Clarity Law

In Queensland, criminal proceedings can be commenced in one of three ways:

1. Arrest and bail (or remand in custody);
2. Complaint and summons; and
3. Notice to Appear.

The last of these is the most common way for police to start criminal proceedings against someone. If you have been given a Notice to Appear in Court by the police, it is important to understand what it is and how it operates within the larger context of Queensland’s criminal law and procedure.  

Notice to Appear as an Alternative to Arrest and Bail

Prior to the creation of Notices to Appear, the conventional way for police to start criminal proceedings against someone was by either (a) arrest and bail / remand in custody, or (b) complaint and summons. The former process involved taking the charged person into custody, formally charging them, then considering whether to grant them “watchhouse” bail, or keep them in custody until their matter finalised at court (unless a Magistrate or the Supreme Court granted bail in the meantime).

The ”complaint-and-summons” process did not require formal arrest. Instead, the charged person was issued with a “complaint” outlining the offence they were alleged to have committed, and a “summons” directing them to attend court. If the person was charged with more than one offence, these had to be described on separate complaints (with some exceptions). The legislation concerning complaints are detailed, and the requirements of complaints are strict. Summonses are issued by magistrates; therefore, the police required a magistrate to issue a summons prior to providing these documents to the charged person.

These processes – arrest and bail / remand and complaint and summons – were both cumbersome. The former required taking person into custody. The latter was time-consuming. Notices to Appear were developed as a way of preventing taking people into custody (especially for offences that are highly unlikely to result in imprisonment on sentencing) and to streamline the process of commencing proceedings.

Commencing Criminal Proceedings by Notice to Appear

Police may issue a Notice to Appear to a person whom the police consider to have committed an offence. Notice to Appear must be given to the person directly, unless they are charged with an offence under the Road Use Management Act or the Heavy Vehicle National Law (Queensland). In these circumstances, the person can be served a Notice to Appear by registered post.

In order to be valid, the Notice to Appear need only state the “substance” of the offence alleged to have been committed. It must also have the accused person name on it, state whether they are an adult or a child, list the court in which they are to appear (and the time and date of the first appearance), have the charging police officer’s name on it, and be signed by a police officer.

Note that the requirement for the Notice to  Appear to only state the “substance” of the offence charged is a less strict requirement than complaints, which must use the exact wording of the offence as set out in the legislation. Also, no objection can be made if more than one charge is listed in a single paragraph on the Notice.

The prosecution may provide proper particulars of the offence (usually on a Bench Charge Sheet) on the first court date.

Once the Notice to Appear is issued, a copy of it must be given to the clerk of the court in which the charged person is to appear as soon as possible.

Once the Notice to Appear is served, and a copy given to the clerk of the court, the Notice is treated the same as a complaint and summons and the matter proceeds before the court as though it was started by a complaint and summons.

Lastly, it must be noted that Notices to Appear as a method of commencing criminal proceedings are only available to the Queensland Police Service. Other government agencies (such as the Australian Tax Office, the Commonwealth Director of Public Prosecutions, local councils, etc) must still commence by means of a complaint and summons.

Failure to Attend Court after a Notice to Appear is Served

If you are served with a Notice to Appear, and you do not attend court on the date stated on the Notice, the magistrate may issue a warrant for your arrest. Once the warrant is issued to the police, they will take you into custody, and provide you with a new court date. Alternatively, if you surrender yourself to the court, the magistrate may revoke the warrant and return the criminal charges to the court’s list.

On the other hand, if the police failed to properly serve the Notice to Appear on you or failed to give a copy to the clerk of the court, the magistrate may dismiss the charges which relate to the Notice. However, that does not end the matter, as the police may re-issue the Notice to Appear with a new court date. Re-issuing the Notice returns the charges to the court.

Conclusion

The purpose of Notices to Appear is to streamline and simplify the process of starting criminal proceedings. Although Notices are a less cumbersome process than arrest and bail or issuing complaints and summonses, this does not mean that the legal consequences of being dealt with by a Notice are any less serious. If you have been served with a Notice to Appear, it is important to get expert legal advice as soon as possible.

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.

