)
• associations, home environment, employment and background, and their likelihood of committing further offences
• the defendant’s age
• the history of any previous grants of bail
• the strength of the evidence against the defendant
• whether a surety is necessary or a cash deposit
• how long the defendant might stay in jail if bail not granted

Bail will be refused if there is an unacceptable risk that if bail were granted the defendant would;

• fail to appear on the adjourned date
• commit further offences
• endanger other people
• be a danger to himself or someone named on the DVO
• interfere with witnesses

In our experience the police wont grant bail where there is a previous breach unless the new offence is very minor.  Where this occurs the law states the defendant must be bought before a Magistrate who will ultimately decide if bail is granted or not.

This will usually mean the defendant having to endure a night or two in the watch house before they can be bought before a Magistrate.

One of the biggest issues for bail is where does the defendant live if bail was granted? The court is not going to allow them to live with the aggrieved and wont kick the aggrieved out of the house. It also makes it much harder to find that alternative address as in most cases the defendant is in the watch house with extremely limited access to the outside word.

Let me give a recent example we dealt with that illustrates the difficulty (this example is very typical of what occurs in most cases). The client had been charged with breaching the DVO for the 2^nd time by being at the home without written permission that was required under the order (he did have verbal permission to be there) and for grabbing the shoulders of his partner. The partner contacted the police, the police investigated and arrested the client Saturday afternoon. The police denied bail as he was in a show cause position, this meant he would not be able to go before a Magistrate until Monday morning.

Luckily as we had acted for the client for the last time he had breached the order he was able to call me from the watch house. As he didn’t have access to his phone he was not able to give me the contact details of his sister or mother. I had to use social media and other searches to find his sister, contact her, make arrangements for the client to live with his mother and prepare for a bail application on the Monday.

I was able to briefly see the client at the watchhouse Monday morning before court started to get all the information we needed for the bail application. We went before the Magistrate and convinced her that the client was not an unacceptable risk if bail was granted. The client was then granted bail on strict terms and released.

This meant obviously the client didn’t have to spend months on remand and also allowed us to more easily communicate and make a plan on what to do with the pending breach charge. Its obviously a very stressful situation for the client sitting in the watchhouse wondering if he will get bail and quite frankly stressful for me noting if I don’t get the client bail then he will spend months in jail even though when he eventually pleads guilty he wont likely get sentenced to any prison time (update: he eventually was sentenced to probation so no prison time and no conviction was recorded).

Modification of the Current Order

We have a whole article on amending a DVO after a breach

In essence where there is a second breach of a DVO the court must consider amending the current DVO to better protect the aggrieved. This amendment might include:

1. Limiting the ability of the defendant to see or communicate with the aggrieved or asking people to contact the aggrieved
2. Order the defendant to leave the premises and not come back (an ouster order)
3. Making the defendant attend an approved intervention program
4. Not allowing the defendant to come to the house without written permission
5. Limiting how close the defendant can come to the aggrieved
6. Preventing the defendant from contacting the aggrieved totally except through lawyers.

Its critical to get immediate legal advice as once the order is amended it is almost impossible to convince the court to relax any of the new conditions.

Support and Resources for Individuals Facing DVO Issues

Facing a DVO breach can be emotionally overwhelming and legally daunting. It's essential to remember that you're not alone and that there are resources available to support you during this challenging time.

Seeking professional legal advice is paramount. An experienced lawyer can guide you through the legal process, explain your options, and help you present your case effectively. They can advocate for your rights, ensuring that your voice is heard in court.

In addition to legal support, there are various support services and helplines dedicated to assisting people accused of domestic violence. They offer emotional support, counselling, and planning for the future.

DVConnect’s Mensline can support men who are accused of abuse against their partner, ex-partner or other family member. Mensline is a free and confidential helpline that assists men to change their behaviour.

The Queensland government has a list of approved of providers of intervention programs that the court will recognise. That list can be accessed by clicking here.

Conclusion

Breaching a Domestic Violence Order for the second time in Queensland carries severe consequences. The courts take a strong stance against repeat offenders to protect the safety and well-being of victims. It's crucial to understand the seriousness of DVO breaches and the potential legal implications they entail.

If you find yourself facing a DVO breach, remember that there is support available. Seek legal advice from a trusted lawyer who are actually experts in domestic violence cases. Reach out to support services and helplines for emotional support and guidance.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further no obligation information or advice then you can either;

1.       Use our contact form and we will contact you by email or phone at a time that suits you

2.       Call us on 1300 952 255 seven days a week, 7am to 7pm

3.       Book a time for us to call you

4.       Email the firms founder This email address is being protected from spambots. You need JavaScript enabled to view it.

5.       Send us a message on Facebook Messenger

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about the charge. You wont be chased or hounded to engage us.  Remember its critical you get advice before going to court, this offence can have an impact on you, your family and your employment or business.  

