28 replies to this topic

[OldSta]

If that's the case nemisis, perhaps a forum should be created where only admins and mods can post attachments of laws, etc, but not posts be made at all.

That'd save the shit fights.

It could be beneficial having a police officer on the boards to answer any question. BUT, if they are on the boards, that activity should be confined to a single forum so they can't browse and target people.

If people want I am more then happy to draft up an email to send to the cop shop...

It's a public forum, you can't restrict the police from going anywhere on here. There are probably a couple on here already and you don't know it. You could even be a copper yourself!

[jlord16]

It's a public forum, you can't restrict the police from going anywhere on here. There are probably a couple on here already and you don't know it.

Fixed that for you

XRCYST- If people are stupid enough to publicly brag about what illegal things they have done, then that's there own fault

[lachie]

If the information is quoted from a government/legitimate website then there's no need to restrict access to only certain people. Obviously there will be people posting unsubstantiated crap but people with have to use there own discretion there. Just look, the laws and legislation aren't to hard to find.

[celicasupa]

MorganV8, on 01 June 2009 - 06:29 PM, said:

http://www.legislation.qld.gov.au/

and search what ACT you wanna read up.. e.g the transport act to start with

this site has helped allot i have spent more time without a licence than with.. even went so far as getting a no-contact order against a cop
for harrasment.. pulled me up and fined me 9 times in 14 days when i got my toy finnished.. lost my licence for year and half...

[gtp_vlbt1]

i usually live by 3 rules... DONT GET CAUGHT!!, PICK THE FIGHTS YOU CAN WIN, IF ALL ELSE FAILS SMILE AND NOD AND EMPLOY A GOOD CRIMINAL LAWYER ASAP.. oh and make sure you tape all roadside conversations.. its an unwritten rule that all roadside convos are taped so when in the heat of the battle ensure you stay composed and do not admit anything..(and yes it is admissible in court and generally you will NOT be informed of the roadside conversation being taped) be firm with what you say and dont have any ambiguities.
sometimes its just easier to pay the fine and walk away. I personally only engage when you know the fight is worth it.

good luck with it and to quote a very good criminal lawyer " Cops are everywhere, if you choose to do the wrong thing you run the risk of being caught".

[Nemesis]

Quote

With legal misinformation seemingly rampant across this site, it seems an appropriate time to make a thread that details your rights/obligations when dealing with police in a number of common situations. I apologise if a similar thread has been posted before, i have searched and i couldn't find anything particularly similar or comprehensive, if such a thread exists, feel free to delete this one.

It is important to note that this post is not exhaustive, i have intentionally omitted some information for the purposes of keeping this post to a manageable length. At the time of writing, i believe all information contained within to be correct, however i make no guarantees (i have written this post after a somewhat 'trying' day at work!). You should seek independant legal advice. Please note that the information relates only to Queensland, legislation differs (sometimes substantially) from state to state.


Traffic Offences

It may seem obvious, but when pulled over (as the driver) by a police officer the first thing you should do is ensure that they are actually a police officer. Obviously when pulled up by a marked police vehicle and uniformed officers this is simple, however unmarked vehicles and police officers in plain clothes are becoming increasingly common in QLD and there have been quite a number of people convicted for offences in relation to impersonating police officers.

Uniformed officers are only required to state their name, rank and station when requested, however plain clothes officers must produce QPS issued identification on request. Some people refer to this identification as a 'warrant card' although this is an obselete term. Examine this identification carefully and ensure that all particulars match with any information provided by the officer.

You will (almost certainly) be asked to provide your name and address, producing a drivers licence usually fulfills this requirement but if for whatever reason you cannot produce your licence (if you simply forgot it, or you are unlicenced) you are still required to provide your name and address. If you fail to provide this information, or give incorrect information, you are guilty of an offence.

Once you have provided your name and address, you are under no legal obligation to answer, or even acknowledge any questions asked by the officer/s. Whether you choose to answer or not is entirely your decision, but be aware that in most cases your responses are being recorded and should you wish to challenge the police version of events down the track, any admissions you made during the stop may make this impractical or impossible.

In QLD you may, as a party to the conversation, record the conversation without the consent of the other party. In the age where most mobile phones have a voice recording feature, recording the conversation is quite simple. In a case where you dispute the police version of events it is particularly important to record the conversation, where possible, for future reference. Some motorists actually carry dedicated voice recorders for this purpose.

I am commonly asked, 'I was booked for speeding but the police officer refused to/didn't provide proof of my speed, is this allowed?'. In QLD, a police officer is under no legal obligation to provide evidence substantiating your alleged speed. If available (LIDAR reading for instance), most officers will provide such evidence as a courtesy, but be aware that they are not legally required to do so.

