Clarity Law

In an era where public safety is paramount, the law takes a severe stance against actions that threaten communal well-being. Among these, the offence of making a bomb hoax is treated with particular severity. Under section 321A of the Queensland Criminal Code, the act of misleading others into believing that a dangerous or destructive substance is present, constitutes a serious crime.

This blog post aims to dissect the legal framework surrounding bomb hoaxes in Queensland, offering insights into its consequences and highlighting a pivotal case to underscore the judiciary's approach to such offences.

The Law

Section 321A of the Criminal Code articulates the offence of bomb hoaxes, outlining the necessary elements that constitute this crime. The law is clear: anyone who falsely claims or suggests that an explosive or harmful substance has been placed in a location within Queensland commits a criminal offence. The legislative intent is to deter individuals from inducing panic or fear through misinformation, a goal that aligns with broader societal aims of ensuring public safety and order.

The statute mandates a maximum penalty of five years imprisonment for those found guilty of stating that a bomb exists while someone who sends or places an article or substance designed to make people think it is a bomb faces a maximum 7 years in prison.

Legal Requirements for Conviction

There are two separate charges under the act;

• People who send or place a substance designed to look or act like a bomb (section 321A(1))
• People who just say that a bomb is in a particular location (section 321A(2))

Lets look at each charge.

Sending or placing a fake bomb

The law states it is an offence nny person who—

(a) places an article or substance in any place; or

(b) sends an article or substance in any way;

with the intention of inducing in another person a belief that the article or substance is likely to explode, ignite, or discharge a dangerous or noxious substance, commits a crime.

The maximum penalty is 7 years in prison.

To be found guilty of the offence the prosecution would need to prove that:

• The defendant placed or sent the article (or substance) in the place; and

• The defendant intended to induce in another person a belief that the article (or substance) was likely to explode (or ignite or discharge a dangerous or noxious substance)

It is not necessary that the prosecution prove that some particular person was intended to be induced to the belief. It is sufficient that the defendant intended any other person or persons to be induced to that belief.

It is immaterial that the article (or substance) was not in fact likely to explode (or ignite or discharge a dangerous or noxious substance).

Saying there is a bomb

For a conviction under section 321A(2), the prosecution must satisfy three critical criteria beyond reasonable doubt:

1. The Act of Making a False Statement: It must be proven that the defendant intentionally conveyed false information or made a statement to another individual.

2. Knowledge of Falsity: The individual accused of the hoax must have known, or believed, the information or statement to be false at the time of communication.

3. Intent to Induce Belief in the Threat: There must be a clear intention behind the defendant's actions to make another person believe that an explosive, noxious substance, or other dangerous items are present in a place within Queensland.

It is noteworthy that the perpetrator's location during the commission of the offence is irrelevant under the statute, placing emphasis on the conveyed threat's impact rather than the defendant's physical presence.

The maximum penalty for this offence is 5 years imprisonment.

A Notable Case:

The case of R v Tobin [2008] QCA 54 involved an appeal against a sentence in the Supreme Court of Queensland - Court of Appeal. The appellant, Martin Francis Anthony Tobin, was convicted on his pleas of guilty to two counts of bomb threats. Initially, he was sentenced to six months imprisonment, wholly suspended for two years. However, the sentence was appealed on the grounds that it was manifestly excessive considering the circumstances, including significant mitigating factors and the fact that the bomb threat was not taken seriously.

The appeal was allowed, and the Court ordered that no conviction be recorded. Instead, Tobin was sentenced to probation for six months with conditions, including compliance with anger management and alcohol management as directed by an authorized Corrective Services Officer. 

Which Courts hears the charge?

While the matter starts in the Magistrates court it must be finalised in the District Court.

Are there any defences to a bomb hoax charge?

Possible defences include;

• It was not the defendant who made the false statement about the bomb or planted the article pretending to be a bomb or the police cant prove it was

• The defendant did not intend anyone to believe there was a bomb

• Mistake of fact

Childrens Court

Children (those under 18 years old) are often charged with this offence especially when it involves a bomb hoax at a school.

Children are treated differently than adults and go through the children’s court and not the adult courts.

The charge is however treated very seriously by the children’s court.

Conclusion

If you are charged with making bomb hoax it is critical that you get legal advice BEFORE talking to the police.  Never ever talk to police without first getting legal advice.

A key component of the charge is the intention to make people believe a bomb exists and if you say the wrong thing to the police this may be easy to prove.

Engaging Clarity Law to act for you

Engaging us gives you the best chance at trying to avoid serving time in prison.   We are one of the leading criminal law firms in South East Queensland.  Just some of the benefits of us acting for you include:

1. we know the judges and what they want to hear to give you the best outcome

2. we have good relationships with the prosecutors meaning we can often have them not seek an actual prison sentence

3. we are there to help you through the process and make everything as stress free as possible

4. engaging us shows the court you are taking your charges seriously

5. you will be fully informed of what is to happen in court and what this means for you after court

6. unlike the police or the Judge, we are there to look after you, your privacy and your interests

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

If you want to engage us or just need further 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 255seven days a week, 7am to 7pm

3. Click here to select a time for us to have a free 15 minute telephone conference with you

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

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

In Queensland, 'Deprivation of Liberty' is a serious charge that encompasses unlawfully confining or detaining a person against their will. This offence is particularly sensitive because it infringes on the fundamental human right to freedom of movement. If you find yourself accused of this charge, it is crucial to understand what it entails legally and the consequences you may be facing.