We can also help if a family member has been denied bail and need to make an application for bail urgently.

Section 42 of the Domestic and Family Violence Protection Act 2012 (the Act) is a crucial provision that provides the court with the power to make or vary a domestic violence order after the defendant pleads guilty to breaching the DVO. The Act was introduced to protect individuals who have been victims of domestic and family violence. This article will examine the key provisions of section 42 and its significance where someone is charged contravening a domestic violence order.

What is Domestic Violence?

A court can make a domestic violence order if it is satisfied that a person has committed domestic violence or is likely to commit domestic violence in the future. Domestic violence can take various forms, including physical violence, emotional abuse, and financial abuse. It can also involve controlling behaviour and coercion.

The court can make an order even if the person who is likely to commit domestic violence has not yet committed the offence. The court must be satisfied that there are reasonable grounds to believe that the person is likely to commit domestic violence in the future. The order can be made against a family member, partner, or spouse.

What is a Domestic Violence Order

A domestic violence order can contain various provisions, including prohibiting the person from committing domestic violence or contacting the victim. It can also require the person to attend counselling or to undergo treatment for drug or alcohol addiction.

One of the significant advantages of a domestic violence order is that it can be made without the consent of the victim. This is particularly important because victims of domestic violence may be reluctant to come forward due to fear of reprisals. The order can be made on behalf of the victim by a police officer, a legal representative, or any other person authorised by the court.

Breaching a Domestic Violence Order

If a person breaches a domestic violence order, they may be subject to criminal charges. This can result in a fine, community service or if the offence is bad enough imprisonment. A breach of a domestic violence order is a serious offence, and the court may take it into account when considering future orders.  We have a full article on breaching a DVO and its consequences on our website.

What happens if I plead guilty to breaching a domestic violence order?

In addition to punishing a person for breaching a DVO the court may also make other orders to protect the aggrieved, such as varying an existing DVO to an order.

The law requires that the court must;

1. consider the order and whether, in the circumstances, the order needs to be varied; and then may;
2. vary the order

The types of variation the court might consider includes;

1. Limiting the ability of the defendant to see or communicate with the aggrieved or asking people to contact the aggrieved
2. Order the defendant to leave the premises and not come back (an ouster order)
3. Making the defendant attend an approved intervention program
4. Not allowing the defendant to come to the house without written permission
5. Limiting how close the defendant can come to the aggrieved

Will I get a chance to tell the court not to change the order?

The court must give the following persons a reasonable opportunity to present evidence and to prepare and make submissions about the variation of the order.

• the defendant
• the prosecuting authority for the offence
• reasonably practicable, the person who is or would be named as the aggrieved in the order.

In practice the discussion on whether to amend the current DVO is almost always done immediately after the sentence for breaching the DVO occurs.  It means a defendant or their lawyer must be ready with arguments seeking the DVO not be amended

How do I stop the court from amending the order

You cannot stop the court from considering whether to amend they order as they are required to do this.  What you need is well researched and considered arguments why the DVO should not be amended (if that is appropriate).

Are you really telling me if I breach a DVO I could be kicked out of home?

Yes.  Often the amendment to the order will be more severe and have more consequences than the actual punishment for breaching the DVO.

You could be ordered to leave the house even if the aggrieved wants you to stay there.  It all obviously depends on the facts of each case.

A recent case we saw a person had pleaded guilty to breaching a DVO.   There was no violence or threats of violence and the defendant had and criminal history.  The court after ordering a small fine then amended the order so that the defendant was only allowed to go to or stay at the home with the written permission of the aggrieved and that permission could be withdrawn at any time.  It not hard to imagine how this situation could lead to more breaches in the future.

If I am ordered to leave our home I will have nowhere to live

This is often the consequence of the change to the DVO.  The rental crisis has meant even getting somewhere to stay is difficult to say nothing of the cost.

What we find tends to happen is the couple will still live together in breach of the DVO which leads to constant arrests and in the end a likely prison sentence.

What can be done if the court changes the order?

You can apply back to the court to vary the order again but this is not easy and will take time.  The courts are very reluctant to change an order by removing clauses.

You are going to say you need a lawyer to represent you

We are.  There are plenty of charges where you could act for yourself.  There are other charges where its fine to use the duty lawyer at court.  However even minor breach could lead to the varying of the existing order for example preventing you from living at the family house unless your partner gives you written permission (that could be withdrawn at any time).

The consequences of the court amending the DVO means if you are charged with contravening a DVO you need an experienced lawyer not only to minimise the penalty but to seek the court not amended the DVO.  A duty lawyer just won’t have time to properly prepare to argue against the amendment of the DVO.