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

In the Queensland system of criminal justice, once a person is charged with criminal offences there are broadly three ways the charges get resolved: a plea of guilty, the prosecution withdraw the charges, or a trial. This article will be about trials, so strap in, there is a lot to cover.

How do I know when I should go to trial?
Our article titled “Deciding How to Plead to a Criminal Offence” covers this well, but the short version is, if you did not commit the offence, or the prosecution cannot prove you did, you should take it to trial.

Why would my case go to trial in the Magistrates Court instead of another court?
Legally, most charges and cases are decided in the Magistrates Court. The more serious offences, such as drug trafficking, grievous bodily harm, and rape, will be heard in higher courts. Some charges can be heard in either the Magistrates Court or higher courts, but we need not go into that here.
Charges that stay in the Magistrates Court are still considered serious. People are routinely sentenced to jail in the Magistrates Court, and the court can impose a maximum of three years imprisonment.
Where you have the option of having your trial heard in the Magistrates Court or higher courts, there are a number of factors to consider, including cost, delay, whether you want a jury, and the maximum penalty.

How do I get to a trial in the Magistrates Court?
By entering a plea of ‘not guilty’ in court. The magistrate marks this down on the court file, and then a number of things happen.
First, the police must produce a full brief of evidence. This will contain witness statements and exhibits such as video footage, photographs, and forensics.
Second, once your solicitor receives the full brief of evidence, he or she will analyse it to determine whether the prosecution can prove their case, will take your instructions on what happened, and then give advice about likely outcomes.
Third, based on the advice given by your solicitor you will make decision whether you wish to persist with the trial, send a submission or change your plea to guilty. If the plea remains not guilty, then the case will have a date in the Magistrates Court for your trial.

What happens at a trial?
On the day of the trial [most trials in the Magistrates Court take only one day], the magistrate will listen to and view the evidence, and decide whether you are guilty beyond reasonable doubt.
It is the prosecution who must prove your guilt. They must do this beyond reasonable doubt, which means it’s not sufficient for the magistrate think that you are possibly, or even probably guilty, but he or she must have no reasonable doubt about it.
How does the trial proceed? I have created a chart which I hope will assist you to visualise how it happens in court:

Will I need to give evidence or speak in court?
The answer is maybe. You have a legal right to silence, which means you are not obligated to give evidence in support of your defence.
You might have given a recorded interview to police, in which case, your version of events may already be available without the need to speak in court.
There are disadvantages to telling your story in court, including: the prosecutor gets the opportunity to cross-examine you, you might get flustered and accidentally say something which hurts your case, or what you say might be inconsistent with something you've said prior [such as if you had given a police interview].
In general, if it looks like the prosecution are unable to prove their case on the evidence they have presented, then it would usually be the right call not to give evidence. If, however, the prosecution do look like they are able to prove their case, and the credibility and reliability of prosecution witnesses has not been damaged enough by your lawyer’s cross -examination of them, your best option may be to give evidence yourself to have a chance of winning the trial.

But the witnesses have lied! Surely I will be found not guilty?
Although the stated purpose of the trial process is to discover the truth of what happened, the reality is that the magistrate is presented with two different arguments about what happened: one from the prosecution, the other from the defence. It may well be the case that one or more witnesses lie in their testimony. Hopefully, in that situation, a lying witness will have had their credibility forcefully challenged when questioned by defence counsel.
It is important to keep in mind that each case, the prosecution and the defence, is designed to persuade the magistrate to reach a certain conclusion, and this may not necessarily be in perfect alignment with what really happened. As the saying goes, “there are two sides to every story”.

Whay happens at the end of the trial?
The magistrate decides whether you are guilty or not guilty. If you are found guilty, usually the sentence will proceed immediately. The main disadvantage with losing a trial is you should expect a harsher penalty than you would have gotten had you pleaded guilty.
If you win the trial, this is called an acquittal. This means the charge against you is dismissed, and there is no penalty.

Can I get costs?
If you win, you can argue for costs. There is a legal test the magistrate must follow to decide whether costs should be granted in your favour. Bear in mind, there is a limit to the amount of costs the magistrate can order in your favour, and you would not recover the full amount of your legal fees.

