Criminal Law

by Jones + Associates

Adult Crime, Adult Time

The recently appointed Liberal National party campaigned heavily on a policy they entitled, “Adult crime, Adult time”.

There is no definition of “adult crime” because there is no such thing as “adult crime”. Put simply though, the tough on crime policy focuses on serious crimes impacting victims including:  

• Murder
• Manslaughter
• Serious harm like wounding
• Home and business break-ins and robbery
• Stealing cars and dangerous operation of vehicles.

The policy adds to the LNP’s previously announced changes to the Youth Justice Act which is set to be rolled out before 2025, including, removing “detention as a last resort”, and enshrining in legislation the rights of victims ahead of offenders’ rights.

In manipulating the issue of crime to garner votes, there are a myriad of issues ignored by the LNP’s policy, such as:

Developmental of youth:

• Research consistently shows the adolescent brain not being fully developed until around 25 years of age, particularly areas responsible for impulse control, planning and judgment.
• Young people have greater capacity for rehabilitation and behavioural change, compared with adults.
• Youth are more susceptible to peer pressure and less likely to consider long-term consequences.

Reaction to adult treatment:

• Studies show juveniles dealt with in adult courts/treated as adults have higher recidivism rates than those kept in youth systems.
• Young people in adult prisons face higher risks of:
  • Physical and sexual abuse
  • Mental health problems
  • Suicide attempts
  • Learning criminal behaviours from adult offenders

Proven Alternatives:

• Rehabilitation-focused youth justice programs show better outcomes
• Successful approaches often include:
  • Family involvement
  • Further and better education
  • Mental health intervention and support
  • Skills development
  • Restorative justice practices

Economic Considerations:

• Prevention and rehabilitation programs cost less than incarceration
• Better outcomes from youth-focused approaches reduce long-term costs to society
• Adult imprisonment can disrupt education and employment prospects, increasing lifetime welfare costs – which is to the communities detriment

A Global Perspective:

• Many developed nations have higher ages of criminal responsibility than Australia
• Countries with more rehabilitative approaches (like Norway and Germany) generally show better recidivism outcomes than here.

Whilst it goes without saying, there is currently an issue with (particularly violent) youth crime in Queensland and it is clear intervention is required.

However, statistics show the rate of the recidivist “problem” youth offenders is small and to respond with this type of harsh policy is short sighted will be detrimental to the community in the long-term.

The LNP, on its own website, acknowledges that youth crime has risen as the number of police officers has diminished. Yet, there appears no acknowledgement in the policy that policing numbers will be addressed.

Unfortunately, it leads to the conclusion that perhaps the stricter, almost draconian laws, are simply a “band-aid” to cover the lack of police.

Recently, there has been widespread concern over a proposal from some “only fans” content providers to attend schoolies and film explicit content with the 17/18 year old school leavers.

The concern has been this proposal is a ‘manipulation’ of the young men who are being ‘targeted’ by these older women.

It is striking that whilst many in Queensland are advocating for treating children as young as 14 years as criminal adults, the same people are expressing concerns for the manipulation of 17/18 year olds, as if they are too young and immature to be making their own free choices about their own bodies.

The justice system may not be perfect, but too frequently there are those with no meaningful experience as to what it entails and the complexities of dealing with matters and how to evaluate appropriate punishments for individuals.

Locking kids up and treating children as adults within the justice system is highly likely to cause more damage to society than it solves.

by Jones + Associates

How to show cause and apply for Supreme Court Bail

Show Cause 

The Bail Act 1980 is the primary legislation governing bail in Queensland, Australia. It outlines the procedures and considerations for granting or refusing bail to individuals charged with criminal offences. A key aspect of this Act is the “show cause” provision, which places the onus on certain defendants to demonstrate why their detention is not justified.

Under the Bail Act, some offences trigger a “show cause” situation. In these cases, the defendant must “show cause” why their continued detention is not justified. This reverses the usual presumption in favour of bail, making it more challenging for the accused to secure release.

