March 29, 2020 in Criminal Law
NEW CORONAVIRUS PENALTIES IN QLD
As somebody who suffers from both Type 1 Diabetes and immune system vulnerability, the continuing selfishness of some irresponsible members of our community in relation to quarantine and social distancing is extremely troubling.
We have now seen State Governments around the Country imposing penalties for people who are breaching quarantine. Queensland Police have now been given powers to issue an “on the spot fine” to individuals of $1335 and corporations $6672.50 under the Public Health Act 2005 (Qld) for breaches of the state imposed restrictions. These fines can increase up to 10x for subsequent breaches.
Police and Queensland Health have undertaken more than 2000 compliance checks since Monday, 23 March 2020.
Is the deterrent of a financial penalty sufficient to prevent these individuals from potentially spreading this pandemic? We are talking about businesses being shut down, people losing jobs, homes and most importantly, lives.
We have to face the reality that as long as COVID-19 continues to spread, everyone is effected. Will a $1335 fine achieve anything meaningful? Should the government consider legislation imposing higher penalties, including potential imprisonment?
If someone can go to jail for endangering others by doing things like drink driving, why shouldn’t someone who knowingly puts us all at risk face the same reality?
Let’s look at the end game, stopping the spread of the virus. The Government has taken drastic, but necessary steps to shut borders, businesses, schools and other institutions. Surely anyone who doesn’t recognise the seriousness of the situation, and is willing to risk the lives of people like me and you should face real and significant consequences.
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March 25, 2020 in Criminal Law
It is common practice that criminal matters before the Courts must be dealt with in an expeditious manner, as justice delayed is justice denied. However, in light of the recent COVID-19 pandemic, the Queensland Judiciary has made the decision to do just that… delay justice.
As of 23 March 2020, Queensland criminal courts have been operating in a reduced capacity, as the whole world is in the process of making arrangements to reduce the transmission of COVID-19. Whilst each court has their own nuances, the general guidelines are summarised in Magistrates Court Practice Direction No. 2 of 2020.
These changes, which are in place indefinitely, consist of the following changes (to name a few):
- All jury trials are suspended, and Defendants are encouraged to apply for Judge Alone trials where appropriate;
- All legal practitioners have leave to appear via telephone;
- Legal practitioners are encouraged to finalise sentencing matters via telephone or audio visual link (AVL);
- All summary trials in the Magistrates Court will be adjourned for a period of 3-months;
- Prison visits will be via telephone or AVL;
- Sentences where the Defendant is at risk of going into custody are to be adjourned.
Whilst these directions will dictate the way (and significantly, the timeframes) in which matters will be resolved, where a Defendant is in custody, the Court will still hear urgent bail applications, or sentence hearings where there is a likelihood the Defendant would be released from custody on or near the sentence date.
This same principle is being applied in reverse, i.e. when a Defendant is on bail and in the larger community, and is likely to receive a period of imprisonment when sentenced, that sentence will be adjourned for a period of 3-months. The logic being, is the imprisonment of persons currently in the community would inevitably lead to the introduction of COVID-19 into the prison system, an event which needs to be avoided.
The Queensland Court system is already bottle-necking, and these directions are only going to augment the backlog of cases when things return to normal. However, we are in the midst of what is the greatest non military risk to life since the Spanish Influenza in 1918, and when faced with unprecedented risk, unprecedented changes need to occur.
At the end of the day, human preservation will always trump justice and the Courts have taken appropriate steps to ensure it remains functioning (albeit at a reduced capacity). That being said, those charged with minor offences who intend to plead guilty, and a sentence of imprisonment is not within range, can still finalise their matters promptly.
If you, or someone you know, has been charged with a criminal offence and require competent representation, do not hesitate to contact the team at Creevey Russell Lawyers on 07 3009 6555 or 0436 665 939.
