A criminal prosecution must prove their case to a high degree of certainty, so that there is no reasonable doubt in the mind of the jury as to the guilt of the accused. This serves as a safeguard against wrongful convictions and ensures that the burden of proof remains on the prosecution throughout a criminal trial.

Burden of proof / standard of proof

Burden of proof and standard of proof are two key concepts in criminal law. The burden of proof refers to the obligation of the prosecution to prove their case against the accused. The standard of proof refers to the level of proof required to establish guilt in a criminal trial.

In Australia, the prosecution bears the burden of proof. It is up to the state to present evidence that is sufficient to convince a jury or judge that the accused committed the crime in question. The accused does not have to prove their innocence.

The standard of proof that the prosecution must reach is very high. Beyond a reasonable doubt requires a very high level of certainty, although not an absolute level of certainty. It is a higher standard of proof than the “balance of probabilities” standard that is used in civil law cases.

Why such a high burden of proof for criminal charges?

The reason the burden of proof rests on the prosecution to such a high standard is to ensure that innocent people are not wrongly convicted of crimes. Criminal convictions can have serious consequences, such as financial penalty or imprisonment, and can have a long-lasting impact on a person’s life. Before imposing such serious consequences, the prosecution must produce evidence that is strong enough to eliminate any reasonable doubt that the accused did not commit the crime.

Elements of a criminal offence

The elements of a criminal offence are the specific components that the prosecution must prove beyond a reasonable doubt in order to obtain a conviction for that offence.

In general, criminal offences are composed of two key components: the physical acts that constitute the offence (the actus reus) and the mental state or intention to commit the act (the mens rea). The prosecution has the burden of proving both the physical acts and intention of each element of a criminal offence beyond reasonable doubt. For example, in a charge of theft, the prosecution must prove that the accused person took someone else’s property without their consent, and that they intended to permanently deprive the owner of that property.

What about strict liability offences?

With certain types of offences, known as strict liability offences, the prosecution does not need to prove intention. Strict liability offences are those where the accused person can be convicted based solely on the physical act or conduct that constitutes the offence. In other words, the prosecution does not need to prove that the accused person had the intention or knowledge to commit the offence.

Strict liability offences are typically minor offences, such as traffic violations, and are often designed to protect public safety or to enforce regulatory compliance. Examples include speeding, parking violations, and breaches of certain environmental regulations.

The rationale behind strict liability offences is that these offences do not require proof of intention because they are generally minor offences that do not carry significant penalties or imprisonment. It is important to note that with strict liability offences the accused person may still be able to argue that they did not commit the actual act (or that there was a reasonable excuse or defence for their conduct).

Defences

In criminal law, the prosecution must prove their case beyond a reasonable doubt in order to obtain a conviction. However, the accused person is entitled to raise defences to the charges against them. If the defence can raise a reasonable doubt as to any element of the prosecution’s case, the accused person may be acquitted. Some common defences that can raise reasonable doubt in a criminal case include alibi, self-defence, duress, insanity, mistake of fact, and necessity.

It is important to note that the burden of proof still lies with the prosecution, even when the accused person raises a defence. In other words, it is not necessary for the accused person to prove their defence beyond a reasonable doubt; rather, it is up to the prosecution to prove that the defence is not valid.

Case example

One notable case in Australia that illustrates the application of the standard of proof beyond a reasonable doubt is the case of R v. Chamberlain. In this case, a family was camping in Uluru when the mother reported that a dingo had taken their infant daughter from their tent. Despite extensive searches, the baby’s body was not found, and the mother was subsequently charged with murder.

At her trial, the prosecution argued that the mother had killed her child and they presented various pieces of circumstantial evidence to support their case. The defence argued that a dingo had taken the child, and they presented expert evidence to support this theory.

After a lengthy trial, the jury found the mother guilty. This conviction was based overwhelmingly on circumstantial evidence, which the jury considered sufficient to overcome any reasonable doubt. However, six years later, a piece of clothing identified as belonging to the infant was found near a dingo lair, which supported the defence’s theory. The mother’s conviction was subsequently overturned, and she was released from prison, because the existence of the clothing gave rise to a reasonable doubt that had previously not existed.

