An alcohol ignition interlock device is a breathalyser device that is fitted to your car and prevents the car from starting unless no alcohol is detected.

If you are convicted of certain drink driving offences, and your licence is suspended, you will almost always be required to have an interlock installed when you regain your licence. These offences include:

• Driving, or attempting to drive, while under the influence of drugs or alcohol;
• Driving, or attempting to drive, with a blood alcohol concentration of at least 0.1%;
• Dangerous operation of a vehicle while adversely affected by alcohol; and
• Refusing to provide a sample of blood or breath to police for analysis.

If you are subject to an interlock condition, you will need to notify the Department of Transport and Main Roads (TMR) of any cars which you wish to drive, and each of the cars must be fitted with interlocks. Apart from a few exceptional circumstances, you will not be allowed to drive any other cars for a 12-month period.

Importantly, the 12 months does not begin to run until you get your licence back and have a nominated vehicle fitted with an interlock. This means that you can’t simply wait out the 12 months in the hope of not having to get an interlock. However, the interlock period will eventually expire after five years.

Cost

There are a number of costs associated with interlocks. These include the initial cost of the device, the installation fee, periodic calibration fees, and the removal fee. Typical estimates of the total annual cost are in the $1500-$3000 range.

You will need to have your interlock serviced by an interlock provider every few months during the interlock period. Data from the interlock will be collected by the provider and given to TMR.

Financial assistance may be available in exceptional circumstances. You may also be eligible for a discount if you have a Healthcare or Pensioner Concession Card.

Exemptions

If you are (or are soon to become) subject or soon to an interlock requirement, you may be eligible to apply for an exemption. Whether TMR grants the exemption is discretionary, but reasons must be provided and you will be entitled to either seek an internal review of the decision or ask QCAT to review it.

TMR can only grant an exemption where certain conditions are met. These include circumstances where you live in a remote or inaccessible area, where you (or sometimes a family member) have a medical condition that prevents you from giving a sufficient breath sample, or where it is not physically possible to install in interlock in the only available vehicle.

There is also a general provision for an exemption to be granted in cases where severe hardship would be caused to you or a family member. However, both the cost of the interlock and the fact that you may need a car to commute to work must be ignored when assessing hardship.

If an exemption is granted, and your circumstances subsequently change in a relevant way, you will need to notify TMR.

Non-Compliance

If you are subject to an interlock requirement, the interlock period may be extended if you try to circumvent the interlock mechanism. This can occur if you get someone else to provide a breath sample, or remove or tamper with the interlock, or drive when you know that the interlock is not operating properly. Your interlock period may also may be extended if, in the last four months of your interlock period, you provide a breath sample that contains alcohol; even if you don’t start the ignition.

Driving in breach of your interlock requirements could also land you with a hefty fine of up to $4,516 (or $9,678 for a subsequent conviction).

This article provides general information only. To get advice tailored to your situation, submit an enquiry or call us on 1300 862 529 to book an appointment with one of our specialist Criminal & Traffic Lawyers today.

This article was written by Martin Churchill & Luke Borgert.

How to appeal a licence disqualification

If you have been found guilty of a traffic offence, a court may order the disqualification of your licence. How long your licence is disqualified for will depend on the offence. You may however be able to apply to have your licence disqualification removed in certain circumstances.

Applying for removal

In order to qualify for a licence disqualification appeal you must:

1. 1. have been disqualified by a Queensland court from holding a driver’s licence for more than 2 years; and
   2. it has been more than 2 years since the date of the disqualification.

If your licence is in danger of being disqualified but you have not yet had your court hearing, you may be able to apply for a restricted or work licence. However, applications such as these must be made before a judgement is ordered by a court. If you are currently awaiting a final hearing date, it is imperative that you seek legal advice urgently in relation to obtaining a restricted or work licence.

