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

Presumption of Innocence and Bail

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

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

 

Show Cause Bail: The Burden of Justification

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

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

 

Domestic Violence Order (DVO) Breaches and Show Cause Bail

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

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

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

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

 

Factors Considered in Show Cause Bail Applications

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

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

 

Conclusion

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

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

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

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

 

What is the basis for awarding costs to the defendant?

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

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

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

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

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

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

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

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

 

Wells v Commissioner of Police

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

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

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

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

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

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

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

The judge then awarded Mr Wells legal costs.

 

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

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

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

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

 

So what’s the conclusion?

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

 

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

 

Understanding Domestic Violence Orders (DVOs) in Queensland

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

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

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

 

Consequences for Breaching a DVO in Queensland

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

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

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

 

Breaching a DVO for the Second Time in Queensland

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

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

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

Bail

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Modification of the Current Order

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

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

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

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

 

Support and Resources for Individuals Facing DVO Issues

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

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

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

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

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

 

Conclusion

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

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

 

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

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

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

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

3.       Book a time for us to call you

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

5.       Send us a message on Facebook Messenger

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

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

 

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

 

What is Domestic Violence?

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

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

 

What is a Domestic Violence Order

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

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

 

Breaching a Domestic Violence Order

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

 

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

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

The law requires that the court must;

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

The types of variation the court might consider includes;

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

 

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

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

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

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

 

How do I stop the court from amending the order

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

 

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

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

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

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

 

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

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

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

 

What can be done if the court changes the order?

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

 

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

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

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

 

Summary

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

 

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

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

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

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

 

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

The principles and object of the Weapons Act are –

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

 

Offences

Possessing Weapons without a Licence

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

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

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

c) If neither of the above apply, then –

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

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

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

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

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

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

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

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

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

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

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

 

Possession of an Unregistered Firearm

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

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

“Possession” includes:

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

The maximum fine is $16,000.

 

Possession of a Knife in a Public Place or School

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

A reasonable excuse includes –

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

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

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

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

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

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

 

Shortening Firearms

A person must not, without reasonable excuse –

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

Maximum 4 years imprisonment or $27,500.

 

Other Offences

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

Which Court are These Offences Heard In?

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

 

Summary

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

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

 

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

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

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

 

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

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

 

What is Assault?

The Definition of assault in Queensland is;

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

Assault includes the following:

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

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

 

What makes an assault unlawful?

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

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

 

What is the defence of provocation?

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

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

The main factors for the defence of provocation are;

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

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

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

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

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

 

 

When will the defence of provocation fail?

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

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

 

What types of actions by the complainant could amount to provocation

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

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

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

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

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

 

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

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

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

 

Public Nuisance Charge QLD: Fines, Defences and Your Record

 

If you have just been charged with public nuisance, you are probably worried about court, your job and whether one incident will leave you with a criminal record. Start with the paperwork: a public nuisance ticket and a charge requiring court are different things, with different consequences.

For a less serious first offence, a fine is a realistic outcome. If the matter goes to court, whether a conviction is recorded can be just as important as the penalty. Before paying a disputed ticket or entering a plea, check what police allege and what evidence supports it.

Call 1300 952 255 for a free consultation. We usually call back within around 15 minutes.

On this page

• What the offence means

• Ticket amounts

• Court penalties

• First offences

• Your criminal record

• Swearing in public

• Fighting the charge

• An example from our files

• Going to court

• Common questions

• Speak to Clarity Law

What is public nuisance in Queensland?

Section 6 of the Summary Offences Act 2005 creates the offence. Police must prove both that your behaviour was disorderly, offensive, threatening or violent, and that it interfered—or was likely to interfere—with a member of the public peacefully using or passing through a public place.

No one has to complain before police act. You also do not have to be standing in the public place yourself: conduct on private property can affect people using a nearby street. The question is what the behaviour involved and its actual or likely effect. Section 6, Summary Offences Act 2005.

Streets, parks, shops and train stations are familiar examples of public places. Private ownership does not settle the question; a place open to the public can qualify. Legal Aid Queensland.

Police officers count as members of the public. Officers carrying out their duties can be the people whose peaceful use of a public place is affected. A charge does not fail simply because only police were present. The prosecution must still prove the conduct and its actual or likely interference with the use of the public place; an officer taking offence is not enough by itself. See Tseng v Queensland Police Service [2021] QCA 12. Judgment.

 

How much is a public nuisance ticket in QLD?

The ticket amount depends on the conduct alleged and whether it occurred in or near licensed premises, such as a pub or club.

