“Use of Force Law Reform in Northern Australia”  
By Scott J. Sier Lawyer – [email protected] – www.scottsier.com - 0407268809


Use of force laws affect millions of people that have in the past been arrested and the millions yet to be arrested in the criminal justice system. The limitation to using force upholds the presumption of innocence to treat accused persons as if they have not yet been convicted. 

The Police Powers Responsibilities Act 2000 Qld allows a police officer to use force deemed reasonable in the circumstances, however there are limited to no prescriptive definitions of what reasonable is. This is similar in other states such as Western Australia Section 609 of the Police Force Regulations 1979 which again provides limited prescriptive factors as to how reasonable use of force operates.  

Section 27 and 28 of The Northern Territory Criminal Code attempts to address use of force in a different way with “justification for the use of force” it provides “adequate time to comply” before certain force can be justified. Prescriptive factors like this need to be included in a uniform way to the use of force laws generally. However, they are especially required in the Northen States of Australia where more vulnerable indigenous persons live and where relations with police are limited and accidents keep occurring.

In the North of Australia force is used disproportionately against indigenous persons. The Queensland Operating Procedure Manual provides more prescriptive factors such as using the “minimum force required” for a lawful purpose. This is an ideal standard but it is unrealistic and unenforceable for lawyers and decisions makers as they are internal rules.  

The lack of detail in the use of force laws frequently lead to miscarriages of justice whereby public lawyers advise defendants to plead guilty in cases where the matter should be dismissed. There are a range of reasons for this.  

1. Dismissal requires complex litigation with a summary trial lawyer, which is often not
    accessible to the defendant in communities where the lawyers are often circuiting.  
2. Being inferior jurisdiction indictable matters they are heard in Magistrates Courts usually with
    inexperienced counsel that are not willing or able to run a summary trial.
3. Public funding models are aimed at “preventing unnecessary litigation”, it is common for
    Publicly funded Solicitors to never run a summary trial, often times due to a lack of merit
    assessment to do so internally within their own organisation. Merit cannot be granted fairly
    without more prescriptive use of force law
There are limited or no guiding principles in the legislative instruments that regulate use of force.
Lawyers rely on complex case law and the opinions of all parties reviewing the material. The accessibility of the right to dismiss a case for unlawful use of force is largely inaccessible yet it is critical to regulate use of force accidents. Often times convictions are sought against a defendant where unreasonable force is used to prevent the defendant from suing the police force for assault.

Case Studies:
In Queensland Peter O’Keefe was walking across a hot bitumen road in Doomadgee when he was detained without charge. He simply tried to get his thongs. The police officer pushed Mr Okeefe in the chest leading into a cascading escalation of force that resulted in his tibial head and fibular being broken, his ACL and MCL ligaments being torn, the injuries led to permanent disfigurement. Mr O’Keefe’s case was ultimately dismissed for unlawful use of force at summary trial but not without significant litigation stress to him and over 10 in person court appearances. The extent of the litigation required to have these cases dismissed prevents the law from functioning properly with defendants often pleading guilty prior to summary trial or breaching bail and pleading guilty to all matters to be released. Such matters would be best dealt with as an early pre-trial motion / hearing to dismiss without the defendant’s presence required.

Around 2018 a similar failed use of force by a young officer with no cultural training resulted in the death of Neil Banjo in Normanton Queensland. Both of these tragedies were completely preventable with better training and laws.  

In the Northern Territory Officer Zachary Rolfe shot 19 year old Kumanjai Walker 3 times and a prosecution against the officer failed.
In Western Australia there have been commissions into the unlawful use of force.  

Legislative amendments proper consideration is given to the overall circumstances by the officer before applying force, including but not limited to the persons culture, age, health, disability or any other needs.

Our laws should permit force that is proportionate to the risk faced by any police officer in any given situation. Proportionate force is the standard available to a private citizen for the purposes of self-defence and is a standard that most people expect police are already held to.

Subjective views on what is reasonable force should be rescinded for objective standards.  
DRAFT AMENDMENTS UNDERLINED BELOW
Police Powers and Responsibilities Act 2000 QLD
615 Power to use force against individuals

1.     It is lawful for a police officer exercising or attempting to exercise a power under this or any
       other Act against an individual, and anyone helping the police officer, to use reasonably
       necessary force to exercise the power.

