Hannay Criminal Defence

When you’re facing criminal charges in Queensland, one of the most critical documents you’ll encounter is the QP9, or the Queensland Police Form 9 (often called a police court brief). This document plays a central role in criminal proceedings and significantly influences how your case moves through the legal system.

What Is a QP9?

A QP9 is an official document prepared by Queensland Police Prosecutions when someone is charged with an offence. It provides a detailed outline of the charges against the accused and summarises the alleged facts surrounding the incident. The QP9 also typically includes the accused’s criminal and traffic history (if applicable) and summaries of key evidence such as CCTV footage, witness statements, and details of any compensation or restitution being sought.

Why Is the QP9 Important?

The QP9 forms the foundation for the prosecution’s case against you. If you decide to plead guilty, you are not only accepting the charges but also agreeing to the facts as outlined in this document. It’s important to review this document carefully as it could have significant long-term consequences for your criminal record and future opportunities.

 Key Components

A typical QP9 contains several essential elements that provide the core information for your case:

• Charge Sheet: Lists the specific offences you’re accused of. It’s crucial to understand the charges and how they’re framed.
• Summary of Alleged Facts: Describes the prosecution’s version of events and the facts supporting the charges.
• Criminal and Traffic History: Includes details of any past offences, which could impact your sentencing. Verify its accuracy.
• Available Evidence: Outlines the key evidence, such as CCTV, photos, or forensic reports, that the prosecution will use.
• Witness Information: Lists people who may testify, including witnesses and police officers.
• Compensation Claims: Details any victim claims for compensation, which could influence sentencing or restitution orders.
• Police Objections to Bail (if applicable): Outlines the police’s reasons for opposing bail, such as concerns about flight risk or reoffending.

Accessing Your QP9

You will typically receive a copy of the QP9 at your first court appearance. However, if you have already engaged our Criminal Lawyers before your court date, we may be able to request the QP9 on your behalf in advance. This allows us to thoroughly review the document and prepare your defence in the best possible way.

What to Do When You Receive the QP9

Once you have the QP9, it’s essential to go over every detail carefully, either by yourself or with our expert Criminal Lawyers. This document will guide how your case is argued in court, so it’s crucial to identify any issues early on.

QP9 vs. Brief of Evidence

The QP9 is a preliminary document that summarises the charges and key facts, whereas a brief of evidence comes later in the process, typically when you are preparing for trial or contesting the charges.

A brief of evidence is much more detailed and includes:

• Full witness statements
• Complete CCTV footage or bodycam footage
• Detailed police interviews
• Medical reports
• DNA or forensic evidence
• Other supporting documents that the prosecution will rely on to prove their case

Handling Discrepancies

It’s not uncommon to find errors or discrepancies in your QP9. Whether it’s a factual mistake, incorrect information, or an unfair representation of events, it’s crucial to address these issues promptly. Here are steps you can take if you find discrepancies:

• Seek Immediate Legal Advice: If you believe something is incorrect or misleading, immediately consult our experienced Brisbane Criminal Lawyers.
• Request Amendments: We can liaise with the prosecution to correct errors or misstatements.
• Consider a Disputed Facts Hearing: If there is a serious disagreement about the facts of the case, you may need to contest these facts in a disputed facts hearing, where the court will resolve the conflict based on evidence.
• Request Additional Evidence: If necessary, we may request the full brief of evidence from the prosecution, which could help clear up discrepancies or provide additional context to your defence.

Impact on Sentencing

The details outlined in your QP9 play a significant role in determining your sentence. Information such as:

• How you behaved during your arrest
• Whether you cooperated with authorities
• Any admissions or confessions you made
• The circumstances surrounding the offence
• Any aggravating or mitigating factors

These elements will all be considered by the judge when determining your penalty. For example, if you showed remorse or demonstrated good behaviour during arrest, this might be taken into account as a mitigating factor.

Long-term Implications

The impact of your QP9 goes beyond the immediate case and court proceedings. Some long-term consequences to be aware of include:

• Permanent Police Record: The QP9 forms part of your police record, which may be referred to in future legal matters.
• Impact on Employment or Licensing: A criminal record can affect future job prospects, particularly for roles that require background checks or professional licensing.
• Disclosure in Future Legal Proceedings: The QP9 could be relevant if you are involved in future legal matters, affecting things like bail applications or other court cases.

Possible Outcomes

Many positive outcomes can be achieved through careful review and negotiation, including:

• Reduction of serious charges
• Correction of fact patterns
• Removal of prejudicial information:
• Dismissal of Charges

The Role of Legal Representation

HAn experienced Criminal Lawyer, such as ours can:

• Gain early access to the QP9 and other case materials
• Provide expert analysis of the charges and evidence
• Negotiate effectively with the prosecution
• Safeguard your rights throughout the legal process
• Present the best possible case on your behalf

Practical Tips for Managing Your QP9

• Obtain a Copy Early: Try to get a copy of the QP9 as soon as possible, either at your first court appearance or through your lawyer.
• Review the Details Thoroughly: Check for accuracy and ensure all information is correct. Look for any inconsistencies that might affect your case.
• Document Discrepancies: If you find errors, write them down and discuss them with your lawyer.
• Seek Professional Legal Advice Quickly: Don’t hesitate to contact our expert Criminal Lawyers who can review the QP9 and guide your next steps.
• Keep All Documents: Retain a copy of your QP9 and any related documents for your records.

Conclusion

The QP9 is a critical document in Queensland’s criminal justice system. It can significantly affect the outcome of your case and has long-lasting implications for your future. Understanding the document and ensuring it is accurate is key to navigating the criminal justice process effectively.

Get Prompt Legal Help

Our experienced Criminal Lawyers provide comprehensive support, from obtaining and reviewing your QP9 to negotiating with the prosecution and representing you in court. Rest assured we will fight for the best possible outcome for your case. Get expert advice from one of our Gold Coast Criminal Lawyers or Brisbane Criminal Lawyers now.

Social media has become an integral part of daily life, transforming the way people communicate, share information, and interact with the world around them. This pervasive influence has extended far beyond personal connections, reaching into various aspects of society, including the realm of criminal law. The intersection of social media and criminal justice has created a complex landscape that challenges traditional legal practices, particularly in the context of criminal trials in NSW. This article explores the multifaceted impact of social media on criminal law.

Evidence in the Digital Era

As social media platforms have gained popularity among NSW residents, they have become valuable sources of potential evidence in criminal cases. Prosecutors and defence lawyers in NSW courts increasingly rely on social media content to support or challenge cases. Posts, photos, videos, and location check-ins can reveal vital information about a suspect’s whereabouts, activities, or state of mind during an alleged offence.

However, using social media as evidence presents challenges. The NSW legal system, like others in Australia, faces issues of authenticity, privacy, and admissibility concerning digital evidence. The Evidence Act 1995 requires that evidence be relevant, material, and competent, which can be complicated when dealing with easily manipulated digital content.

Authentication is a significant hurdle; judges often demand a higher standard of proof to verify the authenticity of digital evidence. This may involve expert testimony, metadata analysis, or corroborating evidence, making the process time-consuming and technically complex.

Additionally, the use of social media evidence must be carefully balanced against the risk of unfair prejudice. A casual comment or joke made by a resident may be misinterpreted when presented in court out of context. Judges must weigh the probative value of such evidence against its potential to unduly influence the jury’s perception of the accused.

The Jury in the Age of Social Media

The impact of social media on criminal trials in NSW extends beyond its role as a source of evidence. It has also significantly affected jury selection and juror conduct, presenting new challenges to the fairness and integrity of trial proceedings in the state.

