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Criminal Law Matters

Christian Porter | Populist Opinion v Procedural Fairness & Justice

 

Popular Opinion

  1. Where there is smoke there is fire [2020 Four Corners Program as to recent and historical inappropriate behaviour of Christian Porter] as well as the more recent allegations of sexual assault dating back to 1988 [33 years ago].
  2. Irrespective of Police confirmation of its own legal advice that there is insufficient admissible evidence to commence a criminal prosecution for sexual assault against Porter, there should be a Public [Executive] Inquiry, at least as to whether Porter is a fit and proper person to hold the office of the first law officer of Australia.
  3. It would seem most people don’t need an Inquiry as they have already determined Porter is not a fit and proper person to hold the office of Commonwealth A-G.

Procedural Fairness and Justice

  1. I agree with the former Solicitor-General, Justin Gleeson that:
  • There must be credible evidence before the Prime Minister calls for any Inquiry;
  • Whether credible evidence exists should not be determined by the PM or his office but at arms-length, in this case by the second law officer of Australia, the Solicitor General.
  • In the event that the Solicitor General determines there is not or not sufficient credible evidence to hold an Inquiry, that should be the end of the matter and the PM should strongly resist populist calls for an Inquiry;
  • In the event that the Solicitor General determines there is credible evidence to be placed before the Inquiry, not going to the innocence or guilt of Porter relating to the sexual assault allegations, but rather, as to whether he is a fit and proper person to hold office; then the PM should EITHER direct such an Inquiry or give detailed reasons why he will not; and in the event of the latter, people can assess for themselves the PM’s explanation, if any

2. No doubt, in determining whether there was credible evidence, the Solicitor General would consider many areas including:

  • The weight, if any, to be given to any signed statement of the woman to her lawyers;
  • The weight, if any, to be given to the hearsay statements made by the woman to her friends;
  • The mental health issues of the woman, such as her Bi-Polar, suicide attempts and mental health hospitalisations, but only to the extent if at all, any of these things could adversely impact upon the credibility of anything said in any signed statement of the woman;
  • Any other matter that may impact upon the credibility of anything said in any signed statement of the woman.

Are there Precedents for an Inquiry?

Yes, there are. There is a 1904 High Court case that arguably supports those promoting a Public  Inquiry into Christian Porter.

The most recent case being the former Justice of the High Court and controversial former Labor Attorney General Lionel Murphy. Murphy was acquitted in a criminal trial relating to allegations of corruption whilst he was A-G. However, whilst he was still a serving Judge of the High Court, the then A-G directed that an Inquiry be held into his fitness to return to the High Court as a Justice and that Inquiry was to be headed by 3 retired Judges.

As it turned out, the Inquiry into Murphy’s fitness was abandoned due to his terminal illness, from which he shortly thereafter, died.

Conflation of Issues

Unsurprisingly, much of the social platform commentary and mainstream media has conflated important but distinct issues, which has led to poor and at times, illogical reasoning, however, populist.

Just consider these areas:

  • Presumption of innocence
  • Distinction between admissible and ‘other’ evidence – in a criminal trial
  • Fitness to be the first law officer in Australia
  • An Inquiry – into what?
  • Assuming determination by Solicitor General of there being credible evidence going to the fitness of Porter to hold office and that the PM directed an Inquiry – would that be setting a dangerous or other precedent?
  • Workplace sexual harassment and/or inappropriate workplace conduct
  • A. Coronial Inquest

Presumption of innocence

We have all heard even the most experienced media commentators say something like: “Of course there is the presumption of innocence but……….”.

There is no ‘but’. Either there is a presumption or there isn’t. Either those words mean what they mean, or they don’t. The current position is that, in terms of any alleged criminal conduct [by whomever it is alleged], Porter stands innocent, end of story!

Commentators frequently go on to speak about his fitness to hold office in the same breath as discussing the criminal allegations and the presumption of innocence. They must be kept and/or discussed separately, failing which leads to confusion.

So, let’s move away from any concept of criminal guilt in relation to the 1988 sexual assault allegations because as things stand, they will never be tested in a criminal court and non-one will ever know whether there was or wasn’t a sexual assault [except for Porter and the woman].

Why is there no Admissible Evidence & what Does this Mean?

Again, this topic is only relevant to a criminal charge or to the consideration of whether there is or should be a case for Porter to answer in a criminal context.

The common social and media commentary is that Police closed the investigation and determined not to lay any criminal charges against Porter because the unidentified woman is deceased. That is simplistic and misleading.

Before Police lay a charge of sexual assault, there needs to be an allegation by the complainant that is either in writing and signed or recorded in an interview with Police. It is not enough that the complainant may have made a statement to her lawyers or of her own accord at some other time, regardless whether that statement is signed or not. The statement on which Police commonly rely must be taken by Police and contain certain content to make that statement admissible in court.

In the Porter case, as I understand it Police did not take any signed statement from the woman. The woman did not participate in any recorded interview with Police. Clearly, there is no significant admissible evidence from the woman herself [to Police] as against Porter.

