Quinn & Scattini Lawyers

All jurisdictions in Australia have legislation making it an offence to traffick or cultivate a commercial quantity of drugs. When looking at the laws of trafficking and commercial cultivation, there are a number of elements associated with the offence that this piece will explore.

The elements of the offence

There are two general elements associated with the offence of trafficking or cultivating a commercial quantity of drugs, which are:

• the drug must be a commercial, or large commercial quantity; and
• the accused has the intent to traffick or cultivate a commercial quantity.

Generally speaking, if a matter goes before the court, a jury must be directed on each element as was stated in DPP’s Reference No 1; R v Nguyen (2005) 2 VR 299; 154 A Crim R 360 (CA), which the court in a joint judgment said the following (at 308-309; 371 [23]):

“[T]he jury should be directed that in deciding whether the intention to traffick in a prohibited drug in not less than a large commercial quantity has been proved in their satisfaction they should have regard to any direct evidence as to that intention, but might also draw the inference that the accused had such an intention from the circumstances of the case. One such circumstance which would be capable, in itself, of proving the relevant intention would arise if they were satisfied that the accused knew there was a significant or real chance that the trafficking of the prohibited drug in which it has been proved he engaged would involve quantities of the drug not less than a large commercial quantity. Such a conclusion would enable them to draw the inference that the accused had the relevant intention to traffick in a large commercial quantity of the drug. The jury, however, would have to be told that whether they make those findings or draw the inference is a matter for them, and even if the inference is open to be drawn that the accused intended to traffick in a large commercial quantity of the drug, they could not so conclude beyond reasonable doubt if any other inference is reasonably open to be drawn. The jury might then be directed to adopt the same approach when considering, if it proves necessary, whether, in the alternative, intention to traffick in a commercial quantity of the drug has been proved.”

It’s illegal to manufacture drugs

It probably goes without saying that it is a criminal offence for a person to manufacture drugs without a licence, or make preparations in the manufacturing of drugs. Therefore, the question that should be asked is: What is the definition of ‘manufacture’?

Looking to a legislative example, under s 24(1) and (2) of the Drug Misuse and Trafficking Act 1985 (NSW), defines manufacture and production of prohibited drugs as follows:

“(1) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug is guilty of an offence.
(1A) A person who:
   (a) manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug, and
   (b) exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process,
is guilty of an offence.
(2) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
(2A) A person who:
   (a) manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug, and
   (b) exposes a child to that manufacturing or production process, or to substances being stored for use in that manufacturing or production process,

is guilty of an offence. “

Turning towards case law, in McKeagg v The Queen (2006) 162 A Crim R (WA CCA), Murray AJA said the following, with agreement from the others:

“It is... appropriate, I think to give the word “manufacture” its ordinary English meaning of making something out of something different...Further, while you can be said to be manufacturing something while that process goes on and before the thing is finally created out of other material, you cannot, in my opinion... be said to manufacture a prohibited drug until you make the prohibited drug. That is the completed offence, the production of the drug.”

In McKeagg, the applicant although possessing the equipment and the ingredients to manufacture drugs, his conviction for manufacturing was set aside, and a conviction for attempt  was substituted instead.
 

The offence of burglary usually means a person has entered or remains in a building as a trespasser with the intention of committing an offence as defined by statute. We can look to s 76 of the Crimes Act 1958 (VIC) as the legislative example that defines burglary in the following manner:

“ (1) A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent-

 (a)  to steal anything in the building or part in question; or

 (b)  to commit an offence-

   (i)  involving an assault to a person in the building or part in question;

        or

   (ii) involving any damage to the building or to property in the building or part in question- which is punishable with imprisonment for a term of five years or more.

(2) References in subsection (1) to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.

(3) A person guilty of burglary is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).”

Who may be considered as a ‘trespasser’ in relation to the offence of burglary?

One of the more interesting aspects of the notion of a trespasser in relation to burglary, is that a person who is given permission to enter into a property, but steals once inside while also holding the intention to steal, may be considered as a trespasser (per Barker v The Queen (1983) 153 CLR 338; 47 ALR 1. It should also be emphasised that criminal intent must also exist as an element of burglary as was held in Galea v The Queen (1989) 1 WAR 450; 46 A Crim R 158.

Further guidance can be found in the judgment of Street CJ in R v Dugan [1984] 2 NSWLR 554 (CA) where his Honour said at 562:

“Its ingredients, as the section states, for presently relevant purposes, are first entering a building, and secondly, with intent to commit a felony in the building... the actus reus is the act of entry. The mens rea is the intent to commit robbery in the building. The coincidence in point of time of these two ingredients is what is encompassed within the Act.”

What is aggravated burglary?

The offence of aggravated burglary generally involves the elements of the offence of burglary, while carrying an offensive weapon. Guidance can be sought via legislation on the circumstances of aggravation. For example, s 77 of the Crimes Act 1958 (VIC), sets out the elements of aggravated burglary which are as follows:

“(1) A person is guilty of aggravated burglary if he or she commits a burglary

and-

(a)  at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or

 (b)  at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.

