by Jones + AssociatesRare “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:
- Is the crown at fault? and
- 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.
by Jones + AssociatesElectoral 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 + AssociatesDriving 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:
- You were driving a motor vehicle on a public road;
- You did not hold a valid driver’s licence; and
- 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:
- You had a valid licence at the time of the alleged offence;
- You were not driving on a public road as defined by law;
- Your licence was suspended on invalid grounds, or there is a dispute regarding the validity of your suspension;
- You were under significant duress or threat of violence, compelling you to drive; or
- 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 + AssociatesEnhancing 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.
by Jones + AssociatesHuman Trafficking in Australia
Human trafficking is a heinous crime that strips individuals of their fundamental rights and dignity. Despite the common understanding of Human Trafficking being the buying and selling of people, there are multiple forms of human trafficking throughout Australia and the world.
The modern day types of Human Trafficking in Australia include the following:
Sex Trafficking
Sex trafficking is one of the most common forms of human trafficking in Australia. Victims, predominantly women and children, are typically coerced or deceived into the commercial sex industry. They are subjected to sexual exploitation through brothels, massage parlours, and other illicit establishments. This form of trafficking often involves the exploitation of people either newly migrated to Australia or convinced to come to Australia by the ‘trafficker’.
Labour Trafficking
Labour trafficking involves the exploitation of individuals for their labour through force, fraud, or coercion. Victims are often promised jobs and wages but end up trapped in situations of forced labour, debt bondage, or domestic servitude. Industries such as agriculture, construction, hospitality, and domestic work are particularly vulnerable to labour trafficking.
Organ Trafficking
Although less prevalent, organ trafficking is a disturbing form of human trafficking in Australia. Victims are coerced or deceived into giving up their organs, often for financial gain or to pay off debts. This illegal trade not only exploits vulnerable individuals but also poses severe health risks to both donors and recipients.
According to the Australian Institute of Criminology, estimates establish between 600 and 1,800 victims of human trafficking in Australia at any given time.
Concerningly, the Global Slavery Index 2018 ranked Australia as one of the countries with the highest estimated prevalence of modern slavery, with approximately 15,000 people trapped in various forms of exploitation.
The Australian government has taken steps to combat human trafficking through legislation, such as the Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 and the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2021.
However, challenges remain, including identifying alleged victims, identifying and dismantling trafficking networks and addressing the causes of vulnerability, such as poverty, lack of education, and discrimination.
Recently, the Australian Federal Police (AFP) has intensified its efforts to combat human trafficking through various initiatives and operations. The AFP’s Human Trafficking Operations team coordinates investigations and works closely with domestic and international partners to dismantle trafficking networks.
One of the notable recent operations was Operation Rang Majori, a joint effort between the AFP and the Department of Home Affairs, which targeted a labour trafficking syndicate operating across multiple states.
The operation resulted in the arrest of several individuals and the identification of numerous victims who were subjected to forced labour and exploitation.
Additionally, the AFP has established the Human Trafficking Response Program, which provides specialised support services to victims, including accommodation, counselling, and legal assistance.
The Australian Government has devised a legal framework to address human trafficking offences. The primary legislation is the Criminal Code Act 1995, which criminalises various forms of trafficking, including trafficking in persons, trafficking in children, and domestic trafficking.
The maximum penalty for human trafficking offences is 25 years’ imprisonment. If the offense involves aggravating circumstances, such as subjecting a victim to cruel, inhuman, or degrading treatment, the maximum penalty can increase to imprisonment for life.
The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2021 further strengthened Australia’s laws by criminalising additional forms of exploitation, such as forced labour, forced marriage, and organ trafficking.
In addition to criminal penalties, the Proceeds of Crime Act 2002 allows for the confiscation of assets derived from human trafficking activities, disrupting the financial incentives for traffickers.
Despite these legislative efforts, challenges remain in effectively identifying and prosecuting human trafficking cases due to the complex nature of the crime and the vulnerability of victims.
Should you require further information or assistance please contact Jones + Associates.
by Jones + AssociatesCocaine Trafficking Sentence
Last week Jones + Associates appeared in the Supreme Court with our client who was sentenced for Trafficking cocaine for a period of one (1) year.
Based in Noosa, our client was sourcing drugs locally, interstate and on occasion internationally, primarily throughout the Covid lockdown period in 2020. He was sentenced on the basis that his ‘sales’ were predominantly “streel level”, being between 1-3 grams, but on occasion there were larger scale transactions.
Aggravating the offending was the allegation that there was a significant, albeit failed, transaction involving multiple hundreds of thousands of dollars, the fallout leading to serious threats being made by way of potential retribution.
The matter took a number of years to resolve after our client was initially arrested in 2021. The almost three (3) years was utilised positively by our client, who took the opportunity after being granted Supreme Court bail to undertake rehabilitative efforts, whilst also positively contributing to the community by working and supporting his family.
