Criminal and Traffic Offences

5 Matter Plans Included

ALERT - A new diversion scheme for some domestic and family violence offences applies from 26 May 2025.

A new diversion scheme for some domestic and family violence offences applies from 26 May 2025.
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Full Commentary - Magistrates Court Criminal (QLD)
Reference materials
- AI Prompts
  
  An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
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- Looking to the Future
- Electronic Signing and Witnessing
- 101 Subpoena Answers
- 101 Costs Answers
- Papers and articles - Litigation
  - Improving written submissions - A paper by Judge Alan Troy
  - Plain language – A paper by the Hon. Michael Kirby AC CMG
- Calculating Penalty Units - All States and Territories
- Further information
Overview

All criminal charges, regardless of their seriousness, commence in the Magistrates Court. Depending on whether the offence is summary or indictable, the matter will either be finalised in the Magistrates Court or committed to a higher court. See Summary or Indictable offences.
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A. Getting the matter underway - First contact
- File cover sheet - Criminal
- To do list - Criminal
- First steps
- Client details and verifying identity
- Retainer instructions - Criminal
- Retainer instructions - Domestic violence order
- Conflict of interest check
- Attendance note - Conflict of interest check - No conflict
- Attendance note - Conflict of interest check - Conflict identified
- Engagement and costs management
  
  The Legal Profession Act 2007 obliges firms to enter into costs agreements with clients. The client needs to sign a costs agreement and place advance funding into the firm’s trust account, even if the retainer is a fixed fee.
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- Costs agreement - QLD
- Abbreviated costs disclosure - Costs under $3000
- Initial letter to client enclosing costs agreement
- Time and costs estimates
- If required - Updating costs disclosure
  - Letter to client updating costs disclosure
  - Charge securing costs
  - Guarantee securing costs
  - Costs disclosure before settlement in litigation matters
    
    Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    
    Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
- First contact – At the police station
  
  To be able to assist the client it is important for the practitioner to be familiar with, or at least able to refer to Chapters 14, 15, 16, 17, and 18 of the Police Powers and Responsibilities Act 2000. These cover a wide range of relevant matters including:
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- Police station instructions and advice record
- Attendance note - Attending client at police station
- Letter to client on bail following attendance at police station
- Letter to client refused bail following attendance at police station
- Record of interview
  
  Despite the useful rule of thumb that instructions on the allegations are not obtained at the police station, it may be necessary to obtain some instructions to give appropriate advice to the client about whether to participate in a Record Of Interview (ROI). For example, in an allegation of rape ...
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- First contact – In the office
  
  Instructions Even the simplest plea requires full instructions from the client.
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- Instructions
  
  Even the simplest plea requires full instructions from the client. The police will provide a copy of the Court Brief (QP9) prior to the first return date and must provide the defence with a copy at the first return date. The full brief of evidence will not be produced by the police at the first ...
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- Plea and mitigation instruction sheet
- Initial letter to client before first court date
- Enclosure - Court reference information sheet
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    General deed of indemnity
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of deed - All parties
    
    Confidentiality for terms of deed - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of agreement - All parties
    
    Confidentiality for terms of agreement - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Execution clauses
    
    Library of execution clauses for agreements
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
    
    Individual - No witness
    
    Library of execution clauses for deeds
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
  - Statutory declarations
    
    Commonwealth statutory declaration
    
    Statutory declaration - blank - ACT
    
    Statutory declaration - blank - NSW
    
    Statutory declaration - blank - VIC
    
    Statutory declaration - blank - QLD
    
    Statutory declaration - blank - TAS
    
    Statutory declaration - blank - SA
    
    Statutory declaration - blank - WA
    
    Statutory declaration - blank - NT
    
    Standard annexure note for documents
  - Standard annexure note for documents
B. Bail
- Bail overview
  
  Bail applications need to be carefully considered, prepared, and presented. They are not an afterthought, nor a matter of going through the motions. They are serious and high-level advocacy work. A person’s liberty, and potentially the safety of other people, are at stake. Bail is governed by the ...
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- Bail conditions
  
  Bail can be granted to an accused on their own undertaking, being simply a promise to appear at the next court date, or on conditions such as:
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- Bail application
  
  Preparing a bail application requires consideration of the:
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- Bail Act considerations
  
  Unacceptable risk Section 16 of the Bail Act 1980 requires a police officer or a court to refuse bail if satisfied there is an unacceptable risk the defendant will fail to appear and surrender into custody, commit an offence, endanger anyone, or interfere with witnesses or the course of ...
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- Bail procedure
  
  If the defendant is not given police bail, they will be remanded in custody and taken to court as soon as reasonably practicable. Depending on the size of the court complex, custody matters will be dealt with in a separate court. In smaller courts, the custody matters will be dealt with first, ...
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- Sureties
  
  Part 3 of the Bail Act 1980 provides for undertakings and sureties. One of the matters that will need to be considered in preparing for a bail application is the question of a surety, sometimes required by magistrates to address the risk that the defendant will fail to appear.
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- Retainer instructions - Bail application
- Letter to counsel with brief for bail application
- Letter to bail guarantor
- Letter to client in prison regarding date for bail application
- Standardised bail conditions
- Letter to court enclosing bail application
- Letter to prosecution enclosing bail application
- Letter to client after successful bail application
- Letter to client in prison after unsuccessful bail application
- Application for Bail in the Court before which the indictment was presented
- Application for Revocation or variation of Bail by prosecutor
- Application for Variation of Bail
- Application by Surety for Discharge
- Application for Bail in the Supreme Court
- Application for bail in the District Court following a filing of a notice of appeal to a District Court judge
- Affidavit of justification
- If required - Online application for a court event
  - Online application for a court event – Magistrates Court
C. Preparations
- Analysing the charge
  
  Prosecution disclosure
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- Summary or indictable matters
  
  To determine how the client’s matter will proceed, it is necessary to determine whether it is a summary offence or an indictable offence. Regulatory and summary offences are dealt with in the Magistrates Court: s 19 of the Justices Act 1886.
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- Penalty infringement notices
  
  The client may have received a Penalty Infringement Notice (PIN) under the State Penalties Enforcement Act 1999, which provides for the issue of PINs for certain non-indictable offences as specified in the regulations under the Act. The client may wish to go to court either to dispute the offence ...
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- Negotiating with the prosecution
  