(1A) For the purposes of subsection (1)-

explosive means any article manufactured for the purpose of producing  a practical effect by explosion, or intended by the person having it with him or her for that purpose; firearm has the same meaning as in the Firearms Act 1996; imitation explosive means any article which might reasonably be taken to be or to contain an explosive; imitation firearm means anything which has the appearance of being a firearm, whether capable of being discharged or not; offensive weapon means any article made or adapted for use for causing injury to or incapacitating a person, or which the person having it with him or her intends or threatens to use for such a purpose.

(2) A person guilty of aggravated burglary is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).”

The term ‘parole’ conjures up some negative connotations, however, it does serve an important purpose as Deane, Dawson and Toohey JJ noted in R v Shrestha (1991) 173 CLR 48; 100 ALR 757:

“[I]n a society where imprisonment for the punishment of crime is accepted as being sometimes unavoidable, the parole system represents an important influence for the reform and rehabilitation of those in gaol.”

What is the purpose of the parole board?

The general functions of the Parole Board includes considering the release of a prisoner, or alternatively, to return a parolee for breach of parole. However, the Parole Board must not act in contravention of any relevant legislation and regulations, and must accord natural justice to a parolee, as was held in R v Chairman of the Parole Board; Ex parte Patterson (1986) 43 NTR 13; 86 FLR 118 (FC): “The...Parole Board of the Northern Territory...was obliged to accord natural justice to a parolee...”

Furthermore, it’s generally held that the Parole Board should not insist on admission of guilt before granting parole (per Varney v Parole Board (WA) (2000) 23 WAR 187; 117 A Crim R 514 (FC)).

Non-parole period

When sentencing an offender, the court can set a non-parole period with the “practical effect of fixing a minimum term is that thereafter the Parole Board may, but of course need not, grant the prisoner parole”, as Dawson, Toohey and Gaudron JJ said in Bugmy v The Queen (1990) 169 CLR 525; 92 ALR 552.

There are a number of considerations that should be taken account when fixing a non-parole period, with Gleeson CJ, Gaudron, Hayne and Callinan JJ setting out some of the matters to be taken into account in Inge v The Queen (1999) 199 CLR 295; 166 ALR 312; 108 A Crim R 281:

“The seriousness of the offence which has been committed, and the severity of the mandatory penalty provided by statute, are matters to be taken into account in fixing a non-parole period, but it does not follow, either as a matter of logic, or as a matter of the proper exercise of the discretion considered in Bugmy, that the relative youth of an offender counts against the offender.”

What happens if a person commits an offence while on parole?

The Parole Board can deal with a person who breaches parole by committing an offence in a number of ways. First, if the accused has not been returned to prison, the sentencing court cannot assume that the Parole Board will. Second, if the person has been returned to prison, then the sentencing court is to make the assumption that it is for the rest of the sentence, in which case, the totality principle will be applied. 

The actions which can be subject to protection orders caused by domestic or family violence cover a broad range of behaviours and vary between the States. However, generally speaking, conduct that can form a basis for a protection order may include:

·         physical injuries;

·         sexual abuse;

·         threatening behaviour;

·         harassing or offensive behaviour;

·         deprivation of liberty;

·         property damage;

·         stalking;

·         injury to animals;

·         threats to carry out any of the above behaviours.

Is psychological abuse in domestic violence and family violence laws?

Legislation across all jurisdictions has recognised the effect psychological and emotional abuse, and coercive or controlling conduct can have on a victim and has now been reflected in statute law. Using s 7 of Victoria’s Family Violence Protection Act as an example of the type of behaviours that can form the basis of a protection order – comprises “behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person”.

The types of emotional and psychologically abusive behaviour that the Act deems as abusive are:

·         repeated derogatory taunts that can include racial taunts;

·         threats to disclose a person’s sexual orientation to family and friends against the person’s wishes;

·         threats to withhold a person’s medication;

·         preventing a person from making or keeping connections with their family, friends or culture – which can include preventing a person from expressing or practicing cultural or spiritual ceremonies;

·         threats to commit suicide or self-harm with the intention of intimidating or tormenting a family member, or threatening death or injury of another person.

Can ‘economic abuse’ be subject to a protection order?

The Northern Territory, South Australia, Tasmania and Victoria have specifically recognised ‘economic abuse’ as behaviour that can be subject to a protection order. Looking to s 8 of the Domestic and Family Violence Act of the Northern Territory, economic abuse is defined as “coercing a person to relinquish control over assets or income” – such as using standover tactics to obtain a person’s credit card for example.

Further behaviour that can be considered as economic abuse by the Act can also include:

·         unreasonably disposing of property without consent, whether it is jointly owned with the person or by someone else;

·         unreasonably preventing the person from taking part in decisions over household expenditure or the disposition of joint property;

·         withholding money reasonably necessary for the maintenance of the person or a child.

We can also look to s 8(5) of South Australia’s Intervention Orders (Prevention Of Abuse) Act for further examples of economic abuse, which can include:

·         without lawful excuse, preventing the person from having access to joint financial assets for the purposes of meeting normal household expenses;

·         preventing a person from seeking or keeping employment;

·         causing the person through coercion or deception to claim social security payments, or sign a power of attorney enabling the person’s finances to be managed by another person, are just some of the other examples considered as economic abuse.

