Tag: criminal and legal aid

Posting revenge images on social media is an offence

THE Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Act 2019 makes it an offence for a person to “distribute, or threaten to distribute, an intimate image or prohibited visual recording”. Intimate image has a wide definition and is set out in s207A of the above Act. An “intimate image also includes an image that has been altered or photo-shopped to make the person appear to be in a state of undress. These terms are not the subject of any clear definition.

The prosecution obviously bears the onus of proving the images are indeed of the person alleged. A prohibited visual recording is also defined and includes circumstances where a recording is made of an individual “in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy”. Obviously this includes circumstances where someone is showering, bathing or using a toilet.

The Legislation defines the term “distribute” broadly which includes communication of the material, exhibition of the material or sending/supplying it to another person.

Obviously it is not an offence if consent has been given for the distribution of the material and consent is defined as meaning consent that has been freely and voluntarily given by a person with cognitive capacity to give consent. A person under the age of 16 years is taken not to have consented.

There is a defence under Section 223 (4) of the Act, if the conduct constituting the offence is for a genuine artistic, educational, legal, medical, scientific or public benefit purpose and the conduct of the person was in the circumstances reasonable for that purpose

The maximum penalty, if convicted of an offence under the Section, is three years.

Until next week – Keep it Legal!

Matthew Fairclough
mfairclough@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

THE “RIGHT” OF AN ACCUSED PERSON TO BAIL

A cornerstone of the Common Law upon which the Australian Legal System is based is the “presumption of innocence”. This means of course that if you are accused of a crime, you do not have to prove you are innocent.  Instead, it is the job of the Prosecutor to prove you are guilty beyond a reasonable doubt.

Consistent with this concept of innocence until proven guilty is the general right to be allowed to remain in the community until one’s trial is heard.

The Bail Act 1980 (Queensland) provides a duty on the part of a Court to grant bail unless certain circumstances apply.

Essentially, unless a person is charged with murder, a Magistrate can and must grant bail unless he or she is of the view that the alleged offender is an unacceptable risk of re-offending, obstructing the course of justice, failing to appear in Court or of self-harm.

It is important to note of course that often conditions will be put in place by the Court that reduce any perceived risk, in particular, of the person re-offending or failing to appear in Court to answer the charge. These conditions often include reporting to Police, having no contact with the victim residing at a particular address, submitting to a curfew and drug testing.

It is also important to note that where an alleged offender is said to have committed an offence whilst already on bail for a serious charge or alternatively where an alleged offender is said to have committed an offence whilst armed with a weapon then the onus of demonstrating why they should receive bail shifts onto their shoulders. If this does not apply then the burden of demonstrating why a person should not get bail fails with the Prosecution.

Obviously when determining these issues a Court will look at the type and severity of the offence the offender is alleged to have committed, the strength of the evidence said to exist in relation to the charge and having regard to their criminal history, or lack thereof, the likelihood of them complying with bail conditions.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Scam Alerts

Scammers are a common problem these days, whether its by phone, email, post or knocking on your front door. They will try anything. Lately Pender Accounting Group has been receiving, a higher than usual, amount of calls regarding the legitimacy of emails and phone calls. We urge all our clients to keep their personal information secure and to report any suspicious activity immediately. Information like bank account details, tax file numbers or your date of birth are keys to your identity, and can be used by scammers to break into your life.

November 2017 Phone Scam – Fake Debts

ATO impersonation scam recorded messages are continuing throughout Australia. An example of a message claiming to be from the ATO;

‘This call is to inform you that there has been a lawsuit filed against you concerning tax evasion, this case is about to get registered in the Commonwealth courthouse of your territory. So before things go wrong or before the police from the local police department approach you and issue a warrant for your arrest, kindly call us back on 02XXXXXXXX. I repeat my telephone number again which is 02XXXXXXXX. Again this is XXXXX from the Australian Taxation Office. Thank you and you have a wonderful day.’

The message may be a female or male robotic voice recording. They claim to be from or representing the ATO, often the ATO Tax Crime and Investigation Unit or the AFP.

The number they provide is not a valid number from the ATO Phone us page.

Other indicators to look for are:

• Advise a complaint has been made against you and you are committing tax fraud or claim that you have to pay a debt that you know nothing about
• Threaten immediate arrest or court if you don’t pay straight away. They won’t provide explanations or allow you to ask questions about the debt and often get aggressive or abusive
• They will ask you to pay using unusual methods of payment that the ATO does not use, such as iTunes, Bitcoin, store gift cards or pre-paid visa cards
• People have reported receiving phone calls with the offer of a tax refund. They request credit card details for the funds to be deposited into. Instead, the scammer steals funds from these cards without your knowledge. The ATO DOES NOT issue refunds to credit cards

It’s OK to hang up!

Scammers are emailing people to tell them to claim their tax refund online. But how do you know if it’s real? If the email does not address you by name, offers you money you weren’t expecting or asks you to download a form then it’s a scam. Only the following email address from the ATO are legitimate;

• noreply@ato.gov.au
• noreplyCAS@ato.gov.au
• no_replySBIT@ato.gov.au

The ATO allows you to subscribe to general updates which inform you of any scams they are aware of.

If you are concerned about any emails or phone calls received regarding tax or business please contact our office and talk to Nicholas Pender.

You can also contact the ATO scam hotline on 1800 008 540 to make a report.