  The Court Brief (QP9) needs to contain the client’s criminal history, a factual summary of the details of the offences, and the legislation under which the client has been charged. While the client may wish to plead guilty to the offence as charged, the factual summary in the QP9 may not reflect ...
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- Attendance note - Taking full instructions
- Letter to client requesting evidence
- Letter to potential alibi witness
- Letter to potential witness
- Attendance note - Conference with defence witness
- Letter to local area command making representations
- Letter to director public prosecutions making representations
- If required - Failed representations
  - Letter to local area command or DPP in relation to failed representations
- Written instructions to plead guilty
D. Going to court
- Procedure and time frames
  
  Practice directions Lawyers appearing in criminal matters need to be familiar with the court’s relevant practice directions.
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- General Form of Application to a Court
- Application for a direction hearing
- General Form of Order
- Attendance note - Brief to counsel
- Brief to counsel - Criminal
- AI Prompt for Brief to counsel
- Example content - Brief to counsel - Criminal
- Letter to counsel enclosing brief
- Attendance note - Advice on plea
- First appearance
  
  If the client is in custody, the first appearance will be the same day they are charged or the next day. The court will wish to know if there is to be any bail application so time can be set aside, or a further date can be set if required. The lawyer appearing for an accused in custody needs to be ...
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- Second appearance
  
  If required, the second appearance will be 14 to 21 days after the first appearance, or a longer period as might be necessary for the regular sitting days of the court. The court will generally expect a plea to be entered, and adjournments will not be granted unless there is good reason, such ...
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- Subsequent and interlocutory mentions
  
  All listings outside the usual procedure are at the discretion of the court. Additional or lengthy adjournments will not be granted without good reason. Sufficient reasons may include:
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- Case conferencing
  
  See Practice Direction No. 9 of 2010. The matter needs to be adjourned for case conferencing if it is not going to be a plea of guilty on the first or second return date. The defence solicitor must liaise with the prosecution regarding the facts and issues in dispute and seek a resolution such as:
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- Committal or summary callover
  
  Committals, or summary callovers, will be between 14 and 21 days after the second appearance, or if the second appearance is not required, between 14 and 21 days after the first appearance, or a longer period as might be necessary for the regular sitting days of the court. A partial brief ...
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- Hearing on disputed facts
  
  If there is a dispute on the facts that cannot be resolved either through formal negotiations with the prosecution or by speaking to the prosecutor at court, the correct procedure is for the matter to be listed for hearing. The drawback for the accused is that one of the practical benefits of a ...
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- Court attendance sheet
- Attendance note - Court appearance
- Letter to client advising court date
- Letter to court requesting interpreter
- If required - Online application for a court event
  - Online application for a court event – Magistrates Court
- Attendance note - Reviewing additional prosecution material
- Letter to client enclosing prosecution evidence and make appointment for instructions
- Letter to client informing of hearing date
- Attendance note - Preparation of witness statement
- Letter to witness enclosing statement
- Letter to counsel enclosing defence witness statements
- Letter to witness with arrangements for attendance at hearing
- Attendance note - Considering client's previous convictions
- Attendance note - Considering custody record
- Attendance note - Considering prosecution evidence
- Attendance note - Viewing CCTV footage with client
- Attendance note - Viewing CCTV footage without client
- Attendance note - Viewing client's police interview
- Letter to police requesting items not served
- Letter to client who failed to attend court - Matter adjourned
- Letter to client who failed to attend court - Warrant issued
- Written instructions to plead guilty
- Application for a Direction or Ruling
- Application for disclosure obligation direction
- Application for alleging non-compliance with disclosure obligation direction
E. Summary matters - Plea of guilty
- Plea and mitigation instruction sheet
- Instructions to plead guilty
- Preparing for a plea of guilty
  
  If the client wishes to plead guilty, obtain written instructions to that effect before proceeding. The instructions need to be signed, including:
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- Letter to client in preparation of steps to be taken for a plea of guilty
- Character references
  
  If the matter is proceeding as a plea of guilty and the client wishes to rely on prior good character advise the client to obtain character references: ss 9(2)(f) and 11 of the Penalties and Sentences Act 1992. References have to be specific to the offence, addressed to the presiding ...
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- Enclosure - Court reference information sheet
- Enclosure - Information sheet on criminal records of employees
- Recompense
  
  A willingness to make recompense to the victim of an offence is an indication of the client’s contrition and remorse. Practitioners can address this issue with the client before the sentence hearing. In the event of the offence having caused some injury, loss or damage, ensure the issue of ...
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- Pre-sentence reports
  
  Before going to court, consider whether the magistrate is likely to require a Pre-Sentence Report (PSR) and if an adjournment will be required. Alert the client to this likelihood and make sure to include the cost of the adjournment and dealing with the report in the fee disclosure. Pre-sentence ...
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- Conducting the plea
  
  It is important when conducting a plea before the Magistrates Court to be concise. Most courts are very busy, and it is important not to waffle or waste time. This will only irritate the magistrate, and an irritated magistrate is not necessarily going to be converted to the client’s cause or be ...
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- Plea procedure
  
  Normally, the procedure in the conduct of a plea is as follows:
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- Court attendance sheet
F. Summary matters - Plea of not guilty
- Preparing for hearing
  
  By this stage, the lawyer has analysed the charge and identified the client’s defence: see Preparations. It is now a matter of planning how that defence will be presented in court, which requires the lawyer to turn their mind to the evidence needed to support the client’s case. This means taking a ...
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- Attendance note - Preparation for hearing
- Proof of evidence
  
  A full statement needs to be obtained from the client as to all the facts and circumstances surrounding their case and the specific evidence they propose to give. Explain to the client this is not for the court or the prosecution. It will only be seen by the client and their lawyers. It confirms ...
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- Proof of evidence
- Attendance note - Preparation of proof
- Attendance note - Considering amended proof of evidence
- Letter to client sending proof of evidence
- Subpoenas
  
  If calling any witnesses besides the client, issue subpoenas to them well before the hearing date to ensure their attendance at the hearing date. Likewise, any document that it is intended to adduce as evidence in the hearing need to be subpoenaed, and an early return date sought. If the police ...
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- Subpoena to Attend Court
- Notice to be served with form 21 subpoena
- Subpoena to produce a document to the proper officer of the court
- Notice to be served with form 22 subpoena
- Police subpoena schedule
- Prosecution witnesses
  
