by Jones + AssociatesNot guilty of obstructing police
Jones + Associates recently appeared before the Magistrates court
Jones + Associates recently appeared before the Magistrates court for a man charged with having obstructed police at a Brisbane police station.
Our client, in the course of being arrested, has his arm broken by police. He was subsequently charged with obstructing police in the course of the arrest which led to the injury.
The entire interaction was recorded on video by both police and CCTV within the police station.
We were successful in arguing there was no case for our client to answer and subsequently the charge was thrown out by the court.
Further, costs were awarded against the police to our client.
Should you ever have issues with the police or are charged with any criminal offense, contact Brisbane Criminal Lawyers for legal assistance.
by Jones + AssociatesCriminal Convictions, Criminal History and Employment
Impact of Clients’ Criminal Matters on Their Job and Employment Prospects in the Future
Clients are often concerned about the impact of their criminal matters on their job and employment prospects in the future. While this article provides important information for people facing criminal convictions or with a criminal history, employers should also take note. While some employees simply cannot do their job because of their criminal history (for example, where they require security clearances), employers should take care when making hiring decisions where applicants have a criminal history. Where a person’s ability to do their job is in no way impacted by their criminal history, employers must take care not to fall foul of anti-discrimination law. Additionally, it may pay to enquire as to the circumstances surrounding an applicant’s offending. Your best employee may have made a foolish mistake or shown a lapse in judgement which has resulted in their criminal history. Jumping to conclusions about a person’s trustworthiness may be at the cost of securing the most competent, hardworking, and loyal employees.
If you are convicted of a criminal offence and a conviction is recorded against you, your criminal history may impact your current employment or your ability to get work in the future.
Employers seek information about current and potential employee’s criminal histories in a number of ways such as:
- Asking for the employee to disclose their criminal history;
- Asking more specific questions such as whether you have ever gone before a Court in relation to a criminal matter or pleaded guilty to a criminal offence;
- Asking for consent to conduct criminal history checks;
- Requiring that employees consent to policies that impose disclosure obligations for any criminal convictions that arise during the course of the person’s employment.
If you are concerned about how your current criminal matters or past criminal convictions may impact your current or future employment, you should obtain legal advice as soon as possible.
Rehabilitation Periods
Certain convictions are subject to what is known as a rehabilitation period. When the rehabilitation period expires, you are entitled to state that you do not have a criminal history, except in certain, limited circumstances. When an adult is convicted on indictment (i.e. in the District Court or the Supreme Court of Queensland) and a conviction is recorded against them, the rehabilitation period usually occurs 10 years after the date of the conviction.
Where a conviction is recorded, other than on indictment (i.e. in the Magistrates Court), the rehabilitation period usually occurs 5 years after the date that the conviction is recorded. Subject to limited exceptions, where the rehabilitation period has expired, it is lawful for a person to claim that they have not been convicted of an offence.
Rehabilitation periods do not apply to certain offences, specifically, where the person has been sentenced to serve any period in custody or a period not exceeding 30 months in custody. This applies whether or not the person actually serves any part of their sentence in custody.
Current Employment
Situations can arise where an employer assumes or for some other reason, incorrectly believes that their employee does not have a criminal history. Where an employer later discovers that this is not the case, the Fair Work Commission has found that, in some instances, undisclosed criminal history is an insufficient basis upon which to terminate a person’s employment.
In Njau v Superior Food Group Pty Ltd [2018] FWC 7626, the Fair Work Commission found that an undisclosed criminal history was not a sufficient basis for dismissing an employee. In that case, the person’s employer could not establish how her criminal history made her unfit for her position. In this matter, the employee did not comply with the employer’s policy to disclose relevant criminal convictions. Some years after starting her employment, her employer asked to conduct criminal history checks on her. Initially, she resisted this but ultimately, she co-operated, and her criminal history came to light. In this situation, the employee’s dishonesty in not disclosing her convictions when she was initially employed was found to be disproportionate to the employer’s response in terminating her employment. Significantly in this matter, the employee was able to perform the functions of her role despite her criminal history.
It’s important to remember that the financial compensation recoverable through the Fair Work Commission in unfair dismissal matters is limited. Reinstatement of employment is described as the ‘primary remedy’ under the Fair Work Act 2009 (Cth) however it will not be ordered if the Commission is satisfied that reinstatement is inappropriate. Reinstatement will not be appropriate where the relationship between the employee and the employer has broken down to an extent that it is simply impractical for the two to work together again. It’s easy to see how this relationship might quickly disintegrate prior to or in the course of litigation.