Conclusion
As you can see, Magistrates Court trials are complicated, and the decision whether to go to trial is often a difficult one. If you or someone you know is in such a situation, you need expert legal advice. All Clarity Law’s solicitors are fully qualified and experienced. We can help you to make the best choice for your situation.

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.

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.

Introduction

This offence, which used to be called “Carnal Knowledge of a child under 16”, is relatively self-explanatory, being that a person has penetrated a child’s vagina, vulva or anus with “the person’s” penis.

Under what law is the offence?

This offence is under section 215 of the Queensland Criminal Code Act.

Legal Elements

The Supreme and District Courts Criminal Directions Benchbook states the legal elements of the offence as:

1. The prosecution must prove that there was an act of penile intercourse.

2. The intercourse was of the vagina/vulva/anus of another person.

3. The person was under 16 years.

Meaning of engage in penile intercourse:

1. Penile intercourse is the penetration, to any extent, of the vagina, vulva or anus of a person by the penis of another person.

2. A person engages in penile intercourse with another person if—

3. The person penetrates, to any extent, the vagina, vulva or anus of another person with the person’s penis; or

4. The person’s vagina, vulva or anus is penetrated, to any extent, by the penis of another person.

Some things to note about the legal elements

• The prosecution does not need to prove a lack of consent. It is legally irrelevant whether or not the complainant consented.

• The prosecution need not prove that the defendant knew the complainant was younger than 16.

• The definition of penile intercourse curiously substitutes masculine phrasing such as ‘his penis’ and ‘penis of a man’ with ‘the person’s penis’ or ‘the penis of another person’. One might speculate this is worded to capture occasions where ‘the person’ has a penis, but ‘identifies’ as female or non-binary.

Penalty 

The maximum penalty for this offence is 14 years.

The Penalties and Sentences Act states that a person charged with this offence must serve an “actual term of imprisonment, unless there are exceptional circumstances.” The law allows a court to have regard to closeness in age between an offender and the child. For example, an age gap of 15 and 19 is obviously more favourable to a defendant than 14 and 40. But closeness of age is only one factor for the court to consider.

The consent of the child is not sufficient, of itself, to constitute exceptional circumstances.

Possible circumstances of aggravation

A circumstance of aggravation is something that can be alleged by the prosecution as an additional aspect to the charge that makes it more serious at law.

• For a circumstance of aggravation of the child being under the age of 12 years, the maximum penalty increases to life imprisonment.

• If the offender was the child’s guardian (but not of lineal descent) or the child was under the offender’s care, the maximum penalty increases to life imprisonment.

• If the child is a person with an impairment of mind, the maximum penalty increases to life imprisonment.

Defences

If the offence is alleged to have been committed against a child of or above the age of 12, it is a defence to for the accused person to prove that he believed, on reasonable grounds, that the child was of or above the age of 16 years.

The onus of proving the defence is on the defendant, on the balance of probabilities.

Section 229 of the Code expressly states it is immaterial that the accused person did not know that the person was under that age, or believed that the person was not under that age. Because of s 229, a defendant cannot raise a defence concerning the age of the complainant based on the defence of ‘honest and reasonable mistake fact’ , which would leave the onus of proof on the prosecution.

Which Court hears the Charge?

The matter starts in the Magistrates Court and then is committed to the District Court. Thus, any trial on this charge would be heard by a judge and jury.

Conclusion

Needless to say, charges of this kind are taken very seriously by the courts and the community. Should you find yourself accused of such a crime, it is absolutely vital you seek expert legal advice to assist you in getting the best outcome possible. We at Clarity Law are criminal and traffic law experts, experienced in defending such charges.

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.

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.

It is an offence in Queensland to intentionally inflict serious injury or suffering on an animal, or to unlawfully kill animal. 

What does the law say?

• A person who, with the intention of inflicting severe pain or suffering, unlawfully kills, or causes serious injuryor prolonged suffering to, an animal commits a crime.

Penalty—

Maximum penalty—7 years imprisonment.

• An act or omission that causes the death of, or serious injuryor prolonged suffering to, an animal is unlawful unless it is authorised, justified or excused by—
  1. the Animal Care and Protection Act 2001; or
  2. another law, other than section 458of this Code.
  3. In this section—

"serious injury" means—

1. (a) the loss of a distinct part or an organ of the body; or
2. (b) a bodily injury of such a nature that, if left untreated, would—
   1. endanger, or be likely to endanger, life; or
   2. cause, or be likely to cause, permanent injury to health.