What you need to apply

In order to submit your application you must:

• • obtain a copy of your traffic history from the Department of Transport and Main Roads.
  • obtain a copy of your criminal history from your local police station;
  • ensure that your details are accurate; and
  • fill out the application form and lodge it with the court.
  • write an affidavit. This explains why you want your licence back, how your circumstances have changed, and should give detailed reasons as to why the return of your would be appropriate.
  • serve a copy of the application and affidavit on:
    • Police Prosecutor for Magistrates Court; or
    • Commissioner of Police for District or Supreme Court (most common).
  • attend your court date.

What the court will consider

When deciding whether to remove your disqualification, the court will take into account:

• • your character;
  • the reasons you were disqualified;
  • your behaviour since your disqualification;
  • any rehabilitation you have undertaken;
  • whether there is a significant need for a licence;
  • any medical reasons; and
  • any other factors the court determines relevant to your circumstances.

How we can help

Preparing your application can be difficult and timely. One of our experienced criminal lawyers can guide you through your application step by step to ensure you have the best possible chance of success.

Your primary difficulty will be proving to the court that a return of your licence is appropriate in the circumstances. It is a common myth that a driver’s licence is a right; in most cases, the court will be very skeptical about returning a licence after it has been disqualified. This is where the assistance of a traffic lawyer can be invaluable. We can present your reasons to the court in an ordered and well thought out fashion, giving you a greater chance at being returned to the road. If you want to find out more, click here to view our traffic law specialists page.

What happens if your application is successful?

If the court approves your application, your licence disqualification will be removed. This does not mean you will be granted a licence. You must make a separate application to the Department of Transport and Main Roads for a new licence. You may have to pass the standard driving tests before you can obtain a new licence. If the reason you were disqualified was related to a drink driving offence, you may be required to participate in the alcohol ignition interlock program once your disqualification has been removed.

Licence renewal

A licence renewal notice should be sent to you about 4 weeks before your licence expires. It is your responsibility to notify the Department of Transport and Main Roads within 14 days if you change your address or your name. Find out more about how to change your address here.

Appointment

If your licence has been disqualified and you wish to discuss getting back on the road, please contact us  on (07) 3252 0011 to book a consultation with one of our traffic lawyers today.

Driving as a learner driver

I have been referred to SPER for a speeding fine, help?

Before SPER

If you are charged with a traffic offence in Queensland, for example speeding or ignoring a red light, you will be given or sent a fine known as an infringement notice.[1] The infringement notice outlines your traffic offence and includes the cost of your fine and the procedure for payment.[2]

Typically, you must act within 28 days by either: [3]

• • paying the fine in full;
  • entering into a voluntary instalment plan;
  • disputing the matter; or
  • requesting to have the matter heard by a court.

If action on an infringement notice is not taken within the necessary time frame, the matter may be referred to the State Penalties Enforcement Registry (SPER).[4]

What is SPER?

SPER is a body within the Queensland Treasury and Trade responsible for collecting and enforcing unpaid fines from government agencies.[5] If you offer to pay your fine outright, you will deal only with Queensland Transport Department.

What if I can’t pay the lump sum of the fine?

If you are unable to pay your fine in a lump sum by the due date, you can apply for a voluntary instalment plan. Through this plan, you will be required to pay a minimum payment of $60 to Queensland Transport and then be referred to SPER who will manage the collection of the outstanding fine.

The provision of a payment plan is preferable to many as the fines can be a significant financial burden. Factors affecting a person’s capacity to pay is not limited to but includes homelessness, disability and financial difficulty.

What will happen if I don’t pay my infringement notice?

You will receive an enforcement order with a registration fee.

If payments are not made when they should be, SPER can seek an enforcement order. You will normally have 28 days to respond to the enforcement order.[6] The amount of the enforcement order will be the fine and an additional registration fee of $73.80.

What if I can’t pay the enforcement order in full?

If you are unable to pay this in a lump sum payment, you may apply for an instalment plan.

What enforcement action will be taken against me if I don’t respond to the enforcement order?

SPER will take enforcement action for failure to respond. Enforcement actions are serious matters and can result in:

• • Disqualification of License
  • Seizure of Vehicle
  • Collection letters
  • Warrant for arrest and imprisonment

What if I want to contest the infringement notice registered with SPER?