Conclusion

While the criminal law is in place to protect the community and punish those who commit serious crimes, the system is imperfect and there are measures in place to help ensure those charged with a criminal offence have certain protections. The job of a criminal defence lawyer is to force the prosecution to prove every element of a crime, and to help the court understand the circumstances of a person who has been charged.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Attending court for criminal charges can be a daunting experience. However, understanding what to expect can make the experience less difficult and intimidating.

Types of Courts in Australia

If you are facing criminal charges, you will receive a Court Attendance Notice or other paperwork that informs you of the charges and the date and time of your court appearance. This paperwork will also indicate which court you will need to attend.

There are three main levels of criminal courts in each Australian state/territory, each with its own jurisdiction. The court you will attend depends on the seriousness of the charges:

1. Magistrates Court/Local Court: This is the lowest level of court and is responsible for hearing minor criminal matters such as traffic offences, minor assault charges, and some property offences.
2. District/County Court: The intermediate court hears more serious criminal matters, including indictable offences such as burglary, drug offences, and serious assault charges.
3. Supreme Court: The Supreme Court is the highest state-based court and hears the most serious criminal matters, such as murder trials.

What to expect

Your lawyer will provide you with guidance about what to expect during your hearing, but it can be helpful to have a short summary that you can reference.

When you arrive, you will need to go through security screening, check in with the court registry and locate the correct courtroom. This can take time, so aim to arrive early.

The first part of the hearing involves you entering a plea. If you plead guilty, the matter will proceed to sentencing. If you plead not guilty, the matter will proceed to a trial. Your lawyer will speak on your behalf during the court proceedings. If you do not have a lawyer, you will have to represent yourself and make your own submissions to the judge and jury.

The prosecution will present evidence to support their case. You or your lawyer will have the opportunity to challenge the evidence presented and present evidence in your defence. If there are witnesses in your case, they may be called to give evidence in court. They will be required to take an oath or affirmation to tell the truth.

If you plead guilty or are found guilty at trial, the matter will proceed to sentencing. The judge will take into account the seriousness of the offence, the circumstances surrounding the offence, and your personal circumstances when deciding on the appropriate sentence. If you are unhappy with the outcome of your case, you may be able to appeal the decision. However, there are strict time limits for appealing a decision, so it is important to seek legal advice as soon as possible.

It is important to note that the court process can vary depending on the jurisdiction and the specific details of your case. It is recommended that you seek legal advice to understand the specific court process in your situation.

Courtroom Etiquette

Many defendants feel frustrated and intimidated by the criminal justice system. The formality and rules of the courtroom can feel archaic and out-of-step with modern society. However, it is important to know that your conduct will have an influence on how your case proceeds. Although it is not directly relevant to the prosecution establishing the elements of the crime, if you disrupt the courtroom or fail to comply with courtroom etiquette it makes it more difficult for your lawyer to mount a convincing defence.

Here are some tips to help you navigate courtroom etiquette:

1. Try to avoid wearing revealing, dirty, torn or offensive clothing.
2. Switch off your phone before court.
3. When the judge or magistrate enters the courtroom, stand up. Address the judge or magistrate as “Your Honour”.
4. Allow the judge or magistrate, lawyers, and other witnesses to speak without interruption. Unless you are specifically asked to speak, do not interrupt or interject.
5. It is fine to use normal language when you give evidence. There is no need to use legalese. However, it is important to speak clearly and avoid using profanities or insulting language.

Getting legal help

If you are facing criminal charges, it is important to seek legal advice as soon as possible. A lawyer can help you understand the charges and the legal process and can provide you with representation in court. By being prepared and informed, you can ensure that you receive a fair hearing and the best possible outcome in your case.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Advances in technology and the use of social media have led to an increase in technology-assisted violence and abuse.

Social media, texting, email, and surveillance devices can be used by domestic violence perpetrators as methods and tools to stalk, harass, and abuse their victims. This results in the victims of this type of abuse feeling like they are unable to escape their abusers.

It is important to recognise abuse through means of technology and understand what you can do to stop it.

What is technology facilitated abuse?

Technology facilitated abuse can take many forms, such as:

• abusive messages or calls
• account take overs – where someone accesses your online accounts and locks you out of them
• image-based abuse – when someone shares or threatens to share an intimate image of you without your consent
• fake social media accounts – when fake accounts are being used to harass you or post negative comments about you online
• being tracked through a phone or device – when tracking techniques or spyware are used to see where you are

What is online abuse?

