Criminal Law Articles
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.
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
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:
- That the alleged victim was under 14 years of age; or
- 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 , 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.
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.
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.
The debate over how to deal with cannabis use is back in the headlines again, courtesy of the ACT Government. In September of 2019 the ACT Government passed laws decriminalising the possession of small amounts of cannabis and cultivation of small numbers of cannabis plants. This approach to the problem of cannabis use has generated a great deal of controversy and polarised community views. However, it is by no means new. A not dissimilar policy has been operating in New South Wales for the past 19 years. It’s called the Cannabis Cautioning Scheme. In deciding on the merits and demerits of the new ACT Laws, it is instructive to look at the New South Wales experience. So, what is the Cannabis Cautioning Scheme and how has it performed?
How does the Scheme Work?
The New South Wales Cannabis Cautioning Scheme allows Police who catch offenders in possession of small amounts of cannabis (up to 15g) to give the offender a caution rather than charging them with a criminal offence and requiring them to front up to court.
An offender can get up to two (2) cannabis cautions in a lifetime. The first police caution comes with a notice which aims to educate the user about the ill effects of cannabis use. A second caution comes with a requirement for the offender to undergo a mandatory education session on the same topic.
Has it worked?
The short answer is – not really. As you would expect, the Scheme has saved the NSW Government substantial amounts of money. Diverting offenders from the court system saves time and money to both the Police Force and the court system. However, that is not really how success should be measured. Success depends on whether the Scheme has reduced rates of cannabis use. On that metric, the news is not very positive. There is no evidence at all that the Scheme has had any impact on rates of cannabis use in NSW so, as a public health measure, it has been a failure.
Lessons for the ACT
If the New South Wales experience is anything to go by, there is no reason to be optimistic about decriminalisation of cannabis in the ACT. If anything, the ACT Policy runs the danger of making the problem of cannabis use worse. This is because it applies to much larger amounts of cannabis than the New South Wales Scheme, allowing users to possess anything up to 50g. In addition, by “decriminalising” or, more accurately, legalising possession of up to 50g of cannabis, it sends a message to the community that use of relatively small amounts of cannabis is okay and potentially promotes further drug use. Ultimately, only time will tell how the bold experiment with legalisation will work out for the ACT.
The current penalty for using a mobile phone whilst driving a motor vehicle is $344 and five demerit points. But is this enough to deter drivers from using a mobile phone whilst on the road? The NSW Government is not convinced.
With the increase of fatalities on NSW roads over the last year, the NSW Government is on a mission to change the overwhelmingly high number of motorists using their mobile phones on the road.
In early 2019, a six-month trial was conducted in an effort to capture drivers using their phones illegally. During that trial, several high-tech mobile phone detecting cameras were installed in two locations across NSW, hidden from road users and operating on a 24-hour basis.
Unsuprisingly, more than 100,000 drivers were found to be using their mobile phone whilst operating their motor vehicle.
So what is the answer?
Recently, the NSW Government introduced the permanent installation of high-tech mobile phone detecting cameras across NSW. As part of the investment, the government will spend approximately $88 million dollars on the installation of cameras, around 45 locations across the state. These cameras will operate 24 hours a day and will not have any warning signs to alert drivers as they approach.
But how will they operate?
According to the new legislation, cameras will take a photograph if an object is held by the driver of a motor vehicle and if such an object “is presumed to be a mobile phone… either held by, or resting on, any part of the driver’s body”.
The cameras will use their artificial intelligence to snap a photograph of a vehicle, in circumstances where it is presumed the driver is using a mobile phone whilst operating a car.
How accurate will the cameras really be?
The installation of mobile phone detecting cameras appears pivotal in combatting the high statistics of illegal mobile phone use in NSW, however, doubt has risen over the accuracy of the new high tech device.
Concerns have been raised that drivers may cop fines for simply eating food behind the wheel. As Mr Michal Mantaj (Trial Advocate) says, “there will be many drivers who will be doing nothing more than maybe holding a chocolate bar”.
The NSW Government has ensured that all photographs captured by the device will be reviewed by a person, who will ultimately determine whether or not, in fact, that person is holding a mobile phone device.
The cameras are expected to be in full-force by December 2019.
As you’re aware, pill testing has been at the forefront of the media over the last few weeks. It comes in the wake of a number of young people dying at festivals from alleged drug overdoses.
