Contents
B. History and aims of Criminal Law Duty Lawyer Program 19
D. Practical requirements of Criminal Law Duty Lawyer Program 20
1-5 Criminal law duty lawyer form 20
1-6 Duty lawyer session report form 21
E. Responsibilities of duty lawyers 21
1-7 Duty as if to private client 21
1-8 No obligation to appear 21
1-9 Appearing as a ‘friend of the court’ 21
1-10 Primary duty to defendants 21
F. Practical hints for duty lawyers 22
1-14 Speak to the police prosecutor or court staff 22
1-16 Taking instructions—working out the issue 23
1-18 Obtain further information from prosecutor if necessary 23
1-19 Deal only with the prosecutor 23
1-22 Remands for further advice 24
G. Referrals from duty lawyers 24
1-23 Referring defendants for further legal advice or assistance where necessary 24
1-25 Criminal charges against Aboriginal and Torres Strait Islander people in all jurisdictions 24
1-26 Legal advice and assistance 24
2-1 Principles contained in the Bail Act 1980 (Qld) 26
2-2 When the court will refuse bail 26
2-3 Where a magistrates court cannot grant bail 26
2-5 Power of a police officer to grant bail 27
2-6 Power of magistrates court to grant bail 27
2-7 Consideration of options by court or police officer 27
2-9 Restriction on publication 28
2-11 Effect of Penalties and Sentences Act 1992 (Qld) 28
2-12 Release of a person with an impairment of the mind 28
C. Procedures on bail applications 29
2-16 Assessing unacceptable risk 29
2-17 Onus on defendant to ‘show cause’ 30
2-18 Further applications for bail 31
2-19 Undertakings as to bail 31
D. Breaches of the Bail Act, including failure to appear 31
2-22 Surrender by the defendant into custody after failing to appear 32
2-23 Breaches of the Bail Act 32
2-24 Arrest on warrant for failure to appear or breach of bail condition 32
2-25 Failure to appear in the Supreme or district court 33
2-27 Bail granted for the substantive offence 33
E. Conduct of bail applications 33
2-30 Confirm information with prosecutor 34
2-31 Ascertaining whether onus of proof is on defendant 34
2-32 Where bail is opposed and defendant is not in a show cause situation 34
2-36 Being as concise as possible 35
2-38 Caution when making admissions 36
2-40 Where the defendant is legally represented 37
2-41 Applying to the Supreme Court if bail is refused 37
Chapter 3—Magistrates courts and the Justices Act 1886 (Qld) 39
3-3 Relevant parts for duty lawyers 39
C. Proceedings in case of indictable offences 41
3-5 Proceedings in case of indictable offences 41
D. Proceedings in case of simple offences and breaches
of duty 41
3-6 Proceedings in case of simple offences and breaches of duty 41
3-7 Defendant to be asked to plead 42
3-8 Court can re-open proceedings 42
3-9 Offences dealt with summarily 42
3-11 Duty lawyer obligations 43
Chapter 4—Indictable offences that can be dealt with summarily 45
4-1 What is an indictable offence? 45
4-2 Who can elect summary jurisdiction? 45
4-3 Summary jurisdiction—time 45
B. The defendant’s election 45
4-4 Defendant’s election under the Criminal Code 45
4-5 Magistrate to advise as to right of election 45
4-6 Determining value where there are multiple charges 46
C. The prosecutor’s election 46
4-7 Prosecutor’s election under the Criminal Code 46
D. Matters for which there are no elections 46
4-8 Matters for which there are no elections 46
E. When Magistrates Court must abstain from jurisdiction 46
4-10 Defence application in exceptional circumstances 46
4-11 Appellate jurisdiction 47
Chapter 5—Specific offences under the Criminal Code more commonly dealt with and defences 49
5-5 Assault occasioning bodily harm 50
5-10 Provocation is a defence only if assault is element of offence 51
5-11 Questions of fact for court 51
5-12 Self-defence against unprovoked assault 51
5-13 Self-defence against provoked assault 52