Offences that typically invoke the show cause requirement include:

• Serious violent crimes;
• Offences committed whilst on bail for another indictable offence;
• Certain drug trafficking offences.

Domestic Violence and “Show Cause”

Not all domestic violence offences are automatically classified as show cause offences under the Bail Act 1980 (Qld). However, some domestic violence offences can become show cause offences in certain circumstances.

A domestic violence offence becomes a show cause offence if:

• The applicant has a history of violence (within the last 5 years);
• The applicant has a history of contravening release conditions, domestic violence orders, or other court orders (within the last 2 years);
• The offence involves the use or threatened use of a weapon;
• The offence is committed while the applicant is on bail for another indictable offence.

Considerations for “show cause”

When deciding whether the applicant has shown cause, the court considers various factors, including:

• The nature and seriousness of the offence;
• The strength of the evidence against the accused;
• The accused’s criminal history and any previous failures to appear in court;
• The potential risk to public safety;
• The likelihood of the accused interfering with witnesses or evidence.

The show cause provision significantly impacts bail proceedings by shifting the burden of proof to the applicant. This can make it more difficult for individuals accused of serious crimes to obtain bail, as they must actively demonstrate why their detention is not justified rather than relying on a presumption in favour of bail.

Applying for bail in the Supreme Court

You can apply for Supreme Court bail in Queensland in a few circumstances. Such circumstances include:

1. After a Magistrates Court has refused bail.

If a Magistrate has refused bail, you can apply to the Supreme Court for bail. This is often done when new information becomes available, or circumstances have changed since the initial refusal.

2. Directly to the Supreme Court.

For certain serious offences, bail applications must be made directly to the Supreme Court. These typically include murder.

3. When facing Supreme Court charges.

If you’re charged with an offence that will be heard in the Supreme Court, you can apply for bail there.

4. Review of bail conditions.

If you want to vary bail conditions set by a lower court, you can apply to the Supreme Court for a review.

It’s important to note that applying for Supreme Court bail is a complex process. It often requires strong legal arguments and sometimes new evidence or changed circumstances to justify the application, especially if bail has been previously refused in a lower court.

As with many areas of the law, receipt of good advice and an astute tactical approach to applications are paramount in maximising the chances of success. At Jones + Associates, we have a reputation for achieving successful bail results after others have failed.

Navigating the complexities of show cause bail requires a thorough understanding of the law, a careful examination of the facts, and persuasive advocacy.

If you or a loved one requires a bail application, please contact our office.

by Jones + Associates

Citizen’s Arrest – Are you the next Michael Voss?

After the recent headlines surrounding Carlton AFL coach and Brisbane Lions legend Michael Voss’s recent citizen’s arrest, it is important to be aware that the legislation surrounding these arrests is complicated and carries risk.

Performing a citizen’s arrest is a dangerous exercise as there are risks to the physical safety of everyone involved. Further to the physical risks, any person attempting to conduct a citizen’s arrest may be liable to be sued on a civil basis should they do so outside the strict laws permitting such an arrest.

The circumstances in which a person can lawfully conduct a citizen’s arrest are outlined within the Criminal Code (Qld) 1899. Chapter 58 of the code lists prescribed circumstances for which a person may complete a citizen’s arrest in relation to certain offences. These include:

• if asked by a police officer to help with the arrest of another person suspected of committing an offence, unless they know there is no reasonable basis for the officer’s suspicion;
• witnesses someone committing an offence for which the police can make an arrest without a warrant;
• reasonably believes that a person has committed an offence for which an arrest can be made by police without a warrant, regardless of whether the person actually committed the offence;
• reasonably believes that property offered to them for sale, pawn, or delivery has been obtained through an offence for which a person can be arrested without a warrant;
• is in command of an aircraft, is on board the aircraft, or has authority on the aircraft, and finds someone committing an offence, or reasonably believes that the person has committed, attempted to commit, or intends to commit an offence related to or affecting the use of the aircraft;
• witnesses someone committing an indictable offense at night or believes on reasonable grounds the other person is committing the offence; and
• finds someone who they reasonably believe has committed an offence and is escaping from another person who they reasonably believe has the authority to arrest that person for the offence.