There has been public outcry, asking the NSW Premier, Gladys Berejiklian, to consider pill testing at NSW festivals, and punters have been told a resounding ‘no’.
Despite evidence to the contrary, the successful implementation of pill testing at Canberra’s Groovin’ the Moo festival in 2018, the NSW Government is not even remotely convinced.
There is clearly an ongoing and increasing issue of young people consuming illicit drugs and substances at festivals, if pill testing is not the answer, then what other options should we be looking at?
Some groups have called for the legalisation of all illicit substances.
Why? They say it will enable pharmaceutical companies to produce and manufacture the substances, enabling them to regulate the amount of purity of various substances and ensure there are no unknown, additional poisonous substances. This would also likely result in a considerable decrease in drug-related crime, such as manufacture and supply.
Another argument is that through prescription by General Practitioners amounts of consumption can be heavily regulated and people seeking those prescriptions can also be educated about the harmful effects of the substance.
Harsher sentencing for drug-related crime
On the other hand, there are also calls for harsher punishment and mandatory minimum sentencing. With many people believing that increasing the punitive effects of drug taking and supplying will act as a deterrent.
However, what many do not realise is that sentencing for many drug offences carries some of the most serious penalties in Australia’s legal system. For example, the offence of drug trafficking carries a life sentence (25 years) – equivalent to that of murder.
If the NSW Government won’t test pills – what else should they be testing to stop drug related deaths?
On 25 January 2019, the NSW Government implemented legislation enabling police officers to issue on the spot fines for drug possession offences.
What does this mean?
Police officers will have the discretion and power to issue a $400 fine to offenders found with illicit drugs in their possession.
They will not be required to attend court to have the matter finalised. Unless, they do not pay the fine or elect to have the matter finalised in court.
It also means that a criminal conviction will NOT be recorded. Again, as long as you pay the fine and do not elect to have the matter finalised in court.
Will everyone found in possession of drugs receive an on the spot fine?
No. Police officers have discretionary powers in deciding whether to issue an on the spot fine, or a traditional Court Attendance Notice.
What does the legislation say?
Under Schedule 4 of the Criminal Procedure Regulation 2017 (NSW) a penalty notice may be issued:
If prohibited drug is other than cannabis leaf and:
In the case of 3,4-Methylenedioxymethylamphetamine [MDMA]:
In capsule form – does not exceed a small quantity, and
In any other form – is less than a traffickable quantity, or
In any other case [any other prohibited drug] – does not exceed a small quantity.
Currently, under section 10 of the Drug Misuse and Trafficking Act 1985, the offence of possession of prohibited drugs carries a maximum penalty of 2 years imprisonment.
What’s the aim?
It has been labelled a ‘harm minimisation’ technique by the NSW Government – aiming to reduce the consumption of illicit drugs at festivals, whilst also trying to make them safer.
Whilst the NSW premier, Gladys Berejiklian, does not believe pill testing is the answer, this new legislation does indicate that the NSW Government is looking at other methods of harm minimisation in the wake of a number of deaths at music festivals in the state.
Q: WHO IS RESPONSIBLE IN THE HEAVY VEHICLE TRANSPORT SUPPLY CHAIN?
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
-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
In the recent decision of Noufl v Director of Public Prosecutions (NSW)[i] the Supreme Court ruled it did not have the jurisdiction to hear a bail application while an appeal was pending in the Court of Criminal Appeal.
The decision was an appeal against conviction, with the appellant applying for bail whilst the matter was heard for appeal.
How did this happen?
In a novel argument by the Director of Public Prosecutions (DPP), it was submitted that a single judge of the Supreme Court did not have jurisdiction to hear a bail application. It was submitted that this was an ‘unintended consequence’ of the repeal of the Bail Act 1978 and the introduction of the Bail Act 2013. Namely, that section 28 of the Bail Act 1978, the section responsible for granting Supreme Court jurisdiction, was not transferred into the Bail Act 2013.
Judge Hamill concluded:
[T]he Supreme Court is no longer empowered to hear a bail application while an appeal is pending in the Court of Criminal Appeal unless:
- The proceedings for the offence were dealt with in the Supreme Court and the applicant is yet to make their first appearance before the Court of Criminal Appeal (s 62); or
- A release application has been refused by another court, police or authorised officer (s 66).