The Origin of the Law

Deprivation of liberty offenses arise under various laws and statutes in Queensland, which are part of the larger framework of Australian criminal law that seeks to protect individuals from harm and protect their rights. This legal concept has evolved through case law, where past judgments have shaped the understanding and application of what amounts to deprivation of one's liberty.

The Law

Section 355 of the Criminal Code states that

355 Deprivation of liberty

Any person who unlawfully confines or detains another in any place against the other person’s will, or otherwise unlawfully deprives another of the other person’s personal liberty, is guilty of a misdemeanour, and is liable to imprisonment for 3 years

What does the Prosecution have to prove?

The prosecution must prove that:

1.      The defendant:

• confined or detained another in any place against the other person’s will; or
• otherwise deprived another of the other person’s personal liberty.

2.      The defendant did so unlawfully. That is, not authorised, justified or excused by law.

Definitions

Detain means keep in confinement or under restraint. Restraint can be exercised by threats. The defendant does not have to use force or physical restraints. If the defendant compels the person by threats to remain in a place against that person’s will, that is sufficient. Depriving of liberty simply means taking away the free choice of a person to move about as he or she wants.

Unlawfully Deprives includes the denial of enjoyment of something.

Personal Liberty is ‘the condition of being able to act in any desired way without restraint; power to do as one likes.’ Unlawfully deprives means taking away the free choice of a person to move about as he or she wants. A person may be deprived of their liberty not only against their will but also where the deprivation was achieved by fraud, done without knowledge or where the complainant lacks capacity.

Which Court hears the charge?

The matter is dealt with in the Magstrates court where the offence occurred.

Defences to the Charge

Every individual is entitled to a defence, and in the context of a deprivation of liberty charge, several defences may be applicable depending on the circumstances of the case. For example:

• Consent: If the person alleged to be deprived of their liberty consented to the restrictions, this could be a viable defence.

• Lawful Authority: Actions taken under lawful authority, such as those by police officers or under mental health laws, or parents lawfully dealing with their children may not constitute unlawful deprivation.

• Mistake: A genuine mistake about the legal status or entitlement to confine another person may at times be a defence.

However, it's important to note that every case is unique and the success of such defences depends greatly on the specific facts of your case.

Penalties

The maximum penalty is 3 years in prison.

The penalty for deprivation of liberty depends on a number of factors including

• The circumstances of why the offence occurred

• What exactly happened

• Was any violence threaten or used

• The defendants criminal history

• Whether the parties were in a domestic relationship

• How long the offending lasted

• Whether other charges like an assault charge or breach of a DVO is also bought.

While the maximum penalty would be rare In about 50% of cases before the courts a term of imprisonment is imposed but the court can in appropriate circumstances choose to suspended that or release a person on probation without them serving any actual time in prison.

If the offence involved people in a domestic relationship the police or the courts may issue a domestic violence order or vary an existing one.

Case Example of the charge of Deprivation of Liberty Charge Queensland

In R v East the defendant was found guilty of deprivation of liberty when he locked 2 federal police officers in his businesses reception when they were there trying to serve official documents.

In R v Adams the defendant pleaded guilty of deprivation of liberty after he entered a liquor store and locked the automatic door trapping two staff members inside until the police arrived.

What if a Police Officer wants to talk to me?

Never talk to the police without getting legal advice first. Its rare you can explain a situation away and even if you are innocent or have a defence you can make the situation worse by talking to the police.

Read more with our article: Police Questioning and your Right to Silence

Legal Representation Matters

If you are facing a charge for deprivation of liberty, the importance of seeking experienced legal representation cannot be overstated. Legal professionals specializing in criminal law, such as Clarity Law, possess the expertise necessary to provide valuable guidance and build a robust strategy, tailored to the specifics of your case.

For anyone charged with or accused of deprivation of liberty in Queensland, remember that this article serves merely to inform and should not be taken as legal advice. Every situation is unique and demands the personalized attention of a professional. If you require assistance or more information, it is recommended that you contact a legal practitioner who can provide specific guidance related to your case, what the law is, how the offence is dealt with in the Magistrates Court and whether you will have any defences to the offence or if negotiations with the prosecutor is possible.

For immediate assistance, you can reach out to Clarity Law at 1300 952 255 for support from a team of dedicated lawyers who pride themselves on ensuring that good people make it through tough times.

Engaging Clarity Law to act for you

Engaging us gives you the best chance at trying to avoid serving time in prison.   We are one of the leading criminal law firms in South East Queensland.  Just some of the benefits of us acting for you include:

1. we know the judges and what they want to hear to give you the best outcome

2. we have good relationships with the prosecutors meaning we can often have them not seek an actual prison sentence

3. we are there to help you through the process and make everything as stress free as possible

4. engaging us shows the court you are taking your charges seriously

5. you will be fully informed of what is to happen in court and what this means for you after court

6. unlike the police or the Judge, we are there to look after you, your privacy and your interests

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

If you want to engage us or just need further 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 255seven days a week, 7am to 7pm

3. Click hereto select a time for us to have a free 15 minute telephone conference with you

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

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

Facing a criminal charge in Queensland can be a daunting experience, but presenting yourself in court with appropriate attire can help convey respect for the legal process and possibly influence the perception of the judge and jury. While there's no strict dress code outlined in Queensland law, dressing conservatively and professionally is generally advisable. Here's a comprehensive guide on what to wear to court when you're facing a criminal charge in Queensland.