If you been sent an enforcement order by SPER, you have 28 days to apply to SPER to have your matter heard in a Magistrates court.

Given the extensive nature of SPER’s powers, it is advisable you seek legal advice before attending your court hearing. Knowing how to explain your case to the Magistrate, or having a lawyer explain your case for you, could mean the difference between an extension of time on your SPER debt and the suspension of your license or seizure of your vehicle. On top of this, an unsuccessful court outcome will result in payment of the fine, an offender levy and potential extra court costs.

For more information on SPER, visit their website at https://online.sper.qld.gov.au/home  
To book an appointment with one of our traffic lawyers in relations to SPER issues, contact us on (07) 3252 0011 today.

Edited by Prini Avia

Footnotes

[1] S14, State Penalties Enforcement Act 1999 (Qld).

[2] S15, State Penalties Enforcement Act 1999 (Qld).

[3] S22, State Penalties Enforcement Act 1999 (Qld).

[4] S33, State Penalties Enforcement Act 1999 (Qld)

[5] S8, State Penalties Enforcement Act 1999 (Qld).

[6] S41, State Penalties Enforcement Act 1999 (Qld).

Can a traffic offence be a criminal offence?

If you’ve been charged with a traffic offence in Queensland there is a chance that this may be recorded on your criminal history. While most traffic offences are minor offences, if the traffic offence is of a serious enough nature, it may end up on your criminal history depending on various circumstances.

If you are a driver, it is important to understand what a traffic offence is and the different types of traffic offences and penalties.

What are the two types of offences in Queensland? 

In Queensland, there are two types of criminal offences: regulatory and serious offences.

Minor offences are labelled regulatory offences which include most traffic offences. More serious criminal offences involve more serious matters such as assault and dangerous operation of a motor vehicle.

While both are criminal offences, a conviction of a serious traffic offence will generally be noted in your criminal history. Minor traffic offences are generally recorded in your traffic history only, which is different and separate from a criminal history.

What is a traffic offence? 

A traffic offence arises when you have disobeyed the traffic laws.

What are some types of minor traffic offences? 

In Queensland, the Transport Operations (Road Use Management – Road Rules) Regulation 2009 lists minor traffic offences which include:

• • Running a red light
  • Speeding
  • Failing to keep left
  • Illegal U turn

What is the result of a minor traffic offence? 

If you’ve been charged with a minor traffic offence, you will may incur demerit points depending on the nature of the charge.

On top of this, you may be given or sent an infringement notice which will outline your offending behaviour as well as a disqualification period of your license.

If you dispute the notice, you can appear before court.

If you are found guilty of the traffic offence you will charged with the Queenland Offender’s levy and costs.

In some cases of a more serious nature, such as careless driving, you can receive up to 6 months imprisonment. [1] It is important to note that for minor traffic offences, the court may have discretion to sentence a term of imprisonment. If the outcome of a minor traffic offence is a sentence, there will be an automatic recording on your criminal history.

When does a traffic offence become a criminal offence? 

If you are sentenced to any term of imprisonment due to a traffic offence, there will be an entry on your criminal record and the recording of a conviction will be automatic.

There are various instances when a traffic offence may be recorded as a criminal offence including:

• • Drink driving
  • Driving under the influence of a drug
  • Driving with a relevant drug present in your saliva or blood
  • Unlicensed driving

See the Transport Operations (Road Use Management) Act 1995 – s79 for more information

For certain offences, the Court has discretion to enter a traffic offence on a person’s criminal history.

Certain considerations will include:

• • your traffic history
  • your Blood Alcohol Concentration at the time of the offence
  • Whether or not you have been charged with the same or a similar offence
  • Particular vehicle you’ve operated while driving.

Are there any traffic offences in the Criminal Code of Queensland? 

If you are charged with the dangerous operation of a vehicle (dangerous driving), this is considered not just a traffic offence but also a criminal offence. As a serious offence, you will be charged with dangerous driving under s328A of the Criminal Code 1899 which can lead to license disqualification, a fine of $4,000 and an imprisonment term of 5 years. If you are charged with dangerous driving that causes death or bodily harm, there is a risk of imprisonment of up to 14 years.