What does the Prosecution have to prove?

The prosecution must prove beyond a reasonable doubt (see our article on reasonable doubt here) the following elements to succeed in a prosecution for this offence:

1. the defendant killed or caused serious injury or prolonged suffering to an animal; and

2. the defendant did so with the intention of inflicting severe pain or suffering; and

3. that the act or omission by the defendant which caused the death, or serious injury, or prolonged suffering to an animal was unlawful.

For this offence, intention is a critical element of the offence. Intention at in the context of criminal law takes its ordinary meaning, that is something that was planned or desired to be carried out.  Intention may be inferred or deduced from the circumstances of the offence, the defendants conduct before, during and after the alleged specified acts and critically anything they said about their goal or ideas.

Are there any defences?

At law there are a wide range of defences to criminal charges, however not every defence3 is available to every charge. Examination of available defences depends on the context of the alleged offending, examples that may be available are:

• Duress;

• Identity;

• Intention – Where the prosecution cannot prove the defendant intended to commit the offence;

• Honest and reasonable mistake of fact;

• Lawful authority; and

• Self-defence (such as when defending oneself another from an animal)

What court will hear my case?

This offence is a strictly indictable offence, meaning that it will commence in the Magistrates Court and proceed through a committal and then be delt with in the District Court.

What does this charge look like?

Charges of serious animal cruelty come about in various ways, from the very public cases where greyhound trainers have been charged for using live baiting practices, through to deliberate abuse of animals including through neglect and mistreatment.

Penalties

The penalties for a charge of serious animal cruelty are wide, and range from a fine up to periods of actual imprisonment. Each case turns on its own facts, and the penalty the court imposes will depend heavily on a number of factors, including but not limited to the extent of the cruelty, the circumstances of the case, the defendants antecedents and any remorse.

Do I need a lawyer?

Do not attempt to represent yourself in court on a serious animal cruelty charge. The matter is strictly indictable, and you will need to navigate the complex court processes that occur to take a matter from the summary jurisdiction to the District Court.   Based on the seriousness of the offending, including if other associated offences are charge, engaging an experienced criminal lawyer will help you get the best available outcome.  If the court records a conviction against you, it may affect your ability to travel internationally and to gain employment.

Conclusion

This article is by no means a complete breakdown of the serious offence of Serious Animal Cruelty. This article serves to give a person an understanding of the offence. This  is not a matter where you should attempt to undertake it yourself. If you require advice about this type of matter, feel free to contact Clarity Law for an obligation free consultation.

Engaging Clarity Law to act for you

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

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

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

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

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

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

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

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

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

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

2. Call us on 1300 952 255 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. 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.

A person charged with a criminal or traffic offence in Queensland may be placed on bail. In many instances the only condition of that bail will be for the person to return to court on a designated date. However, some offences, especially more serious ones, will come with additional bail conditions. This article is not a general guide for bail, but you can find such articles here.

Navigating bail conditions in Queensland can be challenging, especially for serious offences. While some bail conditions are straightforward, others can be quite restrictive. Understanding your rights under the Queensland Bail Act is crucial. If your bail conditions seem too harsh or unnecessary, you have the right to apply for a change. At Clarity Law, our experienced team can guide you through the process, ensuring your conditions are fair and manageable.

What the Bail Act says

The Queensland Bail Act says a court, or police officer, must not make conditions for a grant of bail more onerous than necessary for the person seeking bail, having regard to the nature of the offence, the circumstances of the defendant and the public interest.

As noted in the Bail Benchbook, the Bail Act provides the magistrate with very broad powers to impose special conditions, as the magistrate sees fit, provided the magistrate considers the imposition of the special conditions are necessary to:

1. Secure the defendant’s future appearance,
2. Ensure the defendant, while he or she is on bail, does not:
   • Commit an offence,
   • Endanger the safety or welfare of members of the public,
   • Interfere with witnesses or otherwise obstruct the course of justice.

What is the legal test for a change of bail conditions?

