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YOU HAVE QUESTIONS? WE HAVE ANSWERS

Our Brisbane criminal lawyers have prepared a number of questions and answers to the questions they are frequently asked by clients. If you have a criminal law question, please feel free to call us on (07) 3172 7100 and speak to one our friendly Brisbane criminal lawyers today. We are here to help you.

Do I need a lawyer?

Yes.

Some people decide to represent themselves. However, we strongly recommend you seek legal advice and representation from an experienced criminal lawyer. Criminal Law is a complex area of law. It is imperative that you receive advice from a lawyer who specialises in criminal law, because it is your life at the end of the day and you want the best representation you can get. 

How do police charge persons?

There are three ways police can charge persons with an offence: –

1. Arrest

Police physically take you to the watch house where they formally charge you.

2. Notice-To-Appear

It is a document a police officer will give a person they want to charge with an offence/s. The notice-to-appear can be issued on-the-spot or after you have been taken to a police station. The notice will include a description of the offence and a date and the Court where you will have to appear to answer the charge/s.

3. Sworn complaint and summons

This is a charge in writing that has been sworn on oath before a justice of the peace and it is served on a person.

Should you participate in an interview with police?

We must firstly advise you that if you ultimately plead guilty and you are sentenced, the Judge or Magistrate must under the Penalties and Sentences Act 1992 (Qld) take into account assistance you provided to the police in relation to the offence or other offences.

We recommend you DO NOT participate in an interview with police. The reason why we say this, is, by participating in an interview with police you may provide them with information they may not have already had and this can cause further problems for you. Remember, it is the Prosecution who have to prove the case against you, you as an accused person do not have to prove anything.

The classic situation where a person can provide further information unknown to police where it can lead to further charges is where police charge a person with possessing a dangerous drug. The person then participates in an interview with police where they tell police about drugs they have previously sold to persons. This can then lead to police or the DPP (if they have carriage of the matter) charging the person with trafficking in a dangerous drug or supplying a dangerous drug purely on their own admissions.

Remember you can exercise your legal right to silence and you DO NOT have to participate in an interview with police no matter what they or anyone else tells you.

What is a QP9 Court Brief?

A QP9 Court Brief is one of the first documents police prepare. This document sets out details such as the arresting officer, offence/s charged, the facts alleged for each offence, the details of evidence known to police at the time (e.g. CCTV footage) any recorded interviews with police or any other admissions police rely upon and it may list possible witnesses.

The QP9 Court Brief is the first document Police Prosecutions or the DPP will have been provided with by police. This document is often relied upon in the Magistrates Court by Police Prosecutions for pleas of guilty.

Does a QP9 Court Brief always contain accurate information?

NO.

In our experience, QP9s are not always accurate as they can often misstate the evidence that is alleged against a person.

It is imperative that the accuracy of the contents of a QP9 Court Brief is critically analysed. In particular if you intend on pleading guilty in the Magistrates Court as this is often the only source of information relied upon by police prosecutors.

Police have charged me with an offence, what will happen?

Your matter will first be mentioned in the Magistrates Court. Prior to your matter being mentioned the police will generally prepare a document called a QP9 Court Brief (please see details of what this document is under another question).

At the first mention, you must appear in person or the Magistrate will issue a warrant for your arrest.

If you do not have a lawyer appearing for you at your first mention then the Magistrate may ask you if you intend on getting legal advice/lawyer. If you say yes, then the Magistrate most likely will adjourn your matter for the purpose of you obtaining legal representation.

The Magistrate will ask you if you will be pleading guilty to the offence or if you will be contesting the offence.

Summary matter

If the offence is to be dealt with summarily (i.e. by the Magistrates Court) then: –

1. You could accept the facts alleged against you as stated in the QP9 Court Brief and plead guilty.

2. You could request an adjournment for the purpose of making a written submission (remember on a “without prejudice” basis) to the Police Prosecutions in relation to the offence.

3. Your matter could be adjourned for a further mention to allow police to provide copies of witness statements or exhibits (e.g. CCTV footage, your interview with police, copy of text messages from mobile phone seized by police etc.) to you. You may want witness statements or exhibits before determining if you want to plead guilty or go to summary trial. In some circumstances you may want to see some or all of the evidence (e.g. signed witness statements or a copy of CCTV footage or your interview) before you determine what you want to do.

Indictable matter

If the offence is to be dealt with on indictment (i.e. by the District or Supreme Court) then: –

1. You could accept the facts alleged against you as stated in the QP9 Court Brief and have your matter committed for sentence to plead guilty in the District or Supreme Court.