Arrest procedure

In order to comply with the law, it is not enough to simply ‘tackle’ or ‘detain’ a person. The proper procedure to conduct a lawful citizen’s arrest necessitates the following:

• Clearly state that you are making a citizen’s arrest and why;
• Do not use any more force than is both reasonable and necessary;
• Immediately call the police;
• Do not question or search the person other than to ensure they do not have weapons;
• Stay with the person until police arrive;
• Hand over the arrested person to police as soon as they arrive.

Upon arrest, it is the duty of the person who has arrested another to take the other person before a justice, or police officer, to be dealt with according to law.

It is important to note the person being arrested has rights that must be observed, such as:

• To be advised of the reason for their arrest;
• Be treated with reasonable care and not subjected to unnecessary force;
• Be permitted to remain silent and not be forced to answer questions;
• To be handed over to police as soon as practicable;
• To be released immediately if it is determined there are no reasonable grounds for arrest;
• To be permitted to seek legal representation;
• To make a complaint or take legal action if they believe the arrest was unlawful

The types of crimes a person must have or suspected to have committed are restricted to more serious offences, such as:

• Indictable offences (those that must be dealt with in District or Supreme Court);
• Offences of violence;
• Property crimes such as stealing.

It is important to note that minor offences and matters such as civil disputes do not empower a person to perform a citizen’s arrest.

The risks of deciding to perform a citizen’s arrest are significant, and include the following:

False imprisonment

If it is determined the citizens’ arrest is unlawful, you could face both civil and/or criminal charges.

Assault charges

Even if the arrest was permitted by law, the use of excessive force could lead to assault charges, such as common assault, assault occasioning bodily harm or even grievous bodily harm.

Civil liability

The person arrested could sue for damages, even if the arrest was justified but improperly executed.

Safety risk

There is a significant risk of the situation becoming violent, endangering yourself and others, including the person being ‘arrested’.

Whilst the idea of conducting a citizen’s arrest may sound appealing given the recent publicity surrounding property crimes, it is a decision that carries significant risks and potentially serious consequences.

Arrests such as the one conducted this week by Michael Voss make for compelling media stories, but it is usually little more than good luck that these types of arrests occur without incident.

Purely from a legal perspective, it is our advice that the physical and legal risks to a person outweigh the benefits of stopping a suspected crime from occurring.

Should you need any advice in relation to a citizen’s arrest, please contact Jones + Associates on (07) 3229 3166.

by docked_d32xj4

Navigating Queensland’s Alcohol Interlock Program: Legal Implications and Challenges

Alcohol interlock devices are part of a recently introduced program aimed at reducing drink driving offences in Queensland. An interlock is fitted to vehicles which does not allow the vehicle to be started or driven until the driver registers a blood alcohol reading of 0.00%.

Courts cannot waive an interlock condition, as it is a condition imposed upon a person’s license, rather than a ‘punishment’ imposed by a court.

A person becomes required to have an interlock device installed if they are convicted of any of the following:

• Drink drive, with a reading over 0.10% (middle range or higher);
• Drive whilst under the influence;
• Failure to provide blood/breath specimen;
• Dangerous driving whilst affected by alcohol;
• Repeat drink driving offences within 5 years.

After serving the necessary disqualification period, a person is then required to have an interlock device fitted all vehicles they drive for a period of at least 12 months.

Some important other matters regarding interlock devices are as follows:

• Cost – the person with the interlock requirement is responsible for all costs associated with the installation, regular maintenance and removal of the interlock device;
• Compliance – regular servicing of the device is required, and all breath test data is monitored.
• Penalty – driving without an interlock device when required or tampering with the device can result in further penalties, including fines, additional license disqualification as well as extensions of the interlock period.

Whilst there are exemptions to the interlock requirement, any exemption must be applied for by way of submission to the Department of Transport.