Understanding the Importance of Dressing Appropriately

First impressions matter, especially in a courtroom setting where judgments can be swift and influenced by various factors. Knowing what to wear to court can potentially impact how you're perceived by the judge, jury, and other courtroom personnel. Dressing appropriately demonstrates respect for the legal proceedings and can reflect positively on your character and attitude towards the charges you're facing.

General Guidelines for Courtroom Attire

When selecting your attire for a court appearance, it's crucial to opt for clothing that is conservative, neat, professional but comfortable. Here are some general guidelines to follow:

1. Business Attire: Aim for clothing typically worn in professional settings, such, dress shirts, and trousers/skirts. Solid colours or subtle patterns are preferable over flashy or loud designs.       You don’t necessarily need to wea a suit but if you are comfortable in a suit that would be the most appropriate thing to wear. Aim to wear no less than what you would wear to a job interview.

2. Neat and Clean: Ensure your clothing is clean, ironed, and free of wrinkles or stains. Pay attention to small details like loose threads or missing buttons, as they can detract from your overall presentation.

3. Comfortable Yet Respectful: While comfort is important, avoid overly casual clothing like t-shirts, jeans, shorts, or sneakers. Opt for closed-toe shoes and avoid excessive jewellery or accessories.

4. Cover Tattoos and Piercings: If you have visible tattoos or piercings, consider covering them if possible, as they may distract or prejudice certain individuals in the courtroom.

5. Hair and Personal Grooming: Maintain a well-groomed appearance with neatly trimmed hair and facial hair. Avoid extreme hairstyles or colours that may be deemed inappropriate for a formal setting.

6. Minimal Fragrance: Refrain from wearing strong perfumes or colognes, as they can be distracting or trigger allergies for others in the courtroom.

Specific Considerations for Defendants

As a defendant facing criminal charges, your attire should convey sincerity, humility, and respect for the judicial process. The courts are conservative places.  Here are additional tips tailored specifically for defendants:

1. Avoid Clothing Associated with Crime: Steer clear of attire commonly associated with stereotypes or criminal imagery, such as hoodies, baggy pants, or clothing with offensive slogans or graphics.

2. Blend In, Don't Stand Out: Aim to blend in with the general demeanour of the courtroom rather than drawing undue attention to yourself through your clothing choices. The focus should be on your case, not your attire.

3. Shirts Should have Collars: But surf wear, even with collars is never acceptable.

4. Flip Flops are a Major NO NO: Anything that you would wear to the beach should never be worn in court.  This means no hats or sunglasses.

5. Consult with your Lawyer: If unsure about what to wear, consult with your lawyer for guidance. They can provide valuable insights based on their knowledge of courtroom etiquette and the specific circumstances of your case.

Remember lots of defendants will not dress appropriately. Aim to be one that does and show you are taking your charges seriously, the Judges and Magistrates appreciate the effort you would have put in to dress appropriately for court.  Avoid being this person.

Conclusion

In Queensland, as in other jurisdictions in Australia, dressing appropriately for court is an essential aspect of presenting yourself in the best possible light during legal proceedings. By adhering to the principles of professionalism, conservatism, and respect, defendants can enhance their credibility and demonstrate their commitment to the judicial process. While clothing alone won't determine the outcome of your case, it can contribute to a favourable impression and convey a sense of responsibility and seriousness regarding the charges you're facing.

Some of the Areas of Law we can Assist People in

• Drink Driving
• Drug Driving
• Unlicensed Driving
• Careless Driving
• Dangerous Driving
• Disqualified Driving
• Hooning
• Driving 40 kmh over speed limit
• Work Licences
• Hardship Licences
• Evading Police
• Drugs Charge
• Assault Charges
• Fraud Charges
• Obstruct or Assault Police
• Stealing
• Driving Offences
• Centrelink fraud
• Breach Domestic Violence Order
• Wilful Damage
• Unlawful Stalking
• Appeals
• Trespass
• Bail
• Work Health Offences

Facing criminal charges can be a stressful and overwhelming experience. One crucial aspect of navigating the legal process is keeping track of your court dates. In Queensland staying informed about when you are required to appear in court for a criminal or traffic matter is essential.

This article will guide you through the steps to check the date of your criminal court appearance in Queensland.

How do I find out my court date?

Bail Documents

If you have been granted bail in court or by the police then the bail document will contain the next court date.

Notice to appear

If the police issue you with a notice to appear in court then that document will have listed your first mention date in court.

QP9

The court brief or more commonly called the QP9 contains on the first page the date of the first mention date in court for the charges.

Online lookup

The easiest way to find your court date is to use the criminal case lookup portal run by the courts. This has information on all criminal and traffic offences listed in the Magistrate, District and Supreme courts in Queensland. It also covers special hardship and work licence applications.

To access the criminal case lookup you need your first and last name as well as your date of birth.

Click here to access the Criminal Case Lookup

Contact the court

You can contact the court registry for the court you are appearing in by clicking on the court contact list.

Speak to your lawyer

If you have engaged a Criminal Lawyer or Traffic Lawyer who has already been to court on the matter they will know your next court date. This is most common when your lawyer was permitted to attend on your behalf so you would not have been in court to hear the new court date.