This type of abuse includes using social media, games or other forums to make:

• abusive, degrading, or hateful comments directed at someone
• threats of physical or sexual violence against a person
• repeated or unwanted sexual requests directed at someone

Accessing a person’s email or social media account to gather information or impersonate them is also considered online abuse. There have been cases where abusers have set up fake social media accounts in another person’s name in order to harass or humiliate them.

Sharing, or threatening to share, intimate images of a person is considered image-based abuse.

Spreading lies or malicious rumours about a person through social media is another form of online abuse.

What is Cyberstalking?

Cyberstalking is also a form of online abuse and these terms are often used interchangeably. It may include:

• false accusations
• abusive comments
• attempts to smear someone’s reputation
• threats of physical or sexual violence or repeated unwanted sexual requests

Stalking a person through their social media accounts, calling, and texting them can amount to cyberstalking and is often accompanied by real life stalking.

What is image based abuse?

Image-based abuse is also referred to as ‘revenge porn’ and occurs when intimate, nude or sexual images or videos of a person are shared, or threatened to be shared, without that person’s consent or permission.

Image-based abuse can be used to control someone through:

• threats to share intimate images unless a person does what an abuser requests
• pressure to send intimate images against someone’s will
• intimate, nude or sexual images that have been taken without someone’s permission that are then used to threaten and harass

Images can include real, photo shopped and drawn pictures and videos.

What to do if you are experiencing online abuse

The most important thing to do is to develop a safety plan and to plan for your online safety before requesting the removal of any abusive images.

A safety plan involves steps to help someone leave an abusive relationship or deal with image-based abuse from an ex-partner.

If you would like to develop a safety plan, you can call 1800RESPECT (1800 737 732) for assistance and advice. For your safety, you should use a public or friend’s phone to make the call so that the abusive person cannot track your call history.

Online safety planning

Online safety plans (OSPs) can assist people to deal with image-based abuse as part of an encompassing safety plan.

eSafety can help with OSP by:

• The use of the online safety checklist to help you keep people safe, while living with and after leaving an abusive partner. You can request to go through this checklist with a domestic violence support worker or lawyer.
• The social media checklist is available to help think about how people can use social media more safely.
• People can also learn about how to make their accounts and devices more secure.

For more information on how to stay safe online, see the esafety commissioner website.

Conclusion

Although technology has its benefits, it also provides opportunities to be used to abuse or threaten people as part of domestic, family and general violence. It can also be used to stalk victims on- and offline.

There are tools to combat online abuse and help people stay safe, such as OSPs that help adults and children stay connected and prevent abusers from locating them through social media and their online accounts and devices.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

The issue of revenge pornography (‘revenge porn’) has received considerable attention in the press, not only in Australia but worldwide.

Broadly, revenge porn refers to sharing, revealing or distributing sexually explicit images or videos of a person through an internet service without that person’s consent, usually with the motive of causing humiliation, embarrassment and distress.

Whilst the conduct may occur in different circumstances and the motivations for distributing the images vary, the perpetrator is often a former partner of the victim, and the victim undoubtedly suffers long-lasting and traumatic effects.

Australia has a matrix of civil and criminal laws relating to image-based conduct over the internet. Although national laws presently exist to prohibit the use of a carriage service to offend, harass or menace another person, these laws have not effectively or specifically been utilised to target the issues associated with revenge porn.

Various state and territory governments are considering or have passed legislation that criminalises revenge porn, with Queensland now introducing new laws. The policy objective of the new laws is to fill a current gap by creating a specific offence regarding non-consensual sharing of intimate messages or threats to send intimate images. The offence relates to any intimate image no matter how it is captured or made.

New laws to criminalise revenge porn

The Criminal Code (Non-consensual Sharing of Images) Amendment Act 2019 incorporates provisions into the Criminal Code creating new offences.

Distributing an intimate image

A person who distributes an intimate image without the consent of one person in circumstances that would (reasonably) cause the other person distress will be guilty of an offence.

It does not matter whether the person distributing the image intends to cause distress or actually causes the other person distress.

Threats to distribute an intimate image or prohibited visual recording

A person who makes a threat to another person to distribute an intimate image or prohibited visual recording without the consent of the other person, in circumstances where the threat would (reasonably) cause distress to the person depicted (or person to whom the threat is made) and the threat is made in a manner that (reasonably) would cause the person to fear the threat will be carried out will be guilty of an offence.