S328A (1) outlines dangerous driving as occurring when ‘a person who operates, or in any way interferes with the operation of a vehicle dangerously’ and:

(a) at the time of committing the offence is adversely affected by an intoxicating substance; or

(b) at the time of committing the offence is excessively speeding or taking part in an unlawful race or unlawful speed trial; or

(c) has been previously convicted either upon indictment or summarily of an offence against this section;

What are some examples of ‘dangerous driving’?

• • Driving while adversely affected by an intoxicating substance

• • Taking part in an unlawful dangerous race
  • Falling asleep while driving and hitting a pedestrian
  • Driving at a high speed and hitting another car, resulting in the death of the passengers in the other car

Whether you are facing a dangerous driving charge or been charged with a traffic offence, seek legal advice. 

Traffic offences are not always simple and can result in a criminal record if there is one charge or multiple charges and you may lose your licence. With the courts discretion, a criminal conviction for a traffic offence can have a significant impact on your ability to gain employment and travel.

If you have been charged with a dangerous driving offence or you are unsure about your legal rights regarding a traffic dispute, our experienced criminal and traffic team are here to help.

Contact us to discuss your situation & book in an appointment with our criminal and traffic lawyers today.

Footnotes

[1] Section 83, Transport Operations (Road Use Management) Act 1995.

The Penalties for Driving Without a License or Recently Expired Driver License

Under Queensland law, if you are charged with driving without a licence or driving on a recently expired licence you may face a number of penalties including imprisonment, fines or disqualification of drivers license.  

Driving without a License 

What happens if you are caught driving without a legally valid licence? 

You will be charged with an offence under the Transport Operations (Road Use Management) Act 1995 (Qld).  

What is the Penalty for driving without a licence? 

Under the Transport Operations (Road Use Management) Act the maximum penalty for driving without a licence is: 

• • 60 penalty units or 18 months imprisonment or  
  • 40 penalty units and 1 year’s imprisonment. 

You may alternatively receive an infringement notice if:  

• • The person has not been convicted of driving without a licence in the preceding 5 years; and 
  • The person has not had their driver licence disqualified in the previous 2 years for drink driving; and 
  • The person has been the holder of a valid driver’s licence previously. 

If given an infringement notice, you must not be:  

• • An interlock driver whose driver licence was not granted after a disqualification period for drink driving; 
  • An interlock driver who did not hold a valid Queensland driver’s licence (or had it expire over 4 weeks ago) at the time of the offence and the person’s interlock period has not ended. 

What does the court take into account? 

The court will consider a few things when deciding on what penalty you will receive including:  

1. 1. Aggravating or Mitigating factors   
   2. Public interest; 
   3. Criminal and Traffic history; 
   4. Relevant Medical history, Mental or Physical Impairment or Physical Capacity; 
   5. Other Relevant Matters  
   6. If the offence was committed in the prosecution or attempted prosecution of another offence and what the nature of the offence is; 

Driving with a recently expired license 

What happens if you drive with a Recently Expired licence? 

You may be subject to an infringement notice under the State Penalties Enforcement Act 1999. 

What is a Recently Expired Licence? 

A licence which expired less than a year before the offence was committed. 

It could also be a licence which was withdrawn less than 1 year previously because the holder of that licence had a mental or physical incapacity which made it unsafe for them to drive a car. 

What is a Recently Expired Licence? 

If you have been charged with driving on a recently expired driver licence, a police officer may grant you a permit authorizing you to drive to a stated place to safely store your vehicle. 

The permit must:  

1. 1. Be in an approved form; and 
   2. State the number of the infringement notice; and 
   3. State the term, not longer than 24 hours, for which it is issued; and 
   4. State the conditions, if any, on which it is issued. 

Will my license be suspended?  

In some circumstances, the court must automatically disqualify a person from driving including:  

• • If the person was suspended from driving due to a loss of demerit points, or  
  • If the person drove without a licence which had been suspended because of an offence against the Queensland Road Rules, section 20 – Obeying the speed limit.

