Redcliffe Traffic Offences Demonstrates Flaws in Radar Detection

As a criminal defence lawyer it is essential that we maintain justice at the Magistrates Courts level when it comes to traffic offences and the resultant infringements. Recently a hearing conducted in the Richlands Magistrates Court indicated the danger of human error in the operation of LIDAR devices. These devices are inherently reliable when properly calibrated and when operated properly. However, this does not remove the human factor both in calibrating and in operating these devices which leads to the allegation of so many traffic offences and the consequential infringement notices. Richlands Magistrates Court is a busy and often overloaded court house, but that should not discourage individuals from contesting traffic offences in the right circumstances. Getting advice early on traffic offences is critical. Speeding offences can easily result in loss of licences, and this can have an impact on your ability to earn a living. Special hardship orders are available in only a small number of categories. Work licences are only available for Drink Driving and Drug Driving offences. Losing a licence is for some a severe a penalty. Engage a Brisbane Crime Lawyer early to discuss your options.

Brisbane Criminal Defence and Immigration Detention

In May 2014 the Abbott government announced, with typical bombast, the arrival of a new super-agency into an already cluttered law enforcement environment. Backed by fresh legislation and armed troops fitted out in coal-black uniforms, the Australian Border Force (ABF) was to epitomise an increasingly belligerent approach to policing a frontier that the then-Immigration Minister Scott Morrison termed a “strategic national asset.”

This is only further confirmed by their recent intervention into the case of Omar, a young Kuwaiti man who came to Australia to commence a university degree.
Omar’s dream fell apart on a cool, wet Monday in June of 2016. That afternoon, he was visiting a suburban shopping centre in Brisbane when he was arrested. The police alleged he was responsible for a minor sexual assault on a minor constituted by brushing past him in a shopping aisle.

In his time as a detective having investigated many accusations of sexual offences against minors, Sibley suspected that Omar’s account was unlikely to be taken at face value, certainly not without corroborating evidence. He also knew that false complaints of sexual assault are uncommon. Nonetheless, from the outset it was clear that the acts alleged, even if substantiated, were at the lower end of the criminal spectrum.

Sibley was therefore unsurprised when the Magistrate approved bail subject to certain conditions, including the surrendering of Omar’s passport to the court. When he received a telephone call from his client later that afternoon, he expected it to be confirmation of his release.

What Omar instead told him shocked the lawyer: he was now being held at the Brisbane Immigration Transit Centre at Pinkenba. The ABF had stepped out of the shadows and were about to take things in an entirely different direction.

How the ABF became aware of Omar’s arrest remains a mystery. What is apparent is that sometime after the Magistrate bailed Omar but before he was freed from custody, someone in authority contacted the ABF in an evident attempt to subvert the court’s decision.
Up until then, the denial of bail had been entirely a function of Omar’s status as a foreign national; once it was granted, his citizenship became at law immaterial. But the rule of law, not to mention procedural fairness and common decency, tends to count for little when the ABF becomes involved. Ostensibly on the grounds that he failed the Migration Act’s vague “character test,” they grabbed Omar before his court-ordered liberty could be exercised, transferring him directly to Pinkenba and a highly ambiguous form of custody.

Tales of asylum seekers languishing for years in immigration detention are depressingly commonplace. In Omar’s case, conversely, the ABF acted with astonishing haste. Barely two weeks elapsed between his incarceration and deportation. In the fringe world of immigration detention, where actions can be hidden behind the blanket justification of “operational matters” and judicial process overridden by executive discretion, the principal strategy is to cut the individual off from society. Ignoring any basic right as to the presumption of innocence, the ABF presented Omar with two equally unpalatable choices: remain incarcerated at the very least until the court proceedings were finalised, likely to take twelve months or more, or accept an immediate one-way ticket back to Kuwait. Predictably enough, he chose the latter.

