Clarity Law

Recently, I represented a client as solicitor-advocate in a Magistrates Court trial. Solicitor-advocate means I prepared the case and represented the client in court myself, without the aid of a barrister. A Magistrates Court trial means rather than having a jury decide the facts and a judge decide on the law, it was a Magistrate alone deciding both. After the prosecution called its evidence and closed its case, I made a “no case to answer” submission. This submission was successful, and both charges against the client were dismissed.

 

Some Fundamental Legal Principles

The Queensland system of justice assumes a defendant in a criminal case is “innocent until proven guilty.” Whilst we have seen recent challenges to this fundamental principle in cases of “trial by media”, thankfully, this principle still stands in law.

As the defendant is presumed innocent, the Queensland system of justice requires that the prosecution proves the charges against the accused person. This is called the “burden of proof”.

The way the prosecution proves a charge is by presenting evidence. Not all evidence is admissible, meaning not all evidence will be allowed by the judge or magistrate. The magistrate may disallow evidence if it does not accord with the ‘rules of evidence’, or because it would be unfair to the accused to allow the evidence to be admitted. Objecting to the admission of evidence can be a powerful way for the defence to limit the prosecution case.

The prosecution must prove the charges against the accused “beyond reasonable doubt”. That is, the magistrate or jury must be left with no reasonable doubts about whether the charges against the accused have been proved. If they do have reasonable doubts, then the defendant must be found ‘not guilty’.

For the prosecution to prove a charge against an accused person, they must prove each “element” of each offence. Each offence in Queensland law has one or more legal elements which must be proved to establish proof of the charge. For example, for the prosecution to prove a charge of armed robbery, they must prove:

1. The defendant stole something.
2. At the time of, or immediately before, or immediately after, stealing it, the defendant used or threatened to use actual violence to any person or property.
3. At the time, the defendant was armed with a weapon.

In this example, if the prosecution were able to prove that the defendant stole something from a person, but they could not prove that violence was used or threatened, then they could not prove the charge. Notice, the question is not specifically whether the accused did anything wrong in general, the question is whether he committed the specific offence that he is charged with.

 

Legal Argument

The reason I have explained the above principles is because I had to rely on all of them to get the charges against my client dismissed. Most criminal trials are decided on the facts, not the law. In this case, however, the law became an important factor in the outcome.

I cannot be too specific about the details of the case for reasons of confidentiality. But in general terms, the case was decided on a fairly complex legal argument involving: the legal meaning of circumstantial evidence, the legal meaning of intent (intent being an ‘element’ of the offences), the admissibility of evidence, the legal meaning of ‘damage’, whether the prosecution could prove its case beyond reasonable doubt, and the legal test required for a “no case to answer” submission to succeed.

 

Case Strategy

How did I know what points to argue? By having a clear case strategy.

Before the trial started, I knew I was going to make a ‘no case’ submission. My case strategy relied on the prosecution’s mistakes and their weak evidence. I knew roughly what the evidence would be in advance because the prosecution must disclose their evidence before the trial. Everything I did in the trial was aimed at minimising the prosecution evidence by making objections to the admission of evidence and not asking witnesses many questions. The prosecutor did not get a damaging conversation between my client and a witness into evidence. The prosecutor made a mistake. By the close of the prosecution case, the evidence they had was weak enough that I argued they could not prove their case beyond reasonable doubt, and therefore there was no prosecution case for my client to respond to.

After a complex legal argument, the magistrate agreed, and dismissed the charges.

Once you cut out the legal jargon, the main reasons we won were:

• I had a clear strategy.
• I capitalised on the prosecution’s mistakes.
• I never lost sight of the fact the prosecution must prove the charges.

Always remember: the defendant legally is not required to prove anything. He or she is presumed innocent until proven otherwise.

 

Conclusion

What I have written may come off as hard to understand. That’s an unfortunate by-product of the complexity of our legal system, and why expert legal representation is so important: when your future is on the line, you need experienced and expert legal advocates. You need people in your corner who understand the legal system and use it to your best advantage.

Most charges in Queensland begin and end in the Magistrate Court. The more serious charges, however, must be transferred from the Magistrates Court to the District/Supreme Court.^[1] This is called ‘committing’ them. The transfer process is according to this chart:

Steps Before Committal

Full Brief of Evidence and Case Analysis

The “full brief of evidence”, is an assembly of (most of)^[2] the evidence the police possess that they say proves the charges against a defendant. This evidence must be given to the defendant (or Clarity Law) before his or her case is committed to the District/Supreme Court. We then assess the evidence to determine whether the evidence is sufficient to prove the charges.

Case Example

We had a client who was charged with grievous bodily harm,^[3] which is a charge that must be heard in the District Court. However, after we assessed the medical evidence, it became apparent that evidence supported a less serious charge of assault occasioning bodily harm.^[4] We wrote to the prosecution pointing out this discrepancy, and argued the charge should be downgraded. The prosecution accepted this argument, and the charge was downgraded. This meant that the case stayed in the Magistrates Court, which was less costly to the client (in terms of legal fees) and exposed the client to lower maximum penalties.

 

Confirm Instructions

After we have analysed the evidence (with instructions from the client in mind), we comprehensively explain the evidence, what charges we think can or cannot be proved, and then explain the options and seek directions on what to do next.

The Committal Process

There are two ways^[5] of transferring a case from the Magistrates Court to the District/Supreme Court, as explained below.

 

Registry Committal

This process is a matter of completing the correct paperwork, identifying which charges can be committed, and forwarding the paperwork to the prosecution, who then sign their side of it and file it with the Magistrates Court. This option is the fastest, the least costly, and is best suited to those who are going to plead guilty.