Been caught driving without a valid licence? Seek legal advice 

There are serious ramifications if you are being charged with driving without a licence. This is the same if you are driving on a recently expired driver’s licence.  

If you unsure of your legal rights and options you should speak to an experienced Brisbane Traffic lawyer.  

If you would like to make an appointment to discuss your situation, please call us on 07 3252 0011. 

Links for further resources: 

https://corneyandlind.com.au/traffic-law/traffic-offence/

https://corneyandlind.com.au/traffic-law/the-festive-season-and-driving-under-the-influence/

https://corneyandlind.com.au/traffic-law/licence-disqualified/

What is a common assault?

In Queensland, there are three types of assault charges:

1. 1. Common Assault

1. 2. Assault occasioning bodily harm

1. 3. Serious Assault

This article focuses on the first type of assault charge in Queensland, common assault.  

Common Assault 

Common assault is a misdemeanor indictable offence, which can result in a maximum 3-year imprisonment. 

We refer to Common Assault in two forms:  

• • Direct Application Assault or
  • Threatened assault.

 Common assault is of less significance than an aggravated or serious assault, which is a crime and can result in imprisonment of up to 14 years. 

 Common Assault – Direct Application Assault 

In Queensland S245(1)CC (Criminal Code) defines Direct Application Assault as occurring when: 

• •  A person strikes touches or moves or applies force either directly or indirectly 
  • Without the other persons consent OR 
  • With the other persons consent if the consent was obtained by fraud  

 When is someone said to be “Applying Force”? 

Applying force includes applying heat, light, electricity or any other substance to such a degree as to cause injury or personal discomfort.  

The application of force does not become assault until the necessary intention to inflict unlawful force is formed.  

CASE STUDY Fagan v Metro Police Commissioner (1968 3 ALL ER 442) 

The accused accidentally drove a police car onto an officer’s foot.  

When the accused was asked to remove the car, he mocked the officer and delayed moving  

This incident, which began as an accident, then turned into an assault charge  

When is it with consent? 

Consent can either be expressed or inferred.   

An implied consent can stem from acts that are generally done reasonably in the “common intercourse of life” and “not disproportionate” to the occasion.  

For example, these could include non-hostile acts such as patting someone on the back or moving with the crowd at a music concert.  

When is it without consent? 

The question of whether a force is with or without consent, depends on whether the force is disproportionate or has exceeded that to which consent has been given. This is often a question for the jury.  

Common Assault – Threatened Application Assault 

In Queensland, S245(2)CC defines Threatened Application Assault as: 

• •  Any bodily act or gesture  
  • that attempts or threatens to apply force of any kind to another person  
  • without the other person’s consent  
  • and person making the attempt or threat has actually or apparently a present ability to carry out the assault   

What is a bodily act or gesture? 

A bodily act or gesture must be associated with words that indicate you have an intention of assaulting someone.  

The test for this is whether an ordinary person might reasonably consider your words, combined with the act or gesture, to construe an intention of assault.  

This threat can be conditional, for example, “If you don’t do this, I will knock you out”. 

Does it matter if you don’t intend to carry out the threat?  

Even if you don’t intend to carry out the threat, making the threat is enough to warrant an assault charge.  

What is attempting or threatening? 

If you have the intention to apply force or make the victim believe that the threat will be carried out, this could be seen as attempting or threatening assault. Additionally, you must create apprehension of violence in the mind of the individual. 

Under s4(1) of the Code: 

“When a person intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfillment, and manifests the person’s intention by some overt act, but does not fulfill the person’s intention to such an extent to commit the offence, a person is said to attempt to commit the offence.” 

Does the complainant have to be aware of the apprehension of violence?  

If the complainant is unconscious, asleep or otherwise unaware to the point where apprehension is not possible, they cannot be victim to threatened application assault. 

What is an apparent ability? 

Having an apparent ability to carry out a threat is enough to be considered as threatened assault.  

For example, if you were to threaten someone with an unloaded gun, it would still qualify as an apparent ability to carry out the threat – unless they were aware it was unloaded. This awareness would be essential in disproving this element of an assault charge 

Charged with Assault and need legal advice? Contact our Brisbane Criminal Defence Lawyers 

It is important that you obtain legal advice as soon as possible if you or anyone you know has been charged with assault.   

