Criminal behaviour has long since stopped being a local phenomenon. Particularly in the illegal drug trade, interstate movement of people who commit criminal acts is increasingly common. This trend raises the issue of how each state deals with criminal offences committed in its jurisdictions by non-residents and, equally, criminal offences committed in other jurisdictions by people who reside in their state.
This article focuses on differences between New South Wales and Queensland for those who are charged with a criminal offence, though the procedures for charging a person are not dissimilar across Australian jurisdictions.
An important point to note at the outset is that if you find yourself facing criminal charges, or a warrant for your arrest, you should make contact with legal professionals who specialise in criminal law as soon as possible.
Criminal charges in New South Wales and Queensland
The procedure in being charged with a criminal offence is similar in New South Wales and Queensland. Charging is different to arrest. An arrest involves a police officer bringing a person into custody because of the reasonable suspicion they have committed, or are in the act of committing, an offence. By contrast, charging a person involves a formal accusation made by the police or prosecution that the individual has committed a specific offence. Charging a person usually takes places after police have gathered what they believe to be sufficient evidence to support the allegations.
In New South Wales the Crimes Act 1900 deals with strictly indictable offences (offences which must be dealt with on arraignment, including murder, manslaughter and assault causing death), indictable offences which may be dealt with summarily by the Local Court (theft, property damage and indecent assault, for example) and summary offences (less serious offences such as public mischief, etc). Most serious criminal matters are heard in the New South Wales District Court (other than murder and treason), with the Local Court hearing summary offences.
Under Queensland’s Criminal Code Act 1899, the regime is similar. Indictable offences include assault and stealing as well as more serious crimes like rape, murder, manslaughter, and robbery. Summary offences include disorderly behaviour, traffic offences and minor criminal offences. In Queensland indictable offences are heard in the District Court or the Supreme Court while those charged with summary offences must front the Magistrates Court.
Charged in one state but living in another
If you’re charged in another state such as New South Wales, or are subject to a court order regarding a criminal offence, but return to live in Queensland before completing your sentence, Queensland police can arrest you on a warrant and bring you before a court in the state. In this situation, a Queensland Magistrate will most commonly order your return to the state where you were charged or are the subject of a court order. It’s not possible for the Magistrate to grant bail to a person who has absconded from the jurisdiction.
In the situation where a warrant for your arrest has been issued in another state, such as New South Wales, but you have travelled back to Queensland, police can arrest you for what is known as an ‘extradition offence’. Under Queensland’s Police Powers and Responsibilities Act, police may arrest you without a warrant if they reasonably suspect the offence you’re alleged to have committed in New South Wales is an indictable offence or an offence for which the maximum penalty is at least two years imprisonment. You may be detained in custody and questioned about the alleged offence before being brought before a Magistrate, where a copy of the warrant must be produced. If the warrant is not produced, the magistrate may order that you are released or may adjourn proceedings for such reasonable time as the Magistrate specifies, and allow you on bail or remand you in custody. If the warrant or a copy of it is not produced within five days, the Magistrate must order you’re released.
If the warrant is produced when you’re brought before the court, it’s probable an order will be made to return you to the state where the warrant was issued. A person in this situation may apply for bail and make their own travel arrangements back to the state where they must appear, or they will be remanded in custody and then be transported to the interstate court.
Can the same unlawful conduct carry different penalties across different jurisdictions?
Penalties and sentences do differ between New South Wales and Queensland for criminal offences, as they do in other states of Australia. As a Judicial Commission of NSW cross-jurisdictional study from 2015 found, some discrepancies are significant while others are minor.
New South Wales, for example, had longer median head sentences (the sentence that lies in the middle of the range of sentences) than Queensland for child sexual assault, robbery, and break and enter/burglary offences. But Queensland had a longer median head sentence for sexual assault and dangerous/culpable driving causing death. The median head sentence in New South Wales for sexual assault offences was 72 months compared with 84 months in Queensland. The median head sentence in New South Wales for dangerous/culpable driving causing death was 36 months compared with 66 months in Queensland. For all robbery offences the median head sentence in New South Wales was 44 months, while it was 36 months in Queensland. The median head sentence in New South Wales for break and enter/burglary was 36 months compared with 24 months in Queensland.
Get in touch with expert criminal lawyers
Understanding the difference in how criminal offences are dealt with in New South Wales and Queensland can be complex – while the procedure for being charged is similar in each state, extradition offences can complicate matters when a person travels between states. Adding further difficulty is the difference in penalties and sentences for criminal offences in each state. To help you navigate this difficult area, contact our expert criminal law team at Hannay Lawyers – we have the knowledge and experience particularly on criminal matters in Queensland and New South Wales.