 

Application for Committal Hearing

This process is much more complicated than the registry committal.

It requires the preparation of a written application, given to the prosecution, which states:

1. Which witnesses we propose are called and cross-examined,

2. The issues we aim to explore with the witness,

3. the reasons we want the witness called.

The questions we ask the witness will be limited to the issues identified in our written application.

The prosecution can accept or reject our application. If it is accepted, then the case is listed for a committal hearing in the Magistrates Court. If the application is rejected, we can still apply directly to the Court and make arguments why the application should be accepted. If the Court rejects it, the application fails. If the Court accepts it, then the case is listed for a committal hearing. It is very important we do not press for a committal hearing to only fish for information; if a complainant or other witnesses are made to come to court to give evidence before the trial, this can greatly reduce the benefit of a guilty plea if a defendant pleads guilty later.

The main purpose of a committal hearing is to test whether the evidence is sufficient to put a defendant on trial for any indictable offence. It is also for a defendant to properly understand a case against him and clarify important ambiguities in the full brief of evidence.

Case Example

A defendant is accused of murder. The circumstances are she was having an argument with a friend near the side of the road. She threatened to stab him and he then stepped out onto the road and was hit and killed by a car. The prosecution argued that, if not for her threatening actions, the man would not have died, and it was therefore murder. The defence argued the prosecution had no evidence to prove it was the defendant who caused the deceased man to step out onto the road, and even if she did, that is not sufficient to establish a charge of murder. The magistrate threw out the murder charge on the basis there was not sufficient evidence that a jury could convict the accused.

An application for a committal hearing is best suited to those cases where a defendant is quite sure he will plead not guilty in the higher court, or the prosecution case is so weak it is worth challenging in the Magistrates Court.

 

After Committal

Once the case is committed to the higher court, the case and evidence are transferred from the police prosecutors to the Office of the Director of Public Prosecutions (ODPP for short). The ODPP then decide whether to indict (that is charge) the defendant on the same charges, or different charges. Sometimes this will consist of additional charges (if there is something police may have missed, based on the evidence), or fewer charges. It must be assessed on a case-by-case basis whether the charges are likely to change or remain the same.

The ODPP is expected to present the charges to the District or Supreme Court within six months of the committal.

 

Conclusion

Deciding how to proceed at the committal stage is an important step in every criminal case. This is a decision that should be made with the assistance of expert legal advice. We at Clarity Law have the experience and expertise required to help you navigate through this tricky process.

 

^[1] Justices Act 1886(QLD),sections 108 to 134.

^[2] There is some evidence the prosecution is not obliged to give, but will give if requested.

^[3] With a maximum penalty of 14 years.

^[4] With a maximum penalty of 7 years.

^[5] There are technically three ways. The third way is a “full hand up” committal, but this procedure is rarely used.

Parole is when a defendant is supervised in the community by a corrections officer. A person will be placed on parole after he or she has been sentenced to imprisonment. The parole date can be on any day of a prison sentence, including the first day.

Types of Parole

There are two types of parole: court ordered parole and board ordered parole. These are otherwise called a ‘parole release date’ or ‘parole eligibility date’. Court ordered parole is when the Court orders the date a defendant is released on parole. Board ordered parole is when the Court sets a date that the defendant is eligible to apply for parole. When the date set by the Court comes, that is when a prisoner can apply to the parole board for parole. It is then the parole board’s decision whether to release the prisoner on parole. The parole board has 120 days to make a decision about a prisoner’s parole, or if the parole board has deferred its decision, 150 days.

In practical terms, once a person is released on parole the only difference between the two types is the parole board can suspend, vary or cancel a person’s parole if they discover they were given wrong information as part of the prisoner’s parole application.

When Does an Eligibility Date Apply?

If a defendant is sentenced for a serious violent offence^[1] or a sexual offence.

a. A serious violent offence is when a person is sentenced for a violent offence for a period of 10 or more years.

b. A sexual offence is any sexual offence.

If a defendant is sentenced for a prison term longer than three years.

If the defendant was on parole, his parole was cancelled by the parole board, and the Court sentences him to a new term of imprisonment.

The defendant was on parole and he is sentenced to a term of imprisonment for an offence committed while on parole.

 

When does a Parole Release Date Apply?

If a parole eligibility date does not apply, then a parole release date will apply.

 

What is Parole?

Parole is when a person is serving a prison sentence, but doing so in the community. Under the mandatory conditions of parole include, a defendant must:

• report as directed to their supervising Office;
• carry out the lawful instructions issued by their supervising officer;
• give a test sample if required;
• notify of any change of address or employment details; and
• not to commit an offence.

The idea of parole is to supervise a defendant in the community while he serves the rest of his sentence. It also gives a defendant a greater opportunity to rehabilitate than he would have in prison.

If a person breaches any condition of his or her parole, the parole board has the power to cancel or suspend the parole, even if it was court-ordered parole.

 

What Happens if Parole Conditions are Breached?

According to the Corrective Services Act 2006, section 205, the parole board may, by written order—

• amend, suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order—

has failed to comply with the parole order; or

poses a serious risk of harm to someone else; or

poses an unacceptable risk of committing an offence; or

is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas; or

• amend, suspend or cancel a parole order, other than a court ordered parole order, if the board receives information that, had it been received before the parole order was made, would have resulted in the board making a different parole order or not making a parole order; or

• amend or suspend a parole order if the prisoner subject to the parole order is charged with committing an offence; or

• suspend or cancel a parole order if the board reasonably believes the prisoner subject to the parole order poses a risk of carrying out a terrorist act.