During the voir dire, the process where potential jurors are questioned by a judge or lawyer to assess their suitability for serving on a jury, lawyers are increasingly incorporating social media screening into their jury selection strategies. A potential juror’s online presence can reveal biases, connections, or prior knowledge that might influence their ability to serve impartially. While this practice can help ensure a fair trial, it also raises ethical questions about privacy and the extent to which a person’s online life should be scrutinised in the jury selection process.

Once a jury is empanelled, social media poses additional risks to the integrity of the trial. The temptation for jurors to seek information about the case or share their experiences online can be strong, potentially leading to mistrials or appeals. This was highlighted by a Supreme Court of South Australia judgement in 2016 when two jurors were dismissed and fined $3,000 each for seeking online information about the accused during a criminal trial.

To address these concerns, NSW courts have had to adapt their instructions to jurors, explicitly prohibiting social media use related to the case. The NSW Department of Justice has issued specific guidelines for jurors on social media use during trials. These measures reflect the ongoing struggle to balance the realities of our connected world with the fundamental principles of a fair trial in NSW.

Social Media as an Investigative Tool

Law enforcement agencies have recognised the potential of social media as an investigative tool, using it to gather evidence, track suspects, and even prevent crimes. Social media platforms can provide real-time information about criminal activities, helping the Police Force to respond quickly and effectively.

In NSW, police have successfully used social media to solve crimes and locate missing persons. Public engagement through social media has become a valuable asset in criminal investigations, with law enforcement agencies using platforms to disseminate information and seek public assistance.

However, the use of social media in investigations also raises concerns about privacy and the scope of police surveillance in NSW. The line between public and private digital spaces is often blurred, leading to debates about the extent to which law enforcement can access and use social media content without infringing on individual rights of NSW residents.

Self-Incrimination in the Digital Age

For defendants, social media can be a double-edged sword. While it may provide alibi evidence or character testimony, it can also lead to self-incrimination. Many residents fail to recognise the potential legal implications of their online activities, sharing information that could later be used against them in court.

Defence lawyers must now consider their clients’ digital footprints as part of their case strategy. This includes advising clients on social media use during ongoing legal proceedings and scrutinising past online activity for potential risks or benefits to the case.

The impact of social media on alibi and character evidence is particularly significant in trials. A defendant’s social media timeline can corroborate or contradict an alibi claim, while their online behaviour can influence perceptions of their character. Defence lawyers must be prepared to address social media evidence that may be prejudicial to their clients, contextualising online content and challenging its relevance or authenticity when necessary.

Ethical Considerations and Privacy Concerns

The integration of social media into criminal law practices has given rise to new ethical considerations for legal professionals. Lawyers must navigate complex ethical boundaries when accessing and using social media evidence. The Law Society of New South Wales provides guidelines to ensure that lawyers do not engage in deceptive practices or inappropriate communications through social media.

Privacy rights in the context of social media remain a contentious issue. While users often share personal information publicly, there is ongoing debate about the extent to which this information can be used in legal proceedings without violating privacy expectations. NSW courts continue to grapple with defining reasonable expectations of privacy in the digital age, particularly when it comes to content shared on social media platforms.

The Future of Criminal Law in a Social Media World

As social media continues to evolve, its impact on criminal law is likely to grow more profound. Legal professionals, law enforcement agencies, and the courts in NSW will need to adapt continuously to address the challenges and opportunities presented by this digital landscape.

One area of potential development is the use of artificial intelligence and machine learning to analyse social media data in criminal investigations and trials. While these technologies offer powerful tools for processing vast amounts of digital evidence, they also raise concerns about accuracy, bias, and privacy.

Another emerging issue is the role of social media companies in criminal proceedings. As gatekeepers of vast amounts of user data, these companies are increasingly being called upon to provide information in criminal cases. This has led to debates about data ownership, privacy, and the responsibilities of tech companies in the NSW criminal justice system.

Conclusion

Social media has profoundly impacted criminal law, reshaping evidence collection, jury selection, and trial conduct. Its influence introduces new complexities that challenge the integrity of the justice system, necessitating careful navigation by legal professionals and lawmakers.

As NSW adapts to this evolving landscape, it is essential to balance the benefits of social media with the protection of individual rights and the principles of fair trials. By developing robust guidelines and remaining engaged in ongoing dialogue, the state’s legal framework can effectively address these challenges, ensuring justice is served in the digital age while safeguarding the rights of all parties involved.

For further information on the topics discussed in this article or to seek assistance with a criminal law matter, contact one of our Sydney Criminal Lawyers today. Our commitment is to offer you comprehensive legal support in navigating the complexities of criminal law in the digital age.

In Queensland’s criminal justice system, the concept of proportionality plays a pivotal role in shaping sentencing decisions. This principle ensures that punishments align with the severity of crimes committed, taking into account various factors that influence culpability and societal impact. Understanding the nuances of proportionality is crucial for all stakeholders in the legal process, from practitioners to the general public, which this article aims to help you with.

The Essence of Proportionality

At its core, proportionality in Queensland sentencing mandates that the punishment should fit the crime. This fundamental principle is enshrined in the Penalties and Sentences Act 1992 (Qld), hereafter, the Act, which outlines the primary purposes of sentencing. Section 9(1)(a) of the Act emphasises the importance of imposing punishments that are “just in all the circumstances.”

Applying proportionality requires a delicate balance. Sentences must reflect the gravity of offences and provide justice for victims while considering the unique circumstances of each offender. This approach aims to avoid excessively harsh punishments that may be disproportionate to the crime committed.

Legal Framework and Judicial Discretion

Queensland shapes its approach to proportionality through both legislative provisions and common law principles. The Act provides a comprehensive framework, outlining sentencing purposes, factors to consider, and available options.

Within this framework, judges and magistrates exercise considerable discretion in determining appropriate sentences. This flexibility allows for tailored sentences that account for individual case nuances. However, this discretion is not unlimited; it must adhere to established legal principles and guidance from higher courts.

Key Factors Influencing Proportionality

Several elements play a crucial role in applying proportionality in sentencing in Queensland:

• Offence Severity: The nature and gravity of the crime are primary considerations, including factors such as violence level, harm caused, and premeditation.
• Offender Circumstances: Personal characteristics like age, mental health, criminal history, and rehabilitation prospects significantly influence sentencing decisions.
• Statutory Maximum Penalties: These serve as a benchmark for assessing crime seriousness and promoting consistency across similar cases.
• Mitigating and Aggravating Factors: Circumstances that may reduce or increase culpability are carefully weighed in the sentencing process.
• Community Standards: While not directly influencing individual sentences, broader societal expectations regarding certain offences can shape overall sentencing approaches.

Challenges in Achieving Proportionality

Despite its importance, achieving true proportionality in sentencing presents several challenges:

• Balancing Sentencing Objectives: The Act outlines multiple sentencing purposes, including punishment, rehabilitation, deterrence, denunciation, and community protection. Striking the right balance between these sometimes conflicting objectives can be complex.
• Consistency vs. Individualised Justice: While maintaining sentencing consistency is crucial for public confidence, it must be balanced against the need for tailored justice that considers each case’s unique circumstances.
• Mandatory Sentencing Provisions: Queensland has introduced mandatory minimum sentences for certain serious offences, which can create tension with the principle of proportionality by limiting judicial discretion.
• Evolving Societal Attitudes: As community perspectives on certain offences change over time, ensuring sentences remain proportionate to contemporary standards can be challenging.

Practical Application of Proportionality

In practice, Queensland courts apply proportionality through a structured sentencing process:

• Assessing Offence Severity: Courts first consider the nature and circumstances of the offence, placing it on a spectrum of seriousness for that particular crime type.
• Evaluating Offender Factors: Personal circumstances and mitigating factors are then taken into account.
• Weighing Sentencing Purposes: Courts consider which sentencing purposes are most relevant to the case at hand.
• Comparative Analysis: Sentences in similar cases are often reviewed to ensure consistency and proportionality.
• Applying Specific Principles: Concepts such as totality (for multiple offences) and parity (for co-offenders) are applied to ensure overall proportionality.
• Final Determination: Courts arrive at a final sentence deemed proportionate to the offence and offender’s circumstances.

