What the law says
Section 192 of the Crime and Misconduct Act applies to misconduct hearings and states:
(1) A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer.
(2) The person is not entitled-
(a) to remain silent; or
(b) to refuse to answer the question on the ground of the self incrimination privilege or the ground of confidentiality.
(2A) The person is entitled to refuse to answer the question on the following grounds of privilege-
(a) legal professional privilege;
(b) public interest immunity;
(c) parliamentary privilege.
(a) the person refuses to answer a question on the ground the answer to the question would disclose a communication to which legal professional privilege attaches; and
(b) the person has no authority to waive the privilege; the person must, if required by the presiding officer, tell the officer the name and address of the person to whom or by whom the communication was made.
What the police must prove
In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt:
- You were given a notice to appear at misconduct hearing; AND
- (a) Refused or failed to answer a question put to you by the presiding officer; OR
- (b) Are a solicitor and refused or failed to give the name and address of a person when required by the presiding officer.
It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.
Maximum penalty –
(a) If you refuse to answer under section 190(1) – 85 penalty units or 1 year imprisonment.
(b) If you refuse to provide details under section 190(3) – 85 penalty units or 1 year imprisonment.
Penalty unit = $100.00
Which court will hear the matter
Under section 3(5) of the Criminal Code Act Queensland this offence is classed a simple offence and therefore may be heard in the Magistrates Court pursuant to section 19 of the Justices Act Queensland.
It is also possible that your matter will be heard in the District Court.
Possible defences to an offence against either subsection (1) or (3) include but are not limited to:
- You were not given a notice to appear at a misconduct hearing.
- You in fact answered all the questions put to you by the presiding officer.
- You in fact gave the details of the person required by the presiding officer.
- You are (or were) a solicitor and the information was subject to legal professional privilege.
- You are (or were) a member of parliament and the information was subject to parliamentary privilege.
- The information is not in the public interest.
- You have a reasonable excuse, for example:
- (a) You honestly and reasonably could not answer the question as you did not know the answer or could not remember the answer.
- (b) The answer is self-incriminating (but remember the presiding officer may still require you to answer pursuant to section 194(2) of the Crime and Misconduct Act).
- Duress – example: there was a threat of harm to the accused or another person that the accused reasonably believe would be carried out if he/she did not do the act/s that constituted the offence.
- Identification i.e. the accused was not the offender.