The furtive nature of the ABF’s role in Omar’s case was further demonstrated when the matter went back before the Magistrate in July. The prosecutor, acknowledging the accused’s departure from the country, asked for a bench warrant to be issued. This means that the proceedings will remain open indefinitely, in the unlikely event that Omar returns to Australia. Some weeks later, to Hannah’s surprise two uniformed police came looking for Omar; they in turn seemed astonished to find he had left the country. There is little doubt the officers were there to execute the warrant, and the Queensland Police Service have bizarrely claimed that their investigations are continuing, despite Omar’s deportation.
This palpable lack of communication between the ABF and the Director of Public Prosecutions and Queensland Police implies that almost certainly the alleged child victim and his family too have been left completely in the dark, badly let down by the combination of overreach and incompetence on display. For Sibley, the entire affair constitutes an unconscionable failure of process on behalf of the authorities involved.

Ultimately, Omar’s case is not about guilt or innocence, nebulous concepts at best and here rendered obsolete by the intervention of the ABF. It is about justice: for Omar, the complainant child and his family, and most importantly society as a whole. That in contemporary Australia we are so prepared to manipulate justice in the name of “national security” – in areas as disparate as denying the human rights of refugees and visa students to being complicit in unlawful drone attacks upon foreign nations – is tantamount to conceding that there is no longer any justice at all.

Australian Border Force Intervention in Criminal Matters

 

Over the last 15 years or more, I have observed Australian immigration policy bring Australia into disrepute internationally, and help to fuel an ever growing problem of hatred towards the West and Australia in particular in the Middle East. Recently I worked on a case to free a young Middle Eastern student accused of offences in Brisbane, while on a Student Visa. The evidence was circumstantial, and the young man had good prospects in his defence. The risk of Border Force getting involved was brought to his attention, but the client’s decision was to seek Bail as he was having a difficult time coping in the Watch House. Having secured the release of this young man on bail, Border Force immediately picked him up from the Watch House, determining that the young man’s presence in Australia “is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals”. This was enough to put him in immigration detention, cancel his visa and deport him. The Police did not exercise their power to seek a Criminal Justice Visa. The Border Force officers made it clear that they were happy to act on a Police allegation as enunciated in the QP9.

Active Shooter Marauding Terrorist Firearms Attacks

Following on from our observations of the recent events in Paris and Jakarta, we were pleased to deliver a training session to a range of Country Risk Managers on ASMTFA at the Strategic Risk Forum in Singapore on behalf of NYA International at the request of AIG. The session was well received and covered issues of planning and risk mitigation, as well as PR, legal and compliance issues.  Unfortunately the outlook for Australia is not positive, and we suspect that many venues present soft targets, such as airports, shopping centres, schools and the like. Intelligence and security collection is unlikely to detect and disrupt these attacks before they happen, and so planning for a realistic scenario is the most preferred option to reduce risk, loss of reputation and civil liability.

Should Multiple Drink Driving Disqualifications result in Cumulative Sentences?

Today we argued that s 90B of the Traffic Operations (Road Use Management) Act (TORUM) 1995 (Qld) does not mandate that two separate drink driving offences committed within a short period of each other must lead to cumulative disqualifications. Magistrate Carmody agreed and concluded that the sentencing function of the Magistrate is discretionary, and therefore the totality principle should be applied.

In this case the first minor drink driving offence (over the general and under the medium limit) took place while the defendant was not the holder of a driver license, and the second took place within a few hours when the defendant attempted to move their car.
A Traffic Operations (Road Use Management) Act (TORUM) 1995 (Qld) s 79(2) offence carries a mandatory minimum of a three month disqualification by virtue of s 86 (2) (e). The first offence of driving while unlicensed does not carry a mandatory disqualification period. The second offending just after the defendant had been released by the police, resulted in him being charged with another unlicensed offence, and a drink driving offence over the 0.00 limit (due to the defendant being unlicensed they were required to be 0.00). The defendant’s licence had expired two weeks previously.