If you dispute the police version of events, it is important to note as much information as possible in regards to the alleged offence itself, and anything that could support your version of events. It is advisable to carry a notepad and pen in your glovebox/console at all times. Information that you may wish to take note of includes -

- The exact location (and of course time) where the offence was alleged to have been committed.
- Traffic conditions at this time, were there other vehicles in the vicinity? Could it be a case of 'mistaken identity'? Did the behavior of another vehicle(s) contribute in any way to the alleged offence? Was the traffic heavy or light?
- Physical terrain, was the offence alleged to have been committed on an incline or decline? Could something (such as a hill, tree, parked vehicle, mailbox etc) have obstructed the view of the police officer?
- Were there any witnesses? Retain the details of anyone who may be able to substantiate your version of events.
- Enviromental factors such as rain, wind, fog and so on. Take note of the lighting conditions, was it broad daylight? Cloudy? Twilight? Night?
- Road surface, was the road in good condition? Did oil on the road, potholes etc contribute in any way?

Once the initial emotion has subsided, you may wish to 'cop it on the chin' rather than elect for a court hearing, but it is always preferable to have as much information on hand just in case you wish to take the matter further. I do not advocate challenging infringements on a technical basis, if you are guilty of the allegation, and the appropriate penalty has been applied, i highly recommend admitting guilt (simply paying the fine in most cases).


Providing your name and address

As mentioned above, you are required by law, when requested, to provide your name and address when operating/in control of a motor vehicle, however there a number of other circumstances where you are required by law to provide this information, including -

- If you are caught committing, or are reasonably suspected to have committed an offence.
- When a police officer is attempting to enforce a warrant or serve you with a summons.
- If you are (reasonably suspected to be a) witness or able to assist in regards to an act of domestic violence, a motor vehicle accident/incident or an indictable offence (as opposed to a simple, or summary offence).
- You are reasonably suspected to have committed an act of domestic violence, or are about to commit such an act.
- If the you are the subject of a noise or nuisance direction.
- If the police are about to take (lawfully) your identifying particulars or DNA.

Police cannot require you to provide your name and address simply because they are curious or are 'suspicious'.


Searches

Following on from traffic offences, i will start with vehicle searches. A search may be conducted with a warrant, or in certain circumstances, without a warrant. For the purposes of this thread i will deal with searches without a warrant.

In QLD, there are numerous prescribed circumstances where a police officer may search your vehicle without a warrant, the most common of which are -

- To ensure your vehicle complies with a transport Act, this is your garden variety 'defect check'.
- You are in possession of a firearm/weapon/explosive which, when subject to a current domestic violence order (DVO), you are prohibited from possessing.
- You are in possession of a dangerous drug, stolen or tainted property.
- You are in possession of an implement which may be used for housebreaking, stealing a vehicle or administering a dangerous drug.
- The vehicle itself is believed to be stolen/being driven unlawfully.
- You are in possession of evidence of an offence (punishable by a minimum of 7 years imprisonment) that may be destroyed or concealed.
- You are in possession of an item which you intend to harm yourself, or someone else with.

Other prescribed circumstances exist, but these are exceptional. A simplified explaination is if your vehicle is suspected to contain evidence of the commission of an offence (whether it be an item used to commit the offence, evidence of the offence or the proceeds of the offence) you may be searched without warrant.

It is important to note that in order for a search without a warrant to take place lawfully, there must be 'reasonable suspicion' that one of the above circumstances is applicable. A police office cannot, on a whim, search your vehicle because he/she has a 'gut feeling' that you have, or are about to commit an offence.

The following are examples where 'reasonable suspicion' does NOT exist -

- If you act in a nervous manner, many of us are a little nervous when dealing with the police.
- If you have a criminal record.
- If you are 'uncooperative' with police (in that you refuse to answer questions that you are not lawfully required to answer).
- If you refuse to consent to a search if asked.

Reasonable suspicion is a rather 'loose' term, but it must be noted that 'suspicion' in itself is not grounds to be searched without warrant, the suspicion must be 'reasonable', a gut feeling is not considered reasonable and therefore a search conducted on a hunch would be unlawful. Reasonable suspicion may be viewing a suspicious item inside the vehicle (syringe for instance, or 3 plasma screens piled into the back of the car), there may be an odour present (which may indicate the presence of a dangerous drug, or explosive for instance) or the driver of passenger may make admissions (edit, typo), either deliberately or inadvertently.

Please note that if the passenger or driver is arrested, the vehicle may then be searched without warrant (in most cases, rare exceptions apply).

Personal searches may be conducted without warrant in almost identical circumstances that permit a vehicular search without warrant. Again, there must be reasonable suspicion that one of the prescribed circumstances apply prior to searching.

Any personal search involving the removal of clothing, MUST be conducted by an officer of the same sex unless an immediate search is warranted and a police officer of the same sex is not immediately available. In the event that you are compelled to submit to a cavity search, this search must be conducted by a doctor of the same sex.

Searching/entering a private residence without a warrant may only occur in limited circumstances, these include -

- To administer a breath test in regards to a traffic matter.
- To locate someone who has escaped from lawful custody.
- To make an arrest.
- To prevent domestic violence.
- To prevent evidence from being concealed or destroyed.

Again, other prescribed circumstances exist but these occur rarely.


Arrest

If you are unfortunate enough to be arrested, it is important to know your rights and obligations. When arrested you will be informed of your right to silence, and you will be taken to a police station to be formally interviewed and charged. You may be searched without your consent when under arrest.