5-14 Aiding in self-defence 52
5-15 Sexual offences that may be dealt with summarily 52
5-16 Offences where absence of consent is not an element 52
5-17 Offences where absence of consent is an element 52
5-18 Sexual offences that must proceed on indictment 52
5-19 Mistaken belief about age of complainant 52
5-20 Offences more commonly encountered 53
5-22 Things capable of being stolen 53
5-24 Bona fide claim of right 54
5-27 Receiving stolen property 54
5-28 Mental element—receiving 54
5-29 Breaking and entering offences 54
5-31 Breaking and entering defined 55
5-34 Passing valueless cheques 56
5-35 Computer hacking and misuse 56
5-36 Wilful and unlawful damage 56
5-38 Unauthorised damage to property under Regulatory Offences Act 57
5-39 Defences available under Chapter 5 of the Criminal Code 57
Chapter 6—Commonwealth offences 59
6-2 Dealing with offences—summarily or on indictment 60
6-3 Time for commencing prosecutions 60
6-6 Common offences a duty lawyer may encounter 61
6-9 Taking other offences into account 64
6-12 Reparation (restitution) 67
6-13 State law applying to appeals 67
Chapter 7—Extradition, migration detention and deportation 69
7-1 Service and Execution of Process Act 1992 (Cth) 69
7-2 Apprehension under warrant 70
7-3 Procedure after apprehension 70
7-4 Additional provisions if person is under restraint 70
7-10 Special provisions for extradition to New Zealand 73
C. Non-payment of interstate fines 73
7-11 Effect of amendment to Service and Execution of Process Act 73
7-12 Effect of registration (s 114) 73
8-1 Drugs Misuse Act 1986 (Qld) 76
8-3 Summary jurisdiction for drug offences 77
B. Possession of dangerous drugs 78
8-5 Unlawfully in possession of dangerous drugs 78
8-9 Possession of minute quantities 80
8-10 Possession—momentary control 80
8-11 Possession—applicability of s 24 of the Criminal Code 80
8-12 Possessing relevant substances or things 81
C. Possession of things for use in connection with
drug offences 81
8-13 Possession of things for use in connection with drug offences 81
8-15 Possession of a prohibited combination of items 82
8-18 Offences involving possession of hypodermic syringes 82
8-19 Possessing suspected property 83
E. Producing dangerous drugs 83
8-21 Producing dangerous drugs 83
8-22 Publishing or possessing instructions for producing dangerous drugs 83
8-25 Possession of instructions for producing dangerous drugs 85
F. Supplying dangerous drugs 85
8-28 Supplying dangerous drugs 85
8-31 Possession of property from drug offence 87
H. Occupier/manager permitting place to be used for commission of drug offences 87
8-33 Permitting use of place 87
8-36 Occupier—person concerned in management/control 88
I. Certificates and forfeiture 88
8-38 Necessity for certificate 88
8-39 Forfeiture/restraining orders 89
Chapter 9—Motor vehicle offences 91
B. Vehicle offences involving liquor or other drugs 91
C. Unlicensed, disqualified and suspended driving 93
9-5 Unlicensed driving where the defendant is not under disqualification 93
9-7 Driving while suspended 93
9-8 Driving with accumulated demerit points 93
9-9 Mandatory disqualification periods 94
D. Dangerous operation of vehicle 94
9-10 Dangerous operation of vehicle 94
E. Driving without due care and attention 94
9-11 Driving without due care and attention 94
F. Restricted (provisional) licence 94
9-12 Who may apply for a provisional licence? 94
9-13 Who may not apply for a provisional licence? 94
9-14 What factors will satisfy the court? 95
9-15 How does a person apply for a restricted licence? 95
9-16 What evidence is required at the hearing? 95
G. Removing absolute disqualification under section 131 95
9-18 When can a person apply? 95
9-19 Where should they file? 95
A. Regulatory Offences Act 1985 (Qld) 97
10-3 Unauthorised dealing with shop goods 97
