Facts

Our client was participating in a grade level rugby union match. While on the ground after a tackle, he was kicked in the head by a player from the opposing team. Our client got to his feet and approached the player who had kicked him. After a brief verbal exchange our client punched the other player in the face 3 times. The other player sustained fractures to his nose and cheekbone.

Approximately 1 year later, our client was charged with Assault Occasioning Bodily Harm

Issue

There was no question that our client had caused the injuries to the complainant. The issue was whether our client’s actions in striking the complainant were permitted or excused by law. In particular, whether the defences of provocation, self-defence and consent were available to our client.

Action

Our entered a plea of not guilty. The matter proceeded by way of a summary trial in the Magistrates Court.

The prosecution witnesses, including the complainant, gave evidence and were subject to cross-examination. Having regard to the evidence given by the witnesses under cross-examination, our client did not give or call evidence himself.

The presiding Magistrate accepted defence submissions that the prosecution had not negatived, beyond reasonable doubt, the defences of provocation, self-defence and consent, which were all clearly raised in the prosecution case.

Result

Our client was found not guilty and discharged unconditionally by the Magistrate.

Key Points

During contact sports it is not uncommon for tempers to flare and fights to break out from time to time. While for the most part, once the fight has been broken up that will be the end of the matter, it is important to note that an act of violence on a sports field can result in a criminal prosecution.Criminal offences relating to on-field violence might include common assault, assault occasioning bodily harm or grievous bodily harm, depending on the severity of the injuries.An act of violence might attract more than an on field penalty, dependent upon the level of force and injury suffered.

Facts

Our client played a round of golf at a local golf course. As usual, he hired a motorized golf cart to drive during his round. After a good round, the client celebrated his birthday at the clubhouse where he consumed half a dozen full strength beers and several shots of vodka over a two hour period.

At around 6.00 pm, he drove the cart to the course storage shed, a distance of 200 metres along a sealed path. All but 20 metres of the path runs along the edge of the course fairway. A 20 metre section deviates outside the fairway onto public land where it skirts the golf course. The outside path is at least 15 metres distance from the public road.

At all times he was driving the cart in a responsible manner, never leaving the path. Upon arrival at the storage shed, he was confronted by a Police Officer who made a requirement for him to provide a specimen of breath. Our client complied and recorded a blood alcohol concentration of 0.174%.

He was charged with Driving a Motor Vehicle While Under the Influence of Liquor. This carries a mandatory minimum licence disqualification of 6 months.

Issue

This scenario presented two issues:

Was our client driving a motor vehicle?Was the location of the driving illegal?

Under the relevant legislation, a motor vehicle is defined as “a vehicle propelled by a motor that forms part of the vehicle”. A motorized golf cart meets the definition of a motor vehicle.

The charge only requires that a person ‘drives’ a motor vehicle. There is no requirement that the driving be on a public road or path. The fact that the driving took place on and off a golf course is immaterial to the charge.

Action

Given the nature of our client’s conduct, a submission was prepared and forwarded to Police Prosecutions urging them to offer no evidence. Particular weight was given to the lack of public interest in prosecuting this type of offending.

Unfortunately, Police Prosecutions rejected the submission. Our client did not have a sustainable defence. He pleaded guilty to the charge.

Submissions were made to the sentencing Magistrate highlighting the unusual facts of this offence. It was submitted that this was an example of low level, technical offending. The Magistrate was urged to impose only the mandatory minimum disqualification and to discharge our client without further punishment.

Result

Our submissions at sentence were accepted.

Our client received the mandatory minimum disqualification period of 6 months. The Magistrate did not impose any further penalty upon our client. He was discharged absolutely without a conviction being recorded.

Key Points

Drink and drug driving offences are not restricted to traditional vehicles such as cars, motorbikes and trucks.Police can proceed with drink or drug driving prosecutions regardless of the location of the driving, including if it is on private land.A BAC of 0.150% or over attracts a mandatory minimum 6 month disqualification. This commences on the date of conviction, not the date of the offence. It cannot be backdated or reduced.

Each year, tens of thousands of school leavers converge upon the Gold Coast to celebrate 'Schoolies week'. For two weeks, the Surfer’s Paradise precinct of the Gold Coast is transformed into one giant party. With such a concentration of adolescent, alcohol fuelled revellers, invariably some Schoolies find themselves in trouble with the law at some point during the week.