What happens if I miss my court date?

If you miss a court date in Queensland, there's likely a warrant for your arrest. You can contact the court to check for a warrant and surrender yourself for a better outcome.

Surrendering promptly is advised to avoid arrest. The surrender process involves appearing at the court registry, explaining reasons for missing the date, and stating your intentions (guilty plea, legal advice, or challenging the offence).

You can surrender at any court, not necessarily the one issuing the warrant, as per the Police Powers and Responsibilities Act 2000.

Getting a lawyer for surrender is recommended, especially for serious offences or if you lack confidence. Hiring a lawyer for surrender doesn't obligate you to retain them for the entire case. Dealing with the charge causing the warrant immediately depends on the offence; legal advice is crucial. The key message is clear: take proactive steps and surrender before waiting to be arrested.

Learn More: We have a whole article on What do I do when you have missed your court date!

I’m sick and won’t be able to attend court, what should I do?

Contact the court and explain the situation. Depending on the circumstances the court may require you to provide a medical certificate or appear by phone. Different courts will have different approaches to people who are sick on their court date, so what occurs in one court may not occur in another.

I’m running late for court what can I do?

Ring the courthouse you are going to and explain the situation. Don’t just hope everything will be fine.

I have a court date coming up but my lawyer told me I don’t need to attend

If you have legal representation, your lawyer should keep you informed about upcoming court dates. In many cases where bail has been granted a lawyer can appear on your behalf without you needing to attend the court.

Useful links

Criminal Case Lookup

Queensland courts contact details

Queensland has instituted various laws to protect individuals' rights and privacy. Section 227A of the Criminal Code addresses the serious offence of making observations or recordings in breach of privacy. This provision aims to safeguard individuals from invasive and unwarranted surveillance, reinforcing the importance of privacy in the digital age.

Understanding Section 227A

Section 227A - Observations or Recordings in Breach of Privacy specifically targets the act of making observations or recordings without consent, infringing upon an individual's right to privacy. The provision encompasses a range of activities, including but not limited to, photographing, filming, or recording someone without their knowledge or consent in situations where they have a reasonable expectation of privacy.

What does the Law say?

Section 227A(1) sest out that:

A person who observes or visually records another person, in circumstances where a reasonable adult would expect to be afforded privacy—

(a) without the other person’s consent; and

(b) when the other person—

(i) is in a private place; or

(ii) is engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act;

commits a misdemeanour.

In addition a separate offence is set out in section 227A(2)

A person who observes or visually records another person’s genital or anal region, in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region—

(a) without the other person’s consent; and

(b) when the observation or visual recording is made for the purpose of observing or visually recording the other person’s genital or anal region;

commits a misdemeanour.

Elements of the Offence

For a charge under Section 227A to be established, several key elements must be satisfied:

1. Observations or Recordings:

   • The accused must have engaged in the act of making observations or recordings. This can involve visual surveillance, such as taking photographs, as well as audio recordings without the subject's consent.

   • “Observe” is defined as observe by any means.

   • “Visually record a person” means record by any means, moving or still images of the person or part of the subject.

2. Lack of Consent:

   • The observations or recordings must have occurred without the explicit consent of the individual being observed or recorded. Consent is a critical factor in determining the legality of such actions.

   • Consent” must be freely and voluntarily given by a person with the cognitive capacity to give the consent.

3. Reasonable Expectation of Privacy:

   • The person being observed or recorded must have had a reasonable expectation of privacy in the given circumstances. For instance, activities within private spaces like homes, backyards or washrooms typically carry a higher expectation of privacy than public spaces.

   • It comes down to the test of whether a “reasonable adult” could expect to be afforded privacy in all the circumstances.

   • Where the charge is not related to filming the genital or anal region but just that they filmed the other person then that other person must be in either a private place or engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act.

Examples

Example 1: Beach

Generally, a person at the beach does not expect a high degree of privacy. So a person who films the beach scene as a whole wouldn’t breach the law. However if someone were to specifically film a persons genital or anal region this could be considered a breach of section 227A(2) as this offence does not require the subject to be in a private place.

Example 2: Backyard

Generally, a person in their backyard expects a high degree of privacy. The degree of privacy might be influenced by how many neighbours they have and where the neighbours houses are located. There is however likely not many examples where a person could be filmed in their backyard and this not considered a breach of the law against observations or recordings in breach of privacy.

Example 3: Home

Generally a person in their house expects the very highest degree of privacy. Any filming of someone in their house would breach the law against observations or recordings in breach of privacy.

Which Court will hear the Charge?

The charge of observations or recordings in breach of privacy will be heard in the Magistrates court closet to where the offence occurred.

Penalties

A breach of Section 227A is considered a misdemeanour criminal offence in Queensland. It carries a maximum penalty of up to 3 years in prison.

The severity of the penalties may depend on factors such as

• the nature of the breach

• the extent of the invasion of privacy

• the intention of the accused in doing the filming

• any potential harm caused to the victim

• the age of the victim

• the length of time or the number of times the recording occurred

• the defendants criminal history

• how sophisticated the filming setup was

In most cases a prison sentence will be imposed however the defendant may not have to serve time in prison if the sentence is wholly suspended or if an immediate parole release date is set.

