This article is for general information only and should not be relied on for specific legal advice. The author will not be held responsible for any action that a person takes as a result of interpretation of the contents of this article. It is important to seek specific advice from a qualified and experienced lawyer for any legal problem.
What is Abuse of Office?
‘Abuse of Office’ is essentially an abuse of your power when you hold a position of influence in the public service. It is often a form of official misconduct where, when done in an official capacity, can affect the performance of official duties. An example could include an employee of Centrelink accepting gifts in order to fast track someone’s application.
The Law:-
Section 92 of the Criminal Code (Qld) 1899 states;
(1) Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of the person’s office, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour, and is liable to imprisonment for 2 years.
(2) If the act is done or directed to be done for purposes of gain, the person is liable to imprisonment for 3 years.
Elements of the Offence:-
It is the duty of the prosecutor to prove beyond a reasonable doubt that the Defendant has committed the offence. Every charge has a number of elements that the Prosecutor must prove beyond a reasonable doubt. For the charge of Abuse of Office the Prosecution must prove;
1. Defendant – The Prosecutor has to prove the identification of the offender;
2. The defendant was/is employed in the public service;
3. The defendant did an act or gives a direction to be done;
4. That act or direction was an abuse of the authority the Defendant had.
Maximum Penalty for Abuse of Office:-
The maximum penalty for this offence is three years imprisonment.
Convictions:-
In Queensland, if a person is convicted of Riot, then the court could impose one of the following penalties:
- Jail (suspended, parole or actual time);
- Intensive Corrections Order;
- Probation;
- Community Service Order;
- Fines.
The actual penalty will depend on the circumstances of the matter including the seriousness of the offence and the individual circumstances and background of the Defendant.
Possible Defences:-
There are a number of defences available to charges at law. Not every defence is available to every charge. You will need to seek specific legal advice to see if you have a defence available to you for this charge. Some of the common defences available in criminal charges are;
- Necessity;
- Mistake of Fact;
- Public Safety;
- Self Defence or defence of another person;
- Intoxication;
- Provocation;
- Accident;
- Duress;
- Compulsion;
- Insanity;
- Automatism
Which Court will your matter be heard in?
The charge of Abuse of Office will ordinarily be heard in the Magistrates Court in Queensland. The charge will be heard and determined by a Magistrate alone whether you plead guilty or not guilty. There is no jury in the Magistrates Court.
What should I do if the police want to speak to me about an Abuse of Office allegation or if I am charged with Abuse of Office?
You have the right to remain silent. You DO have to provide police with your name, date of birth and contact details. You should NOT answer any questions, make any statement or participate in any interview with the police. You should be polite to the officer but insist that you want to talk to your lawyer. You have the right to telephone a friend, relative or lawyer.
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.