This is a significant consideration for applicants when disclosing their criminal history in the course of applying for new employment opportunities. While it may be difficult or embarrassing to disclose criminal history, failure to do so when directly asked may jeopardise your prospects of obtaining reinstatement as a remedy if your history is subsequently discovered and your employer moves to terminate your employment on the basis of your criminal history.
Importantly, these cases turn on their specific facts and may or may not be relevant in considering your circumstances. If you are concerned about your criminal history and whether or not it will impact your prospects of employment in the future or your current employment, you should seek legal advice.
The Law – Human Rights and criminal history
The Australian Human Rights Commission also offers some recourse to people who are subject to adverse action in their employment situation as a result of their criminal history. In the 2015 case of AW v Data#3 Limited [2015] AusHRC 105, the Commission considered a complaint from an employee whose employment was discontinued when his employer became aware of a criminal history he had. The criminal history related to the sale of dangerous drugs.
Ultimately, the Commission found that it was discriminatory to terminate the complainant’s employment on the basis of his criminal history. The Commission recommended that the employee be compensated for the earnings he lost as a result of the discriminatory termination and for the personal distress caused to him. The amount ordered was approximately $75,000.00.
In that matter, it was a fundamental consideration that although employees may be required to obtain security clearances or pass police checks on any given project, the ability to do so was not an inherent requirement of every person holding the position.
Importantly, while this matter establishes that there may be recourse to the Australian Human Rights Commission in instances where an employee is discriminated against on the basis of their criminal history, each matter is different and must be considered on its own specific facts.
It is important to note that while the Commission is empowered to conciliate these matters, they cannot order the payment of compensation.
If you or someone you know is currently concerned about the impact of their criminal history on their current or future employment, call Criminal Lawyers Brisbane at Jones + Associates for legal advice.
by Jones + AssociatesJones + Associates Represent Man Charged with Attempt to Smuggle 200kg of Cocaine
We Represent Man Charged with Attempt to Smuggle 200kg of Cocaine
Yaacov Amsalem, a 50-year-old Israeli national, faced a Brisbane court on Tuesday following his extradition from the Philippines.
Amsalem is facing charges of conspiracy to import a commercial quantity of a border-controlled drug and conspiring to traffic a commercial quantity of a controlled drug and conspiracy to deal in the proceeds of crime exceeding $1 million.
by Jones + AssociatesAlleged International Drug Lord to Be Represented by Jones + Associates
Alleged International Drug Lord to Be Represented by Jones + Associates
After several years of hiding in the Philippines, Yaacov Amsalem, a French-Israeli national, was turned over to Australian authorities – considered a ‘high-value international drug lord and fugitive,’ according to the Philippines National Bureau of Investigation (NBI).
He appeared on Monday in the Brisbane Magistrates Court, represented by Alex Jones of Jones + Associates.
Amsalem was arrested in a bar in Makati Philippines in 2014 having successfully evaded police for many years. Identified by Australian authorities and declared an international fugitive by Interpol, Amsalem was hiding with former soldiers and bodyguards when the arrest was made.
Australian Police tipped off the Philippines NBI which led to the arrest and subsequent extradition to Queensland.
Amsalem will quarantine in Brisbane before an application will be made by the Commonwealth Director of Public Prosecutions to extradite him to New South Wales to face charges of conspiracy to import drugs, conspiracy to traffic drugs, and conspiracy to deal with monies.
What Do The Next Step?
Contact our experienced Brisbane drug lawyer or fill out an online contact form to hear back from a member of the criminal lawyer’s team today.
by Jones + AssociatesRSPCA Prosecutions and Offences Under the Animal Care and Protection Act 2001
The Animal Care and Protection Act 2001 places a duty of care upon people in charge of animals. This duty of care extends to the provision of food, water and appropriate living conditions. Animals must also be allowed to display normal patterns of behaviour, be provided treatment for illness and injury and be handled appropriately. A person in charge of an animal must take reasonable steps to address these matters.
While there may be a broad consensus as to what amounts to cruel treatment of an animal, whether a person has complied with their duty of care can be a more contentious issue. In determining whether a person has acted appropriately in the care of their animals, the legislation provides that regard must be had to the steps a reasonable person would reasonably be expected to have taken in the circumstances.
Prohibition Orders
A person who is sentenced for offences under the Animal Care and Protection Act 2001 may be ordered to comply with a prohibition order. Prohibition orders can be for a certain, limited period of time or continue indefinitely. They can also apply to all animals or a particular type of animal. Any animal lover would appreciate the anguish associated with such a prospect.
