General News

Hannay Lawyers has secured a successful appeal in the NSW Court of Criminal Appeal, with the Court finding that the original sentencing judge made a legal error in the way he assessed the discount to be applied for our client’s guilty plea—resulting in a reduced sentence.

Background

Our client, referred to as SH (name suppressed by court order), pleaded guilty in the Local Court on 15 November 2024 to one count of using a carriage service to access child-abuse material, contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth). The offence carries a maximum penalty of 15 years imprisonment.

On 22 August 2025, the District Court sentenced SH to two years imprisonment, with release on a recognizance release order after serving 12 months. The sentencing judge applied a 20% discount to reflect the guilty plea.

The Ground of Appeal

Hannay Lawyers appealed on a single ground: that the sentencing judge erred in his approach to the guilty plea discount under s 16A(2)(g) of the Crimes Act 1914 (Cth) by taking into account two impermissible factors that worked against our client:

1. The strength of the Crown’s case — the sentencing judge noted the plea was entered in the face of an “extremely powerful Crown case” where a finding of guilt was, in his view, inevitable.
2. The applicant’s maintained explanation — notwithstanding the plea, our client maintained he had inadvertently come across the material, which the sentencing judge factored into his assessment of the discount.

What the Court of Criminal Appeal Found

The NSW Court of Criminal Appeal (Coleman J, with Mitchelmore JA and Dhanji J agreeing) granted leave to appeal, allowed the appeal, and resentenced the applicant.

The Court made three important findings:

1. The strength of the Crown’s case is irrelevant to the utilitarian value of a guilty plea.

The utilitarian value of a guilty plea under s 16A(2)(g) is an objective assessment—it is concerned with the practical benefit the plea provides to the justice system, including saving court time and resources, and sparing witnesses from giving evidence. How strong or weak the prosecution’s case was has no bearing on that assessment. The sentencing judge was wrong to take it into account.

2. The applicant’s maintained explanation was also irrelevant to the utilitarian discount.

Whether or not the applicant accepted full moral responsibility for his offending—or maintained that he inadvertently accessed the material—goes to the subjective value of the plea, which is a separate matter to be considered as part of the instinctive synthesis of sentencing. It cannot be used to reduce the utilitarian discount under s 16A(2)(g).

3. The Crown could not resile from its earlier concession.

At the original sentencing hearing, the Crown had conceded in writing that the plea was entered at the first reasonable opportunity. On appeal, the Crown sought to walk back that concession and argue the plea could have been entered earlier.

The Court refused to allow this. Citing Zreika v R [2012] NSWCCA 44, the Court held that parties—including the Crown—should not be permitted to resile from concessions made at first instance without good cause. No explanation was offered by the Crown for the change in position, and allowing it would have been unfair to the applicant, who may have conducted his case differently had the concession not been made.

The Outcome: Sentence Reduced

Having found error, the Court resentenced the applicant afresh.

Accepting that the plea was entered at the first reasonable opportunity—and applying the well-established principle that earlier pleas attract greater discounts—the Court assessed the utilitarian value of the plea at 25%, up from the 20% applied by the sentencing judge.

The revised sentence:

• Head term: 1 year, 10 months and 15 days imprisonment (commencing 22 August 2025, expiring 6 July 2027)
• Release on recognizance release order: 21 June 2026, after serving 10 months imprisonment
• Conditions: Supervision by Community Corrections, engagement in directed rehabilitation and treatment, good behaviour for two years

Why This Decision Matters

This case is an important reminder of two key principles in Commonwealth criminal sentencing:

The utilitarian value of a guilty plea is objective—not subjective. Courts must assess the practical benefit of the plea to the justice system. The strength of the prosecution’s case, or the offender’s level of remorse and acceptance of responsibility, are separate considerations that cannot be used to reduce the utilitarian discount.

The Crown is bound by its concessions. Fairness in the sentencing process requires that parties—including the prosecution—stand by positions they have formally adopted at first instance. Where the Crown has conceded a matter in writing, it cannot simply change course on appeal without proper justification.

Download the full judgment (PDF)

Need Advice on a Criminal Appeal?

If you or someone you know has received a sentence that may not have properly accounted for a guilty plea or other mitigating factors, it is important to seek expert legal advice promptly. Appeal timeframes are strict.

Contact Hannay Lawyers to discuss your options.

Receiving a notice to attend a coercive hearing at the Australian Crime Commission (ACC) can be an incredibly stressful experience. At Hannay Criminal Defence, we have seen firsthand the confusion, anxiety, and uncertainty that clients face when they receive such a notice. The coercive hearing process is complex, and the potential consequences of not seeking proper legal advice early on can be severe.

Understanding the Australian Crime Commission and Coercive Hearings

The Australian Crime Commission is a national-level law enforcement agency that focuses on investigating serious and organised crime across Australia. Unlike state-level agencies such as the Crime and Corruption Commission (CCC) in Queensland, which primarily deals with corruption and major crime within the state, the ACC targets criminal activities that have a national or international scope. This includes offenses such as drug trafficking, money laundering, human trafficking, and other significant criminal operations that may cross state or international borders.

One of the most powerful tools at the ACC’s disposal is the coercive hearing. Coercive hearings are a unique investigative mechanism that allows the ACC to compel individuals to attend and answer questions under oath. These hearings are designed to gather critical information and evidence that may not be obtainable through traditional policing methods.

It is crucial to understand that coercive hearings are not criminal trials. They are investigative proceedings that aim to uncover information that can assist the ACC in their investigations. However, the information obtained during a coercive hearing can be used to further investigations and may ultimately lead to criminal charges being laid.

Consequences of Not Attending a Coercive Hearing

If you receive a notice to attend a coercive hearing, it is essential that you grasp the seriousness of the situation. Failing to attend a hearing when summoned by the ACC can result in severe penalties, including imprisonment. You are legally obliged to attend the hearing and answer the questions put to you, unless you have a valid reason for not doing so.

It is important to note that the right to remain silent, which is a fundamental protection in criminal proceedings, does not apply in coercive hearings. You must answer the questions asked, even if you believe that your answers may incriminate you. However, there are certain legal protections available, which we will discuss later in this article.

Immediate Steps to Take Upon Receiving a Notice

1. Seek Legal Advice Immediately

The single most important step you should take upon receiving a notice to attend a coercive hearing is to seek legal advice from an experienced criminal defence lawyer. At Hannay Criminal Defence, we have extensive experience in advising and representing clients in coercive hearings before the ACC. We understand the intricacies of the process and can guide you through every step of the way.

Contacting a lawyer as soon as possible is crucial, as it allows us to intervene early and start preparing your case. The earlier we are involved, the more time we have to review the notice, gather relevant information, and develop a strategic approach to protect your rights and interests.

2. Understand Your Obligations

When you receive a notice to attend a coercive hearing, it is essential that you carefully read and understand your obligations. The notice will outline the scope of the investigation, the specific matters that will be addressed, and any documents or materials that you are required to bring with you.

At Hannay Criminal Defence, we will thoroughly review the notice with you and explain your obligations in detail. We will help you understand the nature of the hearing, what you can expect during the process, and how to respond to the questions that will be asked.

3. Preparation is Key

Preparing for a coercive hearing is critical to ensuring the best possible outcome. At Hannay Criminal Defence, we will work closely with you to develop a comprehensive preparation strategy. This may involve:

• Gathering and reviewing relevant documents and evidence
• Identifying any potential legal issues or challenges
• Assessing the potential ramifications of your answers
• Developing a clear and concise approach to responding to questions
• Conducting mock hearings to familiarise you with the process and types of questions you may face

Our goal is to ensure that you are as prepared as possible and feel confident going into the hearing.

4. Understanding Your Legal Protections

While you are required to answer questions during a coercive hearing, there are certain legal protections available to you. One of the most important protections is the privilege against self-incrimination. By invoking this privilege, you can prevent your answers from being used against you in criminal proceedings, subject to certain limitations.

However, it is crucial to understand that claiming the privilege against self-incrimination does not excuse you from answering questions altogether. You must still answer the questions put to you, but your answers cannot be used as evidence against you in a criminal trial.

At Hannay Criminal Defence, we will carefully assess your situation and advise you on the most appropriate way to exercise your legal rights and protections. We will ensure that you understand the implications of invoking any privileges and guide you through the process of doing so.