Example— A police officer may use reasonable force to prevent a person evading arrest.
(2)      Also, it is lawful for a police officer to use reasonably necessary force to prevent a person from escaping from lawful custody.
(3)      The force a police officer may use under this section does not include force likely to cause grievous bodily harm to a person or the person’s death.
           Additional Amendments Sought
(4)     Any force applied should be proportionate to the risk faced by a police officer in any given situation.
(5)     Any force used must be necessary to achieve a legitimate purpose and must be the minimum force required as perceived by the officer at the time.
(6)     Proper consideration must be given to the overall circumstances before applying force which include but are not limited to the persons culture, age, health, disability or any other needs.
(7)     Adequate time must be provided for a person to comply with directions.
(8)     Police officers must attempt to comply strictly with sections 1-8. 
​

Australia and the world desperately require a new fundamental human right and that is the right to peaceful self surrender.

Most recently people have protested the corona virus lock down laws, they have rallied for black lives matter and the right for and against legal abortion. The intent generally with these protests is that change is sought by the public and change is hopefully delivered.

During some of these protests on occasion police exercise their powers of arrest.  When it becomes apparent or obvious that a person needs to be arrested I believe that the person should have the legal right to self surrender before forcible arrest and detention.

These laws could save thousands of lives if properly adopted and would require before any static arrest that the person of interest be offered self surrender if detention is required.

An example of such a law would be the following:

Citizens right to self surrender:
When engaging in an arrest police are required to state the following before touching the person:
" You are under arrest. You have the right to remain silent. You have the right to self surrender. Handcuffing yourself is not an admission of guilt. I now produce the handcuffs and place them before you. If you do not handcuff yourself serious force may be applied to you. You have the right to request self surrender after force is applied to you. If you pretend to self surrender you will be committing a criminal offense.  "

This right could in effect prevent police from ever touching a person that complies with their right to self surrender. While in practice there is no way to ensure that people will invoke their right to self surrender it will place a safeguard power directly into the hands of every accused person.

When choosing a lawyer to handle your case it is important that you choose the best fit for your circumstances. With a big firm it is likely that you will deal with multiple parties. The principal, associates and junior lawyers as well as admin staff and lawyers in training.

When you choose a sole practitioner that means they work on their own or with a tight group of other professional in a partnership. Generally this means you have greater access to the person who is actually doing the work on your matter.

In Criminal matters I believe that the direct access to your lawyer ultimately leads to the best results. Natural staff turnover at big firms and the nature of their structure usually means that several people will handle your matter leading to a potential loss of confidence.

The overheads of bigger firms generally will mean higher fees passed on to the client and do not necessarily relate to better results. Occasionally a big firm may be required if there is an extraordinary amount of work to be done on a case. In criminal law this is exceedingly rare because even the largest of cases can usually be handled by one or two lawyers.

If you feel that you have been treated poorly by big firms in the past or that your current matter is not being given adequate attention don't hesitate to engage a sole practitioner.

Fixed fees can be arranged for most Local Court sentence matters when they are simple.

An hourly rate may be charged for complex proceedings requiring multiple court dates.

Depending on your case and what legal work is required for your matter the fees can vary significantly.

To break it down simply you need to prove you are not a risk to the community and that you will appear at your next court date. If you are not granted police bail at the station within 6 hours you will need to appear before the Magistrate as soon as Court is sitting next.

Ideally when you appear before the Court you will be able to explain your detention is not justified because the crown case is weak and you have never committed any serious offenses.

It is smart to try to apply for bail with the Magistrate without a lawyer initially as the process is easier. If you instruct a lawyer on the day, usually legal aid, and they are not prepared. This could result in further attempts for bail to be blocked until you have fresh material to put before the Magistrate. 

What you need before applying for bail.
1) an acceptable person who agrees to enter into a surety (sum of money).
    to be acceptable this person should not have a criminal record.
    this should be in the form of an affidavit or statutory declaration.
    The amount required will vary depending on the offense and a variety of factors.
    Anywhere from $1000 for a minor matter to $100,000 for a serious matter.
    A substantial surety exceeding $5000 assists your prospects greatly.

2) Provide a bail address so that the police can call upon you to conduct bail checks.
3) Suitable bail conditions that you agree to follow.

4) Importantly a private solicitor or barrister is your best opportunity to obtain bail as they have the
    time and resources to work on your matter and present it in the best way.

Usually possessing an Indictable amount of MDMA can result in serious terms of imprisonment and usually carries charges of supply or deemed supply.

We successfully argued that the several capsules and pills of MDMA were for the client's personal use. We insisted on further testing in regard to weight and quality and this resulted in a far reduced amount of the drug on the charge sheet. Had the matter escalated to the District Court, a significant prison sentence exceeding 2 years could have been imposed. 

Our client escaped conviction altogether for what the law considers a serious amount of MDMA.

Pills generally weigh between 0.2g and 0.33g. More than 3 pills could lead to a deemed supply charge.