Had there been a signed statement to police or a recorded interview by the woman, then, notwithstanding her death, it is possible and I put it no higher than that, possible that her statement to police or recorded interview could have been used as a basis to lay criminal charges against Porter. That said, a prima facie case against Porter may have been established but the prospects of a conviction at trial would in my view, have been remote.

It doesn’t stop there because a day or so prior to the woman taking her own life she communicated with Police that she did not want to proceed with her complaint. Of course, that is the prerogative of each and every alleged complainant. That is not to say that the woman withdrew the allegations and she did not tell Police that the allegations were false or incorrect.

So, not only is there not any admissible evidence against Porter [from the woman at least], she told Police she didn’t want to proceed with her complaint. The woman’s reasons as to not wanting to proceed are unknown and all the commentary in that regard is hugely speculative. Such speculation adds nothing and detracts from the debate.

However, the Police didn’t make the call themselves and sought legal advice from the DPP, who I interpolate, advised Police there were no reasonable prospects of success, in the event that any criminal charges were laid against Porter.

Fitness to be the First Law Officer

It is a given that the first law officer, the Commonwealth A-G should be a fit and proper person to hold that office.

If credible evidence exists that Porter is not a fit and proper person then in my view, that evidence can and should be placed before any Inquiry to determine his fitness.

As I have said, in that event, the PM should direct an Inquiry, however, if there is no credible evidence [to be determined by the Solicitor General], that should put an end to the calls for an Inquiry.

An Inquiry – into what?

Again, there has been much confusion as to what sought of Inquiry, if any should be called by the PM.

Let’s understand that, as to criminal proceedings for sexual assault, as things stand, there is just no basis for any such Inquiry. Police have carefully considered the position and obtained advise from the DPP and that should be the end of the matter.

So there is no basis in law, to hold a Public [or executive] Inquiry as to whether there was or was not a sexual assault or whether criminal charges should be laid against Porter.

However, as I have already said, there is established principle to hold an Inquiry as to the fitness of Porter to continue to be the first law officer of Australia, provided that, there is credible evidence to support such an Inquiry.

Would an Inquiry set a Dangerous Precedent?

I have already explained that there are precedents for an Inquiry in the fitness of Porter to continue to hold his office.

I would add that, in professional life it is not only the A-G and Ministers and Parliamentarians who are required to be fit and proper persons to hold their jobs. Many other professionals, doctors and lawyers for example, are required to be fit and proper persons to practise their respective professions.

Just as I am advocating here, if there is credible evidence that an person in any profession is not fit and proper to practise their profession, then I would have no difficulty with that evidence being put before the regulatory body [in respect of doctors and lawyers for example] to determine the issue.

In that sense, if there was an Executive Inquiry into Porter’s fitness to hold office, Porter would not be treated any differently to anyone else who has the onus to demonstrate that he or she is a fit and proper person to practise their profession.

It follows that, in my view, no dangerous precedent would be set by holding the Inquiry, in the event that there was credible evidence to support it.

Workplace Sexual Harassment or other Alleged Breaches

Many social and media commentators refer to last years Four Corners program relating to alleged inappropriate behaviour on the part of Porter and either expressly or inferentially, suggest that [alleged] behaviour either by itself or in combination with the sexual assault allegations should justify an Inquiry into Porter’s fitness to hold office.

However, workplace legislation already enables an investigation into such inappropriate behaviour on the part of Porter. So, if any former staffers of Porter have made or do make complaint, there is a readymade process by which that/those complaints can be investigated. Indeed, any adverse findings could directly impact upon Porter’s fitness to hold office.

One would think that any finding that Porter sexually harassed or behaved sexually inappropriately toward a former staffer or staffers would strongly suggest he was not a fit and proper person to hold the office of A-G.

That said, I am not aware of any actual complaint by any former staffer of Porter.

S.A. Coronial Inquest

The S.A. Inquest is for one purpose and one purpose only. That is, to determine the cause of death of the woman. Put another way, to determine whether her death was by suicide or some nefarious or innocent cause.

The outcome of that Inquest may lead to there being credible evidence that does not now exist or that is not now known, which evidence may [or may not] lend sufficient weight to calls for an Inquiry into Porter’s fitness to hold office. We will all have to wait and see.

To briefly hypothesise, if the Coroner found that the woman took her own life, it is likely that would put an end to endless speculation and conspiracy theories as to the woman having met her death by nefarious means. On the other hand, if the Coroner found that the woman’s death was not by suicide but by person or person’s unknown, such a finding would likely feed the speculation and conspiracy theories.

Where that would then lead us is too speculative as it would entirely depend on the actual evidence given in the Inquest.

Defamation Action

It has been widely reported that Porter has commenced proceedings for defamation against an ABC journalist and the ABC relating to the Four Corners program containing the allegations that he had sexually assaulted the woman in 1988 and particularly, that he was named in that program.

Although, there are suggestions in social media that the defamation proceedings are a tactic to ‘gag’ the media, the fact of the matter remains that Porter is entitled to follow whatever legal advice he has been given. It should also be noted that reportedly, Porter has said he will give evidence as to his denials relating to the allegations in the defamation proceedings.