Legal Defences

Defendants charged under Section 227A may explore various legal defences, including but not limited to:

1. Lack of Intent:

   • Demonstrating that the observations or recordings were unintentional or accidental may serve as a defence. Proving a lack of malicious intent can be crucial in such cases.

2. Consent:

   • If the accused can establish that they had obtained valid consent from the individual being observed or recorded, it could serve as a defence against the charges.

3. Public Domain:

   • Arguing that the observations or recordings occurred in a public space where individuals generally have a diminished expectation of privacy may be a viable defence strategy. The law requires that the recordings where done in the situation that that person would expect to be afforded privacy.

   • If the charge was under section 227(1) then proving the filmed person was not a private place or engaging in a private act and the recording was not made for the purpose of observing a private act could be a defence.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the filing was excused by law or that there was a valid reason for the filming.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is most likely. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty then a conviction must be recorded.

 Learn more about the difference between a conviction and non-conviction

The police want to talk to me about a observations or recordings in breach of privacy charge

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice.

Learn more about your right to silence.

I’m not guilty of observations or recordings in breach of privacy

Still don’t talk to the police. A lawyer would require the prosecutor to give them all their evidence and statements. This is known as the full brief of evidence. Once the brief was received then negotiations with the prosecutor to drop the charge can occur.

Learn more about what to do if accused of a crime you didn’t commit.

• I didn’t do it! What to do if Accused of a Crime you didn’t Commit

• Visit our main criminal law website

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

If you want to engage us or just need further 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 255seven days a week, 7am to 7pm

3. Click here to select a time for us to have a free 15 minute telephone conference with you

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

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

Conclusion

Section 227A of the Queensland Criminal Code - Observations or Recordings in Breach of Privacy serves as a crucial safeguard for privacy rights in the digital age. Understanding the elements of this offence and potential legal defences is essential for those navigating the complexities of criminal law in Queensland. As technology continues to advance, the legal system must adapt to ensure that individuals' right to privacy is upheld and protected.

We will be closed for the Christmas break from 12pm on 22 December until 8:30am on 8 January 2024.

Over the Christmas break you can leave a telephone message and from 2 January, until we reopen, we will be checking the messages and responding once per day.  We do have availability to represent clients in January.

Alternatively if you would like to book a free telephone conference for when we fully reopen on 8 January you can click this link www.calendly.com/clarity_law

We'd like to thank everyone who supported the firm this year and wish everyone a safe and happy festive season.

Arson is a serious criminal offence in Queensland, carrying significant penalties. If someone is charged or accused of arson in Queensland it’s crucial to comprehend the law around arson charges, the elements of the offence, and the potential consequences for offenders. In this article, we delve into the specifics of arson law in Queensland, providing essential information for those facing this charge.

What constitutes arson?

Arson involves the wilful and unlawful act of setting fire to various types of property. These include:

• A building or structure

• A motor vehicle, train, aircraft, or vessel

• Stacks of cultivated vegetable produce or mineral/vegetable fuel

Examples of arson scenarios:

• Setting fire to a house

• Setting fire to a car

• Setting fire to a door to a unit

• Setting fire to a chair in a house

• Setting fire to a business to collect on the insurance

• Setting fire to a boat

What does the law say?

Section 461 of the Criminal Code sets out the charge of arson as:

(1) Any person who wilfully and unlawfully sets fire to any of the things following, that is to say—

(a) a building or structure;

(b) a motor vehicle, train, aircraft or vessel;

(c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel;

(d) a mine, or the workings, fittings, or appliances of a mine;

is guilty of a crime, and is liable to imprisonment for life.

(2) It is immaterial whether or not a thing mentioned in subsection (1) (a) or (b) is complete.

Elements of the offence

To secure a conviction for arson, the prosecution must prove:

1. The accused set fire to the property; and

2. The act was wilful; and

3. The defendant did so unlawfully.

Looks look at those elements in more detail.

The accused set fire to the property

There must be some actual damage caused by the fire. It is not enough that the accused was going to set fire to the property, a fire must have started.

It is however not required that the whole property is destroyed, merely that some component of the property is damaged by fire. It is also not a requirement that the property was complete, it is still an offence if say the property was a house and it was only half completed.

The act was wilful

The act of setting fire to the property must be intentional or acting with indifference to the likelihood of a foreseen result occurring. In R v Lockwood; ex parte Attorney-General the court specifically found that that the word “wilfully” applies to an accused person who deliberately did an act (that is, that it was a willed act) aware at the time he did it, that the result, i.e. a fire was, the likely consequence of his act and that he recklessly did the act regardless of the risk.

If at the time of the arson the accused was intoxicated this may, depending on the level of the intoxication, mean the accused could not have formed the necessary intent to damage the property.

The defendant did so unlawfully

It is immaterial whether the person had lawful possession of the property at the time of the arson or indeed owned or part owned the property.

If an accused has a valid defence then the offence cannot be unlawfully.

Defences to arson

Defences against arson charges may include:

• Lack of intent

• Lawful reasons for setting fire

• No actual property damage

• Accident

• Intoxication

• Mistake

• Identification

• Necessity

Which court hears the matter?

The matter will start in the Magistrates Court closet to where the alleged arson occurred. The charge is however too serious for the Magistrates Court to determine and will therefore ultimately be finalised in the District Court.