It does not matter whether the intimate image or prohibited visual recording exists when the threat is made or whether the person who makes the threat intends to cause, or actually causes the fear.

In determining whether a person would reasonably be caused distress or fear the circumstances, as relevant to each offence, will be considered including:

• the relationship, if any, between the parties;
• the circumstances surrounding distribution of an intimate image;
• the extent to which distribution of an intimate image interferes with a person’s privacy;
• the circumstances surrounding the threat to distribute an intimate image or prohibited visual recording.

A child under the age of 16 years is considered incapable of giving consent.

Penalties

Offences under the new laws are punishable by up to three years’ imprisonment.

A court may also order the person convicted to take reasonable steps to remove, delete or destroy an intimate image or prohibited visual recording. Failure to comply with such an order is punishable by up to two years’ imprisonment.

The maximum penalty for the existing offences of observing or recording a person in breach of privacy and distributing prohibited visual recordings has increased from two to three years’ imprisonment.

What is an intimate image?

An ‘intimate image’ of a person is a still or moving image that depicts:

• the person engaged in an intimate sexual activity that is not ordinarily done in public; or
• the person’s genital or anal region, when it is bare or covered only by underwear; or
• if the person is female or transgender or an intersex person who identifies as female, the person’s bare breasts.

The definition extends to images that are altered to appear as above or digitally obscured to portray that person in a sexual or intimate manner. Essentially, the definition captures images that are photoshopped or digitally modified if they otherwise represent the definition of an intimate image as described above.

What is a prohibited visual recording?

A ‘prohibited visual recording’ of a person is:

• a visual recording of the person, in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy; or
• a visual recording of the person’s genital or anal region, when it is bare or covered only by underwear, made in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region.

What is consent?

Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. The Act makes it clear that a person does not consent to the distribution of an intimate image if the person is under 16 years. A person does not consent if he or she is threatened or forced to do so.

Defences

It is a defence to a charge of an offence under the new laws if the conduct was for a genuine artistic, educational, legal, medical, scientific or public benefit purpose and the conduct was, in all the circumstances, reasonable for that purpose.

Conclusion

The internet provides an efficient means of producing and disseminating information – once loaded images can leave a digital footprint and for the victims of revenge porn, long-lasting torment.

Australia’s laws have been hard-pressed to keep up with technology and the matrix between state and federal legislation to deal with illicit conduct over the internet is arguably inconsistent and patchy.

It is anticipated Queensland’s new laws will give victims and potential victims of revenge porn better protection and some redress in an area that has been notoriously difficult to regulate.

Victims of revenge porn should contact the Police and are encouraged to obtain referral from their general practitioner or support groups for emotional assistance.

If you have been charged with a criminal offence you should obtain professional advice so you understand your legal rights.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Centrelink fraud offences are among the most frequently prosecuted Commonwealth criminal offences. Sometimes the behaviour complained of is deliberate, but motivated by genuine financial hardship rather than greed. Sometimes it is quite accidental. Even individuals who have been inadvertently overpaid and are attempting to pay the money back may end up facing fraud charges. If you suspect that you are under criminal investigation for Centrelink fraud, you should seek immediate legal advice because there may be defences that can help you avoid criminal penalties including fines and imprisonment.

Centrelink Fraud Offences

Offences include:-

• Failing to declare part-time earnings whilst on Newstart Allowance;
• Failing to declare live-in defacto relationship whilst on Single Parenting Payment;
• Obtaining a Disability Pension and failing to disclose full time employment;
• Not declaring income from employment, investments or other sources;
• Exaggerating a medical condition;
• Submitting false or forged documents;
• Obtaining payment for children not in your care;
• Collecting rent assistance when rent is not being paid;
• Using more than one name to access benefits; and
• Over-claiming benefits without any present entitlement.

Centrelink Fraud offences are what are known as “full knowledge offences”. To establish that a crime has occurred, the prosecution must establish that the conduct was intentional and that the defendant knew or believed that he or she was not entitled to receive that money from Centrelink.

Defences and Mitigating Factors

• Lack of knowledge or intention is the principal avenue of defence, but other circumstances may mitigate the penalties imposed. These include:

• Personal financial hardship;
• The amount of money obtained;
• The length of the fraud;
• False statements or any positive attempts to deceive (or the absence thereof); and
• Any money paid back to Centrelink.

