Clarity Law

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.

An arrest warrant is a warrant that is either applied for and obtained by the police or ordered by a justice (including a Justice of the Peace, Magistrate, Judge or Justice). It gives a member of the police the authority to detain the named person for the purpose of questioning or to charge a person with an offence.

If you have been arrested by the police for a fail to appear in court, then you are likely to be detained until you can be brought before a magistrate at the next available opportunity.

How do I know if a warrant has been issued?

Unfortunately, you generally will not know that an arrest warrant has been issued until you receive the knock on the door to execute the warrant or are pulled over by police and detained.

You may have some knowledge if an arrest warrant has been issued. If you realise you have missed a court date, then you will likely have a fail to attend and the Court more than likely has issued a warrant for your arrest. If this is the case, do not wait to be arrested, call a criminal lawyer who can give you advice on surrendering to the court.

What do I do if an arrest warrant is executed?

If the police execute an arrest warrant on you, you must remain calm and comply with the directions of the police officers. You do not have to say anything to them other than give your ‘identifying particulars’, however you need to follow their lawful directions – such as being fingerprinted or escorted back to the police station with them.

If you resist arrest or obstruct the police in the execution of a lawful arrest police can charge you with an offence.

It is best to comply with the execution of the warrant and engage with a criminal defence lawyer once you have been granted watchhouse bail or require a bail application in the Magistrates Court.

If you have been arrested, you still have rights. Steven Brough our founder has written an excellent article on what to do if you have been arrested here. Put simply, you have a right to silence but you are required to give your name, address and date of birth. It is the default position of most criminal defence lawyers that you do not participate in an electronic record of interview. If you have been asked to participate in an electronic record of interview, you may contact our office for advice.

What can I do if I think a warrant has been issued but before I’ve been arrested?

If you are going to surrender yourself to the court as the court has issued a warrant for your arrest, it is best to do this first thing in the morning as, if you attend late in the afternoon, you may be kept in the watchhouse overnight until the police and court can process you and allocate you a new court date. There is of course the risk that the police could arrest you if you wait and take you to the watchhouse overnight anyway.

You surrender yourself by appearing at the registry of the court you were allocated to attend. There you advise them that you missed your court date and need to surrender yourself. As both the court house and the Police are involved in the process it can be a lengthy period, taking on average 1-2 hours.

If you engage a lawyer to surrender you to the court, the process remains largely the same, with the exception that a lawyer will arrange with the court and police for the file to be brought before the court and can assist in providing an explanation as to why you failed to attend court.

We have a full article on what to do if you have missed your court date.

What can a lawyer do for me if a warrant is issued?

In short, with the exception of surrendering you to the court, there is not much a lawyer can do to stop a warrant being executed – that is not our role – if an arrest warrant is executed on you, you are within your rights to call a lawyer to get advice. A lawyer can be in attendance with you while you are being questioned by police however a lawyer becomes more and more relevant in the aftermath – whether that is helping you defend a charge or make a plea of guilty.

Conclusion

This article is by no means a comprehensive guide to arrest warrant and what you need to do when one has been issued. They are complex and powerful instruments which police utilise in the execution of their duties. A lawyer will become most relevant for you in the aftermath of the execution of a warrant, however your conduct during the execution will set the stage for that aftermath. Anything said during an interview can and will be used against you in court.

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;

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

If you have missed a court date there will more than likely be a warrant out for your arrest.

If you believe that you may have a warrant issued for your arrest, you can contact the court and check and if a warrant was issued then surrender yourself to the court. Do not wait to be arrested.

If you are arrested, then you will likely face a charge of fail to appear in accordance with an undertaking (if you were on bail) which likely will trigger the revocation of your bail and put you in a ‘show cause’ position.

Surrendering yourself to the court will result in a better outcome than if you were arrested and brought before the court.

How do I surrender?

If you are going to surrender yourself. It is best to do this first thing in the morning as, if you attend late in the afternoon, you may be kept in the watchhouse overnight until the police and court can process you and allocate you a new court date. There is of course the risk that the police could arrest you if you wait and take you to the watchhouse overnight anyway.

You surrender yourself by appearing at the registry of the court. There you advise them that you missed your court date and need to surrender yourself. As both the court house and the Police are involved in the process it can be a lengthy period, taking on average 1-2 hours for your file to be brought to the attention of the court. The court may wait until it has dealt with the represented matters first, and then the unrepresented matters.

The court will want to hear your reasons for not appearing in court, and will ask you what you want to do with your matter. The court will want to know if you are pleading guilty, wanting to adjourn the matter for legal advice or challenge the offence.

