Criminal Law Frequently Asked Questions
On most occasions you will be taken to a police station in your local area or suburb.
You have rights under the Police Powers and Responsibilities Act to phone a lawyer of your choice. For example, Russo Lawyers runs a service whereby you can initially speak to a lawyer by phone and then on payment of a fee have a lawyer attend either the police station or watch house depending on the hour and time of day and the availability of a lawyer.
If you are in a watch house you should request the Sergeant of the watch house to allow you to make a call to either a lawyer, a friend or a family member who you should inform where you are and have them contact the lawyer of your choice. It is important that somebody be aware of your whereabouts.
Our criminal justice system ensures that you are granted a number of rights. This includes the presumption of innocence until proven guilty beyond a reasonable doubt. A defence lawyer can ensure that you rights are met. They can explain what the offence is and what Prosecution needs to prove before that offence is made out. Even if the offence is prima facie made out, you may have a defence. A defence lawyer can explain to you the prospects of the case and advise you the best course of action to take. They will represent you in court and speak on your behalf to the court, police, and any other relevant body. They can also obtain a range of relevant documents from other parties.
If it is late at night or early in the morning you choices are somewhat limited, however you can request the Yellow Pages and obtain a lawyer from the Yellow Pages. There is also a list called the Police Referrals list, which is a list provided by the Queensland Law Society to all police stations. All of the practitioners on the list are lawyers who deal with criminal matters.
There are a number of offences involving liquor or drugs you can be charged with under the Transport Operations (Road Use Management) Act 1995 (Qld). These include driving under the influence of liquor or drugs, driving over the middle alcohol limit but not over the high, driving over the general alcohol limit but not over the middle, driving over the zero alcohol limit but not over the general, and drive whilst relevant drug is present in saliva or breath.
Each of the above charges has different minimum and maximum penalties, and almost all of them involve an automatic loss of licence if you are convicted.
First, you can be charged with driving while under the influence over the high alcohol limit, being 0.15. This carries a maximum penalty of $2100 fine or 9 months imprisonment.
Second, you can be charged with driving while over the general alcohol limited but not over the high alcohol limit. That is, over a reading of 0.05 but under 0.15. This carries a maximum penalty of $1050 or 3 months imprisonment.
To prove this offence, Prosecution will need to show that you were actually driving the vehicle, or that you attempted to put the vehicle motion, or that you were in charge of the vehicle on a road or elsewhere whilst under the influence. If you are found to be over the high alcohol limit, you are deemed to be under the influence of alcohol. In some other instances, the court will consider the evidence as to whether you were under the influence. The court may consider evidence of physical appearance or behaviour at the time of the offence such as slurred speech, smell of alcohol, staggering, bloodshot eyes, etc.
Greater penalties exist if you have been convicted one or more times of drink driving or some other driving of a motor vehicle offences within the last 5 years. In some instances, the Court must impose imprisonment on you for this offence.
Variations may also exist depending on the type of licence you held at the time of the offence.
However, a number of defences exist for these charges. In addition, in particular circumstances you may be eligible for a work licence. It is vital that you call Russo Lawyers as soon as possible in order to get the right advice on this, otherwise you risk losing your licence for no reason, and therefore your income.
Queensland Police will investigate cases in which an offence is alleged to be committed. If they consider there is enough evidence to prove that offence, the police will charge you with the offence. You are called the defendant or the accused. It will then be up to the court to decide whether you are guilty of the offence, and if so, what penalty should be imposed on you.
The levels of courts in Queensland are:
1. Magistrates Court
2. District Court
3. Supreme Court
The Supreme Court hears the more serious offences including murder and major drug offences.
Regardless of what offence that you are charged with, you will first appear before the Magistrates Court. Depending on what type of offence you are charged with, the Magistrate may have power to hear and finalise your matter. The offences heard by a Magistrate are simple offences such as traffic offences. If the offence is serious, it will be moved by the Magistrate to either the District Court or Supreme Court for the matter to be heard and finalised by way of a process called the committal process.