Penalties and sentencing for arson

Arson carries a maximum penalty of imprisonment for life. The most likely penalty will be a term of imprisonment between 19 and 48 months.

However the penalty depends on a number of factors including;

• The sentencing principles in the Penalties and Sentences Act;

• Relevant case law (previously decided cases);

• the maximum penalty of the offence;

• the penalty submissions made by the prosecution;

• the penalties submissions made by the defence;

• the personal circumstances of the defendant;

• the circumstances of the offence;

• any victim impact statement;

• the impact the offence had on an individual or the public generally;

• how much planning went in the arson offence

• the value of the property destroyed by the fire

• If any person was injured by the fire

• any time in custody the defendant has already served before the sentence and;

• the criminal history of the defendant.

Don’t try and guess what a penalty may be or rely on google searches, contact an expert criminal lawyer who can properly advise you on a potential sentence and if any defences exist.

See out article on How Does the Court Set a Prison Sentence?

See also the Queensland Sentencing Advisory Council for details of the sentences for arson that have been imposed in the past.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the element of the charge aren’t made out or the defendant has a defence and therefore the charge should be withdrawn.

We once acted for a client charged with arson. He was found near a burning car with clothes the police described as smelling strongly of smoke. We were able to have the charge withdrawn as we argued they did not have enough evidence to convince a jury that it was our client who committed the arson.

Will I get a criminal conviction if I plead guilty to the charge?

The answer in almost all cases will be yes.

Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty, as it almost always is for arson charges, then a conviction must be recorded.

The police want to talk to me about an arson charge

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice before talking to police and if you can’t get that legal advice don’t talk to the police.

Learn more about your right to silence.

FAQ

Q: Can an accidental fire be considered arson?

A: No, arson requires wilful and unlawful intent. Accidental fires do not fall under this category.

Q: What if the accused was mentally impaired?

A: If the accused lacked the capacity to understand their actions due to mental impairment, it may be a valid defence.

Q: Is arson treated differently for juveniles?

A: Yes, age-related factors play a role. Juveniles (under 18) will have different legal considerations and a different sentences law.

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

If you want to engage us or just need further 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. Click here to select a time for us to have a free 15 minute telephone conference with you

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

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

In the complex realm of criminal law, the charge of unlawful wounding in Queensland carries serious implications. Understanding the nuances of this offence is crucial for individuals facing such allegations. This article provides a comprehensive guide to Queensland's unlawful wounding charge, covering key elements, defences and the role of criminal defence lawyers.

What does the law say?

Section 323 of the Criminal Code sets out the law in regarding to unlawful wounding.

Its states that;

             A person who unlawfully wounds anyone else commits a misdemeanour

What does the Prosecution need to prove?

In order to make out a charge of unlawful wounding the prosecutor must prove;

1. That the defendant wounded the complainant

2. That the wounding was unlawful. A wounding is unlawful unless it is authorised or justified or excused by law

In order to constitute a wound the “true skin” must be broken and penetrated, not merely the cuticle or outer skin.

Does a weapon need to be used?

No, also long as the skin (not the outer skin) is broken and penetrated then it does not matter if a weapon was used or not.

We often see this offences occur where someone is ”glassed” i.e. hit with a bottle or glass and that causes the wound. Glassing is often the action that lead most first time offenders to be charged with unlawful wounding.

What is the penalty for wounding?

The maximum penalty is 7 years imprisonment. In addition if the defendant was in a public place and intoxicated then community service must also be imposed.

How does the court decide a penalty?

The court has a wide discretion to decide on a penalty and how much importance to give to mitigating factor in each case. The court will likely consider factors, such as:

• the maximum penalty prescribed for that offence

• the nature and seriousness of the harm done

• the previous convictions of the offender

• the offender's age, character and intellectual capacity

• the prevalence of the offence

• any other relevant circumstances

Once the court looks at the main factors in determining a sentence they will look at the mitigating factors of the defendant. Mitigating factors are any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence

• Early guilty plea: This is one of the most significant mitigating factors, as it can result in a discount of up to 33% on the sentence . It also demonstrates remorse and cooperation with the justice system as well as an acceptance of responsibility for the offence

• No criminal history: This can show that the offender is of good character and that their offending was out of character or an isolated incident. It can also indicate a low risk of reoffending

• Significant physical or mental health issues or low intellectual capacity: These factors can affect the offender's culpability, meaning their level of blame or responsibility for their actions.

• Rehabilitation efforts after the offence: These can include things like attending counselling, completing courses, seeking treatment, paying compensation or apologising to the victim. They can show that the offender is genuinely remorseful and willing to address their underlying issues or problems that led to their offending

• Providing the court with character references

Important information on our blog that explains more on how a court decides a penalty.

How Does the Court Set a Prison Sentence?

Mitigation: How the court sets a sentence in Queensland

Will I go to jail for a unlawful wounding charge?

That’s impossible to answer without all the information circumstances known.

What we can say is that the Court of Appeal (our highest court) has made it clear that wounding charges, even from a first time offenders, would ordinarily require the court to sentence them to actual time in prison.

It all depends on the facts of a particular charge. The court might in the right circumstances wholly suspended a sentence or impose probation or immediate parole release all of which means no time is served in prison for the wounding charge.

Which court hears the wounding charge?

While the charge will start in the Magistrates court it must be ultimately determined in the District Court.

Are there defences to unlawful wounding?