There is no requirement to surrender to the court that has issued the warrant, this is clearly expressed in the Police Powers and Responsibilities Act 2000, section 389(4). This section states if a person appears voluntarily before a court after the warrant is issued, any justice may revoke the warrant however some court registries take a different view and may seek to tell you that you cannot surrender in their court and must at the court that issued the warrant.

Why should I get a lawyer to surrender me?

The above process, seems simple enough to do – which may cause a person to think, why should I pay a lawyer to help. This ultimately, will depend on the circumstances. For serious offences, or where a person has a history of failing to appear then having a lawyer appear for you is imperative to ensure that you put your best case forward as to why you should be allowed to be granted bail or allowed at large.

In some instances, a defendant simply does not feel confident in appearing before the court to explain why they failed to attend. There is no one reason as to why you should engage a lawyer to assist.

Each of our lawyers are experienced with the specific requirements of surrendering a defendant to the court, ranging from a defendant missing a court date due to illness to something at the more extreme of a defendant remaining outside of Queensland for 20 years.

If I get a lawyer to surrender me to the court, do I have to use them for my matter?

The short answer is no. If you wish to handle your matter on your own then you are under no obligation to have the lawyer that helps with the surrender continue to work on your matter. If this is the case, it is best to tell them upfront so that they can ensure that they do not remain on record for the matter. You may even ultimately decide to retain their services for the duration of the matters as a result of your experiences with them.

Can I surrender and just deal with the charge that caused the warrant straight away?

The short answer is generally yes however it very much depends on the charge. If the charge is something like drink driving then you may try and deal with the charge straight away after surrendering however if you are after a work licence than you must not deal with the charge straight away. If the charge is more serious then you should not (and may legally be unable) to deal with the charge after the surrender.

You would need legal advice on whether you can deal with the charge straight away. Certainly if possible and if your best interests dealing with the charge might be the most efficient way but always get legal advice on this first as the wrong move can have significant consequences.

Conclusion

This article is by no means a comprehensive outline on how to surrender to the court and should be read in conjunction with our article on arrest warrants.

The key takeaway from this article is simple – do not wait to be arrested take positive action before that occurs

What courts do you cover?

We cover all courts in South East Queensland from Coolangatta to Hervey Bay and out to Toowoomba.

We are also a criminal law firm, we don’t do any other type of law so we are in the courts every day helping people with charges like this.

Just some of the courts we appear in to surrender are;

Beaudesert Magistrates Court

Beenleigh Magistrates Court

Brisbane Magistrates Court

Caloundra Magistrates Court

Caboolture Magistrates Court

Cleveland Magistrates Court

Coolangatta Magistrates Court

Gatton Magistrates Court

Gympie Magistrates Court

Holland Park Magistrates Court

Ipswich Magistrates Court

Maroochydore Magistrates Court

Nambour Magistrates Court

Noosa Magistrates Court

Pine Rivers Magistrates Court

Richlands Magistrates Court

Redcliffe Magistrates Court

Sandgate Magistrates Court

Southport Magistrates Court

Toowoomba Magistrates Court

Wynnum Magistrates Court

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 ourcontact formand 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 of 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 and a fixed price for your services, if you want to engage us then great, if not then you at least have more information. 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.  

If you are in Fortitude Valley or the Surfers Paradise safe night in the near future, you will undoubtedly see members of the Queensland Police Service with a metal detector scanning people on the street.

Is this legal? Do police have a search warrant? What happens if I don’t wish to comply?

These are all good questions. This new power has come about as a result of a recent amendment to the Police Powers and Responsibilities Act, known as ‘Jack’s Law’. Jack’s Law is aimed at fighting knife crime in safe night precincts and at public transport stations (such as train stations).

A senior police office may authorise the deployment and use of a handheld scanner (or wand) in a designated safe night precinct or public transport station if a series of criteria regarding weapons offences have occurred in that area. In such event, a notice must be published about the use of the handheld scanners within the area – however it may be unlikely that the vast majority of the public actually see the notice.

Why might I be searched?

Anybody in one of the above nominated areas where a hand held scanning notice has been published may be stopped and required to submit to wanding. NOTE While the police have the authority to wand a person, this does not authorise police to conduct a search without a warrant beyond the exercise of this power.

If the police decide to wand you, they must exercise their power in the least invasive manner possible and if practicable ensure that the search is conducted by a member of the same sex as the person being searched. Police have the power to detain a person for as long as reasonably necessary to complete the wanding and the police officer must:

1. if requested by the person, inform the person of the police officer’s name, rank and station; and
2. if requested by the person, provide the information mentioned in paragraph (a) in writing; and
3. produce the police officer’s identity card for inspection by the person unless the police officer is in uniform; and
4. inform the person that the person is required to allow the officer to use a hand held scanner to determine whether the person is carrying a knife or other weapon; and
5. offer to give the person a hand held scanner information notice and, if the person accepts the offer, give the notice to the person.

