Australian attitudes towards gun laws are arguably much more sensible than those in the United States, where mass shootings and gun related violence are a common occurrence.  The rest of the world sees Australia, and the lessons learned from the Port Arthur massacre, as a leading example of why gun laws should be strengthened.   It is evident that the strengthening of gun laws in Australia has generally led to a downturn in gun related homicides and crimes, and since Australian gun laws were strengthened, no mass murders similar to Port Arthur have occurred since.

Despite this, gun laws and gun safety remain controversial topics in Australia and even Queensland.  Are gun laws too strict? Are they too lenient?  Who should be allowed to own a firearm?  And what about the rights of farmers, or other professionals who rely on their weapons for their livelihood?
While the restrictions on gun laws have undoubtedly decreased gun related deaths, the increased scrutiny on firearms applications and current firearms license holders means that even some responsible gun owners’ rights could be affected.  For instance, in Queensland, we have had clients receive warning letters from Weapons Licensing for merely accumulating a lengthy traffic history.
The Weapons Licensing Branch of the Queensland Police Service performs a vital, difficult, and sometimes dangerous job in maintaining community safety.   They also fulfil the important task of revoking weapons licences where licence holders pose a risk to public safety, or where they are no longer a fit and proper person to hold a licence.
If someone commits an offence, or is otherwise considered no longer to be a ‘fit and proper person’, their firearms license application or renewal could be denied.  If they are already license holders, their gun license can be suspended or revoked.  This is also true if they have contravened a condition of their weapons license.  It is not uncommon for a shooting club to report contraventions of weapons licenses to the QPS, since they generally have a duty to do so.
If you receive a letter from the QPS in relation to your Weapons Licence, you should obtain legal advice immediately.  It is important to obtain advice from a solicitor experienced in this area of law since weapons licensing matters are very different from most other licensing matters.  At Potts Lawyers, we have solicitors experienced successfully resolving weapons licensing matters.
One common mistake that people make is that they try to respond to these letters themselves, setting out that ‘they have a right to bear arms’ or that they will suffer from ‘hardship’ if their guns are taken away.  This approach to responding to a show cause notice typically fails.   Firstly, the legislation in Queensland makes it very clear that gun ownership is privilege and not a right.  Secondly, the legislation also makes it clear that one’s individual interests will not prevail over public safety, which is paramount.   Thirdly, another paramount object of the Act is to prevent the misuse of weapons, and so weapons related offences will be treated quite seriously.
There are also other types of offences which may disqualify persons from having weapons licences for extended periods of time.  Anyone who receives a suspension or revocation notice from the QPS should obtain legal advice immediately.
Responding to a show cause notice from the QPS is an extremely important step that should not be taken lightly.  It is always recommended that weapons holders get advice on this stage from a lawyer, since if the response given to weapons licensing is not adequate, appealing the QPS decision could be a very costly endeavour in QCAT.  By getting legal advice and assistance early, many gun owners can resolve the matter without the need for Tribunal or Court proceedings.
It is also important to note that each case is unique, and every case depends on its own facts.   For instance, has the weapons holder cooperated with the authorities?  What are the facts and circumstances surrounding the offence, or the reasons as to why their fitness has been called into question?  Does the licence holder have any other previous criminal history or weapons infringement allegations?  Is this an isolated incident or does the weapons holder repeat the same mistakes?  These, and many other considerations, are relevant to each matter.
Weapons licence holders in Queensland should always obtain advice and assistance from a lawyer experienced in weapons licensing matters so that the matter can be dealt with quickly and to maximise the chances of the matter leading to a successful outcome early, and avoiding QCAT proceedings which could be more costly.
If you have received a letter from the QPS in relation to your weapons licence, or a notice of suspension or revocation, you should get legal advice immediately.  We are highly experienced in dealing with a wide variety of weapons licensing matters.  Call us for a consultation today.
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1000 Partner visa application approvals each week and a very common problem
According to statistics published by the Department of Home Affairs, in the 2019 to 2020 financial year, 52,479 Australian Partner visa applications were lodged. That is about 1000 applications each week. 96,361 applications were in the pipeline at the end of June 2020, awaiting processing.
An article in the Medical Journal of Australia[1] explains that it is difficult to specify the incidence rate of family violence. The incidence rates depends upon the definition used; and whether the data comes from community crime victim surveys, community samples, or prevalence studies in clinical samples. The report states very simply:  It is now accepted that domestic violence is very common in Australia.
The problem is described as a complex pattern of behaviours that may include (in addition to physical acts of violence) sexual abuse and emotional abuse.
How many of the roughly 1000 Partner visa applicants per week will experience family violence at the hands of their Australian sponsors while awaiting the outcome of their visa application? We could not find reliable statistics. Even a low percentage adds up to a lot of people.
If a person is a Partner visa applicant experiencing family violence, they can feel trapped. They will feel concern about what will happen to their visa and wonder if they will be forced to leave Australia. They can feel depressed and anguish if their partner threatens to withdraw their sponsorship unless they capitulate and conform to demands. In addition to the suffering that an Australian citizen or permanent resident would experience in an abusive relationship, a Partner visa applicant will feel additional stress and concern relating to their immigration status.
If you or someone you know is a Partner visa applicant and in this sort of situation, please contact Potts Lawyers. We know how to help.
This article considers the family violence provisions in the Australian immigration legislation. The family violence laws differ from domestic violence provisions in other areas of law. We begin with the definition of relevant family violence in the Migration Regulations 1994. We then discuss the requirements that a Partner visa applicant would need to establish a legitimate claim of family violence. We explain the requirement to establish that the relationship was genuine and ongoing prior to break up. The family violence must have occurred during the course of the relationship (before the relationship ended). The different requirements of making judicially determined claims and non-judicially determined claims are then explained. The role of the Independent Expert is described. We conclude by stating what happens if a successful claim is made out – and what happens if it isn’t!
This article considers the point of view of a Partner visa applicant that is experiencing family violence by their Australian sponsor. The information provided here is general in nature. The laws are technical and complex. Partner visa applicants experiencing family violence should contact us for legal advice specific to their particular circumstances. We provide initial consultations at no cost.
 
 
The definition of relevant family violence in the Migration Regulations 1994
Division 1.5 of the Migration Regulations provides for the Special provisions related to family violence. That part of the law explains the requirements for making out a successful claim of family violence. It begins with definitions.
A mere claim that a relationship has broken down and that the victim has experienced family violence is not sufficient to make a successful claim of family violence. The alleged victim will need to prove that family violence has occurred and that the situation meets the definition of relevant family violence.
Paraphrased, relevant family violence occurs when conduct, whether actual or threatened, causes the alleged victim (or one of their family members) to reasonably fear for, or to be reasonably apprehensive about, their wellbeing or safety.
There is no requirement that the relationship broke down because of family violence.
The first requirement that a Partner visa applicant would need to establish
Let’s assume that a Partner visa applicant feels apprehensive about their wellbeing because of conduct by their sponsor. What do they need to do first?
Before an assessment of the claims made under the family violence provisions, the decision maker must first assess whether the couple were in a genuine and continuing partner relationship up until the relationship ceased. That means that the visa applicant will need to establish that the relationship met the section 5F (spouse) or the section 5CB (de facto partner) definition in the Migration Act 1958 prior to the end of the relationship.
The family violence must have occurred while the relationship existed.
The visa processing officer has the right to interview the visa applicant to access the legitimacy of the relationship.
After the visa processing officer has determined that the relationship was not contrived but an authentic relationship that was genuine and continuing up until the point of the breakdown, the assessment of family violence can begin.
Judicially determined claims and non-judicially determined claims
The visa applicant can make out two different types of family violence claims: judicially determined claims and non-judicially determined claims.
Judicially determined family violence claims
Judicially determined claims are easier for the visa applicant to substantiate. A Court will have had the opportunity to consider the merits of a claim and determine whether family violence has occurred. The alleged perpetrator will have had their opportunity to put forth their case and respond to allegations.
The departmental decision maker will check the veracity of the court documents, which include Court Orders; a Court Injunction under the Family Law Act; or a conviction or finding of guilt against the alleged perpetrator. Some Court Orders are not accepted. Examples include bail orders, and orders made ex parte.
It would be possible for a victim to begin the process using a non-judicially determined claim and later switch to judicially determined claim. If that happens, the judicially determined claim would take precedence.
Non-judicially determined family violence claim – Joint Undertaking
The process for making a non-judicially determined claim is more complicated and the explanation provided here is simplified. There are two different methods of establishing a family violence claim under this category. One method involves making a joint undertaking before a Court. The alleged perpetrator and the alleged victim engage in proceedings before the Court that the perpetrator has committed an act of violence against the victim.
Joint undertakings do not involve a ‘finding’ on family violence by a magistrate or judge based on contested evidence. They are merely court-sanctioned agreements by parties to act in certain ways.
States and Territories have different rules about how joint undertakings are accepted. The decision maker will need to ensure that the undertaking has been made to a Court in the manner required by that State or Territory.
In most cases where a properly made joint undertaking has been submitted, there would be no reason for a decision maker to doubt the version of events described in it. It is, however, open to officers to refer a case where a joint undertaking that conforms to the Court’s rules has been presented if, after considering all relevant evidence, they are not satisfied that the person can be taken to be the victim of family violence.
Non-judicially determined family violence claim – Statutory Declaration with Prescribed Documents
Statutory declaration
The other method of establishing a family violence claim under this category requires the submission of a statutory declaration and prescribed documents. The victim will need to make a statutory declaration that meets precise requirements.
The statutory declaration from the victim must include an allegation of family violence that meets the definition of relevant family violence as defined in the Migration Regulations 1994. Relevant family violence is not limited to physical harm. It also includes other forms of abuse such as psychological and financial abuse, consistent with the definition in the legislation.
Prescribed documents
In addition to the statutory declaration, the visa applicant will also need to provide at least two documents that are prescribed in a legislative instrument. The prescribed documents must come from different fields, but only one of each type can be submitted.
There are eight different categories that are suitable for the prescribed documents. A medical practitioner or a registered nurse can make a medical report, hospital report, discharge summary, or a statutory declaration. A Police Officer could provide a report, a record of assault, a witness statement, or a statutory declaration. A Women’s Refuge or a Family/ Domestic Violence Crisis Centre can make a letter or assessment report on their letterhead. A member of the Australian Association of Social Workers (or a person that meets the membership requirements) who has provided counselling or assistance to the victim can make a statutory declaration. A registered psychologist who has treated the victim can make a statutory declaration. A Family Relationship Counsellor or a Family Consultant appointed under the Family Law Act can make a statutory declaration. If the family violence includes children, then a report by an officer of a child welfare authority can be used. A statutory declaration or a letter on school letterhead made by a school counsellor or school principal in their professional capacity is also suitable.
Some evidence carries more weight than others
If a letter or statutory declaration expressing an opinion that family violence has occurred has been provided by a professional, officers take into consideration the history of the treatment in determining how much weight to attribute to such an opinion. A psychologist or social worker who has been treating an alleged victim over an extended period may have a stronger understanding of the situation. Similarly, a family relationship counsellor who jointly counselled a couple may have a more complete picture of the alleged family violence.
If there is evidence that a professional, like in the examples above, has an extensive and intimate knowledge of the relationship, the letters or statutory declarations may be given significant weight.
Evidence from an expert in matters of family violence should be given significant weight.
Other evidence including testimonials from friends may also be submitted (but only if the threshold requirements are met). Evidence by objective, official, and credible sources will be given more weight than more subjective forms of evidence such as letters and testimonies from friends and relatives.
Officers should consider whether the evidence provided conflicts with any other relevant information.
Referral to an Independent Expert
If the decision maker is satisfied that threshold requirements are met but not satisfied that the claim of family violence has been established, they will refer the claim to an Independent Expert. Independent experts are properly qualified people employed by LSC Psychology (the agency specified by legislative instrument for the purpose of assessing family violence claims).
If the decision maker sends a file to an Independent Expert for assessment and they determine that family violence has not occurred, they will provide the visa applicant the opportunity to comment on any adverse information that was relevant to their decision. If, after giving the opportunity to comment, the Independent Expert is still not satisfied that sufficient evidence has been provided to satisfy the definition of relevant family violence, they will send the department their finding. The department will consider this “adverse information” and give another chance to comment. If a response is received within the prescribed period, the officer must determine whether the new information includes a recent change in circumstances or any other information that has not already been provided to the department that may be relevant. The will then pass the new information to the Independent Expert for further consideration.
The consequences of making a successful (or unsuccessful) family violence claim
If a claim of family violence is successfully made out, the decision maker will continue assessing the Partner visa application against the other eligibility criteria. They will (for example) ask the applicant to take medical assessments and to provide police clearances.
Ultimately a decision will be made whether the visa applicant has made out a successful claim of family violence and also meets the other criteria for grant of the visa. If the decision maker comes to that conclusion, the application will be approved. The applicant will become an Australian permanent resident.
If on the other hand, the family violence claim is unsuccessful, a review of the application with the Administrative Appeals Tribunal may be lodged. The Tribunal Member will review the decision and consider all the information put before it. They will make a fresh decision on the information they have in front of them. They have the ability to overturn the decision made by the Family Violence processing unit and remit the application back to the Department of Home Affairs for continued processing.
Conclusion
That family violence is a common problem in Australian is beyond dispute. Partner visa applicants experiencing family violence suffer not only from the consequences of the family violence but also feel additional pressure and concern about their immigration status.
A Partner visa applicant experiencing a relationship breakdown and family violence would first need to establish that they were in a genuine and continue relationship before the breakdown. They need to prove that family violence occurred while the relationship was in place.
A decision must be made whether to rely upon judicially determined family violence provisions or non-judicially determined family violence provisions. If they go to Court, the visa processing officer can rely upon the assessment made by the judge. If they choose to provide evidence of non-judicially determined family violence, they will need to decide whether to provide evidence of making a joint undertaking, or whether they will provide a statutory declaration and prescribed documents. Non-judicially determined claims might be further assessed by an Independent Expert.
The legislation and policy covered in this post aim to simplify very complex immigration law provisions. The information provided here should be considered general advice and not immigration assistance or immigration advice.
If you or someone you know is an Australian Partner Visa applicant that is experiencing family violence, please ask them to discuss their circumstances with us so that we can provide further and customised advice. Contact Craig DoRozario (Director and Immigration Lawyer) or Tom Foran (Immigration Lawyer) from Potts Lawyers for assistance.
[1]  https://www.mja.com.au/journal/2000/173/7/domestic-violence-australia-definition-prevalence-and-nature-presentation published online 4 November 2020.
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Disciplinary Matters: Common Health Service Complaints to the Office of the Health Ombudsman Queensland
The Health Ombudsman Act 2013 (Qld)(“the Act”) provides the Office of The Health Ombudsman (“OHO”) with statutory power to manage and deal with health service complaints.
The Act provides OHO with a range of statutory powers to manage and deal with health service complaints. This can include requiring a subject of a health service complaint to provide submissions to OHO, performing its own investigation into the subject of a health service complaint, or commencing Court disciplinary proceedings against the subject of a health service complaint.
Everyone and anyone can make a health service complaint to OHO about a health service practitioner or organization. A health service complaint could be made directly to OHO or may be referred from another statutory regulator such as, the Australian Health Practitioner Regulation Agency (‘AHPRA’).  If a matter is referred to OHO, it may still constitute a health service complaint.
This article is general in nature and should not be construed as or relied on as legal advice. The contents of this article is intended to provide the reader with a general overview of OHO’s statutory powers under the Act.
If you have received any correspondence from OHO or from AHPRA, it is important that you seek legal advice as soon as possible to comply with strict statutory timeframes which may apply and regardless of whether you are the complainant or the subject of a health service complaint. You may wish to contact one of our highly experienced and skilled Litigation Lawyers on 07 5532 3133 to discuss how we could assist you with your matter.
Brief Overview of the Complaints Process
Upon receiving a health service complaint, OHO has 7 days to decide how to proceed with the complaint. In those 7 days, OHO must decide to either:

