Navigating Family Disputes in Queensland: Mediation, Arbitration, and Divorce

Handling family law matters can be complex and emotionally taxing, but understanding the various resolution processes available in Queensland can significantly ease the journey. Mediation and arbitration provide alternative ways to address family disputes, while the process of obtaining a divorce is clearly defined under Australian law. This guide will walk you through these processes, offering insights into how they can help resolve family issues efficiently and effectively.

(more…)

Taking on The State’s Oppressive Vaccine Mandates

Civil Liberties

In the matter of the Police v Jackson Elliott, it was alleged that our client had seriously assaulted a police officer. In fact what had happened, was that JE went to the aide of his mate on the streets of Brisbane one evening, who was being dealt with excessively by two police, screaming in pain due to the handcuffs.

(more…)

Correctional Officer Acquitted After Lawful Restraint of a Prisoner

In 2018 the legal fight for our client, a Corrective Services Officer commenced. After having been stood down for eight months, he was charged with an assault alleged to have taken place in an interview room at one of the many Correctional facilities in Queensland. The alleged assault was said to be when our client restrained a prisoner, after being interviewed by Police.

Notwithstanding the evidence of the prisoner’s conduct from multiple witnesses, justifying the use of force to restrain the prisoner under the Corrective Services Act 2006, our client was charged and prosecuted. This was based upon a downward angle view of our client using a taught restraint technique, albeit in a way that was not exactly how it was shown at the academy. This followed the deleting of CCTV evidence showing several minutes of conduct leading up to the intervention by our client.

It would have justifiably appeared to our client that the investigation and subsequent prosecution over five days was unfair. Mr Sibley of our Firm advocated for our client, representing him at trial and on appeal. He was recently acquitted before Judge Farr of the District Court in Brisbane. His Honour’s reasons for Judgement are yet to be published. However, it remains clear that he should never have been prosecuted.

The Job of Police and Other Emergency Services – Exposure to Trauma

https://www.abc.net.au/news/2020-03-11/former-police-officer-receives-payout-over-trauma/12043156

The Importance of a Balanced and Comprehensive Investigation

Recently we were involved in defending a client facing allegations of assault said to have been perpetrated on his previous defacto.

Now we have conducted many investigations ourselves in the past, and of course, seen many investigations since then as a Defence Lawyer. It is easy for an investigator to lose sight of the fundamental aim to ensure that the truth is exposed, and to contribute faithfully in the evidence collection process to ensure that Justice occurs. It is easy for one party to say something, and although false, be prepared to swear a statement to that effect and even give evidence under oath about it. Frankly it happens far too often. In he said she said cases, it is critical that investigators keep an open mind, and not fall into the trap of choosing a side, and then closing their minds to other theories. We often hear the words, ‘that is not part of the prosecution case’, as a reason not to seek and provide relevant evidence. You can’t force an investigator to pursue the truth. Of course disclosure provisions should ensure that all material is handed over, even if it helps the defence more than the prosecution. But what happens when an opportunity exists to collect evidence, or interview witnesses who may provide a very different version to the complainant. Of course it is axiomatic that if the aim is to ensure the truth comes out, that evidence should be pursued and disclosed frankly. Sadly it doesn’t always happen – and we often see evidence like CCTV being disclosed only in part (allowing the rest to be deleted), or not even attempting to acquire CCTV in the first place.

In this recent example, a courageous junior officer took the important step of acquiring the complainant’s phone (with consent) and having it analysed. Many of their colleagues may not have done so, even though there must have been concerns in the officer’s mind about the veracity of the complainant’s story. The results were compelling, showing that the complainant was misleading the authorities to say the least. The evidence ensured that a trial did not ultimately take place, and a just outcome was found.

Defending a classic ‘he said, she said’ assault

Disputes can involve multiple sides of the one story. It is therefore not unusual for things to get very messy, very quickly. In assault matters, whether or not the defendant was provoked, acting in self-defence or even whether the altercation was consented to by both parties, are factors that are considered by the court.

Prosecutions are required to prove beyond a reasonable doubt that the assault in question was a unlawful one, in that the defendant’s actions were not authorised, justified or excused by the law. The defence will endeavour to raise defences where available and discredit the prosecution witnesses accounts, to show that the evidence is in fact unreliable and should be ignored by the court.

In a recent example that our firm dealt with, an altercation occurred in a work place, following a verbal discussion over a phone where the complainant demanded that the defendant attend the office to correct a pay discrepancy, only to result in the employee being violently shoved and the altercation starting from there.

In this matter, there were witnesses of the altercation, all whom put forth different and contradicting evidence regarding “who held who back” when they attempted to break up the men. By the time that the witnesses walked into the office, both the complainant and the defendant were exchanging blows.