The most likely defence someone would use to a wounding charge is self defence. In its most straight-forward formulation, self defence means protecting ourselves (or someone else) from violence, or anticipated violence. Self-defence is only available as a legal defence if the force used is “reasonable to repel the attack”

Once a defence is raised then the prosecutor has the burden to disprove the defence. Learn more about Self-Defence and the use of force: Your rights in Queensland

As unlawful wounding is a not an assault charge therefore the defence of provocation is not available.

Another defence might be what is known as an identification defence. While not a true defence in essence it means the prosecutor can’t provide beyond a reasonable doubt that it was definitely the defendant that caused the wound. For example there might have been a brawl involving lots of people and anyone could have caused the wound. Another example might be a glassing in a dark nightclub where it if difficult to positively identify the offender.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the wounding was excused by law or the medical evidence does not meet the standard for a wounding charge and therefore the charge should be withdrawn.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge. Note however if imprisonment is part of the penalty then a conviction must be recorded.

The police want to talk to me about a wounding charge

Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.

The police are not on your side, get immediate legal advice.

Learn more about your right to silence.

I’m not guilty of the wounding

Still don’t talk to the police. A lawyer would require the prosecutor to give them all their evidence and statements. This is known as the full brief of evidence. Once the brief was received then negotiations with the prosecutor to drop the charge can occur.

Learn more about what to do if accused of a crime you didn’t commit.

• I didn’t do it! What to do if Accused of a Crime you didn’t Commit

• Visit our main criminal law website

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

If you want to engage us or just need further 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. Click here to select a time for us to have a free 15 minute telephone conference with you

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

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

Queensland law provides that it is illegal to strike, harm or otherwise cause pain to another person. A person doing this would be guilty of an assault.

This would seem to make it illegal for a parent or guardian in Queensland to smack a child.

However the situation is not that simple as the law provides a defence or exemption for certain people but only if the physical discipline used was reasonable in all the circumstances.

The Law

It is important to remember that there is no separate charge of unreasonably disciplining your child, if you are charged it will be for an assault and the type of assault charge will be determined by the injuries suffered by the child.

The definition of an assault is where a person strikes, touches, moves, or otherwise applies force of any kind to another person, directly or indirectly, without the other person’s consent or threatens to apply force of any kind to another provided that the person making the attempt or threat has the ability to carry it out. As you can see the definition of assault is wide enough that you can be charged with assault merely by threatening an assault. The law is contained in the Criminal Code (Qld).

Are there different types of assaults?

There are a number of different types of assault charges in Queensland but the most common are;

Common Assault

Common assault is the most frequent assault charge that the Queensland Court hear. Generally a person will be charged with common assault where the person assaulted has only minor injuries or no injuries at all. The maximum penalty is a term of imprisonment for 3 years and is dealt with in the Magistrates Court.

We have a dedicated common assault page

Assault occasioning bodily harm

An assault occasioning bodily harm occurs where the person assaulted has suffered injuries that fall within the definition of bodily harm. In Queensland “Bodily harm” means any injury which interferes with health or comfort. The maximum sentence for assault occasioning bodily harm is 7 years.

The matter is dealt with in either the Magistrates Court or the District Court. We have a dedicated assault occasioning bodily harm page.

Under the assault laws it would be illegal to smack your child no matter the circumstances. However Section 280 of the Criminal Code provides the following exemption to allow parents to physically discipline their children. The law provides that;

It is lawful for a parent or a person in the place of a parent, or for a schoolteacher or master, to use, by way of correction, discipline, management or control, towards a child or pupil, under the person’s care such force as is reasonable under the circumstances.

What are the key points of the defence or exemption on smacking children?

The key points for the exemption are as follows;

• It applies to parents or a person in the place of a parent (as well as schoolteacher)

• The force must be used for the correction, discipline, management or control, of a child

• The child must be under the persons care at the time

• The force must be reasonable in the circumstances

Let’s look in more detail at those keys elements.

A child – Means someone under 18 years of age.

Correction, discipline, management or control – These are the only allowed reasons to use physical force on a child. Smacking a child out of frustration or anger unless it is for correction, discipline, management or control is not allowed. Force can only be used when disciplining the child.

Reasonable force – The amount of force used must be reasonable in all the circumstances. There is no definition of reasonable in the legislation. It is also important to note that it is not up to the parent to show the force was reasonable it is up to the prosecutor to show the force was unreasonable in all the circumstances. How is reasonable force judged? That would be up to the jury or magistrate to decide based on the common definition of “reasonable” but some factors might include;

• What level of force was used?

• What non physical discipline was used first before physical force was needed?

• Did the force result in injuries?

• What was child was doing that needed physical force to be used to discipline them?

• How old is the child?

What defences might I have if charged with assault because I smacked my child?

The defences would be the same as any assault charge plus that the force used was reasonable in all the circumstances.

What if my “child” is over 18 years old?

If you use physical force on your “child” when they are over 18 then the exemption does not apply and you could be charged with assault.

Which Court would hear the charge?

It all depends on the type of assault charge you are charged with. If it is common assault then the Magistrates court will hear the charge. If it is ror assault occasioning bodily harm then you can choose the Magistrates or District Court to hear the charge. If it is a charge of grievous bodily harm then the District Court will hear the charge.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the force was reasonable and therefore the charge should be withdrawn.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to this charge.

