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.

For criminal and traffic cases, the Queensland courts have multiple sentencing options at their disposal.

This article will concentrate on suspended sentences of imprisonment.

What is a Suspended Term of Imprisonment?

Somewhat artificially, a suspended term of imprisonment (sometimes called a ‘suspended sentence’) is a term of imprisonment wholly or partially served in the community. For example, a person can be sentenced to a term of imprisonment of 12 months, suspended after three months, with an operational period of two years. This would mean that the person served three months in custody and nine months are then still ‘hanging over his head’ for two years after that. If he was to be convicted of an offence ‘punishable by imprisonment’ within those two years, he would then be dealt with for the ‘breaching’ offence and after that, sentenced for breaching the suspended term of imprisonment.

Once the suspended sentence is breached, the court has a few legislated options available to it, according to section 147 of the Penalties and Sentences Act.

The first, and default, option is to order the person to serve the whole of the remaining part of the suspended term of imprisonment. That is, using our above example, nine months imprisonment.

The second option is to order the person to serve part of the outstanding suspended term of imprisonment, such as four of the remaining nine months.

The third option is to extend the ‘operational period’ of the suspended sentence. So, again using our example, the two years operational period might be extended for another two months, adding two months to the remaining operational period.

Options two and three are only available when the Judge or Magistrate decides it would be “unjust” to require the person to serve the whole of the remaining period of suspended imprisonment.

There is a legal test to assist the Court in deciding whether it would be unjust to require the person to serve the whole of the remaining period of suspended imprisonment:

“The court must have regard to—

(a) whether the subsequent offence is trivial having regard to—

(i) the nature of the offence and the circumstances in which it was committed; and

(ii) the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and

(iii) the antecedents and any criminal history of the offender; and

(iv) the prevalence of the original and subsequent offences; and

(v) anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example—

(A) the relative length of any period of good behaviour during the operational period; and

(B) community service performed; and

(C) fines, compensation or restitution paid; and

(D) anything mentioned in a pre-sentence report; and

(vi) the degree to which the offender has reverted to criminal conduct of any kind; and

(vii) the motivation for the subsequent offence; and

(b) the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and

(c) any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment.”

A Scenario

Clarity Law had a client^[1] who was sentenced in the District Court for violence offences. He was sentenced to 18 months imprisonment, suspended after four months, with an operational period of three years. That is, he served four months in custody before he was released from jail to serve the rest of his sentence in the community.

Then, about nine months into the District Court suspended sentence, he committed a shop steal offence, taking a bottle of alcohol valued less than $40. He was fined in the Magistrates Court for that offence. The law then required him to be committed to the District Court to be dealt with for the breach of suspended sentence. The District Court decided to extend the operational period of his suspended sentence, noting the offence was of a different type from the original offences and was far less serious, and it would be unjust to require him to serve any time in custody.

About two months, later he committed more offences of violence; he was charged with common assault for a punch and charged with a beach of domestic violence order. Thanks to our skilful negotiations, we were able to get the common assault withdrawn and the facts of the DVO breach changed to a push. In the Magistrates Court he was sentenced to nine months’ probation. He was then committed to the District Court to be dealt with for breaching his suspended sentence.

In the District Court, the Judge commented he was ‘skating on thin ice’. Ultimately, the judge decided to activate the remaining portion of the suspended term of imprisonment, but then place the client on immediate parole. This meant that he had 14 months to perform on parole, or risk being sent to custody by the authorities. That is, he did not have to commit another offence to risk having his parole cancelled, as the parole board has the authority to suspend or cancel his parole if he has failed to comply with the parole order.

Although it may not be obvious from the scenario described above, our client was actually very fortunate that he was not required to serve any additional time in custody.

Conclusion

As can be seen, dealing with a suspended sentence can be complicated, particularly if it is imposed by a higher court and then breached by offences dealt with in the Magistrates Court. We highly recommend getting expert legal advice if you find yourself in such a position.

^[1] We have changed the details to maintain client confidentiality.

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.