We will all have to wait and see the outcome of the defamation proceedings.

Criminalisation of coercive control

This is a hot topic at present and rightly so. There needs to be and should be significant community discussion and education to do the subject justice.

Is coercive control a form of domestic violence or abuse and should it be criminalised?

The overwhelming answer is Yes!

It is for that reason that the NSW Government is looking to join the only other state in Australia, namely, Tasmania, to criminalise coercive control. The NSW Law Society has this week endorsed the Berejiklian Government in calling for its criminalisation.

What is Coercive Control?

Coercive control is a type of domestic violence that manifests in psychological abuse via a pattern of acts: threats, manipulation, surveillance, isolation from friends and family, restricting access to finances and rigid rules with harsh consequences are common examples. It is a crime in some countries including the UK, France, and Ireland. 

A long-time victim of coercive control, Belinda, said this:

It is the starting point of violence. It is horrendous to experience and if we put perpetrators away before it escalates, we are likely to save more lives.”

An examination of recent domestic violence deaths will reveal that before being killed at the hands of their current or former partners, most of NSW’s recent domestic violence murder victims suffered through severe episodes of psychological and emotional abuse.

Examples of coercive control include cutting off access to money, installing surveillance devices in the home or on a phone, isolating from family and friends, threatening to withdraw support for a visa or to kill a pet – can destroy a woman who will never experience a physical assault. But many do not recognise themselves as victims.

The NSW Domestic Violence Death Review Team’s most recent report, investigating murders between 2017 and 2019, found 77 of the 78 perpetrators used coercive control on their partner before killing them. This follows earlier research from the NSW Bureau of Crime Statistics and Research in 2016 that found women who experienced emotional abuse were 20 times more likely to subsequently suffer from physical violence.

The murder of Brisbane woman Hannah Clarke and her children in February 2020 by her ex-husband, following years of control and psychological abuse, catapulted the issue to national attention with calls for urgent law reform.

In February 2020, Brisbane woman Hannah Clarke and her three children were murdered by her ex-husband, the children’s father, in a sickening crime that followed years of psychological control. Hannah’s family told media they had not seen the warning signs of abuse “for a long time” and that Hannah herself had questioned whether the relationship was abusive because she had not been physically assaulted.

“Not all domestic abuse is physical,” Hannah’s brother Nathaniel told Channel Nine.

Years before Hannah’s case horrified the nation, the 2011 murder of Lisa Harnum, thrown from a high-rise balcony in Sydney’s CBD by her fiancé Simon Gittany, was one of the first high-profile cases of domestic abuse that had not been preceded by physical assaults, but rather around-the-clock surveillance and control on her movements, employment, outfits and choice of friends.

Conclusion

Lawmakers must be careful to draw a line between criminal behaviour and a relationship that may be dysfunctional, but not necessarily coercive.

There is also a risk of criminalising people with alcohol, drug issues, mental health issues – the vulnerable and disadvantaged who may not fit into the norms of relationships held by others. The offence needs to capture the persistent nature of the offending, intentionally and persistently … specific intent is a very important safeguard against capturing those who may otherwise be innocently caught up in well intended legislation.

So, subject to these minor qualifications, I’m all for it – let’s get it done!

If you or someone you know needs advice surrounding the proposed criminalisation of coercive control please contact one of our criminal lawyers for a free, no obligation consultation or call 4324 5688

Do you have teenage children? You need to read this!

Did you know that it is a criminal offence to have consensual sex or any form of consensual sexual touching when one or both are under the age of 16 years?

  • Example 1: the boy is 16 ½ and the girl is 15 ½ – it is a criminal offence
  • Example 2: the girl is 16 ½ and the boy is 15 ½ – it is a criminal offence
  • Example 3: one is an adult and the other is under 16 years – it is a criminal offence
  • Example 4: both are under 16 years – it is a criminal offence

In this article I will deal with examples 1, 2 and 4 because they relate to ‘Young Persons’ in the Children’s Court, due to them being under 18 years of age.

In December 2018 a new law was introduced in NSW called ‘the similar age defence’. Essentially, provided the alleged ‘victim’ is at least 14 years old, if the ‘other’ teenager is within two years of the age of the victim that other teenager can rely on the ‘similar age defence’ and the prosecution would have to prove one of the following to convict that other:

  1. That the alleged victim was under 14 years of age; or
  2. That the age difference was more than two years.

Victoria, Tasmania, Western Australia and the Australian Capital Territory all have what is referred to as the “similar age” defence.

Prior to the introduction of that law, if both teenagers were under 16 years of age and engaged in consensual sex, it was likely that the boy would be charged with a criminal offence, even if the boy was younger than the girl. Fortunately, the new law has changed things in that regard.

However, every parent should be aware that where their teenager is say 16 ½ years old and he/she has ‘sex’ with another teenager who is say, 14 years old, then clearly, as the age difference is more than two years, the 16 ½ years old will have committed a criminal offence.

Should consensual sex between teenagers be a criminal offence?