The Appeals Process and Proportionality

The appeals system plays a vital role in maintaining proportionality in Queensland’s sentencing practices. Both prosecution and defence can appeal sentences on grounds of manifest excessiveness or inadequacy. The Queensland Court of Appeal regularly reviews sentences to ensure alignment with established proportionality principles.

Through this process, the Court of Appeal provides guidance to lower courts on applying proportionality in various contexts. For example, in R v BCX [2015] QCA 188, the Court emphasised the need for sentences to reflect the seriousness of child sexual offences while also considering rehabilitation prospects, especially for young offenders.

Proportionality and Specific Offender Groups

Queensland’s approach to proportionality recognises that certain offender groups may require special consideration:

• Youth Offenders: The Youth Justice Act 1992 (Qld) provides a separate framework for sentencing young offenders, emphasising rehabilitation while still applying proportionality principles.
• Indigenous Offenders: The Penalties and Sentences Act 1992 (Qld) requires courts to consider submissions from community justice groups when sentencing Aboriginal or Torres Strait Islander offenders, ensuring cultural factors are considered in determining proportionate sentences.
• Offenders with Mental Health Issues: Courts strive to balance reduced culpability arising from mental health issues against community protection needs.

Future Directions and Challenges

As Queensland’s criminal justice system evolves, several factors are likely to influence proportionality application in sentencing:

• Queensland Sentencing Advisory Council: Established in 2016, this body provides research and advice on sentencing matters, potentially influencing future practices.
• Technological Advancements: Increasing use of data analytics in the legal sector may offer new tools for assessing proportionality across similar cases.
• Restorative Justice Initiatives: Growing emphasis on restorative practices may introduce new considerations in applying proportionality, particularly in balancing victim satisfaction with traditional sentencing objectives.
• Legislative Reform: Ongoing changes, especially in response to emerging crime trends or shifting social attitudes, will continue to shape the landscape within which proportionality is applied.

Conclusion

Proportionality is a key principle in Queensland’s sentencing framework, ensuring justice is fair and reflects community standards. Despite challenges, it evolves through legislative reforms and judicial interpretation. Legal practitioners need to grasp this principle for effective advocacy, while the community benefits from understanding its nuances. As Queensland’s legal landscape develops, proportionality will continue to guide sentencing, ensuring fairness for individuals and protection for society. This commitment to balanced sentencing supports a responsive and equitable criminal justice system.

If you have any questions regarding sentencing or if you have a criminal law matter, please do not hesitate to contact one of our expert Criminal Lawyers Brisbane or Criminal Lawyers Gold Coast.

In April 2024, Queensland’s Crime Corruption Commission (CCC) issued a reform agenda attempting to update the Criminal Proceeds Confiscation Act 2002 (CPCA). The CPCA is a crucial tool in Queensland’s arsenal against criminal enterprises, as it enables law enforcement to confiscate assets derived from or used in criminal activity. 

However, owing to the evolving nature of contemporary organised crime, the review titled Modernising Queensland’s Asset Confiscation Regime:  A Reform Agenda for the Criminal Proceeds Confiscation Act 2002 (Qld) made significant recommendations to allow the CPCA to keep up. Illegal operations have become increasingly complex, such as using digital assets and offshore links that prove challenging to trace. In addition, the estimated amount laundered in 2022-2023 was between $10 billion and 25 billion in Queensland alone. 

In this article, we’ll cover these proposed changes and explain what these imply.

Key Areas for Reform

Updating the Money Laundering Offence

One of the CCC’s top priorities is to make Queensland’s money laundering offence more “contemporary, clear, and fit-for-purpose.” The proposed reforms aim to ensure that the money laundering offence can effectively target the complex schemes used to legitimise criminal proceeds.

The reforms aim to capture the sophisticated methods used by organised crime groups by:

• Including “Tainted Property”: Explicitly covering transactions involving property derived from or used in criminal activity, even if there is no criminal conviction.
• Criminalising “Wilful Blindness”: Making it an offence to be wilfully blind to the criminal origins of assets, rather than requiring proof of actual knowledge.
• Ensuring Consistency: Aligning the offence more closely with Commonwealth and other state laws to address gaps and ensure uniformity.

Enhancing Investigative Powers

The changes would also expand the investigative powers available to authorities to better detect and disrupt money laundering activities. This includes:

• Allowing the use of more Commonwealth investigative tools when money laundering offences cross state borders.
• Improving information sharing between state and federal agencies to identify criminal assets more effectively.

Overall, the proposed amendments aim to modernise Queensland’s money laundering laws to better counter the increasingly sophisticated tactics used by organised crime groups to conceal the proceeds of their activities.

Dealing with Digital Assets

The emergence of digital assets, such as cryptocurrencies and non-fungible tokens (NFTs), has posed new challenges for law enforcement in tracing and seizing illicit funds. Law enforcement agencies cannot seize these since digital assets are not defined in the Police Powers and Responsibilities Act 2000 and the Crime and Corruption Act 2001. Hence, the CCC’s review has emphasised the need for law enforcement to improve the management of new ways to store and transfer wealth. The proposed reforms may include provisions for the identification, restraint, and forfeiture of digital assets associated with criminal activity.

Introducing an Asset-Focused Confiscation Mechanism

Currently, the CPCA primarily focuses on confiscating assets after a criminal conviction has been secured. However, the CCC has proposed the introduction of an asset-focused confiscation mechanism that would allow for the restraint and forfeiture of assets without the need for a conviction. This reform would make it more difficult for criminals to accumulate wealth, and would disrupt their ability to fund future criminal enterprises.

Changing How Confiscated Assets Are Used

The CCC has recommended changes to the utilisation of confiscated assets, proposing that a portion of the proceeds be allocated to crime prevention and victim support initiatives. This reform would ensure that the financial impact of asset confiscation benefits the broader community, as the funds would be reinvested in programs aimed at reducing crime and supporting those affected by it, not just punishing criminals.

Ensuring the Act Delivers on Objectives for Disruptive Impact

Finally, the CCC’s review highlights the need for the CPCA to effectively disrupt serious and organised crime. This may include introducing more adaptable and responsive mechanisms for restraining and forfeiting assets, and measures to stop criminals from evading the law through complex legal structures or by moving their assets overseas.

Why the Reforms Are Important

The proposed reforms to the CPCA mark a significant step forward in Queensland’s battle against serious and organised crime. By updating the state’s asset confiscation regime to address the evolving criminal landscape, the CCC aims to strengthen law enforcement’s ability to dismantle criminal enterprises and curb the accumulation of illicit wealth. 

The success of these reforms will depend on their effective implementation and the allocation of adequate resources for enforcement. However, it is crucial the reforms strike a balance between the need for effective crime prevention and the protection of individual rights and due process.

Implications

The proposed changes to the CPCA have significant implications, such as:

1. Increased Risk of Asset Seizure:

• Pre-conviction Restraint: Assets can be restrained and forfeited before a conviction is secured, which means accused individuals may lose access to their financial resources early in the legal process.
• Broader Asset Categories: The inclusion of digital assets, such as cryptocurrencies, means a wider range of assets could be targeted and confiscated.

2. Enhanced Investigative Powers:

• Greater Scrutiny: Law enforcement agencies will have expanded powers to investigate and track assets, leading to a more thorough examination of the financial dealings of those accused.
• Targeting Complex Schemes: The reforms aim to dismantle complex legal structures used to hide assets, making it more difficult for accused individuals to shield their wealth.

