On 22 October 2021 Justice Glenn Martin in the Brisbane Supreme Court found that the Maximum Security Order (MSO) imposed against Michael Stephen Owen-D’arcy was not compatible with human rights. Owen-D’arcy was convicted and sentenced to life imprisonment in 2010 over the stabbing, mutilation and murder of David John Easton which occurred in July 2007.

In January of 2011, Owen-D’arcy was classified as a maximum-security prisoner and in the three years following he was further convicted of a number of other offences, one being an attempted murder of a corrective officer. In 2013 he was issued with a MSO which meant that he was to be held in solitary confinement. This meant no interaction with other inmates and very limited contact with prison staff. Approximately every six months thereinafter he was issued with a new order, this has occurred over the last eight years.

Since 2013 Owen-D’arcy has been inside a cell that is 3.8metres long and 2.2 metres wide in solitary confinement, if Owen-D’arcy goes outside then he is required to wear a body belt, handcuffs and leg irons.

The Corrective Services executive director made a further order being a No Association Decision (NAD) in 2020 which prevents Owen-D’arcy any contact with other prisoners without approval.

Owen-D’arcy applied to the Court for a review after the further MSO from 18 June 2020 to 16 December 2020.

Justice Martin found that the NAD failed to take into account Owen-D’arcy’s human rights. Under Section 30 of the Human Rights Act it indicates that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

Justice Martin stated “The NAD is as much a part of solitary confinement or segregation as the MSO,” and further “It is not a physical isolation, but it works to prevent (Owen-D’Arcy) from engaging in any meaningful conversations or exchanges. It places him in a cocoon of isolation from all but the slightest interaction with other human beings.”

As a result of Justice Martin’s findings Queensland’s Attorney-General, Chief Executive of Queensland Corrective Services and Queensland Human Rights Commission have been provided a short period of time until November to make submissions regarding what Orders should be made to remedy Owen-D’arcy’s situation.

Our team specialise in criminal defence and traffic law. Our role is to sit down with you and work out the strategy that will get you the best possible result. If you have any questions about this article or any other topic of law, please call our team of experts on 1300 066 669.

Bail is simply the Court’s permission to allow you to remain in the community (rather than in custody) whilst your matter is being finalised. The general position in Queensland is that everyone charged with a criminal offence should be granted bail unless they are considered an unacceptable risk.

If you were charged by way of a Notice to Appear, the question of your bail will be dealt with at the first mention of your matter. On this occasion, bail is usually granted without difficulty and on your own undertaking, although the Court can place conditions on a person’s bail (such as that they surrender their passport, report regularly to the police, have no contact with a particular person etc.). You will be required to acknowledge and sign your own bail undertaking after Court.

A breach of any condition of your bail, including the requirement to turn up to Court as and when required, can result in your bail being revoked, and you being remanded in custody until your matter is concluded, which could be a lengthy period. If you were to breach your bail then the Police could also charge you with additional criminal offences.

In determining whether you should be granted bail, the Court must consider section 16 of the Bail Act.

Section 16 of the Bail Act (Qld) states;

(1) Notwithstanding this Act, a court or police officer authorised by this Act to grant bail shall refuse to grant bail to a defendant if the court or police officer is satisfied—

(a) that there is an unacceptable risk that the defendant if released on bail—

(i) would fail to appear and surrender into custody; or

(ii) would while released on bail—

(A) commit an offence; or

(B) 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

(C) interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or

(b) that the defendant should remain in custody for the defendant’s own protection.

There are two different types of bail: watch house bail and court bail. Watch house bail may be granted to you by the police when you are arrested. Once you sign the bail undertaking the police will release you, and you bound to attend your next court date. If you do not, a warrant may be issued for your arrest.

A person can be granted court bail when they were refused watch house bail. In that situation, the person’s legal representation will make detailed submissions in court as to why that person should be released into the community while their matters are being dealt with by the courts. The person will need to prove that they are not an unacceptable risk to the community in the sense that they are not at a high risk of re-offending and are not at a high risk of fleeing the state or country.

Bail undertakings often have conditions such as;

  • Residential conditions;
  • Not to communicate or approach victims or witnesses;
  • Not to approach certain locations (such as the crime scene);
  • Surrender Passports;
  • Not to approach international points of departure (airports or seaports);
  • Surrender Passports
  • Reporting to the police;
  • Curfews;
  • Sureties;
  • Comply with Domestic Violence Orders;
  • Undertake Rehabilitation Courses.

If you do not comply with your bail conditions then you may be charged with a breach of bail offence. Such offences arise where a person who is on bail fails to appear at court or is charged with an indictable offence while being on bail for another offence. In this instance, a warrant will be issued for your arrest and you will be formally charged.

