Crime And Misconduct Commission – Failure To Produce Documents In A Misconduct Hearing

What the law says

Section 187 of the Crime and Misconduct Act, Queensland states:

1. This section applies if a person is required to produce a stated document or thing-
   • (a) to an identified commission officer under a notice to discover under section 75; or
   • (b) at a commission hearing under an attendance notice; or
   • (c) under a requirement under section 75B.
2. The person must-
   • (a) in all cases, bring the document or thing to the commission officer or to the hearing if the document or thing is in the person’s possession; and
   • (b) produce the document or thing to the commission officer or at the hearing, unless the person has a reasonable excuse.
3. It is not a reasonable excuse for subsection (2)(b) to fail to produce the document or thing because producing the document or thing might tend to incriminate the person.
4. Section 197 does not apply to a document or thing produced under this section.

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:

(1) You were given:

(a) a notice to discover under section 75; OR

(b) a notice to appear at a misconduct hearing; OR

(c) a requirement to produce a document under section 75B in respect of a misconduct investigation; AND

(2) You refused or failed to bring and produce a document a stated document or thing when required.

* It is important that you understand that any document produced under section 187 is not precluded from being used against you at subsequent proceedings against you, criminal or otherwise.

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

Maximum penalty – 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

Possible defences to an offence against either subsection (1) or (6) include but are not limited to:

1. You were never given a notice to discover under section 75.
2. You were never given a notice to appear at a misconduct hearing.
3. You were never given a requirement under section 75B.
4. You in fact produced the document/s as required by the notice or requirement.
5. You are (or were) a solicitor and the document was subject to legal professional privilege and authority to produce the document was refused.
6. You have a reasonable excuse, for example:
   • (a) You honestly and reasonably could not produce the document (i.e as you did not have the document in your possession, could not access the document or a copy of the document, and this is not by some fault of your own).
   • (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).
7. 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 do the acts that constituted the offence.
8. Insanity.
9. Identification i.e. the accused was not the offender.