Exemptions are limited to the following categories:

• Medical exemption

Unable to provide a specimen of breath

• Geographic exemption

No interlock services available

• Vehicle exemption

Do not have access to vehicle/vehicle cannot support an interlock device

• Work-related exemption

In limited cases, where the interlock would significantly impact the person’s employment

• Financial hardship

In rare cases, extreme financial hardship might be considered

• Extraordinary circumstances

Other exceptional situations may be considered on a case-by-case basis

Exemptions are rarely granted and can only be applied for after the court proceedings are finalised, meaning a person does not have the requisite information about their punishment before finalising their court matter.

This adds to the complexity for lawyers to give accurate and appropriate advice to those charged with relevant driving offences.

Interlock requirements and work licenses

A person convicted of drink driving may, in certain circumstances, be eligible for a work license.

If a person registers a BAC reading of between 0.10% – 0.15%, then not only are they required to comply with an interlock requirement but are also eligible to be granted a section 87 work license.

Work licenses are granted only in circumstances where the court is satisfied that the absence of a license would cause a person to lose their employment.

Often, a person’s employment requires them to operate different company vehicles or hire cars. When granting a work license, courts can formulate and impose conditions to allow for these relatively common work requirements. However, an issue arises when the interlock condition is imposed by the Department of Transport.

The interlock program does not contemplate common work requirements, such as the need to utilise various vehicles such as fleet vehicles or hire cars.

Situations such as these undermine the court’s discretion to permit people to apply for and obtain a work license, after convictions for certain driving offences. Necessarily, any recipient of a work license that is then impeded from driving due to the interlock requirement, would lose their employment and means to earn a living.

The granting of a work license occurs only after the court is satisfied with certain legislative requirements. An interlock mandate effectively makes the work license regime redundant and erodes the court’s ability to determine when a person is ‘fit and proper’ and should appropriately be permitted to continue to drive for work purposes.

It is Government initiatives such as this that, in effect, interfere with the independence and discretion of the court and specifically the discretion surrounding the granting of work licenses.

It is also difficult to comprehend how a mandatory program such as the interlock program can have a globally positive effect, in circumstances where more people will lose their livelihoods as a result of the program. After all, it is why s87 work licenses were enacted in the first place.

Should you or those close to you require assistance in relation to traffic offences, disqualifications, work licenses or advice regarding the interlock program, you should contact Jones + Associates at (07) 32293 166.

by Jones + Associates

Excessive Force and Charge Justification: Is this a Growing Trend in Queensland?

It has been recently reported that an Ipswich man was assaulted by police in late 2023 whilst attempting to fill his car at a service station, resulting in his arm being broken.

Changamire Chipangamazano was at a service station and was moving his car to the relevant bowser when he was approached and arrested by police for allegedly not wearing a seatbelt. During the course of placing him under arrest, for a traffic offence that carries a maximum penalty of a fine, his arm was broken by police.

Pursuant to the Queensland Road Rules, the penalty for failing to wear a seatbelt is a fine of $1,209.

Concerning incidents such as these erode public faith in the police and raise many questions, such as:

• Why does allegedly not wearing a seatbelt warrant questioning?;
• Why would police consider arresting someone for not wearing a seatbelt?;
• Why are police so quick to even consider arresting or detaining a person in these circumstances?;
• Why are techniques used by police that have the tendency to break people’s arms?

On top of having his arm broken, Mr Chipangamazno was then charged with obstructing police and forced to attend court.

That charge was later discontinued.

This matter bears a striking resemblance to an experience of one of our clients at Jones + Associates, who was also charged with obstructing police after having his arm broken by police.

In that case, police refused to discontinue the offence and our client was forced to contest the matter at trial, which he subsequently won as a result of the magistrate finding the police had no lawful reason to attempt to arrest our client. Costs were ordered against the Queensland Police Service, at the conclusion of the matter.

Issues such as excessive police force as well as the practice of charging persons as a means of justifying police actions, are not uncommon.