Craig van der Hoven
Ph: 07 3009 6555
The recent Queensland District Court Appeal decision of Baker v Smith (No 2)  QDC 242, involving fire breaks sends a stark warning to all landowners about the penalties and costs for illegal tree clearing.
While many disagree with the impact of the various amendments to the Vegetation Management Legislation the reality is that these laws are here to stay and the ramifications for breaking them are severe.
Everyone, including owners of Freehold and Leasehold Land are subject to the existing law until is it repealed or amendment by an act of Parliament. With an increasing environmental focus, and the rising involvement of agencies like the Department of Environment and Science (DES), the Department of Mines and Natural Resources (DMNR) and the Environmental Protection Authority (EPA), we should all anticipate a crack-down on breaches of these sometimes inconvenient laws.
These laws can be tricky, and to expect everyone to know their ins-and-outs might be unrealistic, but land owners and lease holders alike need to be aware that an ignorance of the law or disagreement with law, does not provide a defence to it.
Should you choose to wilfully break the law that will be a factor a sentencing court will take into account, but many environmental laws also do not require intent, and people can and are being prosecuted on a strict or absolute liability basis. This means that even if you have breached one of these laws inadvertently, harsh penalties can still apply.
The Courts are generally not constituted by gullible fools and the recent decision in Baker made that abundantly clear. The case was brought by the Department of Mines and Natural Resources for the unlawful clearing of trees under both the Forestry Act and the Sustainable Planning Act.
In mitigation of penalty, the Appellant raised that the unlawful clearing was conducted for the purposes of fire safety management, to create a firebreak. That argument was rejected by both the Magistrate at first instance, and later in the appellate court, due to the inexplicability of that submission having regard to the substantial size of the area cleared for the stated purpose. At first instance, the Defendant was fined $276,000 for the clearing offences and ordered to pay the costs of the prosecution and investigation, which were assessed at a staggering $541,309.15. Although the fine was reduced on appeal to $250,000 and the costs to $495,000, further costs were awarded against the Appellant on appeal of nearly $225,000, at a total cost to the Defendant of almost $1,000,000.
This case exemplifies that the courts will deal with these matters seriously and will reject inherently improbable submissions. Everyone knows that the real purpose of clearing vegetation is to grow grass and expand the commercial viability of land.
If one thing is clear, it is that land owners need to go through the appropriate approval processes built into the legislation to avoid financially crippling penalties and costs orders that will almost inevitably flow from these sorts of prosecutions.
An increasing focus on larger fines and greater deterrence against any person or company engaging in these types of activities without appropriate approval will be a focus of prosecuting authorities and the Courts.
In Baker, personal deterrence was a significant consideration against the defendant. The overall conduct showed a disregard to the law for a protracted period in which unlawful clearing was pursued without justification or excuse, including for commercial purposes.
Courts and Departments will also seek penalties that focus on deterring others from engaging in similar conduct. These considerations of deterrence in environmental matters will only increase with the added attention being given in light of the global environmental crisis.
Vegetation Management – Forestry Act – Sustainable Planning Act Liabilities
A starting point is that a penalty unit is $110 and a maximum penalty for an offence is prescribed by the legislation. For example, a breach of section 39 of the Forestry Act has a maximum penalty of 1000 units or $110,000.
Subsequent offences under this legislation and other laws provide for far higher maximum penalties. It is important to keep in mind the penalties are applied for each charge, not for a set of offending and that offences under legislation like the Vegetation Management Act and or the Forestry Act will usually also constitute breaches of the Sustainable Planning Act.
The accumulation of these penalties exposes people to incredible levels of liability. The maximum penalty available under the Sustainable Planning Act in Baker’s case was $6.7m.
It is imperative that land owners take the necessary steps to inform themselves and make sure that any conduct is not breaching one of these pieces of legislation. Our team at Creevey Russell Lawyers specialise in these areas and are equipped to assist you in all areas, from dealing with applications for approval, to representing our clients who are being prosecuted under these increasingly misunderstood and serious laws.
