Clarity Law

Introduction

Contravene order about device information from digital device (or a section 205A offence) is a charge which a defendant may find themselves facing in the event that they refuse to allow access to their devices when required by a search warrant under ss 154(1) or (2), 154A (2) or 178A(1) of the Police Powers and Responsibilities Act 2000 (PPRA).

The offence is taken very seriously by the courts and arose as a result of changes to the Criminal Code aimed at addressing serious and organised crime. The District Court of Appeal say that the offence is a serious one which strikes at the heart of the administration of justice. It involves a failure to comply with a court order. It follows that in considering the penalty to impose, it is necessary to take into account the need for general deterrence and denunciation.

Elements of the offence

The offence is a straightforward one, it arises when a person who, without reasonable excuse fails to give access to an electronic device when served with a relevant warrant under the PPRA or the Crime and Corruption Act.

This may look like refusal to give the password to an identified laptop or mobile phone during the execution of a search warrant.

It is important to note that Police in the serving of a warrant that contains the authority to search devices, must notify a person that failure to comply without a reasonable excuse constitutes an offence against s205A of the Criminal Code.

Defences

The key defence available for a defendant is having a reasonable excuse for not giving access to the device. The Court has determined that a reasonable excuse takes its ordinary meaning, effectively “would the average person believe that the excuse is reasonable”. The key case for the defence of reasonable excuse is Commissioner of Police v Barbaro [2020] QCA 230, where the court found that legal professional privilege is protected and could constitute a reasonable excuse. The Court made a clear distinction that not every instance where privilege is claimed will be a reasonable excuse, it will depend on circumstances and will be on the defence to establish a claim for privilege.

This is not the only example of a reasonable excuse, in early 2023 the Court determined in Queensland Police Service v Ahmed [2023] QMC 2, that the defendants excuse of not allowing male officers access to his device was reasonable, as the defendant’s phone contained photographs of his “uncovered” wife (note – the court heard and was satisfied that the defendant held genuine religious beliefs which would have been infringed had he allowed another male to view his uncovered wife). The court held that (amongst deficiencies in the prosecution case) a genuine religious belief could be constituted as a reasonable excuse to not comply with a warrant to provide access.

The legislature has deliberately excluded self-incrimination as a reasonable excuse. That is to say, it is not a reasonable excuse to not comply, if complying would incriminate you of an offence. This is consistent with the legislative intent for allowing law enforcement to conduct investigations into offences.

Why should I contact a lawyer if I am charged with this offence?

The simple answer is that the Court takes this charge very seriously. The most common penalty for this offence is a period of imprisonment, either wholly or partially suspended or to be served in actual custody.

The next question you might ask, is “if I am going to receive a sentence of imprisonment, why should I get a lawyer?” There are four different means in which imprisonment can be served (Russell Tannock of our office has written a comprehensive article here).

By engaging Clarity Law we are able to ascertain whether there is an available defence. We are able to review your case and assist in obtaining the best available outcome in the circumstances.

Conclusion

This article, is by no means a complete guide to this type of offence, but should be a useful starting point for someone who has been charged but not yet been to court. If you are charged with an offence, please contact our office for a free initial 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 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

Charged with wilful exposure, or just want to know more about the charge?

What is Wilful Exposure

Wilful exposure is an offence which arises when a person wilfully exposes his, her or their genitals in a public place, unless that person has a reasonable excuse.

A person may also be guilty of Wilful exposure if, from a private place, that is so close to a public place that it could be seen from a public place, they wilfully expose their genitals so that they may be seen from the public place, without reasonable excuse.

The offence is made more serious if in the course of the exposure, it is done with the express purpose of offending or embarrassing another person.

The penalty for this offence carries a maximum penalty of—

(a) 2 penalty units; or

(b) if the offence involves circumstances of aggravation—40 penalty units or 1 year’s imprisonment.

What does the prosecution need to prove?

To be found guilty of wilful exposure, the Police Prosecution Corps must prove, beyond a reasonable doubt the following:

1. the defendant wilfully;
2. exposed their genitals;
3. in a public place; or
4. from a place that is so near a public place that it may be seen from the public place.

Note: It is sufficient for item 4 above, for a person to stand in their private residence in a street facing room (meaning facing the road) where that person could be seen from the road

Are there any defences?

The simple answer is yes.  There are a number of defences that are available;

1. The alleged act was not in or near a public place;
2. The defendant did not wilfully expose their genitals;
3. The defendant was in fact not the person whom is alleged to have committed the act (identification issue); and
4. That any such exposure was not done with the intent to offend or embarrass a person (if applicable).

