Criminal law guides

Start with the court, not the charge

People read about the maximum penalty first. That is usually the least useful number in the matter, because the maximum is reserved for the worst example of the offence and almost nobody receives it.

The more useful question is which court will deal with you. A charge that stays in the Magistrates Court is capped at 3 years imprisonment on a summary conviction, resolves in months, and costs far less to defend. The same conduct sent to the District Court carries the full statutory maximum, takes a year or more, and involves a committal, a barrister and a trial listing.

Whether a charge stays or goes is not always automatic. The prosecution elects on some offences, you can elect a jury trial on others, and a magistrate can send a matter up under section 552D if satisfied you could not be adequately punished summarily. That is worth arguing about before it happens.

What actually decides most matters

Very few Queensland criminal matters turn on a dramatic revelation. They turn on three things.

1. Whether every element of the offence can be proved beyond reasonable doubt. Identify the weakest element and stay on it. You do not have to prove anything.
2. Whether a statutory excuse in Chapter 5 of the Criminal Code applies, including section 24 mistake of fact, section 22 honest claim of right, and sections 271 and 272 self defence.
3. What the sentence looks like if the matter resolves, and in particular whether a conviction is recorded at all under section 12 of the Penalties and Sentences Act 1992 (Qld).

That third point is the one people underestimate. For a first offender, the recording of a conviction usually matters more than the penalty. Section 12 requires the court to consider the nature of the offence, your character and age, and the impact on your economic and social wellbeing and your prospects of finding work. That argument needs evidence, not adjectives. Bring the employment contract, the visa, the licensing requirement.

The decisions that are hard to undo

Two of them happen early, often before anyone has read a brief of evidence.

The first is the record of interview. Beyond giving police your correct name and address, you are generally not obliged to answer questions about an alleged offence. People routinely fill the gaps in a weak police case with their own words, then spend months trying to explain them.

The second is a plea entered at the first mention. An early plea does attract a sentencing discount under section 13 of the Penalties and Sentences Act 1992 (Qld), but that discount survives an adjournment to get advice. Withdrawing a plea afterwards is very difficult. Ask for time, read the QP9, then decide.

One time limit is worth remembering. For a simple offence, a complaint must generally be made within one year of the offence under section 52 of the Justices Act 1886 (Qld). Indictable offences have no general limitation period at all.