 

What Does the Parole Board Consider?

When deciding whether to release a person on parole, the parole board will consider multiple factors which include:

• the prisoner’s criminal history and pattern of offending;
• whether there are any circumstances likely to increase the risk the prisoner presents to the community;
• whether the prisoner has been convicted of a serious sexual offence or serious violent offence;
• any comments made by the Judge during the sentence hearing;
• any medical, psychological or psychiatric risk assessment reports relating to the prisoner – tendered at sentence or obtained while the prisoner has been in jail;
• the prisoner’s behaviour in prison;
• whether the prisoner has access to supports or services in the community;
• whether they have suitable accommodation upon release; and
• the prisoner’s progress and compliance in undertaking any recommended rehabilitation programs and interventions while in prison.

 

Conclusion

As can be seen, the law around parole and parole conditions is strict. While we at Clarity Law do everything possible to avoid our clients going to jail, sometimes it is inevitable. If it must happen, we have the knowledge and expertise to explain a parole order in detail, to ensure you have the best chance of completing your order.

 

^[1] If a person is sentenced for a serious violent offence, he must serve the lesser of 80% of his term of imprisonment, or 15 years, before eligible for parole.

When imposing a prison sentence, a Queensland Court has two primary discretions. The first is to decide the length of the sentence, and the second is to set the release or eligibility date.

The basic structure of prison sentences

A prison sentence might be “six months imprisonment to be released on parole after having served two months”. This means that the prison sentence is six months, and the person is released from custody after two months. The remaining four months will be served on parole. Alternatively, the Court may order that the person serves four years to be eligible for parole after two years.

The two parts, then, are the length of the sentence, and then a parole release or parole eligibility date some time before the end of the sentence.

Setting length of the sentence

Sentencing in Queensland is a complex procedure in which the Court must consider many things, including:

• The sentencing principles in the Penalties and Sentences Act;

• Relevant case law (previously decided cases);

• the maximum penalty of the offence;

• the penalty submissions made by the prosecution;

• the penalties submissions made by the defence;

• the personal circumstances of the defendant;

• the circumstances of the offence;

• any victim impact statement;

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

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

• the criminal history of the defendant.

As can be seen, there is a lot for the Court to consider.

The Queensland Supreme Court has said that sentencing is not a mathematical exercise. Judges and magistrates have a wide discretion in deciding how to impose a sentence. The primary approach is called an “instinctive synthesis”.

In practice, most judges and magistrates are likely to stay within the “range” of previously decided cases. “Range” means the upper and lower limits of the usual sentences imposed for a given offence. For example, a court is likely to impose a penalty of 18 months or more for drug trafficking. This is because most cases show sentences of 18 months imprisonment or more for that offence.

Setting the Release Date

It is rare for a defendant to serve the whole of the length of his prison sentence in custody. He will usually have the opportunity of parole.

As a general rule, a person who pleads ‘guilty’ to an offence will be released or eligible after serving approximately 1/3 of his or her sentence. A person who pleads ‘not guilty’ and loses the trial, will generally be released or eligible after 1/2 of the sentence.

The longer the sentence, the more difference this makes. The difference between 1/3 or 1/2 of six months is one month. The difference between 1/3 or 1/2 of five years is 10 months.

Release Date or Eligibility Date

When a court is deciding when to release a person on parole, it will impose either a “parole release date”, or a “parole eligibility date”.

A parole release date means the Court chooses the date of the defendant’s release. This can be anywhere from the first day of the sentence to the last day.

If the Court does not impose a release date, it will be an eligibility date. This means the Court will set the date for when the defendant is eligible to apply for parole. The defendant applies to the Parole Board for release. It is the Parole Board who decides his release date, as opposed to the Court. The parole board has up to 120 days after the prisoner’s parole application to decide whether to release the prisoner or not. The Parole Board may defer the decision to gather further information, in which case it has 150 days to decide. So, while the prisoner can apply for parole, it may not be granted for up to 150 days after his application.

What is the Most important factor for sentencing?

In our experience, every case is different, and no one case will necessarily be decided in the same way as another. However, the factors below will always be relevant.

The seriousness of the offence. This refers to how seriously the offence is considered at law. A person convicted of murder is always going to do jail time, regardless of every other factor, because of how serious the offence is. A person convicted of possessing a pipe to smoke drugs, however, is almost never going to be sentenced to jail. This is because the offence is not serious enough to warrant actual imprisonment.

Criminal history is a big factor. A person may commit an offence which is not especially serious, but because of his criminal history, it becomes serious. Breaching a domestic violence order is a common example of this. The breach itself may not be overly serious, but because the person has been sentenced for breaching domestic violence orders many times in the past, the Court may consider it has no other option but to impose actual imprisonment.

As outlined earlier, a court will consider previous cases which are similar to the one before it, and attempt to impose a sentence within those bounds. This is for the purpose of (among others) consistency. It would be unfair for one person to get a wildly different penalty from another person for the same offence.

Conclusion

This article is only an introduction to sentencing. We highly recommend if you are charged with any offence, let alone a serious one, that you engage experienced criminal law experts. Clarity Law can give you the individual advice and support you need to make the right move.

 

Why should I engage Clarity Law?

Quite frankly we care about getting the right outcome for our clients and helping them through one of the most difficult times in their lives.

In the face of a criminal law charge, selecting the right legal representation is paramount, and Clarity Law offers a unique blend of proficiency and empathy that sets us apart. Our firm is dedicated to providing clarity in the often complex world of criminal law. We believe that every client deserves a clear understanding of their rights and the legal process they're navigating.