Alleged conduct	Location	Penalty units	Ticket amount
Abusive, indecent, obscene or offensive language	Outside licensed premises and their vicinity	1	$172
Abusive, indecent, obscene or offensive language	Within or in the vicinity of licensed premises	3	$518
Disorderly, offensive, threatening or violent behaviour, excluding an offence constituting an assault	Outside licensed premises and their vicinity	3	$518
Disorderly, offensive, threatening or violent behaviour, excluding an offence constituting an assault	Within or in the vicinity of licensed premises	6	$1,036

These categories appear in schedule 1 of the State Penalties Enforcement Regulation 2014. The exclusion for conduct constituting an assault matters: this table does not mean every violent incident can be dealt with by a ticket. Schedule 1.

A penalty unit is $172.70 from 1 July 2026, under section 4 of the Penalties and Sentences Regulation 2025. Infringement fines are rounded down to the nearest whole dollar under section 5(2A) of the Penalties and Sentences Act 1992. That is why a three-unit ticket is $518, rather than $518.10. Earlier offences may attract different amounts. Penalty-unit value; rounding rule.

You can elect to have a ticket heard in court. Get advice first: the court can impose a different penalty, and a court finding of guilt has consequences that paying a ticket does not. Queensland Police ticket information.

If your fine is at least $200 and its due date has not passed, you can apply for a voluntary instalment plan. Follow the payment-plan instructions on your notice or contact the issuing agency. The initial payment is $60; once the agency receives it and lodges the fine, the State Penalties Enforcement Registry (SPER) manages the remaining payments. Check the requirements and deadline printed on your own notice. An enquiry or a disagreement with police does not itself extend the time to respond. Queensland Government: infringement notices and SPER payment plans.

 

Public nuisance penalties in Queensland

If the matter goes to court, section 6 of the Summary Offences Act 2005 sets these maximums:

Circumstances	Maximum court fine	Maximum imprisonment
Without aggravation	10 penalty units — $1,727	6 months
With aggravation	25 penalty units — $4,317.50	6 months

Aggravation includes offending within or near licensed premises. The section also incorporates section 52B of the Criminal Code 1899. Summary Offences Act 2005.

Section 52B concerns offending motivated wholly or partly by hatred or serious contempt based on actual or presumed race, religion, sexuality, sex characteristics or gender identity. Criminal Code 1899, section 52B.

These dollar figures use the penalty-unit value from 1 July 2026. The maximum is not a standard sentence. A brief disturbance and a sustained threatening incident need different assessments.

 

What happens for a first public nuisance offence?

For a first offence involving less serious conduct, the practical focus is usually a financial penalty and whether the court will record a conviction. A clean history helps. So do relevant references and clear evidence about your circumstances. Serious violence, threats, repeated offending or other charges change that assessment.

Historical Queensland Sentencing Advisory Council data found monetary orders were the most common adult penalty for public nuisance. Other outcomes included good behaviour orders, community service, probation and imprisonment. Those figures concern 2018–19, not a current sentencing forecast. Queensland Sentencing Advisory Council.

Useful preparation is specific. Tell us about your work, studies, family responsibilities and anything you have done to address the behaviour. If a conviction could affect a job or professional registration, bring the relevant policy or application form. We need to explain the actual consequence, rather than simply say a conviction would look bad.

 

Will public nuisance go on my criminal record?

If you pay an infringement notice: there is no recorded court conviction. Police still retain a record of the ticket, which can be relevant in later proceedings. Legal Aid Queensland.

If you plead guilty or are found guilty in court: the court considers whether to record a conviction where the sentencing option permits that discretion. Section 12 of the Penalties and Sentences Act 1992 directs attention to the offence, your character and age, and the effect on your wellbeing and employment prospects. Section 12.

For a less serious first offence, asking for no conviction to be recorded can be a realistic part of the case. It needs proper supporting information, and the decision belongs to the magistrate.

No conviction recorded does not erase the finding of guilt. Some forms ask about charges, guilty pleas or findings of guilt. Those questions differ from asking whether you have a recorded conviction. Do not assume the same answer applies to every employment, licensing or screening application. Legal Aid Queensland: criminal convictions.

 

Is swearing in public a public nuisance offence?

Swearing can support a charge, but the exact words and their setting matter. The assessment is objective: it is not enough to stop at saying someone felt offended. Community standards and the context help determine whether the conduct crosses the legal threshold. Queensland public nuisance review.

