Whenever we represent a new client who has been charged with a traffic offence, one of the questions that we always ask ourselves is whether they should attend a defensive driving course. In almost all cases, our opinion is that they SHOULD attend such a course and we will then recommend an appropriate course for them to complete.
Defensive driving courses are important for a number of reasons:
It shows the magistrate or judge that our client is willing to go that ‘extra step’ to avoid committing similar types of offences in the future;
It almost always improves the penalty that our client receives and our client is of course extremely grateful for this, particularly when the penalty will often involve a licence disqualification.
More importantly though, we believe that these courses are important for the safety of our clients and the public generally.
Young drivers may not have had enough experience with driving to know how to handle driving under different conditions. For example, driving during a thunderstorm is very different to driving on a bright and sunny day and drivers need to know how to handle both situations.
For older drivers, it can be easy to fall into the trap of assuming that they know what they’re doing because they’ve been driving for so long. Unfortunately with the passage of time, it is easy to become complacent when driving and to forget all the little rules and techniques necessary to drive safely.
This is where defensive driving courses play such an important part.
It doesn’t matter whether you’re 18 and on your Provisional licence or if you’ve been driving for 50 years already. It is almost certain that you will learn something new by attending a defensive driving course.
The courses themselves can range from a few hours of theory one evening to a full day which includes both theoretical and practical components. They are all good however some may be more appropriate than others.
Most people don’t attend a defensive driving course until they have already been charged with a traffic offence. We recommend that ALL driversfind the time to attend a course – it may help you to avoid being charged in the first place and it may just save your life one day.
The program requires a commitment of a few hours one evening each week for three weeks. If you are willing and able to attend different locations, you can even complete the program in 1.5 weeks.
It takes place in Nerang on Tuesday evenings and Mt Gravatt on Wednesday evenings and costs $185 (inc GST).
Topics that are covered include:
Legal issues; and
Since this program takes place in the evenings and has two different locations, it is good for participants who work during the day and do not have the time to devote a whole day to attending a course.
If you want to attend QTOP, bookings are essential so make sure you visit their website to find out how to register.
Attitudinal Drivers Workshop
The Attitudinal Driving Workshop (“ADW”) was developed as a way to educate the community about safe driving and is designed to be accessible to anyone who wants to attend. For this reason, the only ‘cost’ is a gold coin donation of $2 to cover costs.
The ADW runs for just a few hours on one Monday each month. Although this means that there aren’t many courses that are run, it only takes a few hours and is therefore perfect for those who have limited free time. It is also ideal for those who don’t have much to spend on program fees.
Many of our clients have provided very positive feedback and have described how confronting this workshop can be. Its purpose is to make it very clear just how devastating the consequences of making poor decisions can be, not just on the driver but on the wider community as well.
When a person is convicted of a crime in Queensland, they will be sentenced to an appropriate punishment. This could be anything from a fine to a lengthy jail term.
Generally speaking, judges and magistrates have the power to decide what sentence should be given. The sentence however must be consistent with the law and also within an appropriate range.
This means, for example, it is simply impossible for a person to get a fine for murder. On the other hand, it is impossible for a person to go to jail for public urination.
When deciding what sentence should be imposed, the court has to take into account a number of different factors and the Penalties and Sentences Act provides guidelines to assist the court in considering these factors.
Some of these factors are referred to as “mitigating circumstances” and we will review these below.
If you are charged with a traffic or criminal offence in Queensland, you will (almost always) need to attend court. You will then have the option to plead guilty or not guilty to the charge.
However, people sometimes miss their court date and this could be for any number of reasons.
For example, a person may be sick on the day of court and be so physically or mentally unwell that they cannot make it to court.
Occasionally, a person may simply be disorganised and forget that they have a court date. This often happens when the person is heavily intoxicated when being charged with the offence. They wake up the next morning and don’t remember that they were in fact charged with an offence.
If you think that you will miss a court date for any reason, or if you think you might have already missed an appearance, it is important that you understand what might happen to you as a result and what you should do to fix the problem.
The Penalties for Missing a Court Date
If you fail to attend court at the required time, the consequences can be serious.