Totality Principle

We argued that the drink driving disqualifications should be served concurrently, applying the totality principle. R v. Kendrick [2015] QCA 27 discusses the principal of totality, and while the application was in relation to much more serious offences, it is helpful here. At paragraph 31 his Honour Morrison JA said of the Totality Principal:
That principle was explained in Mill v The Queen when the High Court approved this statement from Thomas, Principles of Sentencing “The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[‘]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.’”

At paragraph 39, quoting Azzopardi v The Queen, his Honour noted that there are two ways to apply the principal, either by “….making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred”.

Section 90B creates confusion, but has been relied upon by Police and Qld Transport (using the so called ‘Dummies Guide’ to the TORUM) to submit that cumulative disqualifications would apply in such a case.

Section 90 B states:
90B Cumulative periods of disqualification for offences committed at different times
(1) This section applies if—
(a) a person is disqualified (the initiating disqualification)—
(i) under a relevant disqualifying provision for a drink driving offence; or
(ii) under a section 89 disqualification; or
(iii) under a section 90 disqualification; and
(b) before the period of disqualification for the initiating disqualification ends, the person is disqualified again on 1 or more occasions (a later disqualification) as mentioned in paragraph (a).
(2) However, this section does not apply if section 90C applies.
(3) Each period of disqualification whether for an initiating disqualification or later disqualification takes effect cumulatively with each other period of disqualification.
Examples—
1 D is charged with a drink driving offence. Before the court hears that charge D is charged again with a drink driving offence. The court convicts D of both offences and disqualifies D for a period of 2 months for 1 offence and a period of 4 months for the other offence. The total period of disqualification is 6 months.
2 D commits a drink driving offence on 25 December 2008 and commits another drink driving offence on 1 January 2009. A court convicts D of the 1 January offence on 2 January 2009 and disqualifies D for a period of 2 months. On 1 February, the court convicts D of the 25 December offence and disqualifies D for a period of 4 months. The total period of disqualification is 6 months.

Kumar v Garvey discusses s 90 B. In obiter McGill DCJ, who allowed an appeal in that case on other issues said: “I should also refer to s 90B of the Act. The effect of this provision appears to be that the two periods of disqualification imposed by the magistrate were cumulative. I say “appears to be” because the section is strangely worded, and to me produces that result only if one assumes that a person is disqualified at the time the offence is committed, rather than at the time when an order is made under the Act imposing the disqualification, or by the terms of the Act, a disqualification is imposed. That it would apply to the present case is consistent with example 1, which is part of the section, though it seems to me that otherwise it would be difficult to tease that outcome out of the words used by the legislature”.

When dealing with mandatory minimums, it is appropriate to consider the combined effect of all the disqualification periods, and consider whether the aggregate is ‘just and appropriate’.

In this case the defendant had only a very minor traffic history, and no drink driving offences in the defendant’s past. If two mandatory disqualifications of three months had been ordered to be served cumulatively, the impact would have been unjust and harsh, and would not be appropriate given the level of the defendant’s culpability.

While a minor piece of advocacy in the greater scheme of things, in our view the TORUM is a legislative nightmare for practitioners and defendants alike, and it is appropriate that it be carefully considered. As McGill DCJ stated (para 22) “Mandatory sentencing provisions are frequently the subject of judicial and academic condemnation whenever they appear. Generally, Queensland is mercifully free from some of the worst excesses in this area which may be found in other states, but ss 78, 79, and 86 of the Act contain detailed and complex mandatory sentencing provisions which deserve all the principled criticism directed at mandatory sentencing. The sections have been much amended over the years, in what appears to be a process of populism”.