Many would say consensual sex between young teenagers, who are more likely than not, exploring their sexuality, should never amount to a criminal offence. Who is to say that the two years age will prevent any unfairness? What if, for example, the boy is 16 ½ years old and the girl a touch under 14 ½ years old but there is evidence to establish the girl was more emotionally mature than the boy, whether due to a cognitive impairment of the boy or not?

Food for Thought

An authority on what is just and reasonable (in context) may be gleaned, from the South African case of Teddy Bear Clinic for Abused Children v Minister for Justice and Constitutional Development [2013], where the Constitutional Court found that laws criminalising consensual sex between young people were unreasonable, and consequently, were unconstitutional; the Court held the laws unjustifiably violate the dignity and privacy of young people and are not in the best interests of the child (under the South African Constitution any limitation on these must be reasonable).

What are the consequences?

As a parent, you should be aware that any conviction for such an offence could result in your daughter or son being required to be listed on the Child Protection Register for a period of about 7 years or so, which involves a lot of restrictions and creates many obligations. Not to mention the potential impact on employment in the event of a finding of guilt.

If you require legal advice or representation in any legal matter, contact the team at Conditsis lawyers. We offer a free first consultation to review your case.

Hung Juries in Sexual Assault Trials

What does a hung Jury mean?

In Australia, for an accused to either be found guilty or not guilty of a crime in a jury trial, the starting point is that the jury decision must be unanimous. However, after jury deliberations of about 8 hours or so, the judge will usually direct the jury that a majority verdict of 11:1 will be received.

After further deliberation by the jury, if the jury has not reached a majority verdict, the judge will question the foreperson on the jury as to whether, if more time was given, it is reasonably possible that jury will reach a majority verdict. If the answer to that enquiry is no, then likely, the judge will discharge the jury on the basis they could not reach a verdict, unanimously or by majority. The result is what is called a ‘hung jury’.

Hung juries are not at all uncommon and it is nothing to worry about, perhaps unless you are the complainant or the accused and there is a retrial.

Sometimes, following a hung jury result, the accused’s lawyers will make what is called a No Bill application to the DPP, making submissions that there should not be a retrial due to various perceived weaknesses in the prosecution case. However, the usual practise of the state and Commonwealth DPP is that they will retry a matter at least a second time following a hung jury. In years passed it was not uncommon for there to be two or three retrials following hung juries before the DPP would pull the pin.

Does a hung jury mean the trial failed?

Not at all. Indeed, it demonstrates that the criminal justice system works as it was intended. That is because, the criminal law provides for the presumption of innocence for any person accused of having committed a crime and it follows that, the accused does not have to prove his or her innocence, but rather, the prosecution must prove the guilt of the accused beyond reasonable doubt. Juries are told that they must be satisfied of the guilt beyond any reasonable doubt.

Juries are commonly told that suspicion alone, even high suspicion, is not enough, because the threshold is ‘beyond any reasonable doubt’. So, the bar is high but you may think that is as it should be to be convicted of a criminal offence, the consequences of which, often include a lengthy period of imprisonment.

Bearing in mind the high standard of proof and that in sex trials it often comes down to the word of the complainant against the word of the accused, it is not surprising that, after hearing all the evidence, the jury cannot unanimously or by majority verdict of 11:1 agree on a verdict. That doesn’t mean that the collective jury believe that the complainant or the accused is lying. Not at all.

The logical outcomes as to why a jury may be ‘hung’ include:

  • Some jurors, but less than an 11:1 majority may have difficulty in determining who is telling the truth, therefore they are undecided and will remain so, meaning they cannot be satisfied about the guilt of the accused beyond reasonable doubt, but other jurors are satisfied beyond reasonable doubt that the accused is guilty; and
  • Some jurors may strongly be in favour of the complainant and are satisfied beyond reasonable doubt that the accused is guilty; but other jurors are strongly in favour of the accused and believing the accused is not guilty.

In the past, where there has been evidence of a complainant who was flirting with the accused or even being ‘open’ to sex at a later time, criminal lawyers would likely have categorised the prosecution case as problematic. However, in 2020, the community and jurors generally, have come a long way and accept that a yes or a potential yes by a complainant in the past does not mean yes at the time that the sex occurred.

So, although there have been a couple of recent, high profile sexual assault trials that resulted in hung juries, don’t despair, our criminal justice system is working as it should be.

New domestic violence laws bad news for unrepresented defendants

A new law recently passed by the NSW parliament is going to make it even more difficult for defendants who cannot afford a lawyer to defend themselves.

The law is part of a suite of reforms aimed at making it easier for complainants (alleged victims) in domestic violence (DV) cases to give evidence in a court case. It will prohibit an accused person from directly cross examining (questioning) the complainant as part of their defence. Instead, the court will need to appoint a person or use technology (such as text to voice applications) to read out questions for the complainant as the accused writes or types them out.

On the surface, this seems like a sensible reform. It means that a complainant will not have to be confronted directly by their alleged abuser in court. Unfortunately, as is all too often the case, the right of an accused to a fair trial has once again taken a back seat.