What are the requirements for the issuing of a protection order?

The States and Territories have differing requirements on when a protection order can be issued, for example, Queensland, Tasmania and Victoria require that past instances of family violence and the likelihood that it will happen again forms the basis for a protection order, while in New South Wales and the Northern Territory require “fear” from a victim as to when a protection order can be issued. If there are no specific acts of violence, fear of violence, harassment or intimidation, then protection orders may not be issued.

Although, it should be pointed out that the States and Territories differ on whether an objective or subjective fear of violence is sufficient for a protection, but for the most part, the courts apply an objective test on whether the fear from a person is objectively warranted and that it is satisfied on the balance of probabilities.

As a legal construct, ‘breach of the peace’ has always held a special interest in this writer’s heart, because as a common law concept, breach of the peace is an important element in regards to Australia’s public order laws. One of the interesting aspects of breach of the peace is that it is not an offence per se, however, a person who engages in conduct that causes, or is likely to cause a breach of the peace, may involve the committing of other offences, such as assault or affray to name two examples.

So if breach of the peace isn’t an offence: what exactly does ‘breach of the peace’ mean?

Breach of the peace: Definition

As noted earlier, breach of the peace is not an offence, but instead it is the basis for the execution of the common law power which prevents public disorder. Furthermore, breach of the peace is one element of other public order offences such as unlawful assembly or riot.

In attempting to establish what breach of the peace entails, we can turn to the leading authority of the concept which can be found in R v Howell, where Watkins LJ in the English Court of Appeal, defined breach of the peace in the following way:

“There is breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawfully assembly or other disturbance.”

Broadly speaking, breach of the peace as defined in Howell has been generally accepted in Australian common law.

How can a breach of the peace be prevented?

Any citizen by virtue of the common law, has the power to prevent a breach of the peace, and is able to do so by taking any necessary steps to prevent, or suppress a breach of the peace. However, conditions have been imposed in terms of what is considered reasonable under the circumstances in which a person can prevent a breach of the peace, and in Albert v Lavin, Lord Diplock held:

“…every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although except in the case of a citizen who is a constable, it is a duty of imperfect obligation.”

One of the interesting aspects of breach of the peace, is that a person has protections in both criminal and civil law to prevent a breach, if they take the necessary and reasonable steps to prevent or suppress a breach of the peace.

Some of the actions that are considered as necessary and reasonable in the prevention or suppression of a breach of the peace can include:

·         trespass;

·         assault;

·         dispersal;

·         detention;

·         confiscation of property.

Furthermore, the common law grants a person the right to arrest another person without a warrant whose conduct is causing, or is likely to cause, a breach of the peace. However, it should be noted, that an action of arrest for a breach of the peace is a “measure of last resort” as was noted in Commissioner of Police (Tas); Ex parte North Broken Hill Ltd.

What is a ‘reasonable’ belief?

As has been pointed out earlier in this piece, there must exist a reasonable belief that a breach of the peace is imminent, and in Forbutt v Blake, Connor ACJ said:

“A mere statement by a police constable that he anticipated a breach of the peace is not enough to justify his taking action to prevent it; the facts must be such that he could reasonably anticipate not a remote, but a real, possibility of a breach of the peace.”

The general rule of self-defence

The leading case on self-defence is Zecevic v DPP (1987) 162 CLR 645, where the accused killed his neighbour after an argument. The accused held the belief that the deceased had a knife and a shotgun in his possession, which compelled the accused to retrieve his gun, and as a consequence, shooting his neighbour dead. 

“The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide.”

A person carries out conduct in self-defence if, and only if, he or she believes the conduct is necessary:

• to defend himself or herself or another person; or
• to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
• to protect property from unlawful appropriation, destruction, damage or interference; or
• to prevent criminal trespass to any land or premises; or
• to remove from any land or premises a person who is committing criminal trespass.

Can self-defence be used in the defence of another person?

The term ‘self-defence’ may imply that it is only available when the person is under threat themselves, but in actual fact, it can also be used in the defence of another. Traditionally speaking under the common law, self-defence of another was usually reserved for relationships that fell into the category of child and parent, wife and husband, or ‘master and servant’. However, the position may have changed, and many jurisdictions in Australia allow for a person to use force in defence of another such as s 418(2)(a) of the Crimes Act 1900 (NSW) or s 9AC, s9AE(a) of the Crimes Act 1958 (VIC) for example.

Self-defence and the protection of property 

Self-defence as a principle is available for acts in defence of property. However, the use of lethal force is probably not justified under the test set out in Zecevic, with the High Court noting that the only justification for the use of lethal force is in situations where the threat was such, that the person held a reasonable apprehension that death or serious harm may be the result of the attack.

This article is only a very general overview of the laws regarding self-defence and is not intended to be a comprehensive overview of the defence. If you have any issues regarding criminal law, please seek the assistance of a lawyer who will be able to assist.  