Summary

In conclusion, section 42 of the Domestic and Family Violence Protection Act 2012 is an essential provision that provides protection to victims of domestic violence. However the courts power to amend the existing DVO order even if the aggrieved does not want it or does not ask for it can have devastating consequences for the defendant.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further information or advice then you can either;

• Use our contact form and we will contact you by email or phone at a time that suits you
• Book a time for us to call you
• Call us on 1300 952 255 seven days a week, 7am to 7pm
• Email This email address is being protected from spambots. You need JavaScript enabled to view it.

We are a no pressure law firm, we are happy to provide information to assist you, if you want to engage us then great, if not then you at least have more information about contravening a DVO. You won’t be chased or hounded to engage us.  Remember its critical you get advice before going to court, as the charge can have an impact on you, your family and your employment or business.  

The law in relation to weapons in Queensland is primarily governed by the Weapons Act 1990 and the Weapons Regulation 2016.

The principles and object of the Weapons Act are –

• Weapon possession and use are subordinate to the need to ensure public and individual safety;
• Public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.
• The object of this Act is to prevent the misuse of weapons.

Offences

Possessing Weapons without a Licence

It is unlawful to possess weapons without a licence. There is a sliding scale of penalty depending on the weapons possessed.

a) If a person possesses 10 or more weapons, where at least five are semi-automatic rifles or semi-automatic shotguns, or handguns, or machine guns – the person is liable to a maximum of 13 years imprisonment;

b) If the above does not apply and a person possesses 10 or more weapons – maximum 10 years imprisonment or maximum fine of $69,000;

c) If neither of the above apply, then –

i,  For a semi-automatic rifle or semi-automatic shotgun, or handgun, or machine gun – maximum 7 years imprisonment or maximum fine of $41,000

ii.  For a semi-automatic rifle or semi-automatic shotgun or a bullet proof vest – a maximum of 4 years imprisonment or maximum fine of $27,000

iii.  For a rifle, single or double barrel shotgun, paintball gun, air rifle, crossbow, most types of melee weapons, most types of knives – a maximum of 2 years imprisonment or maximum fine of $13,000.

There are also minimum penalties if the weapons are possessed in any of the following circumstances –

d) For an offence committed by an adult which all categories except iii above apply –

i. If the person unlawfully possesses a firearm and uses the firearm to commit an indictable offence—18 months actual imprisonment;

ii. If the person unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence—1 year’s actual imprisonment;

iii. If the person unlawfully possesses a short firearm in a public place without a reasonable excuse—1 year’s actual imprisonment.

e) For an offence, committed by an adult, to which iii applies—

i. If the person unlawfully possesses a firearm and uses the firearm to commit an indictable offence—9 months actual imprisonment;

ii. If the person unlawfully possesses a firearm for the purpose of committing or facilitating the commission of an indictable offence—6 month actual imprisonment.

Possession of an Unregistered Firearm

It is an offence for a person with a firearms licence to possess an unregistered gun.

A firearm is unregistered if it is not entered into the firearms register in Queensland.

“Possession” includes:

• Having the firearm in one’s custody; and
• Having the firearm under one’s control in any place, whether or not another has custody of the firearm; and
• Having an ability to obtain custody of the firearm at will; and
• Having a claim to custody of the firearm which the claimant has committed to the custody of another, notwithstanding that the firearm is temporarily not in the control of the person having such claim

The maximum fine is $16,000.

Possession of a Knife in a Public Place or School

A person must not physically possess a knife in a public place or a school, unless the person has a reasonable excuse.

A reasonable excuse includes –

1. a) to perform a lawful activity, duty or employment; or
2. b) to participate in a lawful entertainment, recreation or sport; or
3. c) for lawfully exhibiting the knife; or
4. d) for use for a lawful purpose.

The knife must be in a person’s possession however that does not mean it must be on them at the time of the offence.  It includes having control or custody of the knife even if it is not physically held by a person.

A “Knife” includes a thing with a sharpened point or blade that is reasonably capable of being held in one or both hands and being used to wound or threaten to wound anyone.

One of the most important definitions is that of a public place.  The law defines public place as any place that the public is entitled to use, is open to the public, or used by the public, whether on payment or otherwise.

The court has found that a knife in a car on the road is a public place however in Lord v Dwyer [2009] QDC 407 the court found a person who had picked up a knife on a driveway so as to secure it from nearby children was a reasonable excuse and dismissed the charges.

The potential penalty includes a maximum of 1 year’s imprisonment or maximum fine of $5,500.

Shortening Firearms

A person must not, without reasonable excuse –

1. a) shorten a firearm; or
2. b) possess a firearm that has been shortened; or
3. c) acquire or sell a firearm that has been shortened.

Maximum 4 years imprisonment or $27,500.

Other Offences

There are also laws in relation to supplying weapons and storage of weapons, but these charges are relatively rare, so I have excluded them from this article.

Which Court are These Offences Heard In?

All offences, except the offence which carries 13 years maximum, can be dealt with in the Magistrates Court.