Ph: 07 3009 6555
October 21, 2019 in Criminal Law
Climate change protesters facing charges over activities such as gluing themselves to pedestrian crossings could come unstuck if they try to fight the charges using a defence of ‘extraordinary emergency’, says leading legal firm Creevey Russell Lawyers.
Creevey Russell Principal Dan Creevey said Section 25 of the Criminal Code Act 1899 (Qld) contains a defence of extraordinary emergency, which relates to acts done upon compulsion or provocation or in self-defence, where a person is not criminally responsible for an act or omission done or made under circumstances of sudden or extraordinary emergency.
Mr Creevey said with protest groups such as Extinction Rebellion seeking governments to declare a “climate emergency”, they have reportedly been considering the use of Section 25 when defending charges.
“While each individual matter is dependent on its own unique circumstances and is ultimately a matter for the court, we would be surprised if a section 25 defence was successfully relied upon by those charged as a result of their involvement in climate change protest activity,” he said.
“It would ultimately be a matter for a court to determine in the event the defence were to be raised, but we would anticipate that the actions of protesters would not be found to be consistent with how an ‘ordinary person’ exercising ‘ordinary powers of self-control’ may behave. The rationale for this is that there is no sudden situation that exists, and there are alternative avenues available.”
Creevey Russell Senior Associate Trent Jones said the defence of extraordinary emergency is usually raised in circumstances where an individual is confronted by a sudden situation, and they do not have the time or ability to process rationale thinking.
Mr Jones said in one case the Court of Appeal set aside a plea of guilty entered by an applicant who had been involved in a road rage incident and directed that a plea of not guilty be entered.
“The applicant was harassed and followed by occupants of the second vehicle for a period of approximately 11 kilometres, who were at times threatening and aggressive towards the applicant,” he said. “In the applicant’s attempt to drive away from the second vehicle, he ran a red light at an intersection at high speed, colliding with a third motorist who sustained significant injury. The applicant was subsequently charged with, and entered a plea of guilty to, one count of dangerous operation of a motor vehicle causing grievous bodily harm.
“But the Court of Appeal determined that the case raised the existence of a defence of extraordinary emergency and the sentencing judge ought to have refused the plea of guilty entered by the applicant and directed that a plea of not guilty be entered. This case is just one example of where the defence of extraordinary emergency was raised on the factual basis and evidence.”
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The insertion of a special condition into a contract of sale for residential property can provide important safeguards for potential buyers from both a property law and criminal law view point. Creevey Russell Lawyers encourages individuals looking to purchase residential property to be aware of their rights and the ability to add special conditions to a standard contract of sale to protect their interests.
Our firm is increasingly seeing a special condition being inserted into residential contracts of sale, worded to the effect:
“That the contract is subject to and conditional upon the buyer obtaining a satisfactory drug test report on the property within X days from the date of the contract. In the event the report is not satisfactory to the buyer, then the buyer may terminate the contract.”
Solicitor, Rachel Greenslade, of Creevey Russell Lawyers says that inserting a special condition into a contract, such as the one outlined above, provides protections for individuals investing in the property market, in a similar way to how a building and pest condition operates.
A building and pest condition is a common clause in many residential contracts and allows a purchaser to terminate a contract of sale in the event they are not satisfied with the results of a building and pest report. At the time of signing a contract, a buyer who has limited experience with the construction industry is unlikely going to be aware of any issues potentially impacting on the property, such as the existence of termite damage or structural damage. A building and pest condition provides a safeguard for buyers by allowing experts to come and inspect the property and inform the potential buyer of any building and/or pest issues effecting the property. If the buyer has concerns following receipt of the report, the buyer usually has the right to terminate the contract.
An insertion of a special condition similar to the one outlined above provides a comparable safeguard to potential buyers, but relevant to drugs. The presence of drugs in a property can have an impact from both a property law and criminal law perspective.