In recent times, the government has implemented significant measures to ensure the safety and security of Schoolies attendees. This has seen a vast increase in policing throughout the two weeks. In 2014, 131 Schoolies were arrested for a total of 152 charges, this does not include the countless number of tickets that were issued by Police for public nuisance type offences.

It is important that you understand your rights and responsibilities when having any dealings with Police.

Rights

If approached by police, by law, you are only required to provide your name and address. An exception to this is if the police are making an enquiry regarding an offence to which age is a relevant matter, i.e. consumption of alcohol.

To avoid possible implications flowing from a failure to comply with a request for details from Police, it is wise to err on the side of caution and provide your name, address and date of birth.

After providing your personal details, you have the right to remain silent. Police are equipped with recording devices and any conversation you have with them will likely be recorded. The recorded conversation could be used as evidence against you in a subsequent Court proceeding. Therefore, you should answer no further questions or make any statement until you have spoken to a lawyer.

You are not required to attend a police station unless you are placed under arrest. If placed under arrest it is important that you comply with police directions, otherwise you risk being charged with Obstructing Police.

Once placed under arrest, you should immediately ask to speak with a lawyer or a family member.

Offences

The majority of offences that occur at schoolies are low-level street type offences, that often come about as a result of alcohol consumption. Below are some of the more common offences and the associated penalties.

Alcohol offences

Some common offences Police can issue on the spot fines (tickets) for:

Drinking in a public place (18 years and over): $117Underage drinking or possession of alcohol in a public place: $353Being intoxicated in a public place: $235

Identification

The majority of Queensland Schoolies will be under the age of 18 years. There may be the temptation to obtain a fake ID or lend an underage friend your ID. If so, you could be issued with the following fines:

Using a friends ID: $353Lending an ID to a person who is underage: $589Defacing an ID to change date of birth details: $471Making and using a fake ID: $235 for minors, $471 for adults.

For each of these offences police could elect to charge you and have your matter brought before a court.

Public Nuisance

A person can be charged with public nuisance if they act in:

A disorderly way;An offensive way;A violent way; orA threatening way

and their actions interfere with passage through or enjoyment of a public place.

While most charges of public nuisance will carry a nominal fine, the maximum penalty is 10 penalty units or 6 months imprisonment.

The penalties become more severe if the offence is committed in or around a licensed premises.

Police can issue an on the spot fine or elect to have the matter dealt with before the Court.

Drugs

Possessing or supplying a dangerous drug (Ecstasy, Cannabis, Cocaine etc.) can lead to severe penalties. If you are found in possession of dangerous drugs, police will also likely search or seize your phone. Text messages concerning the purchase of drugs can be used as evidence against you for more serious offences such as supplying a dangerous drug or trafficking in a dangerous drug. Police have the technology to extract deleted text messages from mobile phones.

Penalties for drug offences range from good behaviour bonds for low-level first time offenders to terms of imprisonment for more serious offences of supplying and trafficking in dangerous drugs.

All drug offences must be dealt with before a Court. The only exception is if you are in possession of no more than 50 grams of cannabis and have no prior drug diversion orders. The Police can elect to have your matter proceed by way of a drug diversion provided you admit that the drug was knowingly in your possession. However, before answering any questions you should contact a lawyer.

Other offences

On top of the more common offences listed above, there are a range of other offences that Schoolies encounter. These include; assault, sexual assault, trespassing, drink/drug driving and public urination just to name a few. The punishment for these offences can be severe, with some resulting in custodial sentences.

Summary

You must provide your name, address and date of birth in almost all circumstances. It is best to err on the side of caution by providing this information.You should not answer any further questions or make any statement until you have spoken to a lawyer.You do not have to accompany Police to a Police station unless you are placed under arrest.

Andrew McGinness

Accredited Specialist Criminal Law

Nathan Boyd

Solicitor

Arrest is not simply an act; it is a legal state of detention. If it is carried out unlawfully, then issues of false imprisonment and assault by a police officer may arise.

Whether detention by police is for a brief period on a footpath or for several hours in a police station, you need to be aware that it is in fact a form of imprisonment, either lawful or unlawful.

When can police place you under arrest?

Broadly speaking, there are two ways in which police can place a person under arrest:

Arrest with a warrant; orArrest without a warrant.

Arrest with a warrant

Under the Police Powers and Responsibilities Act 2000 (“PPRA”), a police officer may apply to a Justice for a warrant to arrest a person for an offence (s369). The application must be sworn and state the grounds on which the warrant is sought.