accept the complaint and take particular “relevant action” in accordance with the Act;
accept the complaint and take no further action; or
not to accept the complaint and give notice to a complainant about this.

It is important to note that if OHO decides to not accept a complaint, then this does not simply mean that the complaint will go away and that no action will be taken against the subject of the complaint.
Similar to how OHO may receive a referral from another statutory regulator, OHO may decide to take no action because they are referring the matter to another statutory regulator who is in a better position to deal with the nature of the complaint.
This is why it is crucial to obtain legal advice as soon as possible if you have received any correspondence from OHO or AHPRA to ensure that any risks are discussed with your legal representative and are appropriately and skillfully managed.
What “Relevant Action” Could the Ombudsman Take?
Section 38 of the Act provides an exhaustive list of the relevant actions that OHO man take.
Commonly, OHO make take the following “relevant action”:

assess a health service complaint by inviting the parties to provide submissions within a stated period of time or require the parties to provide stated information within a stated period of time;
local resolution of a health complaint;
taking immediate action against a registered health practitioner; and
if a health service complaint is about a health practitioner refer the matter to the Director of Proceedings in OHO for decision about whether to refer the health service complaint to the Queensland Civil Administrative Tribunal for disciplinary proceedings;
refer a health service complaint to the National Agency or another government regulator in Queensland or in Australia;

Assessment of Health Service Complaint
OHO may deal with a health service complaint pursuant to Part 5 of the Act. This allows OHO to obtain and analyze information relevant to a health service complaint to determine the appropriate way to deal with a health service complaint.
OHO may invite the complainant or the relevant health service provider to give submissions to OHO.  If the submissions are provided to OHO within the stated period, OHO must consider the submissions in making its decision.
OHO may also give notice requiring the complainant, the relevant health service provider or any other person to provide stated information to OHO within a stated period. Penalties may apply for a person who does not provide stated information within the stated period.
Powerful and persuasive submissions can drastically change an expected outcome of a health service complaint, and may be the deciding factor in any given health service complaint. Our Litigation Lawyers at Potts Lawyers are highly experienced and skilled with assisting clients in providing detailed submissions to statutory authorities and have had great success in resolving matters of this nature.
Following any consideration of submissions, OHO will have 30 days to carry out an assessment of a health service complainant after it gives notice to carry out the assessment.
Once the assessment is complete, OHO must decide to either:

take particular relevant action to further deal with the health service complaint; or
take no further action in relation to the health service complaint.

Local Resolution of a Health Service Complaint
Part 6 provides a similar process to Part 5 of the Act for OHO to deal with health service complaints, albeit in a local resolution setting. The objective in holding a local resolution is to resolve a health service complaint about a health service provider as quickly as possible with minimal intervention by OHO.
Similar to OHO’s powers mentioned above under Part 5 of the Act, OHO  may invite the complainant or the health service provider to give submissions to OHO, and may, by giving notice, require the complainant, the relevant health service provider or any other person to provide stated information to OHO within a stated period. Penalties may also apply for a person who does not provide submissions within the stated period.
Following any consideration of submissions, OHO must try to resolve the health service complainant within 30 days after deciding to try local resolution.
If the health complaint is not resolved, OHO must decide to either:

take particular relevant action to further deal with the health service complaint; or
take no further action in relation to the health service complaint.

As mentioned above, having powerful and persuasive submissions may drastically change the outcome of a health service complaint. Regardless of whether OHO is relying on the provisions under Part 5 or Part 6 of the Act, and regardless as to whether you are the complainant or the subject of a health service complaint, we recommend that you seek legal advice as the importance of strong submissions should be valued and never overlooked.
Immediate Registration Action
Under the Act, OHO can take immediate registration action in relation to a registered health practitioner’s registration with AHPRA by suspending, imposing conditions on the practitioner’s registration.
Section 58 of the Act provides circumstances where OHO may take immediate registration action against a registered health practitioner. The most common circumstance being where OHO reasonably believes that a practitioner’s health, conduct, or performance poses a significant risk to persons and is necessary to protect the public health or safety.
If OHO decides to take immediate registration action, OHO is required to give a health practitioner notice by stating the proposed action and inviting the practitioner to make submissions within a stated period of time. However, OHO is not required to make such a proposal if it is satisfied that it is necessary to ensure the health and safety of an individual or the public, but must still invite the practitioner to make submissions to OHO within a stated period.
If you have received a letter from OHO about proposed immediate registration action, you should obtain legal advice immediately and without any delay.
In these circumstances, it is absolutely crucial to obtain legal advice from experienced and skilled lawyers and have them draft submissions to OHO which are designed with the ultimate goal of having OHO end the immediate registration action (whether proposed or not proposed).
Should OHO consider it necessary to proceed with any immediate registration action despite receiving submissions, the Act stipulates when the decision of OHO in relation to the immediate registration action will take effect from.
OHO’s decision will continue to operate until either the Queensland Civil Administrative Tribunal (“QCAT”) sets OHO’s decision aside or if OHO revokes the suspension or removes the conditions in relation to the practitioner’s immediate registration action.
As such, if the Board has confirmed its decision to take immediate registration action against a practitioner, then the health practitioner can file an application in QCAT to have OHO’s decision reviewed. Time limits may apply in relation to such an application and it is important to seek legal advice about this as soon as possible.
Our highly experienced and skilled Litigation Lawyers regularly appear in QCAT can assist at any stage of a QCAT proceeding. Of course, it is in the parties interests to avoid a matter going to QCAT and to have the matter resolved with powerful and persuasive submissions.
Unfortunately, in some cases this may not be possible, and if this is the case, any submissions provided to OHO which it is required to consider may improve a health practitioner’s application in QCAT and the overall prospect of success.
This is why we recommend and encourage the importance of engaging a highly skilled and experienced lawyer as early as possible with a view of resolving a matter at the submission stage as there are clear benefits for all parties involved.
Referral to the Director of Proceedings
OHO has discretion to refer a health service complaint or matter relating to health services to the Director of Proceedings, which is a statutory position within OHO. The Director of Proceedings must either then refer the matter to QCAT or back to OHO. The Act provides certain requirements that the Director of Proceedings must consider if the matter is referred to QCAT.
Referral to Other Statutory Regulator or Government Agency
OHO may receive referrals from another statutory regulators or government agency, or OHO may decide to refer a health service complaint to another statutory regulator or government agency.
For example, OHO may refer matters to:

the Queensland Police Service;
the Crime and Corruption Commission;
the Australian Health Practitioner Regulation Agency (AHPRA); or
any other State or Commonwealth Government.