From a property law perspective, the Residential Tenancies and Rooming Accommodation Act 2003 (Qld) requires landlords to ensure that leased property meets minimum prescribed housing conditions including the obligation to ensure that the property is clean, fit for the tenant to live in, is in good repair and does not impair the health and safety of persons using or entering the property. The presence of drugs can have a long term impact on health and wellbeing, and should a tenant suffer loss as a result of poor health due to the presence of meth contamination, the landlord may find themselves at the wrong end of a claim. The insertion of a special condition allowing a buyer to carry out a drug search can help an investor avoid the undesirable outcome of purchasing a property which is deemed unfit for habitation without considerable expense after settlement is complete.
From a criminal law perspective, the condition offers an important safeguard for occupiers of a property. Section 129 of the Drugs Misuse Act 1986 (QLD) effectively says that an individual who is an occupier of a property is expected to have knowledge and control of items located in those premises and proof that a dangerous drug was located in a place the person occupied is conclusive evidence of possession – this provision is referred to as “occupier’s liability”. Occupier’s liability extends the usual definition of “possession” and imposes a reverse onus on occupiers of a property. This reverse onus, in practical terms, means that once drugs are located on a property (usually following police executing a search warrant), the occupier is required to demonstrate that they did not know, or ought not to have known, about the presence of the illicit substance or thing located. This is different to the usual onus of proof in criminal law matters, where prosecution bears the relevant onus of proving an individual’s guilt. Occupier’s liability reverses the usual presumption of innocence in criminal law proceedings.
It is unusual that property law and criminal law proceedings overlap in this way, but Creevey Russell Lawyers encourages individuals looking to invest in residential property to be aware of their rights and to carry out thorough investigations in respect to a proposed purchase for investment purposes as failure to do so can have serious civil and criminal ramifications.
Should you require advice in respect of any property law matters, please contact Ms Rachel Greenslade on (07) 4617 8777. Should you require advice in respect of any criminal law matters, please contact Mr Trent Jones on (07) 3009 6555.
Ph: 07 3009 6555
Ph: 07 4617 8777
October 8, 2019 in Criminal Law
First time an individual has been charged with inciting the obstruction of a Commonwealth official in relation to an ACCC investigation.
The Commonwealth Office of the Director of Public Prosecutions has, for the first time, charged an individual with inciting the obstruction of a Commonwealth official in relation to an ACCC investigation, in what is the first of its kind. The charges laid against Mr Ellis (former Manager of BlueScope) by the Commonwealth DPP are offences under the Criminal Code Act 1995 (Cth) that carry a maximum penalty of two years imprisonment per offence. Should the matter proceed to sentence, the sentencing regime attached to Commonwealth offences differs significantly to the regime attached to Queensland based offences. It will be interesting to see how this matter develops over the coming months.
Our criminal lawyers in Brisbane and Toowoomba are experts in defending criminal charges, whether they be Commonwealth offences or state based offences. In the instance you or those close to you require legal assistance in relation to crime and misconduct matters, do not hesitate to contact our crime and misconduct team leader, Trent Jones, on (07) 3009 6555.
A Queensland police officer who attended the scene of a fatal car accident in 2013 has been awarded in excess of $1 million in damages by the Supreme Court of Queensland.
The accident involved a single vehicle only. The driver, affected by drugs and alcohol, lost control of the vehicle, causing it to leave the roadway and collide with a tree. The then senior constable brought a claim for damages for the psychiatric injuries he suffered as a consequence of attending the scene, administering first aid to the injured driver and shortly afterwards, witnessing the driver die. The claim was brought by the police officer against the CTP insurer of the vehicle.
Arguments at the trial
It was not disputed that the accident occurred due to the negligence of the driver. The primary issue in dispute was whether the driver of the vehicle owed a duty of care to the plaintiff.