When we review a language allegation, we want the complete exchange: what was said, to whom, how loudly, how often and what happened beforehand. A recording that starts halfway through may leave out something important.

Write down the words you remember, even if they are embarrassing. Summarising the incident as “I swore” leaves out the detail needed to assess it.

 

Can you fight a public nuisance charge?

Yes. Start by checking whether the evidence supports the allegation. We examine identification, the conduct itself, the surrounding circumstances, the alleged public impact and any claim that the higher penalty applies.

Footage can make a difference. We check whether CCTV or police body-worn camera recordings exist, what they show and whether they cover the whole incident.

Keep relevant messages, photographs and recordings. Make a dated note of your recollection and identify anyone who saw the incident. Raise possible CCTV promptly so steps can be taken to preserve it before it is overwritten.

 

An example from our files

Our client faced a public nuisance charge alongside an obstruct police charge and other offences following an incident on the Sunshine Coast. He disputed the account of his conduct before police arrived.

We obtained an adjournment at the first court appearance so we could review the evidence before a plea was entered. The police body-worn camera footage began after officers arrived and did not show the earlier conduct. The police summary recorded that CCTV had been requested, but none was provided to us.

We made written submissions asking the prosecutor to discontinue the public nuisance charge. We addressed the limited seriousness of the alleged conduct, our client’s limited and dated history, the absence of independent footage and the proportionality of continuing the prosecution.

The public nuisance charge was withdrawn.

That result does not predict the outcome of another case. It shows why we check what evidence is actually available before advising a client how to plead.

Missing CCTV does not automatically defeat a charge. Witness evidence can still establish what happened. In this matter, the absence of independent footage was one part of our submissions, alongside the seriousness of the allegation, our client's history and the proportionality of continuing the prosecution.

 

Going to court for public nuisance in Queensland

Adult public nuisance charges are ordinarily dealt with in the Magistrates Court. Queensland Courts.

Clarity Law appears in 26 Queensland courts, including Brisbane, Southport, Maroochydore, Ipswich, Beenleigh, Toowoomba, Pine Rivers and Hervey Bay Magistrates Courts.

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Your notice, summons or bail paperwork gives the court date. The first appearance is called a mention. It is the opportunity to tell the court whether you are ready to plead or need more time. An adjournment is a postponement; we can request one to obtain advice or evidence, but the magistrate decides whether to grant it.

Before pleading, read the QP9, the police summary of what they say happened. It is not the same thing as all the prosecution evidence. Tell your lawyer about material facts you dispute.

A guilty plea can lead to sentencing that day. If you contest the charge, a later hearing will generally be needed to test the evidence. Attend as required and comply with bail conditions; missing court can result in an arrest warrant. Legal Aid Queensland: Magistrates Court proceedings.

 

Public nuisance charge QLD: common questions

Am I going to jail for this?

For a less serious first offence, a fine is a more realistic concern than imprisonment. The position changes with serious conduct, relevant history or other charges. The six-month maximum tells you what the law permits, not what will happen in your case.

Will I lose my job?

That depends on your role, the outcome and any disclosure obligations. Bring your employment policy or professional registration requirements to the consultation. A public nuisance charge does not itself tell us whether your employer must be notified or what action they might take.

Can I just pay the ticket and avoid court?

Ordinarily, paying a valid infringement notice in full by the deadline resolves it without a court hearing. It does not produce a recorded court conviction. If you dispute the allegation or the amount, get advice before paying or electing court. Follow the instructions on the notice.

I was drunk. Does that make a difference?

Being drunk does not reduce the sentence simply because it explains your behaviour. Section 9(9A) of the Penalties and Sentences Act 1992 says voluntary intoxication is not a mitigating factor—a reason for a lighter sentence. Explain honestly what happened and any steps you have taken since. Section 9(9A).

Should I plead guilty to get it over with?

Read the police allegations and obtain advice first. A guilty plea can have lasting consequences, even without a recorded conviction. If you disagree with important parts of the QP9, raise them before entering a plea.

How much will a lawyer cost?

Clarity Law quotes a fixed fee upfront for public nuisance matters. The quote explains the work included. A guilty plea and a defended hearing involve different work, so we assess your paperwork before quoting. The initial consultation is free.

 

Speak to Clarity Law about your public nuisance charge

Clarity Law is a Queensland criminal law firm with eight offices: Brisbane, Gold Coast, Sunshine Coast, Ipswich, Logan, North Brisbane, Toowoomba and Hervey Bay. We are rated 4.9 on Google.