5. Maintaining Confidentiality

Coercive hearings are highly confidential proceedings. It is a criminal offense to disclose any information about the existence of the notice or the content of the hearing to anyone other than your legal representative. This includes discussing the matter with family members, friends, or colleagues.

Maintaining strict confidentiality is essential to avoid potential legal consequences and to protect the integrity of the investigation. At Hannay Criminal Defence, we will advise you on your obligations regarding confidentiality and ensure that you understand the importance of maintaining the secrecy of the proceedings.

How Hannay Criminal Defence Can Assist You

At Hannay Criminal Defence, we are dedicated to providing our clients with the highest level of legal representation and support. Our team of experienced criminal lawyers has a deep understanding of the coercive hearing process and the strategies required to navigate it effectively.

When you engage our services, we will:

1. Provide tailored legal advice specific to your unique circumstances
2. Analyse the notice and any relevant information to identify potential risks and opportunities
3. Develop a robust legal strategy to protect your rights and minimise any potential adverse outcomes
4. Guide you through the preparation process and ensure that you are fully equipped to handle the hearing
5. Represent you during the hearing and provide ongoing support and advice throughout the process

We understand that facing a coercive hearing can be a deeply stressful and intimidating experience. Our goal is to alleviate your concerns, provide clarity and guidance, and fight tenaciously to protect your interests.

Conclusion

Receiving a notice to attend a coercive hearing at the Australian Crime Commission in Brisbane is a serious matter that requires immediate action and experienced legal representation. The consequences of not attending or not properly preparing for the hearing can be severe, including potential imprisonment.

If you find yourself in this situation, the most important step you can take is to seek the advice and assistance of a skilled criminal defence lawyer. At Hannay Criminal Defence, we have the knowledge, experience, and dedication required to guide you through the coercive hearing process and ensure that your rights are protected at every stage.

If you have received a notice to attend a coercive hearing, do not hesitate to contact Hannay Criminal Defence immediately. We are here to help you navigate this complex process, and to provide you with the support and guidance you need.

Receiving a show cause notice from the NDIS can be a daunting experience. However, understanding what a show cause notice is, why you might receive one, and how to respond effectively can help you navigate this challenging situation and protect your business. In this article, we will guide you through the process of dealing with a show cause notice from the NDIS.

What is a Show Cause Notice?

A show cause notice is a formal document issued by the NDIS Quality and Safeguards Commission to a registered NDIS provider. The notice outlines concerns the Commission has about the provider’s conduct or compliance with NDIS rules and regulations. It also gives the provider an opportunity to respond to these concerns and explain why the Commission should not take further action, such as imposing sanctions or revoking the provider’s registration.

Why Might You Receive a Show Cause Notice from the NDIS?

There are several reasons why the NDIS Quality and Safeguards Commission might issue a show cause notice to a registered NDIS provider. Some common reasons include:

1. Breach of the NDIS Code of Conduct: The NDIS Code of Conduct sets out expectations for the behaviour of NDIS providers and workers. If the Commission believes you have breached the Code, they may issue a show cause notice.
2. Non-compliance with NDIS Practice Standards: NDIS Practice Standards outline the quality standards expected of registered NDIS providers. If the Commission finds that you are not meeting these standards, they may issue a show cause notice.
3. Failure to report incidents: Registered NDIS providers are required to report certain incidents, such as allegations of abuse or neglect, to the Commission. Failure to do so may result in a show cause notice.
4. Complaints from participants or their families: If the Commission receives complaints about your service from NDIS participants or their families, they may investigate and issue a show cause notice if they find merit in the complaints.

What Should You Do When You Receive a Show Cause Notice?

Receiving a show cause notice can be stressful, but it is essential to take prompt and appropriate action to protect your business. Here are the steps you should follow:

Step 1: Read the notice carefully. Read the show cause notice thoroughly to understand the concerns raised by the Commission and the deadline for your response. Make note of any specific information or documentation requested in the notice.

Step 2: Seek legal advice. Consult with a legal professional experienced in NDIS matters. They can help you understand the implications of the show cause notice and advise you on the best course of action.

Step 3: Gather evidence. Collect any relevant documents, records, or other evidence that supports your case and addresses the concerns raised in the show cause notice. This may include participant files, incident reports, staff training records, or quality assurance documentation.

Step 4: Prepare your response. Work with your legal advisor to prepare a comprehensive response to the show cause notice. Your response should address each concern raised by the Commission, provide evidence to support your position, and demonstrate your commitment to compliance with NDIS rules and regulations.

Step 5: Submit your response. Submit your response to the Commission by the deadline specified in the show cause notice. Make sure to keep a copy of your response and any supporting documentation for your records.

Step 6: Implement necessary changes. If the show cause notice highlights areas where your service needs improvement, take steps to address these issues promptly. This may involve updating policies and procedures, providing additional staff training, or implementing new quality assurance measures.

Step 7: Communicate with stakeholders. Keep your staff, participants, and their families informed about the situation as appropriate. Reassure them that you are taking the necessary steps to address the concerns raised by the Commission and maintain the quality of your service.

What Happens After You Submit Your Response?

After you submit your response to the show cause notice, the NDIS Quality and Safeguards Commission will review your submission and decide on the appropriate course of action. There are several possible outcomes:

1. The Commission may be satisfied with your response and take no further action.
2. The Commission may request additional information or clarification before making a decision.
3. The Commission may impose sanctions, such as a banning order or conditions on your registration.
4. In serious cases, the Commission may revoke your registration as an NDIS provider.

If the Commission takes action against your business, you may have the right to appeal the decision. Your legal advisor can guide you through this process.

Preventing Show Cause Notices

Although it is important to know how to respond to a show cause notice, it is even better to prevent them from happening in the first place. Here are some proactive steps you can take to ensure your NDIS service remains compliant and avoids receiving a show cause notice:

1. Familiarise yourself with the NDIS Code of Conduct and Practice Standards and ensure your service meets these requirements.
2. Implement robust policies and procedures that align with NDIS rules and regulations.
3. Provide regular staff training on NDIS compliance, incident reporting, and best practices in disability support.
4. Maintain accurate and up-to-date records of participant care, incidents, and quality assurance activities.
5. Encourage open communication with participants and their families and promptly address any concerns or complaints.
6. Conduct regular internal audits to identify and correct any areas of non-compliance before they attract the attention of the Commission.

Conclusion

Receiving a show cause notice from the NDIS Quality and Safeguards Commission can be a challenging experience for any registered NDIS provider. However, by understanding the process and taking prompt and appropriate action, you can protect your business and reputation. Remember to seek legal advice, gather evidence, prepare a comprehensive response, and implement necessary changes to address the concerns raised by the Commission.

By being proactive and maintaining a strong commitment to compliance with NDIS rules and regulations, you can minimise the risk of receiving a show cause notice and ensure that your service continues to provide high-quality support to people with disabilities.

Book a consultation

Receiving and responding to a show cause notice can be a stressful process. Consult with our experts at Hannay Criminal Defence to protect your business.

Call us: (07) 3063 9799

Thankfully Australia doesn’t have the same gun culture like the USA and one reason is that our licensing regimes around the ownership of weapons is stricter in this country.

In Queensland, if you want to own and/or use a firearm, a crossbow, a powerhead or a paintball marker, you must be in possession of a valid weapons licence. To be eligible to apply for one you must:

• be at least 11 years old (you can hold a minor’s licence when between 11 and 17);
• have a genuine reason for needing a weapons licence;
• reside only in Queensland;
• be a fit and proper person;
• have completed an approved safety course in weapons safety;
• have a safe and secure place to store a weapon.

As of February 2021, there are also new laws covering replica firearms such as gel blasters, which have become more popular in Queensland, particularly among young people.

We’ll provide more detail on these changes and the wider weapons licensing regime in Queensland below, but if you have questions about your ownership or use of a weapon, you should contact Gold Coast criminal lawyers at Hannay Criminal Defence today to avoid finding yourself in breach of the law.

The basics of weapons licensing in Queensland

The Queensland Police Service (QPS) is responsible for administering the weapons licensing scheme in Queensland. There are numerous categories of weapons licence in the state (e.g. firearms, concealable firearms, collectors’, blank-fire firearms, security, etc.) and it’s important to understand which type of licence you need before making an application.