The plaintiff’s case
The plaintiff’s case was that the driver of the vehicle owed a duty of care to not cause psychiatric injury to any persons who, acting in the course of their employment as a police officer may be required to respond to and attend the scene of an accident caused by his driving (and see, hear or be required to undertake tasks causing them to witness death and/or suffering of persons at the scene).
The police officer further alleged that it was reasonably foreseeable that any person acting in their role as a police officer required to attend the scene, would suffered a psychiatric injury.
The insurer’s case
The insurer denied that the deceased (it’s insured) owed any duty as alleged by the plaintiff. It advanced several bases for adopting that position including:
- the risk of the officer suffering a psychiatric injury from his presence at the scene of the accident was not reasonably foreseeable by the plaintiff;
- alternatively, any risk of the plaintiff suffering such harm was slight and did not warrant the plaintiff taking action in respect of it;
- the driver did not owe the plaintiff any duty of care requiring him to take action to avoid causing the plaintiff psychiatric harm;
- no duty of care was owed to the plaintiff as a matter of policy (having regard to powers conferred upon him by other legislation).
The insurer suggested that the issue of whether a duty of care was owed in these circumstances had not been considered by Courts previously so in that sense the case was novel.
His Honour Justice Flanagan in approaching the issue first considered the concept of foreseeability, and after referring to a New South Wales Decision of Wicks (a case in which two police officers sued the State of New South Wales for psychiatric injuries caused by attending the scene of a train derailment), his honour framed the relevant enquiry as
“whether a reasonable person in Mr Williams’ position would have foreseen that a person in the position of the plaintiff, a serving police officer attending a motor vehicle accident of the kind that might result from Mr Williams’ negligence, might suffer recognisable psychiatric injury as a result of his experiences at the scene.”
The Court considered the role undertaken by the plaintiff at the scene of the accident and whether it was appropriate to refer to him as a ‘rescuer’. The plaintiff gave evidence that he adjusted the driver’s head to open his airway and spoke to him in words to the effect “come on mate, don’t give up”. The plaintiff also comforted the driver’s parents and assured him that he would be OK. The Court concluded in those circumstances that the plaintiff should in fact be classified a rescuer (rather than a mere bystander to the accident) and that his actions were performed in the ‘aftermath’ of the accident (as that concept was considered by Deane J in Jaensch v Coffey).
The policy issues raised by the insurer included what can broadly be described as a ‘floodgates’ argument to the effect that permitting the plaintiff in this case to recover damages would “unacceptably expand the categories of potential defendants and claimants in respect of psychiatric harm, and expose defendants to increased liability” (see ) . This argument was rejected on the grounds that the common law test already imposes strict requirements with respect to claims based on pure psychiatric injuries.
The insurer also submitted that the public are entitled to expect that police officers are equipped to avoid or resist psychiatric harm. Whilst agreeing that a policer officer might be better equipped than someone without training, on the facts of this claim, the plaintiff’s response to the accident (one which he was required to perform in accordance with his legal responsibilities) exposed him to deeply distressing and personalised circumstances.
The Court found in the circumstances that a duty of care was owed by the deceased driver to the plaintiff.
Causation and quantum
The plaintiff’s damages were reduced by 30% to reflect the degree of possibility that the plaintiff’s pre-existing vulnerability, coupled with the impact of his attending another fatal accident would have lead to the same outcome.
The insurer has filed a notice of appeal against the decision. Further information to follow shortly.
 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60
QLS Accredited Specialist
P:(07) 3009 6555
July 17, 2018 in Criminal Law
Legislation in Queensland which has created a new traffic offence of ‘driving without due care and attention and causing death or grievous bodily harm’ is a positive step but still lacks clarity in its interpretation, says leading legal firm Creevey Russell Lawyers.
Creevey Russell Criminal Law Team Leader Trent Jones said the new offence effectively brings Queensland legislation into closer alignment with laws in other states, and attracts a maximum penalty of approximately $10,000 or 12 months imprisonment, as well as a minimum license disqualification of six months.