3. Legal and Financial Pressure:

• Resource Constraints: Accused individuals may find it more challenging to fund their legal defence if their assets are restrained or seized before conviction.
• Unexplained Wealth Orders: Individuals may be required to justify the legitimacy of their wealth, facing potential asset forfeiture if they cannot provide satisfactory explanations.

4. Shift in Legal Strategy:

• Proactive Defence Needed: Legal teams may need to adopt more proactive strategies to protect assets and navigate the enhanced legal framework.
• Increased Litigation: There may be more legal battles over asset restraint and forfeiture orders, adding complexity and duration to legal proceedings.

5. Deterrent Effect:

• Reduced Incentive for Crime: The threat of losing assets without a conviction may serve as a stronger deterrent against participating in organised crime.
• Impact on Criminal Operations: The financial disruption caused by asset seizures can weaken the operational capacity of criminal enterprises.

6. Balance of Rights:

• Due Process Concerns: Ensuring that asset seizure processes respect individual rights and due process will be crucial. Accused individuals may raise legal challenges on grounds of procedural fairness and rights violations.
• Community Impact: While the reforms aim to benefit the broader community by reinvesting confiscated assets into crime prevention and victim support, accused individuals might argue that the measures are overly punitive.

Conclusion

The proposed reforms to the Criminal Proceeds Confiscation Act 2002 represent a significant step forward in Queensland’s efforts to modernise its asset confiscation regime and disrupt serious and organised crime. Nonetheless, these can also present some challenges, such as those involving individual rights and due process. Hence, for those individuals suspected or accused of accumulating wealth from illicit sources, seeking the advice of experts in Criminal Law is vital.

Hannay Criminal Defence has a team of experienced Brisbane Criminal Lawyers with a proven track record of representing individuals facing minor or serious offences. Contact us today if you have any questions or concerns about Queensland’s asset confiscation regime, including the proposed reforms.

Being charged with unlawful stalking is a serious legal matter that can have long-term consequences. If you’ve been accused of stalking in New South Wales (NSW) or Queensland, it’s essential to understand the legal ramifications and how you can defend yourself. This guide explains what unlawful stalking involves, the legal process, and how an experienced Criminal Lawyer can help protect your rights.

Key Behaviours Constituting Unlawful Stalking

In both Queensland and NSW, the following actions are typically seen as elements of stalking:

Following, Watching, or Approaching a Person

This refers to any action that involves a stalker physically pursuing, monitoring, or approaching their victim without consent. It can involve actions like trailing someone to their home or workplace, or showing up uninvited at social venues or family gatherings. 

Digital Monitoring and Cyberstalking

Digital stalking includes actions such as spying on someone’s social media, sending unwanted messages or friend requests, tracking online activities, or installing spyware on another person’s devices. 

Repeated Unwanted Contact

Unwanted communication, whether through phone calls, text messages, emails, or in-person encounters, is a significant element of unlawful stalking. 

Intimidating or Threatening Conduct

Intimidation ranges from explicit threats of harm to more subtle, yet menacing behaviours that cause fear in the victim. Threats can be physical, emotional, or psychological, and even indirect threats.

Legislative Framework in Queensland and NSW

Queensland’s Approach to Unlawful Stalking

In Queensland, unlawful stalking is governed by Section 359B of the Criminal Code 1899, which criminalises stalking and other related behaviours. The definition was expanded in 2023 to include new forms of stalking, reflecting contemporary concerns about digital harassment and coercive control.

The key elements of unlawful stalking under Queensland law include:

• Monitoring or surveilling without consent: Includes surveillance using cameras or tracking devices.
• Publishing offensive material online: May involve the sharing of personal information or threats online to embarrass, intimidate, or harm the victim.
• Engaging in abusive acts: Verbal or physical threats, intimidation, and harassment.
• Using or threatening violence: Any form of physical violence or threats of harm.

Penalties for unlawful stalking vary based on the severity of the offence:

• Basic offence: A maximum of 5 years imprisonment
• Aggravated circumstances: Up to 7 years imprisonment
• Offences against law enforcement officers: Up to 10 years imprisonment

NSW’s Framework for Unlawful Stalking

In New South Wales, unlawful stalking is governed under Section 13 of the Crimes (Domestic and Personal Violence) Act 2007. The Act includes stalking-related behaviours within the broader context of domestic and personal violence. The penalties for unlawful stalking in NSW can include:

• District Court: Up to 5 years imprisonment and/or a fine of up to 50 penalty units ( $5,500 as at 13 Dec 2024)
• Local Court: Up to 2 years imprisonment and/or a fine of up to 50 penalty units ($5,500).

In both jurisdictions, the focus is on the pattern of behaviour and the impact it has on the victim, rather than the actual fear or harm caused. Importantly, victims do not have to prove they were physically harmed for an offence to be proven in court.

Proving Unlawful Stalking

To demonstrate unlawful stalking, the prosecution must show that:

• The conduct was intentionally directed at the victim: The behaviour must be deliberate and repeated.
• The conduct would reasonably cause fear: This can be inferred from the nature of the behaviour, even if the victim does not express fear directly.
• The conduct occurred on one or more occasions: This includes both isolated incidents and ongoing patterns of behaviour.

The law does not require victims to show they were actually fearful, only that a reasonable person would be made to feel that way by the perpetrator’s conduct.

Modern Challenges and Technological Considerations

Digital Stalking Methods

With the increasing use of smartphones, social media, and other digital technologies, stalking has become more pervasive. Digital stalking methods include:

• Social media harassment: Repeated unwanted messages, comments, or posts directed at the victim.
• Unauthorised access to online accounts: Can involve hacking or phishing to gain control of private emails or social media profiles.
• GPS tracking and location monitoring: The use of technology to monitor the victim’s physical movements.
• Cyberbullying and online threats: Publicly humiliating or threatening the victim through online platforms.

Evidence Collection in Digital Stalking

In modern cases of stalking, digital evidence plays a crucial role, including:

• Social media records: Screenshots, messages, and other digital communications.
• Email and message logs: Saved messages or call logs as proof of unwanted contact.
• GPS data: If available, location data from smartphones or tracking devices 
• Device access logs: Evidence of unauthorised access to a victim’s computer, phone, or email accounts.
• Security camera footage: In cases where the perpetrator physically follows the victim, security footage may help establish a timeline of events.

Legal Defences and Exemptions

Not all forms of contact or surveillance are considered unlawful stalking. Some legitimate activities may be exempt, including:

• Reasonable conduct for lawful business or trade: Investigations or actions carried out within the scope of employment or business.
• Genuine industrial disputes: In some cases, conduct related to industrial action may be excluded.
• Legitimate political or public interest activities: If the behaviour is genuinely part of public discourse or political engagement.
• Law enforcement activities: Investigative actions by police or other authorised agencies.
• Reasonable information gathering: For example, gathering information for legitimate personal or professional reasons, such as background checks.

Recent Developments

The legal landscape surrounding unlawful stalking continues to evolve:

• Queensland’s 2023 reforms: The inclusion of coercive control and stronger penalties for aggravated offences reflect growing concerns over stalking in domestic violence contexts.
• Technology-facilitated stalking: Increasing recognition of cyberstalking and online harassment has led to more robust legislative responses and greater penalties.
• Integration with domestic violence laws: Both NSW and Queensland have strengthened the integration of stalking laws within broader domestic violence frameworks.

Conclusion

Unlawful stalking is a grave offence with severe consequences, and being charged with it demands immediate action. Both Queensland and NSW have stringent laws that tackle stalking, including the growing threat of digital harassment. 