A key requirement in applying for a firearms licence in Queensland – and one which most people need more detail on – is the need for you to be a ‘fit and proper person’. How is this determined?

On the top of the weapons licence application form, the criteria for being a fit and proper person are listed, including that you have not, in the last five years, been convicted or discharged from custody on the sentence of:

• offences relating to the misuse of drugs;
• offences involving the use or threatened use of violence; and
• offences involving the use, carriage, discharge or possession of a weapon; or
• have been the subject of a domestic violence order.

Additionally, the police will take into consideration your mental and physical fitness; whether you have provided anything false or misleading on or with your application; any criminal intelligence or other information about you; and the public interest.

You also need a ‘genuine reason’ to own or operate a firearm. People such as vets and those who live on the land have some obvious reasons for owning a firearm but whatever your particular reason, you need to provide proof of it when you make your application.

The application form also requires you to submit details on any weapons safety certificate you have obtained, your offence and licence history (encompassing the offences mentioned above assessed as part of the fit and proper person test), and your medical history (whether you have eye or vision impairment, dizzy spells, a psychological or psychiatric condition, alcohol or drug dependency, etc.).

New weapons licence applications in Queensland can be processed via Australia Post, online at the QPS site or at a police station.

Replica firearms and gel blasters

In Queensland, replica firearms such as increasingly popular gel blasters are not considered a category of a firearm and do not need to be registered under the weapons licensing regime.

Problems have arisen, however, with the misuse of gel blasters because some of them so closely resemble actual firearms. Queensland Police report that since 2018, more than 100 people have been charged with misusing a gel blaster.

As a result, from February 2021 a new safety framework has been legislated around the use of gel blasters that resemble firearms.

It now requires that anyone owning a gel blaster must have a ‘reasonable excuse’ for owning one, such as being a collector of replica weapons or a member of a recreational club. The term ‘reasonable excuse’, say the QPS, will be broadly interpreted.

When not in use, gel blasters must be stored securely, such as in a lockable cupboard or bag, but not necessarily in a gun safe. Additionally, during transportation of the gel blaster, it must be out of sight in a bag or other means of carriage that does not allow the device to be silhouetted.

Call us with questions or concerns

Hannay Criminal Defence is a multi-award winning criminal law practice with office locations in Gold Coast and Brisbane CBD. We can help if you are unsure about the weapons licensing framework, believe you are in breach of it or have queries about meeting the fit and proper person test involved in the application process.

Contact us Brisbane Criminal Lawyers today for an initial consultation.

Australia’s state borders don’t mean that if you commit a crime in one state, you can escape the consequences by fleeing to another state.

The phrase, ‘the long arm of the law’, was created for a reason, and in practice, it means that if a warrant for your arrest is issued in a state or territory outside of Queensland, it can be enforced against you in this state.

Arrest warrants remain in force until the time the subject of the warrant is arrested, even if that is in another state. If there is a warrant for your arrest in another state and you come to Queensland, you have likely committed what’s known as an ‘extradition’ offence.

We’ll explain more about what happens if you commit this offence below. If you find yourself in the situation where you are located in Queensland but discover there is a warrant for your arrest issued in another state, you should contact expert South-East Queensland gold Coast criminal lawyers at  Hannay Criminal Defence immediately.

What happens if you commit an extradition offence?

Under Queensland’s Police Powers and Responsibilities Act, police can arrest a person for offences committed outside the State when that offence is an indictable offence or an offence for which the maximum penalty is at least two years imprisonment.

If Queensland police reasonably suspect a person has committed an extradition offence, it is lawful for them to arrest that person without a warrant, detain them in custody, and question them in relation to the extradition offence.

The person must then be brought before a Queensland magistrate as soon as possible and the warrant or a copy of it produced, if possible. If the warrant is not produced, the magistrate may order that the person is released or may adjourn proceedings for such reasonable time as the magistrate specifies, and remand the person on bail or return them to custody.

If the warrant or a copy of it is not produced within five days, the magistrate must order that the person be released.

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

What happens if you’ve absconded from a court order in another state?

The above information relating to arrest warrants applies to people who have not yet appeared before the court in the state where the original offence occurred.

If a person has been sentenced in another state and then leaves that state and arrives in Queensland before completing the sentence, Queensland police can arrest them on warrant and bring them before the court. In this case, the magistrate will most likely order the person be returned to the custody of the state where they were the subject of a court order. It’s important to note the Queensland magistrate cannot grant bail in this situation.

Call Hannay Criminal Defence

In any of the situations outlined above, it’s crucial you promptly seek legal advice from specialists in criminal law matters. Hannay Criminal Defence, with offices in Brisbane, Sydney and the Gold Coast, is an award-winning criminal law firm who can best represent your interests and protect your rights if you are facing extradition to another state. Contact us at Brisbane Criminal Lawyers today for a consultation.

Many people in Queensland are likely unaware of the detail involved in the offence of ‘receiving/possessing tainted property’ but it’s well worth knowing because it’s a crime that can easily ensnare otherwise innocent people.

The essence of the offence is found in section 433 of the Queensland Criminal Code: ‘A person who receives tainted property, and has reason to believe it is tainted property, commits a crime.’

What is tainted property? It means property that has been obtained through an unlawful act, the most common being stealing. If someone gives you something that they obtained illegally – the proceeds of a crime – you are in possession of tainted property.

We’ll look at this offence in more detail below but if you suspect you are in possession of tainted property and may be in breach of the law, you should consult award-winning criminal SEQ law firm Hannay Criminal Defence today to fully understand the implications.

How is possessing tainted property prosecuted?

For low-value property this offence will generally be heard in the Queensland Magistrates Court. Higher value property or more serious incidences of the offence are more likely to be heard in the District Court.

Being a criminal matter, if you are charged with the offence of receiving tainted property, the police and prosecution need to prove the case against you beyond a reasonable doubt.

To do so they need to show that you received the property into your possession, being defined as: having it in physical custody; or knowingly keeping the property in a house, flat, building or other place under your control; or that you’ve aided in concealing or disposing of the property.

The property you receive must have been obtained by the person who gave it to you through an act that constitutes an indictable offence, such as stealing. Something is stolen when it is taken without the owner’s consent and with an intent to permanently deprive the owner of the item.

A highly significant element in the successful prosecution of this crime is that when you received the property, you had reason to believe the property was stolen. This element can cause problems for otherwise innocent people – say you buy an item such as a mobile phone from a friend. If the phone is sold to you at a significant discount from its real value, then it’s possible for the prosecution to show you that should have known it was stolen before you completed the transaction. Factors such as the state of the item, whether you have a receipt for the item, who it was purchased from and where it was purchased may all be taken into account in assessing whether you were aware the item was stolen.

While this law does not means it’s incumbent on a person to investigate where every item in their possession came from, it’s also no defence to profess ignorance where the circumstances suggest an item you received and now possess was originally stolen.

Possible defences

An expert criminal lawyer can raise a number of defences to this offence, including that under the legal definition, you did not receive the property; that you did not know the property involved was stolen; that you possessed an honest and mistaken belief that the actual owner of the property had consented to your possession of the property; or that the property is the subject of a civil or contractual dispute. Other defences may also apply.

What are the penalties?

Possessing tainted property is no trifling matter. The penalty for doing so if the property was obtained as part of a crime is a maximum term of imprisonment of 14 years. This term also applies if the thing received is a firearm or ammunition, or if the offender was acting as a pawnbroker or dealer in second-hand goods (under a licence or otherwise) when they received the item/s.

In any other circumstances the maximum penalty for this offence is seven years imprisonment. Aggravated incidents of the offence are also possible under section 161Q of the Penalties and Sentences Act 1992.

The importance of good legal representation

There are probably many examples someone can think of where they receive property of which they have no knowledge that it was originally obtained by an indictable act. Someone gives you an old laptop, for example, or even lends you money that they did not obtain honestly – it can be quite easy to become suddenly implicated in a crime.

For this reason it’s important to speak with experienced criminal law practitioners like Hannay Criminal Defence. We will diligently investigate the circumstances of your case in order to mount the best possible defence against any charge of receiving and possessing tainted property, and safely guide you through the court process.