Our experienced team of lawyers approaches each case with a commitment to open communication, ensuring you're informed every step of the way. With a proven track record of securing favourable outcomes, we have the expertise to navigate even the most intricate legal challenges.

At Clarity Law, we strive not only to be your staunch advocates but also to provide a supportive, understanding environment during this trying time. Choosing Clarity Law means choosing a team that will tirelessly work to protect your rights and pursue the best possible outcome for your case.

You can read more about our founder, Steven Brough’s, journey to starting Clarity Law by clicking here.

 

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

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

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

2. 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 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.

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

• Negotiating with a Prosecutor in Queensland

• Court character references

• The difference between a conviction and non-conviction

• Declining a police interview

• 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?

• Police questioning and your right to silence in Queensland

• Drink Driving

• Prison Sentences in Queensland

The lawyers at Clarity Law are traditionally called solicitors. Clarity Law sometimes hires barristers to assist our clients.

What is the difference between a solicitor and a barrister, and why might you need one?

The Short History of Barristers

The profession of barristers, often referred to as advocates or counsel, boasts a rich and storied history dating back to ancient Rome. The origins of barristers can be traced to the Roman legal system, where specialized legal representatives known as "orators" were entrusted with presenting cases in the forum. This early incarnation laid the groundwork for the development of barristers in later legal systems.

The modern concept of barristers as distinct legal professionals emerged in England during the late Middle Ages. By the 16th century, the legal profession had become divided into two distinct groups: solicitors, who handled legal matters outside of court, and barristers, who were trained to argue cases before the courts.

In Australia, the tradition of barristers was inherited from England, and it was further shaped by the evolving legal landscape of the 19th and 20th centuries. The establishment of the Queensland Bar Association in the late 19th century marked a significant milestone in the formalization of the barrister profession in Queensland. Since then, barristers have played a vital role in the legal system, providing specialised advocacy, legal expertise, and representation in courts of law.

Why do Barristers wear Robes and a Wig?

Barristers wear robes and wigs as part of a traditional legal dress code that has its roots in English legal history. Here are the main reasons for this practice:

1. Historical Tradition: The tradition of wearing robes and wigs dates back several centuries to the 17th century in England. At that time, it was customary for members of the upper classes to wear formal attire when appearing in public, and this practice extended to the legal profession.

2. Symbol of Impartiality: The uniformity of robes and wigs is intended to create a sense of neutrality and impartiality. By concealing personal clothing and hairstyles, it emphasizes that the focus should be on the law and the proceedings, rather than the individual barrister.

3. Professionalism and Dignity: The attire is seen as a sign of professionalism and respect for the legal process. It sets a formal tone for court proceedings, underscoring the seriousness and importance of the matters being discussed.

4. Equality in Appearance: Robes and wigs serve to diminish distinctions in appearance between barristers. This is important in conveying the idea that all barristers are equal before the law, regardless of their personal background or status.

5. Historical Continuity: By adhering to these longstanding traditions, the legal profession pays homage to its historical roots and demonstrates continuity in the practice of law.

6. Identification of Role: The attire helps to distinguish barristers from other participants in the legal process, such as solicitors, judges, and court staff. This clear visual distinction aids in the smooth functioning of court proceedings.

7. Courtroom Decorum: The formality of the attire contributes to the overall decorum of the courtroom, reinforcing the gravity of the proceedings and creating a structured environment.

It's worth noting that while this tradition is still observed in some jurisdictions, it has evolved or been abolished in others. In Queensland the wearing of wigs and robes has been reduced with a greater emphasis on practical and comfortable courtroom attire.  In most cases robes and wigs are only worn in the District or Supreme Court involviong criminal matters.

What’s the Difference Between a Barrister and a Solicitor?

The main difference between a barrister and solicitor is a barrister specialises in ‘higher’ court work, and he or she will tend to have less contact with a client, tending to have the client’s instructions conveyed to him through the solicitor. A barrister is a sole trader. Clients will generally not go directly to a barrister, but rather, solicitors approach the barrister to give him work. He is required to accept that brief and perform all work expected under the retainer.

Queensland has a court hierarchy. The highest court in the state is the Supreme Court, followed by the District Court, followed by the Magistrates Court. Barristers will tend to work in the Supreme Court and the District Court. Barristers will often be called upon to do anything more complicated than an adjournment in those courts, which can include trials, pre-trial applications, and sentences. Because barristers appear in those higher courts often, they will be well armed with knowledge of the different judges in those courts, as well as the most up-to-date case law relevant to the charges litigated in those courts.

A solicitor, on the other hand, will be the primary contact for the client. It will often be a solicitor who does the paperwork and who organises the preparation of documents such as character references, personal statements, and psychological reports. The solicitor will be the primary point of contact for the various agencies (prosecution, community corrections, the courts etc). Solicitors will tend to do most kinds of work in the Magistrates Court. More experienced solicitors may appear in the District Court and Supreme Court. Solicitors will be involved in the case from the start, whereas barristers only come into the picture later. In more complicated court proceedings, both the barrister and solicitor will appear in the court, but the barrister will speak to the judge or jury directly while the solicitor ‘instructs’ in a supporting role.

 

Why Would I Need a Barrister?

Mostly it comes down to expertise and experience. While we at Clarity Law have the skills and experience needed to do some things in the higher courts, we are just never going to have the same level of experience in those higher courts as a barrister. This is because the vast bulk of our work is concentrated in the Magistrates Court, whereas a barrister is almost always in the higher courts. Barristers are particularly helpful for complicated processes. For example, a trial by judge and jury is a complex and time-intensive undertaking. Barristers are trained and experienced in the rules of evidence, questioning witnesses, and preparing speeches for a jury. A solicitor will often lack this training and experience, or, if the solicitor has it, it will be basic compared to that of a barrister.

