Our experienced criminal law solicitors have prepared a brief overview of the law relating to contravening an order to access information. If you or someone you care about is facing a contravening an order to access information allegation, you need specific advice and should contact Gatenby Criminal Lawyers on 55800120 for advice.
For more information on other OMCG charges, visit our OMCG & SERIOUS OFFENCES HOMEPAGE.
Contravening an order to access information – The Law
Section 205A of the Criminal Code of Queensland 1899 creates the offence of contravening an order to access information
A person who contravenes—Section 205A Criminal Code of Queensland
(a) an order made under the Police Powers and Responsibilities Act 2000 , section 154 (1) or (2) , 154A (2) or 178A (1) ; or
(b) an order made under the Crime and Corruption Act 2001 , section 88A (1) or (2) or 88B (2) ;
commits a crime.
Elements of the offence
To be found guilty of the offence of Habitually Consorting with Recognised Offender the prosecution is required to prove, beyond a reasonable doubt, the following elements:
- That the issuer of the Search Warrant was a Magistrate or Judge;
- The order was contravened.
Police Powers and Responsibilities Act 2000
154 Order in search warrant about information necessary to access information stored electronically. If the issuer is a magistrate or a judge, the issuer may, in a search warrant, order a specified person to do any of the following in relation to a storage device in the person’s possession, or to which the person has access, at the place—
[A] to give a police officer access to the storage device and the access information and any other information or assistance necessary for the police officer to be able to use the storage device to gain access to stored information that is accessible only by using the access information; and
[B] to allow a police officer given access to a storage device to do any of the following in relation to stored information stored on or accessible only by using the storage device namely:
- use the access information to gain access to the stored information;
- examine the stored information to find out whether it may be evidence of the commission of an offence;
- make a copy of any stored information that may be evidence of the commission of an offence, including by using another storage device; or
- convert information stored on the device that may be relevant evidence into documentary form or another form that enables it to be understood by a police officer.
154A Order for access information after storage device has been seized
If a storage device is seized under the search warrant and removed from the place and the search warrant did not contain an order requiring the above, on the application of a police officer, a magistrate or a judge may make an order requiring a specified person to do a thing mentioned above
Pursuant to Section 154B a person is not excused from complying with an order made under section 154A(2) on the ground that complying with it may tend to incriminate the person or make the person liable to a penalty
- The maximum penalty for the offence of contravening an order to access information is 5 years imprisonment.
Court of Appeal Decisions
The defiance of a court order is an act that strikes at the foundation to the criminal justice system and there is a need for general deterrence and denunciation when sentencing section 205A Criminal Code offences… In this case, the sentence of 12 months imprisonment imposed on the applicant adequately reflected the serious offence, which potentially concealed serious crimes and which was constituted by the contravention of a court order. The sentence acts as a sufficiently deterrent sentence against the applicant and others who may be tempted to contravene a court order to protect themselves.Ross v Commissioner of Police  QCA 96 per Wilson J at 64
Jurisdiction – Where will the matter be heard?
The offence of contravening an order to access information is Crime. Under section 552A of the Criminal Code, section 205A must be dealt with summarily on prosecution election and the matter will usually be heard in the Magistrates Court of Queensland.
Conviction – Does a conviction have to be recorded?
The sentencing Court has a discretion whether or not to record a conviction against you for the offence of contravening an order to access information. Generally a conviction would be recorded for this type of offence, if it was a first offence and the possession was not for a commercial purpose. The relevant factors are set out in section 12 of the Penalties and Sentences Act 1992. If you are concerned about a conviction being recorded you should seek legal advice.
OMCG & SERIOUS CRIME BLOGS
- Contravening an order to access information following Ross v Commissioner of Police  QCA 96.
- Overview of the Serious and Organised Crime Bill 2016
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For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.
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