Call us Gold Coast Criminal Lawyers for a case assessment today at (07) 3063 9799.

It’s with great pleasure that Hannay Criminal Defence have announced their sponsorship of Boxer, Tim Tszyu in his plight to become a World Titleholder.

“Hannay Criminal Defence” is becoming synonymous with supporting young boxers on their way to ring success, having sponsored Jeff Horn to boxing fame and of course, more recently Joel Camilleri.

 

 

We all recognise that our police force play an essential role in maintaining law and order in our community. For most people, the police will be the first phone call they make if they believe their personal security or property is breached or threatened.

But there are also limits on police powers, necessary to ensure that citizens are not subject to arbitrary or wrongful searches and seizure of personal property. In Queensland, these limits are primarily set out in the Police Powers and Responsibilities Act 2002 (‘PPR Act’). While no-one expects you’ll be familiar with the fine detail of this piece of legislation, it’s worthwhile for everyone to be aware of their rights and responsibilities if for some reason you are subject to a police search.

This article will take a closer look at the situation where police wish to search your vehicle. What should you do in this situation? What happens if the police don’t have a search warrant? What does it mean if they do?

If a police officer asks to search your vehicle it’s best to say “no” as if you consent to the search, then the police are no longer subject to the restrictions imposed by the PPR Act. In all other respects (being asked your name and address, for example), you should comply with police directions lest you risk being charged with obstructing police. By refusing to consent to the search, the onus is then on the police to decide whether they have the power to search your vehicle with or without a search warrant.

If you find yourself in this situation you should, as soon as possible, contact legal professionals such as Hannay Criminal Defence with experience and specialty in this area of the law. We can help you respond to the police in the appropriate way. Meanwhile, here are some things you should know…

In what circumstances can police search your vehicle?

Police have the power to stop and detain a vehicle, as well as its occupants, in order to conduct a search without a warrant under sections 31 and 32 of the PPR Act and ss 31 to 35 of the Transport Operations (Road Use Management) Act 1995 (Qld). In order to do so, the police officer must reasonably suspect that the vehicle may contain:

• A weapon or explosive that a person may not lawfully possess;
• an implement that could be used for housebreaking, stealing a vehicle or administeing a dangerous drug;
• tainted property;
• evidence that a serious (i.e. indictable) offence has been committed;
• something the person intends to use to harm themselves or someone else;
• an unlawful dangerous drug.

Police can also stop, detain and search a vehicle:

• To arrest someone in the vehicle;
• if they reasonably suspect the vehicle is being used unlawfully;
• if they reasonably suspect that the vehicle is being used by or is in the possession of a participant in a criminal organisation;
• if it’s not practical to search the vehicle where it’s been stopped, the police can take it somewhere else to complete the search;
• in relation to an out-of-control event (where 12 or more people are gathered together at a place, and three or more people associated with the event engage in out-of-control conduct at or near the event).

Police must also conduct a ‘lawful’ search. This means they may only use ‘reasonably necessary force’ which is not likely to cause grievous bodily harm or death in order to make the search, unless the situation is considered ‘critical’ (i.e. an emergency). Where a person obstructs a lawful search, police must provide a warning to the individual that it is an offence to do so and give the person a reasonable opportunity to stop obstructing the search.

What should you do if police have a warrant?

A warrant is an official document issued by a Supreme Court judge, a magistrate or even a Justice of the Peace that provides police (or someone else) with the power to:

• Arrest someone;
• search you, your vehicle, or your home;
• take and keep your things found in a search;
• put you in jail.

If police execute a warrant upon you to search your vehicle, you should attempt to get legal advice as soon as practicably possible. In any event at the time police present the warrant, read it and check that your name and address are accurately recorded on the document. If any details are incorrect, point them out to police. It’s best not to argue with or obstruct the police because, as we’ve mentioned, you may be charged with additional offences. You should also refrain from answering any questions put to you by the police during the search with a warrant until you’ve had a chance to speak to a legal representative.

How we can help

We are a multi-award winning criminal law practice with offices in Brisbane CBD and Southport, Gold Coast. We are specialists when it comes to Queensland’s criminal justice system, with extensive knowledge of the applicable laws and years of practical experience appearing in courts for clients who may have been the subject of a police search, with or without a warrant.

If you are the subject of a search or have any questions about any of the information raised in this article, call our Gold Coast criminal lawyers today on 07 3063 9799 for a free initial consultation and practical, prompt advice on what steps you should take.

The spread of terrorism throughout the world in recent decades has resulted in a substantial increase in the powers of government authorities to detain and search people passing through international airports.

In particular, these powers have been extended to allow bodies such as the Australian Federal Police (AFP) and Australian Border Force (ABF) (including Customs officers) to gain access to information held on a person’s ‘stored communication device’. As has been revealed after the fact, many terrorist operations have been organised almost entirely over smartphones.

These powers can apply, for example, to information you hold on a smartphone, tablet or laptop; whether you’re an Australian citizen or overseas visitor; and whether you arrive by air, land or sea.

While we all understand that the authorities monitoring our borders should have powers to search incoming passengers if they suspect they are carrying illicit goods, banned items or agricultural products from overseas, powers to search a device such as a phone or computer is a different proposition given the amount of personal information we generally store on these devices these days.

How extensive are the powers in relation to searching your devices?

Under Section 186 of the Customs Act 1901, Australian Border Force or Australian Customs officers have the power to examine all goods at the border, including electronic documents and photos on mobile phones and other personal electronic devices.

If you refuse to comply with a request for an examination of your electronic device, that device may be held until the ABF is satisfied that the item does not present a risk to the border.

The ABF says it will conduct such a search when it identifies travellers either arriving and departing at the Australian border who “may be of concern” for immigration, customs, biosecurity, health, law-enforcement or national security reasons.

As some commentators have pointed out, in normal circumstances, i.e. not at the border, the authorities would need to clear a number of hurdles – such as procurement of a warrant – in order to search a person’s phone or computer, but this does not apply at border points.

The 2018 case of British-Australian software developer Nathan Hague is illustrative. Hague was stopped at Sydney Airport and had his phone and laptop taken from him by ABF officers for 90 minutes.

Hague later told the media that the ABF officers refused to tell him why they had confiscated his devices, what would be done with them, and whether any of his stored data was being copied and saved. The ABF later acknowledged that Hague’s devices were examined but would not comment on whether his files had been copied.

In 2015 an Australian man leaving the country to visit family in Turkey and Cyprus was detained at Sydney International Airport for almost four hours while Customs officers not only confiscated his mobile but also sent text messages on it. It was later revealed the officers had no reasonable grounds to suspect the man had committed or intended to commit any offence. The man later took action in the District Court of NSW for false imprisonment, unlawful detention and harassment.

The legal position regarding searches of stored communications

As the above cases illustrate, border entry/exit points to Australia are somewhat exceptional in terms of the powers of authorities such as the ABF due to the operation of the Customs Act.

More generally speaking, the ability of authorities to access data on stored communications devices is governed by the Telecommunications (Interception and Access) Act 1979(Cth) (the TIA Act). The TIA Act provides that stored communications may be accessed by enforcement agencies under stored communication warrant to investigate a “serious contravention” of the law.

Stored communication is defined as:

• Not passing over a telecommunications system;
• held on equipment that is operated by, and is in the possession of, a carrier; and
• cannot be accessed on that equipment, by a person who is not a party to the communications, without the assistance of an employee of the carrier.

Examples of stored communications include emails or SMS messages held by a carrier. ‘Enforcement agency’ includes the AFP; the ABF; a police force of a State; Australian Commission for Law Enforcement Integrity; the ACC; the Crime Commission; the Independent Commission Against Corruption; the Police Integrity Commission; the Crime and Misconduct Commission; the Corruption and Crime Commission; the Independent Commissioner Against Corruption; or an authority established by or under a law of the Commonwealth, a State or a Territory.

Under Section 3LA of the Crimes Act 1914, a member of the Australian Federal Police (AFP) or a state police force can apply to a magistrate for an order requiring a specified person to provide any information or assistance that is “reasonable and necessary” to allow the member to “access data held in, or accessible from, a computer or data storage device” subject to a warrant.