The police have a wide range of powers when placing a person under arrest – while in turn, the person being placed under arrest have many of their personal rights restricted, most obviously, their right to move freely. One of the clear signs that a police officer is placing someone under arrest is the slapping of handcuffs on the alleged criminal: but is this necessary? Are police officers required to put handcuffs on every person they place under arrest? Well, there are actually a number of considerations a police officer must take into account when deciding whether or not to put handcuffs on a person, but it is not an actual requirement to handcuff every person.  

There is no need to handcuff every person under arrest

There is no general rule or requirement that a police officer must handcuff a person who is being arrested. Furthermore, there is also no requirement for an officer to handcuff a person who is being transported from a goal, to the courthouse. 

When deciding on whether a person should be handcuffed, case law has stated that the choice to handcuff a person is dependent on the surrounding circumstances, and that officers should always take the proper precautions to ensure the safety of themselves, and the public. Although, circumstances in which handcuffing may be deemed to be necessary is to stop the person from committing a further offence, or preventing the person from escaping police custody.

Perhaps the most revealing aspect of the absence of a mandatory rule to handcuff a person, relates to the fact that there is no general rule that an individual conveyed from a police station to a courthouse, also must be handcuffed, as Williams J noted in Leigh v Cole. His Honour remarked that handcuffing every person attending court, “seems to me to be an unjustifiable view of the law, and one which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him, and taking him thus publically through the streets.”

However, a judge who is presiding over a proceeding can order a person to be handcuffed if he or she deems the action necessary due to the demeanour or mood of the person put in front of him or her, because ultimately, it is the judge who is in charge of security within the courtroom.

Can an arrest be invalid due to unreasonable handcuffing?

In Kumar v Minister for Immigration, Lockhart J did feel that the handcuffing of the applicant was unreasonable. However, it still did not “vitiate the arrest of the applicant who was lawfully arrested, though not lawfully handcuffed.” 

None of us are perfect, and we’re all liable to make a mistake on the odd occasion. Fortunately, most of the mistakes made won’t have drastic ramifications; however, some of our errors in judgment may result in having a conviction recorded against the person’s name. When a conviction is recorded, there may be a number of unforeseen consequences that can arise, such as restrictions on the type of work a person may be able to perform, or the person may be prevented from entering certain countries depending on the nature of the conviction. So with that in mind, what exactly is a conviction? And, can convictions be recorded even after a finding of guilt? May be some of the questions that may arise regarding convictions.   

How is conviction defined?

Turning to the common law definition of conviction, we can look at the judgment of Dawson McHugh JJ in Maxwell v The Queen (1996) 184 CLR; 135 ALR 1; 87 A Crim R 180 where the justices outlined what is meant by the term, ‘conviction’:

 “The review of the authorities which we have made satisfies us that a plea of guilty does not if its own force constitute a conviction. In our opinion it amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a “conviction”, for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given but conviction by judgment… there must at least be a determination of guilt before there can be a conviction. There can accordingly be no conviction on a count to which an accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilty. And if there can be no conviction til then, neither can there be a successful plea of autrefois convict.”

If there has been a determination of guilt by the courts: Do judges have the discretion not to record a conviction?

In instances where a determination of guilt has occurred, the majority of people will probably hope that a judge will use their discretion to not record a conviction: But do judges actually have that authority? Well, they do, and we can turn to the matter of R v Celep [1998] 4 VR 811; (1998) 100 A Crim R 310 (CA), which was a case where the jury after returning a verdict of guilty, the presiding judge used his discretion to not record a conviction under s 75 of the Sentencing Act 1991 (Vic):

Section 75 states the following in regards to release on adjournment without conviction:

“(1) A court, on being satisfied that a person is guilty of an offence, may(without recording a conviction) adjourn the proceeding for a period of up to 60 months and release the offender on the offender giving an undertaking with conditions attached.

(2) An undertaking under subsection (1) must have as conditions-

                (a) that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and

                (b) that the offender is of good behaviour during the period of the adjournment; and

                (c) that the offender observes any special conditions imposed by the court.

(3) Subject to Division 3 of Part 3B, a court may attach a justice plan condition that the offender participate in the services specified in a justice plan for a period of up to 2 years specified by the court or the period of the adjournment, whichever is the shorter.

(4) An offender who has given an undertaking under subsection (1) may be called on to attend before the court-

                (a) by order of the court; or

                (b) by notice issued by the proper officer of the court.

(5) An order or notice under subsection (4) must be served on the offender not less than 4 days before the time specified in it for the attendance.

(6) If at the time to which the further hearing of a proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking, it must dismiss the charge without any further hearing of the proceeding.”

Ultimately in Celep, the Court of Appeal allowed for an appeal against conviction on the unsafe and unsatisfactory ground a verdict of acquittal was entered.

It should be highlighted that all jurisdictions have similar provisions to the Victorian Act, allowing for a judge to use their discretion of not recording a conviction in the event that a determination of guilt has been made.

What effect does previous convictions have?