This decision is in conflict with the general understanding of the powers conferred upon a single judge of the Supreme Court and, as such, potentially presents a very significant decision.
What are the implications for practitioners and their clients?
If you propose to seek bail pending an appeal against conviction or sentence to the Court of Criminal Appeal you should first make a release application to the District Court, unless the proceedings were conducted in the Supreme Court.
Was this an intention of the Bail Act 2013 amendments?
Hamil J provided commentary as to what the future may hold for the Bail Act 2013. He stated that if this was an unintended consequence of the amendments, that the Act should be amended to reflect the original content of s 28 of the Bail Act 1978.
He also commented that if the revocation of Supreme Court powers was intended by legislature then the Act should more clearly reflect this.
What does it mean for other courts?
It is now a concern, as mentioned by Hamil J, that an even greater number of bail applications will come before the Court of Criminal Appeal. He also commented that the Court of Criminal Appeal is already met with a number of bail applications, of which, judges have previously voiced their concern: Beech-Jones J in Director of Public Prosecutions (NSW) v Tony Mawad  NSWCCA 227.
[i]  NSWSC 1238.
The short answer is: generally, yes, but it depends on the circumstances of the case.
In the eyes of the law, inciting a person to commit an offence that, if committed would be of a criminal nature, is sufficient regardless of whether the person carries out the act relating to the incitement.
However, the courts have determined that it will consider the circumstances surrounding the words or actions used to ‘incite’ a person on a case by case basis when determining whether it amounts to incitement.
The dictionary defines incitement as “an act or urging on or spurring on or rousing to action or instigating…”
The court defines incitement similarly, as “to rouse; to stimulate; to urge or spur on; to stir up; to animate” (Young v Cassells).
In R v Chonka, a case about whether someone had incited an act of indecency, the counsel for the accused made an important distinction in determining whether a person was guilty of an incitement offence: “you must… draw a distinction between simply talking about something and encouraging someone else to go and do it.”
Counsel was referring to ‘dirty phone calls’ and argued that unless there was a suggestion in the phone calls to actually do something and that something was an act of indecency, then it cannot be an incitement.
In this case, the actions of the accused were found to amount to incitement, however, it was an important distinction that was made by the accused’s counsel.
To summarise, the courts view when it comes to incitement is that it does not matter if the person who was incited actually committed the offence. Instead, when considered in the circumstances, the act that was incited would have amounted to a criminal act if had been committed.
Background – Case Study – Client John
Note: Psyuedonyms for all names
- Initially, John was charged in relation to two complainants – Mary and Jane.
- At the time of the alleged offences, Mary was about 16 years and some months and Jane about 15 years and 9 months; and John was about 6 months younger than Mary and 9 months younger than Jane.
- John, Mary and Jane all attended the same high school and were in the same year/grade.
- Initially, John was charged as follows:
2 counts of sexual assault under s61I Crimes Act (without consent) – maximum period of imprisonment – 14 years on indictment;
2 counts of aggravated sexual assault under s.61J Crimes Act (without consent and complainant under 16) – maximum period of imprisonment – 20 years on indictment;
In the alternative to the above, 2 counts of sexual intercourse with Jane who was under 16years under ss.66C(3) Crimes Act – maximum period of imprisonment – 10 years on indictment; and
4 counts of aggravated (because complainant under 16) indecent assault with Jane who was under 16 years under s.61M(2) Crimes Act – maximum period of imprisonment – 10 years on indictment.
- Upon conviction for ANY of these offences, John would be required to be listed on the Child Protection Register.
- The police Facts in relation to Jane alleged that she had a learning disability (cognitive impairment) and sought to infer, without directly saying it, that John took advantage of that impairment to have “sex” with Jane.
- John believed that Jane was “slow” in some subjects but was not aware that she had any learning disability and socially, John believed that Jane was “on par” with other students; and there was no evidence to contradict John.
- It is important to note there are other provisions in the Crimes Act (for example – s.66F) under which John could have been charged if the Crown alleged that he took advantage of her disability BUT that direct allegation was not made.
- The ODPP sought a joint hearing with both complainants and sought to rely on “tendency evidence”.
