Crime And Misconduct Commisssion – Failure To Produce Documents In A Crime Investigation Hearing

What the law says

Section 185 of the Crime and Misconduct Act, Queensland states:

1. A person required to produce a stated document or thing at a commission hearing under an attendance notice or a requirement made under section 75B must-
   • (a)  in all cases, bring the document or thing to the hearing if the document or thing is in the person’s possession; and
   • (b) produce the document or thing at the hearing, unless the person has a reasonable excuse
2. A claim of privilege, other than legal professional privilege, is not a reasonable excuse for subsection (1)(b).
3. A claim of legal professional privilege is not a reasonable excuse for subsection (1)(b) if-
   • (a) the person has authority to waive the privilege and waives it; or
   • (b) the privilege is waived by a person having authority to waive it.
4. The presiding officer must decide a claim of reasonable excuse mentioned in subsection (1)(b) under section 194.
5. Subsection (6) applies if the person-
   • (a) at the hearing, refuses to produce the document or thing on the ground that legal professional privilege attaches to the document or thing; and
   • (b) has no authority to waive the privilege.
6. The person must, if required by the presiding officer-
   • (a) tell the presiding officer the name and address of the person entitled to waive the privilege; and
   • (b) seal the document or thing and, at the hearing, give it to the commission for safe keeping.

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 appear at a crime investigation hearing; OR
   • (b) A notice to appear at a witness protection function hearing; OR
   • (c) A requirement to produce a document under section 75B in respect of a crime investigation or for a witness protection function; AND
2. You:
   • (a) Refused or failed to bring and produce a stated document or thing when required; OR
   • (b) Are a solicitor and refused or failed to give the name and address of a person when required by the presiding officer; OR
   • (c) Are a solicitor and refused or failed to seal the document and give it to the Commission for safe keeping.

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 –

(a) If you fail or refuse to produce a document under section 185(1) – 85 penalty units or 1 year imprisonment.

(b) If you fail or refuse to provide details and seal the document under section 185(6) – 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 not given a notice to appear at a crime investigation or witness protection function hearing.
2. You were never given a requirement under section 75B.
3. You in fact produced the document as required by the notice or requirement.
4. You in fact gave the details of the person as required by the presiding officer.
5. You in fact produced the sealed document as required by the presiding officer.
6. You are (or were) a solicitor and the document was subject to legal professional privilege and authority to produce the document was refused.
7. 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).
8. 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.
9. Insanity.
10. Identification i.e. the accused was not the offender.