If metal is detected by the officer, you may be required to produce the item which has set off the scanner (such as keys, phone, belt buckle ect) and resubmit to be wanded again. Much like going through the metal detectors at a domestic or international airport.

It is an offence to not comply with the direction of police without a reasonable excuse. If, without a reasonable excuse you do not submit to the wanding police may charge you with Obstruct/Assault Police or more likely Contravene direction or requirement of a police officer. At the time of writing, there is limited guidance surrounding what offence someone will be charged with.

If police located a knife or weapon (such as screwdriver ect), you will likely be charged under the Weapons Act with possess knife in a public place or a like offence.

The above is a general outline about a recent change in law. If you have been charged with an offence for failing to submit to being wanded or with possessing a knife feel free to contact our office for an obligation free consultation.

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;

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

2. Visit our website at www.claritylaw.com.au

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

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The Commonwealth Criminal Code Act 1995, section 474, creates a number of offences connected with the illegal use of phones and computers. This can range from attempting to defraud someone using a phone or computer, to intercepting phones (wiretaps), to tampering with phone identifiers, to name some.

What this article is specifically concerned with is the most prosecuted offence under the section:

Using a carriage service to menace, harass or cause offence.

Elements of the offence

The text of the offence is:

 (1)  A person commits an offence if:

                     (a)  the person uses a carriage service; and

                     (b)  the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

The burden of proof is always with the police and prosecutors. What they must prove for this offence is:

A person used a carriage service

And

A ‘reasonable person’ would regard it as being menacing, harassing, or offensive

And

The person (using the carriage service) was at least aware of a substantial risk that a reasonable person would regard her conduct as menacing, harassing or offensive.

A ‘carriage service’ is defined as ‘… a service for carrying communications by means of guided and/or unguided electromagnetic energy.’ In other words, mobile communication devices or computers. Additionally, the following acts constitute a use of a carriage service: “making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the Internet.”

The word ‘uses’ should be attributed its ordinary meaning. If data was transferred from a defendant to another person, we can assume the defendant was ‘using’ a mobile phone or computer to enable that transmission.

A ‘reasonable person’ is a hypothetical person, but in reality, it requires a magistrate to assess what such a person who consider to be menacing, harassing, or offensive. One judge stated this to be “the need to view the circumstances of allegedly offensive conduct through objective eyes and to put to one side subjective reactions which may be related to specific individual attitudes or sensitivities.”

So far as the meaning of the words ‘menace’, ‘harass’ or ‘offence’, legally, “[t]he words ‘menacing’ and ‘harassing’ imply a serious potential effect upon a [recipient], one which causes apprehension, if not a fear, for that person's safety.”

Putting the above in layman’s terms, this offence is concerned with a person using a mobile phone or computer to transmit information that a reasonable person would find menacing, harassing or offensive. The information transmitted can be spoken words, as in a phone call, written words, as in a text message, or the sending of a static or moving image, as in photos or videos.

There is, additionally, an ‘aggravated’ version of the offence, which incorporates what is written above, but with the addition of ‘private sexual material’. For example, a woman using per phone to transmit ‘nudes’ of her ex-boyfriend to the internet without his consent.

Penalties

The offence in its ‘simpliciter’ form has a maximum penalty of 5 years imprisonment.

The offence when it is ‘aggravated’ has a maximum penalty of 6 years.

In practise, these offences, save for those that are exceptionally serious, are penalised by way of a fine or the equivalent of a probation order.

Some examples of Menacing, Harassing or Offensive

In one case, a defendant phoned the employee of a TAFE and said she was going to attend the TAFE with a shotgun and start shooting, and would ‘shove the shotgun up [his] arse’ and pull the trigger. This was deemed to be menacing by a magistrate.

In a different case, after a woman lost a case in the federal court, she proceeded to repeatedly call staff of judges of that court 189 times in an 18-hour window. This was deemed to be harassing.

Another defendant sent emails and Facebook messages to his former solicitor, threatening to sue him, and personally confront him, as said he would ‘hunt you down’. This was after the solicitor [unsurprisingly] found it impossible to work with the defendant, and withdrew from acting for him.

Defences

One defence is the police were simply mistaken about who transmitted menacing, harassing or offensive data. That is, they charged the wrong person.

Another is the prosecution cannot prove that the defendant sincerely did not intend for the communications to be harassing, menacing or offensive.

Conclusion

That is an overview for this offence. As can be seen, this offence can be a little technical, and we recommend seeking expert legal advice if you are charged with such an offence.

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