Hannay Lawyers

A rape charge can change anyone’s life overnight. If you’ve been accused, the road ahead can feel overwhelming. Understanding the legal process, your rights, and how to build a strong defence is critical to protecting your future.

Queensland’s legal landscape has changed significantly in recent years, especially with the introduction of the affirmative consent model in 2024. These reforms have reshaped how cases are prosecuted and defended, making it more important than ever to have expert legal guidance. A strong legal defence can mean the difference between an acquittal and a lengthy prison sentence.

What Constitutes a Rape Charge in Queensland?

Under section 349 of the Criminal Code Act 1899 (Qld) [The Act], rape is defined as engaging in non-consensual sexual activity, including:

• Sexual penetration without clear, voluntary consent
• Inserting objects or body parts into another person’s private areas without their agreement
• Forcing oral sex or other sexual acts
• Coercing someone to engage in sexual activity with another person

Consent is the key issue in most rape charge cases. In Queensland, the law now requires affirmative consent, meaning it must be actively communicated—not assumed. The law aims to ensure that all sexual activity occurs with mutual understanding and agreement.

Affirmative Consent: A Game-Changer in Rape Cases

Under Queensland’s affirmative consent model:

• Remaining silent or failing to resist does not imply consent
• The accused must have taken clear steps to confirm consent
• Assumptions about consent, including those based on intoxication or past relationships, are not valid defences

This shift places a greater responsibility on individuals to ensure their partner is actively consenting, making it harder to defend against a rape charge without evidence of positive steps taken to obtain consent. This means verbal communication, explicit agreement, and other clear signals of willingness are now essential in avoiding legal complications.

When Consent Does Not Exist

Even if someone appears to agree, Queensland law states that consent is invalid if it was obtained through:

• Force, threats, or intimidation
• Fear of harm
• Abuse of authority
• Deception about the nature of the act or the person’s identity

Additionally, consent cannot legally be given if the person is:

• Under 16 years old
• Unconscious or asleep
• Lacking mental capacity
• Significantly intoxicated
• Being unlawfully detained

These provisions exist to protect vulnerable individuals from exploitation. Courts will closely examine the circumstances of the alleged offence to determine whether consent was freely and voluntarily given.

“Stealthing” and Withdrawal of Consent

Queensland law now explicitly criminalises “stealthing,” which refers to removing or tampering with a condom without the other person’s consent. If you agree to protected sex but remove or damage protection without consent, you can face a rape charge.

Likewise, continuing sexual activity after consent has been withdrawn is now legally considered rape. If your partner withdraws consent at any point—verbally or through body language—stopping immediately is essential. Ignoring this can lead to serious legal consequences, even if the initial act was consensual.

Defending Against a Rape Charge: What Has Changed?

Traditionally, two main defences were used in rape cases:

• Consent was given: Arguing the complainant actively consented
• Honest and reasonable mistake: Believing consent was given when it wasn’t

Recent law reforms have significantly limited the second defence. A mistaken belief in consent is not reasonable if you failed to take active steps to confirm it. Additionally, section 28 of the Act does not allow the use of voluntary intoxication as an excuse for misunderstanding consent.

This means that simply claiming “I thought they consented” is no longer a viable defence unless there is clear evidence of steps taken to confirm consent. Defendants must show that they actively ensured the other person was willing, rather than passively assuming consent based on past interactions or non-verbal cues.

Penalties for a Rape Charge in Queensland

A rape charge carries some of the harshest penalties in Queensland:

• Maximum sentence: Life imprisonment
• Typical sentence: 5-10 years in prison
• Serious Violent Offender classification: Requires serving 80% of the sentence, 15 years, or whichever is less, before parole eligibility
• When involving children, mandatory sex offender registration

Judges consider various factors when sentencing, including:

• Use of violence or threats
• Relationship between the parties
• The complainant’s vulnerability
• The accused’s prior criminal history
• Whether an early guilty plea was entered

Statistics from the Queensland Sentencing Advisory Council show that 98.7% of adults convicted of rape receive a custodial sentence, with an average prison term of 6.5 years. This highlights how seriously courts treat rape offences and the importance of mounting a strong legal defence.

What Happens After a Rape Charge is Laid?

If you’re under investigation, you’ll go through several legal stages:

• Police receive a complaint: The alleged victim makes a statement.
• Evidence is collected: This includes DNA, text messages, social media activity, CCTV footage, and witness accounts.
• Police interview: You may be asked to provide a statement. Legal advice is crucial before speaking to police.
• Charges laid (if evidence is sufficient): If charged, you’ll receive a court date.
• Court process begins: A committal hearing determines if there’s enough evidence for trial.
• Trial: If not resolved earlier, your case goes before a judge and jury.

The legal process can take months or even years, depending on the complexity of the case and the evidence involved.

The Role of Digital Evidence in a Rape Charge Case

Technology now plays a major role in rape charge prosecutions. Digital evidence such as:

• Text messages and phone calls before and after the alleged incident
• Social media interactions
• Dating app conversations
• CCTV footage
• GPS location data

can be used to either strengthen the prosecution’s case or support the defence. The right legal team can assess digital evidence to determine its impact on your case. In some cases, messages exchanged between the parties before or after the incident may help establish the context and nature of the interaction.

How Common Are Rape Charges in Queensland?

Data from 2005-2023 provides insight into rape charge cases:

• 2,445 people sentenced for rape (0.1% of all criminal cases)
• 8% pleaded not guilty
• 9% of those sentenced were male
• Average age of accused: 31.8 years
• Far North Queensland has three times more rape convictions than the metropolitan region

These figures highlight how courts take rape charges seriously and the importance of a strong defence strategy. Conviction rates are high, making legal representation crucial for anyone accused.

What to Do If You’re Facing a Rape Charge

• The first steps you take after being accused can significantly affect your case. Follow these guidelines:
• Seek immediate legal advice: Do not speak to police without representation. Immediately get expert legal help from one of our Brisbane Criminal Lawyers or Gold Coast Criminal Lawyers.
• Preserve evidence: Save all communications between you and the complainant.
• Avoid contact: Do not attempt to contact the complainant.
• Document your version of events: Write everything down while it’s fresh.
• Prepare for bail: If charged, understand the likely bail conditions.

Even if you’ve been falsely accused, don’t be lenient. Although some allegations are proven false, these are only around 5%. With the complexity of the law, the worst thing to do is nothing. Get expert legal defence from Hannay Lawyers now!

Get Expert Criminal Defence

Facing a rape charge in Queensland is life-changing. Recent legal reforms make defending these cases more complex than ever, particularly with affirmative consent laws now in place. Understanding your rights, the legal process, and the defences available is essential.

If you’ve been accused, don’t face it alone. Our experienced Sexual Offence Lawyers in Brisbane and on the Gold Coast offer:

• Discreet, judgment-free legal advice
• Expert analysis of evidence, including digital records
• Aggressive defence strategies tailored to your case

Call our 24-hour hotline now for confidential legal support to protect your rights, reputation, and future.

In Australia, the justice system is shifting away from a strict “lock ’em up” approach, increasingly favouring conditional release orders (CROs) as an alternative to imprisonment. This change reflects a growing recognition that rehabilitation—rather than incarceration—is often the more effective path, especially for minor offenders. But what exactly are conditional release orders, and how do they work?

What Are Conditional Release Orders?

Conditional release orders (CROs) allow offenders to serve their sentences in the community under court-imposed conditions instead of behind bars. These orders, introduced in New South Wales on 24 September 2018 as part of reforms to the Crimes (Sentencing Procedure) Act 1999 [The Act], are designed to promote rehabilitation while still holding offenders accountable.

CROs are considered a middle-ground approach to sentencing—stricter than a dismissal or a simple good behaviour bond but less punitive than full-time imprisonment. They enable courts to impose necessary restrictions and obligations on an offender while recognising that not all crimes warrant a custodial sentence. Unlike harsher sentencing options, CROs offer a second chance for low-risk offenders, ensuring they contribute to society rather than being locked away.

Types of Conditional Release Orders

Australian courts can impose different types of conditional release orders, depending on the severity of the offence and the offender’s circumstances. Understanding these variations is crucial for both legal professionals and individuals navigating the justice system.

Conditional Release Orders With Conviction

A CRO with conviction means the court records a conviction but still allows the offender to remain in the community under conditions. This type of order serves as a deterrent while offering the offender an opportunity for rehabilitation outside prison walls.

Conditional Release Orders Without Conviction

Under Section 10(1)(b) of the Act, a court may impose a CRO without recording a conviction. A Section 10 CRO is often sought by defence lawyers because it allows first-time offenders or those with minor offences to demonstrate rehabilitation without the stigma of a recorded conviction.

Supervised Conditional Release Orders

For cases requiring closer monitoring, courts may impose supervision conditions, requiring the offender to report to a community corrections officer. Supervision is mandatory for domestic violence offences unless the court deems another approach more suitable. These supervised orders help ensure compliance with the law and allow authorities to intervene if an offender struggles to adhere to their conditions.

Who Is Eligible for a Conditional Release Order?

Conditional release orders are often granted for minor, non-violent offences. Some examples include:

• Low-level drug possession
• Shoplifting or minor theft
• Traffic offences (e.g., driving without a valid licence)
• Public intoxication or disorderly conduct
• Breach of peace offences

Courts consider several factors when deciding whether to grant a conditional release order, including:

• The offender’s personal background, including age, character, and mental health
• Whether the crime was minor or not very serious
• Any unusual circumstances that may have influenced the crime
• Any other important details the court thinks matter

CROs are generally reserved for minor offences and first-time offenders, while those charged with serious crimes—such as violent offences or crimes with mandatory minimum sentences—are unlikely to be eligible. The intention behind these orders is to offer a proportionate response to low-level criminal behaviour, ensuring that minor offenders are not subjected to the negative consequences of incarceration.