If you’ve been accused of stalking, understanding the charges and available defences is crucial to safeguarding your future. However, time is crucial –  don’t risk your freedom or reputation. Get expert legal representation from one of our Gold Coast and Brisbane Criminal Lawyers or Criminal Lawyers Sydney to start building your defence today.

As the world becomes more interconnected and dependent on the internet, the frequency and complexity of computer hacking offences continue to rise. Recent data from the Australian Cyber Security Centre, reported by Statista, revealed approximately 94,000 cybercrime reports in the 2023 financial year. Additionally, the first half of 2024 saw the highest number of data breach notifications since 2020, with a 9% increase compared to the previous period, according to the OAIC. One notable example was the MediSecure hack, which exposed the personal information of 12.9 million Australians, underscoring the escalating threat of cybercrime.

This article offers an overview of computer hacking offences in New South Wales (NSW), including key legal provisions, penalties, and potential defence strategies.

Defining Cybercrime Offences

Computer hacking offences refer to unauthorised activities that involve the manipulation or access of computer systems and data. In NSW, these offences are primarily governed by the Crimes Act 1900 (NSW), and the Criminal Code Act 1995 (Cth). The laws address a wide range of activities, from accessing data without permission to modifying it or distributing malicious software.

With cybercrime increasingly affecting individuals, businesses, and government entities, understanding the accusations, potential penalties, and legal implications is crucial for those who may find themselves accused of such offences.

Essential Legal Elements

For a successful prosecution of computer hacking offences, several key elements must be established. These elements include:

Unauthorized Access

The accused must have accessed or modified data or systems without permission. The access must have been deliberate and with knowledge of its unauthorised nature. For example, an individual bypasses security protocols to access a government database, modifying records, with full awareness that such actions are prohibited.

Establishing Criminal Intent

Prosecutors must provide evidence of the accused’s intention to commit an offence. This includes demonstrating that the individual knew their actions were unlawful and their purpose was criminal. For instance, a hacker deliberately installs ransomware on a company’s network, intending to lock users out of their files and demand a ransom for their release, fully aware that this is illegal.

NSW Cybercrime Laws

System Access Offences

Under Section 308C of the Crimes Act, individuals who access computer systems with the intent to commit another crime can face severe penalties. The maximum penalty is aligned with the seriousness of the intended crime. The offence requires proof that the access was intentional and unauthorised, and it can be prosecuted in either the Local Court or the District Court.

Data Modification Offences

Section 308D covers the deliberate alteration, destruction, or corruption of data. It is a serious offence, carrying a maximum penalty of up to 10 years imprisonment. To secure a conviction, authorities must demonstrate that the modification was unauthorised and caused harm to the system or data.

Cybercrime Tools

Possessing hacking tools with the intent to commit a computer crime is illegal under Section 308F, with a maximum penalty of 3 years imprisonment. This law applies to the possession of hacking software, devices, and any data or tools used to facilitate cybercrime. To obtain a conviction, the prosecution must prove that the possession was intended for criminal purposes.

Cross-Border Cybercrime

Computer hacking offences can often cross jurisdictional boundaries, creating challenges for law enforcement. Many cybercrimes involve interstate or international targets, requiring cooperation between state and federal authorities. The NSW legislation is designed to work alongside Commonwealth laws, particularly when the offence involves:

• Interstate or overseas computer systems
• Federal government infrastructure
• Critical national infrastructure, such as energy grids or healthcare systems

This cooperation ensures that cybercriminals cannot evade justice simply by crossing state or national borders.

Defence Strategies

Authorization Claims

The accused may claim they had legitimate access to the system or data. This could involve demonstrating they had authorisation from the system owner or that they reasonably believed they had permission.

Technical Defences

Lawyers may challenge the evidence of actual access or modification, questioning the identification methods or disputing the technical evidence used to link the accused to the crime.

Intent Challenges

In some cases, the accused may argue they did not have the intent to commit a crime. If the prosecution cannot prove criminal intent beyond reasonable doubt, the defendant may be acquitted.

Cybercrime Impact Assessment

Computer hacking offences can have a profound impact on both businesses and society as a whole. The financial impact on businesses can be considerable:

Business Impact

Financial Consequences: Cyberattacks have the potential to cause considerable financial damage to businesses. In 2022-2023, government estimates showed that small businesses lost an average of $46,000, while medium-sized businesses lost $97,000. In addition to these direct financial losses, businesses may incur extra costs such as investigation expenses, legal fees, and potential damage to customer trust.

Societal Impact

Social Impact: Hacking offences can result in significant privacy breaches, affecting individuals and leading to a loss of confidence in the digital economy. In more severe cases, such as cyberattacks targeting healthcare systems, the consequences can be life-threatening, disrupting essential services.

Modern Enforcement

In response to these challenges, the NSW legal system has made significant procedural developments:

• Specialised Cybercrime Units: Law enforcement agencies have established dedicated cybercrime units to investigate and prosecute hacking offences. These teams possess the specialised knowledge required to manage intricate digital investigations.
• International Cooperation: With the global nature of cybercrime, international frameworks for cooperation have been established to ensure cross-border cybercriminals can be brought to justice.

Expert Legal Support

Computer hacking offences pose significant challenges in NSW’s legal landscape, with evolving technology creating new opportunities for cybercriminals to exploit vulnerabilities. Understanding the legal framework and associated penalties is crucial for protection against cybercrime. If you have questions about computer hacking offences or need legal assistance, contact one of our Criminal Lawyers Sydney today to discuss your situation and understand your rights under NSW law.

The Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Act 2023, passed by the Queensland Parliament in March 2023, introduced two key reforms:

1. Expanding the Double Jeopardy Exception
2. Establishing a Framework for Subsequent Appeals Against Conviction

Let’s examine these changes in detail.

Expanding the Double Jeopardy Exception

The long-standing principle of ‘double jeopardy’ has traditionally prevented a person from being retried for an offence for which they have already been convicted or acquitted. This foundational tenet of criminal law serves to protect individuals from the harassment of repeated trials and the anxiety associated with facing multiple prosecutions for the same alleged crime.

However, the new legislation recognizes that there may be exceptional circumstances where the interests of justice and community safety outweigh the general prohibition on double jeopardy. Accordingly, the Act has expanded the limited exceptions to this rule.

In the past, Queensland’s double jeopardy rule made an exception solely for murder cases. A retrial could be pursued if ‘fresh and compelling evidence’ surfaced that had not been presented in the original trial. The new laws have now broadened this exception to include an additional 10 serious offences:

1. Manslaughter
2. Attempted murder
3. Unlawful striking causing death
4. Killing an unborn child
5. Rape
6. Incest
7. Repeated sexual conduct with a child
8. Grievous bodily harm
9. Torture
10. Armed robbery

This expansion brings Queensland’s laws more in line with other Australian jurisdictions, which have already adopted a broader double jeopardy exception for a range of serious crimes.

Importantly, the new legislation also clarifies the definition of ‘fresh evidence’ for the purposes of the double jeopardy exception. Evidence will be considered ‘fresh’ if it was not presented at the original trial and could not have been reasonably obtained by the prosecution through due diligence. This ensures that evidence that could clear someone isn’t thrown out just because an investigator or expert witness didn’t conduct due diligence.

By widening the scope of the double jeopardy exception and providing a clearer definition of ‘fresh evidence’, the Queensland Government aims to enhance the criminal justice system’s ability to respond to possible unjust acquittals, particularly in cases involving serious offences where new evidence emerges that casts significant doubt on the original verdict.

Establishing a Framework for Subsequent Appeals Against Conviction

In addition to the reforms to the double jeopardy rule, the new legislation also introduces a statutory framework to allow convicted persons to make a ‘subsequent appeal’ against their conviction, even after exhausting their original right of appeal.