10-4 Exclusion of general criminal law defences 98
10-5 Effect of exclusion of general criminal law defences 98
10-6 Leaving restaurant, hotel etc. without payment 98
10-7 When a person will be charged under s 6 99
10-9 Unauthorised damage to property 99
10-10 Effect of this section 99
10-11 Further power to fine 99
10-12 Regulatory offences to be heard summarily 99
10-13 Effect of conviction for regulatory offence 99
10-15 Criminal Law Duty Lawyer Handbook not a complete guide 100
10-18 Criminal Code to be read and construed with the Weapons Act 104
10-20 Time for commencement of proceedings 104
10-21 Disqualification by a court 104
C. Invasion of Privacy Act 1971 (Qld) 107
10-24 Entering a dwelling house without consent 108
10-25 Entering a dwelling house by force or other means 108
10-27 A person without lawful excuse in a dwelling house or yard 108
10-29 Method of proceeding under this Act 108
10-30 Invasion of Privacy Act provisions in addition to the Criminal Code 109
D. Summary Offences Act 2005 (Qld) 109
10-31 Summary offences duty lawyers will likely face 109
10-33 Possession of implement 110
E. Police Powers and Responsibilities Act 2000 (Qld) 112
10-34 Purposes of the Police Powers and Responsibilities Act 112
10-35 Summary of police powers under the PPRA 113
F. Breach of probation/community service 118
10-37 Institution of proceedings 118
10-38 Appropriate court to deal with breach 118
10-39 Procedure on issue of warrant 118
10-40 Penalty for breach of community-based orders 118
10-41 Consulting with prosecuting corrections officer 119
10-42 Taking full instructions on the breach and original offence 119
10-43 Legal assistance for breaches of probation/community service 119
G. Corrective Services Act 2006 (Qld) 119
10-45 Unlawful assembly, riot and mutiny 119
10-46 Summary jurisdiction 120
H. Disclosure of criminal convictions—Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) 123
10-48 Application of the Act 123
10-49 Non-disclosure of convictions once rehabilitation period expires 123
10-50 Lawful to deny certain convictions 123
10-51 Exception to the non-disclosure provisions for certain professions or occupations 123
I. Restrictions on publication and attendance at court 124
10-52 Publication of names 124
10-55 Sexual offences—Criminal Law (Sexual Offences) Act 1978 (Qld) 124
10-56 Childrens court proceedings 124
J. Domestic violence orders 125
10-57 What is domestic violence and when can a court make an order? 125
10-58 Relevant relationships 125
10-59 Court may include name of relative or associate 126
10-60 Protection orders to include standard conditions 126
10-61 Court may make a temporary protection order 126
10-62 Court may make domestic violence order 126
10-64 Registration of interstate order 127
10-65 Police protection notice 127
10-67 Prohibition on publication of certain information 127
10-68 Police investigatory function 128
10-69 When police officer may apply for temporary protection order 128
10-70 Power to take a person into custody 128
10-75 Arrest of certain offenders 129
10-78 Definitions under the Criminal Code 130
10-79 Offences under the Criminal Code 130
10-80 Prostitution Act offences 132
10-81 Advertising prostitution 134
L. Casino offences—Casino Control Act 1982 (Qld) 134
10-84 Proceedings for offences 135
A. Introduction to youth justice in Queensland 137
11-1 The principles of the Childrens Court Act 1992 (Qld) and the Youth Justice Act 137
11-2 Principles of youth justice 138
11-4 Youth Justice Act to apply to children in all courts 140
11-5 Who may be present at court? 140
11-7 Publication of identifying material 142
11-8 Dealing with children 143
11-9 Dealing with Aboriginal children 144
11-10 Criminal responsibility—doli incapax 144
B. Prior to commencing proceedings 145
11-12 Identifying particulars when child is not arrested 145