  On a summary hearing, witness statements are not tendered to the court, and the prosecution must lead evidence in chief from all witnesses they want to call. The normal course of events is for the prosecution to call their witnesses in order, and then the defence may cross-examine them.
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- Letter to client as to outcome of case conference
- Letter to client requesting conference after receiving facts and QP9
- No case to answer
  
  A submission may be made by the defence at the close of the prosecution evidence that the defendant has no case to answer and the charges should be dismissed because the prosecution has insufficient evidence to prove them to the required standard. Whether a no case submission succeeds or fails is a ...
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- The defence case
  
  The defence can make an opening statement with the leave of the court, but this does not occur often. The magistrate will ask whether the accused intends to call evidence. If it is proposed to call evidence, the defence lawyer needs to tell the magistrate the names of the proposed witnesses and the ...
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- Costs
  
  Costs against the prosecution are often very difficult to get. However, costs for lack of disclosure are somewhat easier. Costs are governed by Part 6, Division 8 of the Justices Act 1886. Section 158 deals with costs on dismissal. Costs are discretionary, and s 158A deals with ...
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- Court attendance sheet
- Attendance note - Additional preparation for hearing
- Attendance note - Preparation for adjourned hearing
- Letter to client found guilty - Adjourned for sentence
- If required - Online application for a court event
  - Online application for a court event – Magistrates Court
G. Committal proceedings
- Procedure for committals
  
  No matter whose election it is to proceed by indictment, the accused is not required to enter a plea until the police brief has been served. Once a matter has been listed for committal, after the case conference, the prosecution prepares the brief of evidence and gives the defence a copy. A police ...
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- Application to cross-examine witnesses at the committal
  
  Consent of the prosecution, or an order of the court, is required to cross-examine prosecution witnesses at committal. If required, an application to cross-examine is made at the committal callover: s 110B(3) of the Justices Act 1886. The application needs to set out which witnesses are ...
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- Notice of intention to proceed via registry committal
- Notice of intention to proceed via registry committal
- Notice of intention to proceed via registry committal on amended substituted charges
- Acknowledgement of plea
- Application for a witness to attend before the court in a committal proceeding
- Costs in committals
  
  There is no provision for awarding of costs to the accused in committal proceedings.
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H. Sentencing
- Instructions to plead guilty
- What the magistrate considers
  
  Section 12 of the Penalties and Sentences Act 1992 sets out what the court takes into account when considering whether to record a conviction or not. Section 9 of the Penalties and Sentences Act 1992 sets out the relevant considerations for the court when imposing a sentence.
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- Written submissions
  
  Written submissions on sentence are appropriate for complex applications, or for some types of offences, for example, sexual offences. Any discussion of the offending behaviour, the client’s circumstances and background, and other material to assist the court in its sentencing exercise is set out ...
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- AI Prompt for Submissions for section 19 application - No conviction
- AI Prompt for Submissions for section 32 application - Conviction
- AI Prompt for Submissions for section 32 application with violence or harm - Conviction
- Interstate convictions
  
  Interstate convictions can be considered by the court on sentence, but they do not generally appear on the Queensland criminal history the police tender to the court and do not have to be voluntarily disclosed. However, a lawyer has a duty not to mislead the court and if asked to tell the court of ...
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- Rehabilitation and specific programs
  
  An important issue relevant to sentence is the client’s prospects of rehabilitation. If there are medical issues relevant to the client’s offending behaviour, obtain a report from the client’s general practitioner (GP) and any attending specialist, subject to the client’s ability to pay for such ...
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- Letter instructing psychiatrist or psychologist
- References
  
  Advise the client about obtaining character testimonials or references. This applies equally where the client has been found guilty after a hearing as to when they are pleading guilty, although the content of the references might need to differ in the absence of a guilty plea. See Character ...
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- Pre-sentence reports
  
  Before going to court, consider whether the magistrate is likely to require a Pre-Sentence Report (PSR) and if an adjournment will be required. Alert the client to this likelihood and make sure to include the cost of the adjournment and dealing with the report in the fee disclosure. Pre-sentence ...
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- Medical reports
  
  Particularly with drug and alcohol offences, an important issue relevant to sentence is the client’s prospects of rehabilitation. If there are medical issues relevant to the client’s offending behaviour, obtain a report from the client’s general practitioner and any attending specialist, subject to ...
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- Non-custodial sentences
  
  Bonds A bond or recognisance is a promise entered into and recorded before a court. There are three kinds of bonds under the Penalties and Sentences Act 1992.
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- Orders of suspended imprisonment
  
  Suspended sentences are often referred to or thought of as non-custodial sentences. They are, in fact, sentences of imprisonment suspended either wholly or partially. This means the offender will only serve some, if any, time in prison. Any breach of a suspended sentence will involve the offender ...
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- Drug and Alcohol Treatment Order
  
  Part 8A of the Penalties and Sentences Act 1992 deals with specific drug and alcohol treatment orders for certain offenders whose criminal behaviour is linked to their severe drug or alcohol use. A treatment order may only be made for an offender if the offender has a severe substance use ...
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- Imprisonment
  
  Imprisonment is only ordered as a last resort if the court is satisfied there were no appropriate alternative sentences: s 9(12) of the Penalties and Sentences Act 1992. This does not apply to all offences, for example, certain violent or child-related sex offences, so check the legislation, ...
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- After sentence has been imposed
  
  The lawyer’s role and retainer do not end at the moment submissions on sentence are completed, nor when the bench passes sentence on the client. Explain the outcome to the client. Most laypeople can sit in court and listen to a judicial officer give a short ex tempore decision on sentence and then ...
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- Disclosure of convictions
  
  See the Criminal Law (Rehabilitation of Offenders) Act 1986. If no conviction has been recorded, the client is not obliged to disclose their conviction.
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- Court attendance sheet
I. If required - Appeals
- Appeals
  