The magistrate may grant the order if he or she is satisfied that there are “reasonable grounds for suspecting that evidential material is held in, or accessible from, the computer or data storage device”, and that the person specified in the application is either “reasonably suspected of having committed the offence stated in the relevant warrant” or a person who is or was a system administrator for the relevant system that includes the computer or device.

Consult a specialist legal firm

At Hannay Criminal Defence we have helped many people who have been subject to random searches by government authorities. We understand the frustration, inconvenience and distress such interactions can cause. We can help advise you of your rights and options should you experience such an event at an Australian border point. Contact our Brisbane Criminal Lawyers today on (07) 3063 9799 for a free, initial consultation.

While the severity of the global COVID-19 pandemic appears to be subsiding in Australia, at least, the changes to how we live and some of our laws are expected to remain for quite some time yet.

In Queensland, police have been given additional emergency powers in addition to their usual powers in order to enforce the special public health directions announced by Queensland’s Chief Health Officer (CHO) under the Public Health Act 2005 (Qld) (‘Public Health Act’).

These directions include the ability of police to restrict the movement of people, restrict access to public spaces, and if necessary, shut down businesses.

Many police enforcement powers provide for officers to use their discretion, particularly where people affected by the COVID-19-related rules seek to be excepted because they have a “reasonable excuse” (such as the need to travel to care for a family member, for example).

The combination of police discretion and someone with a reasonable excuse can prove problematic. Police can be over-zealous in enforcing the emergency rules, or misintepret a person’s reasons for not complying with them. Consulting a legal professional may be required if you feel you have been dealt with unfairly as a result of the special public health rules introduced to combat the pandemic.

More detail on police powers

The amendments to the Public Health Act allow police (and some other emergency workers) to:

• Require a person to remain isolated in a place such as their home, or a hotel room or a hospital.
• Enter private property to save human life; prevent or minimise serious adverse effects on human health; or do anything else to relieve suffering or distress.
• If they enter private property for that purpose, police may also search the property and inspect and remove items.
• Require a person to provide their name and address, and answer questions relevant to the public health emergency.

In the case that police issue their own direction to a specific person, they must give that person a chance to comply first before they consider a fine. A fine should only be issued if a person refuses to comply when directed to by police. Those who claim a reasonable excuse for breaching a CHO directive might still be questioned by police, but should not be fined.

Police are not obligated to provide a warning when enforcing a CHO direction because the direction itself has been made public. If a person misleads police, by lying about what they are doing or obstructing police in their duties, for instance, additional charges may apply.

What to do if you receive an infringement notice

Because the public health directives from the CHO are being constantly changed and updated as the course of the pandemic proceeds, there can be public confusion when it comes to compliance.

If you receive an infringement notice claiming you have breached a directive of the CHO, you have 28 days to challenge the notice by electing to have the matter determined in court. While information about how to do this is included on the notice itself, it’s advisable to consult with a law firm experienced in this area such as Hannay Criminal Defence before taking this course of action.

We can help clarify the best way to respond to the notice or, alternatively, help you ask police to review the decision on issuing an infringement notice. In some cases it can be shown that the notice will have an adverse affect on your ability to conduct your life normally, or that you did have a genuine and reasonable excuse for breaching the rules.

If you find yourself interacting with Queensland Police regarding breaching the special COVID-19 rules, contact our Gold Coast criminal lawyers today for a free evaluation of your case on (07) 3063 9799.

All areas of the Australian community have been heavily impacted by the onset of the COVID-19 pandemic. From school closures to the shutting down of workplaces, shops and even beaches and parks, the efforts to stop the spread of the disease is and will have far-reaching consequences for the way we live.

This includes the judicial system. The need for social distancing to prevent further community transmission of COVID-19 obviously impacts the ability of the court system to conduct proceedings in its usual way, particularly those elements that require people to be in close contact for extended periods of time such as jury trials.

This article serves as an overview of the ways the courts have reacted to the measures implemented to halt the march of the pandemic, and how it might affect you if you were waiting on a date to appear in court, have a legal matter ‘on foot’ (already before the court), or need a resolution of some other matter to be determined by the courts.

The state of play

While Australian courts remain ‘open’, during March most courts issued new procedures for their continuing operation in light of the necessary safety measures required by the COVID-19 pandemic. Both Federal and state courts have now primarily moved to video conferencing and electronic filing of documents in order to reduce the need for person-to-person contact in conducting their daily business.

High Court: The highest court in the land, the High Court of Australia, announced that it would not sit in Canberra or on circuit from April 2020 until June 2020, after which future sittings will be reviewed. The High Court will continue to deal with special leave applications, including hearings as necessary at individual registries, as well as any urgent matters that may arise by video link between registries and Canberra.

Family courts: Both the Family Court and the Federal Circuit Court of Australia also announced new practice directions during March in light of the safety measures made necessary by COVID-19. Judges, Registrars and staff remain in place to conduct hearings both via videoconferencing through the use of Microsoft Teams or other platforms, or by telephone. The Courts are also conducting mediations electronically and through other safe means.

In exceptional circumstances, a small number of face-to-face in-court hearings will be conducted by the Family Court, with social distancing requirements strictly followed. Face-to-face interviews by family consultants will only take place in exceptional circumstances.

The Family Court’s registries remain open for telephone appointments, electronic filing and the listing of urgent cases.

Federal Court: The Federal Court has modified its practices to minimise in-person appearances before the Court. Parties to proceedings have been requested to identify (with the assistance of the Court) opportunities by which listings may proceed either by way of telephone conference or other remote access technology.

Any listings that would usually be dealt with by in-person attendance and can’t be dealt with by alternative means have been vacated or adjourned until the end of June 2020 unless in exceptional circumstances and with the authorisation of the Chief Justice. The court is attempting to operate at 50-60% of normal capacity via electronic means and by ‘triaging’ newly filed judge matters. All documents must be filed electronically or, if this is not possible, by calling the registry for assistance on how to file.

Queensland Supreme and District courts: Like other courts, the Queensland courts are seeking to minimise physical attendance by parties and legal representatives during the course of the COVID-19 pandemic. Accordingly, lawyers in civil matters have been encouraged to use telephone or video link to make applications and call witnesses wherever possible; making applications on the papers where feasible; minimise the number of people who need to attend court for any given matter; and seek to resolve issues to reduce the need to attend court in person.

In criminal matters, legal practitioners have been asked to identify trials which are urgent because defendants in custody have spent time on remand approaching the period likely to be served on any sentence. They have also been asked to consider seeking adjournment of sentencing matters where clients are complying with bail conditions, appear by phone for mentions and reviews, and consider bringing on matters that don’t require witnesses or the presence of defendants in court.

On March 19 it was also announced that all new trials requiring a jury in Queensland would be suspended until further notice. Criminal trials that had already started before a jury in the Supreme and District Courts would continue until their conclusion. Jurors with a summons to attend court were directed to contact the number shown on their summons.

Queensland Magistrates Court: From March 30, the Queensland Magistrates Court has announced there will be no physical appearances in any matter except:

• By an aggrieved person in an urgent non-police, private domestic violence application;
• the media;
• with leave of the Court.

All matters will also be conducted by telephone or video conference, including appearances by persons in custody. Parties to a proceeding may contact the Court in which the proceeding is listed to obtain the telephone contact details to enable the party to participate in a conference call.

By remote means, the courts will continue to hear:

• Overnight custody arrests – both adults and children.
• Urgent domestic violence applications including applications to vary domestic violence orders.
• Urgent child protection applications including applications to vary existing child protection orders.
• Bail applications including applications to vary bail.
• Domestic violence applications currently before the Court which have not been considered.
• Sentences, including lengthy sentences, where a person is likely to be released from custody.
• Where a defendant is in custody – committal and summary mentions.
• Urgent regional Queensland Civil and Administrative Tribunal (QCAT) matters heard in the Magistrates Court.
• Applications under the Police Powers and Responsibilities Act 2000.
• Civil applications dealt with on the papers.
• Other matters where leave is given by a Magistrate.

Speak with experienced legal professionals

These are unprecedented times requiring an emergency response that has disrupted all of our normal, routine procedures. If you are unsure about the status of your legal matter in terms of court appearances – upcoming, current, or future – contact our Brisbane and Gold Coast criminal lawyers today on 07 3063 9799 for a free consultation about where you stand.