Cross-examination is the main, and sometimes only, way that the evidence of a witness in a court case can be tested. Effective cross examination is not just about what you ask the witness, but also how you ask it. Tone and tempo are very important. By interrupting the flow of cross examination by the need to write down or type the next question to be put to the complainant, much of the effectiveness of cross examination will be lost. Even more will be lost by the questions being spoken by a computer or a disinterested human intermediary, without the right tone, intonation and cadence. The result will be that an accused who will be forced to conduct cross examination in this way will be at a huge disadvantage.

What is most galling about this reform is that it will disproportionately effect socio-economically disadvantaged defendants who cannot afford a lawyer to represent them, while Cashed-up defendants who retain a competent lawyer to cross examine their accusers for them will not be affected by the new law. To add insult to injury, this new regime is being introduced in the context of cuts to legal aid in recent times, which mean that fewer and fewer people have access to a free legal aid lawyer. So, in the end, the government is making it harder for those accused of DV offences to defend themselves without a lawyer while at the same time strangling their access to legal representation.

Criminal Law Matters: Issue 8 – To Those in the Heavy Vehicle Transport Industry

Q: WHO IS RESPONSIBLE IN THE HEAVY VEHICLE TRANSPORT SUPPLY CHAIN?

A: EVERYONE!

A big legislative step in awareness and regulation of safety and compliance in Australia was the Heavy Vehicle National Law (HVNR) (originally a schedule to the HVNL Act 2012 (QLD)).  The HVNL came into force on 10 February 2014.   The ACT, NSW, SA, QLD, Tasmania and Victoria each passed a law adopting or duplicating the HVNL with some modifications and some differences (eg ACT is missing some sections).  If you are in WA or NT the law still applies to you once you are driving in the jurisdictions which have the HVNL.  The HVNL is administered by the National Heavy Vehicle Regulator (NHVR) with administers the HVNL and 4 sets of regulations.

‘Everyone’ (in the heavy vehicle transport industry) needs to be aware of the recent legislative amendments relating to ‘Chain of Responsibility’ (CoR) which have just come into effect on 1  October 2018.

The heavy vehicle transport supply chain is an industry value chain with each link representing a primary activity.   165 000 businesses in that chain were consulted in relation to these recent amendments.

The Chain of Responsibility  (CoR) is not a new policy concept in Australian transport legislation.  The gist is that legal obligations are placed on parties in the transport supply chain.

The amendments place a primary duty clearly and transparently on each party (‘link’).

The primary duty is to minimize risk by doing all that is reasonably practical to ensure safety.

Before the changes, various players in the supply chain could be punished however there did not seem to be consistency in who was issued infringements/charges and punished.  Further problems included that members of the supply chain pressured other members to not comply with safety obligations and companies could ‘contract out’ their obligations.

The following roles are examples of those who are involved in the transport supply chain.  As can be seen the net is wide –

-loading manager, -loader/unloader, -packer

-consignee/consignor

-operator

-scheduler

-employer

-executive officer

-prime contractor

-if you own premises where 5 or more heavy vehicles unload or load each day.

Often legislative amendments can be ambiguous and difficult to understand. However, these amendments, and the corresponding obligations are currently the subject of an intensive education campaign by the NHVR and, in NSW, the RMS.

The goal is safety.

There is an increase in both liability and penalties available for those who offend.

 

HOW TO FIND OUT INFORMATION EASILY SO YOU DO NOT OFFEND:

  • There is a helpful CoR checklist regarding who are involved in the transport supply chain on the NHVR website (nhvr.gov.au)
  • There are a series of short helpful seminars on the NHVR website.
  • There is a CoR ‘gap assessment tool’ on the website by which you can answer questions both to assist you to determine your role and where you are deficient in your business practices and systems etc. – you are issued with a list of recommendations to assist you to strengthen your ‘compliance and safety management responsibilities’.
  • You should look at your own industry codes of practice.
  • The Crane, Forestry and Livestock industries already have Codes unique to their particular industry and how interactions occur with the NHVL – eg specifically what is carted; how it is loaded/unloaded; how cranes are designed.
  • National Roads have issued an information package – ‘Safety Management in the Chain of Responsibility’.
  • The Australian Standard ISO13000 relation to Australian industry risk management generally is obviously instructive.
  • The NHVR portal has established a free service for those who have fleet to be able to check and monitor registration currency and other details.
  • A ‘Master code of Practice’ is currently being developed for the transport industry

 

Criminal Law Matters: Issue 7

CAN I GET A LICENCE JUST FOR WORK?

CAN I GET A WORK LICENCE?

I HAVE BEEN TOLD YOU CAN GET A LICENCE JUST TO GO TO AND FROM WORK

 No! No! No! Not in NSW!! NOOOOO!

 

I remain fascinated by the fact that every client for any traffic offence where disqualification looms large asks a derivative of the above question.

I have now been working as a lawyer for over twenty (20) years (plus…) and the answer has always been ‘no’ in NSW.