  Appeals from decisions of the Magistrates Court can be made to the District Court under the Justices Act 1886. There is an appeal right to the District Court by any person who has been convicted or sentenced in the Magistrates Court: s 222. As appeal is a right leave does not have to be sought.
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- Notice of appeal to a District Court Judge
- Notice of appeal or application for leave to appeal against conviction or sentence
- Notice of application for extension of time for filing notice of appeal to a district court judge
- Certificate of readiness - District Court
- Notice of application for extension of time within which to appeal
- Application for rehearing or reopening
- Notice of abandonment of appeal or subsequent appeal or application
- Application to Transmit Summary Charge to Supreme or District Court
- Court attendance sheet
- Notice of discontinuance of appeal or application
J. Finalising the matter
- Letter to client finalising the matter and confirming outcome of plea
- Letter to client after sentence - Select outcome
- Letter to client after sentence - Insert outcome
- Letter to client found guilty
- Letter to client found not guilty
- Letter to client - No charges following attendance at police station
- Letter to police after no charges for the return of client's property
- Letter to police after client found not guilty for return of client's property
- Example invoice incorporating notification of client's rights - QLD
- Invoice recital - Criminal
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

ALERTS - Nil
Full Commentary - Traffic Offences (QLD)
Reference materials
- AI Prompts
  
  An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
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- Looking to the Future
- Electronic Signing and Witnessing
- 101 Subpoena Answers
- 101 Costs Answers
- Calculating Penalty Units - All States and Territories
- Further information
Overview and penalty units

Most traffic offences are contained in and dealt with under the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM) or its regulations, particularly the Transport Operations (Road Use Management—Road Rules) Regulation 2009 and the Transport Operations (Road Use Management–Driver ...
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A. Getting the matter underway
- File cover sheet - Traffic offences
- To do list - Criminal
- First steps
- Client details and verifying identity
- Retainer instructions - Traffic offences
- Retainer instructions - Bail application
- Conflict of interest check
- Library of initial letters to client
  - Initial letter to client - Drink drive offence
  - Initial letter to client - Drive whilst disqualified
  - Initial letter to client - Drive whilst suspended
- Costs management
  
  All matters should be the subject of formal engagement. Many practitioners charge a flat fee for pleas of guilty. This does not mean that a costs agreement is not required. The first or second conference with the client is the time to discuss fees and give clear disclosure about anticipated costs. ...
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- Costs agreement - QLD
- Abbreviated costs disclosure - Costs under $3000
- Initial letter to client enclosing costs agreement
- Time and costs estimates
- If required - Updating costs disclosure
  - Letter to client updating costs disclosure
  - Charge securing costs
  - Guarantee securing costs
  - Costs disclosure before settlement in litigation matters
    
    Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    
    Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
- Taking instructions in traffic matters
  
  It is important to take detailed instructions from the client. Taking full instructions on the simplest plea should rarely take less than half an hour. If there is no time to take proper instructions at the first interview, then make another appointment to see the client. Have the matter adjourned ...
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- Plea and mitigation instruction sheet
- Enclosure - Court reference information sheet
- Application for a copy of own Qld Criminal History
- Department of Transport and Main Roads - Forms
  - Form F2121- Release of Information
  - Form F5111- Court Election Infringements
  - Form F4252- Absolute Disqualification Removal
  - Statutory Declaration Forms
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    General deed of indemnity
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of deed - All parties
    
    Confidentiality for terms of deed - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of agreement - All parties
    
    Confidentiality for terms of agreement - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Execution clauses
    
    Library of execution clauses for agreements
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
    
    Individual - No witness
    
    Library of execution clauses for deeds
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
  - Statutory declarations
    
    Commonwealth statutory declaration
    
    Statutory declaration - blank - ACT
    
    Statutory declaration - blank - NSW
    
    Statutory declaration - blank - VIC
    
    Statutory declaration - blank - QLD
    
    Statutory declaration - blank - TAS
    
    Statutory declaration - blank - SA
    
    Statutory declaration - blank - WA
    
    Statutory declaration - blank - NT
    
    Standard annexure note for documents
  - Standard annexure note for documents
B. Types of offences
- Infringement notices
  
  The full list of offences for which infringement notices, or ‘tickets’, can be issued is found in Schedule 1 of the State Penalties Enforcement Regulation 2014. Under s 22 of the State Penalties Enforcement Act 1999, once an infringement notice is served the client has only 28 days ...
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- Criminal Code Act
  
  Offences under the Criminal Code Act 1899 (the Code) are the most serious traffic offences. See the commentary in the Criminal Magistrates Court guide for assistance with criminal matters generally. Where the client has been arrested and is in custody a bail application may be necessary.
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- Dangerous driving
  
  An example of an indictable offence frequently dealt with in the Magistrates Court is Dangerous operation of a vehicle under s 328A. What constitutes ‘dangerous’ driving is outlined in the Code as including operating a vehicle at particular speeds or in a manner that could endanger the public. ...
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- Transport Operations (Road Use Management) Act 1995
  
  Most traffic offences are under the Transport Operations (Road Use Management) Act 1995 (TORUM). Common offences dealt with in the Magistrates Court are discussed below.
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- Form F4563- Intention to Challenge or Dispute
- Speeding
  
  Speeding fines are difficult to defend especially when camera detected. Some clients will not accept that they went through a red light, even where a photograph shows them doing so. There is rarely any serious prospect of winning such cases and the costs of running them far outweighs the possible ...
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- Unlicensed driving
  
  See s 78 TORUM for the range of offences and penalties. The exact type of unlicensed driving and therefore the penalty applicable can be difficult to determine without very clear instructions, or access to the client’s previous traffic history. When and how the client became unlicenced, ...
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- Drink and drug driving
  
  Section 79 TORUM contains the four types of offences and associated penalties related to driving or attempting to drive, or being in charge of a motor vehicle after consuming alcohol or drugs:
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Interstate and overseas licences
  
  Holders of non-Queensland licences are dealt with under Chapter 5 of the Transport Operations (Road Use Management–Driver Licensing) Regulation 2021. A visiting driver generally has authority to drive under Division 1 of Part 2 of Chapter 5 of the regulations, as long as they ...
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- Impoundment and forfeiture of vehicles
  
  The Police Powers and Responsibilities Act 2000 outlines police powers and procedures in respect of impoundment and forfeiture of vehicles involved in the commission of offences. Section 69A defines type 1 and type 2 offences for the purposes of the Act. Whether a vehicle can be ...
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C. Going to court
- Letter to client advising on steps to be taken in preparation for a plea of guilty
- Enclosure - Court reference information sheet
- Court attendance sheet
- Court programs
  