Judges sit in the District Court and Supreme Court.
The District Court is run by a judge and deals with indictable offences such as rape, serious assault, armed robbery, fraud and burglary. Appeals from decisions made in the Magistrates Court can also be heard in the District Court.
The Supreme Court is the highest trial court in Queensland, presided by a Justice who hears the most serious cases of murder, attempted murder, manslaughter and major drug offences. This Court also comprises of the Court of Appeal and a trial division for serious criminal cases.
If a person wishes to plead not guilty, a jury of 12 people are randomly selected from the community to determine whether the person is guilty or not guilty.
If a person wishes to plead guilty, or if the jury finds the person guilty, the judge will determine the sentence to be given based on submissions made by the Prosecutor and your defence lawyer.
Where the person is under 17 years old, they can elect to have the matter heard in the Children’s Court of Queensland (a District Court with no jury) or the Supreme or District Court. The identity of the person may be protected and the trial may be closed.
Courts decide most disputes and criminal cases. Tribunals deal with more specialised matters and are less formal than courts. Tribunals are not restricted by the rules of evidence. That is, they do not have to follow the law as to what evidence may be used in court.
Most Tribunals have been replaced with the Queensland Civil and Administrative Tribunal (QCAT). QCAT has jurisdication to hear a wide variety of matters including blue card appeals, taxi licence appeals and some civil claims.
Tribunals in Queensland include:
1. The Anti-Discrimination Tribunal
2. The Children Services Tribunal
3. The Guardianship and Administration Tribunal
4. The Small Claims Tribunal.
If you have a lawyer, the lawyer will meet with you either at their office or outside the court. All cases for the particular day usually meet at the same time. Therefore, there may be a substantial wait before your matter is called. Your lawyer will advise you the location and court room number to attend. You should arrive early and you may bring a friend or relative if you wish. It is important that your mobile phone is switched off and that you do not eat or drink whilst in court. You should dress respectfully and bow your head when you enter or leave the court room while a Magistrate or Judge is present.
The first day that you attend court for the offence is a ‘mention’. This is a short appearance advising the Magistrate or Judge what is to happen next in the matter. It is not unusual for there to be a number of mentions before the matter is finalised.
The Magistrate may order that you spend time in custody while you are waiting for the case to be finalised. Alternatively, the Magistrate may order that you be released back into the community on certain conditions during this time. The release is called bail and you must promise that you will return to court for Trial or Sentence. Other conditions imposed on you may be to report to the police on a regular basis.
If you are refused bail in the Magistrates Court you can apply for bail in the Supreme Court. Such an application requires a large amount of preparation and Russo Lawyers has an enviable track record when it comes to these applications.
Qp9 stands for Queensland Police Form 9 and is a form that the police fill in when they charge you. It lists the exact charge with a brief description of the facts which they allege against you. The Qp9 is usually picked up at your first mention. You may request that you receive it before this date.
You may be able to appeal if you are unhappy with the sentence. There are time limitations involved in bringing an appeal and you should seek legal advice regarding the prospects of an appeal.
At the Committal Hearing, the Magistrate will hear submissions from both sides and decide whether there is enough evidence so that a properly informed jury could convict you.
Please note that the test is based on whether the jury could convict you, or whether there is not enough grounds to secure a conviction. If the Magistrate is satisfied that they could, the Magistrate will move your matters to be finalised in the higher court. If the Magistrate thinks that the jury could not, the Magistrate will dismiss the charges.
Almost always the Magistrate will move the matters to the higher court. However, the benefit for you is that we can obtain the full police brief outlining their allegations which gives us the opportunity to cross examine witnesses before any trial. This will be very important in preparing your sentence or trial.
The sentence or trial may take several months after the Committal Hearing to prepare.
This is an offence which the Magistrates Court can hear and finalise by way of dismissing the charge or imposing a penalty. This includes driving offences, trespass, and minor drug offences.