Have your police paperwork and court date ready when you contact us. Tell us what worries you most, whether that is the penalty, your job or your criminal record.

Call 1300 952 255 for a free consultation. We usually call back within around 15 minutes.

General information about Queensland law. Advice about your charge depends on its circumstances. By Steven Brough, Founder and Principal, Clarity Law — Queensland criminal defence solicitor.
Legal sources checked: 7 September 2026.

 

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

Understanding Legal Defences to Assault Charge in Queensland: A Comprehensive Guide

When charged with assault in Queensland, knowing your defences is crucial. This article cuts straight to the chase, offering an understanding of defences to assault charge in Queensland, such as self-defence and the nuances of provocation. Read on to equip yourself with the knowledge to navigate your defence strategically.

 

Key Takeaways

• Assault charges in Queensland are governed by Part 5 of the Criminal Code 1899 and can range from common assault to serious and sexual assault, with penalties varying from fines to life imprisonment depending on the offence’s severity.

• Legal defences against assault charges include provocation, where the assault is a direct response to a wrongful act or insult, and self-defence, which must involve reasonable and proportionate force to protect oneself or others from imminent threat.

• The court process for more serious assault offences in Queensland includes a Committal Hearing in the Magistrates Court, followed by a trial or sentence in the District Court, where evidence such as medical reports and expert evaluations play a critical role in determining the case outcome.

 

Understanding Assault Charges in Queensland

The specific provisions under Part 5 of the Criminal Code 1899 govern assault charges in Queensland. These criminal law regulations outline the legal parameters for prosecuting individuals involved in assault cases. These charges typically manifest in two categories: The first category includes common assault, assault occasioning bodily harm, serious assault and grievous bodily harm, the second category are sexual assault. Each of these assault offences carries varying levels of severity, with penalties ranging from fines to imprisonment. Understanding these assault charges is the first step in navigating any legal proceedings related to assault.

The essence of an assault offence in Queensland revolves around the application of force or threat of such application, without the consent of the other party. Consent, when operating in a legal context, can serve as a defence to an assault charge, particularly in cases of assault occasioning bodily harm.

 

Common Assault

Common assault, as the name suggests, is one of the most frequently encountered assault offences. It encompasses situations where the victim sustains minor injuries or even situations where no physical injuries are present, as opposed to more severe cases like bodily harm assault. Examples of common assaults include spitting on someone or threatening them with a fake weapon. In these instances, a person assaults another individual without causing significant bodily harm, often in an unprovoked assault scenario.

However, despite the term ‘common’, this offence should not be taken lightly. In Queensland, the maximum penalty for common assault is three years imprisonment, showcasing the seriousness with which the legal system treats even minor offences related to assault.

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 but where the offender is armed or is in company with one or more persons, at the time the assault is being committed the assault becomes aggravated in which case the maximum sentence will be 10 years imprisonment.

The matter is dealt with in either the Magistrates Court or the District Court.

This charge often results in a prison sentence but in the right circumstances that sentence can be wholly suspended or a person could undertake parole instead of serving time in jail.

We have a dedicated assault occasioning bodily harm page.

 

Grievous bodily harm

Grievous bodily harm is something more serious than a mere wounding or a bodily harm, and is defined as the loss of a distinct part of an organ of the body, serious disfigurement or any bodily injury of such nature that, if left untreated, would endanger or be likely to endanger life or cause or be likely to cause permanent injury to health.

This type of charge is very serious and can only be finalised in the District Court.

Generally a person charged with this offence would expect to obtain a jail sentence.

We have a dedicated grievous bodily harm page

 

Serious Assault

Unlike common assault, serious assault in Queensland involves:

• an assault with an intent to commit a crime or resist lawful arrest

• cases where a police officer or other emergency workers performing their duties is assaulted, resisted, or wilfully obstructed

• offences against a person performing a duty imposed by law.

The severity of serious assault is underscored by its penalties. In Queensland, the maximum penalty for serious assault is generally seven years of imprisonment. This is a serious offense that carries significant consequences. However, this penalty can increase to 14 years if the offender:

• bites or spits on a police officer

• causes bodily harm

• is armed with a dangerous weapon during the assault

• applies bodily fluid or faeces to a police officer.

 

Sexual Assault

Sexual assault in Queensland covers a wide range of non-consensual acts, including but not limited to touching, kissing, and sexual intercourse. The absence of consent from the alleged victim forms the crux of a sexual assault charge.