The above statutory regulators or government agencies commonly refer matters to OHO.
As discussed above in this article, it is important to note that if you receive any correspondence from another statutory regulator or government agency that they will be taking any further action, this does not simply mean that the matter will go away as the matter could be referred to a different statutory regulator or government agency.
Conclusion
As discussed above, OHO have a wide range of powers under the Act. We appreciate that this can be a stressful time for some more than others, but you do not have to navigate through this process by yourself.
if OHO invites a party to provide submissions or requires stated information, or if OHO decides to commence or has commenced disciplinary proceedings in QCAT, then there are many clear benefits in having an highly skilled and experienced lawyer assist you with this.
Please feel free to contact us on 07 5532 3133 to speak with one of our Litigation Lawyers who may be able to assist you. This article has given a general overview of the common powers that OHO can rely upon after receiving a health service complaint. Because this article is general in nature it should not relied on or construed as legal advice as it does not take into account the particular circumstances of a matter.
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Potts Lawyers Awarded as a Leading Criminal Law Firm by Doyle’s Guide 2020
Managing director, Rob Franklin is pleased to announce that Potts Lawyers has again been recognised by the prestigious Doyle’s Guide as a “first tier” leading criminal law firm in Queensland.
Director Bill Potts has been named as a leading criminal lawyer whilst director Cameron Browne, Mark Williams and Erin Mitchell have been named as a recommended criminal lawyers.
Andrew Hanlon has been announced the criminal law rising star and the firm has also been recognised as the Leading Traffic & DUI defence lawyers in Queensland.
It is heartening to see that amongst the total of 26 criminal lawyers listed for Queensland, more than a quarter have spent several years working in our practice.
The Doyle’s Guide recognises top Queensland Criminal Lawyers who have been identified by clients and peers for their expertise and abilities in these areas.
The content within the Doyle’s guide listing of best firms and lawyers is compiled on the back of initial online peer-based surveys as well as extensive telephone and face to face interviews with clients, peers and relevant industry bodies.
Check the full listings below:
https://doylesguide.com/leading-criminal-defence-lawyers-queensland-2020/ 

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Firstly, it’s important for our clients to know that we are their lawyers. We’re not the judge, we’re not the jury. So we are not going to be judging a person who is in those sorts of difficulties often in a society that doesn’t understand what they’re doing or why they’re doing it doesn’t understand how they got to be in that dark place, and need to understand that there is a way out of it. And often, that means giving some form of psychiatric or psychological assistance for sometimes it means explaining to quite often a client who is abusing alcohol or drugs and is deeply depressed, that what they’re doing is in fact, just another form of self destruction. So we’re not social workers. We’re not doctors, but much of what is good about being a good criminal lawyer is understanding people. And that’s what we do in spades.
– Bill Potts – Potts Lawyers
Our founding director Bill Potts brings to Potts Lawyers a breadth of criminal law experience derived from a successful career spanning more than three decades. His professional values are the touchstone which now guides our team of criminal law advocates. Bill sees his role as that of ally, navigating a path for his clients through the enormous stress of a criminal investigation or prosecution. That role takes him all round the country and to all courts from the Magistrates to the High Courts, defending clients charged with the most serious of offences. A sample of his cases  are listed in the media section of this website.
 
Call us today for a free case review today.
If you have been charged with a criminal offence and need representation or are after some advice please call us today on (07) 5532 3133 so we can help you.
24 hour crime line: 0488 999 980 OR 1800 476 887
Gold Coast Criminal Lawyers 
44 Davenport St, Southport
(07) 5532 3133
Brisbane Criminal Lawyers 
Level 1/420 George Street Brisbane
(07) 3221 4999
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At the beginning of this year, I became a founding member of the Queensland Law Society’s Diverse Abilities Network.  As a solicitor with disability, being legally blind with low vision, I represent persons with disability in the Queensland legal profession.
In this position, I also work collaboratively with the Queensland Law Society’s Equity and Diversity Committee.  The aim of the network is to:

address accessibility issues within the legal industry;
seek greater diversity and inclusion within the profession;
advocate equal opportunity and
provide a support network for practitioners with disability accessibility, discrimination or human rights issues.

With a view to destigmatising disability and creating an awareness of our diverse abilities, we have published various articles in the Queensland Law Society’s Procterpublication, together with an Accessibility Guide which contains a list of simple measures that may greatly assist people with disability who frequent or visit legal practitioners and law firms, or event physical and virtual events..
‘Nothing about us, with us’is a phrase widely distributed amongst the disability community which champions disability rights, and provides that no policy should be decided by any representative without the full and direct participation of people with disability.
This week, I have been very fortunate to be consulted by the Queensland Law Society on proposed submissions to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.
It has been a privilege to be included in the submission process as a lawyer with disability, and offer my lived experiences and suggestions for much needed policy reforms.
I look forward to future collaboration with the Queensland Law Society’s policy solicitors as the Diverse Abilities Network continues to propose responses to the Royal Commission Issues Papers, based on our personal experiences as lawyers with disability.
It has been a very cathartic process, and I am hopeful our contributions will help develop new policies and lead to real change within the wider community.  Most particularly, we wish to destigmatise disability, create awareness of our diverse abilities and beneficial contributions to society, champion disability inclusion, and promote equal opportunity for people with disability in all aspects of life.
Last week, the Queensland Law Society shared my introductory video in relation to the Diverse Abilities Network.  I wish to personally take this opportunity to invite you to connect with me should you have an injury, impairment, or disability. Likewise, if you simply wish to discuss disability or human rights, or how you may assist as an ally to persons with an injury, impairment, or disability, please contact me.
You can view my short introductory video here:
https://www.linkedin.com/posts/queensland-law-society_diverse-abilities-network-meet-ashleigh-activity-6702376403553333248-dANj
https://www.facebook.com/qldlawsociety/videos/1019244095206364/
 
 
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On 31 August 2020, changes were made to the Blue Card system which all Blue Card applicants and Blue Card holders should be aware of.

The “No Card, No Start” law
The Blue Card system now states that applicants will be unable to work of volunteer in a position which requires a blue card until their application is approved.  Previously, applicants were permitted to begin work which requires a Blue Card whilst their application was being processed.
New Rules for Blue Card Expiring
The new rules also state that if you do not renew your blue card by the expiry date, you will not be permitted to work or volunteer in your role which requires a Blue Card (in other words, you will be subject to the “No Card, No Start” law, and you will be unable to continue that work or volunteer work).
A Requirement to Notify Blue Card About a Change in Your Police Information
This is not necessarily a new requirement, but the process has changed, and new penalties apply.  All Blue Card applicants and card holders are now required to notify Blue Card directly in relation to changes in their police information.
Penalty for Failing to Disclose a Change in Police Information
The maximum penalty for failing to report a change in your police information is 100 penalty units, which is $13,345 as of 1 July 2020.
What is “Police Information?”
Police information incudes convictions, and even mere charges for an offence where a person is still innocent until proven otherwise.
Police information also includes a wide range of other situations, including but not limited to:

some police investigations (before a person is charged);
being subject to a disqualification order;
being a respondent in a Child Protection matter generally; and
becoming subject to reporting obligations under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004;

becoming subject to a child protection offender prohibition order under theChild Protection (Offender Reporting and Offender Prohibition Order) Act 2004.

Blue Card applicants and holders should obtain legal advice immediately on whether a reportable incident has occurred to avoid the possibility of facing hefty fines.
New “Change In Police Information” Form
A new “Change in Police Information” form has been released by the Department.  The form must now be submitted directly to the Department instead of your employer, organisation, or education provider.
The form does not require the applicant or Blue Card holder to specify what the change in police information is, since the department already has wide ranging powers to search for any new charges or convictions against an applicant or blue card holder.
Change in Notification Process
As set out above, the “Change in Police Information” Form now must be submitted directly to Blue Card Services instead of your employer, organisation, or education provider.
It is no longer a requirement for employers to notify Blue Card services when they become aware of an employee’s change in police information.
Blue Card Services will then only notify your employer, organisation, or education provider if the change is relevant to the child related employment.  If the offence is considered “serious” under the Act, this is likely to occur.
Blue Card applicants and cardholders should obtain advice on what “serious offences” and “disqualifying offences” include under the Act, and the difference between the two.
What if my employment contract has existing reporting requirements?
Existing workplace requirements for employers to report changes in criminal or police histories remain in place, unchanged. For instance, if your employment contract states that you need to report a drink driving charge, that reporting obligation to your employer likely still applies.  If you are unsure, you should obtain legal advice on your contractual and common law duties to your employer in that regard.
New Frequency Test
A person may not need a Blue Card if the regulated child-related work is not frequent.  If the work involves not more than 7 days of work in a calendar year, you may not need a blue card.
All applicants and Blue Card holders should obtain legal advice on this test since:

merely 2 hours of work can count as a “day” of work;
since this rule also applies to volunteers and students doing practical placements; and
restricted persons and business operators cannotrely on the new “frequency test”.

New “Restricted Person” and “Restricted Employment”
A restricted person is a person who either:

has been issued a negative notice
has a suspended blue card
is a disqualifiedperson
has been charged with a disqualifying offencethat has not been finalised.

Restricted employment refers to the situations or exemptions that allow a person to work with children without a blue card, such as if they are:

a volunteer parent
a volunteer who is under 18
paid or unpaid staff who work in regulated child-related employment for not more than 7 days in a calendar year
a consumer at a child-related service outlet where they also carry out work at the outlet.

A child-related service outlet is a place where disability services are provided to children.
Applicants and Blue Card holders should obtain legal advice immediately if there has been a change in their police history, since substantial penalties apply to restricted persons continuing with restricted employment (see below).
Maximum fines  of up to $66,725 (500 Penalty Units as of 1 July 2020)
If you are a restricted person, and continue working or volunteering in restricted employment, you could face fines of up to 500 penalty units ($66,725 as of 1 July 2020).
Many other new offences and penalties have also been introduced.  Anyone who has had a change in their police history and who holds a blue card (or who is applying for a blue card) should obtain legal advice immediately, even if they are unsure as to whether a requisite event has occurred.
Claims of “Faster” Approval Times
Previously, many clients have reported to Potts Lawyers that their applications took months to be processed.  In some cases, Blue Card holders received show cause letters from the Department once a change in police history was reported, and some of those matters took years for the Department to resolve.
In response to the delays experienced by many, the Blue Card application and renewal process is now fully online.  The department claims that this will lead to faster approval times for most applicants.
It is too early to ascertain whether this promise will be fulfilled.  The supposed ‘streamlined process’ by the department is too new, and so it may take months or even years before we have a clear indication of whether this new process will lead to shorter wait times for applicants and card holders.
If your application, renewal, or dispute in relation to your Blue Card has been unreasonably delayed by Blue Card Services, you should contact Potts Lawyers so that efforts can be made to speed up the process, where possible.
Conclusion
Potts Lawyers is highly experienced in assisting both Blue Card holders and applicants in a wide range of matters.
Each person’s circumstances are unique, and each case depends upon the facts.  Potts Lawyers recognises that for many individuals, a Blue Card is required for a person’s livelihood, and may be their only source of income.
This article is merely a brief overview and the many changes implemented to Blue Card starting 31 August 2020, and is not an exhaustive list of all the changes.   To obtain accurate advice which is tailored to your specific situation, you should obtain legal advice.
In circumstances where a person has (or thinks they might have) a change in their police information, they should seek legal advice immediately and on an urgent basis to avoid the possibility of large fines.
In order to have your interests protected to the fullest extent possible with respect to your Blue Card, call Potts Lawyers for a free consultation today.
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Hannah Clarke’s parents call for stronger domestic violence laws six months after horrific murders
 