Release of 60 Minutes Crew and mother Sally Faulkner sets up a Potential Diplomatic Incident

The release on bail of the 60 Minutes crew, and the mother of the attempted victims of an abduction in Lebanon, may be kicking the can down the road in terms of impact. We would expect that the Lebanese judicial system will want these individuals to return to face Court, in the quite likely event that they will be indicted on some offences. Should Tara Brown and the crew decide not to attend for a future Court date, this is likely to lead to blow back on the Australian Government, especially as Australian Embassy Consular staff were seemingly involved in helping them to leave the country. Assuming the allegation is sustained regarding the involvement of 60 minutes in organising the kidnapping, their absence will mean that not all of the alleged perpetrators are present to be tried.

http://www.theaustralian.com.au/business/media/broadcast/nines-milliondollar-getoutofjail-card-in-beirut/news-story/ab23cd8c2a5acb5de103372b671d64a3?login=1

Legal Issues in Lebanon

The arrest of Sally Faulkner, the 60 Minutes crew led by Tara Brown and the representatives of a child recovery company in Lebanon demonstrate the need for careful consideration and expert knowledge prior to making decisions about the operation of laws in a foreign jurisdiction. One can only be knowledgeable about so many locations, and nothing beats a detailed familiarity of a particular location. Our advice would have included an insight into the operation and remarkable capabilities of the Internal Security Forces (ISF) and the General Directorate of General Security (Direction Générale de la Sûreté known as GDSG) in Lebanon, and clear counsel not to attempt to circumvent the laws of Lebanon. Lebanon is complex and can be dangerous. The Lebanese are nationalistic, albeit following consideration of family, village, sect and then country, and can be expected to enforce the law and prosecution of breaches of it, with transparent and officious diligence.

http://www.theaustralian.com.au/business/media/60-minutes-crew-on-lebanon-charges-of-kidnap-assault-conspiracy/news-story/3a98f216b0ac8c2faf7b804060ffbd57

 

Brussels Causes Inevitable Media Driven Search to Determine Whether Something was Missed

The very sad events in Brussels, like in Paris and elsewhere, has resulted in the inevitable media driven search to determine whether something was missed by law enforcement or intelligence agencies that could have prevented the attack.

As other commentators are now beginning to concede, these sorts of attacks are very difficult to thwart. Terrorism is a conspiracy to commit murder. In this current age, the conspirators rarely receive anything other than inspiration from overseas. In such cases, using techniques that are not difficult to learn, it is easy to conceal a conspiracy until the attack takes place.
Whether we like it or not we now live in a far riskier climate, created in large part by erroneous responses to terrorism threats (led by our following of the US coalition) that now seem a distant memory. And as a result, it is even more important that law enforcement agencies remain nimble and responsive to leads and tip offs, as it is now even less likely that ‘chatter’ or intelligence collection will provide warnings of plots that will cause real terror in our communities.

Justin Sibley – Specialist Consultant

At the request of Saul Holt QC, Justin Sibley provided expert guidance on a recent terrorism case, and in particular assisted in preparing the cross examination of the expert witness. Justin Sibley is in a strong position to assist on these types of cases, as he tends to know the witnesses that the Australian Federal Police and ASIO rely on, and often knows as much about the region and the issues as they do.

Farhad Jabar – Four Corners Program

[fusion_text]Written by: Justin Sibley  Published: 27 January 2015

[dropcap color=”” boxed=”yes” boxed_radius=”0px” class=”” id=””]T[/dropcap]he Four Corners program recently aired an interesting documentary on Farhad Jabar, who murdered a unsworn member of the NSW Police Service in Parramatta. The underlying theme of the documentary, is the involvement of conspirators from earlier plots (spanning back to Operation Pendennis). What the program does not do, is talk about the potential alienation caused by the involvement of law enforcement and security forces around the world, who have unwittingly encouraged individuals to develop their dislike for the West. Similar mistakes may be occurring again, through the unrelenting focus and suspicion levelled against individuals involved in the conflict in Syria, attempting to overthrow President Bashar al Assad. Policies such as legislation targeting Foreign Fighters, and simplistic approaches to terrorism financing investigations, do little to help prevent a new generation of would-be terrorists. A more balanced discussion of the issues is needed, including an understanding of the peculiar role that Syria plays for Lebanese Australians in particular. 

To watch the full program, please visit: http://www.abc.net.au/4corners/stories/2015/11/23/4355252.htm[/fusion_text]