Standard Conditions of Conditional Release Orders

Every conditional release order has two mandatory conditions:

• The offender must not commit any further offences during the order period.
• The offender must appear before the court if required.

These conditions remain in place for the entire duration of the order and cannot be removed. They are designed to encourage compliance with the law and to deter repeat offences.

Additional Conditions

May Be Imposed	Cannot Be Imposed
Rehabilitation or treatment programs (e.g., drug and alcohol counselling)	Home detention
No-contact orders (prohibiting interaction with certain individuals)	Electronic monitoring
Place restrictions (banning the offender from specific locations)	Curfews
Supervision by a community corrections officer	Community service work
	Fines

These additional conditions ensure that offenders receive the necessary support to address the underlying causes of their criminal behaviour while mitigating any potential risk to the community. Meanwhile, legal restrictions ensure that CROs remain distinct from other forms of sentencing, such as intensive correction orders or good behaviour bonds.

How Conditional Release Orders Affect Your Criminal Record

The impact of a conditional release order on your record depends on whether a conviction was recorded:

• With conviction: The offence will appear on your record but may be “spent”, that is, removed from background checks after 10 years if you commit no further crime.
• Without conviction (Section 10): No conviction is recorded, but the offence may appear on your record for the duration of the order.

Understanding these implications is crucial if you are concerned about the long-term consequences of their sentence, particularly regarding employment and travel opportunities.

Breaching a Conditional Release Order

Failing to comply with a conditional release order can have serious consequences. If an offender breaches their CRO—whether by committing another offence or failing to meet conditions—the court may:

• Take no action (for minor breaches)
• Modify the conditions or impose additional ones
• Revoke the order and resentence the offender—often leading to harsher penalties

Repeated or significant breaches can result in imprisonment or more severe penalties.  Compliance is crucial.

Commonly Asked Questions About Conditional Release Orders

Can a Conditional Release Order Be Changed?

Yes. While standard conditions cannot be changed, courts can vary, add, or remove additional conditions under Sections 99 or 99A of the Crimes (Sentencing Procedure) Act 1999. An offender, a community corrections officer, or a juvenile justice officer can apply to have conditions adjusted, but applications must be in writing and can be refused if the court deems them unjustified.

How Long Does a Conditional Release Order Last?

The maximum duration of a conditional release order is two years. Courts determine the length based on the offence and individual circumstances, with shorter orders (3-6 months) sometimes imposed for minor cases. In many instances, offenders who demonstrate good behaviour during their CRO may find their obligations lifted earlier than anticipated.

Do I need to disclose a conditional release order (without conviction) from over two years ago in a job interview?

No. In most cases, you are not legally required to disclose it to an employer unless specifically asked about CROs or non-conviction orders.

However, some industries—such as law enforcement, childcare, or financial services—may require broader disclosures beyond formal convictions. If you’re uncertain, it’s best to seek legal advice or check the employer’s background check policy.

Why Does My Conditional Release Order Still Appear on a Police Check?

Even if your conditional release order (CRO) was issued without a conviction, it may still show up on a police check for a period of time. The visibility of a CRO depends on whether it was recorded as a conviction, how long ago it was issued, and the type of police check being conducted.

We Provide Strong Legal Representation

For many offenders, conditional release orders provide a valuable second chance—an opportunity to rehabilitate while avoiding the severe consequences of imprisonment. However, these orders come with responsibilities, and breaching them can lead to significant legal repercussions.

If you’re dealing with criminal charges and want to explore whether a conditional release order is an option for you, seeking legal advice is crucial. At Hannay Lawyers, our experienced Criminal Lawyers Sydney can:

• Assess your eligibility for a conditional release order
• Present compelling arguments in court
• Negotiate with prosecutors for favourable conditions
• Ensure you understand your obligations and remain compliant

If you have any questions about CROs or if you are considering applying for one, don’t hesitate to reach out to us now.

Losing your driver’s licence can be life-changing. For many Australians, a licence isn’t just about convenience—it’s essential for work, family, and daily responsibilities. If you’ve been hit with a licence disqualification in NSW, you know the struggle of not being able to drive. However, recent law reforms mean that some disqualified drivers now have a chance to get back on the road legally.

The Impact of Licence Disqualification in NSW

A licence disqualification isn’t just a legal punishment; it affects nearly every aspect of your life. Without the ability to drive, simple tasks like getting to work, taking your children to school, or attending medical appointments become major challenges.

For those living in regional areas with limited public transport, the consequences can be even more severe. Many people lose their jobs due to a lack of transport options, while others face financial hardship from relying on taxis or rideshares. Over time, social isolation can take its toll, affecting mental wellbeing and overall quality of life.

What is Licence Disqualification?

Licence disqualification happens when a court bans a person from holding or applying for a driver’s licence for a set period. Unlike a suspension, which is temporary, disqualification is a more serious penalty that completely removes your driving rights.

Some common reasons for licence disqualification in NSW include:

• Major traffic offences, e.g., drink driving, drug driving, reckless or dangerous driving)
• Excessive speeding, e.g., exceeding the speed limit by more than 30 km/h
• Street racing or aggravated burnouts
• Driving while already disqualified which often leads to further disqualification

Under the Road Transport Act 2013 (NSW), disqualification periods can range from three months to six years, depending on the offence and the driver’s record.

The 2017 Law Reforms: A Second Chance for Some Drivers

Recognising that long disqualification periods often led to repeat offences and even imprisonment, the NSW Government introduced reforms in 2017. These changes allow certain disqualified drivers to apply for early removal of their disqualification if they meet strict eligibility criteria.

This reform introduced major changes, including:

• Shorter mandatory disqualification periods for certain offences, making penalties more proportionate.
• Prison penalties eliminated for first-time fine default offenders, focusing on alternative measures
• Disqualification periods can now run concurrently rather than consecutively, reducing excessively long periods.
• Pathways for license reinstatement after offence-free periods
• Removal of the Habitual Traffic Offender Declaration scheme, which imposed additional disqualifications on repeat offenders.

According to a 2021 paper from BOSCAR, these reforms significantly reduced statutory penalties for unauthorised driving offences, with:

• 53% reduction in average license disqualification periods (9.6 months shorter)
• 28% reduction in average prison sentences (1.7 months shorter)
• 37% decrease in the probability of imprisonment

Interestingly, despite reduced penalties, the reforms did not increase reoffending rates or monthly court finalisations. The reforms highlight that severe penalties aren’t necessarily effective deterrents for driving offences.

Who is Eligible to Apply for Disqualification Removal?

Not everyone with a licence disqualification can apply. To qualify, you must meet these key requirements:

Complete an Offence-Free Period

You must have served a period without committing any driving offences:

• 4 years for major offences (e.g., drink driving, excessive speeding, street racing, or aggravated burnout)
• 2 years for habitual traffic offenders or other disqualification-related offences

No Serious Offences on Your Record

You are ineligible to apply if you have been convicted of:

• Murder or manslaughter involving a motor vehicle

• Crimes causing death or grievous bodily harm (e.g. predatory driving, police pursuits, negligent driving causing death)
• Intentional menacing driving
• Failing to stop and assist after an accident causing death or serious injury

No Mandatory Interlock Orders

If you are subject to a mandatory interlock order, you cannot apply for early disqualification removal.

How to Apply for Licence Disqualification Removal

If you meet the eligibility criteria, the application process involves several steps:

Obtain Your Driving Record

You need to request your official driving record from Transport for NSW by submitting a Driving Record Application for Disqualification Removal Order form.  Proof of identity documents must be certified by an authorised witness and included with the application.

Send the form to DisqualificationRemovalOrders@transport.nsw.gov.au or mail it to Disqualification Removal Orders, Locked Bag 14, Grafton NSW 2460.

Transport for NSW will assess your eligibility and provide a letter confirming whether you can proceed with a court application.

Seek Legal Advice

It’s strongly recommended to consult an experienced Traffic Lawyer, such as Hannay Lawyers before filing your application. We can help assess your case, prepare your submission, and improve your chances of success. If your application is denied, you must wait 12 months before reapplying.

Lodge Your Court Application

To apply for disqualification removal in the Local Court, you will need to:

• Complete the court application form, with a cover letter explaining why the disqualification should be removed, along with any supporting evidence
• Pay the lodging fee (approximately $114 as of July 2024)
• Apply for a fee waiver if experiencing financial hardship
• Lodge the application at your local court, which will schedule a hearing

Gather Supporting Evidence

A strong application includes evidence demonstrating rehabilitation and hardship, such as:

• Completion of a Traffic Offender Intervention Program (TOIP), if applicable
• Character references from employers, community leaders, or family members
• A personal statement outlining lessons learned and commitment to safe driving
• Proof of hardship, such as difficulty finding employment or accessing medical care
• Records of alternative transport used during the disqualification period

Attend Court

At the hearing, you or your lawyer will present your case before a magistrate. The court will consider:

• Public safety concerns
• Your overall driving record
• The nature of the offences that led to disqualification
• Your access to alternative transport
• Your employment, family, and financial circumstances

What Influences the Court’s Decision?

The magistrate has broad discretion when deciding whether to lift a licence disqualification. Some key factors include:

Rehabilitation Efforts

Demonstrating that you’ve taken steps to improve your behaviour is crucial. Evidence of this can include:

• Completing rehabilitation programs (e.g. TOIP, alcohol or drug treatment if relevant)
• Participation in road safety education
• An extended period without criminal or traffic offences

Necessity for Driving

The court will consider whether driving is essential for:

• Employment
• Family responsibilities
• Medical treatment
• Access to essential services

Risk to Public Safety

Public safety is the court’s primary concern. Your entire driving history, not just the offences that led to disqualification, will be assessed.