Another upside of retaining a barrister is there will be two heads working on a case instead of one.

 

How is a Barrister Chosen?

Speaking for myself, I have a pool of trusted barristers from which I recommend. The barrister I recommend to a client will depend on a few factors such as the barrister’s proven record with certain types of charges, the personality of the barrister and how well that might fit with the client, and how available a given barrister might be for the work I would need him to do. Choosing the right barrister will depend on the circumstances of the case and the needs and personality of the client. The client need not take my recommendation, but usually does.

 

Conclusion

Most of the time a barrister will come recommended for more complicated court procedures, especially those in the District and Supreme Courts. As always, whether a barrister is needed will be dependent on the specific circumstances of the client’s case. Suffice it to say, should a barrister be required, Clarity Law will choose a barrister we think best fits the requirements of the case and the client.

 

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

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

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

2. 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 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.

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

• Negotiating with a Prosecutor in Queensland

• Court character references

• The difference between a conviction and non-conviction

• Declining a police interview

• 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?

• Police questioning and your right to silence in Queensland

The Queensland laws that regulate the possession of illegal drugs are The Drugs Misuse Act and the Drugs Misuse Regulation. To determine the seriousness of drug possession, the law distinguishes by the quantity, type, and purpose of the drug possessed. For example, possession of a small amount of cannabis for personal use as compared to 50 grams of methylamphetamine for commercial sale, will have starkly different legal consequences for the defendant.

 

What is Commercial Possession?

The Drugs Misuse Regulation 1987 classifies drugs into schedule 1 and schedule 2. Then the quantity of each classification is split into three quantity scales, specified under schedule 3 and schedule 4. These classifications are relevant for the purposes of punishment.

The most common schedule 1 drugs are: types of amphetamines, cocaine, heroin, and anabolic steroids.

The most common schedule 2 drugs are: cannabis, alprazolam, codeine, diazepam, and hallucinogenic compounds.

Section 9 of the Drugs Misuse Act 1986 penalises drug possession in this manner:

In short, possession of a drug is presumed to be commercial if it is over 200 grams for schedule 1 drugs or over 500 grams for cannabis.

It is not always the quantity which is determinative of whether possession is commercial. Sometimes the prosecution will allege that a drug was possessed for a commercial purpose even if it is not over schedule 4. For example, if one person had 15 grams of methylamphetamine in his possession, then it is highly likely that the prosecution would allege there was at least the potential for the drugs to be applied in a commercial way. Another example might be where a person has 1.9 grams of cocaine in his possession, plus $2,500 cash, plus text messages on a phone which appeared to be arranging the supply of drugs. In such a situation, the prosecution would almost certainly allege that the drug possession was for a commercial purpose.

Which court would the case be heard in?

Possessing a schedule 1 drug in excess of schedule 3 or 4 – Supreme Court.

Possessing a schedule 2 drug in excess of schedule 3 – District Court.

Possessing a schedule 1 or 2 drug below schedule 3 – District Court.

All offences can be heard in the Magistrates Court, but only at the prosecution’s discretion. In our experience, it is not common for the prosecution to elect a summary/Magistrates Court hearing in instances where the drug (excluding cannabis) is in excess of 2 grams, and especially where there are allegations of commerciality. We will, however, always try to keep a client’s case in the Magistrates Court to minimise expense, delay, and penalty.

 

What is the Punishment for Commercial Possession?

Like with any sentencing, there is no one sentence which would be imposed for possession of dangerous drugs, because there are many different circumstances for these offences. They can include the quantity of the drug, the type of drug, whether the drug was possessed for a commercial purpose, whether there are other charges surrounding the drug [supplying, for example], the criminal history of the defendant, any rehabilitation undertaken, and other personal circumstances of the defendant.

Suffice it to say, actual imprisonment is available to the Court for these offences. The arguments of the defence lawyer tend to focus on whether the defendant should be released on parole the day of his sentence, or, if that is not possible, then minimising the time spent in actual custody.

 

Can I get Drug Diversion?

Drug diversion is available for some drug offences, but this is in relation to possession of small amounts of drugs for personal use, and it would be heard in the Magistrates Court. Drug diversion is not considered appropriate by the District or Supreme Court.

 

Conclusion

If you are charged with any kind of drug possession, but especially possessing larger amounts, we highly recommend quality representation. We at Clarity Law are highly experienced, and with over 100 happy clients leaving 5-star Google reviews, we are confident we can get you results.

 

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

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

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

2. 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 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.

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

• Negotiating with a Prosecutor in Queensland

• Court character references

• The difference between a conviction and non-conviction

• Declining a police interview

• 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?

• Police questioning and your right to silence in Queensland

• Drink Driving

• • Drink Driving Lawyers Brisbane

  • Drink Driving Lawyers Gold Coast

  • Drink Driving Lawyers Sunshine Coast

  • Drink Driving Lawyer Ipswich

  • Drink Driving Lawyer Beenleigh

Introduction

How you prepare for a court case is very much dependent on the type of matter you have and what you intend to do with it. This article covers some of the basic preparation you should do if represented by Clarity Law.

 

Instructions

The most basic thing you need to do is provide us with “instructions”. Providing instructions means you tell us what you want to do with your case. It also means giving us information and documents which could be helpful for your case. Your instructions will also provide us with useful background about you and your case. We will confirm your instructions in writing so we are clear on what you want us to do.