Prior to being interviewed you must be informed of your right to have legal representation present during the interview, or a family member/friend/support person. The interview must be delayed for a reasonable time (generally deemed to be 2 hours) for the person/s to attend.

During the interview (which is recorded electronically in the vast majority of cases), you may exercise your right to silence at any time. You can also lawfully refuse to be interviewed and although you will usually be asked to have your refusal recorded electronically, you are under no obligation to do so.

I STRONGLY recommend exercising your right to silence, at least until you have legal representation present. The overwhelming majority of people convicted are convicted on the basis of their own admissions, it is quite possible, even if you are completely innocent of the allegation/s, to unwittingly implicate yourself. Most people are of the belief that if you are innocent, you have 'nothing to hide'. This may be the case, but any information you provide may be used in evidence and a seemingly innocent remark could be taken out of context and land you in hot water.

You will be fingerprinted and a sample of your DNA will be taken.

Once interviewed, fingerprinted/DNA swabbed and formally charged you will either be released or remain in custody until such time as you can appear before a Magistrate.

If you are released by police, you will be given a 'Notice to Appear'. You must appear before the nominated Court on the date noted on the NTA, failure to do so may result in a warrant for your arrest being issued. Failing to appear may negatively impact on any future bail applications, obviously it is also an offence. You must be given at least 14 days from the arrest date until the date of the court appearance, but more commonly it is 3-4 weeks. In this time it is extremely important to seek legal advice. If you cannot afford a solicitor, you may apply to Legal Aid QLD for assistance. If eligible, Legal Aid will appoint legal representation to act on your behalf. It is a common misconception that Legal Aid solicitors are employed by the Crown and are therefore 'working for the other side'. This is not true, solicitors appointed to recipients of Legal Aid are plucked from a pool of private solicitors/barristers who agree to take on Legal Aid cases. You can also approach a solicitor directly and they may assist you with obtaining Legal Aid, some solicitors don't take on Legal Aid funded cases, but the majority will.

If you are charged with a serious offence and you are worried about the quality of your representation appointed by Legal Aid, don't be. If charged with murder you can rest assured that a solicitor with 3 months experience won't be appointed! Highly experienced counsel will be appointed to ensure you get the best representation possible.

Legal Aid assistance is means tested if you are on bail, if however you are remanded in custody, you automatically become eligible for Legal Aid assistance.

If you are remanded in custody, you will (usually) be taken to a watch house where you will stay until you are brought before a Magistrate. 'Watch House bail' may be granted, but this is fairly rare these days. You are entitled to appear before a Magistrate as soon as possible. Often this is the same day, but if you are arrested at night you will usually appear the next day. Often if arrested on the weekend you will have to wait until Monday, although you may appear before the court on a Saturday morning in some cases.

When appearing in court after being refused 'police bail', an adjournment is requested (ask for the matter to be carried over to a later date) and (usually) a bail application is made. The defendant is entitled to the presumption of bail in most cases. This means the police prosecutor must show cause as to why you should not be granted bail, rather than the other way around. If you have breached bail/failed to appear or are alleged to have committed certain offences (primarily terrorism related) you are then in a 'show cause' situation. You must then provide evidence as to why you should be granted bail, and bail is often difficult to obtain in a show cause situation.

If you or your solicitor are undecided about the prospect of a potential bail application, it is almost always preferable to make no application for bail at this time, and to make an application at a later date when supporting evidence etc can be obtained. Although time spent in custody is never fun, it must be remembered that although there is no legislative limit to bail applications, you will only be granted bail after a previous application (in the same Court) if you can provide new evidence to support your bail application. As you can see, it is important to get the bail application right first time.

If you are refused bail by a Magistrate, you can apply for what is known as 'Supreme Court bail'. This is a more comprehensive bail application, heard before a Judge as opposed to a Magistrate. A Judge may decide that bail is appropriate in the circumstances, but often strict conditions are imposed including providing a surety (cash or an item of value that will be surrendered if you fail to appear in court when required), ordering you to surrender your passport, undertaking regular drug and alcohol tests and reporting to police on a regular basis, sometimes daily. Supreme Court bail can be a costly undertaking, Legal Aid are loathe to fund SC bail applications unless there is a strong likelihood that bail will be granted, and if you are funding the application yourself, it can cost upwards of $5000, exclusive of any amount of surety that may be required. This again illustrates the importance of presenting the strongest application possible the first time.


This is where i will leave this post, giving advice or information after this point in the legal process would be purely speculative.

Feel free to ask me to elaborate on certain matters, or make clarifications or additions. I am sure there are other members who are also qualified to comment. During what can be an unsettling and scary process it is vital to remain calm and capable of rational thought, i cannot stress this enough. Your future may depend on it.

[PHX065]

XRCYST, on 04 June 2009 - 09:18 AM, said:

QUOTE (OldSta @ Jun 4 2009, 09:37 AM) You could even be a copper yourself!

Im still pissing myself laughing at this post...

Ive been waiting to see how long it would take for someone to post a link to the PPARA... Police Powers and Responsibilities Act... here it is....
http://www.austlii.e...t/ppara2000365/