To speak to one of our Criminal Defence Lawyers, call us on (07) 3252 0011 or you can book a FREE 30-minute initial consultation.  

Helpful Links  

https://corneyandlind.com.au/resource-centre/helpful-court-tips/

https://corneyandlind.com.au/resource-centre/bail/

https://corneyandlind.com.au/criminal-law/how-do-criminal-proceedings-impact-my-blue-card/

Helpful Tips for Going to Court

Charged for a criminal matter?

Going to court is a scary experience, and the procedures are often hard to understand. We’ve got a wealth of experience preparing clients for Court appearances with strategic legal advice and legal representation.

It’s often hard to find a lawyer at short notice. To help you, we’ve put together some useful tips to prepare you for your first appearance in a Magistrates Court.

What type of matters do Magistrates Courts deal with?

The Magistrates Court deals with a variety of criminal offences, including:

• • Minor offences such as disorderly behaviour or shoplifting
  • Less serious offences such as traffic infringements
  • Serious offences such as burglary, assault, fraud and drugs
  • Some minor family law matters (although most go to the Family Court)
  • Minor civil law matters
  • Applications for child protection orders
  • Domestic violence matters
  • Some other Commonwealth matters

What should I do before going to Court?

Your matter has been scheduled to be heard in the Magistrates Court, so what do you do before going to court?

• • Find the court’s address and plan the easiest journey to get there. When organising your journey, plan to arrive at the court early so you have time to register your arrival at the court counter
  • Prepare any paperwork that is needed, and pack a pen and note paper to take with you
  • Make any preparations necessary to allocate a whole day for your hearing. You may be at court all day depending on the number of matters before the court, so it is important to make arrangements to clear any prior commitments (for example, requesting time off work, organising child care, etc.)
  • Prepare a smart and neat-looking outfit to wear to court

What should I do when I arrive at court?

You’ve just arrived at court for your first appearance, what do you do?

1. 1. Talk to the staff at the front counter to:
      • Tell them your name
      • Find out which courtroom your case will be in (this information will also be on the daily list which is displayed on noticeboards or TV screens in the waiting areas)
      • Ask for an interpreter (if you need one)
   2. Get a copy of your QP9 (this is the summary the police have prepared about your alleged offence). To get this, ask a duty lawyer or a police prosecutor.
   3. Wait for your name to be called by the court clerk. You can wait at the back of the courtroom or outside in the foyer.

What should I do inside the courtroom?

There are a number of rules that regulate how you should behave inside the courtroom.

So what should I do and not do once inside the courtroom?

When inside a courtroom, you should:

• • Turn off your mobile phone
  • Sit quietly – do not talk, comment or make noise if you are watching from the public gallery
  • Stand whenever the magistrate or judge enters or leaves the courtroom (the depositions clerk or bailiff will call ‘all rise’)
  • Bow your head to acknowledge the magistrate or judge every time they enter or leave the room
  • Call the magistrate or judge ‘Your Honour’

When inside a courtroom, you shouldn’t:

• • Drink, eat or chew gum
  • Smoke (in a courtroom or anywhere in the courthouse)
  • Wear a hat or sunglasses
  • Speak to any jurors (if it is a jury trial)
  • Make any audio or visual recordings
  • Broadcast the trial in any way

For more details on the criminal court process and how you should behave in court, take a look at the detailed information on the LegalAid Queensland website.

When my court appearance is over, what should I do next?

If you have appeared in court in relation to criminal charges and you have been granted bail, you should ensure that you go to the Court registry before you leave to sign your bail undertaking. You will then receive a copy to take with you. If you have already been granted bail and your bail has been enlarged you will only need to attend the registry if your bail conditions have changed.

Once you’ve attended your court date and have your QP9, the best course of action is seek legal advice.

Why should I seek legal advice?

A lawyer will be able to tell you:

• • the consequences of what you’ve been charged with
  • what the law says
  • identify elements that you have not considered
  • give you legal advice on the best approach in dealing with your charge.