2. Your matter could be adjourned for a further mention to allow the DPP or Police Prosecutions to to provide copies of requested witness statements or exhibits (e.g. CCTV footage, your interview with police, copy of text messages from mobile phone seized by police etc.) to you. You may want witness statements or exhibits before determining if you want to commit for sentence or trial. In some circumstances you may want to see some or all of the evidence (e.g. signed witness statements or a copy of CCTV footage or your interview) before you determine what you want to do. 

Bail

The issue of bail will be raised i.e. whether or not the police object to you being granted bail on your own undertaking or with conditions.

If police did not remand you in custody before your first mention date, then it is unlikely they would then seek to have your bail revoked, however there is always the possibility that they could do so.

If police make an application for you to be refused bail (remanded in custody), then you will have to make submissions (orally tell) to the Magistrate why you should not be refused bail (bail is discussed under another question, but you would specifically want to refer to Section 16 of the Bail Act 1980 (Qld) when considering what to tell the Magistrate).

If police have remanded you in custody before your first mention, the Magistrate may ask you if you want to make an application for bail. Please note, if you make an application for bail and you are refused bail, then you can only make another application for bail if you can show a change in your circumstances. This does not apply for an application being made for bail at the conclusion of a committal hearing. At the conclusion of a committal hearing, the issue of bail is considered afresh and you are not required to demonstrate a change in your circumstances.

What happens if you plead guilty to an offence?

If you are an adult you will be sentenced in the Magistrate, District or Supreme Court.

If you are a child you will be sentenced in the Childrens Magistrates Court or the Childrens Court of Queensland.

My matter is being dealt with in the Magistrates Court, can I negotiate with Police Prosecutions in relation to the offence I have been charged with or the facts of the offence?

YES, but please do so on a without prejudice basis. In fact, you should have a lawyer do it for you.

1. If at any point you want to plead guilty to the offence, but you do not accept the facts as stated in the QP9 Court Brief or in the witness statements, Police Prosecutions can be approached to see if they will accept a plea of guilty on a certain factual basis. Sometimes Police Prosecutions will agree to amend facts for an offence in order to secure a plea of guilty. Please note that this option is not always open.

2. You may have received the QP9 Court Brief or the brief-of-evidence from the police and be willing to plead guilty to a different offence. Police Prosecutions can be approached to see if they will accept a plea of guilty to a different offence. Please note that this option is not always open.

What is a committal hearing?

Committal hearings are only conducted for offences that are to ultimately proceed on indictment in the District or Supreme Court. It is a hearing in the Magistrates Court before a Magistrate where witnesses are cross-examined by a defence lawyer/barrister to test the evidence and explore issues.

At the conclusion of the committal hearing, defence lawyers/barristers can either consent to the Magistrate committing the accused for trial, or they can make a “no case submission” to the Magistrate that there is insufficient evidence to put the accused on trial. If such a submission is made, the Magistrate is required to consider all of the evidence and determine if in their view there is sufficient evidence to put the accused to trial (i.e. commit the offences the accused is charged with for trial). The test for the Magistrate to exercise is, taking the Crown case at its highest, has a prima facie case been made out? The test of whether or not a prima facie case is made out has been considered in a number of cases. It can be summed up simply as whether or not a reasonable jury properly instructed could find the accused guilty of the charge or any other charge made out on the evidence. In the majority of cases Magistrates do find that a prima facie has been made out and commit an accused for trial. If for some reason the Magistrate is satisfied that there is not sufficient evidence to place an accused on trial, then they must discharge the charge.

What is an indictment?

An indictment is a piece of paper that is presented by the Director of Public Prosecutions in the District or Supreme Courts formally charging a person/s with an offence/s. The indictment lists each offence including the date of the offence, the place where the offence is alleged to have occurred, the text of the charge (the elements of the offence that have to be proved) for the offence and the name/s of any complainant/s relating to the offence. The indictment can only be signed by the Director of Public Prosecutions, a Crown Prosecutor or a person who has been given the commission to prosecute.

How long does the Queensland DPP have to present an indictment?

The DPP has 6 months from the date an accused person was committed for trial to present an indictment: s590(1) Criminal Code 1899 (Qld). 

Please note, the DPP can make an application to the Court for an extension of time to present an indictment after the 6 month period. However, these applications are generally rare.

What happens at a sentence?