In that time, we were successful in ensuring other charged offences were discontinued, including Importation of dangerous drugs x 2 and contempt of court.
At sentence, we were able to tender to the court 11 clean urine tests on behalf of our client, which is the only way to prove someone’s rehabilitative efforts are genuine and successful.
The Presiding Justice sentenced our client to 4 years imprisonment, to be released on a suspended sentence after 12 months.
At the time of originally engaging Jones + associates, our client understood the real prospect of a significant jail term, potentially as much as 10 years. His successful result came from considerable hard work both by us as the lawyers and our client and led to his much reduced sentence.
Getting expert advice and representation is not only important when facing a trial but can be equally as important in achieving a successful outcome at sentence. The process of preparing for a sentence can involve negotiating charges, facts of each charge as well as providing advice as to what clients can do to best achieve a positive result. Having lawyers prepared to vigorously and competently defend their clients is extremely important, however as is having lawyers who are similarly as effective at negotiations when they become required.
At Jones + Associates we understand each matter and client is different and that providing the best representation is also providing the best advice and being able to negotiation effectively when required.
Should you or anyone close to you wish to discuss legal matters or require representation, call the experts at Jones + Associates on (07) 3229 3166.
by Jones + AssociatesFraud Case – Good Behaviour Bond
Our office recently acted for a client charged with Fraud over $30,000.00 and Receiving Tainted Property. After successful negotiations by our office, the offences were substituted with one count of Uttering. Samantha Farr of our office appeared for our client at the sentence proceedings before the Maroochydore District Court, at which time the presiding judge placed our client on a good behaviour order, conditioned that she be of good behaviour for 12 months. No conviction was recorded.
Case Summary:
During court proceedings in the Maroochydore District Court, our client admitted to presenting a falsified payslip to secure a $41,000 car loan in 2021. The prosecution alleged that our client, financially reliant on her former partner, was aware that he had fabricated payslips for her loan application, noting that he had sent her forged documents suggesting she earned a monthly wage from a company where she was not employed.
On behalf of our client, it was explained that the motive behind her conduct was to obtain a safe vehicle for her child, as she was pregnant at the time. The Presiding Judge pointed out that our client’s wrongdoing escalated when she requested a third forged payslip from her former partner. Nevertheless, our client was placed on a good behaviour order, conditioned that she be of good behaviour for 12 months.
Should you have any queries in relation to fraud and dishonesty related offences, you should contact Jones + Associates as a matter of priority on (07) 3229 3166.
by Jones + AssociatesJones + Associates Take on High-Profile Matter Pro Bono
Jones Associates Recently Take on High-Profile Matter Pro Bono
Jones + Associates recently represented a young person in the Supreme Court of Queensland charged with Murdering 15 year old, Angus Beaumont.
After a five day trial sitting before a Judge but without a jury, our client was found guilty of Murder.
The circumstances of the matter and the outcome, that being the death of a young man, were nothing short of tragic. The unfortunate outcome, however regrettable, does not though necessarily mean that the actions of the defendants were unlawful and it was on this basis the trial was conducted.
It was after careful consideration of the evidence and the relevant circumstances that Jones + Associates agreed to take on the as part of their pro bono scheme. We believed the client and the case was deserving of the considerable time and effort it takes to conduct a Supreme Court trial of this nature.
Whilst disappointed with the ultimate result we would like to thank Mr Patrick McCafferty KC, Mr Andrew O’Brien and Ms Lauren Gamble of counsel who all acted pro bono and worked tirelessly to provide our client expert and excellent representation.
Whilst not always popular, we will never shy away from the pursuit of justice and to ensure those before the courts are provided an ability to present their cases fully and expertly.
Should you or those close to you require legal assistance you should contact Jones + Associates on (07) 3229 3166.
The full judgement is available for download here.
by Jones + AssociatesCourt of Appeal Success – Conviction Overturned
Court of Appeal Success – Conviction Overturned in Queensland
Last week, Jones + Associates were successful in the Queensland Court of Appeal, which overturned the conviction of a man who was convicted of four counts of rape and three counts of indecent treatment of a child.
Shortly after coming into the matter, and after his conviction, it became apparent that the appellant was seemingly suffering from cognitive issues. As such, Jones + Associates obtained multiple expert reports which demonstrated that the Appellant was suffering from a major neurocognitive disorder, which was likely to have been impacting him at the time of his trial.
Further evidence was obtained demonstrating the appellant’s mental state had been deteriorating prior to trial. There became a real question as to whether the Appellant was fit to stand trial at the relevant time.
In appeals concerning fitness for trial, it would a miscarriage of justice if an accused had gone to trial and been convicted when he may not have been fit to stand trial and provide proper instructions to lawyers.
It was conceded by the Crown that the new evidence demonstrated that the appellant may not have been fit to plead and stand trial. As such, there was a real and substantial question to be considered about the appellant’s fitness, and that a miscarriage of justice had been established.