If it was your first court appearance for your case, the magistrate will likely issue an arrest warrant. This means that the police have the power to find and arrest you and bring you before the court for failing to appear.
You will then need to explain why you missed court. If you are unable to provide a good enough reason, you will be punished by the magistrate. Ordinarily, this would involve a fine for the first time you fail to appear. However, if you have a history of failing to attend court, a magistrate can impose a more serious punishment which can include imprisonment.
If it was not your first time in court and you had previously been granted bail for the offence, you can be charged with breaching your bail conditions. This is seen as contempt of a court order and is treated very seriously.
In addition to being given a punishment such as a fine or jail, you may also need to convince the magistrate that you deserve to be given bail again. This can be difficult if you have just breached your bail conditions.
What To Do If You Fail To Appear
If you fail to attend court when required, the first thing you should do is seek legal advice. An experienced criminal lawyer will be able to provide you with advice and possibly appear in court with you to explain why you did not attend court.
If you have any documents which explain why you did not attend, you should make sure you get these. This could include, for example, a medical certificate from your doctor.
Lastly, you should surrender yourself to the police or the local courthouse. You should do this as soon as possible, especially if you know that a warrant has been issued. It is a much better option than being arrested by the police and taken to court.
It is a well-known fact that it is a crime to possess certain items in Queensland.
For example, the Weapons Act makes it illegal to possess weapons such as a switchblade knife.
It can also be a criminal offence under the Summary Offences Act to possess certain items if they are to be used for committing other offences, such as burglary or unlawful use of a vehicle. This could include a crowbar, for example.
The laws relating to possessing dangerous drugs in Queensland is quite clear and these are outlined in section 9 Drugs Misuse Act. In summary, it is an offence to possess dangerous drugs (such as cocaine, marijuana etc) unless the person has a lawful excuse.
What is less-known however is that you do not need to physically be in possession of dangerous drugs to be charged with being in possession. In fact, they do not even need to be your drugs. This unusual rule is called “deemed possession”.
What Is Deemed Possession
The relevant law about drug possession states that “a person who unlawfully has possession of a dangerous drug is guilty of a crime”.
However more detailed information about possessing drugs is found in section 129(1)(c) Drugs Misuse Act. This section states that if drugs are found in or on a place that is owned or under the control of a person, that person can be charged with possessing the drugs.
In practical terms, this means that you can be charged with possessing drugs if the police search your vehicle and drugs are found in the boot.
This law also has serious consequences for people who own or rent a home that has drug users visiting. If those visitors leave drugs at the residence, the owner/renter can be charged with possessing the drugs.
If you are deemed to be in possession of drugs, you can be charged and convicted as if you were in fact the owner of the drugs.
Is There a Defence?
The law provides a defence which states that a person will not be guilty of the offence if they can prove that he or she neither knew, nor had reason to know, that the drug was in or on the place.
This defence, however, creates a serious issue for anyone wanting to rely on it.
Unlike the standard rule that the police need to prove their case against an accused, this defence requires the accused to prove that they did not know about the drugs.
The problem is that it is extremely difficult to provide evidence that you did not know something!
Alternatively, an accused may be able to argue that there was no reason for them to suspect that the drugs were present. Again, this can be difficult to prove.
How To Avoid Being Charged With Deemed Possession
The best way to avoid being charged with possessing dangerous drugs is, of course, to avoid drugs altogether.
However, as this article shows, you also need to make sure you don’t get charged with possessing someone else’s drugs.
You can take steps to avoid this by knowing more about your friends or visitors. If you suspect that they be in possession of drugs, you can ask them to not bring them into your house or car.
If you lend your car to someone or let someone stay in your home while you are away, you can also ask them whether they have left anything that may be illegal.
We understand however that these steps might not be so easy in real life.
Therefore if you face being charged with possessing dangerous drugs (whether your own or someone else’s), you should seek legal advice immediately. An experienced criminal lawyer will be able to help you navigate the criminal justice system to get the right outcome.
This is a phrase we hear so often that it’s almost become a cliché. In fact, if you were to ask someone to name a legal right that they know they have, they would probably tell you that they have the right to silence.