Magistrates Court

If your sentence is heard in the Magistrates Court, then a Magistrate will preside over your matter. The Magistrate will usually read out each offence to you and ask you if you are pleading guilty or not guilty.

The Police Prosecutor or a representative from the Office of the Director of Public Prosecutions (DPP) will then make submissions to the Magistrate. These submissions will generally include details of the facts for each offence (which may include a schedule of facts), harm caused to any persons involved, loss caused to any persons involved, aggravating features of the matter, the seriousness or low level nature of the offences. The Police Prosecutor/DPP representative may then provide cases to the Magistrate to give the Magistrate a guide as to what the Police Prosecutor/ DPP representative believes the appropriate penalty is. Once the Police Prosecutor/ DPP representative has made submissions to the Magistrate, it is then time for the defence lawyer to make submissions on your behalf. These submissions can include background personal information about you, mitigating factors in your favour, circumstances relating to the offence/s, the appropriate penalty to be imposed. Upon the defence lawyer making submissions, the Magistrate passes sentence.

District/Supreme Court

If your sentence is heard in the District or Supreme Court, then a Judge will preside over your matter.

The Judge’s Associate will read out one by one each count on the indictment and he/she will ask you if you plead guilty or not guilty.

Upon the Judge’s Associate receiving the appropriate reply for each count, the Crown Prosecutor or DPP representative will make submissions to the Judge. These submissions will generally include details of the facts for each offence (which may include a schedule of facts), harm caused to any persons involved, loss caused to any persons involved, aggravating features of the matter, the seriousness or low level nature of the offences. The Crown Prosecutor or DPP representative may then provide cases to the Judge to give the Judge a guide as to what the Crown Prosecutor or DPP representative believes the appropriate penalty is. Once the Crown Prosecutor or DPP representative has made submissions to the Judge, it is then time for the defence lawyer/barrister to make submissions on your behalf. These submissions can include background personal information about you, mitigating factors in your favour, circumstances relating to the offence/s, the appropriate penalty to be imposed. Upon the defence lawyer/barrister making submissions, the Judge passes sentence.

What factors must the court consider when sentencing someone for an offence that is not a violent offence, a sexual offence involving a child under 16 years or a child exploitation material offence?

This is governed by section 9(2) of the Penalties and Sentences Act 1992 (Qld).

(a) the maximum and any minimum penalty prescribed for the offence.

(b) the nature of the offence and how serious the offence was, including—


(i) any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim given to the court under the Victims of Crime Assistance Act 2009, section 15; and

 (ii) the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence.

(c) the extent to which the offender is to blame for the offence.

(d) any damage, injury or loss caused by the offender.

(e) the offender’s character, age and intellectual capacity.

(f) the presence of any aggravating or mitigating factor concerning the offender.

(g) the prevalence of the offence.

(h) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences.

(i) time spent in custody by the offender for the offence before being sentenced.

(j) sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing.

(k) sentences already imposed on the offender that have not been served.

(l) sentences that the offender is liable to serve because of the revocation of orders made under the Penalties and Sentences Act for contraventions of conditions by the offender.

(m) if the offender is the subject of a community based order—the offender’s compliance with the order as disclosed in an oral or written report given by an authorised corrective services officer.

(n) if the offender is on bail and is required under the offender’s undertaking to attend a rehabilitation, treatment or other intervention program or course—the 
offender’s successful completion of the program or course.

(o) if the offender is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the offender’s community that are relevant to sentencing the offender, including, for example—

 (i)  the offender’s relationship to the offender’s community; or

 (ii)  any cultural considerations; or

 (iii)  any considerations relating to programs and services established for offenders in which the community justice group

 participates.

(p) anything else prescribed by the Penalties and Sentences Act to which the court must have regard.

(q) any other relevant circumstance.

What factors must the court consider when sentencing someone for child exploitation material offences?

This is governed by section 9 (6B) of the Penalties and Sentences Act 1992 (Qld), which provides the Court must have regard to:-

(a)  the nature of any image of a child that the offence involved, including the apparent age of the child and the activity shown; and

(b)  the need to deter similar behaviour by other offenders to protect children; and

(c)  the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and

(d)  the offender’s antecedents, age and character; and

(e)  any remorse or lack of remorse of the offender; and

(f)  any medical, psychiatric, prison or other relevant report relating to the offender; and

(g)  anything else about the safety of children under 16 the sentencing court considers relevant.

What factors must the court consider when sentencing someone for a sexual offence involving a child under 16 years?