- Detailed submissions were made on behalf of John (“YP” – Young Person) in the Children’s Court opposing the tendency application and the joint hearing and the defence succeeded in relation to both.
- Following Representations to the ODPP – outlining many encounters of consensual sex between Mary and John, including when Mary was under 16 years of age, the ODPP withdrew all charges in relation to Mary.
- Notwithstanding detailed Representations to the ODPP in relation to Jane, again outlining many consensual encounters with Jane and that the Facts did not disclose any sexual assault; and the submitted, perverse result, in the event that the “under age” charges proceeded, the ODPP refused to withdraw any of the counts.
- The defence gave serious consideration to filing a Motion for a permanent stay of proceedings, potentially arguing that for the charges to proceed was perverse, however, concluded that the Motion would fail because as a matter of law, perverse or not, the offences relating to “under age sex” was committed.
- The charges concerning Jane were given a hearing date and the working day before, the ODPP put a proposal – offering to withdraw the sexual assault counts on the basis that the YP pleaded guilty to some of the “under age sex” counts, which proposal, begrudgingly, the YP accepted – because the fact of the matter was that, according to law, BOTH the YP and Jane committed the same offence(s), namely, engaging in “sex” with one another, when the other was under 16 years of age; that the ODPP sought only to prosecute the YP was [incredibly, in the circumstances] within prosecutorial discretion. It should be further noted that in relation to at least one of the counts, the YP was 14 years of age!
A Perverse Result?
- In my view, in a word – yes!
- There was a lengthy sentence hearing and various witnesses including a school teacher were called to give evidence, and contrary to earlier comments of the magistrate, and notwithstanding the ODPP lawyer pressed for a conviction; fortunately, the YP avoided a conviction and the matter was finalised so that the YP was not required to be placed on the Child Protection Register (S. s33 (1) (a) Children (Criminal Proceedings) Act 1987). The magistrate referred to the YP’s case on sentence, as “overwhelming”.
- Victoria, Tasmania, Western Australia and the Australian Capital Territory all have what is referred to as “similar age” defence which allows consent to be used as a defence when the victim and the accused are certain ages: see s45 of the Crimes Act 1958 (Vic); s124 of the Criminal Code Act 1924 (Tas); s55 of the Crimes Act 1900 (ACT); s321 of the Criminal Code Compilation Act 1913 (WA).
- 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  ZACC 35 (3 October 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).
NSW Bureau of Crime Statistics – 2010 – 2015
- The NSW Bureau of Crime Statistics and Research (“BOCSAR”: Reference: sr15-13587) records between July 2010 and June 2015, that of 707 s66C(3) charges (not 707 offenders) only two charges related to an accused person who was under 16 years of age, namely 0.28%. The BOCSAR also reveals that, of 163 offenders (in respect of s66C(3)), only 1 offender (0.61%) was under 16 years of age.
- The cumulative effect of these statistics strongly evidence that the ODPP decision to proceed to prosecute the YP in respect of the s66C(3) and 61M(2) charges is a rarity, and in my view, truly regrettable.
- It is particularly instructive to consider the second reading speeches in parliament when s.66C was enacted. The second reading speeches, tendered to the court on sentence for the YP, make no mention whatsoever, of any intention for s66C(3) to “capture” consensual sex between two 15 year olds. The references in the second reading speeches to offenders is exclusively, to adult offenders. It is therefore not surprising that the BOCSAR statistics reflect that the prosecution of the YP was a rarity.
- It is reasonable to accept it is very likely that police/prosecutors would be aware of a substantial number of other allegations of young persons under the age of 16 years having had sex with someone also under 16 years of age. If that is a reasonable proposition, then, the prosecution of the YP demonstrates an instance of a very unusual use of prosecutorial discretion. In the circumstances, the prosecution of the YP was in my view, perverse.
Although, the court cannot interfere with prosecutorial discretion to prosecute, the court’s acceptance of the rarity of a prosecution where the YP is younger than or at about the same age as the complainant and where the “sex” was consensual, is a relevant matter on sentence.
In New South Wales the law as to self-defence is essentially contained in Section 418 of the Crimes Act 1900 and there are various case authorities that interpret that section.
Essentially, there are two (2) legs to making out a defence of self-defence and they are:
- The person who asserts he or she is acting in self-defence has to believe that the action taken was necessary to defend himself or herself or another person; and
- The conduct or actions of the person have to have been reasonably proportionate to the perceived threat.