Six months on from the shocking murders of Hannah Clarke and her three children, domestic violence advocates are calling for coercive control and petrol dousing to be established as offences in Queensland.Ms Clarke, 31, and her children, Aaliyah, Laianah and Trey, were murdered in Brisbane’s Camp Hill after her estranged husband Rowan Baxter ambushed them on the morning school run on February 19.
Baxter, doused them with petrol and set the car alight before he died of self-inflicted stab wounds nearby.
The three children — aged, six, four and three — died in the car, while Ms Clarke died later that night in hospital from horrific burns to most of her body.
Before she died, at the scene of the car fire, Ms Clarke walked towards first responders and told them what Baxter had done.
Her mother, Sue Clarke, said she wanted her daughter remembered as a warrior who fought for her children until the end.
Hannah Clarke’s mother Sue says nothing will ever heal the wound of their loss.(Facebook)
“She didn’t know he had passed at that stage and she would have made sure he paid for what he’d done to her children,” she said.
“[She was] a loving mother, a strong woman and someone who put others’ needs before her own — a fighter, a warrior.
“They say time heals and makes things easier. It doesn’t — that’s a lie.
“They [the children] were gorgeous, so full of life and they had a lot of potential.”
Charity to shine light on coercive control
In the wake of the deaths, there has been an outpouring of grief and anger over the failure of the nation’s domestic violence system to protect families.
Sue and Lloyd Clarke have worked with friends to establish the Small Steps for Hannah Foundation in a bid to educate the community about domestic violence and raise funds for the sector.
Mr Clarke said he hoped the foundation would help perpetrators, victims and bystanders to better understand and eliminate controlling behaviour and violence in personal relationships.
There has been a spike in dousing attacks on women since Hannah Clarke’s murder, according to the Women’s Legal Service.(Facebook)
“I just felt so helpless … that I didn’t see the red flags, so I wasn’t there to help my baby,” he said.
“Perpetrators are still human. Maybe if we can get into their minds and find out why — why they need to go so far with this — and be able to turn things around.
“And look at educating the 14 and 16-year-olds, and let them know there are other choices, you don’t have to be like Mum or Dad, or how they react. There are other choices out there to be made.”
Sue Clarke said she wanted coercive control — behaviours used by perpetrators to assert emotional, psychological, and financial control over their victims — prohibited by law in Queensland.
Hannah Clarke did everything she could
Women and children will continue to be killed by abusers who believe they are above the law unless governments take urgent action, experts have warned.
Read more
“There’s a lot of little things we didn’t realise at first was coercive control,” she said.
“He [Baxter] would sulk and not speak for days, he would threaten to kill himself, go through her phone, go through her handbag.
“She would lock up the gym and he would ring within 10 minutes saying, ‘Where are you? You should be at this point by this time.’
“We will rewrite the ending for other people.”
Queensland Premier Annastacia Palaszczuk said the State Government had implemented all the recommendations from the Not Now, Not Ever report into domestic violence, but did not rule out further changes to current laws.
“It was absolutely horrific what happened to Hannah and her children,” the Premier said.
“I went to the funeral, it was awful. We don’t want to see that happen again.
“We have some of the strongest, most robust laws in the nation.
“If we can do, of course we will look at doing more.”
Call to make petrol dousing an offence
Women’s Legal Service Queensland (WLSQ) CEO Angela Lynch said there needed to be a review of the criminal justice system in relation to domestic violence to better capture patterns of offending.
“We know that the Not Now, Not Ever report had to be done in a very quick turnaround of about six months, so it didn’t have the opportunity to really consider the criminal code in the full extent,” Ms Lynch said.
“We’ve called for the Attorney-General to undertake a review to ensure accountability of perpetrators of domestic violence.”
Angela Lynch says police may not take action for petrol dousing under current laws.(ABC News: Julie Hornsey)
Ms Lynch said WLSQ also wanted petrol dousing — the act of dousing someone in an accelerant and threatening them with an ignition source — to be introduced as a new offence in Queensland.
“Some violent men have been making that threat of, ‘You’re going to end up like Hannah’ … and in other contexts the perpetrator will douse the victim or the property in petrol, have a lighter and be threatening to kill them,” she said.
“Victims have told us they felt that their lives were in the hands of the perpetrator, they’ve suffered post-traumatic stress as a result of that threat, so it has a severe and lifelong impact.
Ms Barker says police regard petrol dousing as a grey area in domestic violence cases.(ABC News: Curtis Rodda)
“If there’s actually a petrol-dousing offence, it means that the victims have much more steady ground to work from in relation to advocating actual criminal action being taken.”
Domestic violence victims’ advocate Jacqui Barker also backed calls for a petrol-dousing offence, saying offenders were often only charged if they actually set someone alight.
“Dousing someone in petrol is a deliberate act that is intended to terrorise a victim,” she said.
“In the context of domestic violence, that act would have to include even just the bringing of an accelerate into a home because that is in itself a threat.
“It would need to include the actual act of dousing and then it would have to include aggravating factors — for example, having a weapon like a lighter.”
Jacqui Barker also backed calls for a petrol-dousing offence.(ABC News: Rachel Riga)
Coercive control laws would be considered
Minister for the Prevention of Domestic and Family Violence, Di Farmer, said the Palaszczuk Government had invested more than a half-a-billion dollars to support family violence services.
“I know this is a terrible day for the family and friends of Hannah Clarke and her children, and extend my sincere condolences,” she said.
“I am aware of calls for a new coercive control offence and the diversity of views on this matter.
“It’s something that may be considered but any changes we do make need to be based on evidence and wide consultation.”
Chair of Our Watch, Natasha Stott Despoja, said the Clarke family provided the most compelling case for governments to consider criminalising coercive control.
But Ms Stott Despoja acknowledged the difficulties in legislating on the issue.
“There are concerns about definitional issues to do with coercive control,” Ms Stott Despoja said.
“Coercive control, if it was legislated in a way, can actually be used against victims.
“But we now have world-leading legislation in Scotland that can help us lead the way with their domestic abuse act.
“If you look at homicide cases, 99 per cent of those homicide cases involving family violence have psychological abuse and coercive control involved, so it’s time and I think that the Clarke family have given us impetus to re-examine this issue now.”
Already ‘under the criminal code’
Former Queensland Law Society president and criminal lawyer Bill Potts said laws covering assault and grievous bodily harm adequately captured the seriousness of offending relating to petrol dousing.
“Whilst I understand the distress and real fear that victims and survivors of domestic violence suffer from, I can simply say this — the criminal law in Queensland is amply able to punish people who offend in that way,” he said.
Bill Potts says there is no evidence making petrol dousing a new offence would make a difference.
“There is simply no evidence which would show that a special offence, such as petrol dousing, is going to make any difference in terms of either penalty, bringing people to justice or punishing people for what is a very serious offence.
“It’s certainly under the criminal code, it’s offences that cause bodily harm, it’s assault — they’re serious offences.
Attorney-General Yvette D’Ath said all forms of violence against women were sickening and came with serious criminal sanctions in Queensland.
“Dousing someone with petrol would be illegal under many provisions of the Queensland criminal code, ranging from grievous bodily harm to torture and murder where the victim loses their life,” she said.
“If the act is done in a domestic violence context, it can be declared a domestic violence offence, which would be an aggravating factor and could attract a higher sentence.
“The Palaszczuk Government has a zero-tolerance approach to domestic violence and law-enforcement authorities will not hesitate to use the full force of the law to hold DV perpetrators to account.”
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The Legal 500’s fivehundred magazine features Ashleigh DoRozario as an inspiring woman in law, ‘Creating Visibility for Disability’
Earlier this year, and much to my surprise, I was approached by the Head of Inclusion, Equality and Culture of The Legal 500 – a London based company assessing capabilities of law firms globally, and highlighting lawyers producing innovative advice and unrivalled experience in the legal industry.
By way of background, The Legal 500 publish a monthly magazine, fivehundred, providing insight into themes affecting the legal profession internationally.
I received an email from The Legal 500 pitching their upcoming March edition: celebrating Women’s History Month and International Women’s Day, by featuring inspiring women lawyers around the world who were challenging stereotypes and fighting bias to positively contribute to the profession, and society generally.
I love learning about strong female leaders, and believing this email to be a ‘teaser’ for the upcoming issue, I was eagerly awaiting its release.
I am sure you can imagine my surprise and disbelief when I read on:
‘I wondered whether you would consider appearing in the magazine as one of those inspiring women?’
Wow!
After a few email exchanges where I confirmed their invitation was not meant for someone else nor sent to me in error, and owing to the time difference between the UK and Australia, I offered to prepare a profile setting out my background. Following which, I advised The Legal 500 could then decide if I was an appropriate candidate for the issue.
Clearly, I was suffering from imposter syndrome.
The writing process was quite gruelling but also very cathartic, as I have led an interesting life so far. I am constantly learning and adapting, with my lived experiences and fabulous support network (thanks Craig DoRozario and Potts Lawyers!) continually encouraging me to create visibility for disability, and advocate for inclusion and equal opportunity.
Turns out, The Legal 500 enjoyed my story so much, they published it! To share a synopsis, the fivehundred women in law issue:
‘… showcases an abundance of great stories about great women doing great things.
…
Ashleigh DoRozario, a legally blind lawyer at Potts Lawyers in Queensland, writes passionately on why lawyers with impairments need to lead by example to destigmatise disability.’
If you are interested in reading more, you can find my profile piece here:
https://www.legal500.com/fivehundred-magazine/diversity-and-inclusion/creating-visibility-for-disability/
While I have a generalist practice in all areas of civil litigation and dispute resolution, my background has fostered interests aligning with personal injury and compensation law, anti-discrimination advocacy and championing human rights.
I am also a founding member of the Queensland Law Society’s Diverse Abilities Network, working collaboratively with the Queensland Law Society’s Equity & Diversity Committee.
If you have a query or interest regarding any of the above, please reach out as I would love to hear from you.
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Dreamworld can ‘come back’ from deadly disaster, PR expert says

A public relations expert believes Dreamworld can make a comeback after a disastrous few years – but it won’t be easy.

Dreamworld’s parent company faces a massive fine of $4.5 million after it was charged multiple times over the 2016 Thunder River Rapids tragedy which claimed four lives in Queensland.
Ardent Leisure today confirmed it had been hit with three charges following an assessment by an independent prosecutor from Workplace Health and Safety, according to a statement given to the ASX.

The three Category 2 charges, filed today in the Brisbane Magistrates Court, were made pursuant to the Work Health and Safety Act 2011 and carry a maximum fine of $1.5 million each.
Cindy Low, Kate Goodchild, her brother Luke Dorsett and his partner Roozi Araghi died in October 2016 when a water pump on the Thunder River Rapids malfunctioned.
The company claimed to have taken “substantive and proactive steps” to improve safety at the park.
“To face these kinds of charges can be catastrophic,” PR expert Peter Wilkinson told A Current Affair.
“(The 2016 accident) is remembered now as one of the worst crises in recent history simply because it was handled so badly.”
However, Mr Wilkinson said Australians were “incredibly tolerant” and likely to forgive Dreamworld if its ongoing safety record improved.
“If they have excellent spokespeople and really well-trained staff, eventually the customers will give them the benefit of the doubt,” he said.
But he suggested Dreamworld might have to change its name.
Gold Coast lawyer Bill Potts said given the findings of the inquest into the 2016 tragedy, it was no shock charges had been laid.
“We’ve had a very long and detailed coronial inquiry, we’ve had four tragic deaths, and many staff who have given evidence to say that they were either badly trained, or in some cases not trained at all,” he said.
Dreamworld was forced to close its gates in March because of the coronavirus pandemic, and has remained shut ever since

Lawyer Bill Potts said it was no surprise charges had been laid. (A Current Affair)
Two weeks ago it announced it would have to shed 50 staff.
The charges against Ardent Leisure will be mentioned in court on July 29.
The company said it expected Dreamworld to re-open in time for the September school holidays.
Story By: A Current Affair
Full Story: https://9now.nine.com.au/a-current-affair/dreamworlds-thunder-river-rapids-deadly-accident-charges-laid-but-park-can-come-back-public-relations-expert-says/052d1f78-86b8-4929-b1d2-a81d8b0ec418
 
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Potts Lawyers’ litigation lawyer, Ashleigh DoRozario, has authored an article discussing ‘The Language of Ability’.  Her article is this month’s spotlight feature of the Queensland Law Society’s online publication, Proctor.