We were able to successfully show that provocation and self-defence were open on the evidence. As there were competing facts being considered by the court, this was a clear reason as to why the evidence of the complainant was to be ignored. The Magistrate could not be satisfied that the Prosecution had negatived self-defence and provocation beyond a reasonable doubt, for the prosecution had to prove that the complainant did not shove the defendant without cause, and that the shove did not cause the defendant to lose control. In the matter of Van den Hoek v R (1986), it was held that a defendant is not required to expressly say that his or her state of mind was such thathewas provoked, in cases where there is “some evidence fit for its consideration”. The Prosecution also failed to prove beyond a reasonable doubt that the complainant did not then strike the defendant first, and this was ultimately accepted by the Magistrate.

If you have been involved in any incident that has resulted in you being charged with assault, we recommend you contactour firm immediately so that we can provide advice early and give you the best possiblechance to defend the charges.

Cautionary Message Regarding use of Force

In the Magistrates Court of Southport, our client Mr Joel Helmore had his charges of Serious Assault Police and Commit Public Nuisance dismissed, following a finding that he had been unlawfully arrested and therefore was falsely imprisoned.

The incident occurred at Southport outside Melbas Nightclub. The evidence showed that that Mr Helmore was not committing any offence at the time of being arrested, nor had he committed any offence prior to the Police attending and arresting his friend. He was simply standing on the side of the road, filming the police arresting his friend. It was found that Police had no basis to form a reasonable suspicion that Mr Helmore had committed any offence. Police arrested Mr Helmore after he was pointed out by a bouncer, and the bouncer briefly uttered some words. The critical issue at trial was whether this officer had a reasonable suspicion that Mr Helmore was or had committed an offence. Further, the arrest must have been necessary for one of the reasons set out in s 365(1) of the Police Powers and Responsibilities Act.

It was shown that the Police Officer didn’t think she needed to have one of the reasons in s 365. In her view, it was enough to have a reasonable suspicion. What followed was Mr Helmore being arrested, handcuffs being applied, and being searched against a police vehicle. Mr Helmore offered no resistance. Once arrested, he expressed his disapproval and blew a raspberry in the direction of Police. This resulted in him being restrained on the pavement with severe force. While it was not in issue in the trial, it was accepted by the Police that the force used was not necessary, as he was offering no resistance.

The defendant was therefore unlawfully in custody at the time that the police place him in handcuffs, and he is incapable of obstructing or assaulting the police. Further he is entitled to use reasonable force to resist that arrest, provided it is not disproportionate.

If it had been found that a reasonable suspicion existed, and one of the reasons in 365 authorised the arrest, the application of force in applying handcuffs in circumstances where it was not justified to overcome resistance (s 254 of the Criminal Code) or otherwise “reasonably necessary force to exercise the power” (s 615 PPRA), renders an otherwise lawful arrest, unlawful. The defendant cannot obstruct or assault a police officer in the execution of her duties during an unlawful arrest.

The objective evidence showed that he blew a raspberry, a common way of expressing disapproval. Notwithstanding, Police gave evidence that was inconsistent with the BWC.

The effect of the relevant decisions is that the arresting officer, who lacked a reasonable and indeed actual suspicion that Helmore had committed an offence, was unlawfully assaulting him by falsely imprisoning him. The unlawful assault is exacerbated by the application of handcuffs. This is a cautionary indication of the sorts of matters where Police can find themselves having committed criminal offences themselves, notwithstanding that they may consider they are doing the right thing.

Evade Police, Fail to Stop Defence

If you have been charged with an offence of failing to stop, under the Police Powers and Responsibilities Act section 754 (2) Fail to Stop Motor Vehicle, or given a notice under s 755 of the PPRA to identify the driver, you may have a good defence if you can establish on the balance of probabilities that you were not the driver.

We recently resolved a case where the Police in Maroochydore charged someone regardless of the fact that the person had provided strong evidence that she was not the driver, and was not in control of the car at the time – in fact she had an alibi. In that case, she did not have control of all of the keys for the vehicle, and was not aware who was driving the vehicle, it being kept at a different address. She told the police this at the earliest opportunity, and was nevertheless given a s 755 PPRA notice. No doubt this was designed to place pressure on her, but when she in fact could not say who was driving, and the police strongly suspected another to be the driver, this tactic was wrong in law.

Woman charged with perjury after giving evidence at trial of man she claimed sexually assaulted her

Woman charged with perjury after giving evidence at trial of man she claimed sexually assaulted her

http://www.couriermail.com.au/news/queensland/crime-and-justice/woman-charged-with-perjury-after-giving-evidence-at-trial-of-man-she-claimed-sexually-assaulted-her/news-story/d77d25cae6c6eee6c3e61c62611ef3e9