Previously, the only avenue available to a convicted person who believed they had been wrongfully found guilty was to petition the Governor for a pardon. This process was often lengthy, complex and provided little certainty for applicants.

The new laws now give convicted persons the ability to seek leave from the Court of Appeal to lodge a subsequent appeal on the grounds of either:

1. Fresh and Compelling Evidence: If the Court is satisfied that there was a miscarriage of justice, it must allow the appeal and either order a new trial or enter a verdict of acquittal.
2. New and Compelling Evidence: If the Court is of the opinion that, on the balance of probabilities, the appellant was not guilty of the offence, it must allow the appeal and enter a verdict of acquittal.

This reform is a significant step forward, as it provides a clear statutory pathway for individuals who believe they have been wrongfully convicted to have their cases reconsidered by the courts. By allowing subsequent appeals on the basis of new evidence that was not available at the original trial, the legislation aims to enhance the integrity of the criminal justice system and reduce the risk of wrongful convictions.

Importantly, the Court of Appeal retains discretion to dismiss a subsequent appeal, even if the grounds appear to be made out, if it considers that no substantial miscarriage of justice has actually occurred. This safeguard ensures that the new appeal process cannot be abused and that the finality of criminal proceedings is appropriately balanced against the need to correct potential errors.

Implications and Impact

The reforms introduced by the Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Act 2023 represent a significant strengthening of Queensland’s criminal justice system. By expanding the double jeopardy exception and establishing a framework for subsequent appeals, the legislation aims to enhance public confidence in the fairness and integrity of the state’s criminal proceedings.

The expansion of the double jeopardy exception to include a broader range of serious offences, such as manslaughter, sexual crimes and grievous bodily harm, acknowledges the gravity of these offences and the need to ensure that perpetrators are held accountable, even in cases where new evidence emerges that casts doubt on the original verdict.

Similarly, the introduction of a statutory right of subsequent appeal provides a clear and transparent process for convicted individuals to have their cases reconsidered, reducing the reliance on the discretionary and often opaque process of petitioning the Governor for a pardon. This reform is particularly significant, as it recognizes that the criminal justice system is not infallible and that there must be avenues to correct potential miscarriages of justice.

However, it is important to note that these reforms do not represent a wholesale abandonment of the double jeopardy principle. The legislation maintains the general prohibition on retrial, with the expanded exceptions and subsequent appeal process subject to strict criteria and judicial oversight. This balanced approach seeks to uphold the fundamental rights of the accused while also ensuring that the interests of justice and community safety are appropriately prioritized.

The success of these reforms will ultimately depend on their effective implementation and the approach taken by the courts in applying the new laws. It will be crucial for the judiciary to strike the right balance between finality in criminal proceedings and the need to correct potential errors, particularly in cases where the new evidence is compelling and raises serious doubts about the original verdict.

Conclusion

The Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Act 2023 represents a significant step forward in strengthening Queensland’s criminal justice system. By expanding the limited exceptions to the double jeopardy rule and establishing a framework for subsequent appeals against conviction, the legislation aims to enhance the system’s ability to respond to possible unjust acquittals and wrongful convictions.

These reforms, which bring Queensland’s laws more in line with other Australian jurisdictions, demonstrate the government’s commitment to ensuring that the criminal justice system remains contemporary, efficient and delivers fair and just outcomes for the community. As an experienced Gold Coast & Brisbane criminal lawyer, I believe these changes have the potential to significantly improve the integrity and public confidence in Queensland’s criminal proceedings.

However, the true impact of these reforms will depend on their effective implementation and the approach taken by the courts in applying the new laws. It will be crucial to strike the right balance between the finality of criminal proceedings and the need to correct potential errors, particularly in cases where new evidence emerges that raises serious doubts about the original verdict.

Overall, the Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Act 2023 represents a positive step forward for Queensland’s criminal justice system, and I am hopeful that it will contribute to a more fair, transparent and accountable system for all Queenslanders.

If you think you might be in double jeopardy or if you are wrongfully convicted, don’t hesitate to contact Hannay Criminal Defence immediately. With our knowledgeable and experienced team of criminal defence lawyers, we will ensure that your rights are protected.

There are sometimes compelling reasons why a person sentenced for a criminal offence in one state of Australia may seek to transfer to another jurisdiction, a move which may have the effect of increasing their chances of completing their sentence, enhancing the possibility of rehabilitation and reducing the chance of recidivism. Among the strongest reasons are proximity to family and community support, to escape domestic violence, or to increase employment or study opportunities.

This article looks at the situation in which a person is convicted and sentenced in New South Wales but makes a request to serve their sentence in another jurisdiction such as Queensland. In this situation alternative community-based sentencing options do exist, including community correction orders (CCOs) and conditional release orders (CROs).

Queensland belatedly joined other Australian states in 2020 when it introduced legislation – the Community Based Sentences (Interstate Transfer) Act 2020 – to transfer offenders’ sentences from another state to Queensland, based on model national legislation. A transfer of a sentence is generally managed by the corrective services authorities of the participating states.

It should be noted that an offender who is sentenced in another state such as New South Wales, but then absconds to Queensland before completing their sentence can be arrested in Queensland and taken before a court where a Magistrate may order the offender returned to the custody of the state where the sentencing order was made.

How do transfer of sentence schemes work?

Under the scheme in New South Wales, for example, an offender with a community-based sentence in a participating jurisdiction is able to request the transfer of his or her sentence to a new jurisdiction on a voluntary basis, subject to certain requirements. Should the request for transfer be agreeable, the offender’s sentence is registered in Queensland, for example, and then is managed in that state as if that jurisdiction had imposed the sentence, except for the purposes of appeal or review, which remains the responsibility of the originating jurisdiction.

Community Corrections Orders: A New South Wales court imposes a CCO to punish offenders for crimes that do not warrant either imprisonment or the stricter community-based sentence of an Intensive Corrections Order (ICO) but are too serious to be dealt with by a fine or an associated lower-level penalty. CCOs can be imposed for a period of up to three years. In New South Wales, CCOs replaced what were known as community service orders and good behaviour bonds made upon conviction.

Offenders are supervised and supported while serving their sentences in the community. CCOs often include mandatory programs and services as part of a case management plan, including, but not limited to drug and alcohol rehabilitation, and anger management. An offender serving a CCO is assisted to develop skills designed to help them live a law-abiding lifestyle. A Community Corrections Officer will generally have regular contact with the offender and significant people in their life, as well as conduct other checks to monitor compliance with conditions of the court order.

The Queensland legislation clarifies that a CCO made in New South Wales under the Crimes (Sentencing Procedure) Act 1999 (NSW) corresponds to a probation order made in Queensland under part 5 of the Penalties and Sentences Act 1992.

Conditions of probation orders in Queensland

It’s helpful to understand what conditions are imposed on a person living in Queensland under a probation order, if they have transferred from New South Wales while serving a CCO. Mandatory conditions of probation orders in Queensland require an offender:

• not to commit another offence whilst on probation;
• report to an authorised corrective services officer at the place and time directed;
• receive visits from an authorised corrective services officer as required;
• participate in any programs or counselling as directed by the sentencing Magistrate;
• notify an authorised corrective services officer of any change to the offender’s address or employment within two business days after the change occurs;
• must not leave Queensland without the permission from an authorised corrective services officer; and
• comply with each reasonable direction of an authorised corrective services officer.

Additional conditions may also be imposed requiring an offender to submit to medical, psychiatric or psychological treatment, and comply with any other conditions considered necessary to ensure the sentence is served.

Failure of an offender to comply with the conditions of a probation order/CCO can result in a charge of breaching the order and the possibility of being re-sentenced for the original offence.