The COVID-19 pandemic has affected every part of society for the foreseeable future, including how courts treat applications for bail or variation of bail conditions.

A number of cases in Queensland, NSW and Victoria have already demonstrated how courts are taking a more lenient view on the granting of bail to help mitigate the effects of the disease.

Bail has been granted in circumstances where usually it may not have been, with COVID-19 considered as a factor in the decision. Below we look at how Queensland courts are dealing with bail matters and what it might mean for your matter.

If you’re unsure, call Gold Coast Criminal Lawyers today for up-to-date guidance on how a bail application might be affected by COVID-19 measures.

Are the courts still hearing applications for bail?

The Magistrates courts in Queensland continue to hear bail applications and variations of bail conditions but under modified conditions due to the pandemic. There will be no physical appearances in court except in exceptional circumstances. All matters will be conducted by telephones or videoconference appearances.

In criminal matters where a defendant is on a Notice to Appear or bail, these will be adjourned to a date not less than two months from the first appearance. No attendance is required from the defendant.

Where a defendant has signed an undertaking, bail will be extended in the absence of the defendant. A Notice of Adjournment with the new date will be sent to the parties and their legal representatives.

In regards to sentence hearings in the Queensland Supreme and District Courts, legal representatives in criminal matters have been asked to refrain from seeking to list and consider seeking adjournment of listed matters where they have a client facing a custodial sentence but who is complying with his or her bail conditions. This practice is encouraged both to reduce the number of people attending court and the amount of matters before the court during the pandemic.

The courts’ approach to bail as a result of COVID-19

A number of cases in Queensland, NSW and Victoria before the courts since the onset of the pandemic have given greater scope to successful bail applications in response to new charges, or even where an earlier bail application was unsuccessful.

Bail is still unlikely for cases involving someone charged with murder or where the alleged offending is so serious that conviction would result in a lengthy custodial sentence.

Where an accused is elderly and/or suffers health complications making them particularly vulnerable to coronarvirus, or the Crown case against the accused is considered weak, an exception to the granting of bail is possible. In all other circumstances, a detailed justification for bail will be required.

In the recent Queensland case RE JMT [2020] QSC 72, JMT was one of five youths conjointly charged with murder and grievous bodily harm after an incident in December 2019. After 100 days in custody, JMT made an application for bail. In assessing the application the judge considered three impacts of COVID-19 on the matter. Specifically, the significant delay in the finalisation of the criminal proceedings against JMT because of the effects on the justice system of the pandemic; the consequences of imprisonment due to the measures prisons have implemented to prevent the spread of COVID-19; and the risk of transmission of the disease to JMT.

Also taken into consideration was that the Crown case against JMT was “not without difficulties” and that his involvement in the fight leading to the murder was relatively minor. These factors plus the delay in finalisation of proceedings due to COVID-19 meant the judge found JMT eligible for bail and that his continued detention was not justified.

Similarly, Queensland’s Deputy Chief Magistrate recently granted bail to a defendant charged with terrorism-related offences which were alleged to have been committed in New South Wales. The magistrate’s decision was based on the exceptional circumstances created by the pandemic response, specifically:

• The significant delay associated with the defendant being transferred to New South Wales and obtaining a jury trial, resulting in him spending considerable time on remand.
• The difficulty for the defendant to have contact with his family and legal      team for a significant period of time.
• The heightened threat to the defendant of contracting the virus in New South Wales and while in custody.

Consult experienced legal professionals

In summary, for those charged with a criminal offence or in custody awaiting a court proceeding, applications for bail currently have an increased chance of success as a result of the COVID-19 crisis.

The evolving impacts of the disease, including significant delays in criminal matters being heard by courts, the fears of a coronavirus outbreak among prisoners held in correctional facilities across Queensland, plus no-contact and increased movement restrictions placed on prisoners, are all being considered in assessing the merit of bail applications or variations of conditions.

If anything raised in this article applies to your situation, contact our Brisbane criminal lawyers for a free consultation today on 07 3063 9799. We are an award-winning law firm with years of expertise in criminal law matters and can help you navigate all issues related to the current COVID-19 pandemic.

The Queensland Racing Integrity Commission (QRIC) was formed by the Queensland government in 2016 to oversee and enforce standards of integrity in the sports of thoroughbred, greyhound and harness racing, as well as safeguard the welfare of the racing animals involved.

Reporting to the Queensland Minister for Racing, the QRIC sets out the standards under which the racing industry operates and also the penalties incurred when those standards are breached. By doing so it seeks to prevent and detect crime, as well as uphold the Rules of Racing.

Some of the QRIC’s functions

In upholding the integrity of the industry and the standards of welfare expected for racing animals, the QRIC is empowered to perform a number of functions, some of which include:

• Administering the licensing of animals and industry participants;
• managing the integrity of race meetings through stewarding activities;
• managing the testing of animals and industry participants for the use of banned substances;
• safeguarding the welfare of animals involved in racing;
• investigating compliance with the Racing Integrity Act 2016, the Racing Act 2002 and other relevant laws;
• collaborating with other agencies responsible for investigating and prosecuting animal welfare offences;
• reviewing and assessing the practices of participants and clubs in the racing industry; and
• conducting audits and investigations of racing control bodies.

In carrying out its role, the QRIC Commissioner can request that a person attend and provide answers to questions asked by the Commission in relation to an audit or investigation. That person may also be asked to provide information, documents or a thing.

Authorised QRIC officers have investigative powers similar to those given to RSPCA inspectors to gather evidence in cases of animal cruelty, including the power to enter property, seize animals, issue animal welfare directions, take notes and initiate prosecutions.

Stewards appointed by the Commissioner are there to enforce the Rules of Racing and can penalise any person in breach of these rules.

What to do if you are called before the QRIC

Any person associated with the activities the QRIC is empowered to monitor and penalise in case of breach may be called before the QRIC as part of an investigation or audit.

The QRIC can issue suspensions, disqualifications and fines for breaches of the standards. Toowoomba thoroughbred trainer, Ben Currie, for example, was disqualified from training horses for two years in June 2019 after he was found guilty of 12 race day treatment charges under the Rules of Racing.

In that case, Mr Currie was permitted legal representation to appear before the Commission, as well as for a subsequent internal review which confirmed his disqualification.

If you are called before the QRIC, therefore, it’s advisable to seek the advice of experienced legal practitioners as soon as possible in order to prepare the best possible defence to any allegations made against you by the Commission under its powers.

Right of review

The QRIC operates within the appeals system of internal review and the Queensland Civil Appeals Tribunal (QCAT) as set out in the Racing Integrity Act.

If a person the subject of a QRIC investigation or audit is dissatisfied with a decision made by the Commission in relation to a Right to Information request, they can apply to have that decision examined under internal review by an officer within the Commission of equal or higher level. They may also apply directly to the Office of the Information Commissioner for an external review, whether or not the Commission has internally reviewed the decision.

An application to have a decision internally reviewed must be made within 20 business days of the date of the letter communicating the original decision.

For external review by QCAT, for instance, you must apply in writing to the Information Commissioner within 20 business days of the date of the internal review decision or within 20 business days of the original decision. In Mr Currie’s case, for example, he was granted a stay of proceedings by QCAT against the decision by QRIC stewards to refuse to accept nominations of his horses for racing, allowing him to continue to train horses. A subsequent QRIC internal review then confirmed his disqualification from the industry.

It’s important to seek the expertise of a legal professional should you be the subject of a QRIC investigation or audit. Hannay Criminal Defence can help you prepare for an appearance before the Commission, gather evidence for your defence, and help clarify your appeals options in the event a decision goes against you. We’re an award-winning firm with wide experience in advising and representing people before statutory bodies such as the QRIC, so contact our Brisbane Criminal Lawyers today on 07 3063 9799.

In the past couple of decades several government agencies – particularly those formed to fight organised crime – have gained important coercive powers as part of their investigatory role which allow them to compel a person to appear before them to answer questions, often in secret.

Many prominent legal experts regard the growth of these coercive powers as infringing on individual rights and wider rule of law principles in Australia. This is because a coercive hearing is not like a court hearing in a couple of important ways: firstly, you do not have the right to silence when summonsed to appear before a body exercising its coercive powers; and secondly, the usual privilege against self-incrimination is not permissible as a basis for refusing to answer the questions put by the agency.