Never give an interview to police without first getting legal advice.

Learn more about your right to silence.

What should I do if the police want to talk to me or charge me with smacking my child?

You need immediate legal advice from an experienced criminal defence lawyer. Saying the wrong thing to the police can assure you will be convicted of the offence or receive a more serious penalty. There are things you can do to protect your interests and rights or minimise the penalty if you plead guilty, a lawyer will be able explain what exactly you need to do or shouldn’t do.

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

If you want to engage us or just need further 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. Click here to select a time for us to have a free 15 minute telephone conference with you

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

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.

The law in Queensland provides that it is an offence to leave a child under the age of 12 unattended for an “unreasonable time” without making provision for their supervision and care.

Legislation

The relevant legislation is the Criminal Code 1899 - Section 364A.

The law states that;

A person who, having the lawful care or charge of a child under 12 years, leaves the child for an unreasonable time without making reasonable provision for the supervision and care of the child during that time commits a misdemeanour.

Penalty—

Maximum penalty—3 years imprisonment.

Whether the time is unreasonable depends on all the relevant circumstances.

What does the prosecutor need to prove?

The prosecutor would need to prove all of the following;

1. The person had lawful care or charge of a child

2. The child was under 12

3. The person left the child

4. The time the person left the child alone was unreasonable

5. The person did not make reasonable provision for the supervision or care of the child

Determination of unreasonable time

Whether the time is unreasonable depends on all the relevant circumstances. The court would likely look at the following factors

• The age of the child. Obviously the older the child the more reasonable it is to leave the child alone

• The maturity of the child. The more mature the child the more likely then could care for themselves

• The length of time the child was left alone

• Whether the child had access to neighbours or a phone to seek help if something occurred

• The reason the child was left alone

Penalty for the charge of leaving a child unattended

The maximum penalty for committing an offence against this section is three years imprisonment. The court can impose a lesser sentence and has the option whether to record a conviction or not.

Examples of the charge of leaving a child unattended

AJM v Commissioner of Police

The defendant drove his vehicle into an underground carpark attached to a Shopping Centre at New Farm. The recorded temperature on this day was 38 degrees Celsius. The defendant parked his vehicle in the undercover carpark. At this time, his 4 year old son was restrained in a car seat in the front, passenger seat of the vehicle. He had been asleep, but stirred. The defendant asked his young son if he wanted to come into the shops and the child indicated that he did not.

The defendant turned the vehicle off. He left the front, passenger seat window down and he left the vehicle unlocked. He took the car keys with him. A short time later, a witness observed the defendant’s son in the vehicle. The witness remained with the young child while his wife went up the stairs to the shops to look for the defendant. She could not find him. The witness then opened the door to the vehicle so that he could fan the defendant’s son. He attempted to wake the young child but he was unable to do so.

Approximately 15 minutes after first observing the defendant’s son in the vehicle, the witness contacted the police and they arrived about five minutes later. The police also attempted to wake the young child but were unable to do so. It was thought by the police that he was unconscious. The child was removed from the vehicle to an air-conditioned police vehicle and subsequently transported by ambulance to hospital as a precautionary measure. He was released a short time later.

The defendant pleaded guilty.

Kim v Commissioner of Police

The victim child was five years old. Approximately 11am police attended a house at Windsor, in relation to reports a young child could be heard calling out at the address and sounding to be in distress.

Upon arrival, police observed the victim child at the address. However, the child could not open the door for police. Police forced entry to the address, located the victim child within the residence alone. The child was located wearing winter clothing. The unit was hot, and observed to be locked up with no fans or windows or doors open. There was food and drink left out for the child. The victim child was changed into cooler clothing by police, and QAS attended. They said the child was in good health, however, was very thirsty.

At 12.25pm that day, the defendant returned to the address. The defendant stated that she was the child’s auntie. The defendant admitted that she had been at work since 9am that morning, that she had returned home on her break at work to check on the victim child, and intended to return to work after she had checked on the child.

There was no supervision or provision for care for the victim child arranged.

The defendant pleaded guilty.

Defences

The following might be a defence to the charge;

1. The person did not have lawful care or charge of the child

2. The child was over 12

3. The person did not leave the child unattended

4. The time the person left the child alone was reasonable in all the circumstances

5. The person made reasonable provision for the supervision or care of the child

What court hears the charge?

The charge is a misdemeanour and so the matter will be heard in the Magistrates Court.

Can the charge be withdrawn?

Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the time the child was left was reasonable in all the circumstances and so the charge should be withdrawn.

Will I get a criminal conviction if I plead guilty to the charge?

The answer is possibly. It depends on a number of factors. Only an experienced criminal lawyer can give you advice on the best way to try and avoid a conviction being recorded if you plead guilty to a charge of leaving a child unattended.

What should I do if the police want to talk to me or charge me with leaving a child unattended?

You need immediate legal advice from an experienced criminal defence lawyer. Saying the wrong thing to the police can assure you will be convicted of the offence or receive a more serious penalty. There are things you can do to protect your interests and rights or minimise the penalty if you plead guilty, a lawyer will be able explain what exactly you need to do or shouldn’t do.

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

If you want to engage us or just need further 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. Click here to select a time for us to have a free 15 minute telephone conference with you

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

5. Send us a message on Facebook Messenger

6. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

If you don’t engage us that fine too, at least you will have more information on the charge and its consequences.