Whether the fraud was intentional or accidental, any overpaid entitlements will still have to be repaid.

If you are charged with Centrelink fraud, it is very important that you seek legal advice, especially if you have not previously done so.

There are four charges, with varying maximum penalties, that the CDPP commonly presses against alleged Centrelink fraud offenders:

• Obtaining financial advantage (s135.2(1) of Criminal Code);
• General dishonesty causing a loss (s135.1(5) of Criminal Code);
• Obtaining a financial advantage by deception (s134.2(1) of Criminal Code); and
• Obtaining property by deception (s134.1(1) of Criminal Code).

If you need more information, or if you need assistance or advice, please call us on 07 3281 6644 or email mail@powerlegal.com.au.

Section 201 of the Migration Act 1958 states that a person who has been convicted of a criminal offence in Australia, and who was a non-citizen at the time that they committed the offence, can be deported in certain situations and applies to both permanent residents and temporary visa holders.

For a person to be ‘eligible’ for deportation, he or she must:

1. Have been convicted of an offence and sentenced to a period of 12 months imprisonment or more; and
2. Have resided in Australia for a period less than 10 years, or for multiple periods that total less than 10 years.

Section 501 of the Migration Act also gives the Immigration Minister power to cancel a person’s visa if they do not pass the ‘character test’ which includes having a ‘substantial criminal record.’

A person has a ‘substantial criminal record’ if they have been:

1. Sentenced to a term of imprisonment of 12 months or more;
2. Sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
3. Acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
4. Found by a court to not be fit to plead in relation to an offence, and the court has nonetheless found that on the evidence available the person committed the offence, and, as a result, the person has been detained in a facility or institution.

If the Immigration Minister is satisfied that a person does not pass the character test because they have a substantial criminal record, the Minister must cancel their visa.

Alternatively, if the Minister ‘reasonably suspects’ that a person does not pass the character test, the Minister may cancel their visa – in other words, the Minister has discretion to decide whether or not the person should be deported.

What If I Don’t Pass the Character Test?

If your visa is cancelled due to your failure to satisfy the character test, you will become an ‘unlawful non-citizen,’ and will be immediately placed in immigration detention until you are deported or removed from Australia.

You will also be prohibited from applying for most types of visas while in Australia, and will generally be prohibited from returning to Australia in the future.

Will I Automatically be Deported if Sentenced to 12 Months Imprisonment or More?

If you have been sentenced to 12 months or more in prison, it does not automatically follow that you will be deported.

Rather, the Department of Immigration and Border Protection will consider a range of factors when deciding whether to deport you or revoke your visa.

These include:

1. The nature of the offence;
2. The circumstances of the offence;
3. The magistrate or judge’s view of the offence;
4.  The type and length of penalty imposed;
5. Any evidence, or lack thereof, of rehabilitation;
6. Prospects of reoffending;
7. General deterrence;
8. Criminal history;
9. Public interest consideration;
10. Family circumstances; and
11. Australia’s international law obligations relating to refugees.

If the Department is considering deportation, an Immigration Officer will usually request further information.

If the Department decides that you are to be deported, you will receive a ‘deportation order’, or a ‘cancellation order’ if your visa is being cancelled.

Can I Appeal a Deportation or Visa Cancellation?

Depending on how the decision was made, you may be able to appeal the decision.

If the Immigration Minister signed a deportation order against you under section 201, you will be able to appeal the merits of the decision to the Administrative Appeals Tribunal (AAT).

You will also be able to seek a review from the AAT if a delegate of the minister decides to cancel your visa

If you decide to lodge an appeal to the AAT, you can ask for a ‘stay’ (suspension) of the deportation order until the review is completed. If the decision to cancel your visa has been made, you will have only 9 days from the date you are notified to seek a review from the AAT.

If, however, the Immigration Minister personally decided to cancel your visa under section 501, you will not be able to appeal the decision to the AAT. You can however, seek a judicial review from the Federal Court.

If you are a non-citizen and wish to receive case-specific immigration law advice, you may wish to consult a specialist Immigration Lawyer.

If you need more information, or if you need assistance or advice, please call us on 07 3281 6644 or email info@brisbanemigration.net.au.