There are certain defences to a breach of bail, such as an emergency prevented the accused from reporting to the police station on time.

If the conditions of your bail are unsuitable to your employment, you may apply to the court to vary your bail. This involves providing the court with reasons as to why you are unable to comply with the current conditions of your bail, and proposing reasonable changes to be made.

You are only able to make one application to the court unless there is a change of circumstances. If your bail is refused then you can make an application to the Supreme Court of Queensland for bail.

Call an Expert

If you are charged with a criminal offence, it is very important that you seek immediate legal advice. Our team at Brooke Winter Solicitors can give you over the phone advice. We have a solid reputation as expert Criminal Lawyers and can represent you in court. Call us on 1300 066 669 if you have any questions. We can assist you no matter where you are located and can appear in every court.

As of 1 November 2021, the software on Queensland traffic cameras will be updated to allow new artificial intelligence (AI) to be watching Queensland drivers. The software will be determining if people are wearing their seatbelts and checking if drivers are using their mobile phones. 

The new camera upgrade comes with a tough new regime which will be targeting individuals who break the rules. Offenders will be looking at hefty fines of up to $1,000.00 and potential double demerit points as penalties for offences. 

The software will analyse the photo taken by the camera to search for illegal use of mobile phones, to determine if you are wearing a seatbelt and to ensure you are wearing the seatbelt correctly. Where an offence is detected by the AI, the image in question will be reviewed by an authorised Transport and Main Roads officer to ensure that the software has correctly identified an offence. Where no offence is detected, the image will be deleted.

There will be no longer be warnings issued to drivers who are caught using their mobile phone devices, instead heavy punishments of a fine for $1,033.00 and losing four (4) demerit points will be the penalty for being caught on your mobile phone. If you are caught without wearing your seatbelt or improperly wearing a seatbelt you will face a $413.00 fine and lose three (3) demerit points. Repeat offenders will be facing double demerit points for further offences which occur within a 12-month period. 

Urban and regional areas of Queensland will have portable and fixed mobile phone and seatbelt detection cameras installed to allow the AI software to be in use across the state. The cameras will take photos of each vehicle travelling in the lane of traffic that is being monitored. The photos will include the inside of the vehicle, mainly the front seats to allow for better detection of the offences. 

Our team specialise in criminal defence and traffic law. Our role is to sit down with you and work out the strategy that will get you the best possible result. If you have any questions about this article or any other topic of law, please call our team of experts on 1300 066 669.

Many Queenslanders are aware that by not following Public Health Directions you can be charged with a crime. But many are not aware of the current mask requirements in Queensland. With the changing requirements and easing of restrictions it can be confusing to be aware of what your obligations are. 

Under the Public Health Direction, Border Restrictions (No. 5) section 362D of the Public Health Act if a person fails to comply with a public health direction without a reasonable excuse they commit an offence with a maximum penalty of 100 penalty units being $13,700.00. An offence under this section of the Act is an infringement notice offence under the State Penalties Enforcement Regulation 2014.  Infringement notice offences can be enforced by an on-the-spot fine. 

On 8 October Health Minister Yvette D’Ath indicated that whilst you no longer have to wear masks at all times, you are required to carry one whenever you leave your home.  There continue to be mask restrictions in South East Queensland, namely: Ipswich, Logan City, Redlands, Sunshine Coast, Gold Coast, Noosa, Somerset, Lockyer Valley and Scenic Rim.  These restrictions are; you must carry a mask at all times in case you can’t socially distance (this includes outside if you cannot stay 1.5 metres away from people not from your household), you must continue to wear masks indoors unless you’re seated (however, for hospitality venues, masks only need to be worn for entry and exit), masks are to be worn at all times on public transport and in ride shares. 

Outside of South East Queensland you are not required to wear a mask if you have not been in a locked down area or impacted area, or do not reside in the same household as a person who has been in a locked down area or impacted areas. 

Masks are still required in airports on all domestic and international flights. 

Domestic violence is a vastly under reported crime. Of the women who have experienced violence from a current partner, 39% have never sought advice or support and 80% have never contacted the Police. But on average, one woman a week is murdered by her current or former partner. This must stop. 

The definition of domestic and family violence is extremely broad. It’s important to know the warning signs and effects of domestic and family violence, not just for you, but for our community. 