Need a Brisbane-based criminal defence or traffic lawyer?

When you call our office, speak with our Client Engagement Team. They will be able to quickly assess your matter, identify a suitable member of our Criminal Law Team depending on the severity of your charge and provide efficient service in getting your matter assisted with expediently.

 Call us on 07 3252 0011

Bail and Bail Conditions | What You Need To Know

If you or someone you know has been arrested or is in custody, getting yourself or your loved one home will be your main priority. In order for that to happen, you will need to apply for bail. This article answers frequently asked questions about bail and informs you of how we can help you.

What is Bail? 

Simply put, bail is a signed written promise that you will come to Court on your next court date and that you will not commit further offences. This written promise is called a ‘bail undertaking’. Sometimes, you will need to make further promises to the Court and those promises are called ‘bail conditions’. Bail conditions can include:

• • Reporting to police multiple times a week;
  • Surrendering your passport;
  • Not having contact with certain named persons.

Who has the power to grant bail?

Police Officers 

If you have been arrested and charged with a criminal offence, the police may decide to grant you bail from the watchhouse. Once you have signed your bail undertaking, you will be released back into the community with the expectation that you will come to Court on the date listed on your undertaking. If you fail to attend Court on that date, a warrant may be issued for your arrest.

If police refuse to grant you bail from the watchhouse, they must give you a written explanation of their refusal and you will be brought before the Court the next sitting day for a bail application.

The Court 

A bail application is where you make a formal application to the Court to be granted bail. It is important that you speak with a lawyer before you make a bail application. If you cannot afford a private lawyer, a duty lawyer is sometimes available in the courthouse. Once you have been granted bail by the Court, police must release you after you have signed a bail undertaking.

Will the Court grant me Bail? 

The Court will generally grant you bail unless the Court believes that there is an unacceptable risk that if released from custody, you will:

• • fail to appear and surrender into custody; or
  • commit an offence; or
  • 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
  • interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else.

In deciding if there is an ‘unacceptable risk’, the Court will consider a number of factors such as:

• • The type of the offence/s you have been charged with;
  • The seriousness of that/those offence/s;
  • Whether you identify as ATSI;
  • Your criminal history (or lack thereof);
  • Whether you have stable and secure accommodation;
  • The strength of the police’s evidence against you;
  • Your personal background;
  • Your previous performance (if any) while on bail;
  • Whether you have committed offences while currently on bail for other offences;
  • Whether any bail conditions can ameliorate any unacceptable risk identified.

If the Court refuses to grant you bail, you will not be able to bring another bail application until there has been a ‘change in circumstances’. What this means is, your position must have changed from when you first applied for bail. For this reason, it is important that you speak to a lawyer before you make an application for bail. Our team of experienced criminal lawyers will be able to give you the advice you need.

Can I get bail for more serious offences? 

If you have been charged with more serious offences, the Court may still decide to grant you bail however, some offences (such as murder) will need to be decided in the Supreme Court. If you have been charged with a serious offence, call one of our criminal lawyers to get tailored advice for your situation.

What if I breach my bail?

If you breach any of your bail conditions, you may be charged by police. If you believe you have breached your bail or you have been charged for a breach of bail (conditions), call one of our criminal lawyers urgently so that we can provide you with the assistance you need.

Need to apply for bail?

If you, or a loved one, has been arrested and refused bail by police, you should seek legal advice as soon as possible. Our criminal defence lawyers can give you advice and appear in Court with you to make an application for bail. Contact us today for a free 30-minute initial consultation. Call (07) 3252 0011.

Helpful Links  

https://corneyandlind.com.au/resource-centre/assault/

https://corneyandlind.com.au/criminal-law/how-do-criminal-proceedings-impact-my-blue-card/

What defences do I have to an assault charge?

In Queensland, there are three types of assault charges:

1. Common Assault
2. Assault occasioning bodily harm
3. Serious Assault

These are serious criminal offences as all assault charges may attract a term of imprisonment.