The criminal process starts with the investigation of an actual or alleged crime. The power for Queensland police to search premises, question, arrest and / or detain a person comes from the Police Powers and Responsibilities Act 2000 (Qld).

These rules aim to balance the need for law enforcement with the protection of an individual’s civil rights. Being questioned and requested entry to a private residence by a police officer can be daunting and many people are unfamiliar with their rights when this happens.

This article explains a person’s fundamental right to silence and the circumstances under which police officers have the power to enter and search private property or to arrest a person of interest.

The right to remain silent

Understanding the right to silence is important for anybody involved in a criminal investigation. Generally, anything said to a police officer at any time may be used as incriminating evidence. What is said can also determine whether or not a person is charged or arrested.

Apart from some exceptions, a person has a fundamental right to remain silent whether they are stopped in public, have agreed to attend the police station or have been arrested.

Exceptions include answering basic questions such as a person’s name and address (in this case the police must warn a person it is an offence not to give the correct name and address) and place and date of birth (for drug-related matters), or when somebody is suspected of committing a traffic offence.

A person may also be required to disclose their identity and assist a police officer who believes on reasonable grounds that the person can help with enquiries regarding an alleged crime because the person was within its vicinity.

Generally, the police may approach and ask questions at any time however a person has the right to find out why they are being asked questions. If in doubt, the person should obtain legal advice.

Powers of entry and arrest

What are a person’s rights when a police officer requests access to private property? Are they obliged to let the police in? What if the police officer asks for the occupier’s son or daughter? The answer depends on the circumstances and whether the police officer has or is required to have a warrant.

The starting point is that police powers of entry are generally confined to emergency situations, for the purposes of arrest or detention, or to execute a warrant. If the police arrive on private property unannounced or uninvited, the reason for their attendance should be ascertained before allowing entry.

Warrants

A warrant is a document authorising the police to search a person, home or motor vehicle or to arrest a person and / or detain that person in custody. Anything found during a search warrant may be retained by the police.

If the police suspect that somebody with whom a person resides or is visiting has committed an offence, a search warrant may be obtained to search the premises and seize any items, or to arrest the person.

If the property is occupied the police officer must provide the occupier with a copy of the warrant. It is important to read the warrant carefully to confirm its scope. The action that follows will depend on the circumstances and the type of warrant that has been issued. A person in these circumstances should remain calm, assertive but cooperative.

A search warrant must state brief details of the alleged offence to which the warrant relates or the proceedings or legislation authorising the warrant, the evidence or property that may be seized under the warrant and the day and time the warrant expires. If the warrant is to be exercised during the night, the permissible hours that the property may be entered should be also be included.

An arrest warrant may only be issued if there are reasonable grounds for suspecting that the named person committed an offence and, for an offence other than an indictable offence, a court attendance notice to appear before the court would be ineffective.

The arrest warrant must include the name of the applicant, his or her rank, registered number and station, a statement to the effect that the police officer may arrest the person named in the warrant, and particulars of the alleged offence.

Police searches and arrests without a warrant

Police officers may enter any premises without a warrant to prevent domestic violence, to investigate traffic offences (for example to take a prescribed alcohol reading), to apprehend somebody who has escaped from custody or from being arrested, to execute an arrest, to reach a crime scene or to shut down an out-of-control event.

An arrest without a warrant may be executed if it is reasonably suspected that a person is committing, or is about to commit, an offence and the arrest is reasonably necessary to:

• prevent further offences being committed;
• identify the person arrested;
• ensure the person appears in court;
• preserve evidence or prevent the person concocting evidence;
• protect a person (including the person arrested) from injury or harm; or
• detain a person for questioning.

The police officer must make it clear that the person is being apprehended and tell the person why he or she is being arrested.

A valid arrest allows the police to question and identify a suspect. However, unless a formal arrest is made a person is not obliged to accompany a police officer. Arresting a person for investigatory processes only is prohibited.

Additional considerations for young people

There are additional protective provisions to protect young people confronting the criminal justice system. Generally, persons who are under 17 years of age must be accompanied by a support person when being questioned about a serious offence. The role of a support person is to ensure the interrogation is conducted fairly, assist with communication problems and help the young person assert his or her rights. A support person may be the child’s parents, guardian, lawyer, relative, friend or somebody working in an agency that deals with the law.