Sometimes, instructions are straightforward. If you wish to plead guilty to a mid-range drink driving offence and make an application for a work licence, then we know we need to prepare affidavits and then represent you in court.

If you want us to commence negotiations with the prosecution, then we would analyse prosecution evidence and draft arguments.

In essence, your instructions guide the direction of the case.

 

Personal or Trial Statements

If you want us to represent you for a plea of guilty for a serious offence, we will often ask you to provide a personal statement. This will tell us information about your background, such as: where you grew up, what grade you got to in school, and whether both parents were around. It will include your work history and may contain psychiatric and substance use history. The purpose is for us to get a better understanding of who you are, and then to present that in a way most helpful to you in court.

Let us assume your charge is drug possession. If you grew up in a household where drug taking was normal, and you first tried drugs when you were 13, this would be important for the Court to know. We could only share such things with the Court by getting it from you.

A trial statement is something different in nature. If you want to take your case to trial, then we will need the exact basis on which you are contesting each charge. We will ask you to write a paragraph-by-paragraph response to the police case / complainant’s statement. This allows us to understand the grounds on which you contest the case, and helps us form the basis for a case theory. The case theory informs the case strategy. We need a case strategy to win.

 

Documents

We will commonly ask you to give us documents such as character references, medical notes, or any proof of rehabilitation, if relevant. These will be used as supporting material in court.

Sometimes your documents can help us with drafting negotiations to the prosecution. Let us say you are charged with unlicensed driving while SPER suspended. Maybe you did not know your driver licence was suspended because SPER sent a letter to your old address. If you gave us a copy of your driver licence confirming your current address, we could use that to back-up your claim you did not know.

 

Rehabilitation

When a Court sentences you, it must consider sentencing principles. One of the principles in your favour is rehabilitation. Rehabilitation means any efforts you have made to change your habits or circumstances since the offence.

If you are charged with a drink or drug driving offence, then we will usually recommend you undertake the "Queensland Traffic Offenders Program".

If you are charged with an offence of violence, then it is often wise to undertake anger management or other counselling.

If you are charged with a domestic violence offence, then undertaking a program such as “Men Choosing Change” would be a good choice.

If you are charged with a drug offence, then getting clean drug screens or residential rehabilitation would be suitable.

Writing a letter of apology to the complainant would show that you have insight into your wrongdoing, and demonstrates remorse. Demonstrating remorse can persuade a Court you are more likely to rehabilitate.

There are many ways to prove rehabilitation, and we can advise you of the most effective way to do so, based on the circumstances of your case. The key is to do it and then prove you have done it.

 

Choosing an Outfit

When attending a court, we recommend business wear; something that looks professional. This shows a degree of respect to the Court and shows that you are taking the case seriously. You may be surprised some people present to Court in a singlet, shorts, and thongs. We cannot prove they get worse outcomes due to their appearance, but basic psychology would suggest it could be a factor.

 

Conclusion

These are some, but not all, of the main ways in which you can prepare for your case. If you are engaging us then you will naturally expect us to do most of the work, but there are some things we will need you to do to help us prepare your case. Suffice it to say, if you follow through on the preparation that we ask of you, it will only help things go in your favour when we represent your interests.

 

Theoretically, our system of criminal justice is set up to give the best possible chance to an innocent person to avoid a criminal conviction. If you are falsely accused of a crime there are strategies to give you the best defence.

Fundamental Principles

There are a few fundamental principles that are intended to act as safeguards in the event of a falsely accused person. They are called:

• Innocent until proven guilty,
• The burden of proof,
• Proof beyond reasonable doubt.

 

Innocent until proven guilty.

This means exactly what it sounds like: an accused person is presumed innocent until he is proven guilty of a charge. The prosecution must prove the charge through admissible evidence. This evidence can be witness statements, CCTV, forensics, documentary evidence, photographs, or even the accused person's own confession.

 

The burden of proof.

The prosecution must prove the charges against the defendant. This is known as the burden of proof, because they have the burden of proving their case. The defendant does not have to prove anything. If the defendant wishes, he can try to set up a positive case proving his innocence. But the jury is not allowed to draw an adverse inference against him if he chooses not to do that.

 

Proof beyond reasonable doubt.

This means the prosecution must prove their case to such an extent that the jury is left with no reasonable doubt about the person's guilt. It isn’t that the accused might be guilty or is even probably guilty, but the jury must be left without any sensible doubt of their guilt.

 

Interview

Nine times out of 10, our advice is for you not to give an interview to police. There are various reasons for this. One of the big ones is, if the police don’t have enough evidence, or have very thin evidence, but then you give an interview, there is a possibility you will say something self-incriminating. Most police are seasoned interrogators, and in our experience, it is only on TV programs that a defendant manages to outsmart or bamboozle police in an interview. Think about it: they interview suspects as part of their day job; you may have never even interacted with police before this moment. So, you are already at a distinct disadvantage.

However, there may be rare instances where giving an interview is the right move. You do not want to try this without legal advice and without a lawyer attending with you. For example, if you are accused of being at East Brisbane on the night of the alleged offence, but you can prove you were at Toowoomba that night, then it may be worth confirming that early with police in an interview. But as I said earlier, this would only be in rare cases and after careful consideration with legal advice. There is a chance in giving the interview that police will not choose to charge you because of what you tell them or what you can prove to them.

If you want to learn more see our article on your right to silence.