As to the first question, that is, whether there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself, that question is determined from a completely subjective point of view, having regard to all the personal characteristics of the accused at the time he or she carried out the conduct. This would include the accused being affected by alcohol and/or drugs or having a mental health issue which may cause him or her to have a “short fuse”.
As to the second question, it is determined entirely by an objective assessment of the proportionality of the accused’s response to the situation he or she believed he or she faced. Put another way, the prosecution would have to prove beyond reasonable doubt, that the actions taken by the accused, in purported self-defence, were not reasonable in the circumstances.
Take for example, an intruder into your home. You startle the intruder and he immediately flees running out into the backyard and about to climb a fence. You fire a gun and shoot the intruder. Clearly, that would not be self-defence because, even assuming you get over the first leg, that is, that you believed it was necessary for you to fire the gun; you would certainly fail in respect of the more difficult second leg (that the firing of the gun was proportionate to the threat) and more particularly, the prosecution would be able to prove that your actions in firing the gun were not reasonable.
Having said that, the case law is also clear that pre-emptory actions can still amount to self-defence and you don’t have to wait for someone to hit you if your perception is that that is what was going to happen. Put another way, if you are approached aggressively in a bar and the other person has his fists raised and clenched and it appeared to you that he was about to strike you, you would be entitled to take [reasonable] action to prevent him striking you. That action may include you striking him first or taking other “defensive” action.
The law of self-defence can sometimes be quite complex and it is important to get legal advice early.
It is time that we, as a society, stopped treating on-field violence by sport stars as being immune from criminal prosecution and held athletes accountable for their actions in the same way as the rest of us.
This weekend’s round of NRL saw yet another ugly brawl between players during the Sea Eagles v Storm match which left Dylan Walker with a broken eye socket after he was attacked and punched by Curtiss Scott. Despite the fact that the whole spectacle was clearly captured by television cameras, no criminal charges were laid against Scott or any other of the participants in the brawl.
This whole incident, and others like it, reveal a strange and disturbing aspect of our footy culture. There seems to be a tacit, unspoken rule that the football field is a place where normal Australian laws do not apply. What occurred at that game was unquestionably a criminal assault, and a serious one at that. If the very same conduct happened in any other context, say in a home or at a pub, Scott would have found himself facing a criminal court on assault charges and would be at serious risk of a prison sentence. But, because he perpetrated his crime on a football field, the only consequence he faces is a suspension.
This is completely unjust. As a criminal defence lawyer, I represent people charged with acts of violence on a daily basis. In many cases, the assault is much less serious that Scott’s, but the consequences are much more severe than simply being suspended from the offender’s job for a few weeks. They get a criminal record which follows them around for at least the next ten years, effecting job opportunities and international travel- and some go to gaol.
There is a clear double standard in our society, with one set of rules for on-field behaviour of footballers and another for everyone else. This double standard is an affront to one of the most fundamental principles of law called “the rule of law”.
The rule of law is a simple yet powerful idea that the law should apply equally to all members of society irrespective of their status, wealth or power. Its origins can be traced to at least the Magna Carter in 1215. In the Magna Carter the rule of law meant that the King of England agreed to be bound by the law in the same way as all other Englishmen. Today, over 800 years later, it seems that we have developed a new type of sporting royalty who’s on-field antics are above the law. It is high time that we revisit this part of our sporting culture and demand that our sporting heroes be made accountable for their on-field behaviour under the same law that applies to everyone else.
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!
The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 No 53 will make substantial amendments to the Crimes (Sentencing Procedure) Act 1999 [“the Act”] and is scheduled to be proclaimed in about May 2018.
- Abolition of Good Behaviour Bonds (s9) AND replacement with Conditional Release Orders (“CRO’s”) OR Community Corrections Orders (“CCO’s”) and consequences of breach;
- Abolition of non-conviction bonds AND replacement with Conditional Release Orders (“CRO’s”) and consequences of breach.