Ashleigh DoRozario is legally blind as a result of an autoimmune condition.  However, she was not always blind.  Ashleigh has been a valued member of our Potts Lawyers litigation team for over a decade, and we have been with her throughout the diagnostic journey to legal blindness; supporting her wellbeing, learning her remarkable capabilities despite adversity, and encouraging her professional development.
 Over the years Ashleigh has learnt to adapt to her disability, and has gained considerable insight into living with a disability in comparison to living life as an ‘abled’ person.  In conjunction with her impaired eyesight, another hurdle experienced by Ashleigh has been dealing with discrimination and unconscious bias towards disability. 
 It is for these reasons that Ashleigh is passionate about helping people who are injured, impaired or disabled. Ashleigh’s personal experience with disability has led her to pursue a career in law, with a focus on personal injury, anti-discrimination and human rights.
 In this article, Ashleigh aims to change the narrative surrounding disability, and open readers’ minds to the diverse abilities often developed and honed to compensate for any injury or impairment.  Ashleigh reports her memory, hearing, creative thinking and problem-solving skills have improved since becoming blind because these diverse abilities have been exercised daily in order to make up for the deficit caused by her sense of sight.  Certainly, we have been fortunate to see Ashleigh flourish in the face of adversity.
 Just because Ashleigh cannot see clearly, does not mean she lacks vision!  This article provides valuable insight into living with injury, impairment and disability, but also champions diversity within the legal profession and in the wider community generally.   
 Ashleigh’s disability has adapted her skill sets and given her diverse abilities, one of which is a greater understanding and empathy for clients who experience injury, impairment or disability, and the difficulties that inevitably come with adapting to unforeseen and unfavourable circumstances.  Her lived experience has heightened her passion to help those with personal injury, and stand up for anti-discrimination and basic human rights. 
 Ashleigh DoRozario is a founding member of the Queensland Law Society’s Diverse Abilities Network.  This personal investment championing diversity, inclusivity and equality makes her a fantastic advocate in the fields of personal injury, anti-discrimination and human rights law. 
While Ashleigh’s article has been written with a legal audience in mind, it is a great read and insight into life with disability.  If you wish to learn more about Ashleigh and the language of ability, you can read more here:  https://www.qlsproctor.com.au/2020/06/the-language-of-ability/
 
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On Saturday 2 May, Queensland’s Home Confinement, Movement and Gathering Direction was amended to ease the restrictions on staying home. The main amendment being that people are now allowed to leave their home for recreation within a 50 kilometre radius of the person’s principal place of residence.   “Recreation” has been defined to mean an activity engaged in for pleasure or for mental health benefits, including: motorcycle riding, jet skiing, boating and other forms of personalised transport; driving a motor vehicle, including for a learner driver to accumulate driving hours to comply with logbook requirements for the learner driver’s practical…

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On 5 May 2016, an offence of choking, suffocating or strangulation in a domestic setting was introduced in Queensland.  The terms “choking”, “suffocation” and “strangulation” are not defined in our Criminal Code. On 17 April 2020, the decision of R v HBZ [2020] QCA 73 was handed down by the Queensland Court of Appeal, and it provides us with a definition of “choking”. This article delves into that case and the new definition.
Strangulation, Suffocation or Choking
On 5 May 2016, an offence of choking, suffocating or strangulation in a domestic setting was introduced in Queensland following a recommendation made by the Special Taskforce on Domestic and Family Violence in Queensland (“the Taskforce”) in their Not Now, Not Ever: Putting an end to domestic and family violence in Queensland report.
What do the police have to prove?
In order to prove an offence of choking, suffocating or strangulation, the police must prove (beyond a reasonable doubt) that:

the accused choked, suffocated or strangled another person;
the above act was done without that person’s consent;
the act was unlawful (i.e. that there were no lawful excuses or defences to the offence);
the accused was in a domestic relationship with the other person OR the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012.

What does “strangulation”, “suffocation”, and “choking” mean?
The terms “choking”, “suffocation” and “strangulation” are not defined in our Criminal Code.
Given that the offence is a relatively new one, there have not been many Court of Appeal decisions which help us define these terms.
“Choking” was defined in R v HBZ [2020] QCA 73 as:
the act of the perpetrator that hinders or restricts the breathing of the victim and does not require proof that breathing was completely stopped, although the hindering or restriction of the breathing would encompass the stopping of the breathing. The act of choking will not be proved, unless there is some detrimental effect on the breathing of the victim, because otherwise it would not constitute the act of choking. Even if the restriction of the breathing, as a result of the action of choking the victim, is of short duration, without any lasting injury and does not result in a complete stoppage of the breath of the victim, that will be sufficient, as the offence is directed at deterring that type of conduct from occurring at all [57].
 
Which court hears the offence of strangulation or choking?
The offence of choking, suffocating or strangulation must be finalised in the District Court (whether the accused wishes to plead guilty or not guilty).
 
If I am convicted of strangulation or choking, what penalty will the court impose?
The maximum penalty for the offence is 7 years imprisonment.  There is no mandatory penalty for an offence of strangulation in Queensland. Courts retain wide discretion for deciding the types of penalties imposed for defendants convicted of this offence, and (as with all matters) a range of aggravating and mitigating factors are required to be taken into account by the court in the sentencing process.
Because strangulation is an offence involving violence, imprisonment is not a last resort (even for first time offenders).  The Queensland Sentencing Advisory Council released a report in May 2019 which revealed that from 2016 to 2018, over 97% of defendants who were convicted of a strangulation offence received a term of imprisonment.  From those defendants, 79% were ordered to serve time in actual custody. During that period, there were only eight defendants who received a non-custodial penalty (all eight received a sentence of probation).
So, there is no doubt that the courts take this type of offending seriously.
 
The complainant provoked me to attack them. What should I do?
There are a number of possible defences that can be raised by people charged with grievous bodily harm. Some of these include:

Self-defence
Duress
Intoxication

Provocation, however, cannot be raised as a defence for strangulation or choking.
If you believe there may be a defence available to you it is always advisable to speak with a solicitor about your chances of success and strategies in raising your arguments.
 
The complainant attacked me. What should I do?
 
Self-defence is an excuse/justification in Queensland to strangulation or choking. This means that if your matter proceeds to trial, if available and provided there is some evidence in support of that, the prosecution must prove that you were not acting in self-defence.
If appropriate, we can negotiate with the prosecution and write a submission on why they will fail to disprove that you were acting in self-defence. If accepted, the charges against you may be discontinued. If the prosecution do not accept our submission, the matter can proceed to trial, where a judge or jury will determine whether the prosecution are able to disprove self-defence.
 
What do I do if police ask me to come in and speak with them about a grievous bodily harm charge?
 
It is important to remember your right to silence (see our “your rights” page for more information).
If you decide to speak with police there is a real risk that you may unintentionally provide them with evidence that can be used against you, or that allows them to charge you with a more serious offence or additional charges.
Our advice to clients is always to be cooperative and respectful with police but to exercise your right to silence when they ask you questions. You should speak with a lawyer as soon as possible after police contact you.
 
How will a lawyer help me with my strangulation or choking charge?
 
There are a number of benefits to engaging a lawyer to act for you on your strangulation or choking charge. Our solicitors are highly experienced in these matters and can provide you with:

Expert advice about the strength of the prosecution’s case and your prospects of successfully fighting the charge.
A representative who can attend court on your behalf (and save you from having to attend and speak for yourself on every court date).
Years of experience in successfully negotiating with prosecution on our clients’ charges.
An experienced court room advocate who can effectively present your case and submit to the court relevant, persuasive information designed to minimise your penalty.

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THE COVID-19 RESTRICTIONS THAT ARE BEING EASED IN QUEENSLAND AS OF 2 MAY 2020

https://pottslawyers.com.au/blog/2020/04/05/queenslands-covid-19-home-confinement-restrictions This article refers to the Home Confinement Restrictions as at 2 April 2020.  This direction has since been amended. Please visit this link to see for the latest updates in relation to the Home Confinement, Movement and Fathering Direction.
Restrictions have now been in place as to when we can and cannot leave home for several weeks now. We have seen a promising decline in the amount of new cases of the coronavirus over the last couple of weeks, and the Queensland Government have responded by announcing an ease in the restrictions on movement in Queensland.
As of 2 May 2020, you will have more opportunities to leave your home and go outside for enjoyment. We have summarised the updated Home Confinement, Movement and Gathering Direction below.
Bear in mind that the laws are changing rapidly and open to interpretation. This is general information only and we recommend getting advice tailored to your circumstances.
 
WHAT ARE THE HOME CONFINEMENT REQUIREMENTS IN QUEENSLAND?
A person who resides in Queensland must not leave their principal place of residenceexcept for, and only to the extent reasonably necessary to accomplish, the following permitted purposes:

to obtain food or other essential goods or services;
to obtain medical treatment or other health care services;
to engage in physical exercise;
for recreationwithin a 50km radius of the person’s principal place of residence;
to perform work or volunteering, or carry out or conduct an essential business, activity or undertaking, and the work, business activity or undertaking to be performed is of a nature that cannot reasonably be performed from the person’s principal place of residence;
to visit another person’s residencein accordance with the relevant rules about visitors (see below);
to visit a terminally ill relative or to attend a funeral or wedding, subject to any applicable restrictions under other relevant Public Health Directions;
to provide assistance, care or support to an immediate family member;
to attend any court or tribunal of Australia or to comply with or give effect to orders of the court or tribunal of Australia;
to attend a childcare facility, school, university, or other educational institution, to the extent care or instruction cannot reasonably be obtained in the person’s principal place of residence;
to assist with or participate in an investigation or other action by a law enforcement authority, whether voluntarily or not;
for children under 18 years who do not live in the same household[1] as their biological parents or siblings or one of their parents or siblings, continuing existing arrangements for access to, and contact between, parents and children and siblings, but not allowing access or contact with vulnerable groups or persons;

Example of a vulnerable group or person – a person over 70 years or a person with a medical condition that makes them vulnerable to COVID-19

avoiding injury or illness or to escape a risk of harm;

Example – escaping a risk of harm related to domestic and family violence;

to comply with or give effect to the exercise of a power or function of a government agency or entity under a law.

The Queensland Chief Health Officer may grant an exemption to part or all of these directions on compassionate grounds or for other exceptional circumstances.
A person who is leaving their principal place of residence must practice social distancing while outside their principal place of residence, to the extent reasonably practicable.
 
SO, WHAT’S NEW?
As of 2 May 2020, you can now enjoy recreational activities within 50km of your home. Some examples of recreational activities are:

Going for a picnic.
Sitting on a park bench and enjoying your lunch or coffee.
Having a driving lesson with members of your household.
Going for a motorbike ride or boat trip.
Going to the shops to buy things other than food or drink (e.g. a book store or clothes shop).

Remember, the rules around gathering (see below) and social distancing still apply.
 
WHAT ARE THE RULES ABOUT HAVING VISITORS AT YOUR HOME?
One of the permitted purposes for a person who resides in Queensland to leave their principal place of residence is to visit another person’s residence, but restrictions apply!
If you are an owner, resident[2], tenant[3], occupier, temporary occupier or person in control of a residence, you may allow up to two visitors who are not ordinarily members of the person’s household. However, you MUST take reasonable steps to encourage occupants of, and visitors to, the premises to practise social distancing to the extent reasonably practicable.
The examples provided by the Government as to who are visitors allowed in your home are family members or close friends. It is important to bear in mind why these rules are in place – we’re trying to flatten the curve.
The law states you must take reasonable steps to encourage occupants and visitors to practice social distancing to the extent reasonably practicable. “Social distancing” includes remaining at least 1.5 metres away from other persons, regular washing of hands and avoiding handshaking.
This rule does not prevent workers or volunteers entering your house, and they are not counted as visitors for the purposes of this part of the direction. For example, you may have two tradespeople in your home doing work, whilst also having one friend visit.
It is important to note that this rule about visitors to your home does not apply to a residential aged care facility[4], corrective services facility[5]or detention centre[6]– other Directions have touched on these places and the rules about receiving visitors.
This visitors rule also does not apply to a residence of a person with disability if it is necessary for more than two people to attend the residence to provide services to the person with disability to meet their support needs.
 
IT SAYS I CAN LEAVE HOME FOR ESSENTIAL GOODS OR SERVICES. WHAT ARE ESSENTIAL GOODS OR SERVICES?
Food and other supplies, and services, that are needed for the necessities of life and operation of society, such as food, fuel, medical supplies, and other goods.
 
IF I LEAVE MY RESIDENCE FOR ONE OF THE “PERMITTED PURPOSES”, CAN ANYONE TRAVEL WITH ME?
If you leave your principal place of residence for a permitted purpose you may be accompanied by members of your household OR ALTERNATIVELY, you may be accompanied by one person who isn’t a member of your household.  
Members of your household are defined as “persons who ordinarily live at the same residence, including if family or kinship customs or cultural obligations have the effect of a person living across multiple residences”.
For example – you could take someone that lives in your household with you to get groceries or you could leave your home to exercise with your partner, even if they don’t live with you.
There is an exception to this restriction if a person requires physical assistance to leave their principal place of residence or  it is reasonably necessary for the safety of the person or the public BUT only if there is no other reasonable way for a permitted purpose to be achieved. That exceptions says, in those limited circumstances, a person may be accompanied by more than one person who is not a member of their household and who is a carer or support worker for that person. For example, a person with a disability may be accompanied by more than one carer or support worker to get medical assistance, etc.
 