“While the introduction of the new charge is a positive step, further clarification should have been provided as to how the law ought to be interpreted, as the distinction between what constitutes ‘dangerous operation’ and ‘careless driving’ is often vague,” Mr Jones said.
“The Courts have previously said that it is the manner of driving, rather than the resultant outcome of an incident that ought to be considered in determining whether or not the driving is ‘dangerous’ in the circumstances. It is one of the vague aspects of criminal law. Quite often you are left with a scenario where the charge preferred against an individual comes down to how the investigating officer interprets the facts and what they consider the most appropriate charge. This can change from matter to matter, depending on the officer.”
Mr Jones said in some circumstances, it is evident the most appropriate charge is a dangerous operation of a motor vehicle offence, but in other instances, the law is not so clear. In circumstances where you can point to a contributory factor, such as intoxication, speeding, or texting, in my view, an argument can be mounted by prosecutions to say that the manner of driving is dangerous in the circumstances,” he said.
“On other occasions, however, once you have considered all of the evidence, it is difficult to identify any aspect of the manner of driving that is dangerous. I have had clients where, after you look at all the evidence, it is difficult to identify how they did anything wrong. The client is travelling under the speed limit; the client is checking their mirrors and road positioning; they’re not distracted or intoxicated, and they are doing everything you would expect a prudent driver to do, but for whatever reason, a fatal traffic incident occurs, and those individuals are then at the hands of an investigating officer to determine whether or not they face a traffic offence or a criminal charge, which, if convicted of dangerous operation causing death, would likely result in a term of imprisonment.”
Mr Jones said the amended traffic laws would have been better improved by providing clarification of what is ‘dangerous’ compared with what is ‘careless’, rather than focusing on the outcome. “Once you can identify if something is careless or dangerous, it is then easy to work out what the appropriate charge is by then looking at the resultant outcome,” he said.
If you are involved in a traffic incident, no matter how minor or serious the offence may initially seem, call Creevey Russell Lawyers on 1800 CrimeLaw (1800 2746 3529).
You are walking down the street in Cavill Avenue, and a police officer pulls you aside and advises you that they are conducting a search of you – what can you do?
When can police search you without a warrant?
The starting position is that police have no general power to search anyone on the off chance of finding something incriminating. Thus, with limited exception, police have no right to search you.
To perform a warrantless search of a person in Queensland in public, the police officer/s conducting the search must reasonably suspect any of the prescribed circumstances outlined in section 30 of the Police Powers and Responsibilities Act 2000. There are many prescribed circumstances, but for the purpose of this article, we will focus on possession of dangerous drugs, which is a commonly relied upon reason for conducting warrantless searches.
The test for whether the search will be lawful comes down to whether or not there were grounds capable of supporting a reasonable suspicion that a person is in possession of dangerous drugs. What this means is a suspicion has to be honestly held and underpinned by sufficient facts and circumstances to show this belief at the time of conducting the search. The reasonableness of the search is not determined by what is found or happens after, rather it is determined by the actual state of the police officer/s mind at the time of performing the search.
An example of the facts police will rely on to search someone suspected of possessing dangerous drugs is:
- In regards to appearance – at the time of the search the person is unsteady on feet, pupils dilated, sweating, licking their lips, shaking; and/or
- a sniffer dog indicates the existence of dangerous drugs.
When police are conducting a search without a warrant, they are entitled to search anything in a person’s possession (e.g. bag) for dangerous drugs.
What can you do if police perform a search of you without a warrant?
- Provide your name and address, however, politely say that you’re unwilling to answer any further questions
- Ask if they have a warrant to perform the search.
See if someone can record what your appearance is at the time, and specifically ask the police officer/s what facts and circumstances gave rise to them conducting the search. This evidence may be able to be used at a pre-trial hearing to determine if any incriminating evidence found can be excluded on public policy grounds.
Please contact Patrick Quinn or Hugh Tait at Creevey Russell Lawyers on (07) 3009 6555 for further information.