What Happens After the Court’s Decision?

If successful, your disqualification is lifted, but you must:

• Wait for Transport for NSW to process the court order
• Apply for a new licence (may involve passing tests)
• Pay outstanding fees or fines
• Meet any other requirements based on your situation

If your application is unsuccessful, you must wait 12 months before reapplying.

Driving While Disqualified: The Risks

Driving while disqualified is a criminal offence with severe penalties:

• First offence: Fines up to $3,300, up to 6 months in jail, and an extra 6-month disqualification
• Second/subsequent offences: Fines up to $5,500, up to 12 months in jail, and an extra 12-month disqualification

Remember, driving while disqualified is considered a direct contravention of a court order and can result in harsher penalties for repeat offenders.

Expert Guidance to Reclaiming Your Licence

Licence disqualification isn’t the end of the road. With strategic preparation and solid evidence, you can fight to regain your driving privileges faster than you thought possible. The process demands precision and proof that you’ve become a responsible driver.

If you’re dealing with a licence disqualification, our experienced Traffic Offence Lawyers Sydney can guide you through the process. We understand how crucial your licence is and will work tirelessly to give you the best chance of regaining your driving privileges.

Let’s talk about your path back to the road today. Call us now.

 

When charged with a criminal offence in Australia, one of your most crucial decisions is whether to plead guilty or not guilty. This choice shapes the entire legal process, impacts potential penalties, and can have lasting effects on your life. A wrong move can lead to unnecessary convictions, excessive penalties, or missed opportunities for leniency.

Understanding your options, the legal framework, and the possible consequences is vital. This guide will walk you through the key considerations, helping you make an informed decision that protects your rights and future.

What Happens When You’re Charged?

If you’ve been charged with a criminal offence, the legal system requires you to enter a plea:

• Guilty: You accept responsibility for the offence, and the case moves directly to sentencing.
• Not guilty: You challenge the charge, requiring the prosecution to prove your guilt beyond a reasonable doubt.

While this decision may seem straightforward, the reality is far more complex. The prosecution must prove its case, but pleading guilty can sometimes be strategically beneficial. Let’s break it down further.

When Should You Plead Guilty?

By pleading guilty, you acknowledge committing the offence. Although this might sound like a worst-case scenario, it can be advantageous in certain circumstances. In fact, in Australia, approximately 80% of people facing criminal charges enter a guilty plea (Wren & Bartels, 2014).

Reasons to Consider Pleading Guilty

• Strong Evidence Against You: If the prosecution has a solid case, fighting the charge may not be in your best interest.
• Sentencing Discounts: Courts in Queensland and NSW offer sentence reductions for early guilty pleas.
• Demonstrating Remorse: Accepting responsibility can lead to leniency.
• Avoiding a Long, Costly Trial: A guilty plea speeds up the legal process, reducing stress and expenses.
• Negotiating a Lesser Charge: Sometimes, prosecutors may agree to reduce the charge in exchange for a guilty plea.

Sentence Reductions for Early Guilty Pleas

Pleading guilty early can lead to a reduced sentence. The legal frameworks governing these discounts include:

New South Wales

• Section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows for the following reduction for guilty pleas:

When the Guilty Plea is Entered	Sentence Reduction
At or before committal proceedings in the Local Court.	25%
After committal but at least 14 days before the first day of trial.	10%
Within 14 days of the trial or later.	5%

The Early Appropriate Guilty Plea (EAGP) reforms require early disclosure of evidence to encourage early resolutions.

Queensland

• Section 13 of the Penalties and Sentences Act 1992 (QLD) ensures that courts consider guilty pleas when sentencing.
• There are no fixed percentages in reductions but rather discretionary based on timing and circumstances. However, based on R v Houghton [2002] QCA 159, reductions can range between 10% and 30%.
• A guilty plea entered at the first reasonable opportunity is more likely to receive the maximum available discount, whereas one entered later in the process will result in a smaller reduction.

Can You Dispute the Facts and Still Plead Guilty?

Yes. Pleading guilty does not necessarily mean you accept every detail of the prosecution’s version of events. While you admit to the offence, you can challenge specific facts, which can influence sentencing outcomes.

Disputing facts might be necessary if:

• The prosecution’s account exaggerates your level of involvement.
• Certain details in the police statement are incorrect.
• The alleged harm caused by your actions is overstated.

In such cases, your lawyer can request a disputed facts hearing, where the court determines which version of events to accept. These hearings are critical because sentencing is based on the established facts.

If you believe parts of the prosecution’s case are incorrect but still wish to plead guilty, consult your lawyer to determine whether a disputed facts hearing is appropriate for your case.

Strengthening Your Guilty Plea with Character References

If you choose to plead guilty, presenting strong character references can positively influence your sentencing outcome. These references, typically from employers, colleagues, or community members, highlight your good character beyond the offence.

A well-prepared character reference should:

• Be addressed to the presiding judge or magistrate.
• Acknowledge the offence without justifying or downplaying it.
• Provide examples of your positive character traits, such as integrity, responsibility, or community contributions.
• Be concise, professionally written, and limited to one page.

Additionally, a personal letter of apology expressing genuine remorse and outlining rehabilitation steps can further demonstrate that the offence was out of character. Your lawyer can assist in preparing these documents to ensure they effectively support your case and encourage a more favourable sentence.

Pleading Not Guilty

A not guilty plea forces the prosecution to prove every element of the charge. This is your legal right and can be the best option when:

• You Did Not Commit the Offence: If you are innocent, fighting the charge is critical.
• The Evidence is Weak or Flawed: Prosecution evidence must meet strict legal standards.
• A Legal Defence Applies: Self-defence, duress, and mistake of fact are examples of valid defences.
• The Charge is Incorrect: Sometimes, the prosecution overcharges a case, and a lesser charge may be more appropriate.
• You Wish to Maintain a Clean Record: A conviction can have significant long-term effects on employment, travel, and reputation.

Challenging the Evidence

A plea of not guilty allows you to contest the evidence put forward against you. This can involve:

• Examining Witness Testimony: Witness statements may be inconsistent or unreliable.
• Assessing Forensic Evidence: DNA, fingerprints, or CCTV footage must meet strict standards of reliability.
• Identifying Legal Errors: Police may have obtained evidence unlawfully or violated procedural rights.
• Presenting Expert Witnesses: Independent experts can refute prosecution claims.

If the prosecution’s case is weak or circumstantial, challenging the evidence can lead to an acquittal.

What Happens After a Not Guilty Plea?

1. The prosecution must provide all evidence against you.
2. Your lawyer examines the evidence for weaknesses.
3. A trial date is set.
4. At trial, the prosecution presents its case, and your defence challenges it.
5. The judge, magistrate, or jury determines the outcome.

In Queensland and NSW, criminal trials follow strict procedural rules. The responsibility to prove the case lies solely with the prosecution. If they cannot prove guilt beyond a reasonable doubt, you must be acquitted.

When Pleading Guilty Can Be Risky: Key Takeaways from RMP v Buley

The RMP v Buley [2021] QDC 228 case highlights the risks of pleading guilty without fully clarifying the facts:

• Admitting the offence doesn’t mean admitting all allegations: RMP pleaded guilty to breaching a domestic violence order by having contact, but he denied causing any injuries. The Magistrate wrongly assumed assault was proven.
• Vague terms can work against you: The term “physical interaction” was unclear, leading the Magistrate to make negative assumptions, even though evidence suggested RMP may have been attacked and acted in self-defence.
• Impact on sentencing: This misunderstanding resulted in a sentence change, from imprisonment to a $500 fine with no conviction recorded.

When you dispute key facts or have potential defences, it’s better to avoid ambiguous guilty pleas. Instead, consider options like pleading with an agreed statement of facts or forcing the prosecution to prove contested allegations that could affect your sentence.

Key Considerations Before Deciding

Choosing between guilty and not guilty is not just about the legal aspects—it’s also about practical implications.

Legal Factors

• The Strength of the Evidence: Is there enough proof to convict you?
• Defences Available: Can you argue self-defence, duress, or another legal defence?
• Potential Sentences: What penalties could you face if convicted?
• Impact on Witnesses: Can key witnesses support your defence?

Practical Factors

• Time and Stress: A trial can take months or even years.
• Legal Costs: Not guilty pleas often require expert witnesses and extensive legal work.
• Impact on Employment and Travel: A conviction can affect job prospects and visa applications.
• Immigration Consequences: Non-citizens may face deportation if convicted.
• Media Attention: Some cases attract unwanted public scrutiny.

The Long-Term Consequences of Your Plea

If You Plead Guilty

• Criminal Record: This can impact employment, travel, and professional licences.
• Professional Consequences: Some industries require mandatory reporting of convictions.
• Immigration Risks: Non-citizens could face visa cancellation.
• Civil Liability: A guilty plea can be used in civil lawsuits against you.

If You Plead Not Guilty and Are Convicted

• You face the same consequences as a guilty plea, but without sentencing discounts.

If You Plead Not Guilty and Are Acquitted

• You walk free with no criminal record or penalties.

Make an Informed Choice

Your decision to plead guilty or not guilty is one of the most important choices you’ll ever make. Understanding the legal framework, the strength of the evidence, and the potential consequences is essential.

A criminal charge does not automatically mean a conviction. With the right legal advice and strategic planning, you can achieve the best possible outcome for your future.