Some minor indictable offences can be finalised in the Magistrates Court. Other indictable offences must be moved to a higher court to be finalised. Some examples of indictable offences are murder, rape, and armed robbery.
It is up to the Prosecution to prove that the defendant committed the offence. In order to find a person guilty, the jury must be convinced of guilt beyond reasonable doubt. The person must be acquitted (found not guilty) if there is any reasonable doubt in the jury’s mind.
Trials in the District Court and Supreme Court are often complex and can take several weeks to complete.
The process for criminal trials is as follows:
When the judge is ready to hear the case, the defendant will be called to the dock by the bailiff.
Members of the public may be seated in the public gallery.
Everyone in the court room must stand when the judge enters the court room.
The jury panel arrives after the judge.
The charges are read out by the judge’s associate and the person is asked to enter a plea.
The person or the defence lawyer will stand and answer.
If the person is pleading not guilty, a jury is selected from the panel. There is no jury if the person is pleading guilty.
If the defendant pleads guilty the judge will listen to submissions from both the prosecution and the defence. The judge may determine the sentence immediately after the trial or set a date for a further sentence hearing.
If the person pleads not guilty, the trial proceeds as follows:
The Crown prosecutor will outline the evidence against the person
Witnesses will be called to the witness box and will be asked to swear an oath on a holy book or make an affirmation to tell the truth
The prosecutor will ask the witness questions to obtain evidence (evidence in chief)
The judge may also ask the witness questions
The defence lawyer will ask the witness questions to clarify/test their evidence (cross examination)
The Crown prosecutor may re-examine the witness to clarify their evidence
The defence lawyer will call upon their witnesses
The defendant is not obliged to give evidence
After all witnesses have been questioned, the following usually occurs:
The Crown prosecutor and defence lawyer will summarise their cases to the jury
The Judge will explain to the jury the applicable law relevant to the facts
The Judge will ask the jury to retire to the jury room to consider their verdict. The jury must reach a unanimous agreement on whether the defendant is guilty or not guilty
If the jury cannot reach a unanimous verdict, the judge may discharge the jury and hold a new trial with a new jury
When all members of the jury reach a unanimous agreement, the court is reconvened and the jury’s speaker announces their verdict.
If the verdict is guilty, the judge may determine the sentence or set a sentence hearing date
If the verdict is not guilty, the judge will dismiss the charges against the person and there cannot be an appeal to the Supreme or District Court.
If the person pleads guilty or if the verdict is guilty, the judge may determine the sentence or set a sentence hearing date. In determining a sentence, an example of the relevant factors is listed below:
1. The seriousness of the crime
2. The effect on the victim
3. The defendant’s criminal history and personal circumstances
4. Whether the defendant cooperated with the police
The defence lawyer can specify factors that may help reduce the sentence (e.g. financial factors, personal circumstances). These are referred to as mitigating factors. The prosecutor will also suggest a suitable sentence and may present to the court a written victim impact statement that highlights the personal effects of the crime from the victim’s point of view.
After considering all relevant factors, the judge will determine the appropriate sentence.
The type of sentence depends on the serious nature of the crime and the judge/magistrate must provide reasons for their sentence.
- Offender must agree not to re-offend (recognisance)
- Unpaid community service
- Probation order
- Intensive correction order
- Suspended sentence
Appeals from decisions in Magistrates Court are held in the District Court and all appeals from trials in the Supreme and District Court are heard in the Court of Appeal. Three judges are present at an appeal hearing in the Court of Appeal and there is not a jury.
Appeals can be lodged in three circumstances:
- A person who pleads guilty may only appeal against a sentence if leave is granted by the Court of Appeal;
- A person who is found guilty by the court has the right to appeal against a conviction and leave must be granted to appeal against a sentence; or
- Queensland’s Attorney General has authority over legal matters to appeal against the sentence if it is considered too lenient.