In some states of Australia – for example, Western Australia and Queensland come to mind – you can get a work licence.  But even in those States, it is not a simple process or open to just any body.

In Western Australia conditions include that you need to be employed in a job where driving is essential before you commit the offence.  To obtain the work licence your boss needs to come to Court and give evidence that you were employed before the offence and the business needs you to drive.

In Queensland it is only applicable for certain offences – drink driving with blood alcohol concentration of less than 0.15 – and you held a current driver’s licence at the time (but not provisional or learners).  You cannot have been convicted of a drink driving offence in the last five (5) years or had your licence disqualified, suspended or cancelled (with some exceptions).  There are further conditions – you must:

  • apply to the court at the time you are convicted and before the court orders that you are disqualified from driving
  • show the court you are a ‘fit and proper person’
  • show the court that you’ll lose your job (and your income) if you don’t get a work licence, which will cause extreme hardship to you or your family.

New South Wales may adopt these licences now that the police in NSW have number plate recognition (so can police the work licence holders)  However this type of licence is not yet a reality.

NSW has recently made other progress to the advantage of past ‘traffic offenders’ – the legislation now allows for the removal of driver licence disqualifications by the Court under certain circumstances – after serving a certain period ‘off the road’ (depending on the type of offence for which you are currently disqualified).  Further information can be obtained by contacting us!

Criminal Law Matters: Issue 6

Dory: A friend of mine, her name’s Sigourney, once told me that all it takes is three simple steps: Rescue, rehabilitation, and um… one other thing?

Group of Cheering Fish: Release!

 Be very careful when entering a plea of ‘guilty’ to a criminal offence.

You do not have to be ‘guilty’ to enter a plea of ‘guilty’.  For example, sometimes you may want to just ‘get it (the court proceedings) over with’.

However if you enter a plea of ‘guilty’ (for whatever reason) you need to remember that for the purpose of sentencing you are admitting the crime you have been charged with and you will be sentenced on the facts relied on by the Prosecution.   Further you are at the mercy of the Court in relation to sentence subject only to the Court’s jurisdictional limits.

In the case of ‘Meissner’ Justice Dawson said –

 “It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred”

You can ask the District Court at the time of an Appeal, by way of Notice of Motion, to allow a change of plea. Sometimes this request is made of the Local Court in the course of the Local Court proceedings.

A client recently instructed me to apply to the Local Court to reverse her plea of ‘guilty’.

She had entered a plea of ‘guilty’ (represented by her former lawyers) in order to finalise very protracted proceedings.

She was alleged to have stolen a poster (one might think a trivial offence).  She had a strong defence and had always maintained her innocence.

The charge of larceny (stealing) was listed for hearing however on the first hearing date the matter was ‘not reached’ and adjourned due to a busy court list.  The matter was listed for hearing again several months later (and a year after the alleged offence).  My client suffers from anxiety and could not face the thought of giving evidence in the witness box.  She instructed her former lawyers to plead ‘guilty’.

The problem was that she was then sentenced to a term of imprisonment!

A home detention assessment was ordered and she was ultimately deemed suitable to serve her imposed prison sentence by home detention.

However she realised she had made a big mistake as she was not guilty of the offence to begin with and was now subject to a very serious penalty.

In this case the question became:

 

IS THE COURT FUNCTUS?

Section 207 Criminal Procedure Act NSW states that an accused person can apply to the Local Court to change a plea of ‘guilty’ to ‘not guilty’ ‘at any time’ before the summary proceedings are “finally disposed of”.

In the case of DD v Arab & Anor [2009] NSWCA 75 at paragraph 36 (Beazley JA) : “..The final disposition of summary proceedings, where there has been a finding of guilt after a hearing or a plea of ‘guilty’, must mean after sentence has been imposed and recorded.”

However this case was complicated by the fact that the application to reverse the plea came after the Court had imposed a sentence of imprisonment (as is required by the legislation before a home detention assessment is ordered).  Although the matter was adjourned for the home detention assessment (so the case was not finalised when we applied to the Court to reverse the plea) two (2) Magistrates both opined (and one formally ‘found’) that the Court had no power/no jurisdiction/was functus.  There was no other option other than the jail term whether it be in a jail or ‘at home’.  My client was stuck with her ‘guilty plea’ and with a jail term for stealing a poster.

In case the Court erred about being ‘functus’ the Court also ruled on the further issue as to whether there were merits in the application for a reversal of the plea.

In this case the Court found that this was a typical ‘Meissner’ case (even though my client suffers from diagnosed anxiety) and that she made an informed decision to plead ‘guilty’ to avoid giving evidence.

So if you are not guilty of an offence you should really think twice before just trying to ‘get it over with’!

 

Criminal Law Matters: Issue 5

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

William Pitt, 1st Earl of Chatham

The police apply to a Registrar for the search warrant; the warrant is granted and an Occupier’s Notice is served on the occupier informing the occupier of certain things including the ambit of the warrant.  The occupier can call for a copy of the warrant to view.