Certain jurisdictions disregard previous convictions for minor offences and will consider such convictions as not part of their criminal history after a period of good behaviour, and are referred to as a ‘spent convictions’. However, there are exceptions when discussing spent convictions and certain jurisdictions do take into account spent convictions when looking at a person’s criminal history. 

Driver licence fraud – it’s an offence

It’s a criminal offence to obtain or renew a drivers’ licence by misrepresentation or via a false declaration. Depending on the jurisdiction, a person who commits an offence can be punished either by the issuing of a fine, penalty points, prosecution and/or imprisonment. The offence of driver licence fraud can also be referred to as obtaining a licence by false statements or false declaration.

What is considered misrepresentation or fraud?

The offence of obtaining or renewing a licence by misrepresentation or fraud can cover many factors and possible misrepresentations can include:

·         using a false name;

·         providing an incorrect address;

·         declaring an incorrect date of birth.

The offence may also include tampering with a driver log book in order to obtain a licence that has certain time period requirements attached as a condition.

Is a licence obtained through misrepresentation or fraud valid?

Any licence found to be obtained by misrepresentation or fraud will be void and cannot be used validly in operation of a vehicle. Furthermore, driving without a valid licence is also an offence that can also carry fines and demerit points – although, there may be some circumstances where a person may have passed all driver competency tests, and are unaware that their licence may be void.

What happens to a person who has obtained a licence by misrepresentation or fraud?

Depending on the jurisdiction, an offence can be punished by way of monetary fines under certain legislation. It is possible that a person who obtains a licence by making a false declaration may be subject to prosecution under the fraud provisions of any relevant criminal legislation that can potentially result in a maximum penalty of imprisonment if the person has been found guilty of an offence.  

In demonstrating whether an offence of fraud has been committed, generally speaking an intention to commit a fraudulent action by registering a false name with the Registrar of Births, Deaths and Marriages is one example where intent may be shown.

Why would someone obtain a licence by misrepresentation or fraud?

There are a number of reasons why a person may wish to obtain a licence under false pretences, for example, they may have already had their licence suspended or disqualified, and wish to apply for a new licence under a false name. Alternatively, licences can also be used to obtain financing from banks and can potentially be an attractive document for anyone who wants to commit fraud.

What are the possible defences to the offence?

The possible defences that can be used is dependent on the jurisdiction but broadly speaking, a defence of factual dispute can be raised – which means that a person did not obtain the licence in question, or it was not obtained by fraud. Another defence that may be used is that there was no dishonest intent, or a lack of mens rea in the obtaining of the licence. 

Smartphone camera use is already restricted or prohibited when taking photographs of items or people and although owning smartphones such as an Android or an iPhone is not a crime, how a camera phone is used can potentially be offensive. Because smartphones are now able to capture high quality images and videos, if a person has used their camera phone for an improper purpose, they may be opening themselves up to criminal liability if the material captured is considered to be indecent. There have been a number of cases where people have been caught misusing their smartphones, and the content on their phones have been used in evidence. So be careful.

What are the criminal acts that can be associated with a smartphone?

Child pornography: photographing or recording a child engaged in a private act [such as using the toilet for example] or any other activity involving nudity, or engaging in sending sexual texts or photos with a child, can constitute an offence, including the possession and distribution of such material.

Assault: can include sending threats or blackmailing people via a smartphone or with photos taken with a smartphone.

Stalking: repeatedly communicating with someone, such as constant texting, can amount to stalking if the messages are unwelcome from the recipient.

Piracy: using the camera on your phone to film concerts or other performances may constitute a piracy offence unless you have a licence to do so and includes distributing the filmed material.

What can be done about smartphone abuse?

A person can complain to the police about any of the aforementioned offences which can generally be regulated by criminal law. A common complaint is that a person’s privacy has been breached by being photographed without permission, or copyright has been infringed by having a concert filmed for instance. 

If you or someone you know is experiencing an issue with criminal use of a smartphone, it’s advisable that you seek the assistance of a lawyer immediately due to the potential seriousness of such offences.

Graffiti vandalism is a crime and is dealt with under specific State and Territory criminal legislation with all jurisdictions implementing various pieces of legislation to criminalise the act, and interestingly, some pieces of law have a particular focus on public transport, for example, the Graffiti Prevention Act 2007 (Vic) allows public transport officers to seize graffiti implements from suspected persons, while the Graffiti Control Act 2008 (NSW) imposes large fines or in some instances, imprisonment for graffiti vandalism.

What is graffiti?

Graffiti is generally described as a wilful act of marking or defacing property without permission. The wilful act without consent is generally an element of what makes it an offence, along with the graffiti being visible to the public on public property.

Urban art, legal or free walls in some jurisdictions is considered as the only form of legal graffiti, where councils and communities commission graffiti artists for street art.

What is a graffiti vandalism offence?


A graffiti vandalism offence generally includes the following elements:

• damaging, marking or defacing property without permission using a graffiti implement;
• possession of a graffiti implement; and
• posting bills and other marking offences.

What is a graffiti implement?

Graffiti implements include spray paint, marker pens, acid etchings, shape objects (such as keys, knives or rocks) or any other implement that is not easily removed by water or detergent.