Should you or anyone close to you experience excessive force by police or feel harshly treated by authorities, you should contact us at (07) 3229 3166.

by Jones + Associates

Supreme Court Bail success

Jones + Associates were recently successful in securing Supreme Court bail for a client charged with possessing 1kg of methamphetamine.

Due to the seriousness of the alleged offence, a relevant criminal history as well as being subject to parole at the time, our client’s application was opposed by prosecutions.

Despite the obvious difficulties facing the application, the hard work of our team revealed arguments we believed could overcome the objections of prosecutions.

Upon hearing the arguments on behalf of the defendant, the court granted the defendant bail. This was a fantastic result achieved in no small part to the hard work of the team in preparing what was an extremely difficult application.

Should you or those close to you require advice or assistance regarding bail, you should contact Jones + Associates on (07) 3229 3166.

by Jones + Associates

Rare “Mosley Order” awarded

Recently, Jones + Associates were successful in obtaining a “Mosley Order” for one of our clients.

The District Court in Cairns made the order, which is a temporary stay of criminal proceedings until and unless costs are paid to the defendant. In this case, the crown were ordered to pay $50,000.00 in order to be permitted to continue their prosecution against the defendant.

A “Mosley Order” is only able to be awarded in the event the court can be satisfied of both the following:

1. Is the crown at fault? and
2. Did the crown’s actions result in unfairness and detriment to the defendant?

In this case, the court found the crown seriously defaulted in two (2) aspects. First, the crown failed by not securing a crucial witness’ attendance for the trial, set to commence on 29 April 2024.

The crown’s inability to secure the witness was deemed to be a serious failure due to the fact that the crown case could not succeed without that witness. In fact, that witness was the foundation of the crown case. Furthermore, the witness was actually compelled to attend, as he had previously received a discount on his own criminal sentence in exchange for agreeing to testify.

Despite this, the crown did not subpoena the witness. Neither did they attempt to exercise their power to compel that this witness attend, which they had the power to do pursuant to the Evidence Act.

Instead, the crown made application to adjourn the trial, arguing all reasonable steps were taken to have the witness attend.

Secondly, the court found the crown failed in their duty to disclose all materials that would tend to assist the case for the defendant. Despite repeated requests from defence since 2021, the crown failed to disclose evidence labelled “email exchange folders”, despite that evidence being listed on the initial index of exhibits in 2018.

Contrary to the multiple reasons provided to defence for the lack of disclosure, the crown submitted to the court that they were not “in possession” of the material as was required by the Criminal Code to make the material strictly disclosable. The court disagreed and found that not only did prosecution have possession of the materials, but they were also locatable without unreasonable effort.

As a result of these failures by the crown, the trial was adjourned to a date to be fixed. The court found the adjournment as a result of the crown’s failures was unfair to the defendant and subsequently caused him detriment.

It was found the appropriate remedy was to issue a “Mosely Order”, temporarily staying the proceedings until and unless the Crown causes $50,000.00 to be paid to the defendant.

Whilst orders such as these have occurred sporadically in other jurisdictions, this is the largest successful reported instance of a “Mosley Order” being granted in Queensland and the first of its kind in at least five years.

The team at Jones + Associates are proud to have achieved this rare outcome for our client. This result ensures there is precedent for a new mechanism available to defendant’s (whether individuals or companies) to ensure fairness in government-funded prosecutions.

Should you or those close to you require assistance navigating the justice system, call Jones + Associates on (07) 3229 3166.

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by Jones + Associates

Electoral fraud – Liberal party candidate

Last week, Jones + Associates appeared in the Brisbane Magistrates Court on behalf of a client charged with ‘electoral fraud’.

On May 31, 2024, our client entered a plea of guilty before the court acknowledging he registered the incorrect address on the Australian Electoral Roll via the AEC Online Enrolment Form. That address was being informally leased by our client, but he was yet to physically move to that address, which is a requirement at law.