When a defendant is applying to vary his or her bail conditions, a magistrate should consider:

1. Whether the conditions of bail imposed originally are still necessary to secure the defendant’s compliance with the matters set out in the above paragraph; and
2. Whether those conditions at the time of the application to vary bail are more onerous than necessary, having regard to:
   • The nature of the offence,
   • The defendant’s circumstances,
   • The public interest.

What kind of bail conditions can a court impose?

Take as an example a person charged with drug trafficking. The conditions may include:

• You are to live at address X unless permission to change the address is given by the officer in charge of Maroochydore police station or an officer of the DPP.
• You are not to associate with person X.
• You must give details of any mobile device you use to police or and officer of the DPP.
• You must undertake drug counselling with two months on release on bail, or, failing that, provide a reasonable explanation to the officer in charge of the Maroochydore police station why you are yet to do so.
• You must report to the Maroochydore police station every Monday, Wednesday and Friday between the hours of 8am and 4pm.
• You are subject to a curfew. You must answer the door to a member of the Queensland Police Service, as required, between the hours of 9pm and 6am.

How do I change my bail conditions?

 Most of the time this would require an application to the court that granted bail to amend the current bail conditions.  In some cases the current bail may allow a senior police officer or the DPP to change a bail condition for example the police often have the power to change the address the person might have to reside at. Always seek legal advice on the best way to change a bail condition as a failure to comply with the bail conditions can lead to charges of breaching bail and the possibility the bail is revoked and the person remanded into prison.

Conclusion

As can be seen, bail conditions can be strict and can substantially interfere with a defendant’s life. However, bail conditions can not be imposed without reason, and if they appear too onerous or not fit for purpose, you can make an application to change them. You would undoubtedly be greatly assisted in this by engaging a solicitor. We at Clarity Law are criminal and traffic law experts, and can assist you with all aspects of a case, including bail applications and changing bail conditions.

Introduction

It is always a highly stressful situation when police want to talk to your child about an offence. This article will hopefully give you a brief overview of the factors to consider in Queensland.

Should my child talk to police?

The answer is ‘maybe’.

The case for ‘no’.

A defence solicitor’s reflexive advice is often to tell a suspect to give a ‘no comment’ interview. What this means is, the person tells police (either personally or through a solicitor) that they do not want to answer any questions in an interview. If police ignore this and try to plough on with an interview anyway, that interview would not be allowed to be used as evidence against the person.

People are sometimes concerned that not speaking to police will make things worse for them. However, the law specifically says a person is not to be punished simply for refusing to speak to police or incriminate themselves. This is called the ‘right to silence’.

Police approaches to interviews will generally be friendly, with such comments as ‘I just want to hear your side of it’ or ‘I’m just trying to figure this thing out and I am hoping you can help me’. This gives the suspect the illusion he is being helpful and the police want to help him, when in reality he is just giving police more ammunition to use against him. When a person is suspected of criminal offending by police, honesty is usually not the best policy.

The case for ‘yes’.

The case for children is different from adults. The law says that if a child gives a confession, then police should consider other options besides prosecution. However, if the child refuses an interview, then the police are left with no option but to bring charges.

The Queensland Police Operation Procedures Manual states “where a prima facie case is established against a child in relation to an offence, officers should, wherever practicable, divert the child from the court system, unless the nature of the offence and the child’s criminal history indicate a proceeding for the offence should be commenced.”

The Manual identifies that police must consider alternatives to commencing court proceedings, including:

1. taking no formal action,

2. administering a caution,

3. referring the matter to a restorative justice process,

4. offering the child the opportunity to attend a drug diversion assessment program (for a drug related offence),

5. for an offence of being intoxicated in a public place, take and release the child at a place of safety.

Importantly, for the purposes of this article, the Manual says:

Before a caution or other diversion action can be taken against a child, the child must:

1. admit to committing the offence to the police officer and

2. consent to the caution or other diversion action.

If a child does not admit to the offence, diversion options are not available.

In other words, for a child to avoid being charged and having the matter sent to court, the child must admit to committing the offence. This is obviously relevant to an interview, because if the child refuses to take part in an interview, then diversion options such as cautions are not available to the police.

Obviously, if your child did not commit an offence, he or she should not be admitting to it.