WHAT IS AN ESSENTIAL BUSINESS, ACTIVITY OR UNDERTAKING?
It is business, activity or undertaking that is not prohibited by the Non-essential business, activity and undertaking Closure Direction (No.7) (the most recent Public Health Direction at the time of publishing) or another Public Health Direction.
Currently, examples of non-essential businesses or activities include beauty therapy, tanning, waxing and nail salons, tattoo parlours, cinemas, nightclubs, theme parks, boot camps or personal training (if there is more than 2 people including the PT or social distancing is not being observed), public playgrounds, places of worship (unless for a funeral or wedding, and then only under the restrictions) and many other businesses and activities.
For a detailed (and up to date) list, see: https://www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers/non-essential-business-closure-direction
 
IT SAYS I CANNOT LEAVE MY PRINCIPAL PLACE OF RESIDENCE. WHAT IS THE DEFINITION OF PRINCIPAL PLACE OF RESIDENCE?
For a person who permanently resides in Queensland, the principal place of residence is the residence where the person ordinarily resides.
For a person who temporarily resides in Queensland, it is the residence where the person ordinarily resides when the person in present in Queensland.
“Residence” means premises used, or intended to be used, as a dwelling or mainly as a dwelling, and includes the land on which the residence is situated, and includes:

a single detached dwelling;
each of one or more attached dwellings that are separated by a common wall;

Examples include a villa unit, townhouse, terrace house, row house, unit in an apartment block.

A manufactured home as defined in section 10 of the Manufactured Homes (Residential Parks) Act 2003;
a caravan as defined in section 7 of the Residential Tenancies and Rooming Accommodation Act 2008;
any other building or structure situated on the same land as the premises or dwelling.

Examples include a shed, pool house, carport, granny flat. But does not include a corrective services facility[7] or detention centre[8].

The directive also makes it clear that the definition of ‘residence’ does not include a residential aged care facility[9], corrective services facility or detention centre.
 
WHAT ARE THE RULES ABOUT GATHERINGS IN PLACES OTHER THAN A RESIDENCE?
A person who owns, controls or operates premises, other than a residence, must not organise or allow a gathering to occur on the premises.
In other words if you own, control or operate a building or structure, part of a building or structure, a vehicle, caravan, land or vessel that is not a residence, you must not allow a gathering to occur there.
 
HOW DO I KNOW WHAT A GATHERING IS?
A “gathering” means a gathering of more than two persons in a single undivided outdoor space or in a single undivided indoor space at the same time.
There are some exceptions to this rule where gatherings may still occur. The following are not considered a “gathering” for the purposes of this direction and therefore are still allowed:

at an airport that is necessary for the normal business of the airport;
for the purposes of or related to public transportation, including in vehicles or at public transportation facilities such as stations, platforms and stops;
at a medical or health service facility that is necessary for the normal business of the facilities;
for the purposes of emergency services;
at a residential aged care facility or residence of a person with a disability, that is necessary for the normal business of the facility or residence;
at a prison, correctional facility, youth justice centre or other place of custody;
at a court or tribunal;
at Parliament for the purpose of its normal operations;
at a food market, supermarket, grocery store, retail store or shopping centre that is necessary for the normal business of those premises;
at a workplace, including but not limited to an office building, factory, manufacturing facility, resource extraction, mine or mineral processing facility, utilities or construction sites that is necessary for the normal operation of those premises;
at a school, university, educational institution or childcare facility that is necessary for the normal business of the facility;
at a hotel, motel or accommodation facility, such as a worker camp, that is necessary for the normal operation of accommodation services;
at a wedding or funeral permitted under the Non-essential business, activity and undertaking Closure Direction (No. 4), or its successor, or another Public Health Direction;
at an outdoor place where persons may be present for the purposes of transiting through the place (for example, Queen Street Mall);
at an indoor place where persons may be present for the purposes of transiting through the place (for example, Central Station);
a gathering specified as exempt from this direction by the Chief Health Officer in writing.

An “Indoor space” has been defined as an area, room or premises that is or are substantially enclosed by a roof and walls, regardless of whether the roof or walls or any part of them are permanent or temporary or open or closed.
An “outdoor space” means a space that isn’t an indoor space.
 
HOW LONG WILL IT APPLY?
The direction will apply while there is a “public health emergency” which is until 19 May 2020, and may be extended beyond that date. Unless of course it is revoked or replaced by a different directive. For example, the previous directive issued on 29 March has already been revoked and replaced by this direction.
 
WHO DOES IT APPLY TO?
The public health emergency area is “all of Queensland”. So, it applies to every person in Queensland, regardless of whether or not you are a permanent resident of Queensland.
 
DO I NEED TO TAKE THIS SERIOUSLY?
Yes you do. Section 362D of the Public Health Act 2005 creates an offence for failure to comply with a public health direction, like the one outlined above.
A person to whom a public health direction applies must comply with the direction unless the person has a reasonable excuse.
Maximum penalty—100 penalty units.
A penalty unit is $133.45, so that is a maximum penalty of $13,345.
You could be issued an on the spot fine (infringement notice) or you could be charged and required to attend court in relation to the offence.
 
WILL POLICE ACTUALLY FINE ME IF I DON’T COMPLY?
Yes. In late March, the Queensland Police Service (QPS) issued the first two infringement notices in Queensland. Under the Chief Health Officer’s directions, massage parlours are deemed a non-essential service and therefore are unable to continue to operate.
Detectives from the Major and Organised Crime Squad found a business in Brisbane offering prostitution services on 30 March, despite the directive prohibiting such a business from operating.
The business was issued an on the spot fine of $6,672.50 for failing to comply with the public health direction and an employee of the business was issued an on the spot infringement notice for $1,334.50 for her failure to comply with the public health directive.
 
WHAT IF I AM FINED? OR GIVEN A NOTICE TO ATTEND COURT?
We can help. The law states that it is an offence unless you have a reasonable excuse.
If you don’t think you should have been charged or fined for failure to comply with the direction, please contact us so we can provide you with advice.
It is important that if you are considering contesting the matter that you get advice swiftly. If you pay the fine, or don’t take any steps in the required time frame (usually 28 days), it may be too late to get advice.
 
WANT TO KNOW MORE?
You can find out more by:

Heading to the Potts Lawyersor Lady Crim LawyersFacebook Page; or
Checking out our Instagram pages (@pottslawyersand @lady.crim.lawyers); or
Calling one of our criminal lawyers on 5532 3133 – we would be happy to talk you through your options.

 
HERE ARE SOME DEFINITIONS OF WORDS USED IN THIS ARTICLE:
[1] “Household” means persons who ordinarily live at the same residence, including if family or kinship customs or cultural obligations have the effect of a person living across multiple residences.
[2] “Resident” has the meaning given in section 14 of the Residential Tenancies and Rooming Accommodation Act 2008(Qld).
[3] “Tenant” has the meaning given in section 13 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
[4] “Residential aged care facility” means a facility at which accommodation, and personal care or nursing care or both, are provided to a person in respect of whom a residential care subsidy or a flexible care subsidy is payable under the Aged Care Act 1997of the Commonwealth.
[5] “Corrective services facility” has the same meaning as in the Corrective Services Act 2006(Qld).
[6] “Detention centre” has the same meaning as in the Youth Justice Act 1992.
[7] “Corrective services facility” has the same meaning as in the Corrective Services Act 2006(Qld).
[8] “Detention centre” has the same meaning as in the Youth Justice Act 1992.
[9] “Residential aged care facility” means a facility at which accommodation, and personal care or nursing care or both, are provided to a person in respect of whom a residential care subsidy or a flexible care subsidy is payable under the Aged Care Act 1997of the Commonwealth.
The post Easing of COVID-19 restrictions in QLD as of 2nd May 2020 appeared first on Potts Lawyers.

Do you have a loved one currently in custody awaiting a trial/sentence? Are you worried about their wellbeing during this COVID-19 pandemic? Read on.
 

The unusual circumstances we currently all find ourselves in are unprecedented. Businesses and government departments are having to change the way they do things – almost on a weekly basis. Queensland Corrective Services (QCS) is no exception. In order to follow the Government’s recommendations and directions for public safety during this time, the prisons have gone into various stages of lockdown.
At the time of writing, Stage 3 restrictions are in place, which means that QCS has already stopped everyone except essential officers and health staff entering prisons. To lower the risk of a new prisoner with COVID-19 from bringing it into the prison, all prisoners entering high security centres are being placed in isolation for 14 days. During those 14 days, they will not have out of cell time, or be near other prisoners. This means that they will not be able to call their family, speak with their lawyer, or appear by phone or video at their court appearances.
If you are a worried family member or friend, the prison should call you to let you know that your loved one is in isolation. They have also been updating their website as the situation progresses. But we know that a call or website updates will not ease your worries. This is where we can help.
Can My Loved One Apply for Bail?
Call us straight away so that we can determine where their matter is at progress-wise.
If they have just been arrested, it is crucial that they receive competent legal advice to build and present a strong bail application from the get-go.
Have they already applied for bail previously, and been rejected? We can still help. If someone has been refused bail in the Magistrates Court, they can apply for bail again in the Magistrates Court if they can show that there has been a change in circumstances. They can also apply for bail in the Supreme Court.
What Does the Court Have to Consider When Deciding Whether to Grant Bail?
The court will look at several circumstances in deciding whether to grant bail, including:

the attitude of the police/prosecution;
the type and seriousness of the offence;
the strength of evidence;
delays in the case;
nature and length of any potential sentence;
effect of remand on the defendant’s business/ family/ health;
whether the defendant has a place to live;
whether the defendant has a job and/or other ties to the community;
whether the defendant has a criminal record;
whether the defendant has children;
access/availability to treatment;
whether the defendant has failed to turn up for other court dates in the past;
whether the defendant is capable of fleeing and whether they are likely to flee;
whether the defendant has someone to provide a surety (a sum of money to the court, which will be forfeited if the defendant breaches bail);
whether the court believes the defendant is a danger to other people;
whether the court believes the defendant will break the law again;
whether the defendant is capable of complying with any conditions imposed;
whether the defendant is in a ‘show cause position’.

 
What Are the Courts Considering Now During COVID-19?
The courts are still looking at each case individually and deciding whether to grant bail or not after considering a whole bunch of different factors.
We are seeing COVID-19 being raised in bail applications in several different ways.
Below is are summaries of a couple of bail applications heard recently in the Supreme Court of Queensland, where COVID-19 was raised as a factor for the court to consider. As you can see, the COVID-19 pandemic was factored differently in each case.
What these cases tell us is that if an applicant wishes to rely upon arguments relating to the COVID-19 pandemic, they must show evidence of how that effects the decision-maker’s consideration for bail. This shows the importance of prepared and considered bail applications, of which we are known for.
Re JMT [2020] QSC 72 – A successful bail application
The applicant in this recent matter sought bail for charges of murder and grievous bodily harm with intent. He was charged with four co-offenders, all juveniles, and was not the primary offender. The reasons provide a valuable consideration of the matters to be taken into account in applications where parties raise COVID-19 as a relevant factor, and its impact upon the exercise of the discretion to grant bail.
Because this applicant was charged with murder, he was in a show cause position (head to our Bail in Queensland page to see what a show cause position means), meaning he had to show cause why his detention in custody awaiting trial was not justified.
Two primary arguments put forward by the applicant’s lawyer related to the lack of strength of the Crown case and the current COVID-19 pandemic.
In relation to the COVID-19 pandemic, the applicant suggested that the pandemic might potentially result in:

significant delay in the finalisation of the criminal proceedings against the applicant;
a harsher time in prison due to measures taken within prisons to prevent spread of the disease; and
a risk of transmission of the disease in prison to the applicant.