Discuss your case with expert criminal lawyers

Transfer of a sentence from one jurisdiction to another in Australia can be a challenging process, even if the offender has strong reasons for making the request. The guidance of legal professionals with wide experience in criminal offences and sentencing is vital to ensure your case is put in the best way possible. Contact our expert team at Hannay Criminal Defence we provide services in Brisbane, Gold Coast and Sydney, if you have any questions or concerns about the material discussed in this post.

Criminal behaviour has long since stopped being a local phenomenon. Particularly in the illegal drug trade, interstate movement of people who commit criminal acts is increasingly common. This trend raises the issue of how each state deals with criminal offences committed in its jurisdictions by non-residents and, equally, criminal offences committed in other jurisdictions by people who reside in their state.

This article focuses on differences between New South Wales and Queensland for those who are charged with a criminal offence, though the procedures for charging a person are not dissimilar across Australian jurisdictions.

An important point to note at the outset is that if you find yourself facing criminal charges, or a warrant for your arrest, you should make contact with legal professionals who specialise in criminal law as soon as possible.

Criminal charges in New South Wales and Queensland

The procedure in being charged with a criminal offence is similar in New South Wales and Queensland. Charging is different to arrest. An arrest involves a police officer bringing a person into custody because of the reasonable suspicion they have committed, or are in the act of committing, an offence. By contrast, charging a person involves a formal accusation made by the police or prosecution that the individual has committed a specific offence. Charging a person usually takes places after police have gathered what they believe to be sufficient evidence to support the allegations.

In New South Wales the Crimes Act 1900 deals with strictly indictable offences (offences which must be dealt with on arraignment, including murder, manslaughter and assault causing death), indictable offences which may be dealt with summarily by the Local Court (theft, property damage and indecent assault, for example) and summary offences (less serious offences such as public mischief, etc). Most serious criminal matters are heard in the New South Wales District Court (other than murder and treason), with the Local Court hearing summary offences.

Under Queensland’s Criminal Code Act 1899, the regime is similar. Indictable offences include assault and stealing as well as more serious crimes like rape, murder, manslaughter, and robbery. Summary offences include disorderly behaviour, traffic offences and minor criminal offences. In Queensland indictable offences are heard in the District Court or the Supreme Court while those charged with summary offences must front the Magistrates Court.

Charged in one state but living in another

If you’re charged in another state such as New South Wales, or are subject to a court order regarding a criminal offence, but return to live in Queensland before completing your sentence, Queensland police can arrest you on a warrant and bring you before a court in the state. In this situation, a Queensland Magistrate will most commonly order your return to the state where you were charged or are the subject of a court order. It’s not possible for the Magistrate to grant bail to a person who has absconded from the jurisdiction.

In the situation where a warrant for your arrest has been issued in another state, such as New South Wales, but you have travelled back to Queensland, police can arrest you for what is known as an ‘extradition offence’. Under Queensland’s Police Powers and Responsibilities Act, police may arrest you without a warrant if they reasonably suspect the offence you’re alleged to have committed in New South Wales is an indictable offence or an offence for which the maximum penalty is at least two years imprisonment. You may be detained in custody and questioned about the alleged offence before being brought before a Magistrate, where a copy of the warrant must be produced. If the warrant is not produced, the magistrate may order that you are released or may adjourn proceedings for such reasonable time as the Magistrate specifies, and allow you on bail or remand you in custody. If the warrant or a copy of it is not produced within five days, the Magistrate must order you’re released.

If the warrant is produced when you’re brought before the court, it’s probable an order will be made to return you to the state where the warrant was issued. A person in this situation may apply for bail and make their own travel arrangements back to the state where they must appear, or they will be remanded in custody and then be transported to the interstate court.

Can the same unlawful conduct carry different penalties across different jurisdictions?

Penalties and sentences do differ between New South Wales and Queensland for criminal offences, as they do in other states of Australia. As a Judicial Commission of NSW cross-jurisdictional study from 2015 found, some discrepancies are significant while others are minor.

New South Wales, for example, had longer median head sentences (the sentence that lies in the middle of the range of sentences) than Queensland for child sexual assault, robbery, and break and enter/burglary offences. But Queensland had a longer median head sentence for sexual assault and dangerous/culpable driving causing death. The median head sentence in New South Wales for sexual assault offences was 72 months compared with 84 months in Queensland. The median head sentence in New South Wales for dangerous/culpable driving causing death was 36 months compared with 66 months in Queensland. For all robbery offences the median head sentence in New South Wales was 44 months, while it was 36 months in Queensland. The median head sentence in New South Wales for break and enter/burglary was 36 months compared with 24 months in Queensland.

Get in touch with expert criminal lawyers

Understanding the difference in how criminal offences are dealt with in New South Wales and Queensland can be complex – while the procedure for being charged is similar in each state, extradition offences can complicate matters when a person travels between states. Adding further difficulty is the difference in penalties and sentences for criminal offences in each state. To help you navigate this difficult area, contact our expert criminal lawyers Sydney team at Hannay Criminal Defence – we have the knowledge and experience particularly on criminal matters in Queensland and New South Wales.

Media headlines in Queensland have been filled in recent times with criminal offences committed by juveniles, often resulting in terrible tragedies where innocent members of the public have been killed through the reckless acts of teenagers. The result is a backlash against how young offenders are treated by the youth justice system, with some victims believing the punishment for juvenile crime is too lenient and not enough of a deterrent.

This is a complex and multifaceted issue, faced by societies worldwide. There are no easy or straightforward solutions. The Queensland government has attempted to respond to the community’s concerns with reforms to the Youth Justice Act – but many believe the changes are ineffectual or deal with the problem only at the edges.

The majority of young people are not involved in criminal activities, but a hardcore cohort of youths are engaged in dangerous criminal behaviour – such as break and enters, car theft and dangerous driving.

Recent data on youth crime rates in Queensland show fluctuations over the years. In some categories, offences have increased while in others the rate has stabilised or even decreased. It’s important to recognise that socioeconomic disadvantage, family dysfunction, educational challenges, substance abuse, and peer influence all contribute to youth crime.

Recent changes to the Youth Justice Act

The Queensland government’s response to high-profile youth crime was reforms to the youth justice system aimed at striking a balance between holding young offenders accountable for their actions and providing opportunities for rehabilitation and reintegration into society.

Last year it expanded electronic surveillance monitoring for children as young as 15 and increased the maximum penalty for unlawful use of a motor vehicle from seven to 10 years imprisonment. In February 2023, significantly, it made breach of bail an offence for children.

Other changes introduced this year included:

• a more severe penalty of 14 years for offences committed at night where the offender uses violence or threatens violence; is armed or pretends to be armed; is in company or damages or threatens to damage any property;
• requiring courts to take into account previous bail history, criminal activity and track record when sentencing;
• stiffer penalties for criminals who boast about their crimes on social media.

The government also committed $100 million to diversionary programs designed to put young offenders on alternative pathways such as counselling, education, and community service.

It also increased the capacity of bail houses, providing secure and supervised accommodation for young offenders on bail. This move aims to reduce the risk of reoffending while ensuring the safety and wellbeing of the young people involved.

New legislative provisions also enhanced the youth justice conferencing process, bringing together young offenders, victims, and trained facilitators to discuss the impact of the offence and develop strategies for restitution and rehabilitation. This approach encompasses restorative justice principles – emphasizing the importance of repairing harm caused by the offence with victims in an attempt to reduce recidivism.

The reaction to the legislative changes has been muted. Community members have taken to the streets in protest since the laws have been passed as incidents of youth crime persist.

Need more information? Speak with expert criminal lawyers

The issue of youth crime and youth justice in Queensland is challenging and complex, ranging from the calls to ‘lock them all up’ to the recognition that the community is dealing with mere children committing these heinous crimes.