Get expert legal advice

Our Criminal Lawyers Sydney, Criminal Lawyers Brisbane, and Criminal Lawyers Gold Coast provide expert guidance through this complex decision-making process. We thoroughly examine the evidence, identify potential defences, negotiate with prosecutors when appropriate, and advocate vigorously on your behalf regardless of your plea. From contesting facts while pleading guilty to mounting comprehensive defences at trial, we ensure your rights are protected and your case presented in the most favourable light possible.

If you’ve been charged, don’t delay! Contact us now for expert legal representation.

On July 1, 2024, New South Wales became the first Australian state to criminalise coercive control in intimate partner relationships. Given a maximum penalty of 7 years imprisonment, it is crucial for individuals facing allegations to understand how the law defines coercive control, what constitutes evidence, and the available defences.

Current Data on Coercive Control in NSW

This landmark reform acknowledges that domestic abuse extends beyond physical violence—psychological, emotional, and financial abuse can be just as damaging. According to recent data from the Australian Institute of Health and Welfare reported 2.3 million women and 1.3 million men have experienced emotional abuse, and 1.6 million women and 745,000 men have experienced financial abuse from a present or previous partner.

From June 2024 to June 2025, NSW Police recorded 297 incidents of coercive control, according to figures released by the NSW Bureau of Crime Statistics and Research (BOSCAR). The majority of these matters involved harassment, monitoring, or tracking behaviour.

 

Controlling behaviours in the 276 coercive control incidents recorded by NSW Police. Each incident may involve multiple behaviours.

A New Chapter in Domestic Violence Law

The NSW coercive control laws, enacted through the Crimes Legislation Amendment (Coercive Control) Act 2022, represent a fundamental shift in how the legal system addresses domestic abuse. Unlike traditional domestic violence laws that primarily focus on physical harm or individual incidents of violence, these new provisions acknowledge that abuse often occurs as an ongoing pattern of behaviour designed to dominate and intimidate a partner.

This legislative change is particularly significant given that a 2021-2023 Domestic Violence Death Review Team report indicates 97% of intimate partner homicides in NSW have been preceded by coercive control. By criminalising coercive control, lawmakers aim to intervene before abusive relationships escalate to physical violence, potentially saving lives.

Understanding the Essential Elements of Coercive Control

To secure a conviction under these new laws, the prosecution must establish several key elements beyond a reasonable doubt. Under Section 54D of the Crimes Act 1900, the prosecution must prove:

• The accused engaged in a pattern or “course of conduct” involving abusive behaviour.
• The behaviour was directed at a current or former intimate partner.
• The conduct was intended to coerce or control the victim.
• A reasonable person would consider the conduct likely to cause the victim to fear violence or suffer a significant impact on their daily life.

The requirement to establish a pattern of behaviour is crucial, as it differentiates coercive control from isolated incidents of misconduct. This reflects an understanding that abusers often employ subtle, long-term tactics to assert dominance over their victims.

What Constitutes Abusive Behaviour?

The legislation provides a non-exhaustive list of behaviours that may constitute coercive control, including:

• Financial Control: Restricting access to money, preventing employment, or seizing wages.
• Surveillance and Monitoring: Tracking movements, reading messages, or using GPS devices to monitor a partner’s location.
• Social Isolation: Preventing contact with family and friends or restricting access to cultural or religious practices.
• Psychological and Emotional Abuse: Gaslighting, belittling, constant criticism, and threats to harm loved ones or pets.
• Threats and Intimidation: Using threats, whether explicit or implied, to instil fear and compliance.
• Destruction of Property: Damaging or destroying personal belongings to punish or intimidate the victim.
• Control Over Daily Activities: Dictating what the victim wears, eats, where they go, or whom they see.

This comprehensive approach ensures that coercive control is recognised in its various forms, not just as physical violence but as a pattern of conduct that significantly erodes a victim’s independence and well-being.

Penalties for Coercive Control in NSW

The maximum penalty for coercive control reflects the seriousness of the offence:

• Seven years’ imprisonment if dealt with in the District Court.
• Two years’ imprisonment if heard in the Local Court.

These penalties send a strong message that coercive control is not tolerated in NSW. However, sentencing considerations will vary depending on the severity of the conduct, the extent of harm caused, and any mitigating factors.

Legal Defences and Considerations

Given the serious nature of coercive control allegations, those accused under these laws have several legal defences available. The primary defence, outlined in Section 54E, allows defendants to argue that their conduct was “reasonable in all circumstances.”

For example, if financial control was exercised due to shared financial responsibilities or religious beliefs, the court may consider these factors when determining whether the behaviour was coercive. The defence must provide sufficient evidence to raise a reasonable doubt about the prosecution’s case.

Additionally, the laws require intent to be proven—meaning the accused must have deliberately engaged in coercive behaviour. This prevents wrongful convictions for behaviour that may have been misinterpreted but was not intended to control or intimidate.

Practical Challenges in Implementing NSW Coercive Control Laws

While the introduction of coercive control laws marks a major step forward, their implementation presents significant challenges:

1. Evidentiary Issues: Unlike physical violence, coercive control often lacks clear physical evidence. Cases will rely heavily on victim testimony, digital records (such as emails and messages), and witness statements.
2. Police Training and Awareness: Law enforcement officers have undergone extensive training to identify and respond to coercive control. Ensuring officers correctly assess reports and collect necessary evidence will be critical to successful prosecutions.
3. Support for Victims: Victims of coercive control often struggle to leave abusive relationships due to financial dependence, fear, or psychological manipulation. Strengthening victim support services, including legal aid, counselling, and housing assistance, is essential for effective enforcement.

The Future of NSW Coercive Control Laws

The effectiveness of these laws will be reviewed after three years to assess whether they adequately protect victims and hold perpetrators accountable. This review will consider:

• The number of prosecutions and convictions.
• The effectiveness of police training and response.
• Any unintended consequences, such as misuse of allegations in custody disputes.

As other Australian states consider similar legislation, NSW’s experience will serve as a model for refining coercive control laws nationwide.

Get Expert Legal Help

If you have been accused under the NSW coercive control laws, call our Domestic Violence Lawyers in Sydney immediately. We can help you:

• Understand your rights and obligations under the new legislation.
• Collect and present evidence effectively.
• Navigate complex legal proceedings.
• Defend against allegations.

Given the serious nature of coercive control charges, professional legal representation can make a crucial difference in achieving the best possible outcome.

Final Thoughts

If you’ve been charged under NSW’s new coercive control laws, understanding your legal position is crucial – these charges carry serious penalties up to 7 years imprisonment. While prosecutors must prove beyond reasonable doubt that you engaged in a pattern of controlling behaviour with specific intent, having an experienced defence strategy is essential. The law provides defences, particularly if your actions were reasonable in the circumstances, but navigating these complex legal waters requires expert guidance. Even if you’re innocent, don’t make the mistake of representing yourself. Don’t wait to protect your rights – contact one of our Criminal Lawyers Sydney now! Call us now!

In December 2024, Queensland passed the Making Queensland Safer Act, marking the most significant shift in youth justice laws in the state’s history. These reforms fundamentally change how young offenders are sentenced, leaning towards harsher penalties that align more closely with adult sentencing. But what does this mean for Queensland’s justice system, young offenders, and the broader community?

The Evolution of Youth Justice in Queensland

Historically, Queensland’s youth justice framework has prioritised rehabilitation over punishment. The Youth Justice Act 1992 was designed with an emphasis on restorative justice, recognising the unique developmental needs of children in line with international best practices.

However, with rising concerns over youth crime, the Queensland government has moved away from this rehabilitative approach. Premier David Crisafulli, was quoted by ABC as saying the reforms were a “first strike back” against youth crime, signalling a definitive shift towards a tougher stance on juvenile offenders.

Key Changes in the Making Queensland Safer Act 2024

The new legislation introduces several major changes that significantly increase the severity of sentencing for young offenders:

Mandatory Sentencing:

• Life sentences with a 20-year non-parole period for juveniles convicted of murder.
• Abolishment of the long-standing principle that detention should be a last resort.
• Adult-equivalent sentences for 13 serious offences:

Murder & Manslaughter Charges

• Manslaughter
• Unlawful striking causing death

Assault Charges

• Grievous bodily harm
• Acts intended to cause grievous bodily harm and other malicious acts
• Wounding
• Serious assault (involves various levels of intentional harm to persons, from minor assault to severe injury)

Break and Enter/Burglary

• Burglary
• Robbery
• Entering or being in premises and committing indictable offences
• Unlawful entry of vehicle for committing indictable offences

Traffic Offences

• Dangerous operation of a vehicle
• Unlawful use or possession of motor vehicles, aircraft or vessels

Human Rights Implications

The Queensland Human Rights Commission (QHRC) highlights that this is the third override of Queensland’s Human Rights Act since 2020. Section 33(3), which ensures age-appropriate treatment for convicted children, is directly impacted.

These measures reflect a significant departure from previous policies that sought to balance accountability with rehabilitation.

Is Queensland’s Youth Justice System Prepared for These Changes?

A 2024 report from the Queensland Audit Office (QAO) reveals alarming strains on the current youth justice system:

Overcrowding in Youth Detention Centres

• All three of Queensland’s youth detention centres operate above safe capacity, with an average of 23 young offenders exceeding daily capacity limits.
• Chronic staff shortages and frequent lockdowns disrupt rehabilitation efforts.

Financial Pressures

Over $1.38 billion has been allocated to youth justice over the past five years. However, only $134 million has been spent on outsourced rehabilitation programs, with limited assessment of their effectiveness.

High Recidivism Rates

The Queensland Audit Office found that despite the government’s 72-hour post-release plan for serious youth offenders, 75% reoffended within two weeks of release.