Penalties for sexual assault are severe, with the maximum penalty typically being 10 years imprisonment. However, the penalty can escalate to life imprisonment if the act is committed with an offensive weapon or in the company of another person.

 

Key Defences to Assault Charges

While assault charges carry significant consequences, there are legal defences available that can significantly affect the legal outcome, potentially reducing the severity of the charges or penalties. Two of the most common defences used against assault charges are provocation and self-defence.

Provocation is a defence used when the accused was provoked into committing the assault due to any wrongful act or insult from the person assaulted. On the other hand, self-defence is invoked when the accused’s actions were in response to an imminent threat, aiming to protect themselves or another person. Successfully using these defences can lead to an acquittal or result in a lesser sentence for the accused.

 

Provocation

The defence of provocation revolves around:

• a wrongful act or insult that is likely to deprive an ordinary person of self-control, inducing them to commit assault

• the accused must demonstrate that they lost their self-control due to the provocative conduct from the person assaulted

• the reaction to the provocation must be immediate, showcasing that there was no reasonable time for the defendant to regain self-control.

However, the defence of provocation has its limitations. The response to the provocation must not be excessive, i.e., it should not intend to cause death or grievous bodily harm. Also, the provocation must be directed at the defendant.

Provocation is not a defence when charged with grievous bodily harm or wounding.

 

Self-Defence

Self-defence is a fundamental right under Queensland law. An individual can use reasonable force, which must be both reasonable and necessary, to protect oneself or another person from an unlawful assault. The degree of force used must be proportionate to the perceived threat.

In cases of provoked assault, the law allows self-defence if the person believes they are in danger of being killed or seriously injured, provided that the defensive force used is reasonable and does not intend to kill or cause grievous harm. The prosecution bears the legal burden of disproving a self-defence claim, which must satisfy the court beyond a reasonable doubt.

Unprovoked Assault

Under section 271 of the Criminal Code an individual can use as much force as is reasonably necessary to defend themselves against an unprovoked assault. The force used must be proportionate to the perceived threat. This means that the use of force must be less than or equivalent to the force of the assault.

Provoked Assault

Under section 272 of the Criminal Code if a person assaults someone or provokes an assault that person may then use reasonable force to protect themselves if the other person responded with such violence that the person who provoked it would reasonably fear they may suffer death or grievous bodily harm.

This defence is not open to a person who’s initial assault or provocation is done with the intent to kill or do grievous bodily harm or where they use force which could cause death of grievous bodily harm prior to it being necessary.

Additional Legal Defences

Apart from provocation and self-defence, there are other legal defences that can be used in assault cases. These include acting in aid of others, extraordinary emergency, and insanity or mental health. These defences provide a broader perspective on the various avenues available for individuals facing assault charges.

However, the applicability of these defences is based on specific circumstances and conditions. For instance, the defence of moveable property allows the use of reasonably necessary force to defend possession of moveable property. Another interesting defence is the ‘mistake of fact’ defence, which is based on an honest and reasonable mistake of fact about a situation.

 

Mistake of Fact

If the defendant assaulted someone under an honest and reasonable, but mistaken, belief that things mistakenly believed to exist, they are not criminally responsible to any greater extent than if the real state of things had been such as he believed to exist.

A mere mistake is not enough, the mistaken belief must have been both honest and reasonable.

 

Acting in Aid of Others

Acting in aid of others is a legal defence that permits a person to use a similar degree of force to protect another person from an assault. This defence is based on the principle of good faith, meaning that the actions of the defendant must align with genuine intentions to protect the person being attacked, and be of such a nature that they are reasonable and proportionate.

The defence of acting in aid of others applies when defending another person from an assault, with the use of force being reasonable and not excessive given the circumstances. Essentially, where self-defence is justifiable, the same degree of force may be used by someone acting in good faith to aid another person.

 

Extraordinary Emergency

The defence of extraordinary emergency is invoked in response to an unexpected situation of such nature that the accused believes an emergency exists and their actions are necessary to prevent death or serious injury. This defence requires the accused to prove that there were no other reasonable alternatives available, and such action was a reasonable response to the emergency.

The evaluation of the defence of emergency involves considering:

• What would have been expected from an average person

• With a normal level of self-control

• Situated in the same unexpected and emergent circumstances as appeared to the accused at the time.

The prosecution bears the criminal responsibility of disproving this defence beyond a reasonable doubt.

 

Insanity and Mental Health

Insanity and mental health defences hinge on the mental state or capacity of the accused at the time of the offence. The accused must prove on the balance of probabilities that they were of unsound mind when the offence was committed. The defendant bears the responsibility of providing sufficient evidence supporting their claim of mental unsoundness during the incident.