  The following programs, currently offered through the courts, can often be accessed for drug and alcohol-based offending depending upon the client’s circumstances. See the Queensland Courts website for more detail.
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- The Queensland Traffic Offenders Program
  
  The Queensland Traffic Offenders Program (QTOP) goes for approximately three to five weeks, depending on who is running the course. It is appropriate to have the client complete the program prior to entering a plea. At the conclusion of the program a certificate and report will be provided, ...
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- Character testimonials
  
  If the matter is proceeding as a plea of guilty, advise the client about obtaining character testimonials or references. References must be specific to the offence. Provide the client with the Court Reference Information Sheet found on the matter plan to give to their referees. To rely upon prior ...
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- Pre-sentence reports
  
  Consider prior to going to court whether the magistrate is likely to require a pre-sentence report (PSR). For repeat offenders, especially on mid and high range drink driving and/or driving while disqualified offences, it is usual for a PSR to be ordered. If it is likely an adjournment will ...
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- Medical reports
  
  Particularly with drug and alcohol offences an important issue relevant to sentence is the client’s prospects of rehabilitation. If there are medical issues relevant to the client’s offending behaviour, obtain a report from the client’s general practitioner and any attending specialist, subject of ...
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- Conducting the plea
  
  It is important when conducting a plea before the Magistrates Court to be concise. Most courts are very busy, especially on traffic list days, and it is therefore important not to waffle or waste time as it will only irritate the magistrate. However don't be a slave to brevity – cover all relevant ...
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- Plea procedure
  
  The usual procedure in the conduct of a plea is:
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- Licence restrictions on conviction
  
  These come under 4 broad headings:
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- Alcohol Ignition Interlock Program
  
  See Chapter 5, Part 3A and Part 3B of the Transport Operations (Road Use Management) Act 1995 and the Queensland Government web page on Alcohol ignition interlocks.
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- Interlock exemption application - QLD Transport and Motoring
- General Form of Application to a Court
- General Form of Order
- Affidavit of justification
D. After court
- Advice about the outcome
  
  Ensure the client understands the outcome of their proceedings. If the client is convicted of a simple offence, either upon a plea of guilty or a finding of guilt after a hearing, a certificate of conviction is issued which states the fine to be paid and the cost of issuing the summons. The ...
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- Appeals
  
  Advise the client about their automatic appeal rights, including the time limit of 28 days for appeals to the District Court. Even if appealing the outcome seems unwise, the client needs to know their options, and the costs, as ultimately it is their decision. Ensure they know what the ...
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- Certificate of readiness - District Court
- Court attendance sheet
- Applications to remove disqualifications
  
  A person disqualified absolutely or for a period of more than two years can apply to the Magistrates Court, or any higher court which imposed the disqualification, for the removal of the disqualification order at any time after two years from the date that the disqualification order was ...
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E. Finalising the matter
- Letter to client finalising the matter and confirming outcome of plea
- Example invoice incorporating notification of client's rights - QLD
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

ALERT - A diversion scheme for first-time breaches of domestic violence or police protection orders applies from 26 May 2025.

A diversion scheme for first-time breaches of domestic violence or police protection orders applies from 26 May 2025.
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Full Commentary - Domestic Violence Order (QLD)
Reference materials
- AI Prompts
  
  An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Looking to the Future
- Electronic Signing and Witnessing
- 101 Subpoena Answers
- 101 Costs Answers
- Calculating Penalty Units - All States and Territories
- Further information
Overview

The provides that the police may issue notices and the courts may make orders imposing restrictions on someone with whom a complainant is in a relevant relationship to prevent domestic violence, to protect anyone who fears domestic violence and to prevent children being exposed to domestic ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
A. Getting the matter underway
- File cover sheet - Domestic violence order
- First steps
- Client details and verifying identity
- Retainer instructions - Domestic violence order
- Conflict of interest check
- Initial letter to client enclosing costs agreement
- Initial letter to client enclosing costs agreement - Domestic violence - Extensive
- Costs agreement - QLD
- Abbreviated costs disclosure - Costs under $3000
- Time and costs estimates
- If required - Updating costs disclosure
  - Letter to client updating costs disclosure
  - Charge securing costs
  - Guarantee securing costs
  - Costs disclosure before settlement in litigation matters
    
    Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    
    Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
- Taking instructions for protection orders
  
  Full instructions from the client, whether they are the applicant or the respondent, enable a practitioner to properly advise them about what is and is not possible in terms of an outcome. Many protection order matters arise out of a related criminal charge, a family law matter, or an ongoing ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Definitions
  
  Domestic violence Section 8(1) of the Domestic and Family Violence Protection Act 2012 defines domestic violence to include behaviour in a relevant relationship that:
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- Applicants
  
  Under s 25 an application for a protection order can be made by:
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Application and filing
  
  A Form DV 1 Application for a Protection Order is used to initiate an application. It is available on the matter plan. The application must state the grounds on which it is made, the nature of the order sought, and be verified by statutory declaration. In circumstances of urgency where the ...
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- Application for a protection order
- Affidavit
- Safety form
- Address form
- Consent of litigation guardian
- Service
  
  The police usually serve applications and orders. Liaise with them about service if necessary. See ss 34(1) and 184(2) of the Act and rr 12-16. An Affidavit of Personal Service, form DV21, is required.
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- Affidavit of personal service
- Applications under the Peace and Good Behaviour Act 1982
  
  Applications for protection orders under the Peace and Good Behaviour Act 1982, where the threatening behaviour does not fall within the definitions of the Domestic and Family Violence Act 2012, are not made to, or by, the police but by the complainant in person to a justice of the peace at the ...
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- If required - Applications under the Peace and Good Behaviour Act 1982
  - Complaint
  - Summons
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    General deed of indemnity
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of deed - All parties
    
    Confidentiality for terms of deed - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of agreement - All parties
    
    Confidentiality for terms of agreement - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Execution clauses
    
    Library of execution clauses for agreements
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
    
    Individual - No witness
    
    Library of execution clauses for deeds
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
  - Statutory declarations
    