11-13 Admissibility of statements or identifying particulars 146
11-15 Diversions—pre-court proceedings and as a sentence option 147
11-18 Administering cautions 148
11-19 Applications to dismiss a charge where a caution should have been administered 148
11-20 Youth justice conferences 148
11-22 Starting a proceeding 149
11-24 Complaint and summons 150
11-32 Bail applications to the Childrens Court of Queensland and Supreme Court 153
E. After proceedings have commenced 153
11-34 Right of election—which court? 153
11-35 Mental Health Act 2000 (Qld) 156
11-36 Pre-sentence reports 157
11-39 Reprimand (s 175(1)(a)) 159
11-40 Good behaviour order (ss 175(1)(b), 188, 189) 159
11-41 Fines (ss 175(1)(c), 190–192) 159
11-42 Probation (ss 175(1)(d), 193–194) 160
11-43 Graffiti removal orders (ss 176A and 194A–194L) 161
11-44 Community service orders (ss 175(1)(e), 195–202) 161
11-45 Intensive supervision orders (s 175(1)(f) and division 9, ss 203–206) 162
11-46 Conditional release orders (s 175(3), s 221) 163
11-47 Boot camp orders (ss 175(3)(b) and 226A–226D) 163
11-48 Mandatory Boot camp orders (ss 175(3)(b), 206A and 206B) 164
11-49 Detention (s 175(1)(g), s 176) 164
11-50 Remand time to be treated as detention on sentence 164
11-51 Combination of orders 165
11-52 Restitution and compensation 165
11-53 Recording convictions 165
11-55 Variation and contraventions of orders 166
11-56 Breach of a good behaviour order 166
11-57 Commencing proceedings for breach of community-based orders 167
11-58 General options available to magistrate on the breach application 167
11-59 Breach by re-offending 167
G. Variation of community-based orders 169
11-62 Variation in the interests of justice 169
11-63 Variation by consent 169
H. Miscellaneous court powers 169
11-64 Delegation of sentencing power 169
11-65 Reference of case to a childrens court judge for sentence 170
11-66 Correction of errors—childrens court magistrate 170
11-67 Court may order identifying particulars taken in addition to sentence 170
11-68 Orders under the Transport Operations (Road Use Management) Act 1995 (Qld) 171
11-69 Orders against parents 171
11-70 Transfers from detention centre to prison 171
I. Appeals and sentence reviews 171
J. The Department of Justice and Attorney-General (Youth Justice Services) 172
11-72 Responsibility of the Department of Justice and Attorney-General (Youth Justice Services) 172
11-73 Role of the Department of Justice and Attorney-General (Youth Justice Services) at court 172
11-74 The departmental officer at court as prosecutor 173
11-76 Other programs available 174
11-77 Legal aid for children 174
Appendix A—Table of court sentence options 175
Chapter 12—Conduct of pleas of guilty 177
B. Familiarity with legislation 177
12-2 Familiarity with legislation 177
C. Deciding whether an offence can be dealt with summarily 178
12-3 Deciding whether an offence can be dealt with summarily 178
D. Explaining court procedures 178
12-4 Explaining court procedures 178
12-7 Offender levies imposed under s 179C 180
G. Multiple charges—defended and undefended 180
12-8 Multiple charges—defended and undefended 180
H. Appearing for co-accused 180
12-9 Appearing for co-accused 180
I. Ensuring instructions fit the charge 180
12-10 Ensuring instructions fit the charge 180
12-11 Changing plea from not guilty to guilty 181
12-12 Previous convictions 181
K. No duty to disclose previous convictions 181
12-13 No duty to disclose previous convictions 181
L. When adjournment may be advisable 181
12-14 When adjournment may be advisable 181
M. Explaining effect of conviction 182
12-15 Explaining effect of conviction 182
12-16 Effects of conviction on applicants and employees 182
N. Explaining options for court on sentencing 182
12-17 Explaining options for court on sentencing 182