The learned sentencing Magistrate took all relevant matters into account before ordering that the client enter into a recognisance in the amount of $1,000.00, conditioned to be of good behaviour for a period of two (2) years (Section 19B(1)(d) of the Crimes Act). Consequently, a conviction was not recorded.

In contemplating the appropriate sentence, the court considered various matters in mitigation, including our client’s otherwise impeccable character, contributions to the community and that this matter had been attended with significant media attention.

This finalises a lengthy and stressful time in our client’s life.

Whilst preparing the matter, it became clear that similar issues had arisen in the 2022 Federal election. Notably, a Labour candidate, who was previously held in high regard as a senior economic advisor to the former Prime Minister, was registered to vote in a different electorate to where that candidate was campaigning. Following the Federal Election, that candidate secured his seat. He addressed the allegations, admitting it was an election oversight.  Remarkably, the matter was not referred to the AFP for investigation that candidate was not charged for his alleged wrongdoing.

Should you or those close to you ever require assistance or advice in relation to any Commonwealth matters you should contact us at (07) 3229 3166.

by Jones + Associates

Driving on a Suspended or Disqualified Licence in Queensland: 2024 Update

More than ever before, a valid driver’s licence is essential for getting to work, school, grocery stores, medical appointments, and places of worship. Particularly in rural areas, driving is often the only practical way to maintain social connections with neighbours and the broader community. However, it is important to remember that the right to drive is a privilege, not an entitlement.

Driving while your licence is suspended or disqualified is a serious offence that can lead to significant penalties. In this updated article for 2024, we will discuss what you need to know about these offences and the potential consequences.

Driving on a Suspended Licence in Queensland

Under the Transport Operations (Road Use Management) Act 1995, it is illegal to drive on a public road in Queensland without a valid driver’s licence. If you are caught driving whilst your licence is suspended or expired, you will face penalties which may include imprisonment. To be convicted of driving on a suspended licence, the prosecution must prove that:

1. You were driving a motor vehicle on a public road;
2. You did not hold a valid driver’s licence; and
3. Your driver’s licence was suspended in Queensland and for what specific reason.

The severity of the punishment upon conviction will depend on the specific circumstances of your case, including any mitigating or aggravating factors.

Driving whilst Disqualified in Queensland

Disqualification is the harshest penalty that can be imposed against a person’s license by a Queensland court. When a person’s licence is disqualified, it is physically confiscated, and their driving privileges revoked for a specified period. After the disqualification period finalises, a person must apply for and receive a new licence before they can lawfully re-commence driving.

It is important to note that you cannot drive once your driver’s licence is disqualified, with one exception: if you qualify for and obtain a restricted driver’s licence for work-related purposes. If you are caught driving on a public road without a restricted licence during the disqualification period, you will be charged with driving whilst disqualified.

The penalties for a conviction for driving whilst disqualified begin at a further 2 year disqualification period as well as a potential period of imprisonment. The exact penalty will depend on the specific circumstances of your case, taking into account both mitigating and aggravating factors.

Penalties for Driving on a Suspended Licence and Driving whilst Disqualified

From 2023, the penalties for driving on a suspended licence in Queensland are the same as those for driving without a valid licence. For a first offence, you could face a fine of up to $5,514.00 and a maximum period of one (1) year imprisonment.

However, in some circumstances including if you have not committed a similar offence within the last 5 years, you may be able to avoid the requirement to attend court. In these circumstances, police have a discretion to issue an infringement notice and can instead issue a maximum fine of $5,514.00.

Magistrates Courts, which typically hear traffic offences, do not always possess a discretion as to whether or not to impose disqualifications. If found guilty of driving while your licence is suspended, your licence will be confiscated for a maximum of 6 months, regardless of any other penalties imposed.

Driving whilst disqualified is considered a more serious offence and carries more severe penalties. Upon conviction, your driver’s licence will be confiscated for a minimum of 2 years and a maximum of 5 years. You may also face substantial fines and up to 18 months in jail.