In assessing the impact of the COVID-19 pandemic upon the exercise of his discretion to grant bail, his Honour Justice Davis noted that any submission regarding COVID-19 and its impact upon an application for bail must be accompanied by an established evidentiary basis. He also noted that the considerations relevant to a grant of bail are whether there is an unacceptable risk of a) failing to appear, b) committing an offence, c) endangering a person or d) interfering with witnesses, or those other considerations which, whilst not directly relevant to risk, may be relevant to other factors.  If one of those risks identified are deemed unacceptable, the court shall refuse to grant bail.
His Honour indicated that the following considerations are relevant in these types of applications:

the impact of the COVID-19 pandemic is unable to result in a successful bail application where one of the s 16(1) of the Bail Actrisks are “unacceptable”.
depending on the evidence available, the relevance to a bail application of the conditions in prison may be very limited. Assuming there is evidence to give rise to such a consideration, it is, like delay, just another factor which may be taken into account. Any consideration of the conditions on remand must be made in the context of the Chief Executive’s primary responsibility for the welfare of prisoners.
provisions of the Human Rights Act 2019may be relevant as regards the treatment of prisoners.
the COVID-19 pandemic and any government’s response to it may give rise to considerations relevant to the relevant risks, other considerations relevant to bail, to an applicant showing cause. These factors, though, are mere factors to be taken into account within the broader consideration of the exercise of discretion.
any submission must be accompanied by evidence or information admitted through s 15 of the Bail Act.

Having regard to those matters together with difficulties with the Crown case in this matter, and specifically noting the potential for “a significant delay in having the criminal proceedings finalised because of the COVID-19 pandemic”, his Honour held that the applicant’s continued detention in custody was not warranted and granted bail.
Lynch v Director of Public Prosecutions (No 2) [2020] QSC 64 – An unsuccessful bail application
The applicant in this case was charged with many drug offences, drug-related offences, and for breaching his bail (because he failed to report as required by his bail undertaking). The most serious charge was one of trafficking in dangerous drugs. He had a substantial criminal history including previous convictions for drug offences and breaches of bail. The applicant was also in a “show cause position”.
This applicant initially (and unsuccessfully) applied for bail on 6 March 2020. Following that, he then applied for bail in the Supreme Court on 31 March 2020.
In those circumstances, the applicant had to essentially pass through two doorways to obtain a grant of bail. First, he had to demonstrate that there had been a material change in circumstances since the last application. Secondly (assuming there was a material change), he had to show cause why his detention was not justified.
Change in Circumstances
There were five matters in total that the applicant replied upon to show that there was a change in circumstances since the last bail application.
Relevant to COVID-19, he relied on the fact that there was a delay in trial listings as a result of the COVID-19 pandemic, and that restrictions have been imposed within prisons since the last application.
In relation to the delay argument, the presiding judge, Justice Martin, agreed that the delay in trial listings constituted a material change in circumstances, noting that it “was not out of the question” for there to be additional delays of up to 12 months in the listing of any defendant’s trial. His Honour noted that he was satisfied the applicant had proved the first test on this basis alone.
Despite this, his Honour still addressed the argument that a material change in circumstances existed because the prisons had imposed restrictions.  At the time of the bail application Queensland prisons had imposed Stage 3 restrictions, requiring a lockdown of the prison, testing of offices and social distancing. His Honour noted, however, that:
“restrictions on movement within a jail are not uncommon. Prisons can be placed in lockdown for many reasons and at any time. The difference at this time is that the length of the change in circumstances is unknown and the susceptibility of a prison population to infection is generally accepted to be higher than in the ordinary population”. [29]
At the time of making the application, it seems that the applicant (through his lawyer) did not provide the court with any evidence other than oral submissions about the effects of these restrictions on inmates.
Show Cause
The applicant’s main argument to show cause that his detention was unjustified was that the delay in trial listings meant that he might spend more time on remand than he would serve if he was convicted of and sentenced for these offences.
Martin J highlighted that the court has, in the past, expressly disapproved the notion that substantial delay itself establishes that pre-trial incarceration of an accused is unjustified. Matters that must be taken into account include the length of any delay, the reasons for that delay and the strength of the Crown case.
Given the applicant’s criminal history, importantly for breaching his bail and other court orders, coupled with the fact that – if convicted of the current offences – he would be sentenced to a significant length of imprisonment, Martin J decided that the applicant had not shown cause and dismissed the application for bail.
Re Young [2020] QSC 75 – An unsuccessful bail application
This was an application for bail pending an appeal against conviction and sentence. The applicant had been convicted of several fraud and insolvent trading offences. The overall sentence structure required the applicant to serve five years in actual custody.
Because this was an application for bail pending an appeal, the applicant had to show that “exceptional circumstances” existed for the court to grant him bail. In order to establish exceptional circumstances, two prerequisites must be met:

It is necessary to demonstrate there are strong grounds for concluding that the appeal will be allowed; and
Usually the applicant is required to show that the custodial part of the sentence is likely to have been substantially served before the appeal is determined.

The applicant here was aged 66 and had an unenviable history of coronary artery disease. That was particularly relevant in the context of the current environment of the COVID-19 pandemic, which, her Honour Justice Lyons noted, in itself amounted to an exceptional event. The decisive question however was whether those two matters combined constituted exceptional circumstances for the purpose of an application for bail pending appeal.
Her Honour noted that:

The current evidence revealed that no COVID-19 prisoner was in any correctional facility;
Precautions in prison were extensive and included medical screening, heightened hygiene and the availability of isolation measures. An action plan was also in place;
The applicant was able to apply, because of his medical conditions, for a cell by himself. In those circumstances, her Honour did not accept that he was in any particular danger so as to amount to special circumstances.

In those circumstances, bail was refused.
The post The Ways That COVID-19 Has Changed Bail Applications appeared first on Potts Lawyers.

Legal experts are in uncharted territory as courts face significant challenges providing public justice during the COVID-19 pandemic.

Social distancing measures are already in place in courts, but judges and barristers have discussed logistics for prisoners ahead of a high-profile criminal trial due to start next month.

The matter involves a number of defendants who are remanded in prison ahead of their case being heard.

Public courts usually give defendants the opportunity to confront their accusers face-to-face and verdicts where charges are serious are decided by a jury.

But amid the coronavirus outbreak, there are no jury trials and many prisoners appear by video-link to reduce their movement.

The resources aren’t available for a handful of prisoners to appear at the same time by video-link from jail for hours each day during a lengthy trial, Supreme Court Justice David Boddice said in court on Thursday.

New prisoners and those transferred already face 14 days in isolation as part of measures introduced this month to prevent the coronavirus from entering Queensland’s jails.

The isolation doesn’t apply to prisoners attending court, but questions have been asked about the risk of prisoners contracting COVID-19 if they are in contact with people outside jail for longer periods.

Justice Boddice says defendants will need to consult regularly with their barrister and solicitor during a trial, which could put people at risk of spreading the infection.

There is also the health of corrective services officers, court staff, judges, bailiffs and legal teams to consider.

“We have to do the best in the new norm,” Justice Boddice said.

Experienced criminal lawyer Bill Potts said the courts were doing their absolute best to ensure justice is done, but some legal minds were questioning whether people can get the trial they deserve during the crisis.

“The coronavirus is causing significant problems for jury systems and courts,” he told AAP.

Mr Potts said the courts, defence and prosecution generally prefer serious offences to be dealt with before a jury, rather than in a judge-only trial, unless there are unusual circumstances.

But courts may need to be redesigned if the crisis continues because some social distancing in court is impossible.

Mr Potts said measures could include defendants sitting in sealed-off boxes and jury boxes altered to provide capacity for jurors to sit further apart.

The post Challenges of court trials during COVID appeared first on Potts Lawyers.

A key means of preventing an escalation of domestic violence during the COVID-19 lockdown has been dealt a major blow with the cancellation of men’s face-to-face behavioural counselling sessions.

Anti-domestic violence campaigners say there is no substitute for the court-ordered group therapy, where abusers are confronted by peers.

The two-hour meetings, which are normally attended by between six and 20 men over 26 weeks, were shut down last month.

The forums are where emotions often overflow, tears are shed and anger vented within a controlled atmosphere, says Men’s Referral Service CEO Jacqui Watt.

MRS has been operating nationally for more than 25 years and notwithstanding an accompanying 24-hour helpline, it’s the behavioural sessions that have a significant impact.

“We are extremely concerned there are men in the process of thinking about using family violence, some of whom may have been confronted within the group, about their attitude towards women and their attitude towards the family,” Ms Watt says.

“They have been cut off from that source of improvement and it is worrying to us.”

MRS has moved to one-on-one sessions, either over the phone or through applications like Skype.

It’s unclear if they will be accepted by the courts as an appropriate substitute. If not, wait times for group meetings, which can already be six months, may have to be extended.

Almost three-quarters of the men who attend a behavioural group are under court order.

“Ten years ago, about 20 percent of men who attended were coming through a court-mandated program but that has turned on its head,” Ms Watt says.

“Now up to 70 to 80 percent of men in a group are likely to be coming through a court-mandated process.

Prominent Brisbane criminal lawyer and former Queensland Law Society president Bill Potts described the dilema as a “perfect storm” and said he held grave concerns for the safety of women.

He said criminogenic issues that spark domestic violence such as depression, financial stress and excessive drinking would magnify during lockdown.

And wthout adequate counselling sessions they would be allowed to fester with dire consequences.

“Many are in pressure cooker situations with loss of job, income and depression and a parent may be withholding access to the children through fear of passing or catching the virus,” Mr Potts says.

“Those issues are not being addressed through counselling and the problem of domestic violence appears to be getting far worse and it is a significant issue.

He says online counselling has limitations and some in desperate need of rehabilitation don’t have access to the technology.

But even online or over the phone counselling is problematic, says Griffith University associate professor Jennifer Boddy.

“It’s very difficult to manage what is happening in the background; if they drop off the line or if something in the conversation triggers them, we have no way of knowing if people in the household are safe,” Ms Boddy, a senior lecturer in Social Work, says.

“It’s also more difficult to determine or manage if someone has been drinking if they do not come in for a group program.”

Ms Boddy says the men’s attendance at behavioural group sessions also provides a window of opportunity for women to either seek help or get precious alone time and that was now not occurring.

“Their partners, who have often been victims of the violence, have two hours to be safe and free to go about their life,” she says.

“So there is a whole range of issues that arise when you don’t have face-to-face meetings on a weekly basis.”

Domestic Violence NSW co-ordinator Renata Field says they’ve experienced an increase in calls across the board since the coronavirus lockdown took effect.

She says upskilling as well as improved equipment and training is desperately needed to deal with an unprecedented situation.

“It’s becoming harder for people to make contact because of isolation and we are worried because that means there are more women at risk.”

NSW Domestic Violence (1800 65 64 63)

Men’s Referral Service (1300 766 491) for men, or friends and family of men using violenceI

1800 RESPECT (1800 737 732)

Lifeline 13 11 14

The post Virus releases domestic violence brake appeared first on Potts Lawyers.

QUEENSLAND’S COVID-19 HOME CONFINEMENT, MOVEMENT AND GATHERING DIRECTION

Further to our recent blog post, we thought we’d share some more information with you in relation to Queensland’s most recent Covid-19 Home Confinement, Movement and Gathering Direction and how it applies to you. Bear in mind that the laws are changing rapidly and open to interpretation. This is general information only and we recommend getting advice tailored to your particular circumstances.
WHAT IS THE HOME CONFINEMENT REQUIREMENTS IN QUEENSLAND?
A person who resides in Queensland must not leave their principal place of residenceexcept for, and only to the extent reasonably necessary to accomplish, the following permitted purposes:

to obtain food or other essential goods or services;
to obtain medical treatment or other health care services;
to engage in physical exercise;
to perform work or volunteering, or carry out or conduct an essential business, activity or undertaking, and the work, business activity or undertaking to be performed is of a nature that cannot reasonably be performed from the person’s principal place of residence;
to visit another person’s residencein accordance with the relevant rules about visitors (see below);
education and early childhood workers may travel to and from their home centre over the term 1 break;
to visit a terminally ill relative or to attend a funeral or wedding, subject to any applicable restrictions under other relevant Public Health Directions;
to provide assistance, care or support to an immediate family member;
to attend any court or tribunal of Australia or to comply with or give effect to orders of the court or tribunal of Australia;
to attend a childcare facility, school, university, or other educational institution, to the extent care or instruction cannot reasonably be obtained in the person’s principal place of residence;
to assist with or participate in an investigation or other action by a law enforcement authority, whether voluntarily or not;
for children under 18 years who do not live in the same household[1]as their biological parents or siblings or one of their parents or siblings, continuing existing arrangements for access to, and contact between, parents and children and siblings, but not allowing access or contact with vulnerable groups or persons;
Example of a vulnerable group or person – a person over 70 years or a person with a medical condition that makes them vulnerable to COVID-19
avoiding injury or illness or to escape a risk of harm;
Example – escaping a risk of harm related to domestic and family violence;
to comply with or give effect to the exercise of a power or function of a government agency or entity under a law.