A person does not have to be the one using the graffiti implement to be charged with a graffiti vandalism related offence. Additionally, in some jurisdictions, it’s also an offence to sell spray paint cans to a person under 18 years of age, along with having unsecured paint cans in a retail premises.

What are the penalties for graffiti vandalism offences?

The laws differ depending on the State or Territory but generally, a person commits an offence of graffiti vandalism if they:

• damage or deface property;
• possess a graffiti implement with intent;
• bill posting and other marking offences;
• sell spray paint cans to persons under the age of 18 in some jurisdictions;
• have unsecured spray paint cans in retail premises in some jurisdictions. 

How is graffiti removed?

Some criminal jurisdictions empower local councils to remove graffiti on private property without the owner or occupier’s consent if the graffiti is visible to the public. Removal without consent must be carried out from public land at the council’s own expense and on the odd occasion, the offender may be ordered to pay for the removal of the graffiti.

It is recommended that you speak to a lawyer if you have been charged with a graffiti vandalism offence, or any other related criminal matter. 

Many fans of American television shows or films focusing on crime would be somewhat familiar with the concept of entrapment. For those who may not know what entrapment is, it simply refers to actions by a police officer who induces a person to commit a crime, that may not have been contemplated but for the actions of the police. Entrapment can also mean that a police officer provided an opportunity for a person to commit an offence, in which they would have committed during their usual cause of dealings irrespective of the involvement of the police. Thanks to television and film, many of us will also probably be aware, that a police officer who induces a person to commit a crime that was not within their contemplation, is a defence in the United States, but what about Australia? Can entrapment also be used as a defence here?

The action of entrapment has generated quite a bit of commentary and the resulting case law and legislation makes for some rather interesting reading.

The law in Australia

Unlike our common law counterparts in the US, there is no defence of entrapment available under Australian law. However, the defence is available in the States, and American case law has stated that the reason for the existence of the law of entrapment is that a distinction must be made between trapping the unwary innocent, as opposed to the unwary criminal. So the question that needs to be asked is: why isn’t there a similar distinction made in Australian law?

Again, although, there is no defence of entrapment, Mason CJ in Ridgeway v The Queen did note, that if the circumstances surrounding the committing of an offence by an individual was procured by the illegal conduct of the police or any other person, it is still ultimately up to the courts to decide on a person’s innocence or guilt resulting from the trapping.

The facts in Ridgeway revolved around the arrest of John Anthony Ridgeway, who was participating in a ‘controlled importation’ of 140.4 grams of heroin into Australia which was the result of a tipoff from an informer who notified the Australian Federal Police (AFP) of Ridgeway’s intentions. With the assistance of the AFP and the Australian Customs Service, the informer was allowed to pass through customs uninhibited, and delivered the heroin to Ridgeway, which then resulted in his arrest by the AFP.

The High Court Justices in Ridgeway expressed some concerns with the actions of the AFP with McHugh J stating for example:

“In a society predicated on respect for the dignity and rights of individuals, noble ends cannot justify ignoble means ... No government in a democratic state has an unlimited right to test the virtue of its citizens. Testing the integrity of citizens can quickly be-come a tool of political oppression an instrument for creating a police state mentality.”

What was most interesting about the Ridgeway case was the general acknowledgement that in facilitating with the importation of heroin into Australia from Malaysia, the AFP had also committed a serious offence against the Customs Act.

Ultimately, the High Court in Ridgeway did state that there was no substantive defence of entrapment as long as a person voluntarily commits the criminal act, and had the necessary intent, irrespective of any inducement by law enforcement officials.

As a result of the High Court action in Ridgeway, the Government amended the Commonwealth Crimes Act, allowing for law enforcement officers to engage in a “controlled operation” to obtain evidence against a person who is involved in a serious State or Commonwealth offence.

Entrapment and sentencing

Although, there is no substantive defence of entrapment available in Australia, numerous judgments in case law has suggested that in circumstances where a person would normally not have committed an offence, but for, the activities of an agent provocateur, there may be a significant reduction in the sentence imposed by the courts.

It should be noted that the courts will generally take a commonsense approach in cases involving entrapment, and will make an assessment of the surrounding circumstances of a case, and if there was a reasonable possibility that the person would not of committed the offence, but for, the behaviour of an agent provocateur, a reduction in the overall sentence might suffice.

Introduction

It is useful to begin a discussion about victim compensation by outlining what it is not. The various legislative schemes in Australia's states and territories (collectively, victim compensation laws) are not designed as punitive “civil” orders levied against an offender (although it is possible for the court to order an offender to pay compensation directly). Rather, they are payments generally made from a government-backed fund to various classes of people connected with a violent crime.

This article outlines the eligibility of a victim for compensation and what may be recoverable.

Entitlement to Victim Compensation

As a general rule, victim compensation claims can only be made in respect of crimes involving violence. Some jurisdictions consider sexual crimes and domestic violence to fall within this definition, but the rules will vary based on where the crime occurred in Australia.