If the accused is acquitted on grounds of insanity, they may be subjected to the Mental Health Act 2016, which could lead to the imposition of a Forensic Order or Treatment Support Order. The Mental Health Court decides if an individual was mentally fit at the time of the offense and if they are able to stand trial. It is the authority responsible for these determinations.

 

The Role of Evidence in Assault Defence Cases

Evidence plays a crucial role in shaping the outcome of assault defence cases. Medical evidence provides a factual basis for incident reconstruction and is essential in formulating a legal defence. For instance, in asserting self-defence, the prosecution must disprove this claim beyond reasonable doubt, taking into account factors such as prior victim behaviour, the nature of the accused’s response, and the possibility of retreat.

The Court Process

The court process for assault charges can include the following steps:

1. Committal Hearing in the Magistrates Court to determine if there is enough evidence for a trial.

2. If there is sufficient evidence, the case may be committed to the District Court for trial.

3. In the District Court, a Judge and possibly a jury will decide the accused’s guilt or innocence.

That process applies to the more serious assault charges like grievous bodily harm or serious assault.  Charges such as common assault can only be dealt with in the Magstrates court while assault occasioning bodily harm the choice of whether to hear the matter in the Magstrates Court or District court is up to the defendant.

 

Summary

Understanding the nuances of assault charges and their defences in Queensland is crucial for anyone navigating these legal waters. This article provided an in-depth exploration of the various assault charges, including common assault, serious assault, and sexual assault, and their associated penalties. It also delved into the key defences of provocation and self-defence, along with additional defences like acting in aid of others, extraordinary emergency, and insanity or mental health.

The importance of evidence in assault defence cases cannot be overstated, as it forms the backbone of any defence strategy. Finally, understanding the court process and potential outcomes can help prepare individuals for what lies ahead in their legal journey. Remember, every case is unique, and the information provided here should serve as a guide rather than an absolute truth. Always seek legal advice relevant to your specific case.

 

Frequently Asked Questions

What is the provocation defence in Qld?

In Queensland, the provocation defence is based on the definition of provocation as a wrongful act or insult likely to induce an ordinary person to assault, with the response being in the heat of the moment and proportionate to the provocation. This information provides the basis for understanding the provocation defence in Queensland.

What are the elements of assault in Qld?

In Queensland, assault includes the act of striking, touching, moving, or applying force to another person, as defined in section 245 of the Criminal Code Act 1899. This encompasses the use of substances or objects causing injury or personal discomfort.

 

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.

Other articles that may be of interest

• Your right to silence

• Queensland Drink Driving Guide (2024)

• Negotiating with a Prosecutor in Queensland

• Court character references

• The difference between a conviction and non-conviction

• Declining a police interview

• A guide to an Assault Occasioning Bodily Harm Charge

 

When facing an arrest, many people in Queensland tend to overlook one of their most potent defences—the right to silence. Far too often, individuals willingly speak to the police, unknowingly providing evidence that can lead to charges being brought against them or harsher penalties in court. In this article, we'll delve into the importance of exercising your right to silence, explore the legal context in Australia and Queensland, and provide insights into protecting your rights during police questioning.

In our opinion people in Queensland far too easily give up their right to silence when speaking to police. Often a person’s willingness to talk to police results in charges being bought or harsher penalties in court.

Over the past 20 years I have had hundreds of calls from people asking my advice on whether to talk to police. In those 20 years I have never once advised a client to give a voluntary statement to police. I hope in this article to explain why.

 

The situation in Australia

The Australia Constitution contains no right to avoid self incrimination or to refuse to give a statement to police. Unlike the situation in America where the constitution contains the fifth amendment which provides: no person “shall be compelled in any criminal case to be a witness against himself …”

The right to silence and self incrimination under the common law is however well established throughout Australia.

The High Court of Australia stated that right was;

A person may refuse to answer any question, or to produce any document or thing, if to do so may tend to bring him into the peril and possibility of being convicted as a criminal

In another Case Justice Murphy of the High Court put that right as follows;

It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigation. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society’s acceptance of the inviolability of the human personality

The common law right of silence applies to both people who have actually committed an offence and those that are merely suspected of committing an offence.

 

The situation in Queensland

The right to silence is contained in Queensland common law and is protected in legislation. Section 397 of the Police Powers and Responsibilities Act 2000 provides that;

Right to remain silent not affected

Nothing in this chapter affects the right of a person to refuse to answer questions, unless required to answer the questions by or under an Act

With limited exceptions you only need to go with the police station for an interview if you are formally arrested for an offence or formally detained for questioning about an indictable offence.