    Commonwealth statutory declaration
    
    Statutory declaration - blank - ACT
    
    Statutory declaration - blank - NSW
    
    Statutory declaration - blank - VIC
    
    Statutory declaration - blank - QLD
    
    Statutory declaration - blank - TAS
    
    Statutory declaration - blank - SA
    
    Statutory declaration - blank - WA
    
    Statutory declaration - blank - NT
    
    Standard annexure note for documents
  - Standard annexure note for documents
B. Police applications
- Police applications
  
  Applications under the Domestic and Family Violence Protection Act 2012 are most frequently made by police. The QLD Police Service website provides Domestic violence resources for applicants and respondents.
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- Temporary protection orders
  
  Under s 130 police can make an application for a temporary protection order (TPO) by telephone, fax, email, radio, or other facility if a matter needs to be heard and determined quickly. A temporary protection order made by the magistrate under s 132 must specify the time and place ...
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- Police protection notices
  
  Police may also take out a police protection notice (PPN): s 101. This is completed by the police. The respondent, aggrieved, prosecutor, and court all receive a copy. A PPN continues in force until one of the following happens:
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C. Going to court
- Conduct of proceedings
  
  Obligation for expedition Rule 5 of the Domestic and Family Violence Protection Rules 2014 provides that courts must conduct proceedings to minimise expense and facilitate the just and expeditious resolution of the relevant issues. Rule 5 also requires parties to act expeditiously.
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- When the court can make an order
  
  The decision whether to make or extend an order is ultimately a discretionary one. Under s 37 the court may make an order if it is satisfied that:
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- What the court considers
  
  Rule 23 and s 4 set out the matters to which the court may have regard when deciding whether to exercise its discretion to make an order. Section 78(1) provides that before making or varying a DVO, the court must consider any family law order it is aware of. See Interaction with ...
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- Orders the court can make
  
  Mandatory conditions Sections 56 and 28 deal with the conditions that must be contained in every order, including temporary protection orders:
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- Duration of orders
  
  If the court decides to make a protection order, it must consider the appropriate period during which the order remains in force: s 37(4A). The default period for any protection order under the Act is 5 years, however a court may set the duration for any period it considers necessary or ...
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- Interaction with family law orders
  
  Police protection notices Section 107D provides that if a police officer is considering imposing a condition in a police protection notice (PPN) that would prevent or limit contact between the respondent and their children, the officer must ask the respondent and the aggrieved whether a family ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Library of domestic violence forms
  - Application for a protection order
  - Affidavit
  - Safety form
  - Address form
  - Consent of litigation guardian
  - Affidavit of personal service
  - Notice of change of address for service
  - Request for subpoena
  - Subpoena
  - Application to inspect and copy subpoenaed document
  - Notice of filing of media exhibit
  - Application to withdraw domestic violence application
  - Request to inspect and copy documents
- First return date
  
  If an applicant has requested, pursuant to s 36, that the matter be listed so they can apply for a temporary protection order under s 44 before the respondent has been served, the court can make a temporary protection order if satisfied of the matters contained in s 45. Therefore, if ...
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- Consent orders
  
  When the respondent attends at the first return, or any further interim return date, they may consent to a full protection order. In many cases, it is best for the respondent to consent without admission to either the orders as sought, or to orders varied by agreement. This finalises the ...
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- Instructions to consent to a domestic violence order
- Negotiating orders
  
  When acting for an applicant, consider the order necessary to protect them. Orders can and should be tailored to specific circumstances when necessary. Likewise, when acting for respondents, but also think carefully about the practicalities of a respondent client’s compliance with any orders. Do ...
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- Temporary orders
  
  If no consent orders are possible and an order is opposed, the matter will be adjourned for a final hearing and a temporary order may be made pursuant to s 27. Magistrates tend to be annoyed when respondents will not consent to temporary orders and, in the context of a busy court list, the ...
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- Subpoenas
  
  There are special restrictive provisions regarding subpoenas in domestic violence proceedings. Section 154 gives the court the power to issue subpoenas. Part 5, Division 4 of the rules explain how a court may issue a subpoena under the Act, including:
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- Evidence and exhibits
  
  Evidence in domestic violence hearings is generally received by way of a filed Affidavit, form DV25. The affidavit needs to be drafted in accordance with r 35. An affidavit from an earlier proceeding or an earlier part in the current proceeding can be used provided it is relevant and the court ...
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- Withdrawing an application
  
  An application may be withdrawn prior to the final hearing by filing an Application to Withdraw, form DV27: see r 50. Upon receiving an application to withdraw the registry will forward the application to the police for personal service on all named parties.
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- Final hearing
  
  At the hearing, both the applicant and respondent will have to attend court and give evidence from the witness box. Similarly, both parties will be subject to cross-examination and possibly re-examination. See Summary matters – Plea of not guilty in the Magistrates’ Court – Criminal Guide for ...
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- Intervention orders
  
  See Part 3, Division 6 of the Act. An intervention order can be made by the court, at any time when making or varying a protection order. The order can only be made with the respondent’s consent. The intervention order will require the respondent to:
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- Weapons
  
  Under the provisions of the Weapons Act 1990 a person may not possess a weapon or a weapons licence if a domestic violence order has been made against them. A respondent cannot apply for a Queensland Weapons Licence for the duration of the order, or for a period of 5 years after the order finishes.
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- Costs
  
  Section 157 states that each party bears their own costs of any proceeding under the Act. However, the court can award costs if it is of the view that an application was malicious, deliberately false, frivolous or vexatious.
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- Variation of orders
  
  An application may be made to the court to vary any aspect of a domestic violence order including a condition of an order, the duration of an order and the persons named in an order: s 86. The application must state the grounds on which it is made, the nature of the variation sought and be ...
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- Application to vary a domestic violence order
- Application to vary or revoke a voluntary intervention order
- If required - Interstate orders
  - Affidavit
  - Application to vary a recognised interstate order - Link to Queensland Courts
- Appeals
  
  Part 5 Division 5 of the Domestic and Family Violence Protection Act 2012 deals generally with appeals. A party can appeal to the District Court against any magistrate’s order, being an appeal against the particular terms of the order or a refusal to make an order.
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- Notice of appeal
D. Breaches
- Sanctions
  