Australia's victim compensation laws distinguish between three classes of people:

 The Primary Victim – This is a person who was injured or died as a direct result of the crime. They may also be a person who suffered these injuries because they were attempting to stop the commission of an offence, rescue a victim or arrest the offender.

 The Secondary Victim(s) – These victims are a much wider group of people. They include people who were injured because they witnessed the crime being committed against the primary victim. In addition, some victim compensation laws cover close relatives of the primary victim who were not at the scene of the crime, but became aware of the violent crime.

 The Family Victim(s) – This final group includes family members of the primary victim. The term “family” is defined broadly, including a spouse, de-facto partner, parent, child or sibling. Owing to the wide number potential claimants in this class, victim compensation laws will often provide a limit on the total compensation payable for an offence and may allocate priorities between different family members.

There are also a number of key exclusions from claiming victim compensation. These include victims who could also claim through other entitlement schemes (such as Medicare or workers compensation) or victims involved in traffic accidents.

Scope of a Victim's Compensation Claim

Your first step should be to speak to a solicitor with some experience in victim compensation claims. It is better to do this as soon as possible, as there are time limits that apply to victim compensation claims. Apart from helping to get the process moving, a solicitor can be very helpful in breaking down the traumatic events into concrete “heads” of compensation. They can also advise you on what evidence is needed to prove a claim (such as receipts, medical reports and other evidence).

As with claiming damages under the general law, this area can be quite complex, although victim compensation schemes are generally designed to address incurred (that is, actual) losses or expenses and not future or predicted losses. This may include medical expenses for injuries directly connected with the crime, property or effects damage and documented out-of-pocket expenses.

A final point to observe is that secondary and family victims often derive their entitlement to claim through the primary victim. This may create a situation where these classes of claimants cannot claim because the primary victim is ineligible (perhaps through expiration of a time limit or by the primary victim claiming through workers compensation). Obviously the claims of secondary and family victims will be more significant where the primary victim was killed in the offence, but this underscores the need to thoughtfully consider a victim compensation claim.

The scope of fraud and dishonesty charges is quite wide due to the number of legislative changes enacted by the various levels of Australian governments to address issues that include money laundering, welfare entitlements, and new technology-related offences. The purpose of this article is to provide an overview of these offences and explain how they generally operate within Australia.

Common law vs statutory offences

As with many criminal offences, fraud originated from the common law and was a general offence judged on a standard of what the ordinary person would have considered as honest behaviour. However, the criminal laws of the Commonwealth, States and Territories, now divide offences of dishonesty into a number of different charges that covers a variety of activities that may not have fallen within the original scope of the common law offence.

Groups of offences

Listing all the different types of fraud and dishonesty offences is beyond the scope of this article, however, broadly speaking these offences can fall into the following categories:

• ‘Traditional’ fraud, which generally involves knowingly taking advantage of someone dishonestly for a financial or a material advantage;
• Specific classes of charges relating to contracts, securities and financial instruments (for example, forging signatures on a mortgage or passing fake cheques);
• Commonwealth fraud offences that can (but are not limited to) a person providing information or employing deceptive or fraudulent means to obtain payments from Centrelink, the ATO or Medicare; and
• Newer technology-related offences which includes identity theft.

‘Traditional’ fraud

The first point really breaks the whole concept of fraud down: It must be done knowingly and with an intention to take advantage of someone – in the sense that the person committing the fraud knows, or suspects that they would not be entitled to the benefit under normal circumstances. A key part of the offence is that the victim does not know that they have been subject to the fraudulent activity. Finally, it should be stressed that the benefit or gain from the fraud does not have to be monetary.

Specialised offences

A number of jurisdictions have a number of laws regarding specific fraud involving documents, instruments, or particular forms of business activity. For example, the Corporations Act 2001 (Cth) creates various offences relating to the conduct of company directors and people who may have engaged in activities such as insider trading.

Commonwealth fraud and dishonesty offences are broadly defined and may appear to overlap with State and Territory criminal laws.  However, as noted earlier, the most common use of these offences is for prosecuting fraudulent conduct relating to benefit payments via agencies such as Centrelink and Medicare. While not all of these overpayments or investigations will necessarily lead to a criminal charge, it is fair to say that the level of vigour the Commonwealth is now pursuing these cases has increased. There is also, of course extensive application of fraud concepts in criminal provisions of Australia's taxation laws.

Technology offences

Identity theft is now a specific crime or is expressly covered by many States and Territories. This is not, however aimed at the misuse of computer resources or compromising security where there is no intention to cause loss. There is the possibility that the prosecution might have to employ some existing fraud charges in a more novel way to deal with aspects of online identity theft, but there certainly is the potential for existing laws to combat the growing problem.

Finding out more

If you have been approached by a government agency or the police in relation to an offence of dishonesty or fraud, it is vital that you speak to a criminal lawyer right away. Apart from vigorously defending you in court, a criminal solicitor can help plead circumstances of mitigation to reduce a sentence or show that a key part of the charge of fraud is missing.