Before Questioning a suspect the police in Queensland must caution that suspect that they have a right not to answer any questions and to obtain legal advice.

It is also critical to understand that if you chose not to speak to the police and are subsequently charged with a crime then the court or a jury cannot take into account you chose to remain silent, remaining silent is not evidence of guilt and no inference can be drawn that a person remaining silent is hiding something. In Petty v R (1991) 173 CLR 95 the High Court confirmed that no adverse inferences, of any sort, could be drawn from the accused's refusal to answer questions. The High Court went on to say that;

Although ordinary experience allows that an inference may be drawn to the effect that an explanation is false simply because it was not given when an earlier opportunity arose, that reasoning process has no place in a criminal trial. It is fundamental to our system of criminal justice that it is for the prosecution to establish guilt beyond reasonable doubt. ... it is never for the accused person to prove his innocence ... Therein lies an important aspect of the right to silence, which right also encompasses the privilege against incrimination.

The right to silence also extends to a court case, a defendant cannot be compelled nor is required to give evidence at their trial. It is critical to understand that the crown must prove a person is guilty of an offence beyond a reasonable doubt, it is not up to the accused to prove they are innocent.

As can be seen the right to silence is one that is both well established in Queensland and a powerful right that should be exercised by almost every person that the police wish to speak to. The Queensland Government makes it clear on their website you have the right to remain silent. It is however in our experience one that most people do not take advantage of, why is that?

 

Why do people not remain silent?

In our experience most people want to actively assist the police. They have been told since a child that the police can help them if they get into trouble. The police are also very good at making it sound like they are just there to assist people and maybe if a person can explain their situation then they perhaps won’t be charged. This is not how the police work in practice.

If you are being asked to give an interview to the police then in our experience it is because of two reasons. The first is the police don’t have enough evidence to you and need them to admit their guilty, once that is done they are charged. Alternatively, the police always intended to charge you and just want you to give a confession to make the police job easier.

Also remember the police are experts at questioning, for most people this will be their first experience, they will be stressed, nervous and out of their depth, not the police they do this all the time and are taught the most effective methods of questioning. If you think you can fool the police during an interview then you will find you are wrong.

 

I’m not guilty what’s the harm in telling the police my side?

The police before questioning a person will investigate the matter, gather evidence, speak to other witnesses. They will know the case and all the evidence in great detail before speaking to a suspect. The suspect however will know very little and the police usually won’t tell them very much about the evidence they have. The police also have often decided that they believe the suspect is guilty and will be actively trying to get the suspect to confess certain things to make the charging process easier. Remember the police are talking to a person because they are either a suspect or possible suspect to a crime.

A person can also innocently admit a fact that they don’t know is a breach of the law or that the admissions they won’t be able to claim a certain type of defence if the matter went to trial. People under stress can also make mistakes, they can inadvertently admit something that isn’t true. We often get charges withdrawn because the evidence if not strong enough, it happens every day however if you have made admissions to the police getting charges withdrawn is almost impossible.

Remember also that people lie, a person may have lied to police that a suspect did something, the police may believe that lie and not be objective in their questioning. Perhaps a witness is wrong about something, you may tell the police something and a witness might innocently but wrongly tell them something different, you might come off as a liar even though you told the absolute truth.

James Duane, an American Law professor gave an excellent speech about why you should never talk to police. Whilst the American law is different the basic concepts are not. Professor Duane argues that even if you haven't committed a crime, it's dangerous to tell the police any information. You might make mistakes when explaining where you were at the time of a crime that the police interpret as lies; the officer talking to you could misremember what you say much later; and your statements to police could, in combination with faulty eyewitness accounts, evidence that can be interpreted different ways and sheer bad luck lead to you being convicted of a serious crime. His speech can be viewed on YouTube.

 

But I will look guilty if I don’t talk to police

Quite frankly who cares if you look guilty, not talking to police protects your rights the most, better to look guilty by not talking to police then actually be charged by police after you talk to them. In our experience if the police are going to formally interview you then they have likely already made up their mind to charge you, why help them with that process? You are not going to talk you way out of a charge if the police have already decided to charge you. The police aren’t there to be fair to you, this is critical to understand, your future is at risk, your job is at risk, your liberty is at risk.