In reality many people who have a number of police arrive on their doorstep with recording devices and documents etc.  would not have the presence of mind to carefully peruse their Occupier’s Notice so as to for example notice missing pages, errors or inconsistencies in times/dates/signatures let alone call for a viewing of the originating document i.e the warrant.

Should such errors render the execution of the search warrant unlawful?  There is much caselaw about the ‘strict’ approach to be taken with the relevant documents and the procedures given the intrusive nature of the search and the infringement of individual rights.

There is case law and legislation and codes of conduct governing their operation.  However navigating the law in relation to search warrants is not so simple as the old adage ‘A Man’s home is his castle’.

One of the first major pieces of information on the Occupier’s Notice is the time the warrant expires.

I recently had a case where the Occupier’s Notice was defective in that the warrant was said to expire before the police arrived.

Within the Notice itself was information that the warrant had been applied for at the same time that it expired.  The Prosecution said ‘obviously this information as to the expiration time was an error!’

Not so obvious to my client – he did not even know what time it was when he was presented with the Occupier’s Notice.  He was being filmed at the time, surrounded by a number of police and also he was already in handcuffs.

So should this error in the Occupier’s Notice be just brushed off as a ‘slip’?

My client lamented – ‘What is the point of even serving an Occupier’s Notice if the police can just say ‘oh sorry just a mistake’ and get out the liquid paper and change the document?’  If anyone had noticed at the time would the outcome of the search have changed? Would my client just have had to wait for an amended copy of the notice to be obtained from the Local Court? Could the police have even re-written the notice? (It appears that they have that power)

The law is not clear and, as stated above, involves an interpretation of the legislation, common law and codes of practice etc. in the context of the particular situation.

What is clear is that it is a myth that a small error on a warrant renders the search unlawful and that all evidence is excluded.

It is also clear that the Occupier’s Notice is not the authority itself but rather information about the authority being the warrant.

The Law Enforcement Powers and Responsibilities Act (LEPRA) was introduced including for the purpose of making policing more practical.

Section 76 LEPRA says specifically that errors in warrants do not render the execution of the search unlawful unless the error is in relation to a ‘material particular’.

If the admission of evidence is held to be an argument about ‘unlawful’ or ‘improper’ (as opposed to ‘jurisdiction’) the Magistrate has discretion under the Evidence Act (section 138) to decide that the probative value of eg what was discovered in the search outweighs the impropriety or illegality.

So is a man’s home his castle?

Tell ’em they’re dreaming!

Criminal Law Matters: Issue 4

I recently was waiting at the Local Court in the Downing Centre for my client’s matter to be heard.

The majority of the cases before the Court were offences of violence.

One man who described himself as having ‘a strong moral compass’ and particularly a dislike for ‘littering’ hit a person waiting at a bus stop late at night after he saw that person discard their rubbish.

A bus driver grabbed a sixty-four (64) year old woman who had been a passenger on his bus and who had an issue with his driving.  She stood outside the bus taking photos of him and he got off the bus and grabbed her to stop her behaviour.

A thirty-three (33) year old man with no criminal history threw his mobile phone on the ground in the workplace then threw a mug of water on his colleague, smashed the mug and injured the colleague resulting in an injury requiring stitches.

A man who took offence to something he thought someone said to his girlfriend at McDonalds proceeded to grab a pole and ‘trash’ the frying station and assault a number of McDonald’s staff members.

And then there was the bespectacled year 11 female school student who assaulted security and police due to being denied entry to a nightclub on her eighteenth (18) birthday.

My client was arrested at Mardi Gras after he punched a police officer (with no effect!); he then proceeded to escape from police custody and run down the road in handcuffs chased by a police officer on a motorcycle.

Not all of the offences involved people under the influence of drugs and/or alcohol.  Diagnosed mental health issues featured in some of the matters.

In all matters the Court was sending a strong message to the community of ‘general deterrence’.  Violence is not to be tolerated in society and punishment will follow.  The penalties ranged from ‘good behaviour bonds’ with and without a conviction recorded, to fines, to community service.

Punishment is only one of the purposes of sentencing.  Rehabilitation is another important purpose of sentencing.  Accordingly, the Courts are looking for ways to try and treat this problem of social violence and aggression.

Studies have shown that impulsivity and acting aggressively could be due to low levels of a chemical in the brain called Serotonin.  Other studies have suggested that medications taken to treat depression called ‘Selective Serotonin Reuptake inhibitors’ (SSRIs) may help with these problems by increasing the levels of Serotonin in the brain (sertraline is one such medication).

In our Local Court at Gosford (and other courts in NSW) there is now pre-sentence referral by the Court for repeat violent offenders to participate in a study called ‘Reinvest’.   The study is to find out whether people in the criminal justice system who are impulsive and have problems with violence and aggression would benefit from treatment with sertraline.

Watch this space in relation to the results in current court matters.

Criminal Law Matters: Issue 3

‘Deemed supply’ is a tricky legal concept.

If you have over the trafficable amount of a drug (as per the schedule to the relevant legislation, the Drug Misuse and Trafficking Act) then it is ‘deemed’ that you have the drug for the purpose of supply.