 

Negotiations

If you are charged, then the next port of call is to negotiate with the prosecutors. The intention here is to persuade them to drop the charge(s) against you. There are various ways this can be argued: either they have a lack of evidence, or you are able to present evidence that shows your innocence. For example, we had a client who was charged with drink driving. The car was parked in a car park, the client was seated in the passenger seat, and the car was registered to a different owner. We were able to present a statutory declaration from the client’s friend that he in fact drove his car to the location with our client as a passenger, and then left our client in the car while he went and got himself a haircut. Police confirmed the car belonged to our client’s friend, had no evidence that contradicted the friend’s statutory declaration, and therefore decided to drop the charge.

The above is a simple example of negotiations, but the point is they can be essential in getting you out of wrongly laid charges.

Check out our article on negotiating with a prosecutor.

 

Disclosure

The accused is legally entitled to ask for disclosure from the prosecution. What this means is we will ask the prosecution to provide us with all of the evidence they have in their possession to do with the case, whether helpful to the prosecution or helpful to the defence. Disclosure can include conferencing notes with witnesses, the internal police narrative on their database, criminal histories of prosecution witnesses, among others. With the widespread use of body worn camera footage, this can occasionally be quite helpful for a defendant. It may show a rather different version of events than what is reported in the police version of the facts.

Obtaining disclosure and analysing it carefully is critical, because it can provide an advantage to a defendant for negotiations or for trial. For example, internal police notes may show that their main prosecution witness has made allegations against other people previously and that those allegations had not been prosecuted due to insufficient evidence. Or perhaps a prosecution witness’s criminal history shows they are a person of poor character. Sometimes you might even strike gold with body worn footage and it may capture illegal police conduct which allows for the exclusion of certain evidence.

In any case, in an instance where you are falsely accused of an offence, you want the prosecution to give you everything they have which they say proves their case, so we can search for inconsistencies, or, if they don't have much evidence, then we can start to set up a an affirmative case against their case to make our case look much stronger than theirs.

 

Trial

Sometimes, despite our best efforts, the prosecution stubbornly presses on with the charges and forces us to take the case to trial. It is an unfortunate reality that they can press on with a weak case right up to the week before a trial. In the meantime, the poor defendant is losing sleep with stress and worry about his fate. Nevertheless, there will be times where an innocent person will have to take the case all the way to the conclusion of a trial. A trial means there will be a judge and jury, and the jury must decide if the defendant is guilty of the offences ‘beyond reasonable doubt’.

For a trial, preparation is half the battle. That means we come to court prepared with a case strategy, with a comprehensive version of your instructions, a carefully constructed case plan which breaks down all the weaknesses in the prosecution case, and ways in which to best exploit those weaknesses. In a sexual assault case, the defence case theory may be “it was consensual”. Then the defence strategy would centre around trying to show that the evidence supports the defence case.

Obviously, every case is different, and it can only really be with expert legal advice and representation that you can properly set yourself up for a trial if you are forced to take it all the way to the end.

 

Conclusion

The foregoing is only a brief overview of the different things you can do, and the different strategies you can try if you are wrongly accused of an offence. To have the best chance possible, you are going to need experienced lawyers. Clarity Law does no legal aid cases. That mean all attention will be focused on giving you the best defence possible. Our aim will always be to get a favourable outcome without the need of going to trial. But if a trial becomes necessary, then we have the experience to do the best preparation and give you the best chance possible.

 

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

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

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

2. 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 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 information to assist you, if you want to engage us then great, if not then you at least have more information.

 

Other articles that may be of interest

• Supplying dangerous drugs
• Your right to silence
• Negotiating with a Prosecutor in Queensland
• Court character references
• The difference between a conviction and non-conviction
• Declining a police interview 

 

We all know it is against the law to use violence against someone. We also know that there are some exceptions to this general rule. Defending ourselves or someone else is one of these exceptions.

 

What is Self Defence?

In its most straight-forward formulation, self defence means protecting ourselves (or someone else) from violence, or anticipated violence.

For example, a man starts randomly punching you at the pub. In this situation, you are legally entitled to defend yourself. There are a variety of ways you could do this: punching back, tackling him to the ground, or smashing a bottle and stabbing him with it.

Maybe instead of getting punched yourself, a female patron at the pub attacks your fiancé by pulling her hair and kicking her in the legs. In this case, you leap to your fiancé’s defence by either trying to pry the aggressive female’s fingers open so she will release the hair, or, grabbing a pool cue and whacking the aggressor in the face with it.

 

Reasonableness

In two of the above scenarios, there is a degree of force that might fairly be called excessive. Self-defence is only available as a legal defence if the force used is “reasonable to repel the attack”. To use the first example above, punching or tackling may be reasonable, but stabbing him with a broken bottle probably is not, with the well-known dangers that come with such an action. For the second example, trying to pry open her fingers appears reasonable, but whacking her in the face with a hard weapon like a pool cue probably is not.

While an element of reasonableness is necessary, the courts do not expect a person defending himself, who has to react instantly to danger to “weigh precisely the exact measure of self-defensive action which is required”. That is to say, while the force used to defend yourself must be reasonable, the courts make some allowance for people acting in the heat of the moment, under a highly stressful circumstances, with little time to carefully weigh the reasonableness of their actions.

 

Pre-emptive Strike

There are circumstances where it is lawful for you to assault another because you reasonably believe you are about to be attacked, without having been attacked first. This will depend on the circumstances.

For example, if in the heat of an argument about footy, a man says to you, ‘To hell with this, I’m going to give you the flogging of a lifetime’ and draws his arm back with a clenched fist, it may be reasonable for you to believe an assault is imminent, and crash tackle the man to the ground, or punch him pre-emptively.