Another important distinction is that coercive hearings are not conducted to make findings of guilt and innocence, but to determine the truth of the matter under investigation. This means that if a witness is compelled to give evidence during a hearing that may incriminate them in a criminal offence, that evidence cannot later be used against them in any criminal, civil or administrative proceedings. The evidence can be used, however, to assist the investigation and as the basis for calling the witness to give evidence in a court against another person at a later trial.

Anyone compelled to give evidence at such a hearing is entitled to legal representation. This is obviously a sensible course to take given witnesses are obliged to answer the questions put to them.

Which type of agencies conduct coercive hearings?

Queensland’s Crime and Corruption Commission (CCC), the Australian Crime Commission (ACC) and the Australian Securities and Investment Commission (ASIC) are three prominent examples of government agencies, at both state and federal level, that have the power to conduct coercive hearings. Below is what to expect if called as a witness by any of these statutory bodies.

CCC: In Queensland the CCC has the power to compel the attendance of witnesses and require them to answer questions and/or produce documents where the Commission is undertaking a major crime investigation or a specific intelligence operation.

The CCC notes that its coercive hearings power is usually at the request of Queensland police and is most often used for unsolved murders, the abuse of children and organised crime investigations involving drug trafficking, money laundering, or crimes involving the use of weapons.

As mentioned, a witness compelled to appear before the CCC must answer the questions put to them. It should also be noted that it is an offence to lie at a CCC hearing and doing so may make a witness liable to prosecution for perjury.

There is oversight of how the CCC uses its coercive hearings power. The Parliamentary Crime and Corruption Committee (PCCC) and the Parliamentary Commissioner monitor and audit the Commission’s exercise of these powers, and handle relevant complaints against the CCC. It’s important to note that certain decisions connected to how hearings are conducted may be appealed to, or judicially reviewed by the Supreme Court. Expert legal advice should be sought in these circumstances.

ACC: This is a Federal statutory authority providing intelligence, investigation and criminal database services in order to tackle serious and organised crime. It has substantial powers to summon witnesses before an Examiner to give evidence or to provide documents or other materials as part of one of its investigations.

It is an offence to refuse to appear before the Examiner, or give evidence, or provide documents or other things to the Examiner, if requested. The penalty for committing this offence can be as severe as imprisonment.

ASIC: ASIC is the statutory body that regulates Australia’s companies, financial markets, and financial services organisations and professionals who deal and advise in investments, superannuation, insurance, deposit taking and credit.

ASIC has the legislative power to require a person attend an examination and answer questions on oath or affirmation. It can only call on this power if it suspects or believes the person can provide information that is relevant to a formal investigation ASIC is, or intends to, conduct. Commencing a formal investigation requires that ASIC has reason to suspect a contravention of the law has occurred, and that the reason to suspect this is more than mere speculation.

If you are asked to appear before an ASIC hearing conducted as part of an investigation, ASIC must issue you with a notice in writing. The notice must state the general nature of the matter it is (or intends to) investigating, but does not need to inform you of the nature of the questions to be asked. It should also set the time and place for the examination.

You have several rights to be aware of if called to appear at an ASIC hearing, including the right:

• To be represented by a lawyer;
• to know the examination will take place in private;
• to request a record of the examination is made;
• to refuse to answer questions because the answer would disclose information that is covered by a valid claim of legal professional privilege (note: you will need to be able to explain why legal professional privilege applies to the answer).

Like the CCC and ASC hearings, it is a requirement that you answer the questions put to you at an ASIC hearing, irrespective of whether the answer may tend to incriminate you or make you liable to a penalty. Again, any incriminating information you provide may not be used against you in a criminal prosecution or to impose a pecuniary penalty on you, other than in perjury proceedings.

Seek legal advice

Being compelled to appear before investigative bodies such as the CCC, ACC and ASIC is a serious matter. The fact hearings are conducted with strict confidentiality and that there are firm penalties for refusing to appear or refusing to answer questions mean that the advice and guidance of legal professionals with experience of dealing with these agencies is crucial.

At Hannay Criminal Defence, we have award-winning legal professionals with years of experience in advising and representing people asked to appear before statutory bodies such as the CCC. If you’ve been given notice to appear, contact our Brisbane criminal lawyers today for an initial consultation on 07 3063 9799.

While most of us have no doubt seen police brandishing search warrants to enter someone’s home in cop shows, it’s doubtful many of us are actually aware of what our rights are in this situation.

In Queensland, police are not generally permitted to enter your premises. If they attempt to do so, you are entitled to refuse them entry at the front door and clearly state that you have not invited them in and do not give consent for the officers to enter or remain on your property. There are certain circumstances where police can enter your premises without warrant, detailed in the Police Powers and Responsibilities Act 2000 (‘PPR Act’), including if they reasonably suspect that evidence of an indictable offence (or a limited number of other offences) is on your property, and that the evidence may be concealed or destroyed unless the place is immediately entered and searched. They can also enter to serve a legal document, in an emergency, to arrest someone, or to reach a crime scene.

But in all other circumstances, police require a search warrant applied for through a Justice of the Peace, Magistrates Court, or Supreme Court. A warrant sets out their search powers and so it’s important to understand what your rights are if your premises are the subject of the warrant.

You’ve been presented with a search warrant – what do you do next?

If police arrive on your doorstep and say they have a search warrant, it’s important at the outset to maintain a firm but co-operative attitude. You are entitled to ask them to produce the document for your perusal. You should challenge any incorrect details on the warrant. The police are obliged to give you a statement of their powers under the warrant. Most warrants will include powers to:

• Detain anyone present;
• remove wall panels, floor panels and ceiling panels to search for evidence;
• take photographs of items that may be seized for evidence
• dig up your yard;
• open locked areas such as safes, filing cabinets, or cupboards, and;
• search anyone on the premises.

It should be noted that the police cannot damage a building’s structure unless the warrant was issued by the Supreme Court and this act is clearly stated as a term of the warrant. Under the PPR Act, police may enter premises to the extent permitted by the warrant and use all powers necessary to execute it, including reasonable force.

Despite the powers given to police in the warrant, if it’s the case that consent to enter would not otherwise be given, you should make this clear to the officers and, if possible, record the interaction. This is important in case your legal representative later decides you have grounds to challenge the validity of the warrant.

Answering police questions

Be careful in responding to any questions asked by police during the execution of a search warrant. Ideally you should speak with an experienced legal representative before responding to police questions.

Be aware that in conducting a search of premises under the terms of a warrant, police will usually record their interactions with you (either openly or covertly) and therefore you need to be wary about how you respond to any questioning as these answers may become evidence in a later legal proceeding against you or others.

Attending police officers must give you a receipt for any items seized from your property that they believe to be evidence supporting a criminal charge. Be aware that if any of your property is damaged during a search, you won’t necessarily be compensated afterwards, depending on the terms of the warrant.

This property may include your mobile phone, which will obviously contain a large amount of personal information. Under the PPR Act, it is an offence to refuse to give police the password/PIN code to your mobile device, other storage device and the apps stored on them, if they have a search warrant. Be sure to check the warrant to ensure police have the power to search and seize personal devices, otherwise you should not consent to police looking at your mobile phone.

In conclusion

Being confronted at your front door by police officers brandishing a search warrant can be an intimidating and frightening experience. By following some of the suggestions above you can protect, as best as possible, your rights and entitlements in this serious situation.

As soon as possible, however, you should speak with an experienced Gold Coast criminal law professional to assess your situation, particularly if you did not provide consent for police to enter., or if you are unsure about whether the powers in the warrant were complied with, or if you had personal property seized as evidence.

Hannay Criminal Defence has years of experience in these particular situations and has won numerous industry awards for our ability to represent people in criminal matters. If you have any queries or concerns about being presented with a search warrant, contact our Brisbane criminal lawyers today on 07 3063 9799.

Perhaps you’re involved in a civil dispute with your neighbour about a dividing fence. Maybe you’re a tenant who has an issue with your landlord. You might feel you’ve been discriminated against in the workplace, or you need to apply for guardianship of an elderly relative. Perhaps you are on the wrong end of a decision by a government agency, or wish to pursue a disciplinary issue against police or health professionals. In any of these cases, you will likely end up interacting with the Queensland Civil and Administrative Tribunal (QCAT).