A statement or admission made to a police officer during an interview is inadmissible in court unless the young person was accompanied by an independent adult when making that statement.

Summary

Police officers have the necessary search and arrest powers to assist in law enforcement. These should be balanced with a person’s civil liberties.

Being approached by a police officer may be daunting however it is wise to stay calm, ask questions, and take notes of the reasons given for the police visit.

If someone you know is concerned about their rights and obligations in the criminal justice system or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

“Sexting” is the term used for the communication or distribution of sexually explicit (sensual, provocative or nude) photos or videos through text messages, internet posts, chat rooms or other social media.

Sexting may constitute a crime when it involves people under 18 years of age, regardless of whether or not the person depicted in the communication agreed to be involved. Sexting involving people of any age can also be a crime where the images are considered offensive or the sexting threatens or harasses a person.

Child exploitation and pornography

Voluntary sexting between teenagers may seem like typical explorative behaviour however the conduct could have serious criminal implications when involving persons under the age of 16 and / or 18 years of age.

It is an offence to produce, possess or distribute material that is considered to be child pornography or exploitation. Although sext messages may be sent between two consenting persons with the intention that they are not shared, this is not always the case.

The Queensland Criminal Code 1889 (Qld) contains several offences involving children under 16 years of age. These include:

• making, or involving a child in making or attempting to make child exploitation material;
• possessing child exploitation material;
• distributing child exploitation material; and
• taking an indecent photo, visual image, or recording of a child without legitimate excuse.

Child exploitation material is material that is likely to be offensive to a reasonable adult and which describes or depicts a child who is, or apparently is, under 16 years of age:

• in a sexual context or engaged in a sexual activity;
• in an offensive or demeaning context;
• being subject to abuse, cruelty or torture.

These categories of offences may occur within a ‘sexting’ environment, attracting penalties ranging from 5 to 20 year’s imprisonment.

Child pornography includes an image, whether real or photo-shopped, or a video or cartoon of a young person that is considered ‘offensive to the average person’.

The requirement for the image to be ‘offensive to the average person’ is important as it distinguishes child pornography from, for example, a snapshot of somebody’s baby having a bath.

Child pornography could include a picture of a child posing in a sexual or provocative way, showing their private parts (genitals, anus or breasts), participating in a sexual act or being in the presence of somebody else engaged in a sexual act or pose.

It is illegal to request, create, receive and retain, send, post, or upload to the internet such images. Consequently, many on-line nude or explicit shots may potentially constitute an offence under these laws.

National laws

Under National (Commonwealth) law, it is a crime to access, possess or distribute ‘child pornography material’. There are also various offences which relate to the use of a ‘carriage service’ (including the internet or mobile phone networks) for the transmission of child pornography.

These National laws provide that a person under the age of 18 years cannot consent to sexting – penalties of up to 15 year’s imprisonment can be imposed.

Possible consequences of sexting

Given the broad operation of both Queensland and National law, people who send provocative or naked images or videos of themselves or others under the age of 18 years, even in private phone messages or emails could be breaking the law.

The penalties for offences involving child exploitation / pornography, whether under Queensland or National law are severe and a person under investigation or charged with such an offence should obtain legal advice immediately.

Generally, a person who is 18 years or older and found guilty of a child pornography or indecency offence may face registration on the Australian National Child Offender Register as a sex offender.

Registration as a sex offender carries onerous responsibilities to regularly report to the police and provide details regarding changes in personal circumstances such as relocating or changing jobs. Offenders must also give details of their email addresses and social media accounts. Registration as a sex offender will prevent a person from working with or supervising children or volunteering with organisations involving children such as coaching junior sports.

Police and prosecutors have discretion regarding whether they charge or prosecute people for certain crimes. This discretion may be exercised when there is an element of innocence related to the sexting. Age considerations may also influence the decision to prosecute for an offence arising from sexting activity.

However, where there is wide distribution of offensive material that has caused significant harm and distress, it is more likely that criminal proceedings will be taken. Sexting that leads to humiliation and bullying can have a devastating impact on a young person’s life.

Privacy, harassment and the internet

Sexting involving persons of any age may be considered an offence related to ‘recordings in breach of privacy’ under the Criminal Code 1899 (Qld).