Alternatively, lawyers can be of great assistance in helping you to recover from fraud or identity theft.  An unfortunate consequence of laws like the Privacy Act 1988 (Cth) is that it can take a long time to re-establish your identity and a qualified lawyer can assist you in getting your life back on track by obtaining court orders or in pursuing your own interests during a criminal prosecution.

If you’re an avid reader of works involving true crime be it a book, movie, newspaper or magazine article, you probably have run into criminal offences which had an element of indecency. Crimes of indecency do appear on a regular enough basis to warrant a deeper inquiry because the term ‘indecency’ doesn’t convey a strong meaning in the way that ‘murder’ does for example. So obviously the question that needs to be asked is: What does ‘indecency’ mean within the context of criminal law? Well, as the broadness of the term implies crimes of indecency is a constituent element of many offences which this piece will attempt to cover.

What is indecency?

We began this piece asking the question of ‘what is indecency?’, and the enquiry can be answered in a number of ways. First, there is the legislative approach where offences involving indecency are enshrined in statute in all jurisdictions that cover a number of actions that are considered to be ‘indecent’.

Using a couple of examples to illustrate our point, because again, indecency is a component of many offences – we can firstly look to s 227 of Queensland’s Criminal Code, which states the following actions to be indecent under the section:

“(1) Any person who

                (a) wilfully and without lawful excuse does any indecent act in any place to which the public

                are permitted to have access, whether on payment of a charge for admission or not; or

                (b) wilfully does any indecent act in any place with intent to insult or offend any person;

                is guilty of a misdemeanour, and is liable to imprisonment for 2 years.

(2) The offender may be arrested without warrant.

(3) Subsection (1) does not apply to a person who does an indecent act under the authority of an adult entertainment permit.”

Another example we can turn to is s 17(1) of Victoria’s Summary Offences Act that considers the following acts as indecent:

“(1) Any person who in or near a public place or within the view or hearing of any person being or passing therein or thereon-

                (a)  sings an obscene song or ballad;

                (b)  writes or draws exhibits or displays an indecent or obscene word figure or   representation;

                (c)  uses profane indecent or obscene language or threatening abusive or insulting words; or

                (d)  behaves in a riotous indecent offensive or insulting manner-

shall be guilty of an offence. Penalty: 10 penalty units or imprisonment for two months; For a second offence-15 penalty units or imprisonment for three months; For a third or subsequent offence-25 penalty units or imprisonment for six months.”

Legislation provides that many offences of indecency also involve unlawful and indecent dealings with children, and it’s worth highlighting the observation of Callaway JA in R v Coffey where his Honour said, indecent acts “… are as various as human imagination can make them.”

However, the practice of law requires a certain amount of specificity and although many of us will agree with the statement of Callaway JA in regards to indecent acts, indecency as a legal construct needs further illumination and may be found in Crowe v Graham, where Windeyer J in the High Court of Australia had to explore the meaning behind the words, ‘obscene’ and ‘indecent’. His Honour observed that both ‘obscene’ and ‘indecent’ were terms that are well known and has a long history of usage in law. His Honour went to deconstruct the meaning of the words saying:

“Apart from any definitions given them by statutes, they are both to be understood with the meanings they have for common law; and for present purposes each must be understood with any colour it takes by their collocation. I say this because the adjective “indecent” has long been used in law to describe multifarious forms of offensive or objectionable conduct. In this general sense it sometimes denotes lewd forms of misbehaviour, but not always. Indecent exposure, indecent assaults involve lewdness. Indecent language does not…

Brawling in church, maltreating corpses, grave-snatching have all been punished as indecent. Sometimes indecent conduct was punished at common law because it created a public nuisance. Sometimes simply as, in Lord Mansfield’s words, ‘against public decency and good manners.’”

What test is applied to indecency?

The attempt by Windeyer J is one of many in trying to unravel the meaning behind the term of indecency, and even a cursory overview of the common law highlights some of the challenges in finding a meaning behind the term.

However, further guidance may be found in R v Stringer, where Adams J in the Supreme Court of New South Wales, Court of Criminal Appeal (NSWCCA) set out the following test for indecency:

“The test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to common propriety… or an affront to modesty… or would offend the ordinary modesty of the average person…”

What is indecent assault?

Arguably, one of the most common offences of indecency is that of indecent assault, with the offence exhibiting an element of sexual connotation. In R v Harkin, Lee J in the NSWCAA, with whom the others agreed, said the following:

“It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas… The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.”

Indecent assault and the mental element

Like other criminal offences, indecent assault requires a mental element with the onus on the Crown to establish the intention of an accused. In Fitzgerald v Kennard, Cole JA said:

“It has always been the law that the onus is on the Crown to establish the absence of consent if a prosecution for a sexual assault, or indeed any assault, arising from physical contact, is to succeed. The mental ingredient required to be established by the Crown in such cases is an intention on the part of the accused to perform the act, be it intercourse or other forms of sexual or indecent assault without the consent of the victim or ‘willy nilly not caring whether the victim consents or no.’”

The offence of indecency involves many elements and this article is a very general overview of the offence. If you have any questions regarding indecency or another matter involving criminal law, it’s advisable that you seek the assistance of a lawyer who will be able to help you with your matter.