Domestic and family violence means behaviour by a person towards another person that:- 

  • Is physically or sexually abusive; or
  • Is emotionally or psychologically abusive; or

Examples:

  • Following a person when the person is out in public, including by vehicle or on foot;
  • Remaining outside a person’s residence or place of work;
  • Repeatedly contacting a person by telephone, email or social media without the persons consent;
  • Repeated derogatory taunts including racial taunts;
  • Threatening to disclose a person’s sexual orientation to family or friends;
  • Threatening to withhold medication
  • Preventing a person from keep connection with their family, friends or culture. 
    Is economically abusive;

Examples:

  • Coercing a person to relinquish control over assets and income;
  • Removing or keeping a person’s property;
  • Disposing of property or threatening to dispose of property without permission or lawful excuse;
  • Preventing a person from seeking or keeping employment;
  • Coercing a person to claim Centrelink benefits;
  • Coercing a person to signa power of attorney;
  • Forcing a person to take out a long or credit card, or to act as guarantee.
  • Is threatening;
  • Is coercive;
  • In any other way controls or dominates and causes fear for safety or wellbeing, either to yourself or someone else.

Domestic violence also includes the following behaviour;

  • Causing personal injury to a person or threatening to do so;
  • Coercing a person to engage in a sexual activity;
  • Damaging a person’s property or threatening to do so;
  • Depriving a person of their liberty;
  • Threatening a person with the death or injury of another person or animal;
  • Unauthorised stalking and surveillance of a person. 

This is not an exhaustive list of examples. If you or anyone you know is experiencing domestic and family violence our office can assist. Our role is to sit down with you and work out the strategy that will get you the protection you have a fundamental right to and deserve. 

If you have any questions about this article or any other topic of law, please call our team of experts on 1300 066 669.

The federal government has announced an ‘escaping violence payment scheme’, giving women fleeing domestic violence a one-time payment of $5,000.00. The payment is available nationwide from 21 October 2021 and is intended to help women who face financial barriers that prevent them from leaving violent relationships. 

To qualify for the payment women must have some evidence of domestic violence and must be facing financial hardship. Evidence of domestic violence can include a referral from a family and domestic violence service provider, a court order, a police report, or a domestic violence order (DVO). 

The payment will consist of $1,500.00 cash, with the excess going directly towards necessities to establish a safe home, including bond payments, school fees, and other goods and services. The payments will not be taxable or considered reportable income.

The payment is part of a 2-year trial and has been given a $144.5 million budget by the federal government.  

To apply for the payment, contact UnitingCare Australia.

Our team specialise in criminal defence. Our role is to sit down with you and work out the strategy that will get you the best possible result. If you have any questions about this article or any other topic of law, please call our team of experts on 1300 066 669.

Links

unitingvictas.org.au/escaping-violence-payment

45 year old Maria Power was arrested and charged with five counts of impersonating a medical practitioner. Power is the first person in Queensland to be charged with this offence in relation to providing false COVID exemptions. The exemptions allow persons to avoid undergo COVID testing, receiving the vaccine or wearing a mask in public. 

It is alleged that Power would charge $150.00 per exemption and issued over 600 exemption certificates. 

Power has a PhD however is not a registered medical practitioner. 

Power was charged under the Health Practitioner Regulation National Law. Amendments were passed in February of 2019 by the Queensland Parliament under the Health Practitioner Regulation National Law and Other Legislation Amendment Act 2019 (Qld) (the Act). The new provisions apply in all states and territories, but for Western Australia. 

Under the laws, anyone who calls themselves any ‘protected title’ such as a medical practitioner must be registered with the corresponding Board. 

It is a criminal offence to use a ‘protected title’, it is also an offence to knowingly or recklessly claim to be a registered practitioner or use language that may lead a reasonable person to believe the individual is a registered health practitioner.  The offence under Section 113(1) and (2) of the Health Practitioner Regulation National

Law Act 2009 holds a maximum penalty of $60,000.00 or 3 years imprisonment. 

Power is due to appear in the Southport Magistrates Court on 28 October 2021 in relation to these charges. 

Our team specialise in criminal defence. Our role is to sit down with you and work out the strategy that will get you the best possible result. If you have any questions about this article or any other topic of law, please call our team of experts on 1300 066 669.

Summary

As of 10 September 2021, those who are convicted of driving with a blood/breath concentration of 0.10 or more are subject to the Alcohol Ignition Interlock program. The program is performance-based with a minimum participation of 12 months. The first 8 months is considered a learning period, followed by a 4 month performance period. During the performance period participants interlock systems are monitored. If the interlock system detects alcohol, or there is a permanent lockout due to a missed scheduled service, the interlock provider will be notified, the 4 month performance period will restart, and time in the interlock program will be extended. 

High-risk drink driving offences

You need to participate in the interlock program if you commit and are convicted of any of the following offences:

  • driving under the influence of alcohol
  • drink driving with a blood/breath alcohol concentration of:
    • 0.15 or more
    • 0.10 or more (offences committed on or after 10 September 2021)
  • failing to provide a blood/breath specimen for analysis
  • dangerous driving while affected by alcohol
  • 2 or more drink driving offences within the 5 years.