The Prosecution must prove the substance is a drug; that you possess it and in this case the amount of the drug is enough to satisfy the tribunal of fact (e.g. Magistrate or Jury or Judge in judge alone trial) that you have the drug in your possession for supply.

There is a defence available.  However then the onus shifts to the Accused, which is rare in criminal law.

The Accused must prove on the balance of probabilities – the civil law standard – ‘more likely/probable than not’ – that he/she had the drugs in his/her possession for a reason other than supply. This reason is usually for ‘personal use’.

In this type of case the Accused will always give evidence. In order to succeed with the Defence the tribunal of fact must not reject the evidence of the Accused. The Court will look to any objective evidence that casts doubt on/undermines the version of the Accused.

Often this sort of evidence is indicia of actual supply such as tick lists, surveillance, ‘comings and goings’ from a premises, multiple mobile phones, small bags (‘baggies’), cash money.

It is important that the Court sees the total picture.  The Prosecution may try and focus on individual ‘bits’ of evidence to prove the person is supplying however often there are innocent explanations for possession of items – these explanations need to be clearly expressed to the Court.

  • I myself possess ‘baggies’.
  • I have cash on my premises.
  • I have multiple mobile phones.

However I can explain all these things; and I can assure the readers (if any!) that I am not in the business of drug supply.

The same sort of principles apply for manufacture of drugs.  I was assisting Mr Conditsis in a case once where there was alleged manufacture of drugs yet the items seized by police all had individual lawful uses.  The girlfriend of the accused was a beautician and one item was used to assist in nail work; there was another item used to clean the veranda/driveway; another substance was ingested by the client’s greyhounds. When examined carefully and as a whole it was clear that police had jumped to conclusions.

Criminal Law Matters: Issue 2

After many years representing people who are brought before courts in NSW, the events that bring people to court still surprise me.

You may have heard of Strike Force Raptor, a section of the NSW police force which investigates Outlaw Motorcycle gangs.

Such police are given a lot of power through legislation, for example to issue Firearms Prohibition Orders.  And if such an Order is issued, to search premises.  This has led to a lot of Firearms Prohibition Orders being issued to outlaw motorcycle gang members.

Another example is the ‘consorting laws’.  A client was recently served with a couple of A-4 size pages of coloured photos of men.  Being one of those communities where people know each other he was able to point out to me friends, friends of friends, and men he had known as kids growing up in the local area.

We started to draw flow charts – he was now warned; and so it would be an offence for him to consort with at least 2 of these men – separately or together; on 2 occasions.

So he can’t hang out with ‘A’ and ‘B’ more than once – separately or together.  He can hang out with A, B, C, D, E, F …once; and maybe ‘A’ twice..anyway…

Back to ‘raptor’ (which according to ‘google’ means some sort of dinosaur) – I recently acted for a client who was served with a firearms prohibition order by police from Strike Force Raptor.  Police then searched his premises.  They found two (2) bearded dragons – one with deformed feet.  Both dragons were unable to be released into the wild given all they had known was captivity.

The client found himself before the Court protesting the bona fides of harbouring these lizards (Pretty sure i had a bearded dragon when I was a kid!). After being informed of the maximum penalty of $11 000 and/or imprisonment of up to six (6) months, my client was fined and admonished.

Moral of the story, best to be a member of WIRES!

Criminal Law Matters: Issue 1

Most people now know that you cannot drive a motor vehicle under the influence of alcohol. However it is not just a motor vehicle which you cannot ‘drive’.

‘Vehicle’ has a much more extended definition under the Road Transport legislation in NSW than one would think. See the NSW Road Rules 2014, Part 2, Division 2, and Rule 15 for the definition of a vehicle which includes not only a motor vehicle, trailer and tram but also an animal drawn vehicle and the animal itself that is being ridden or drawing the vehicle.

A vehicle also includes a motorised wheelchair that can travel at over 10km per hour! And, importantly for my client in a case I recently acted in a bicycle.

So if you were thinking of organising a pub crawl on pushies, think again!

You can be charged by the police with a drink driving offence for riding a bicycle under the influence of alcohol. And if you are convicted of that offence there is a minimum disqualification from driving of six (6) months!

The police do not have the power to breath test you (or conduct breath analysis). If you are involved in an accident a blood sample can be taken. However evidence can be given by police in relation to someone’s intoxication (smelling of alcohol, appearance, behaviour).

My client appeared unrepresented in the Local Court. He did not understand the ramifications of drink driving on a bike! He was fined and disqualified from driving for six (6) months.

He came to seek some legal assistance from us and we advised him to appeal the severity of the sentence. He appealed the conviction to the District Court and, although the offence was proven, he was not convicted and the matter was dismissed pursuant to section 10 Crimes (Sentencing Procedure) Act upon him promising to the Court to be good for twelve (12) months (a good behaviour bond). This result was due to his usual good character and also because he had been fined for other related parts of the incident (such as riding the bike negligently!).

So he is still able to drive a car today but he has learnt his lesson and he won’t be drinking and riding ever again!

For all your criminal law matters get Natasha Konic involved.

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