The Justice may only issue an arrest warrant if they are satisfied that there are reasonable grounds for suspecting (s371):

that the person has committed the offence; andfor an offence other than an indictable offence, proceedings by way of complaint and summons or notice to appear for the offence would be ineffective, including because the person can not currently be located or served with a complaint and summons or notice to appear for the offence.

An arrest warrant must state the following (s372):

the name of the applicant for the warrant and the applicant's rank, registered number and station;that any police officer may arrest the person named in the warrant;the offence the person is alleged to have committed.

Once issued, it is lawful for any police officer acting under a warrant to arrest the person named in the warrant. In these circumstances, arrest includes apprehend, take into custody, detain, and remove to another place for examination or treatment (s369).

Arrest without a warrant

In practice, it is often impractical for a police officer to apply to a Justice for a warrant to arrest a person suspected of committing a crime. Because of this, many arrests occur without a warrant either at the scene of the crime or throughout the course of a police investigation.

Generally speaking, the PPRA provides that a police officer may arrest a person without a warrant if they hold a reasonable suspicion a person has committed or is committing an offence (s365). The grounds that must be satisfied to perform an arrest without a warrant are very broad and apply to both simple and indictable offences.

Example: If you were found in possession of drugs (i.e. Ecstasy, marijuana, and cocaine) outside a nightclub, this would provide a police officer with a reasonable suspicion of an offence having been committed and to place you under arrest without a warrant.

It is also lawful for a police officer without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an indictable offence, for questioning the person about the offence, or investigating the offence (s365). Though this only applies to indictable offences, it provides police with broad powers to arrest and detain without charge.

As soon as practicable after arrest, a police officer must inform the person that they are under arrest and the nature of the alleged offence (s391).

If at any stage after arrest, a police officer considers there is insufficient evidence to maintain the charge, the officer has a duty to release the person (s376).

An arrest is a serious infringement upon a person’s liberty and should be avoided wherever possible. There is provision under the PPRA for police to issue a person with a Notice to Appear instead of placing them under arrest (s382-389). A Notice to Appear is an obligation for a person to appear in court on a specified date. It is far more preferable for a person to be issued with a Notice to Appear, as it does not require them to be arrested and detained in police custody for any period of time. The decision to issue a Notice to Appear is entirely at the police officer’s discretion.

Generally speaking, no, you should not take part in a police interview. Police and some lawyers will argue that the clear benefits for a client in taking part in a record of interview with police are:

1. Co-operation which is acknowledged under s 9 of the Penalties and Sentences Act 1992 (“PSA”).

2. Increased chance of watch house or Court bail.

Dealing firstly with the co-operation argument.

Co-operation is but one factor listed under s 9 of the PSA. A plea of guilty either by way of an ex-officio indictment or without cross examination at a committal hearing, s 13 of the PSA and other relevant factors in s 9 PSA will more than compensate for a defendant’s apparent lack of co-operation by refusing to answer police questions.

A refusal to take part in a record of interview might result in a formal objection to bail by the prosecution at the initial mention before the Court. However, refusal by a defendant to answer questions is not a s 16 Bail Act consideration and certainly does not lend weight to any police submissions in objecting to bail.

On the contrary, a recorded interview involving admissions will most definitely be relied upon by the prosecution in objecting to bail as it is a relevant consideration under s 16(2)(d) of the Bail Act 1980 which refers to “the strength of the evidence against the defendant”.

The role of a properly prepared defence lawyer at a police station at the time of arrest cannot be overstated. Consider this passage below by Dr Cosmas in his 2008 publication “Criminal Discovery. From Truth to Proof and Back Again”, published by the Sydney Institute of Criminology:

“The low visibility, pre-interview exchanges between police and suspects have been described by McConville, Sanders and Leng as a means by which police may acquire information on a suspect’s hopes, fears, concerns and lifestyle. This places the police in a position where they can have a manipulative influence when the official interview takes place. Of significance to these police-suspect exchanges are negotiations concerning cautioning, charge selection and bail. If an accused is in custody at the time of a police interview, the exercise of police discretion on the subject of bail can have a significant bearing on the conduct of the interview. Police officers are not officers of the Court with an equivalent ethical responsibility.

Despite the availability of legislation requiring the audio or videotaping of police interviews, the potential remains for admissions or confessions to be tainted by police conduct, both prior to the interview and at the interview through suggestive questioning.” (pge 130).

It should be a rare occurrence for a criminal defence lawyer to advise a client to take part in a Record of Interview.