Similarly, a 2024 report by the Queensland Family and Child Commission showed the vast majority of young people released from Queensland youth detention centres – between 84% and 96% – reoffended within 12 months.

These striking statistics suggest that detention alone may not be effectively preventing youth from returning to criminal behaviour after release. In fact, a 2016 study suggests that harsher sentencing among youths, such as jail time, may not reduce crime rates but could instead increase reoffending.

Impact on Indigenous Youth

First Nations communities are expected to bear the greatest burden of these reforms. According to the Queensland Audit Office, Indigenous youth make up 69% of serious repeat offenders, despite representing only a small fraction of the state’s population. The long-term consequences of justice system involvement are particularly concerning, with a 2023 analysis of data from 1993 to 2014 showing that Indigenous youth who have contact with the law during adolescence face a significantly higher risk of suicide compared to their non-Indigenous peers.

Research published in The International Journal of Children’s Rights indicates Indigenous youth offending is deeply linked to systemic disadvantage, intergenerational trauma, and family instability, compounded by limited access to culturally appropriate education and support services. Many come from communities facing high poverty rates, overcrowded housing, and frequent family separation, with additional risk factors such as parental incarceration, substance abuse exposure, and school exclusion increasing their likelihood of justice system involvement.

These challenges highlight the need for policies that move beyond punitive measures and focus on culturally responsive rehabilitation programs, stable housing, mental health support, and diversion initiatives that strengthen community ties. A justice system that prioritises prevention, early intervention, and community-based solutions is more likely to break the cycle of reoffending and create safer, more resilient communities.

Although the new laws do have initiatives and programs aiming to curb youth offences, the major changes might do more harm than good.

Long-Term Considerations:

• Planning for new youth detention centres to accommodate increased sentencing lengths.
• Expanding staff recruitment and training programs.
• Developing culturally appropriate rehabilitation programs for Indigenous youth.

Future Implications

The reforms raise several important considerations for Queensland’s justice system:

Social Impact:

• Community safety outcomes
• Rehabilitation effectiveness
• Family and community disruption
• Indigenous community effects

System Capacity:

• Detention centre requirements
• Staffing needs
• Program adaptation
• Resource allocation

Legal Frameworks:

• Human rights compliance
• International obligations
• Appeal processes
• Judicial discretion

The Queensland Audit Office has recommended a phased implementation approach:

• Short-term: Addressing immediate capacity concerns in detention centres.
• Medium-term: Adapting rehabilitation programs to align with new sentencing laws.
• Long-term: Assessing the impact of the reforms through data-driven policy adjustments.

The long-term success of these reforms will depend on their ability to balance deterrence with rehabilitation while addressing systemic challenges in Queensland’s youth justice system.

Final Thoughts

The Making Queensland Safer Act 2024 represents a seismic shift in youth justice, but its true impact remains to be seen. While the government argues these changes are necessary for public safety, critics warn of long-term consequences, particularly for vulnerable youth. As legal professionals, our role is to ensure justice is not only served but remains balanced and fair.

How Our Firm Can Help

Navigating these changes can be overwhelming, particularly for families of young offenders. At Hannay Lawyers, we are dedicated to providing strong legal support under Queensland’s evolving justice system.

Our services include:

• Bail Applications: Advocating for fair pre-trial release conditions.
• Court Representation: Expert defence strategies tailored to your case
• Sentence Appeals: Challenging unjust or excessive sentences.
• Rights Protection: Ensuring compliance with human rights laws.
• Case Strategy Development: Providing guidance on the best legal options available.

If you or someone you love is in contact with the law, contact our Gold Coast Criminal Lawyers or Brisbane Criminal Lawyers now to protect your rights.

In recent years, Queensland has made significant efforts to strengthen its laws against vilification and hate crimes. Previously, the Anti-Discrimination Act 1991 already prohibited unlawful vilification based on race, religion, sexuality, gender identity, or sex characteristics. However, the new legislation, known as the Criminal Code (Serious Vilification and Hate Crimes) and Other Legislation Amendment Act 2023, was passed in October 2023 and amends the Anti-Discrimination Act 1991.

In this article, we will explore the current vilification laws in Queensland, including the bans and increased penalties for hate crimes and serious vilification. Additionally, we’ll look into the implications of this law for those accused of vilification or hate crimes.

If you’ve been accused of vilification or hate crimes, consult with one of our experienced Criminal Defence Lawyers today.

Unlawful Vilification

Under the Anti-Discrimination Act 1991, vilification is defined as a public act that incites hatred, serious contempt, or severe ridicule towards a person or group based on their race, religion, sexuality, gender identity, or sex characteristics. There are two levels of vilification:

Unlawful vilification: A civil issue managed by the Queensland Human Rights Commission through their complaints process.

Serious vilification: A criminal offence that involves threats of harm or encouraging others to threaten physical harm.

A public act includes any form of communication to the public, such as speaking, writing, printing, displaying notices, and online or electronic means. Further, these include observable conduct like actions, gestures, or wearing/displaying clothing, flags, emblems, or insignia.

How the New Laws Against Hate Crime are Stronger in Queensland

The new laws, which took effect on 29 April 2024, include the following provisions:

1. Criminal offence for displaying prohibited hate symbols:

• Publicly displaying, distributing, or publishing prohibited hate symbols without reasonable excuse is now a criminal offence with a maximum penalty of six months’ imprisonment. This includes:
  • Wearing clothing, tattoos, or insignia featuring the Nazi Hakenkreuz (the hooked cross), or other banned symbols in public. Note that the Hakenkreuz is not the swastika, which is a symbol used in religions such as Hinduism and Jainism.
  • Carrying flags, banners, or signs with prohibited symbols at rallies or protests.
  • Displaying graffiti or posters with banned symbols in public spaces.
  • Distributing physical items like stickers, badges, or flyers bearing prohibited symbols.
  • Publishing or sharing images of banned symbols online, such as on social media or websites accessible to the public.

The Attorney-General, in consultation with the Commissioner of Police, the Chairperson of the Crime and Corruption Commission, and the Queensland Human Rights Commissioner, will determine which hate symbols will be criminalised through regulation. However, Section 52C states that a symbol must be prohibited if it embodies an ideology of extreme prejudice against a person or a group based on their race, religion, sexuality, sex characteristics, or gender identity.

Nonetheless, the legislation permits the public display of these symbols for legitimate artistic, religious, educational, or law enforcement purposes with reasonable excuses.

2. Increased penalties for hate-motivated crimes:

• The new legislation increases penalties for committing offences motivated by hatred or serious contempt against a particular person or group’s characteristics. These offences include:
  • Going armed to cause fear
  • Threatening violence
  • Assault occasioning bodily harm
  • Wilful damage
  • Stalking
  • Harassment
  • Public nuisance

These reforms position Queensland at the forefront of efforts to combat hate crimes and vilification, reflecting the state’s commitment to fostering a safe and inclusive community.

3. Relocation and higher penalty for serious vilification:

The criminal offence of serious vilification has been moved from the Anti-Discrimination Act to the Criminal Code, with a higher penalty.

Implications for Those Accused of Vilification and Hate Crimes

The expanded vilification and hate crime laws in Queensland have significant implications for those accused of such offences. However, it is important to note that these laws are not meant to imprison someone for “simply being offensive”.

Here are the key considerations:

1. Increased Scrutiny and Legal Risks

• Higher Penalties: The new laws impose harsher penalties for serious vilification and hate crimes, including potential custodial sentences. Offenders convicted of hate-motivated crimes can face longer prison terms and larger fines than before
• Criminalisation of Hate Symbols: Publicly displaying, distributing, or publishing hate symbols is now a criminal offence. This broadens the scope of what can be prosecuted, capturing acts like wearing prohibited symbols on clothing or sharing them online.

2. Burden of Proof and Defence Strategies

• Proving Intent: Defendants must be prepared to counter the prosecution’s evidence that their actions were intended to incite hatred or serious contempt. This requires careful examination of the context and intent behind their actions.
• Reasonable Excuses: The law allows for certain defences, such as genuine artistic, religious, educational, or law enforcement purposes. Defendants must convincingly demonstrate that their actions fall within these exceptions to avoid conviction.
• Challenging Evidence: Defence lawyers must scrutinise the evidence presented, including communications, actions, and the context of the alleged vilification or hate crime. Expert testimony and character witnesses may be crucial in providing an alternative narrative.

3. Impacts on Personal and Professional Life

• Social and Professional Repercussions: Being accused of vilification or hate crimes can have severe personal and professional consequences, including loss of employment, social ostracism, and damage to reputation. The public nature of these offences means that accusations can quickly become widely known, especially with social media.
• Legal Costs and Process: Defending against such charges can be costly and time-consuming. The accused may face significant legal fees, and the stress of a prolonged legal battle can impact their mental and physical health.

4. Legal and Social Awareness

• Need for Education: Both law enforcement and the judiciary require comprehensive training to help them properly understand and enforce these new laws. This ensures fair and consistent application, preventing misuse or overreach.
• Public Awareness: Increased public awareness about what constitutes vilification and hate crimes, as well as the severe penalties involved, may act as a deterrent. However, it also means that individuals need to be more conscious of their actions and expressions to avoid unintentional violations.

Conclusion

The enactment of the Criminal Code (Serious Vilification and Hate Crimes) and Other Legislation Amendment Act 2023 marks a pivotal shift in Queensland’s legal framework, addressing the nuanced and pervasive nature of hate crimes and vilification. This legislative evolution underscores a commitment to combating hate speech and symbols, ensuring that offenders are met with stringent penalties and that public spaces are safeguarded against symbols of intolerance and prejudice.