In the circumstances, the Court order the appeal be allowed, the convictions be set aside, and a new trial be ordered.
Whilst disappointing and frustrating that the Appellant stood trial whilst unfit and subsequently spending significant time in custody awaiting appeal – the team at Jones + Associates are proud at playing a part in correcting the result and achieve a positive outcome for the client and his family.
Should you wish to discuss any appeal matters or matters that involve mental health issues, please do not hesitate to contact the criminal law team at Jones + Associates.
by Jones + AssociatesSexual offences and Suppression Laws
Sexual Offences and Suppression Laws in Queensland
As of the 3rd day of October 2023, the laws in Queensland have changed to now permit the reporting of the names of persons who are charged with sexual offences.
The amendments to the Criminal Law (Sexual Offences) Act 1978 mean that the names of persons accused of sexual offences are no longer automatically suppressed.
Previously, it was unlawful to publish a complainant’s identity. Notably, that has not changed as a result of the new amendments – that is a complainant’s identity still cannot be published.
It was also unlawful to publish a defendant’s identity but only before they were committed for trial or sentence by a Magistrate.
The new amendments now permit publication of a defendant unless a non-publication order is made pursuant to an application to the courts for suppression.
There has been widespread media coverage surrounding these amendments, with opinions varied as to the utility of such amendments, and the naming of persons who are charged with sexual offences from the outset of the matter.
One of the loudest opinions shared was from Bill Potts, an experienced and well-known defence solicitor. Mr Potts expressed his approval of the amendments, noting it would promote ‘openness’ and also that any risks of naming defendants would be mitigated by fair reporting.
Despite the amendments, identities of complainants in these matters continue to be automatically suppressed. It is therefore disingenuous to suggest these amendments are truly promoting an open justice system when no information can be published that would likely identify a complainant at any time.
A truly open system would be one in which either all or no parties to a matter are able to be identified and therefore all parties open to the same level of scrutiny. Again, despite assertions from ‘experts’ like Mr Potts and the attorney general, complainants identities are routinely revealed in all other types of criminal matters – making these amendments nothing like those described as, “putting Queensland in line with other states and territories”.
There is no openness or fairness in a system where one person can ‘hide’ behind a serious criminal complaint and afforded anonymity but the person accused (despite being assumed innocent) is subject to fierce public scrutiny often accompanied by media commentary from non-experts. The court of public opinion is real and an ability for only one side of a matter to be subject to criticism and scrutiny is highly prejudicial.
This week’s significant media coverage of this matter only serves to remind us how much interest surrounds these types of matters.
Case in point is the recent highly publicised rape allegation in Canberra between Bruce Lehrmann and Brittany Higgins. Both parties endured fierce scrutiny however it epitomised fairness as neither parties identities were hidden. After all, why should a person’s identity be permitted to be hidden when their allegations could see an accused sentenced to a significant jail term?
Importantly, prosecutions in that matter declined to proceed on the basis that the complainant’s mental health was suffering. That leads to the question of whether an accused (again deemed to be innocent) would be afforded the same sympathy?
Another issue the Queensland Government fails to address by way of these amendments, is the erosion of one of the foundational principles of our justice system, that being any defendant is deemed to be innocent until proven guilty.
One of the benefits of the previous anonymity provided to those accused of sexual offences, is the protection from premature and uninformed public denunciation and life and career reputational damage that often accompany allegations of this nature. There can be no argument that we as a community condemn offences of a sexual nature more than any other, which is precisely why extra care ought be taken when reporting a person’s identity before these most unsavoury of offences are ever proven against them.
Whilst the justice system should balance the interests of both the accused and the accuser, this is what is already achieved by complaints being investigated and then prosecuted. The purpose of initiating a prosecution should not be to have an accused ‘named and shamed’. If a person is found guilty of a sexual offence, the matters will inevitably be reported in the media and the deserved ‘justice’ and pubic shaming would be achieved and would then be appropriate.
At the time a person is charged, no Court has tested the allegations or evidence in order to determine whether a person is guilty, let alone whether there is even a case to establish whether a person could be found guilty. The very real and negative consequences the reporting of a person charged with a sexual offences heavily outweigh any “justice” brought to a victim and the community by naming them at such an early stage.
It is important to remember that before these amendments, accused persons were able to be named, but only after a Magistrate deemed there was a case to answer. Why was this not enough?
Many people will naturally hold no sympathy toward accused persons and may not therefore be concerned with amendments such as this. However, what if it were you that were falsely accused? What if it were your son? Or brother?
We at Jones + Associates are experts at handling delicate matters such as these with diligence best proved by our unblemished results assisting those accused of sexual offences. Should you or those close to you require assistance regarding sexual type matters or the fresh amendments, you should contact us at (07) 3229 3166.