Despite this, we at Harper Finch Lawyers are concerned by how many people don’t exercise their right to silence, leading to all sorts of problems with their case later on.
In this article, we look more closely at the right to remain silent and just why it’s so important to exercise your right.
If you are stopped by the Queensland police, you may be tempted to pull out your mobile phone to record them interacting with you. By doing so, you would have a video record of what was said and done by the police in case there was a dispute later.
However, do you know if you are in fact legally allowed to record the police? Do you know what your rights are if you are ordered to confiscate your phone?
These are the questions that we explore in this article.
Recording the Police
In Queensland, there is no specific law that states that you cannot film the police while they are carrying out their duties in public. This means that you have the right to record them, regardless of whether they are dealing with you or someone else.
As a result, the police do not generally have any of the following powers if they see you filming them:
Confiscating your phone;
Asking you to stop recording;
Telling you to delete your images or videos.
There are, however, certain situations where recording the police might not be allowed or where the police may have certain specific powers.
Therefore, if you are filming the police while they are carrying out their duties, but you are also obstructing them at the same time, you can be arrested and charged with the offence of obstruction. As a result, it is important that you do not get in the way of the police while you are recording them.
Filming Surveillance Officers
If police officers are carrying out surveillance, their safety and well-being will be considered as being a priority. This is a simple matter of security due to the highly dangerous covert work that they do.
Therefore, if you are seen filming surveillance officers, it is likely that the police will be able to exercise their powers to either order that you stop recording or alternatively confiscate your phone.
Evidence of a Crime Being Committed
The police may also attempt to confiscate your phone if they believe that it has evidence showing the commission of a crime.
Section 29(2)(a) of the Police Powers and Responsibilities Act states that the Queensland police can seize anything from a person “that may provide evidence of the commission of an offence”. However, before they exercise this power, they need to reasonably suspect that it is necessary to search that person without a search warrant.
The above law therefore does not give the police random powers to confiscate a mobile phone, even if they believe it has evidence of a crime being committed.
What to Do If Challenged by The Police
Many people (including police officers) assume that you cannot record someone in public unless you have their permission.
If the police approach you and asked you to stop filming them, you should politely tell them that you are not getting in their way, but you will keep recording.
If they continue challenging to challenge you, tell them that you would like to contact your lawyer for legal advice.
Also, you should attempt to upload the footage to a secure online storage service such as Dropbox. This will ensure that your recordings are safe, even if the police delete them from your phone.
In today’s digital age, it is normal to turn to the Internet to find answers for our everyday problems.
What is the weather forecast? Check Google.
How to make banana bread? Check Google.
Who won the last season of The Bachelor? Check Google.
There is no denying that the Internet is an incredible source of information with information on almost any topic imaginable. It is a valuable resource and we always recommend that people who face criminal charges do some basic research to better understand their situation.
It is however important to understand that there is a lot of false information on the Internet or information that might appear to be relevant to you but is not. This can have serious consequences if you make life-changing decisions based on this potentially incorrect information.
Below, we look at some of the main reasons why you shouldn’t get legal advice from Google.
Laws are constantly changing.
The Government may decide that a new criminal offence should be in place, so they create a new law. Or, it may increase the penalty for an existing criminal offence to reflect the seriousness of the offence.
These changes can literally happen overnight.
Therefore, unless a website is constantly being checked and updated, it is highly possible that the information on that site is outdated, especially when it comes to websites displaying legal information.
If you are researching your criminal charges online, make sure that you check the date when the article was published.
Each country has its own unique local laws which usually do not apply anywhere else in the world. If a country is made up of different States, they will usually have their own individual laws as well.
In Australia, each State and Territory has its own set of laws that, although similar, are often different to the others. This means that the laws in New South Wales are not the same as the laws in Queensland and vice-versa.
This can cause serious problems if you are doing legal research about your case without first checking which jurisdiction applies. If you read that you will receive a particular punishment in New South Wales for drink-driving, you may be shocked when you receive a completely different outcome because you’re actually appearing in court in Queensland.
Therefore, the best thing that you can do is contact a criminal lawyer from the State or Territory where you will be appearing in court.