O. Obtaining full instructions 183
12-19 Obtaining full instructions 183
Q. Penalties and Sentences Act sentencing guidelines 183
12-21 Penalties and Sentences Act sentencing guidelines 183
R. Being as concise as possible 183
12-22 Being as concise as possible 183
S. Suggesting available options 183
12-23 Suggesting available options 183
12-24 Drivers licence disqualification as additional punishment 184
12-25 Procedures after court 184
Chapter 13—Sentencing options 186
A. Sentencing options and relevant legislation 186
13-2 Where a court may discharge 187
C. Orders under s 190 of the Penalties and Sentences Act 187
D. Good behaviour bonds, including drug diversion 187
13-6 Bonds for property-related offences 188
13-7 Bonds under ss 30, 31 and 32 188
13-8 How fines can be imposed 189
13-12 When a court may make a fine option order 190
G. Community service orders 191
13-13 When a court may make a community service order 191
13-14 When a court may order probation 192
13-15 Programs on probation 193
I. Intensive correction orders 194
13-17 When a court may impose an intensive correction order 194
13-18 When a court may order imprisonment 195
13-19 Concurrent versus cumulative sentences 195
13-20 Wholly or partially suspended sentences 195
13-21 Pre-sentence custody 196
13-23 Restitution and compensation 199
13-25 Banning orders under Part 3B of the Penalties and Sentences Act 199
13-26 Eligibility and referral 200
Appendix A
Sentencing principles—Penalties and Sentences Act 201
Chapter 14—Mental health and capacity 208
14-1 Situations facing lawyers 208
14-2 What is a mental illness? 208
14-3 What is an intellectual disability? 208
14-4 What is a cognitive impairment? 209
14-5 Advice on obtaining instructions 209
14-6 Considerations when assessing defendants’ capacity to provide instructions 209
14-7 Applying the Presser test 210
C. Representing clients with capacity issues in the magistrates court 212
14-9 Representing clients with capacity issues in the magistrates court 212
D. The Mental Health Court 213
14-13 Diminished responsibility 214
14-14 If a defendant is on an involuntary treatment order or forensic order 214
14-15 If a defendant is not on an involuntary treatment order or forensic order 215
G. Outcomes in the Mental Health Court 215
14-16 Unsound mind or not of unsound mind but permanently unfit for trial 215
14-17 Unsound mind or not of unsound mind but permanently unfit for trial 215
14-18 Not of unsound mind and temporarily unfit for trial 216
14-19 Diminished responsibility 216
14-21 Right to argue defence and right to trial 216
H. After a finding of unsound mind or unfit for trial 216
14-22 Neither of unsound mind nor permanently unfit for trial 216
14-23 Of unsound mind or permanently unfit for trial 217
I. The Mental Health Review Tribunal 217
14-24 Consequences of findings of the MHRT 217
J. General matters, classified patients and Commonwealth offences 217
14-25 Issues of mental illness or natural mental infirmity 217
14-27 Becoming a classified patient 218
14-28 Ceasing to be a classified patient 219
14-29 When classified patient status ceases 220
14-30 Applying for bail for a classified patient 221
14-31 Commonwealth offences 221
Chapter 15—Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) 223
15-1 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) 223
15-2 Applications under the Dangerous Prisoners (Sexual Offenders) Act 223
15-3 Types of orders under the Dangerous Prisoners (Sexual Offenders) Act 223
15-4 Contravention proceedings 224
15-5 Contravention charges 224
15-6 When the Act impacts on a duty lawyer session 225
15-7 When a client, subject to an order, faces fresh offences before the magistrates court 225
15-8 When a client is charged with a contravention offence under s 43AA 225
C. Availability of legal aid funding 225