Nonetheless, the law does make exceptions to what can be considered offensive. If you are accused of committing a vilification or hate crime, don’t hesitate to consult with our experienced criminal defence lawyers. We will guide you through the complexities of vilification and hate crime laws and ensure that your rights are protected. Contact one of our Brisbane Criminal Lawyers or Gold Coast Criminal Lawyers today!

Upskirting—secretly filming or photographing under someone’s clothing without consent—is common across Australia. A 2019 report by the Australian Institute of Criminology found that 1 in 20 women who participated in a national survey reported to have been targeted. However, despite the name, men can also be victims of this form of digital voyeurism, according to a 2021 article in Current Psychiatry Reports.

When charged, the consequences can be serious. In Queensland, upskirting carries a maximum penalty of three years in prison, while in NSW, aggravated cases can lead to up to five years behind bars. But what if you’re falsely accused? Understanding your legal rights is crucial, and in this article, we break down the laws in Queensland and NSW and explains your options.

If you’re charged or falsely accused of upskirting, don’t wait. Call Hannay Lawyers now!

What is Upskirting?

Upskirting refers to secretly filming or photographing someone’s private areas without their consent, often in public places. Both Queensland and NSW have strict laws against this conduct, imposing serious penalties on those convicted.

Upskirting Laws in NSW

In NSW, upskirting is an offence under Section 91L of the Crimes Act 1900. The law applies when someone takes a photo or video another person’s private parts without their consent. Penalties vary depending on the circumstances:

• Basic offence: Maximum fine of 100 penalty units ($1100) and/or 2 years’ imprisonment.
• Aggravated offence: If the victim is under 16 or the offender modifies a structure (e.g., installing hidden cameras), penalties increase to 5 years’ imprisonment.

For a conviction, the prosecution must prove beyond reasonable doubt that:

• The accused filmed or photographed another person’s private parts;
• It was done for sexual gratification;
• The person had a reasonable expectation of privacy;
• They did not agree to being filmed or photographed;
• The accused knew they didn’t consent.

Upskirting Laws in Queensland

Queensland’s laws take a broader approach under Section 227A of the Criminal Code 1899 (Qld). Unlike NSW, sexual motivation is not required for an act to be classified as upskirting. Key aspects of the offence include:

• Recording another person’s private parts where they would reasonably expect privacy;
• Doing so without consent.

A conviction carries a maximum penalty of 3 years imprisonment.

Legal Defences Against Upskirting Charges

If charged with upskirting, several legal defences may be available, depending on the circumstances:

Lack of Sexual Intent

• In NSW, if the prosecution cannot prove that the recording was for sexual gratification, the charge may not stand.
• In Queensland, this defence is less relevant, as the law does not require sexual intent.

Reasonable Belief in Consent

• If you genuinely believed you had consent to record, and that belief was reasonable in the circumstances, this may serve as a defence. However, proving this in court can be challenging.

Mistaken Identity

• Authorities sometimes identify the wrong individual as the person responsible for the recording. A strong defence could involve challenging the identification evidence.

What to Do If You’re Falsely Accused

False allegations of upskirting can have devastating effects on your personal and professional life. If you’re wrongly accused, here’s what you can do:

Gather Evidence

• CCTV footage that disproves the claim
• Witness statements confirming your whereabouts
• Electronic device records
• Location data from your phone or apps

Defamation Action

If someone has falsely accused you in a public forum, such as social media, you may have grounds for a defamation lawsuit.

Reputation Management

Even if cleared, false accusations can tarnish your reputation. Consider:

• Seeking professional PR assistance;
• Requesting the removal of online content;
• Relying on character references to rebuild trust.

Case in Point

False accusations can cause irreversible reputational damage. A high-profile example is the case of former MP Andrew Laming, who was falsely accused of upskirting in . A 9News report in 2021 claimed he had photographed a woman’s buttocks, leading to public backlash and political fallout. However, the broadcaster later admitted its mistake, withdrew the allegations, and issued a public apology after evidence showed the photo was not lewd in nature. Dr Laming pursued legal action, demonstrating how false allegations can be legally challenged.

Robust Legal Representation

Being charged with upskirting does not automatically mean you will be convicted. Our Brisbane Criminal Lawyers, Gold Coast Criminal Lawyers, and Sydney Criminal Lawyers specialise in sexual offence cases and provide expert legal representation.

Our services Include:

• Case Analysis: We assess the strength of the prosecution’s evidence and identify weaknesses.
• Evidence Gathering: Collecting CCTV footage, digital records, and witness testimonies.
• Court Representation: Defending you in court with strategic legal arguments.
• Negotiations with Prosecutors: Seeking to have charges reduced or withdrawn.
• Confidential Support: Ensuring your case is handled discreetly and professionally.

Next Steps: Protect Your Rights

If you’re charged with an upskirting offence or are falsely accused, take immediate action:

• Do not discuss the case with anyone except your lawyer.
• Preserve any evidence that supports your defence.
• Reach out to us for a FREE and confidential initial consultation.

Talk to one of our team now so you can start protecting your rights and mounting a robust defence.

 

When someone breaks the law in Queensland, they might have a defence if they made an honest mistake about the facts of their situation. This is called the “mistake of fact” defence, enshrined in Section 24 of the Criminal Code 1899 (Qld). The basic idea is simple and fair: if you genuinely didn’t know you were doing something wrong because you misunderstood the situation, you shouldn’t be punished as if you knew exactly what you were doing. However, not all mistakes qualify for this defence. Queensland law differentiates between types of mistakes and sets clear criteria for when the defence is applicable. Understanding how this defence works in practice is crucial for anyone facing criminal charges in Queensland.

Essential Elements of the Defence

To successfully invoke the mistake of fact defence, three critical components must be established:

Honest Belief (Subjective Test)

The individual must genuinely believe in the mistaken circumstances. This element focuses on the person’s actual state of mind. For instance, if a person borrows a neighbour’s tool, genuinely believing they had permission due to prior arrangements, their belief might satisfy the honesty requirement.

Reasonable Belief (Objective Test)

The belief must not only be honest but also reasonable from the perspective of an ordinary person in similar circumstances. This can be the case if someone drives a car believing they are under the speed limit because of a faulty but seemingly reliable speedometer.

Mistake About Facts, Not Law

The defence only applies to misunderstandings of factual circumstances, not ignorance of the law. To illustrate, believing an action is lawful because of a misunderstanding of the legal code does not satisfy the requirements of this defence.

When Can the Defence Be Raised?

The mistake of fact defence is particularly relevant to strict liability offences, where intent does not need to be proven. However, it is not limited to these cases. The defence can be raised in various situations where a factual misunderstanding led to alleged criminal conduct.

Some common scenarios include:

• Property Disputes: A person mistakenly believes they own or have permission to use an item.
• Regulatory Offences: An individual acts on incorrect information despite taking reasonable steps to comply with regulations.
• Administrative Errors: Instances where misunderstandings or clerical mistakes lead to unintentional non-compliance.

Limitations and Exclusions

Not every offence permits the use of the mistake of fact defence. For absolute liability offences, such as drink driving, the defence is specifically excluded.

Special Considerations in Sexual Offences

The Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 introduced significant changes to the defence’s application in sexual offence cases. These reforms codify key principles from case law and provide clearer guidance for courts and practitioners.

Notable changes include:

• Explicit recognition that silence does not constitute consent.
• Clarifications about the withdrawal of consent during an act.
• Reaffirmation that voluntary intoxication cannot justify unreasonable beliefs.
• Emphasis on the accused’s responsibility to take affirmative steps to ascertain consent.

Legal Burden and Process

Raising the mistake of fact defence follows a two-step process:

• Presenting Initial Evidence: The person accused must first provide enough evidence to show their mistaken belief was possible. This doesn’t mean proving their innocence but simply giving enough information to make the defence worth considering.
• Proving the Case Beyond Reasonable Doubt: Once the defence is raised, it’s up to the prosecution to prove either that the accused did not genuinely believe in the mistake or that the belief was unreasonable given the situation.

This structure ensures fairness. It allows the accused to explain their actions while keeping the responsibility on the prosecution to prove guilt beyond a reasonable doubt. At the same time, it prevents the misuse of the defence by requiring substantial proof for it to apply.

Practical Applications

A car purchased from an online marketplace could provide an example of how the defence operates. A buyer who carefully verifies the registration papers and pays a fair market price might genuinely believe the transaction is legitimate. If it later emerges that the car was stolen, their honest and reasonable belief in its legitimacy could invoke the mistake of fact defence, shielding them from criminal liability.

In workplaces, employees may sometimes rely on incorrect instructions from supervisors, leading to regulatory breaches. For instance, an employee following misleading directives about safety standards could raise this defence, provided they can demonstrate their belief in the directives was both honest and reasonable.

These examples show how the defence ensures fairness, protecting individuals from criminal liability for actions taken in good faith based on misunderstandings that are reasonable under the circumstances.

Why This Defence Matters

The mistake of fact defence plays a pivotal role in ensuring fairness in Queensland’s criminal justice system. It acknowledges that individuals acting under genuine misunderstandings should not be unfairly penalised, provided their beliefs meet the standards of honesty and reasonableness. This balance between individual protection and societal expectations maintains the integrity of the legal system.

Moreover, this defence encourages individuals to act reasonably and exercise due diligence in their actions. By requiring both honesty and reasonableness, the law upholds accountability while offering a safeguard against unjust outcomes.

How We Can Assist

Dealing with criminal charges can be overwhelming, particularly when a genuine mistake led to the alleged offence. Our team of experienced Criminal Defence Lawyers understands the intricacies of Queensland’s law and can help assess whether the mistake of fact defence applies to your case.

