Police Matters Questions
I am a Tradie and I need my licence so that I can drive to job sites. Is there anything I can do?
If your driver’s licence has been suspended because you accumulated two or more demerit points whilst subject to a good behaviour driving period, or, you have been convicted of driving more than 40 km/h over the speed limit, you may be eligible to apply for a Special Hardship Order.
There are various criteria you must meet in order to be eligible for a Special Hardship Order and you must be able to demonstrate to the Court that refusal to grant you a Special Hardship Order would cause extreme hardship to you or your family by depriving you of your means of earning a living, or cause you or your family severe and unusual hardship for any other legitimate reason.
If you have committed a drink or drug driving offence which carries a mandatory loss of licence, you may be eligible to apply for a restricted licence, permitting you to drive subject to specified limitations. There are various criteria you must meet in order to be eligible for a restricted licence and you must be able to satisfy the Court that you are a “fit and proper person” to hold a restricted licence, having regard to the safety of other road users.
Certain offences of a more serious nature carry mandatory licence disqualification periods and there is no avenue for a licence to be held whatsoever during the disqualification period.
We strongly suggest that you contact a Solicitor to make further enquiries into your eligibility to apply for a Special Hardship Order or a Restricted Licence, in the event that you ever find yourself in a situation where you are looking at losing your driver’s licence.
Assault – What Constitutes an Assault?
There are varying degrees of assault charges in Queensland, ranging from the most minor charge of Common Assault, to the most serious, Assault Occasioning Grievous Bodily Harm.
Assault does not necessarily have to be throwing a punch of causing physical pain to another person. The definition of assault in Queensland states that any person who strikes, touches, moves or otherwise applies force of any kind to a person of another, either directly or indirectly, without the other person’s consent, or threatens to apply such force to another person without the person’s consent, is said to assault that other person.
The type of assault charge which may be brought against you, together with the penalty the Court will ultimately impose against you, will depend on the seriousness of the assault you have committed.
Based on the broad definition of assault in Queensland and the serious penalties which charges of this nature can attract, it is strongly suggested that any person charged with an assault offence seek legal advice.
Will the Court listen to my side of the story?
Whether you are pleading guilty or not guilty to an offence, the Court will listen to your side of the story and take your version of events into account when making a judgment or delivering a sentence.
If you intend to plead guilty as charged, your Solicitor will make submissions to the Court in mitigation on your behalf. That is, explaining what led you to offend and what other reasonable explanation or context you can provide in relation to your offending.
If you contest the charge against you, you will have the opportunity to give evidence in Court. You are not required to give evidence and in fact, in certain instances, your legal representatives may advise you against doing so. Whether or not you give evidence in a contested hearing is an important strategic decision in relation to your case and needs to be carefully considered by you and your legal representative before a decision is made.
If I am found guilty of an offence, what are the different penalties that the Court can impose.
The Court has a very wide discretion when it comes to imposing a penalty or sentence upon a convicted offender.
In appropriate cases the Court can simply discharge the offender (reserved for very minor offences).
Other options include imposing a fine which must be paid within a certain period of time determined by the Court.
The Court can make an order that you carry out community service.
A Court can impose probation. This means that a probation officer is appointed to monitor you and if necessary report back to the Court regarding your progress. Terms of probation can include having to submit yourself to drug tests periodically.
In the more serious cases obviously a court can impose a period of imprisonment. If the Court considers it appropriate it can impose a jail term but then wholly suspend that jail term for a period of time. This means that the jail term effectively hangs over your head for a period of time ordered by the court so that if you re-offend within that specified period, there is a good chance you will then serve the jail term.
What can I expect when I attend Court for the first time?
Your matter will commence in the Magistrates Court, even if it is ultimately destined to be heard by a higher Court (District or Supreme Court) due to the seriousness of the charge.
Often the first appearance is very brief. The Magistrate briefly asks the Police Prosecutor and your solicitor what is the current state of affairs. Often at this early stage, we are in the process of investigating the matter and pursuing critical documents and other evidence from the Police Prosecutor’s office.