  Section 30 of the Act provides that where a person who does not comply with the terms of an order, which includes a registered interstate order, can be charged with an offence by a police officer, of their own volition or upon complaint from the aggrieved or any other person. Section 177 ...
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- Penalties
  
  Section 177 provides that the maximum penalty for contravening an order is generally 120 penalty units or 3 years imprisonment. However, if the respondent has been previously convicted of a domestic violence offence within 5 years the maximum penalty is 240 penalty units or 5 years ...
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- Bail considerations
  
  The Bail Act 1980 reverses the presumption of bail for an alleged offender charged with a relevant domestic violence offence: see s 16(2)(f) of the Act. Where a person is held in custody for an offence that they have yet to be convicted of, the court will usually grant bail, unless the police ...
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E. National Domestic Violence Orders Scheme
- Legislation
  
  Model laws were developed and legislation passed by each State and Territory:
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- Enforcing orders
  
  DVOs made from 25 November 2017 can be enforced across all states and territories in Australia. If an order was made before 25 November 2017, it must first be declared a national DVO before it can be enforced in all states and territories. An order which has not been declared a national ...
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- Registration of interstate orders
  
  Where an interstate order is in effect, an application to register it in Queensland is made using an Application for Registration in Queensland of an Interstate Domestic Violence Order, form DV14. The application can be by the aggrieved, or a police officer. The form is filed along with a certified ...
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F. Finalising the matter
- Letter to client finalising domestic violence matter
- Example invoice incorporating notification of client's rights - QLD
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

ALERTS - Nil
Full Commentary - Commonwealth Offences
Reference materials
- AI Prompts
  
  An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Looking to the Future
- Electronic Signing and Witnessing
- 101 Subpoena Answers
- Papers and articles - Litigation
  - Improving written submissions - A paper by Judge Alan Troy
  - Plain language – A paper by the Hon. Michael Kirby AC CMG
- Calculating Penalty Units - All States and Territories
- Further information
Overview

This publication should be used in conjunction with the appropriate state Criminal Guide. Sometimes a client may be charged with offences under Commonwealth rather than, or in addition to, offences under state law. This commentary identifies some of the issues that arise when dealing with ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
A. Getting the matter underway
- Table of common Commonwealth offences
  
  Note: All of the offences in this table are summary or can be dealt with summarily.
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- Legislation
- First steps
B. Preparations
- Prosecution
  
  Where the informant is a Commonwealth agency the Commonwealth Director of Public Prosecutions (CDPP) will usually prosecute and appear. The CDPP makes a decision to prosecute pursuant to the Prosecution Policy of the Commonwealth, and primarily based on whether there is a reasonable prospect of ...
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- Procedure
  
  Courts of summary jurisdiction have powers to hear and determine Commonwealth offences: s 39(2) Judiciary Act 1903 (Cth). State laws apply to state courts exercising federal criminal jurisdiction, subject to any contrary provisions in Commonwealth legislation. In particular, the following ...
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- Summary v indictable offences
  
  All Commonwealth offences are either summary or indictable:
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- Arrest, record of interview and forensic procedures
  
  The procedures in Part IC of the CCA apply when a person is detained or arrested in relation to a Commonwealth offence, but these do not exclude or limit the operation of any relevant state law if it can operate concurrently. Further, Part IC does not affect the right to silence, nor the ...
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- Bail
  
  The state’s usual bail procedures and processes are followed unless:
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- Mental illness and fitness to be tried
  
  Summary offences Division 8 of Part IB of the CCA applies to summary proceedings. It is a diversionary measure which applies where it appears to the court that a person is suffering from a mental illness, as defined under the applicable state law, or an intellectual disability. If the ...
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C. Sentencing
- General sentencing principles
  
  Section 16A(1) provides that the sentence must be of an appropriate severity to all the circumstances of the offence. Section 16A(2) sets out a non-exhaustive list of factors to be taken into account by the court on sentencing.
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- Aggregation and dealing with Commonwealth and state offences together
  
  One sentence may be imposed for multiple Commonwealth offences but not where there is a mix of state and Commonwealth offences: s 4K(4) and s 19AJ. If the client is being sentenced for state and Commonwealth offences see DPP & DPP(Cth) v Swingler [2017] VSCA 305, which sets out some ...
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- Sentencing options
  
  There are several general sentencing options under the CCA, subject to any specific law to the contrary making any sentencing option not available:
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- Imprisonment
  
  Imprisonment is a sentence of last resort and, if imposing it, the sentencing court must identify why no other sentence is appropriate: s 17A(1). Exceptional circumstances are required to impose a sentence of imprisonment for certain minor property offences where the value of the property is ...
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- Example written submissions on section 19B
- Letter to client after sentence - Select outcome
D. Finalising the matter
- Letter to client finalising the matter
- Example invoices incorporating notification of rights
  - Example invoice incorporating notification of client's rights - NSW
  - Example invoice incorporating notification of client's rights - VIC
  - Example invoice incorporating notification of client's rights - QLD
  - Example invoice incorporating notification of client's rights - SA
  - Example invoice incorporating notification of client's rights - TAS
  - Example invoice incorporating notification of client's rights - ACT
  - Example invoice incorporating notification of client's rights - NT
  - Example invoice incorporating notification of client's rights - WA
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

101 Subpoena Answers
Overview

Jurisdictions, types of subpoenas and other compulsory production While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects.
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A. Initial considerations
- Jurisdictions, types of subpoenas and other compulsory production
  
  While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects. Subpoena law is fairly settled and consistent across all Australian jurisdictions. The High ...
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- Definition of documents
  
  Uniform evidence law applies in NSW, Victoria, Tasmania and the Territories. However, there are variations between the various Evidence Acts in these jurisdictions. There is a useful comparative chart prepared by the Commonwealth Attorney-General’s Department regarding differences between the ...
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- The implied undertaking
  
  One of the most important things to know about subpoena law is the so-called implied undertaking, also known as the Harman undertaking, or the Hearne v Street undertaking. The common law provides that production of and access to documents under subpoena, even without any other court order, is ...
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B. Acting for a client who receives a subpoena
- Acting for a client who receives a subpoena
  
  One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will better equip practitioners to draft and issue subpoenas for clients who are parties to litigation. Once the purpose of the subpoena ...
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- What happens when a client is served with a subpoena
  
  Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ...
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- Inappropriate responses
  - Ignoring the subpoena
    
    Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ...
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  - Overly enthusiastic compliance
    
    At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for All documents about X, when a client receives the subpoena and immediately brings their life and business to a screaming halt. They assume they must so ...
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- Appropriate responses
  - Review the subpoena
    
    It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as:
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  - Comply if reasonable
    
    The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that the client has in their possession or control and that are clearly relevant to the ...
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  - Object if necessary
    
    Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Technically, documents should be produced to the court, subject to the objection: see Objections. Where the nature of the objection ...
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- Objections
  - Insufficient description
    
    In criminal cases s 225 of the Criminal Procedure Act 1986 (NSW) provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not ...
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  - Legitimate forensic purpose
    
    The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive superior ...
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  - Legitimate forensic purpose in criminal cases
    
    In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a ...
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  - Legitimate forensic purpose in civil cases
    
    There is a settled line of authority which requires the issuing party to demonstrate a legitimate forensic purpose for all of the material sought under a subpoena by showing that the documents sought have apparent relevance and can materially assist on an issue identified in the pleadings or can at ...
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  - Legitimate forensic purpose in federal cases
    
    In the federal jurisdiction, the requirement for an issuing party to establish legitimate forensic purpose is well recognised via such cases as:
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  - Legitimate forensic purpose in family law cases
    
    Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ...
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  - Negotiating the scope of objectionable subpoenas
    
    Most often the legitimate forensic purpose objection will relate to the breadth of the subpoena – the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no legitimate forensic purpose. Often a subpoena ...
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  - Oppression
    
    A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to legitimate forensic purpose. Where a subpoena causes unreasonable trouble and expense to the ...
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  - Public interest immunity
    
    Public interest immunity is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R [1984] HCA 85 and has frequently been claimed, considered and applied since. ...
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  - Statutory privileges
    
    There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ...
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  - Legal professional privilege
    
    Legal professional privilege is a complex area. It exists in both common law and by virtue of ss 117-119 of the Evidence Act 1995 and it depends which jurisdiction as to which iteration applies. See: Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [11]. Both forms of ...
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- Arguing a subpoena objection in court
  
  If the subpoena is pressed over an objection the objecting party needs to file the appropriate document to bring the objection before the Court. If unsure, check the rules of the Court in which the subpoena is issued or ask the Court registry. The procedure varies not just from state to state, but ...
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- Forms - Response and objections
  - Civil
    
    Notice of motion
    
    Example - Notice of motion - to set aside a subpoena
    
    Affidavit
  - Family
    
    Subpoena - Family Law
    
    Affidavit - Family law and child support proceedings
C. Acting for a client who issues a subpoena
- Power to issue a subpoena
  
  In civil cases Part 33 of the Uniform Civil Procedure Rules 2005 (NSW) contains the provisions relating to subpoenas. In other jurisdictions see:
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- Why – and why not – to issue a subpoena
  
  A subpoena is a tactical tool in litigation but should be employed as part of the overall strategy. A subpoena allows a party to obtain evidence that might support their case. It should be an integral part of the case theory. Issue a subpoena to obtain documents that are likely to exist and will ...
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- When to issue a subpoena
  
  In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from the instructions and the formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building the case. However, ...
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- How to issue a subpoena
  
  Applying to the court The procedure for issuing subpoenas and inspecting documents is set out in the applicable civil or criminal procedure rules for each jurisdiction and covered in various levels of detail on the various court websites. See the Victorian County Court website, for example, which ...
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- Drafting a subpoena
  
  Who is the right recipient? Subpoenas need to be addressed to a person.
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- Examples of good and bad drafting of the schedule to a subpoena
  
  Scenario: A client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon the client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ...
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- How, when and where to serve a subpoena
  
  Always check the specific rules for service for the specific court when issuing a subpoena: see the links to court websites in Power to issue a subpoena or Further information. Generally, subpoenas require personal service, unless they are directed to police or other public officers. See for ...
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- Conduct money
  
  Conduct money is the cost of getting the documents or the person subpoenaed to court. If no conduct money is paid when a subpoena is served, the addressee may be unable or unwilling to produce documents, or to attend court to give evidence. Whether the non-payment of conduct money is a legitimate ...
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- Costs
  
  In criminal proceedings, generally only a party to the proceedings can seek or obtain a costs order. A third party recipient of a subpoena is not a party: s 221 of the Criminal Procedure Act 1986 (NSW). However, some jurisdictions differ – Queensland legislation specifically provides that a ...
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- Subpoena forms
  - Civil
    
    Subpoena to produce with subpoena notice and declaration
    
    Subpoena to attend to give evidence
    
    Subpoena to attend to give evidence and to produce with subpoena notice and declaration
  - Criminal
    
    Subpoena for production
    
    Subpoena for production and to give evidence
    
    Subpoena to give evidence
  - Federal Circuit and Family Court of Australia
    
    Subpoena - Family Law
    
    Affidavit - Family law and child support proceedings
    
    Annexure sheet
  - Federal Court
    
    Subpoena to give evidence - Link to Federal Court of Australia
    
    Subpoena to produce documents
    
    Subpoena to give evidence and produce documents
D. Production and access
- Production and access
  
  A subpoena is a court order requiring production of stated documents to the court. Even if there is an objection, unless the objection is for oppression or relates to public interest immunity, then the documents should be produced, subject to the objection. The way to deal with this is to produce ...
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- Extension of time for production
  
  It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ...
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- What happens if a subpoena is not answered
  
  As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 of the Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where ...
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- What to do if subpoenaed documents are sent to a lawyer directly
  
  When a subpoena is issued the documents are produced to the court, not to the issuing party or their lawyer. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court ...
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- Access orders in different jurisdictions and the rules of court
  
  Access to, or inspection of, documents produced under subpoena is governed by the rules of court applicable to the various jurisdictions and always at the court’s discretion. See for example, r 33.8 of the Uniform Civil Procedure Rules 2005 (NSW). It is important to know how access orders are ...
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Criminal and Traffic Offences

This publication guides practitioners through criminal and traffic offences in the Magistrates Court of Queensland, domestic violence orders and Commonwealth offences.

Overview

Precedents in this publication include:

5 Matter Plans Included

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