We are committed to protecting your rights and providing tailored legal strategies to achieve the best possible outcome. If you are in hot water, contact one of our Brisbane Criminal Lawyers and Gold Coast Criminal Lawyers today for expert legal representation.

In recent years, there have been rising cases of fraud, including card fraud and scams. Fraud is a serious criminal offence in New South Wales (NSW), carrying significant legal consequences. In this guide, we explain fraud laws in NSW, the elements required for a conviction, sentencing guidelines, and possible defences.

If you’ve been charged with fraud, call one of our expert Criminal Lawyers Sydney now.

What Is Fraud Under NSW Law?

Fraud is defined under Section 192E of the Crimes Act 1900 (NSW) as obtaining property or financial advantage, or causing financial disadvantage, through deception or dishonesty. This broad definition covers a wide range of conduct, from small-scale dishonesty to complex financial schemes.

Some common examples of fraud include:

• Submitting false insurance claims
• Making unauthorised charges on another person’s credit card.
• Creating fake invoices to secure payments
• Lying to obtain a loan or financial assistance
• Manipulating financial records to mislead others
• Identity theft for financial gain

These examples illustrate that fraud can occur in both personal and business settings, often with severe consequences.

Overview of Fraud Offences in NSW

Fraud offences in New South Wales are mainly outlined in Part 4AA of the Crimes Act 1900. This part covers a variety of fraudulent activities, and the following sections highlight some of the most significant:

General Fraud Offences

Section 192E makes it a crime to obtain property or financial gain through deception. It covers a wide range of fraudulent actions, such as:

• Faking documents, like contracts or signatures.
• Lying to get financial benefits, such as falsifying income to secure a loan.
• Using false information to claim things like insurance or medical benefits.

Destroying Records

Section 192F targets people who destroy or change records to cover up fraud. Common examples include:

• Shredding documents to hide stolen funds.
• Deleting records to conceal tax fraud or other illegal activities.

False Statements

In Section 192G, the law focuses on people who make false statements to deceive others for personal gain. This includes:

• Lying on financial documents to get loans or insurance payouts.
• Faking qualifications to land a job or promotion.

Corporate Officer Fraud

Section 192 applies to fraud committed by corporate officers (e.g., directors or high-ranking employees), such as:

• Misusing company funds for personal expenses.
• Falsifying company financial records to mislead others for personal gain.

Key Points and Penalties

• Maximum penalty under Section 192E: Up to 10 years imprisonment for serious fraud. Lesser fraud cases heard in the Local Court can carry up to 2 years’ imprisonment.
• Penalties for Sections 192F and 192G: Up to 5 years imprisonment, depending on the severity of the offence.
• Maximum penalty under Section 192H: Up to 7 years imprisonment

What Prosecutors Must Prove in a Fraud Case

To secure a fraud conviction, the prosecution must prove beyond a reasonable doubt that:

There Was Deception

The accused must have deliberately misled another person or entity, such as falsifying documents, making false statements, or using fake identities. For example, if someone is accused of Centrelink fraud, they might claim that any mistakes in their application were unintentional. If the prosecution cannot prove that the person intentionally deceived Centrelink, the court may decide to dismiss the charge.

The Conduct Was Dishonest

The accused’s actions must be considered dishonest by the standards of a reasonable person in the community. For instance, if an employee changes accounting records to steal money, the court will assess whether most people would view this as dishonest behaviour. The focus is on how society generally understands right and wrong.

There Was a Financial Gain or Loss

The prosecution must prove that the accused either gained money or caused someone else to lose money. For example, if a person falsely applies for a loan but the lender doesn’t lose any money, this could influence the penalty or sentence the accused receives.

Sentencing for Fraud Offences in NSW

Sentencing for fraud depends on several factors:

Amount Involved: Fraud penalties vary depending on the amount involved, with lighter penalties for smaller amounts and more severe consequences, such as imprisonment, for larger fraud cases.

Duration and Sophistication of the Offence: Penalties depend on the nature of the fraud, with lighter consequences for one-off incidents and harsher sentences for repeated or complex fraud, especially in organised cases.

Breach of Trust and Impact on Victim: Fraud involving a breach of trust, such as by professionals or against vulnerable victims, results in stricter penalties due to the severity of the betrayal. In contrast, fraud without a breach of trust or involving less harm typically leads to lighter sentences.

Factors That Can Influence Sentencing: Several factors, called mitigating factors, can influence sentencing and potentially lead to reduced penalties for the offender, such as:

• Early Guilty Plea: When the accused admits their guilt at the earliest opportunity, typically before the trial begins. This can show remorse and willingness to take responsibility, often leading to a reduced sentence.
• Cooperation with Authorities: Defendants who assist in the recovery of funds or provide valuable information to authorities may receive more lenient sentences.
• Rehabilitation and Remorse: Courts may reduce penalties based on the offender’s genuine remorse and steps toward rehabilitation, such as repaying stolen funds.
• Mental Health Issues: If an offender’s mental health significantly impacts their ability to understand their actions or make sound decisions, the court may consider this when determining the penalty. This could lead to reduced sentences, such as rehabilitation programs or treatment orders, instead of harsher penalties.

Court Process for Fraud Charges

Fraud cases in NSW can be heard in either the Local Court or District Court depending on the severity of the offence.

• Local Court: Handles less serious fraud cases, with a maximum sentence of 2 years per charge.
• District Court: Deals with more serious cases, with a maximum penalty of 10 years for major fraud offences.

The choice of court is based on the complexity and severity of the fraud charge.

Conclusion

While fraud charges are serious, having experienced legal representation can significantly impact your outcome. Each case is unique, and early intervention often leads to better results. Understanding the charges, potential defences, and likely outcomes helps you make informed decisions about your case.

Strenuous Legal Defence

Facing fraud charges can be overwhelming, but experienced legal representation can significantly affect the outcome of your case. With a proven track record of securing favourable outcomes, our expert Sydney Fraud Charge Lawyers can provide:

• Immediate legal advice and representation
• Tailored defence planning
• Negotiation for reduced charges or penalties
• Strong advocacy in court
• Guidance on rehabilitation and reparation to improve sentencing outcomes

If you’ve been charged with Fraud in Sydney, don’t delay. Get expert representation now!

A police search without a warrant can be an unsettling experience for anyone. Understanding your rights under New South Wales law is crucial for protecting your interests while maintaining appropriate cooperation with law enforcement. This guide outlines current legal frameworks, recent developments, and practical advice for dealing with warrantless searches.

Legal Framework and Police Powers

The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) sets out when police can search without a warrant. While Section 21 generally mandates warrants for searches, certain conditions permit warrantless searches to protect public safety or prevent crime.

Personal Searches: Understanding Reasonable Suspicion

To legally search a person without a warrant, Police must have “reasonable suspicion, i.e., must be based on specific facts, not just vague hunches or biases. For instance, Section 21 of LEPRA allows police to conduct a search if they reasonably suspect a person is involved in the following:

• Possesses stolen property;
• Carries prohibited drugs, such as heroin or methamphetamine, without legal authorisation;
• Has dangerous items or weapons, including firearms, knives, or explosives, which could pose a risk to public safety; or
• Holds evidence connected to an indictable offence, such as documents or stolen items.

“Reasonable suspicion” must be grounded in objective facts. A person’s criminal history alone is insufficient for justifying a warrantless search.

Vehicle Searches: Specific Requirements

Section 36 of LEPRA allows police to conduct a warrantless search of a vehicle if they have reasonable suspicion of certain offences. This includes:

• The vehicle contains stolen goods
• Illegal substances are present, such as prohibited drugs or narcotics
• Weapons are concealed
• Evidence of a serious crime exists
• A wanted person is inside

The case R v Buddee [2016] NSWDC 422 clarified that Random Breath Testing (RBT) cannot serve as a pretext for more extensive searches, preventing police from using RBT as an excuse for broader investigations.

Property Entry: Emergency and Safety Provisions

However, Section 9 of LEPRA allows police to enter private property without a warrant in specific, urgent situations. This includes:

Emergency Situations:

• If there’s an imminent threat of harm, such as in domestic violence situations.
• If police suspect damage or destruction of property is occurring or about to occur.
• If someone has died inside (not due to a crime) and no occupier is present to allow police entry.

Law Enforcement Purposes:

• Executing arrest warrants
• Preventing evidence destruction
• Responding to serious crimes in progress, such as burglary or assault.

Types of Searches and Legal Requirements

General Searches

Under Section 30 of LEPRA, police may carry out a general search without a warrant, but their actions must be proportionate and reasonable. This includes:

• Pat-downs of outer clothing to check for weapons or illegal items.
• Request for removal of certain outerwear for inspection, such as jackets, gloves, and shoes for safety or security reasons.
• Examination of personal belongings if these are believed to contain evidence of a crime.
• Use of metal detection devices to check for concealed weapons or illegal items.

Also, the police may request mouth inspection and hair searches to detect drugs or other illicit substances.

Nonetheless, these searches must be reasonably necessary and conducted with minimal force, ensuring the person’s dignity and privacy are respected.

Strip Searches

Sections 31-33 LEPRA govern strip searches, which are only permissible under strict conditions:

Threshold Requirements:

• Serious and urgent circumstances
• Reasonable necessity, i.e., with no less invasive alternatives available.
• No less invasive alternatives: For instance, if a pat-down could suffice, a strip search may not be justified.

Mandatory Procedures:

• Strip searches must be conducted in private to protect the individual’s dignity.
• Whenever possible, searches should be conducted by an officer of the same sex.
• Cavity searches, involving the insertion of fingers or objects, require separate judicial authorisation.
• Strip searches should be conducted efficiently, minimising unnecessary exposure.
• Additional safeguards apply when the person being searched is underage.

