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.
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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
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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.