The Importance of Experienced Queensland Criminal Lawyers

If you are charged with driving on a suspended licence or driving whilst disqualified in Queensland, it is crucial to have a qualified lawyer on your side. Our experienced Criminal Law team at Jones + Associates can quickly assess your situation and develop an effective defence strategy. Depending on your specific circumstances, we may argue that:

1. You had a valid licence at the time of the alleged offence;
2. You were not driving on a public road as defined by law;
3. Your licence was suspended on invalid grounds, or there is a dispute regarding the validity of your suspension;
4. You were under significant duress or threat of violence, compelling you to drive; or
5. You had to drive due to an emergency or similar situation.

With your livelihood and freedom at stake, it is essential to act quickly. Contact our team to learn more about how we can help.

by Jones + Associates

Enhancing Protections for Vulnerable Witnesses: The Potential Impact of the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024

The Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024, recently introduced in the Australian Parliament, aims to bolster protections for victims and survivors of child sexual abuse and vulnerable persons in Commonwealth criminal proceedings. This legislation has the potential to significantly improve the experiences of vulnerable witnesses and victim-survivors engaging with the criminal justice system, while also raising important considerations regarding its practical implementation and interaction with existing State and Territory laws.

Key Measures and Their Potential Impact

One of the most notable aspects of the bill is the expansion of circumstances in which vulnerable people involved in court proceedings as complainants or witnesses are afforded enhanced protections. This includes making evidence about sexual reputation inadmissible for all victims and survivors of child sexual abuse and placing greater restrictions on evidence relating to a person’s sexual experience. By limiting the admissibility of such evidence, the bill seeks to reduce the potential for re-traumatisation and encourage more potential complainants to come forward and participate in the criminal justice process.

The introduction of pre-recording of evidence hearings is another significant measure proposed in the bill. This allows for the pre-recording of a vulnerable person’s evidence, which can then be used in subsequent trials and retrials. By minimising the need for vulnerable witnesses to repeatedly provide testimony, this reform aims to address barriers that may deter people from giving evidence.

The bill further clarifies that complainants may publish self-identifying information or give informed consent to a third party, such as a media organisation, to publish that information.

Balancing Protections with Fair Trial Rights

While the enhanced protections for vulnerable witnesses are generally welcomed, it is crucial to ensure that these reforms are balanced against the crucial and fundamental right to a fair trial. As Greg McIntyre SC, president of the Law Council of Australia, notes, an accused must still be able to test the evidence against them. The bill’s expansion of protections applies to a specific list of offences, including crimes against humanity, war crimes, and drug offences involving children, which tend to help maintain this balance.

The provision allowing courts to order pre-recorded evidence hearings for vulnerable persons, if satisfied that it is in the interests of justice to do so. This aligns with recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. However, the practical implementation of this measure will require careful consideration to ensure that procedural fairness is maintained for all parties involved.

Interaction with State and Territory Laws

One potential limitation of the bill’s impact is that it only applies to Commonwealth sexual violence offences, while the vast majority of sexual crimes fall within the legislation of individual States or Territories. For example, some of the protections proposed in the bill, such as recording complainant evidence for later use in trials, are already in place in some states like New South Wales.

However, the bill does introduce changes that go beyond some current State legislation. For example, it restricts evidence of a complainant’s prior sexual experience only to activities with the defendant, which is narrower than most current State provisions. The bill also allows for the pre-recording of adult complainant evidence, representing a significant shift in how criminal trials have traditionally operated.

The interaction between the proposed Commonwealth provisions and existing State and Territory laws will require careful navigations to ensure consistency and avoid unintended consequences. Obviously, the importance of clarifying how these provisions will work together, particularly in cases involving both Commonwealth and State or Territory offences, cannot be understated.

Looking forward

As the Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Bill 2024 progresses through the legislative process, it will be essential to closely monitor its potential impacts and address any concerns raised by stakeholders. The bill’s passage through the committee review process will provide an opportunity for further scrutiny and refinement to ensure that it achieves the intended objectives whilst upholding the principles of a fair and just criminal justice system.

If you would like to know more about the proposed legislation, talk to one of the team at Jones + Associates today.