The 2020 Law Enforcement Conduct Commission report identified concerns about strip searches, leading to heightened scrutiny and stricter enforcement of these regulations.

Electronic Device Searches

Recent developments in digital privacy law have implications for searches of electronic devices, such as phones or computers, without a warrant:

• Reasonable suspicion that the device holds evidence of a crime.
• Search scope must be limited to the data relevant to the suspected crime, avoiding unnecessary access to personal information.
• Digital privacy protections must be upheld, and the search should not infringe upon personal rights more than necessary.
• While a device may be seized, a further warrant may be needed to search its contents in detail.

Understanding Your Rights

During the Search

According to LEPRA Section 202, police must provide certain details to individuals being searched:

• Provide name and station
• Show police identification, except when the officer is in uniform
• State reason for search
• Explain legal basis

You have the right to:

• Ask for the officer’s name, badge number, and the legal reason for the search.
• Record the search, provided it does not interfere with police actions.
• Remain silent, except for identifying yourself.
• Consult a Criminal Defence Lawyer before or during the search.

Documentation Requirements

Police are required to provide:

• A written record of the search upon request.
• A receipt for any items taken during the search.
• An incident number for reference.
• Copies of any documents related to the search, such as notices of confiscation.

Legal Remedies for Unlawful Searches

If a search without a warrant breaches the requirements of LEPRA, there are legal remedies available:

Evidence Exclusion:

• Section 138 of the Evidence Act: Evidence obtained unlawfully may be excluded from court proceedings if the search violates legal protocols.
• Public interest test: The court will assess whether the public interest in excluding the evidence outweighs the interest in admitting it.

Formal Complaints

If you believe your rights were violated, you can lodge a complaint with the:

• Law Enforcement Conduct Commission
• NSW Police Standards Command

In addition, the Police can investigate complaints through their internal processes.

The case State of New South Wales v Robinson [2019] affirmed that breaches of search procedures could lead to evidence being excluded and may result in civil action against the police.

Conclusion

Understanding your rights during a police search without a warrant is essential for protecting your legal interests while maintaining appropriate cooperation with law enforcement. Recent legal developments continue to balance public safety needs with individual rights protection.

Hannay Lawyers Can Help

Our experienced Sydney Criminal Lawyers provide comprehensive support if you’ve experienced a police search without a warrant. We offer:

• Immediate legal advice
• Evidence admissibility assessment
• Challenge procedures
• Court representation
• Complaint assistance

Don’t wait – unlawful police searches require immediate legal action. The sooner you contact us, the better we can protect your rights and challenge inadmissible evidence. Our expert Criminal Lawyers Sydney are available 24/7 for urgent consultations. Call us now, or complete our online form for a free initial consultation. Your rights matter – let us defend them.

The right to protest is a fundamental part of Australian democracy, safeguarded by the Constitution’s implied freedom of political communication and long-standing common law traditions. However, if you’ve been charged with a protest-related offence in New South Wales (NSW), understanding the legal framework is essential. This article outlines the key issues surrounding protest rights and responsibilities to help you navigate the potential legal consequences.

Understanding Your Rights

While peaceful protest is protected, this right isn’t absolute. The law seeks to balance the right to protest with the need for public order and safety. Here are two key types of protest activities:

 Authorised Protests

• Notice requirements: If you plan a large or disruptive protest, you must notify the police at least seven days in advance, providing details like time, location, and expected attendance.
• Legal protections: By notifying authorities, you gain some protection from certain offences. For example, participants may be shielded from charges like obstruction, provided they adhere to the approved plan.
• Cooperation with police: Authorised protests facilitate cooperation with police, helping ensure the protest proceeds without endangering public safety or order.

Unauthorised Protests

• Not inherently illegal: While not illegal, unauthorised protests don’t have the same legal protections. You may face charges for disruptive actions or violations of public order laws.
• Legal risks: Without formal authorisation, participants are at greater risk of arrest or fines. The law may view unauthorised protests more harshly, particularly if they disrupt public spaces or services.

Common Protest-Related Charges

If you’ve been charged following a protest, you could face one or more of these offences:

Traffic and Transport Offences

• Obstructing traffic: Blocking roads or causing traffic disruptions could result in a fine of up to 4 penalty units, according to Section 6 of the Summary Offences Act 1988.
• Railway obstruction: Interfering with railways can result in serious penalties: two-year imprisonment, a $22,000 fine, or both.

Police Interaction Offences

• Resisting or hindering police: If you refuse to comply with police orders, you could face up to 12 months in prison, a fine of $1100 (10 penalty units), or both.
• Assaulting police: Per Section 60 of the Crimes Act 1900, if you engage in physical contact with a police officer, even in the course of a protest, you could face a five-year imprisonment, a $2200 fine (20 penalty units), or both.

Assembly-Related Offences

• Unlawful assembly: If a protest causes significant disruption or is deemed a threat to public peace, it could be classified as unlawful. Penalties can include a fine of up to $550 (5 penalty units) or 6 months in prison.
• Violent disorder or riot: If violence erupts during a protest, you could face a fine of $1100 (10 penalty units) or 6 months in prison for violent disorder. A full riot could carry up to 15 years in prison.
• Affray: If there is a threat or outbreak of violence during a protest, Section 93C of the Crimes Act states that this charge could lead to up to 10 years in prison.

Environmental Protest-Specific Offences

• Mine interference: Activists targeting mining operations face up to 7 years in prison for disrupting activities.
• Forestry offences: Environmental protestors who interfere with forestry operations could face fines of up to $5500 (50 penalty units), six-month imprisonment, or both, and $10 for each tree damaged or destroyed.

Legal Defences and Considerations

Several legal defences may assist in protest-related cases, depending on the circumstances:

Constitutional Protection

• Freedom of political communication: Australia’s Constitution implicitly protects the right to communicate on political matters. If your protest was a form of political expression, this defence could apply.
• Right to peaceful assembly: Under common law, individuals are also granted the right to assemble peacefully. This means that, in certain cases, participating in a protest can be a legitimate form of expressing your views.

Reasonable Excuse

• Legitimate political expression: If your actions were part of a political statement, this could serve as a reasonable excuse.
• Peaceful conduct: Demonstrating that the protest was peaceful, and did not involve violence or disorder, can also be an effective defence.
• Following authorised protest guidelines: If you complied with the legal requirements for an authorised protest, this can significantly strengthen your position.

Recent Legal Developments

The legal landscape regarding protests is continuously evolving, especially as protests focus on issues such as climate change and environmental protection. Here are some recent changes:

Legislative Changes

• Roads and Crimes Legislation Amendment Act 2022: This law introduced tougher penalties for protestors who obstruct major infrastructure like highways and airports.
• Crimes Amendment (Obstructing a Railway) Act 2024: This law increases penalties for obstructing or interfering with railway services, signalling that authorities are becoming stricter on protest activities that disrupt transport networks.

Court Decisions

• Kvelde v State of New South Wales [2023] NSWSC 1560: A landmark case that upheld the rights of environmental protestors, specifically those targeting mining operations, reinforcing the protection of peaceful protest.
• Ongoing legal challenges: Challenges to anti-protest laws continue, particularly regarding how they affect the right to political expression. As the courts interpret these laws, there may be shifts in how the legal framework is applied.

Practical Steps If Charged

If you’ve been charged with a protest-related offence, it’s important to act swiftly and methodically:

Document Everything

• Record interactions with police: Note down or, if possible, record your interactions with law enforcement. This can be critical if your treatment or arrest is disputed.
• Gather witness statements: Obtain statements from fellow protestors who can corroborate your account of events.
• Preserve video evidence: Any footage from the protest—whether from your own device or from social media—can be essential in establishing the truth.
• Keep official documents: If the protest was authorised, keep copies of any paperwork, such as permits or notifications to the police.

Seek Legal Representation

It’s crucial to get advice from a lawyer, such as our expert Sydney Criminal Defence Lawyers. We can help assess your situation, explain your options, and outline possible defences, including constitutional challenges. We will need to understand the specifics of your case, such as whether the protest was authorised, whether violence occurred, or whether the police acted unlawfully.

Maintain Records

• Details of the protest: Keep a record of key details, such as when and where the protest took place, who organised it, and your specific role in the event.
• Communication with authorities: If you communicated with police before, during, or after the protest, ensure you keep a record of that correspondence, as it could be important.
• Medical records: If you were injured during the protest or in your interaction with the police, maintain any relevant medical documentation.

Future Considerations

As protest laws continue to evolve, particularly with increased focus on environmental and infrastructure protests, here are some trends to watch:

• Stronger regulation of environmental protests: As climate change and environmental issues become more urgent, future protests targeting industries like mining, forestry, and fossil fuels may face stricter legal restrictions.
• Increased penalties for disruptive activities: The trend towards tougher penalties for protestors who obstruct major infrastructure or engage in disruptive acts is likely to continue.
• Digital activism: With the rise of online activism, future protests may take digital forms, introducing new legal challenges around freedom of speech, online organisation, and cyber-related offences.
• International human rights considerations: Australia’s laws may also face scrutiny in the context of international human rights frameworks, particularly regarding the right to peaceful protest and expression.

Looking Forward

The right to protest remains vital to democratic engagement in Australia. However, the legal complexities surrounding protest activities mean that it’s crucial to understand both your rights and your responsibilities. Being informed about the legal risks and defences can help you minimise potential penalties and ensure that you’re able to exercise your right to protest in a way that is lawful and impactful.

If you’ve been charged with a protest-related offence, our expert Criminal Lawyers Sydney will develop an effective defence strategy tailored to your case. Get expert legal help today!

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 Lawyers 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.