Recent changes to the Youth Justice Act attempt to balance both ends of the debate but it’s highly debatable they satisfy either argument. If you’re unsure about the new laws for young offenders, or need advice for a young person who is in trouble with the law, consult our highly experienced criminal law team at Hannay Criminal Defence as soon as possible, we provide legal services in Gold Coast, Brisbane & Sydney. We regularly represent juveniles facing serious charges and can advise on the best way to approach the youth criminal justice system.

Get Property Returned After Charges are Withdrawn

In the process of conducting investigations and collecting evidence to solve crimes, police in Queensland have considerable powers to seize property as set out in the Police Powers and Responsibilities Act 2000 (‘PPR Act’).

Often police will be empowered to enter a place and seize things listed in a warrant but even without one, they are able to search persons, vehicles, and public places where they reasonably suspect that a person possesses an unlawful weapon, dangerous drug, stolen property, or otherwise has evidence of the commission of certain offences. Police can seize things to be potentially used as evidence, or if they believe a person might use the thing to harm themselves or others, or commit an offence with the item/s.

Under the PPR Act police must follow certain protocols in executing search warrants and seizing property which, if not followed, may make the use of the items inadmissible as evidence in a criminal trial.

Police also have responsibilities in regards to returning property if a charge is not forthcoming in relation to possession of the item/s. We’ll take a closer look at this aspect of police seizure and holding of property in this article.

What must police do with seized property if no charges are laid?

The first thing to know is that police must issue a receipt for property seized to the person from whom they have taken it – known as a field property receipt – as soon as is reasonably practicable. The only exception to this requirement is where the providing of a receipt would impair their investigation (in covert operations, for example). The receipt must describe the item seized and if not given to the owner in person, be left in a place where it will be noticed.

But once an item of property is seized, it must be returned to its owner within 30 days unless it is to become evidence in a charge that a criminal offence has been committed. If no charges or legal proceedings are commenced by the police within 30 days, they must apply to a Magistrate for an order to be able to continue to retain the property.

If the 30-day period passes without a charge being laid and the seized property has not been returned by the police, plus they do not have a court order allowing them to retain the item/s, the owner must write to the police commissioner (or, in practice, the property officer at the police station where the item/s are held) directly to have it returned. If the request is refused, the property owner can apply to a magistrate seeking an order for it to be returned.

To avoid this process, police may also make a copy, download information or photograph items so that the original can be returned to the owner, though in practice they prefer to keep the original items for the purposes of potential evidence in a criminal prosecution.

When police seek a forfeiture of property

Police may seek property be forfeited if it is connected to, or has been used in the commission of an offence. The forfeiture order is typically made by a court where:

• the owner of the property cannot be found after reasonable inquiries have been made to locate them;
• the property has been used in the commission of an offence (such as a mobile phone used to facilitate a drug deal);
• it is necessary to retain the property to prevent it being used in the commission of an offence; or
• possession of the property is an offence (firearms, weapons or illicit drugs, for example).

If seized property is used as evidence in criminal proceedings, the court may make a decision about what should happen with it once the matter is resolved, including its destruction, disposal or forfeiture to the state. But where the court makes no order about what should happen with the property – a common occurrence – police are required to return the items to the lawful owner unless they obtain a forfeiture order.

Where an owner objects to the forfeiture, they must apply with an objection to a Magistrate within 28 days after the notice is given.

Rely on the help of expert criminal lawyers

If any of the issues raised in this article are relevant to you, speak with our criminal law professionals at Hannay Criminal Defence. Our Criminal Lawyers Brisbane can help clarify the issues involved and ensure that police follows the correct procedures under the PPR Act in seizing and holding property. We will guide you through the appropriate process whether or not the property becomes the subject of legal proceedings. Contact us today for a discussion.

What does it mean to commit the criminal offence of ‘receiving tainted property’?

Tainted may be a slightly antiquated, unfashionable word but in Queensland, in relation to property, it is defined in section 432 of the Criminal Code 1899. There, tainted property is described as ‘a thing that has been obtained by way of an act constituting an indictable offence’ – an indictable offence being a more serious criminal act such as stealing, murder, manslaughter, rape and robbery.

Additionally, if such property is converted into other property, such as money, or is ‘mortgaged, pledged or exchanged for other property’, that subsequent property also becomes tainted. The law then makes clear that a thing ceases being tainted property once a person acquires a lawful title to it.

To receive tainted property is a criminal offence that attracts lengthy prison terms as set out in section 433 of the Code – a maximum of 14 years if the property was obtained through a criminal act, involves a firearm or ammunition, or was received by a person acting as a pawnbroker, dealer in second-hand goods, under licence or otherwise.

A person who commits this offence may also be subject to another law – the Criminal Proceeds Confiscation Act 2002, a law directed at curbing offenders from enjoying the proceeds of crime. This Act is designed to allow a court to make orders to restrain offenders from disposing of property obtained by crime, to forfeit such property, to pay back proceeds of crime and be penalised for receiving proceeds of crime.

In the rest of this post, we’ll look at the crime of receiving tainted property in more detail, including what police must do to prove the offence and how a person charged with this crime should respond.

What must be established to prove this offence?

A person who receives tainted property does not need to have been the person who stole the items but it remains a criminal offence to accept, take or receive such property if, when they receive the items, the person has reason to believe them to be stolen.

Because this is a criminal offence, the prosecution must prove all elements beyond a reasonable doubt.

Specifically, police must prove that:

• The accused received the property, meaning having it in their possession. A person has something in his possession, either alone or jointly with some other person, if:
  1. they have it in their physical custody; or
  2. they knowingly have it in a house, flat, building or other place under their control; or
  3. they have assisted in concealing it or disposing of it.

The prosecution must also prove the property was obtained by means of any act constituting an indictable offence. Property is stolen if it is taken from the owner without the owner’s consent and with an intent to permanently deprive the owner of it.

Furthermore, it must be demonstrated that at the time the accused received the property they had reason to believe the property was stolen. This can be a problematic element ensnaring people who buy goods at a discount from friends, for example. In this situation, the prosecution may be able to show the buyer should have known the item was stolen. The condition of the item, whether a receipt was issued for the item, and from who and from where it was purchased are all important factors in proving the offence.

Defences: With the guidance of experienced criminal lawyers Brisbane, a person charged with receiving tainted property can raise certain defences including:

• that they did not receive the property under the legal definition of tainted property given above;
• that they did not know the property involved was stolen;
• that they possessed an honest and mistaken belief that the owner of the property had consented to their possession of the property;
• that the property is the subject of a civil or contractual dispute.

There may also be other applicable defences.

Dealing with the proceeds of crime

There is another piece of legislation in Queensland relevant to this offence: the Criminal Proceeds Confiscation Act 2002. Section 252 of this Act states that:

‘A person must not receive, possess, dispose of, bring into Queensland, conceal or disguise property that may reasonably be suspected of being tainted property.’

This Act provides for civil proceedings to deprive people of financial gain from receiving tainted property and to help law enforcement agencies track such property, among a variety of other aims.

Orders under this law cans have serious consequences – freezing bank accounts and seizing homes, cars and other assets in order to prevent the tainted property being used as a benefit to the person who received it.

It should also be noted that receiving tainted money – such as the financial proceeds of crime from another person – can be prosecuted under both Queensland and Commonwealth laws addressing money laundering, with penalties of up to 20 years for the state offence and 25 for the Commonwealth offence.

Discuss your case with expert criminal lawyers

At Hannay Criminal Defence our Sydney criminal lawyers have many years of experience advocating for those charged with a criminal offence, including receiving tainted property. If you require more information on any of the issues raised in this article, including possible defences to a charge of receiving tainted property, speak with one of our criminal lawyers today for an appraisal of your case.