It is an offence for a person to observe or visually record another person, when that person is engaged in a private activity or in a private place, without that person’s consent. Private activities include undressing, showering, using amenities such as a public toilet or change room, or engaging in sexual intercourse in a place that would normally be considered private.

Recording or photographing another person’s genitalia or anal region, whether or not covered by underwear, is also an offence. The maximum penalty for such offences is 2 year’s imprisonment.

Sexting (at any age) may also constitute harassment, stalking or indecent use of an internet or mobile. Examples include continued requests for a person to send a naked photo, threats to expose and distribute a naked photo of a person without consent, or continually forwarding explicit photos to somebody. These activities, when causing a person to feel humiliated or threatened, constitute an offence with a maximum penalty of 3 year’s imprisonment.

Legal advice

Images seldom disappear from the internet – once loaded there is little control over their subsequent dissemination. What may start off as a joke can soon turn into something very serious.

Persons charged and convicted with a sexual offence risk significant penalties including being recorded on the Child Protection Offender Register. The likely repercussions are an adverse impact upon a person’s reputation, career, relationships and travel plans.

If you are aware of someone who is concerned about a sexually explicit photo of themselves that might be on another’s phone, computer or online, or worried that they have a sexually explicit photo on their phone, computer or online, tell them that they should obtain legal advice without delay.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au

You may well have heard someone say “Marijuana is legal now – it is legal in Canberra, it has been decriminalised in New South Wales. You just aren’t allowed to sell it.” Is this true?

Well, in simplistic terms – no! Marijuana (or ‘cannabis’ as it known in law enforcement circles) is illegal everywhere in Australia. The penalties that one can incur for having, selling or growing marijuana varies a lot from state to state.

We have set out below the state by state position so that the bigger picture of laws relating to cannabis in Australia can be shown.

New South Wales

• Any cannabis offence is a criminal offence and therefore can carry a criminal record.
• Cautions may be given at police discretion to persons found with up to 15 grams of cannabis, on up to two occasions.
• Cautions are accompanied by information regarding cannabis usage and a number for an advice line.

Victoria

• Cannabis offences are criminal offences, but are tried in a specialised drug court rather than a regular criminal court.
• It is at the discretion of the arresting officer whether to charge a person found with less than 50 grams cannabis or refer them to a ‘diversion’ program for help and education, this discretion by the police is only given on two occasions.

Queensland

• Possession and use of cannabis is a criminal offence in Queensland.
• A person found to have less than 50 grams of cannabis must be offered a drug diversion program on their first offence.

Western Australia

• Cannabis offences are criminal offences in Western Australia and Western Australia has some of the toughest laws in Australia regarding cannabis use.
• A person found to have less than 10 grams of cannabis or a used smoking instrument (such as a pipe or water pipe) must attend a Cannabis Intervention session within 28 days or they will receive a criminal conviction.

Tasmania

• Possession of cannabis carries a criminal charge in Tasmania.
• A person found with up to 50 grams of cannabis can be cautioned, at the police officer’s discretion, up to three times in ten years.
• The nature of each caution differs, growing in severity from the person being given information in the first instance to the possibility of being sent for treatment for drug use in the third instance.

South Australia

• Minor cannabis offences have been decriminalised in South Australia. This does not mean it is ‘legal’.
• Persons who are found to have up to 100 grams of cannabis, 20 grams of hash resin, one non-hydroponic plant (which means it is grown in soil) or smoking equipment are issued with a fine of up to $150 and given 60 days to pay the fine.

Northern Territory

• Cannabis has been decriminalised in the Northern Territory, however it is still illegal.
• Persons found in possession of up to 50 grams of cannabis or 1 gram of hash or cannabis seeds or two non-hydroponic plants can face fines of up to $200 and 28 days to pay the fine to avoid a charge.

Australian Capital Territory

• Cannabis has been decriminalised in the Australian Capital Territory but is still not legal.
• Persons found with less than 25 grams of cannabis or up to two non-hydroponic cannabis plants are offered the choice to pay a fine or attend a treatment program.

Cannabis or Marijuana is not legal in any state or territory of Australia.

Contrary to what seems to be a reasonably popular belief, there is no part of Australia where marijuana and its products are legal to grow, possess or sell. When examined on a state-by-state basis, it is clear that while in some states and territories the personal use of marijuana has been decriminalised, users and possessors still face repercussions if they decide to use or possess any cannabis or cannabis related products.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.