It is not an offence of wilful exposure for a person to breastfeed a child in public or near a public place. This is a protected act under the anti-discrimination legislation and does not constitute an offence. If you have been charged with an offence of wilful exposure due to breastfeeding in public, contact our office for a free initial consultation.

Why should I choose you and not just represent myself?

Just some reasons include;

1. we know the Magistrates and what they want to hear to give you the best outcome for a wilful exposure charge
2. we have good relationships with the police prosecutors meaning we can often have them agree to the sentence we are asking the court to impose
3. we are there to help you through the process and make everything as stress free as possible, in most cases you will not have to say anything in court
4. engaging us shows the court you are taking your charges seriously
5. your matter will be heard early, often first, you do not have to wait for 20-30 other matters to be heard before you
6. you will be fully informed of what is to happen in court and what this means for you after court
7. unlike the police or the magistrate, we are there to look after you, your privacy and your interests

Our experienced solicitors understand the sensitivity and potential embarrassment this charge may have on someone, any conversation had with our office is strictly confidential, with as few eyes on your file as necessary.

Conclusion
This article is by no means an exhaustive guide to this offence, but stands as a handy ready reckoner for someone looking for more information on or being charged with the offence. If you are charged with the offence, please contact our office for a free initial 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;

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

The charge of Contravene direction or requirement is a common charge defendants can find themselves falling afoul of. The scope of the offence is broad, however generally would fall into two categories:

1. Failing to comply with a “move on” (or other like) order from a Police Officer; and
2. Failing to comply with a direction regarding a public official, such as not giving your name, address and date of birth to a public official. Note, it is a separate offence to obstruct or impede a Police officer in the conduct of their duties.

The offence

The offence, generally speaking is less serious than a similar offence of obstruct/assault Police.  It is also critical to note that this offence does not cover a circumstance where a person fails to provide a specimen of breath for a roadside or BAS reading, as that is a separate and often serious offence.

For a person to be charged with the offence, the following must have occurred:

• A Police Officer has given a reasonable direction or requirement in the following circumstances:
  • Required a person to give their name, address and date of birth to a public official; or
  • Obstructed a public official in the exercise of that official’s duties; or
  • Ceasing to comply with reasonable direction (a “move on” order) in circumstances where a person’s conduct is:
    • causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances;
    • interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place;
    • disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place;
    • disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place; and
  • A person or persons have, without a reasonable excuse contravened the requirement or direction.

For the charge to succeed, the Police Officer must give a warning that by failing to comply with the direction or requirement, the person is committing an offence.

NOTE, the offence becomes more serious (aggravated) if the offence occurs in (or in close proximity to) a licenced premises, or a public place that is designated as a safe night precinct (i.e Surfers Paradise, The Strand or Fortitude Valley).

Defences

In some cases, it is a defence to have a reasonable excuse for not complying with the direction. Reasonable excuse, does not have a hard and fast definition – but is more in the manner of interpretation. In essence, would an ordinary person consider that the excuse to not comply was reasonable?

It is further accepted that, unless it is specifically provided by law, it is a reasonable excuse to not comply with a direction or requirement, if doing so would tend to incriminate the person. Some specific exceptions to this rule relate to authorisation and conduct of forensic procedures, such as DNA collection. 

Penalty

In most circumstances, the offence is a fine only offence (some exceptions apply depending on the specific nature of the contravention), however this does not mean that it is something that should be taken lightly. A conviction for the offence may have a significant impact on a person, especially in circumstances where other criminal matters are present.

The maximum fine penalty will depend on whether or not the previously noted aggravating features are present.

If a person commits the offence in a prescribed place, the maximum fine is 60 penalty units (at time of writing is $8,675.00) plus the Court offender levy, which if heard in the Magistrates Court is currently $133.60.

Otherwise, a maximum fine of 40 penalty units ($5,750.00) plus any relevant offender levy.

Can Clarity Law help me?

It is understandable that for a person who is a first-time offender, they may wonder why they should engage a lawyer to act for them when they face a single contravene direction or requirement offence. 

Our dedicated team has experience handling these matters. Your Clarity Law solicitor will carefully review and consider your case and may be able to engage with prosecutors to negotiate depending on the facts. Engaging an experienced lawyer (such as us) will allow you to explore your options with respect of the offence, assist in reducing the fineable amount and improving the likelihood of no conviction being recorded.

We also have fixed prices so you know with certianty what you will pay.  Our prices can be found here.

Conclusion

This article, is by no means a complete guide to this type of offence, but should be a useful starting point for someone who has been charged but not yet been to court. If you are charged with an offence, please contact our office for a free initial 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. Book a time for us to call you
3. Call us on 1300 952 255 seven days a week, 7am to 7pm
4. Email This email address is being protected from spambots. You need JavaScript enabled to view it.