The Queensland Chief Health Officer may grant an exemption to part or all of these directions on compassionate grounds or for other exceptional circumstances.
WHAT ARE THE RULES ABOUT HAVING VISITORS AT YOUR HOME?
One of the permitted purposes for a person who resides in Queensland to leave their principal place of residence is to visit another person’s residence, but restrictions apply!
The earlier directive released on 29 March 2020 was very strict and caused difficulty for many people. It didn’t allow for a person to stay at their partner’s home, it didn’t allow for children who might have two residences that they spent their time between, etc
As such, the Government has relaxed the laws to allow visitors into your home.
If you are an owner, resident[2], tenant[3], occupier, temporary occupier or person in control of a residence, you may allow up to two visitors who are not ordinarily members of the person’s household. However, you MUST take reasonable steps to encourage occupants of, and visitors to, the premises to practise social distancing to the extent reasonably practicable.
The examples provided as to visitors allowed in your home are family members or close friends. It is important to bear in mind why these rules are in place.
The law states you must take reasonable steps to encourage occupants and visitors to practice social distancing to the extent reasonably practicable. “Social distancing” includes remaining at least 1.5 metres away from other persons, regular washing of hands and avoiding handshaking.
It has also been clarified that this rule does notprevent workers or volunteers entering a place of residence and they are not counted as visitors for the purpose of that exception. For example, you may have two tradespeople in your home doing work, whilst also having one friend visit.
It is important to note that this rule about visitors to your home does not apply to a residential aged care facility[4], corrective services facility[5]or detention centre[6].
The Aged Care Direction given on 21 March 2020 and the Corrective Services Facility Direction given on 22 March 2020 restrict visitors to those facilities. Other Public Health Directions may be made applying to other types of facilities.
This visitors rule also does not apply to a residence of a person with disability if it is necessary for more than two people to attend the residence to provide services to the person with disability to meet their support needs.
IT SAYS I CAN LEAVE HOME FOR ESSENTIAL GOODS OR SERVICES. WHAT ARE ESSENTIAL GOODS OR SERVICES?
Food and other supplies, and services, that are needed for the necessities of life and operation of society, such as food, fuel, medical supplies, and other goods.
IF I LEAVE MY RESIDENCE FOR ONE OF THE “PERMITTED PURPOSES”, CAN ANYONE TRAVEL WITH ME?
If you leave your principal place of residence for a permitted purpose you may be accompanied by members of your household or alternatively, you may be accompanied by one person who isn’t a member of your household.  
Members of your household are defined as “persons who ordinarily live at the same residence, including if family or kinship customs or cultural obligations have the effect of a person living across multiple residences”.
For example – you could take someone that lives in your household with you to get groceries or you could leave your home to exercise with your partner, even if they don’t live with you.
There is an exception to this restriction if a person requires physical assistance to leave their principal place of residence or  it is reasonably necessary for the safety of the person or the public BUT only if there is no other reasonable way for a permitted purpose to be achieved. That exceptions says, in those limited circumstances, a person may be accompanied by more than one person who is not a member of their household and who is a carer or support worker for that person.
For example, a person with a disability may be accompanied by more than one carer or support worker to get medical assistance, etc.
WHAT IS AN ESSENTIAL BUSINESS, ACTIVITY OR UNDERTAKING?
It is business, activity or undertaking that is not prohibited by the Non-essential business, activity and undertaking Closure Direction (No.4)(the most recent Public Health Direction at the time of publishing) or another Public Health Direction.
Currently, examples of non-essential businesses or activities include beauty therapy, tanning, waxing and nail salons, tattoo parlours, cinemas, nightclubs, theme parks, boot camps or PT (if there is more than 2 people or social distancing is not being observed), public playgrounds, places of worship (unless for a funeral or wedding, and then only under the restrictions) and many other businesses and activities.
For a detailed list, see: https://www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers/non-essential-business-closure-direction
IT SAYS I CANNOT LEAVE MY PRINCIPAL PLACE OF RESIDENCE. WHAT IS THE DEFINITION OF PRINCIPAL PLACE OF RESIDENCE?
For a person who permanently resides in Queensland, the principal place of residence is the residence where the person ordinarily resides.
For a person who temporarilyresides in Queensland, it is the residence where the person ordinarily resides when the person in present in Queensland.
“Residence” means premises used, or intended to be used, as a dwelling or mainly as a dwelling, and includes the land on which the residence is situated, and includes:

a single detached dwelling;
each of one or more attached dwellings that are separated by a common wall;

Examples include a villa unit, townhouse, terrace house, row house, unit in an apartment block.

A manufactured home as defined in section 10 of the Manufactured Homes (Residential Parks) Act 2003;
a caravan as defined in section 7 of the Residential Tenancies and Rooming Accommodation Act 2008;
any other building or structure situated on the same land as the premises or dwelling.

Examples include a shed, pool house, carport, granny flat. But does not include a corrective services facility[7]or detention centre[8].

The directive also makes it clear that the definition of ‘residence’ does not include a residential aged care facility[9], corrective services facility or detention centre.
WHAT ARE THE RULES ABOUT GATHERINGS IN PLACES OTHER THAN A RESIDENCE?
A person who owns, controls or operates premises, other than a residence, must not organise or allow a gathering to occur on the premises.
In other words if you own, control or operate a building or structure, part of a building or structure, a vehicle, caravan, land or vessel that is not a residence, you must not allow a gathering to occur there.
HOW DO I KNOW WHAT A GATHERING IS?
A “gathering” means a gathering of more than two persons in a single undivided outdoor space or in a single undivided indoor space at the same time.
There are some exceptions to this rule where gatherings may still occur. The following are not considered a “gathering” for the purposes of this direction and therefore are still allowed:

at an airport that is necessary for the normal business of the airport;
for the purposes of or related to public transportation, including in vehicles or at public transportation facilities such as stations, platforms and stops;
at a medical or health service facility that is necessary for the normal business of the facilities;
for the purposes of emergency services;
at a residential aged care facility or residence of a person with a disability, that is necessary for the normal business of the facility or residence;
at a prison, correctional facility, youth justice centre or other place of custody;
at a court or tribunal;
at Parliament for the purpose of its normal operations;
at a food market, supermarket, grocery store, retail store or shopping centre that is necessary for the normal business of those premises;
at a workplace, including but not limited to an office building, factory, manufacturing facility, resource extraction, mine or mineral processing facility, utilities or construction sites that is necessary for the normal operation of those premises;
at a school, university, educational institution or childcare facility that is necessary for the normal business of the facility;
at a hotel, motel or accommodation facility, such as a worker camp, that is necessary for the normal operation of accommodation services;
at a wedding or funeral permitted under the Non-essential business, activity and undertaking Closure Direction (No. 4), or its successor, or another Public Health Direction;
at an outdoor place where persons may be present for the purposes of transiting through the place (for example, Queen Street Mall);
at an indoor place where persons may be present for the purposes of transiting through the place (for example, Central Station);
a gathering specified as exempt from this direction by the Chief Health Officer in writing.

An “Indoor space” has been defined as an area, room or premises that is or are substantially enclosed by a roof and walls, regardless of whether the roof or walls or any part of them are permanent or temporary or open or closed. An “outdoor space” means a space that isn’t an indoor space.
WHEN DID IT TAKE EFFECT?
The Chief Health Officer issued this Public Health Direction pursuant to the Public Health Act 2005 (Qld) and it took effect at 11.59pm Thursday 2 April 2020.
This replaced the following former Public Health Directions:

the Home Confinement Direction given on 29 March 2020;
the Mass Gatherings Direction (No 2) given on 21 March 2020;
the Restrictions in Private Residences Direction given on 27 March 2020.

HOW LONG WILL IT APPLY?
The direction will apply while there is a “public health emergency” which is until 19 May 2020, and may be extended beyond that date. Unless of course it is revoked or replaced by a different directive. For example, the previous directive issued on 29 March has already been revoked and replaced by this direction.
WHO DOES IT APPLY TO?
The public health emergency area is “all of Queensland”. So it applies to every person in Queensland, regardless of whether or not you are a permanent resident of Queensland.
DO I NEED TO TAKE THIS SERIOUSLY?
Yes you do. Section 362D of the Public Health Act 2005 creates an offence for failure to comply with a public health direction, like the one outlined above.
A person to whom a public health direction applies must comply with the direction unless the person has a reasonable excuse.
Maximum penalty—100 penalty units.
A penalty unit is $133.45, so that is a maximum penalty of $13,345.
You could be issued an on the spot fine (infringement notice) or you could be charged and required to attend court in relation to the offence.
WILL POLICE ACTUALLY FINE ME IF I DON’T COMPLY?
Yes. In late March, the Queensland Police Service (QPS) issued the first two infringement notices in Queensland. Under the Chief Health Officer’s directions, massage parlours are deemed a non-essential service and therefore are unable to continue to operate.
Detectives from the Major and Organised Crime Squad found a business in Brisbane offering prostitution services on 30 March, despite the directive prohibiting such a business from operating.
The business was issued an on the spot fine of $6,672.50 for failing to comply with the public health direction and an employee of the business was issued an on the spot infringement notice for $1,334.50 for her failure to comply with the public health directive.
WHAT IF I AM FINED? OR GIVEN A NOTICE TO ATTEND COURT?
We can help. The law states that it is an offence unless you have a reasonable excuse.
If you don’t think you should have been charged or fined for failure to comply with the direction, please contact us so we can provide you with advice.
It is important that if you are considering contesting the matter that you get advice swiftly. If you pay the fine, or don’t take any steps in the required time frame (usually 28 days), it may be too late to get advice.
WANT TO KNOW MORE?
You can find out more by:

Heading to the Potts Lawyers or Lady Crim Lawyers Facebook Page; or
Checking out our Instagram pages (@pottslawyers and @lady.crim.lawyers); or
Calling one of our criminal lawyers on 5532 3133 – we would be happy to talk you through your options.

[1]“Household” means persons who ordinarily live at the same residence, including if family or kinship customs or cultural obligations have the effect of a person living across multiple residences.
[2]“Resident” has the meaning given in section 14 of the Residential Tenancies and Rooming Accommodation Act 2008(Qld).
[3]“Tenant” has the meaning given in section 13 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
[4]“Residential aged care facility” means a facility at which accommodation, and personal care or nursing care or both, are provided to a person in respect of whom a residential care subsidy or a flexible care subsidy is payable under the Aged Care Act 1997of the Commonwealth.
[5]“Corrective services facility” has the same meaning as in the Corrective Services Act 2006(Qld).
[6]“Detention centre” has the same meaning as in the Youth Justice Act 1992.
[7]“Corrective services facility” has the same meaning as in the Corrective Services Act 2006(Qld).
[8]“Detention centre” has the same meaning as in the Youth Justice Act 1992.
[9]“Residential aged care facility” means a facility at which accommodation, and personal care or nursing care or both, are provided to a person in respect of whom a residential care subsidy or a flexible care subsidy is payable under the Aged Care Act 1997of the Commonwealth.
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