From Friday 10 September 2021 there are 2 interlock programs with different requirements:

  • Performance-based interlock program
  • Time-based interlock program

You will be in the performance-based interlock program if:

  • you were convicted of a high-risk drink driving offence before 9 September 2021 and your licence disqualification ends on or after 9 September 2021
    or
  • you are convicted of a high-risk drink driving offence on or after 9 September 2021.

If you don’t participate you can’t drive for 5 years from the end of your disqualification (or the date you were issued a work licence).

You will be in the time-based interlock program if:

  • You were convicted of a high-risk drink driving offence before 9 September 2021 and your licence disqualification ended before 9 September 2021.

If you don’t participate you can’t drive for 2 years from the end of your disqualification.

Performance-based Alcohol Ignition Interlock Program 

In the performance-based program, your interlock use is monitored and data from your interlock will be sent to us. Your interlock data will need to show that all breath tests have been provided and returned ‘no alcohol’ readings, and that all scheduled interlock services have been attended—otherwise your time in the program will be extended.

How long am I in the interlock program?

You will need to be in the interlock program for a minimum of 12 months. You are eligible to participate from:

  • the day after your driving disqualification ends

or

  • the day a court grants you a restricted licence (work licence).

If you do not follow the rules your time in the performance-based program will be longer than 12 months.

If you choose not to participate in the performance-based program, you won’t be able to drive for 5 years from the end of your disqualification (or the date you were granted a work licence).

How to participate in the program

Under the performance-based program you have 2 parts to complete:

  • Learning period – the first 8 months of the program
  • Performance period – last 4 months of the program

To participate in the program, you must:

  • hold a current licence with an interlock condition (your licence must not be expired, cancelled or suspended)
  • only drive a nominated vehicle with an interlock installed
  • have a ‘no alcohol’ limit when driving
  • attend all interlock service appointments
  • not attempt to tamper with or bypass the interlock.

During your performance period your use of the interlock will be monitored. If your interlock detects alcohol, or you have a permanent lockout due to a missed scheduled interlock service, your:

  • interlock provider will tell us
  • 4-month performance period will restart (every time)
  • time in the interlock program will be extended.

Our team specialise in criminal defence. Our role is to sit down with you and work out the strategy that will get you the best possible result. If you have any questions about this article or any other topic of law, please call our team of experts on 1300 066 669.

Links

https://www.qld.gov.au/transport/safety/road-safety/drink-driving/interlocks

https://www.qld.gov.au/transport/safety/road-safety/drink-driving/interlocks/performance-based-alcohol-ignition-interlock-program

Are you facing a traffic law matter?

Our team specialises in drink driving charges, Special Hardship Order Applications, Restricted Work Licence Applications, log book offences and more. WE WILL COME TO YOU. We regularly appear in Magistrate Courts all over Queensland, New South Wales and Tasmania for traffic law matters.  

If you have been charged with an offence relating to a motor vehicle, it is highly recommended that you immediately enrol and complete a Traffic Education Program.  By completing a program it will allow our team to submit to the court that you have addressed the issue of rehabilitation.  This will be taken into consideration by the court for the purposes of a reduction on the penalty that you will otherwise receive, and also the issue of the disqualification of your drivers licence. 

Our role is to sit down with you and work out the strategy that will get you the best possible result. If you have any questions about traffic law matters or any other topic of law, please call our team of experts on 1300 066 669.

htpps://www.rateprogram.com.au

Next week the Queensland Government will be introducing a voluntary assisted dying bill into the state parliament. This bill could see a historic change in the current legislation if it is passed in the vote in September of this year.

Currently in Queensland it is illegal to assist in euthanasia and those who do could face manslaughter charges. Prosecutions of such cases are rare in Australia but are a real possibility that individuals could face if they were to assist in euthanasia in Queensland where it is still illegal.

Victoria is currently the only state in Australia that already has voluntary assisted dying legislation in place. Western Australia and Tasmania have passed bills to legalise voluntary assisted dying however they are still implementing the legislation.

The bill will be aimed at assisting those over 18 years of age who have an eligible condition that is expected to cause death within 12 months. There will be other specific requirements within the bill that will be required to be satisfied for an individual to be eligible for voluntary assisted dying including individuals having the capacity to make the decision.

Queensland Premier Annastacia Palaszczuk has stated that she is in support of the bill following her own personal experiences with her own family. It is well known that there is the split of views in regards to this matter within both the Government and the public. The Government have affirmed that all MP’s are free to cast a conscience vote based on their own beliefs.

Our team specialize in criminal defence. Our role is to sit down with you and work out the strategy that will get you the best possible result. If you have any questions about this article or any other topic of law, please call our team of experts on 1300 066 669.

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