This article focuses on two common defences to assault: Provocation and Self-defence.

Provocation 

What is Provocation? 

According to s268 of the Queensland Criminal Code, provocation is:

“Any wrongful act or insult of such a nature as to be likely, when done to an ordinary person…to deprive them of the power of self-control, and to induce to person to assault the person by whom the act is done.” 

This means there must be both a loss of self control and provocative conduct for any claim of provocation to have merit.

Does Provocation provide a complete excuse? 

Under the Code, provocation provides a complete defence with relation to assault.

This means that although it doesn’t make the act lawful, it does absolve you of any criminal responsibility with relation to the assault.

When is Provocation unavailable as a defence? 

If you are charged with bodily harm, grievous bodily harm (GBH) or wounding you cannot rely on provocation. It can also provide a partial defence for a murder charge.

Who must prove the Provocation defence? 

If you want to rely on a provocation defence for an assault charge you must bring evidence to satisfy the court that there is a reasonable claim. The prosecution will then have to disprove this claim.

Self-Defence 

What is Self-Defence? 

Self-Defence is outlined in s271, 272 and s273 of Queensland Criminal Code 1899.

Self-Defence provides a defence which permits a person to physically defend with themselves, another, or property using reasonable force.

Who must prove Self-Defence?

If you’ve been charged with assault and want to rely on self-defence, you will firstly need to point to enough evidence to raise this defence. If you provided enough evidence for this defence to be raised, the prosecution must then prove beyond reasonable doubt that the assault was not in self-defence.

Section 272 Provoked Assault 

If you provoked the assault, it will be necessary to establish that the individual you provoked responded with:

1. Such violence as to cause reasonable apprehension of death or GBH,” and that;
2. You responded by using force reasonably necessary for your preservation, including force that resulted in death or GBH.

For a provoked assault, the court will also consider:

• • Did the accused believe that the force was necessary
  • Need for retreat
  • Excessive force
  • Limitations that are placed by law on defensive force in a provoked assault.

Section 272 Unprovoked Assault 

If there was no provocation, whatever action you take is deemed lawful as long as it is to the extent “reasonably necessary” to make an effectual defence against the assault (as opposed to provoked assault, which begins with an unlawful action).

For the court to determine whether the assault was provoked, they will have mind to the factors detailed above in “Provocation”.

For an unprovoked assault, the court will also consider:

• • Other alternate strategies that may have been used in response
  • Prior acts of the victim
  • Presence of domestic violence in the situation
  • need for retreat.

What is “reasonably necessary”?

The court applies an objective test in determining whether something is reasonably necessary and considers the following questions:

• • What was the likely attack?
  • Was the response reasonably necessary to make effectual defence against that attack?

What if the Self-Defence causes death of Grievous Bodily Harm (GBH)? 

In the case of a self-defence that has resulted in death or GBH, the court will undertake a subjective analysis to determine whether you believed, on reasonable grounds, that the level of force used was necessary for you to survive the assault.

There are also distinct legal questions to be addressed where there is a mistaken belief of the amount of force required, protection of property, or where the self-defence is a defence of another. To find out more, contact our criminal defence lawyers..

Additional Defences 

To absolve a person of criminal responsibility for an assault charge, we consider the broad range of possible other excuses and defences in addition to the above defences. These include:

• • Extraordinary emergency
  • Insanity
  • Immature age
  • Compulsion
  • Arrest of the wrong person
  • Surgical procedure
  • Defence of property
  • Consent
  • Mistake

Charged with Assault and need legal advice? Contact our Brisbane Criminal Defence Lawyers

It is important that you obtain legal advice as soon as possible if you or anyone you know has had an assault charge.

To speak to one of our Criminal Defence Lawyers, call us on (07) 3252 0011 or you can book a FREE 30-minute initial consultation.

Helpful Links  

https://corneyandlind.com.au/resource-centre/helpful-court-tips/

https://corneyandlind.com.au/resource-centre/bail/

https://corneyandlind.com.au/criminal-law/how-do-criminal-proceedings-impact-my-blue-card/

https://corneyandlind.com.au/resource-centre/assault/