For another example, if a man yells across a wide street to you, ‘Where’s that 10 bucks you owe me? Maybe I should come over there and take it!’, it would not be reasonable for you to take 15 seconds to cross the street to him and push him over. Even if you claimed to believe you would be attacked, the circumstances would suggest it was not reasonable for you to believe an attack was imminent. Following the same example, if the man was striding across the street towards you with an angry facial expression with his hands curled into fists, then it may be reasonable for you to pre-emptively strike him.

As can be seen, much of the above is common sense. Whether self-defence is established is a question for a jury.

 

Defence of Someone Else

As premised earlier in this article, you are entitled to use force in defence of someone else as well as yourself. It need not be a person known to you. If you were to intervene in a fight and separate two people by pushing one of the women away from the fight, you would likely have a legal defence for the pushing.

 

Charges the Defence Applies To

In Queensland, there are multiple charges that can be laid in relation to violence: common assault, serious assault, assault occasioning bodily harm, wounding, choking, grievous bodily harm, and even murder.

Self-defence can be raised as a defence for each of these charges.

 

Defence of Property

Queenslanders have a limited legal right to defence their property, for example, ejecting trespassers from their property. As explained earlier, this must be reasonable. You can push a person off your land, but not clobber him with a weapon. This, of course, can be different if trying to repel a home invasion by armed burglars.

 

Who Must Prove it?

If the defence is raised on the evidence, then the burden is on the prosecution to disprove the defence.

 

Consequences of the Defence

If the jury is persuaded you used violence while acting in self-defence, you will be acquitted and found ‘not guilty’ of the charge. You are free to go about your life and there is no punishment by the Court.

Conclusion

This article is merely an overview. This defence will necessarily be applied where no two scenarios are alike. Needless to say, expert legal advice will be critical in assessment of such matters.

 

For criminal and traffic cases, the Queensland courts have multiple sentencing options at their disposal.

This article will concentrate on suspended sentences of imprisonment.

 

What is a Suspended Term of Imprisonment?

Somewhat artificially, a suspended term of imprisonment (sometimes called a ‘suspended sentence’) is a term of imprisonment wholly or partially served in the community. For example, a person can be sentenced to a term of imprisonment of 12 months, suspended after three months, with an operational period of two years. This would mean that the person served three months in custody and nine months are then still ‘hanging over his head’ for two years after that. If he was to be convicted of an offence ‘punishable by imprisonment’ within those two years, he would then be dealt with for the ‘breaching’ offence and after that, sentenced for breaching the suspended term of imprisonment.

Once the suspended sentence is breached, the court has a few legislated options available to it, according to section 147 of the Penalties and Sentences Act.

The first, and default, option is to order the person to serve the whole of the remaining part of the suspended term of imprisonment. That is, using our above example, nine months imprisonment.

The second option is to order the person to serve part of the outstanding suspended term of imprisonment, such as four of the remaining nine months.

The third option is to extend the ‘operational period’ of the suspended sentence. So, again using our example, the two years operational period might be extended for another two months, adding two months to the remaining operational period.

Options two and three are only available when the Judge or Magistrate decides it would be “unjust” to require the person to serve the whole of the remaining period of suspended imprisonment.

There is a legal test to assist the Court in deciding whether it would be unjust to require the person to serve the whole of the remaining period of suspended imprisonment:

“The court must have regard to—

(a) whether the subsequent offence is trivial having regard to—

(i) the nature of the offence and the circumstances in which it was committed; and

(ii) the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and

(iii) the antecedents and any criminal history of the offender; and

(iv) the prevalence of the original and subsequent offences; and

(v) anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example—

(A) the relative length of any period of good behaviour during the operational period; and

(B) community service performed; and

(C) fines, compensation or restitution paid; and

(D) anything mentioned in a pre-sentence report; and

(vi) the degree to which the offender has reverted to criminal conduct of any kind; and

(vii) the motivation for the subsequent offence; and

(b) the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and

(c) any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment.”

 

A Scenario

Clarity Law had a client^[1] who was sentenced in the District Court for violence offences. He was sentenced to 18 months imprisonment, suspended after four months, with an operational period of three years. That is, he served four months in custody before he was released from jail to serve the rest of his sentence in the community.

Then, about nine months into the District Court suspended sentence, he committed a shop steal offence, taking a bottle of alcohol valued less than $40. He was fined in the Magistrates Court for that offence. The law then required him to be committed to the District Court to be dealt with for the breach of suspended sentence. The District Court decided to extend the operational period of his suspended sentence, noting the offence was of a different type from the original offences and was far less serious, and it would be unjust to require him to serve any time in custody.

About two months, later he committed more offences of violence; he was charged with common assault for a punch and charged with a beach of domestic violence order. Thanks to our skilful negotiations, we were able to get the common assault withdrawn and the facts of the DVO breach changed to a push. In the Magistrates Court he was sentenced to nine months’ probation. He was then committed to the District Court to be dealt with for breaching his suspended sentence.

In the District Court, the Judge commented he was ‘skating on thin ice’. Ultimately, the judge decided to activate the remaining portion of the suspended term of imprisonment, but then place the client on immediate parole. This meant that he had 14 months to perform on parole, or risk being sent to custody by the authorities. That is, he did not have to commit another offence to risk having his parole cancelled, as the parole board has the authority to suspend or cancel his parole if he has failed to comply with the parole order.

Although it may not be obvious from the scenario described above, our client was actually very fortunate that he was not required to serve any additional time in custody.

 

Conclusion

As can be seen, dealing with a suspended sentence can be complicated, particularly if it is imposed by a higher court and then breached by offences dealt with in the Magistrates Court. We highly recommend getting expert legal advice if you find yourself in such a position.

^[1] We have changed the details to maintain client confidentiality.