It still may be a bad idea to give an interview.

Although police are required to consider alternatives to formal prosecution when a child admits an offence, they are not obliged to avoid formal charges. If the alleged offence is serious or the child already has criminal history, they may proceed to prosecution anyway. Then, a confessional interview has most likely hurt, rather than helped.

For example, if a child is suspected of a home invasion, armed robbery, or other serious offence, even if it is her first interaction with police, police are likely to prosecute even if the child admits the offence. Likewise, police tend to charge drink and drug driving offences for children, even those with no traffic history.

So, what should you do?

As can be seen, whether your child should speak to police is really guided by the particular circumstances of his or her alleged conduct. A overview like this can only ever be general in nature, and that is why it is important to get expert legal advice so we can consider all the relevant information, and potentially speak to police about the matter.  If the police contact you about wanting to talk to your child ring a lawyer before you do anything.

Disclaimer

This article is an outline and is not legal advice. If police want to speak to you or your child about an alleged offence, please seek legal advice from a solicitor who specialises in criminal law.  Also this article only applies to the situation in Queensland.

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. 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.

Kidnapping is a serious offence to be charged with in Queensland. This page is designed to provide people charged with kidnapping or who are seeking more information about the charge, what the court process is and importantly what the penalties may be. 

What does the law say?

Section 354 of the Criminal Code defines kidnapping as 

1. Any person who kidnaps another person is guilty of a crime.

Penalty—

Maximum penalty—7 years imprisonment.

2. A person kidnaps another person if the person unlawfully and forcibly takes or detains the other personwith intent to gain anything from any person or to procure anything to be done or omitted to be done by any person.

What does the Prosecution have to prove?

The Prosecution to succeed with a Kidnapping in Queenslanbd case must prove the elements of the offence, beyond a reasonable doubt (see our article here on criminal burden of proof). The elements of the offence that the prosecution must prove are that the Accused:

1. Took or detained another person;

2. The taking or detention was done forcibly;

3. The taking or detention was unlawful, meaning not authorised, justified or excused by law;

4. With intent to gain anything from that person or to procure anything to be done or omitted to be done by any person.

Looking individually at the elements of the offence, it is plain to see what is meant by Parliament as to what constitutes the offence, however there is some specific clarification with respect of element 4.

The first three elements being unlawfully, forcibly and took or detained take their ordinary, everyday meaning and do not require additional interpretation.

The court in 2004, determined that the word ‘procure’ means to facilitate, enable, bring about or cause and is not limited simply to meaning to compel or induce.

What does this charge look like?

This charge can range in its presentation from a person abducting a child to a spontaneous robbery gone wrong.

It involves the use of force, albeit not strictly an assault, to force another person to submit to the accused’s will in order to gain something.

Defences

What are the defences to this charge? The usual defences may be available to this offence, being:

1. Duress;
2. Mistake of fact;
3. Identify;

Specific to this offence, other available defences may be:

1. Lawful or justified authority to detain the person; or

2. Consent – the other person consented to the restriction.

It is critical to note that each case turns on its own facts, and the success of a defence depends almost entirely on the specific facts and circumstances of your case.

What Court hears this charge?

Kidnapping is a strictly indictable offence, meaning it must be finalised in the District Court. The matter will begin in the Magistrates Court and will then need to proceed through the committal process and an indictment presented in the District Court.

Penalties

The maximum penalty for this offence is 7 years imprisonment.

Let it be clear – a person guilty of this offence can expect to receive a sentence of imprisonment. It will then be your lawyers job to present the case in a matter, taking into consideration the circumstances of the offence, the facts of the case, the level of violence used and the defendants antecedents to determine whether a custodial sentence is warranted or if a non-custodial sentence is available.

Kidnapping is an offence which is considered a serious violent offence, as such if the Court makes a Serious Violent Offence declaration, the court will order that the defendant serve 80% of their head sentence, as opposed to one third, which is a common sentencing yardstick.

What if a Police Officer wants to talk to me?

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

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

 Legal Representation Matters

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

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

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

 Engaging Clarity Law to act for you

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

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

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

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

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

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

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

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

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

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

2. Call us on 1300 952 255 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. 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.