This is governed by section 9 (6) of the Penalties and Sentences Act 1992 (Qld), which provides the Court must have regard to:-

(a)  the effect of the offence on the child; and

(b)  the age of the child; and

(c)  the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and

(d)  the need to protect the child, or other children, from the risk of the offender reoffending; and

(e)  the need to deter similar behaviour by other offenders to protect children; and

(f)  the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and

(g)  the offender’s antecedents, age and character; and

(h)  any remorse or lack of remorse of the offender; and

(i)  any medical, psychiatric, prison or other relevant report relating to the offender; and

(j)  anything else about the safety of children under 16 the sentencing court considers relevant.

What factors must the court consider when sentencing someone for a violent offence?

This is governed by section 9(4) of the Penalties and Sentences Act 1992 (Qld).

If the offence involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person or that resulted in physical harm to another person, the Penalties and Sentences Act states that the court must have regard primarily to the following:-

(a)  the risk of physical harm to any members of the community if a custodial sentence were not imposed.

(b)  the need to protect any members of the community from that risk.

(c)  the personal circumstances of any victim of the offence.

(d)  the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence.

(e)  the nature or extent of the violence used, or intended to be used, in the commission of the offence.

(f)  any disregard by the offender for the interests of public safety.

(g)  the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed.

(h)  the antecedents, age and character of the offender.

(i)  any remorse or lack of remorse of the offender.

(j)  any medical, psychiatric, prison or other relevant report in relation to the offender.

(k)  anything else about the safety of members of the community that the sentencing court considers relevant.

What happens at a District/Supreme Court trial?

The Crown Prosecutor from the DPP will appear on behalf of the Crown. A defence barrister will generally appear for an accused person.

At the commencement of the trial 12 persons will be selected by the Crown Prosecutor and the defence counsel from a jury pool to be members of the jury.

After the jury has been selected the Judge will generally talk to them about their role as a jury. After this the Crown Prosecutor will provide to the jury what is known as an “opening address”. This is a general overview of what the case is about and the evidence the Crown expects each of their witnesses will give. The Crown will then call each of their witnesses one-by-one for examination-in-chief and the defence barrister has an opportunity to cross-examine (ask questions) each of the crown witnesses.

After the Crown has called each of their witnesses to give evidence, then the defence has an opportunity to call witnesses (this does not always happen).

If the defence did not call any witnesses, then the Crown Prosecutor will give a “closing address” to the jury. This is essentially the Crown Prosecutor telling the jury in reference to the evidence the jury has seen why he/she believes the jury should find the accused guilty beyond reasonable doubt. The defence counsel then gives his/her closing address to the jury to say why the accused person should not be found guilty based on the evidence the jury has seen.

At the conclusion of the closing addresses by the Crown Prosecutor and defence counsel, the jury retires to deliberate (go out of the Court room to decide if they will return a guilty or not guilty verdict).

If the jury return a guilty verdict, then the accused will be sentenced. If the jury return a not guilty verdict then the accused will be discharged and free to leave. If the jury are hung (i.e. they cannot decide if the accused is guilty or not guilty) then the jury are discharged without having to make that decision. This means that the accused will most likely have to stand trial another day before a different jury (unless the DPP for some reason decides to discontinue the prosecution- which in most cases is highly unlikely).

What factors does the Court consider in determining if someone should be granted bail?

In Queensland, Section 16 of the Bail Act 1980 (Qld) provides that a police officer or Court shall refuse to grant bail if they are satisfied:

(1) that there is an unacceptable risk that the defendant if released on bail—

 (a) would fail to appear and surrender into custody; or

 (b) would while released on bail—

(i)  commit an offence; or

(ii)  endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or

(iii) interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or

(2) that the defendant should remain in custody for the defendant’s own protection.

What does the Court/police officer have to consider for a bail application in determining if there is an unacceptable risk?

The Act provides that in determining if there is an unacceptable risk the Court or police officer shall have regard to all matters appearing to be relevant, including the following: –

(a)  the nature and seriousness of the offence;

(b)  the character, antecedents, associations, home environment, employment and background of the defendant;

(c)  the history of any previous grants of bail to the defendant;

(d)  the strength of the evidence against the defendant;

(e)  if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about—

(i)  the defendant’s relationship to the defendant’s community; or

(ii)  any cultural considerations; or

(iii)  any considerations relating to programs and services in which the community justice group participates.

If you need help with a criminal law problem

Call Us Now on (07) 3172 7100 and speak to

one of our Brisbane Criminal Lawyers today. 

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