The matter is often adjourned for about two weeks to enable that process to continue and to allow your solicitor to carry out appropriate investigations and if appropriate, enter into negotiations with the Police Prosecutor.
I wasn’t the one who committed the crime, my friend did, but I was with him. Am I guilty?
If you encourage another person to commit an offence, aid another person in committing an offence, or either do or admit to do any act for the purpose of enabling or aiding another person to commit an offence, you may be charged with the same offence as the principal offender.
In such a circumstance you would be referred to as an ‘accessory’ either before or after the fact and we strongly recommend that you seek legal advice from a skilled Solicitor, to ensure that you receive the best defence possible.
In what circumstances can the Police enter my house?
In Queensland, the Police have the power to search your house both with and without a warrant in varying situations. That said, there are specific procedures that the Police must follow when executing a search warrant and you as the occupier have rights prescribed by law. The Police may be issued with a search warrant if there are reasonable grounds to suspect:-
- The commission of an offence at the property; or
- The presence of evidence related to the commission of an offence at the property.
Police are able to search a property without a search warrant if they reasonably suspect:-
- a thing at the property or in the possession of a person who is at the property, which is evidence in relation to the commission of a particular offence; and
- The evidence may be concealed and/or destroyed unless the place is immediately entered or searched.
We recommend that you seek legal advice as soon as possible after you have been provided with a copy of a search warrant. Contacting your solicitor will be vital in informing you of your rights in relation to the conduct of the search of your premises, including providing you with answers to common questions, such as, if you have to hand over combinations to safes located at the property, or passwords for electronic devises.
Can I go to Jail?
Whether you will go to jail depends on whether the Police have sufficient evidence to secure a conviction against you and the type of charge you are facing.
The Criminal Code sets maximum (and in some cases minimum) penalties that can be awarded by the Court in the event that you either plead guilty to an offence or are found guilty of that offence.
A Court must take into account a whole range of factors before it imposes a jail term. For example, your past criminal history, your background and any particular circumstances that might explain your conduct, any medical conditions and any other circumstances that are often referred to as “mitigating factors”.
At the risk of stating the obvious, the more serious the charge the higher the stakes and the greater chance of a jail term being imposed. If you are facing the prospect of a Police investigation, it is important that you seek legal advice from a solicitor experienced with handling Police matters at the earliest opportunity. In our experience, the earlier we can be involved in the matter the greater our prospects of managing the critical issues and achieving a desirable result for you.
Do I have to answer questions from the Police?
Generally speaking the answer to this question is no.
Whether to participate in a Police interview is a critical decision which needs to be made in each individual case. You need legal advice from an experienced criminal law solicitor before making that decision.
Can the Police record a conversation with me?
Yes, the police are legally able to record a conversation with you. In fact, in any of your dealings with the police you should, out of an abundance of caution, assume that the conversation is being recorded.
Many people think that the police can only record you if you agree to participate in a formal police record of interview at the police station. That is incorrect. Police can telephone you and record that conversation and use it as evidence against you. By way of example, there have been numerous cases where the complainant has telephoned an alleged offender and that conversation has been recorded by the Police with the complainant’s consent. Such telephone calls are often made from a Police station.
Will My Matter Be Heard By a Judge?
Whether you ultimately appear before a Judge or a Magistrate depends upon the seriousness of the charge you are facing.
Which Court will hear my matter?
Generally speaking, there are three levels of Court in Queensland.
The lowest level is the Magistrates Court which is convened by a Magistrate. All prosecutions commence in the Magistrates Court but the more serious charges are elevated to a higher Court.
The lesser offences such as traffic offences, drink driving, dangerous driving, minor assaults and the like are dealt with by a Magistrates Court.
The next highest court is the District Court which is convened by a Judge. The District Court handles the more serious criminal matters such as dangerous driving causing death, unlawful wounding, indecent dealing with a child etc. If you plead not guilty in the District Court it will be a jury which determines whether you are guilty or not guilty. It is the Judge’s task to ensure the trial proceeds fairly for all parties and importantly, to give detailed directions to the jury before they make their decision.
The highest Court is the Supreme Court. Examples of serious criminal matters dealt with by the Supreme Court include murder and serious drug offences.