Remember if a police officer or lawyer or judge was ever accused of a crime you can be absolutely sure they would not talk to the police and they would be telling their family and friends the same thing if they were charged.

 

I’m guilty why not just tell the police everything so I get a lighter sentence?

While it’s true that co-operating with police can often be a factor the court can take into account when setting a penalty in our view its not a major factor and the risk of getting charged with extra offences because an accused made admissions to charges the police wouldn’t be able to charge without that admission is, without legal advice to the contrary, not worth giving up the right to silence. If you are truly guilty and are charged then you can plead guilty before a court and that guilty plea is one of the most important factors the court will take into account.

You don’t need to be in a hurry to admit your guilt.

 

How do I tell police I want say anything?

You should make it clear from the start that you will not be answering questions and wish to speak to a lawyer. If the police continue to question you then you can remain silent and merely point out that you wish to speak to a lawyer. Do not answer some questions and not others, apart from basic details such as name and address then you should not be answering any questions without legal advice.

The police can detain a person for up to 8 hours before they need to charge them or release them. The police can question a person for up to 4 hours within that 8 hours.

 

Summary of your right to silence

1. Understanding Your Right to Silence

Unlike the United States, where the constitution's Fifth Amendment explicitly protects the right against self-incrimination, Australia does not have such a constitutional provision. However, under common law, the right to silence and protection against self-incrimination are firmly established throughout Australia, including Queensland.

2. Your Right to Silence in Queensland

Section 397 of the Police Powers and Responsibilities Act 2000 clearly affirms your right to remain silent during police questioning. This means you are not obligated to answer any questions unless required to do so by specific legislation.

3. Seeking Legal Advice

Upon being questioned by the police, immediately exercise your right to remain silent and request to speak with a qualified criminal defence lawyer. The police are skilled at questioning, and without proper legal representation, you may inadvertently harm your defence.

4. The Power of Remaining Silent

When questioned by the police, it is crucial to understand that remaining silent does not imply guilt. You cannot be compelled to prove your innocence, and no adverse inferences can be drawn from your refusal to answer questions. The burden of proof rests solely on the prosecution.

5. The Risk of Talking to the Police

Speaking to the police without legal advice can be risky, even if you believe you are innocent. The police might already have formed an opinion about your guilt and seek a confession to bolster their case. Innocent admissions or mistakes during questioning could be used against you later.

6. Protecting Your Rights

Remember that the police are not there to be fair to you; their primary objective is to gather evidence for potential charges. Therefore, exercising your right to silence is crucial in protecting your future, job, and liberty.

7. You Have the Right to Legal Counsel

Don't be swayed by the fear of looking guilty. You are entitled to legal representation, and even if you are guilty, it is often best to remain silent until you have consulted with your lawyer.

8. Cooperating with the Police

While cooperation can be a factor in sentencing, the potential risks of giving admissions or additional evidence to the police often outweigh the benefits.

9. Seek Legal Advice Before Talking to Police

If the police want to question you, invoke your right to remain silent and request to speak to a lawyer immediately. Engaging legal counsel can significantly impact the outcome of your case and protect your rights against the formidable resources of the state.

 

Disclaimer

Obviously this is just general guidance and not specific legal advice and this guidance only applies in Queensland. There are occasions where you must accompany the police to a station, for example for a drug or drink driving test if you are suspected of a DUI, also you are required to give basic details like your name and address if asked by police.

There might be the very unusual case where talking to police is the right thing to do. That is why we say you need to talk to a lawyer before talking to the police.

 

Conclusion

The right to silence is a powerful defence mechanism that has evolved over centuries to protect individuals from self-incrimination. In Queensland, you have the right to remain silent during police questioning, and this right should be exercised wisely to safeguard your legal interests. Always remember that seeking legal advice before talking to the police is paramount to ensuring your rights are protected and securing the best possible outcome for your case.

One of the most talented and admired American judges was Robert Jackson. He was the chief American prosecutor at the Nuremburg trials of Nazi war criminals, was the US Attorney General and later a Justice of the US Supreme Court, when it came to talking to police he stated that;

"Any lawyer worth his salt will tell the suspect, in no uncertain terms, to make no statement to the police under any circumstances"

The law provides you with powerful right, you should use it.

 

Some of our other useful blog posts

• Why You Should Never Represent Yourself in Court
• Mitigation: How the court sets a sentence in Queensland
• What is an arrest warrant?
• What do I do when I have missed my court date!
• Do you have to give the police access to your phone?
• Contravene direction or requirement
• Should I hire a Criminal Defence Lawyer?

 

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