Remember you have the right to remain silent, you are only obliged to give your details to police and comply with their directions or arresting procedure. This does not mean you need to answer questions whatsoever. You also do not have to give an interview and probably should not under most circumstances because it will often result in hundreds of leading and loaded questions that could make you look dishonest despite your best attempts to comply.


The NSW drugs table lists MDMA as:
3,4-Methylenedioxymethylamphetamine
The weight categories are as follows 

Traffickable quantity  0.75g
Small quantity            0.25g
Indictable quantity     1,25g
Commercial quantity 125g
Largecommercial quantity 500g

Amounts approaching the commercial quantity usually result in a term of imprisonment.

Bail applications allow you to stay out of prison before your hearing date. This can be very instrumental in assisting your legal case and assisting your to remain together during a difficult period.

It is far harder to prepare for a legal case while in prison and it is far more likely that you will be sentenced to full time imprisonment if you remain in prison. However if you do believe that the case against you is extremely strong and you are advised that a long term of imprisonment is most likely then it could play in your favour not to apply for bail because it will drain resources better spent on your court matter elsewhere. Time on remand before your sentence or trial will count as time served in any ultimate sentence.  

​Bail applications are complex and generally can only be applied for one time in the Local Court. Therefore it is important to disclose everything that could be of assistance to your application. We are able to help you with these disclosures to put your best foot forward at your upcoming court date. 

If you need your license and driving is a very big part of your life it is important that you know how to make applications to fight tickets, defend criminal traffic offenses and to appeal license suspensions.

For L and P platers the points allocated to you are 4 and 7 points respectively. This often means one offense will result in a suspension because of the zero tolerance laws for speeding P platers. 

DON'T LISTEN TO THE WORDING ON YOUR LETTERS
Comments on SDRO correspondence such as this regrettably exist:

"only 3% of of fences result in a not guilty verdict."

Less than 5% of traffic matters are ever listed for hearing. This means that many innocent people simply do not bother putting forward a defense that could result in a not guilty verdict.

When appropriate or when instructed to do so my client will plead not guilty and this can often provide fantastic results. Generally speaking your traffic matter will proceed with a plea of guilty and with good material put forward on your behalf you will likely obtain the result you need.

Statistically Australians are very close to being crowned the world wide champions of recreational drug use. Not a very proud crown to aspire to. Alcohol, Tobacco and prescription drugs each kill more than any illicit drug on the market. But you know what is in your beer, you don't know what is in illegal drugs.

Illegal drug possession continues to soar with a 30% increase over the past 5 years according the BOSCAR statistics. Violent crime however is at a 30 year record low. There seems to be no connection between the two statistics.

Possession in Australia has unusually low thresholds in respect to certain drugs. Over a few grams of most drugs will see you charged with deemed supply.

The indictable amount for cocaine for example can easily see a person facing the District court facing a prison term. The indictable amount is over >5g but under <250g

This Grey area can attract sentences of 1-10 years imprisonment depending on the subjective case.

A normal sentence for say 125grams of cocaine would be around 3 years.

The NSW drugs table is an essential guidepost in relation to each and every drug currently available and how the law treats each drug.

http://www.austlii.edu.au/au/legis/nsw/consol_act/dmata1985256/sch1.html 

In Criminal law the right lawyer means the right fit. Most criminal law clients have complex subjective features. This means that they have a colourful past or present. In order to truly defend the person it is extremely important to spend the time on the case.   

Established practices that have higher overheads and can grossly over charge. Numbers provide most of their billable hours. In these firms they often don't really know your matter.

If you call your lawyer and they don't know your brief back to front, let alone your name then be worried. If they do not return your calls or don't listen to you, be worried. Don't be fooled by grand offices, listen to their advice and if it sounds like corners are being cut question it straight away. Lawyers are only as good as their client's brief which is why adequate preparation for each matter is what makes the best lawyer on the day.


Big firms often take on as many matters as possible to increase revenue. They are also inclined to make a junior work on the matter and these lawyers are usually so overworked they make mistakes. If a junior makes a mistake a partner will have to take on the work to resolve the matter. This passes the cost onto the client despite some of those 'mistakes' being irreversible. Mistakes you have paid for.

Beware of the marketing budget. Quite often the most truthful review is from word of mouth and not from heavily advertised content and websites. Your first hit on google is the best marketer or best advertising spender. Not necessarily the best lawyer. The best most esteemed Senior Counsel and Queens Counsel barristers are usually the best or most accomplished lawyers, however they remain largely low profile with the general public. The most well known solicitors by the general public are usually not renowned for their own legal work but for their ability to run a busy firm with high revenue and public presence.