QCAT exists to resolve disputes and make decisions in a way that is “fair, just, accessible, quick and inexpensive”. Its set-up is less formal than a court, but it can still make final decisions that are binding on the parties. For that reason, if a judicial member of QCAT (someone able to make an ‘enforceable’ decision) makes a decision with which you don’t agree, there are avenues of appeal.

Who classifies as a judicial member of QCAT?

A judicial member of QCAT includes:

• the tribunal’s president and deputy president;
• a supplementary member who is a Supreme Court judge or District Court judge;
• a senior member or ordinary member who is a former judge and the president nominates to exercise the tribunal’s power to make an order or give a direction.

Non-judicial members are all other QCAT members, including adjudicators.

How is an appeal made?

If you disagree with a decision made by QCAT, your avenues of appeal are to the QCAT Appeal Tribunal or Queensland Court of Appeal (a division of the Queensland Supreme Court).

Only decisions made by non-judicial members of QCAT can be made to the QCAT Appeal Tribunal. Decisions made by judicial members of QCAT must be appealed to the Court of Appeal.

In order to make an appeal to the Court of Appeal, you must demonstrate that it is based on:

• a question of law, i.e. a question which must be answered by applying relevant legal principles, by an interpretation of the law; or
• a question or fact, i.e. a question which must be answered by reference to facts and evidence, and inferences arising from those facts; or
• a question of mixed law and fact.

If you’re applying on a question of law, you do not have to ask the Court of Appeal for permission to appeal QCAT’s decision. If you are appealing on a question of fact, or a mixed question of fact and law, you must seek the Court’s permission in order to appeal.

In hearing the appeal, the Court will conduct a new hearing which will consider the original information and evidence presented. Any new information and evidence may only be presented if you make an application to the Court of Appeal and your request is approved.

It should be noted that an appeal does not affect the operation of the original QCAT decision, although in some cases the QCAT or the Court of Appeal can make an order staying, or temporarily stopping, the decision from being carried out until the appeal is finalised.

Deciding whether to appeal

In order to decide whether you have grounds to appeal an QCAT decision based on the reasons above, you should first apply for written reasons for the decision. A person is entitled to request reasons for a decision within 14 days after the decision takes effect, which is usually the day on which the decision was made. Applications can be made online at the QCAT website or by completing the QCAT ‘request for reasons form’.

QCAT must respond to your request within 45 days and this may result in provision of a transcript or audio recording of the part of the hearing during which the reasons for the decision were orally given.

In reviewing these reasons it’s important to identify any errors which would justify you commencing an appeal, and this is where expert legal advice can prove vital in determining whether an appeal is the wisest course.

A lawyer with expertise in QCAT processes can help answer questions such as:

• What findings of fact were made?
• What legal rules did QCAT apply and how did it apply them to the facts?
• Were there any defects or errors in the procedures that QCAT used?
• Did QCAT consider everything that it was required to consider, or omit to consider anything that it was required to consider?

Reopening proceedings and setting aside decisions

In some cases an appeal of a QCAT decision may not be appropriate. Instead, in cases where you did not attend the hearing at which the decision was made, or you have been made aware of significant new evidence since the time of the hearing, it’s possible under the QCAT Act to apply to re-open the proceedings.

It’s also possible to apply to have the decision set aside if QCAT made a decision by default when you did not respond to an application made against you. In deciding an application to set aside a default decision against you, QCAT will consider:

• whether the applicant can demonstrate a prima facie defence;
• whether the applicant can provide an explanation as to why they failed to file a response;
• whether the applicant delayed in making the application to set aside the decision;
• the applicant’s good faith, including their conduct in the proceedings before and after the default decision was made; and
• whether the other party would be prejudiced if the default decision was set aside.

You should also note that an application to appeal against a QCAT decision to the Court of Appeal must be lodged within 28 days of you receiving the reasons for the decision.

Seek legal advice

QCAT makes findings on what can often be controversial issues between citizens, sometimes later enforceable in court when made by a judicial member of the Tribunal, so disagreement with some of their decisions is inevitable.

If this is your situation, it’s advisable to seek legal advice as to the best way to proceed. Hannay Criminal Defence can help analyse your matter to determine whether you should apply to reopen the proceedings, have the decision set aside, or appeal the decision to the Court of Appeal. Call our Gold Coast criminal lawyers today on 07 3063 9799.

While most business owners strive to run their enterprise with minimum distraction from external agencies, the fact is we live in a highly regulated, legalistic society. For businesses, the Australian Securities & Investments Commission (ASIC) is Australia’s top company regulator and is responsible for investigating company misconduct and enforcing company law.

If you run a business and are served with a notice under Section 19 of the Australian Securities and Investment Commission Act, ASIC is asking you to provide it with information and may subject your enterprise to a compulsory examination. This is no trifling matter. Failing to reasonably cooperate in accordance with a Section 19 notice issued by ASIC can be a criminal offence that may be punishable by a term of imprisonment. For this reason, expert legal advice should immediately be sought.

How Does An ASIC Investigation Start?

A complaint (usually about misconduct) is generally the starting point for an ASIC investigation into a company. There are a number of ways ASIC may receive these complaints, including:

• From a member of the public, often a client or customer of the business who is dissatisfied with an aspect of the company’s handling of a particular matter.
• A referral from other government agencies and regulators who may report misconduct to ASIC.
• From reports ASIC receives as required by law, such as those from auditors, insolvency practitioners and licensees.

Once a complaint is received, ASIC will go through a process to work out whether it should investigate based on the scope of its powers, taking into account:

• the extent of the harm or loss;
• the benefits of pursuing the misconduct relative to the cost of public monies;
• the type and seriousness of the misconduct alleged and the strength of evidence supporting the complaint;
• alternative courses of action other than formal investigation;
• whether the alleged misconduct includes a particular impact on market integrity or the confidence of investors and financial consumers;
• whether or not the misconduct is a widespread concern or part of a growing trend.

What will happen during an investigation?

ASIC has a number of powers by which it will conduct an investigation to gather evidence, including requiring a business to produce documents and disclose other information for its inspection, requiring company officers or employees to attend compulsory examinations, and employing search warrants.

It should be noted that under a Section 19 notice, people other than company directors or employees such as the company’s lawyers and accountants can also be required to provide information and assistance. ASIC’s powers allow it to question people who “on reasonable grounds, [it] suspects or believes … can give information relevant to a matter it is investigating, or is to investigate”.

What are your rights and responsibilities in this situation?

Obviously if an ASIC investigation commences into your business, you should avail yourself of the advice of an experienced corporate law firm. Company officers and employees need to be aware of what they can and can’t do in complying with ASIC’s requests. There may be no legal basis for ASIC to request certain documents from you, particularly if they might incriminate you or the company in relation to your operations. You will not be required to produce documents, for example, which are the subject of legal professional privilege.

Take pre-emptive action

One thing your business can do to avoid or reduce the likelihood of an ASIC investigation is to discuss with your corporate lawyer how to develop proactive, effective and fit-for-purpose governance, risk and compliance processes within the organisation.

This process may include a review of your current documentation and policies in these areas, including asking your legal representative to conduct a legal risk assessment of the business. Undertaking this process will also be of benefit in demonstrating your proactive approach should an ASIC investigation later arise as the result of a complaint.

Penalties

ASIC has a number of remedies and enforcement tools at its disposal if it can prove the alleged misconduct. Most serious of these is punitive criminal penalties, which can include terms of imprisonment, community service orders, financial penalties under criminal law and the possibility of convictions.

Another option is ‘protective actions’ – such as disqualification from managing operations or revocation, suspension or variation of licenses, and public warning notices. While this option avoids the need for criminal penalties, the effects of a protective action can obviously still have terrible effects on the reputation of both yourself and your business.

An effective legal representative will also explore, before ASIC decides to proceed with an investigation, whether alternatives such as engagement with stakeholders, guidance, education and policy advice may be better and more effective options than enforcement action.

If you believe your business is about to become the subject of an ASIC investigation, or need more guidance on how compliant your business really is in terms of internal governance and the wider regulatory environment, contact experienced corporate law firm Hannay Criminal Defence today on 07 3063 9799. We’ll be happy to assess your particular circumstances at our Gold Coast or Brisbane offices as soon as possible.