The court is empowered to make a prohibition order where, on the balance of probabilities, it is “just” to make the order in the circumstances. In considering whether it is just, the court must consider various matters including: the nature of the offence the person is charged with, the effect of the offence on the animal, the welfare of the animal and the likelihood the person will commit another animal welfare offence.
Costs
If a person’s animals are seized under the Animal Care and Protection Act 2001, including by the RSPCA, they may be ordered to pay compensation for the costs associated with taking possession of the animals, providing them with accommodation, food, rest or water or arranging for it to receive veterinary or other treatment. For large animals, such as horses, or animals requiring significant medical care, these fees can become exorbitant.
If you or someone you know requires legal advice in relation to animal care and protection or RSPCA matters, contact Grace Townsend at Jones + Associates today.
by Jones + AssociatesCan I Appeal My Sentence in Queensland?
Many Australians may find themselves dealing with a Court matter at some point in their lives. And many of those people will end up feeling decisions made against them, such as conviction and sentencing, were made in error. Luckily, a fundamental tenet of our legal system is the right to appeal a decision against you to a higher court. Below we cover some of the most frequently asked questions about appeals in Queensland but you should always seek a lawyer’s guidance in order to have the best chance at a successful appeal.
When can I make an appeal?
In Queensland, you are generally only able to make an appeal after a sentence has been handed down by the Court. In criminal cases, you can only appeal a guilty verdict and/or a sentence. In both criminal and civil matters you may need to seek leave (permission) to appeal, depending on the original court in which the case was heard.
It can be difficult for a layperson to accurately assess his or her chances of success on appeal. Advice from a lawyer about the grounds on which you should base your appeal and its overall strength should be a priority for anyone disappointed with the initial decision against them.
Steps of the appeal process
Though each case is unique, there is a general order to an appeals process.
- Appeal Book: Once a judgement you regard as unsatisfactory is handed down, you can begin the process of building your case for appeal. You don’t need to start from scratch and in any case, will rarely be permitted to introduce new evidence during an appeal, but you can condense the materials from your original case into an ‘Appeal Book’. The Appeal Book must be purchased by parties to a trial though the fee can be waived if financial hardship can be shown.
- Grounds for appeal: When gathering these materials, a criminal lawyer will be able to review, organize and prioritise the information to give you a better idea of what your grounds for appeal may be.Common grounds of appeal
- Unsafe and unsatisfactory verdict: The jury’s verdict was not supported by the presented evidence and was thus unreasonable.
- Manifestly excessive sentence: The sentence was inordinately severe in light of the circumstances of the case.
- Error of Law: There may have been a mistake regarding the instructions given to the jury, the inclusion or exclusion of certain pieces of evidence, or the reliance upon the wrong facts when reaching the verdict.
- Notice of Appeal: When you are filing an appeal, you need to put several parties on notice to appeal within the time constraints set down by the particular court jurisdiction. These time limits are quite rigid, and failure to comply with them will likely result in yielding some or all of your appeal rights. Though time limits vary, they can be as short as a month after the original decision is handed down, so it is important to act fast.The Notice of Appeal is a formal legal document that provides important pieces of information, including the names of all parties and litigants who will have an interest in responding to the appeal, the date of the original court decision, the initial plea entered, all other pertinent details about the original case, your grounds for appeal, and your argument defending the need for an appeal.
- Appeal bail: A successful application for appeal bail will mean that a person whose sentence included a term of imprisonment can remain free until the time of the appeal. However, in order to gain an opportunity for bail pending appeal, you will need to demonstrate that the case is “exceptional”. An exceptional case is one where there is evidence of “strong grounds for concluding that the appeal will be allowed” and where a substantial portion of the sentence will be served before the appeal can be decided.
- Arguments: Preparation is key. The best way to win on appeal is to address what happened in the lower court, detail the mistakes that were made, how they should be corrected, and why you deserve a different result based on those corrections. A lawyer will know the practice directions required for appellate courts, which set out the strict requirements for argument outlines and timelines for serving them.
- Appeal hearing: If a mistake has been made in your trial or your sentence was unfair in light of the circumstances, you will likely want to tell your side of the story. Preparing your arguments and presenting them to the appellate court is how your lawyer will tell your side of the story.
- Decision: After hearing the arguments presented by your lawyer, an appeal court may deliver their decision at that time (ex tempore) if the decision is unlikely to affect future cases, or at a later date if the decision is likely to create a precedent for the future. If you are again disappointed with the sentence you receive, you may be able to appeal again to a higher court. If this is the case, your lawyer will be able to advise you on next steps.