Beware The “Hard Sell”
It is an unfortunate reality that some lawyers are more interested in getting your business than providing you with genuine advice.
You can tell who these lawyers are when you visit their website and it gives the impression that you face a jail sentence no matter what offence you have been charged with – and only they can keep you out of jail.
They use fear and intimidation to convince you to hire them and they do this by presenting biased information.
If you’re facing criminal charges, you need to hear the truth about your case. Therefore, you should always look at a website and ask yourself whether it appears to present the information in a clear, unbiased way.
If you are in doubt, you should contact a lawyer directly so that you can explain your case in detail and then receive personalised advice.
The Internet is a goldmine of information, but it can also be a minefield if you don’t tread carefully. We certainly recommend that you spend some time researching your case online, but you should not just rely on Google for legal advice.
The best thing you can do is to speak with an experienced criminal lawyer. This will ensure that you receive legal advice that is current and that applies to your personal situation.
If you have been charged with a traffic offence in Queensland, you potentially face serious consequences. These could range from a lengthy licence disqualification to actual imprisonment. It is therefore important that you seek legal advice to ensure that your rights are protected and that you receive the correct outcome.
The best thing that you can do is to hire a lawyer to represent you throughout your case. An experienced traffic lawyer will know the laws and the procedures to ensure that you get the best results.
Sometimes, however, a person simply cannot come up with the funds needed to hire a private lawyer. In such situations, the Queensland Government can provide assistance through Legal Aid Queensland which will cover the fees for a lawyer to represent you in court for free.
Legal Aid funding is not automatically granted though. Legal Aid Queensland will only grant funding to certain applicants and its decision will be based on several different factors. The most important factors it will consider are:
The type of case that a person needs assistance with; and
The applicant’s financial circumstances.
What Cases do Legal Aid Queensland Fund?
Legal Aid Queensland can provide funding for a wide range of cases, including family law and civil law cases.
Therefore, a private lawyer can be funded by Legal Aid Queensland to represent you in court for traffic offences.
This does not however mean that all traffic offences are covered by Legal Aid. In fact, they have a specific policy which states that “legal assistance is not available for minor traffic prosecutions”.
Therefore to be eligible for legal aid funding for a traffic offence, you need to be able to show that you face a real likelihood of being sentenced to actual jail for the first time or, if not your first time, for a period of six months or longer.
As a result, most people who have been charged with a traffic offence in Queensland will not be eligible for Legal Aid funding since they will not face imprisonment.
Are You Financially Eligible for Funding?
If you have been charged with traffic offences and you face the prospect of an actual jail sentence, the next step is to review your financial circumstances.
Legal Aid Queensland have two tests that they apply to examine a person’s financial circumstances:
The Income Test; and
The Assets Test.
The Income Test
Applicants for Legal Aid are required to disclose their income from all available sources, including salaries, income from insurance payouts, child support payments and rental income from investment properties.
Legal Aid Queensland will then consider your total income along with whether you are married and/or have children. If your income exceeds the allowable limit, your application for funding will ordinarily be denied.
The Assets Test
Similarly, you will need to disclose all the assets you own including real estate, cash and vehicles. Funding may still be granted if your assets exceed certain amounts, but you will be expected to contribute an amount towards the legal fees.
There are special conditions and exceptions that apply to the assets test. For example, certain amounts of assets are not included in the calculation of a person’s assets. A person’s age can also have an impact on the assets test.
What If Your Application is Refused?
If your application for Legal Aid funding is refused, you can appeal the decision. Legal Aid Queensland will then carry out an “internal review” to decide whether the refusal was appropriate.
If the internal review decides that the refusal was appropriate, you can then request an “external review”. An External Review Officer will go through the application to decide whether it should have been granted or not.
If all of these options are unsuccessful, the decision is final and you will not receive financial assistance from Legal Aid Queensland.
There are however other community-based legal organisations that may be able to help. They can provide you with free legal advice about your case but will not be able to provide representation.
If you think that you may be eligible for Legal Aid funding, we are a Legal Aid Queensland preferred supplier which means that we can help. Contact us now so that we can discuss how we can assist you.