Summary

As can be seen, the possession of weapons, especially firearms, is strictly controlled in Queensland and a person can face very severe penalties for merely having them. This is not limited to firearms, however, and there are not less than 21 different categories of melee or bladed weapons that are also prohibited. Self-defence is never a lawful excuse for possessing a weapon under Queensland Law.

If you are unsure what weapons you may be able to have and under what circumstances, we recommend you seek legal advice.

How do I get more information or engage Clarity Law to act for me? 

If you want to engage us or just need further obligation free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Call us on 1300 952 255 seven days a week, 7am to 7pm
3. Book a time for us to call you
4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Assault charges can have devastating consequences to both the accused and the victim.  There are times when someone has committed an offence of assault but can claim a defence that means they should not be found guilty of that assault charge.

This page is about the defense of provocation to an assault charge in Queensland.

What is Assault?

The Definition of assault in Queensland is;

A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person's consent, or with the other person's consent if the consent is obtained by fraud, or who by any bodily act or gesture1attempts or threatens to apply force of any kind to the person of another without the other person's consent, under such circumstances  that  the  person  making  the  attempt  or  threat  has  actually  or apparently  a  present  ability  to  effect  the  person's  purpose,  is  said  to  assault that other person, and the act is called an assault.

Assault includes the following:

applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

The laws says that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.  The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.

What makes an assault unlawful?

Unlawful means not authorised, justified or excused by law.  Therefore if you have a valid defence to the charge like provocation then the act of assault will be justified and excused by law and therefore a person should be found not guilty of the offence.

Where the evidence gives rise to a question of provocation, the onus is on the Crown to disprove that defence beyond reasonable doubt

What is the defence of provocation?

Provocation is defined in the Queensland Criminal Code as “...any wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered ...”

Our law provides that: When such an act or insult is done or offered by one person to another, the former is said to give the latter provocation for an assault.

The main factors for the defence of provocation are;

• whether the complainant has offered the defendant provocation for the assault;
• whether the defendant was deprived by the provocation of the power of self control;
• whether the defendant acted on the sudden and before there was time for their passion to cool; and
• whether their response to the provocation was proportionate.

It is a two-stage test for the jury or Magistrate to determine, firstly, if the particular act or insult was such as to deprive the ordinary person of the power of self-control, then to decide from the view point of the particular defendant if the defendant was in fact deprived of the power of self-control

The ordinary person is not assumed to be a saint. They are expected to have the ordinary human weaknesses and emotions common to all members of the community and to have self-control at the same level as ordinary citizens of their age.

This area of the law recognises that there does occur a snapping point where an ordinary person may do something that they would not dream of doing under normal circumstances.

An “ordinary person” is simply one who has the minimum powers of self-control expected of an ordinary citizen who is sober, not affected by drugs, and of the same age and sex as the defendant.

When will the defence of provocation fail?

If the prosecutor can prove any of the following beyond a reasonable doubt then the defence of provocation will fail;

• that the accused was not the subject of wrongful act or insult by the complainant; or
• that there was no provocation, bearing in mind how an ordinary person would be likely to react to the wrongful act or insult; or
• that the defendant was in fact not deprived by the provocation of the power of self-control; or
• the defendant did not act upon the sudden and before there was time for his passion to cool; or
• the force used by the defendant was out of proportion to the provocation; or
• Where appropriate, that the force used was intended and was likely to cause death or grievous bodily harm.

What types of actions by the complainant could amount to provocation

What words or actions could amount to provocation? Every circumstance will be different, certain conduct or words may not be insulting to some people but highly insulting to other people.

Typical things that might give rise to provocation are discussions of a persons;

• age
• race
• ethnic  or  cultural  background
• physical  features
• personal  attributes
• personal  relationships  or  past  history
• sexual orientation
• gender

Provocation need not be just words it can include the actions of the complainant.

The defence of provocation in Queensland is a constantly evolving area of the law and one that only an experienced criminal defence lawyer can properly advise someone on.

How do I get more information or engage you to act for me?

If you want to engage us or just need further obligation free information or advice then you can either;

1. Use our contact form and we will contact you by email or phone at a time that suits you
2. Call us on 1300 952 255 seven days a week, 7am to 7pm
3. Book a time for us to call you
4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.

In Queensland, if you are charged with an assault charge, it is quite common for your lawyer to try and negotiate that charge with the Police Prosecution Unit or the Department of Public Prosecutions (“DPP”) to try and get a better outcome for you. This process is known as case conferencing. The case conferencing process is designed to try and streamline the facts the Court will get, or in some cases for the Prosecutor to decide whether or not the charge should proceed at all or at least in its current form. Because we have carried out so many assault charges, we are often asked what type of case conferencing can occur and this article is designed to try and summarize some of the case conferencing successes that we have had with assault charges.