- Introduction of Sentencing Procedure for Conditional Release Orders [new Part 8]
- Introduction of Sentencing Procedures for Community Correction Orders [new part 7];
- Abolition of Suspended sentences (s.12) and Home Detention Orders AND replacement with revised Intensive Correction Orders (“ICO’s);
- Introduction of Sentencing Procedures for Intensive Corrections Orders [new Part 5] and consequences of breach;
- New provisions for Assessment Reports – for ICO’s [new Division 4B];
- New sentencing regime for Domestic Violence Offences [new s.4A]; and
- Consequences of the new legislation to existing Sentencing Orders.
Dot point effect of the Abolition of s.9 Bonds and non-conviction Bonds
- The former good behaviour bonds are abolished.
- A CRO may be with OR without conviction.
- If the court does not “convict” then the offender will be discharged under s.10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999.
- Otherwise, either a CRO will be made under s.9 or a CCO under s.8.
- The court cannot impose both a fine and a conditional release order in respect of the same offence.
- A conditional release order under s.9 [with conviction] may be made as an alternative to the imposition of a fine.
- The maximum term of a CRO is 2 years.
- There are standard conditions for a CRO’s: s.98; however, additional conditions may be imposed on application by a community corrections officer or a juvenile justice officer OR the offender [however, the court may refuse to consider an application by an offender if it is satisfied that it is without merit – s.100 (1)]; and may vary or revoke any of the additional conditions: ss.99-99A; the additional conditions must not include home detention, electronic monitoring or a curfew for more than 12 hours a day or a community service work condition: s.99 (3).
- The court is to take into account the same factors in determining whether to proceed by way of a conviction [under s.9] or without conviction [under s.10 (1) (b)].
- It would appear that the conditional release order may be conditional on the same sort of terms previously imposed by courts under the former s.9.
- The footnote to s.97 states that breaches of CRO’s are to be dealt with under s.108 C of the Crimes (Administration of Sentences) Act 1999 [yet to be proclaimed] [“the Administration Act’], the effect of which is that an offender may be “called up” in much the same way as an offender would now be called up for breaching a s.9 bond.
- The effect of revocation of a CRO [s.108 D] is that the offender may be sentenced or re-sentenced as the case may be and the Crimes (Sentencing Procedure) Act 1999 applies to that sentencing process; and the offender has the same rights of appeal as if he had been so sentenced when found guilty.
- The maximum term of a CCO is 3 years: s.85 (2).
- There are standard conditions for a CCO: s. 88; however, additional conditions may be imposed on application by a community corrections officer or a juvenile justice officer OR the offender [however, the court may refuse to consider an application by an offender if it is satisfied that it is without merit]; and the court may vary or revoke any of the additional conditions: ss.89-90; the additional conditions must not include home detention, electronic monitoring or a curfew for more than 12 hours a day: s.89 (3)
- Breaches of CCO’s are to be dealt with under s.107C of the Crimes (Administration of Sentences) Act 1999 [yet to be proclaimed], the effect of which is that an offender may be “called up” in much the same way as an offender would now be called up for breaching a s.9 bond.
- The effect of revocation of a CCO [s.107 C Administration Act] is that the offender may be sentenced or re-sentenced as the case may be and the Crimes (Sentencing Procedure) Act 1999 applies to that sentencing process; and the offender has the same rights of appeal as if he had been so sentenced when found guilty: s. 107 D Administration Act.
Abolition of s.12 Bonds (suspended sentences) and Replacement with Intensive Corrections Orders [ICO’S]
Procedure and effect of Breach of ICO
If the Commissioner or a community corrections officer is satisfied that an offender has failed to comply with any of his/her obligations under the ICO, the officer may do any of the following:
- record the breach and take no further action;
- give an informal warning to the offender;
- give, or arrange to be given to, the offender a formal warning that further breaches will result in referral to the Parole Authority;
- give a reasonable direction to the offender relating to the kind of behaviour by the offender that caused the breach;
- impose a curfew on the offender of up to 12 hours in any 24-hour period.
[s 163 (2) of the Administration Act]
Alternatively, or in addition, to taking any such action, the Commissioner or a community corrections officer may decide to refer the breach to the Parole Authority because of the serious nature of the breach and may also make a recommendation as to the action that the Parole Authority may take in respect of the offender: s.163 (3) of the Administration Act.
Assessment Reports [relevant to ICO’s and CCO’s]
Division 4B makes new provisions for Assessment Reports and that Division is reproduced for convenience:
New Sentencing Regime for Domestic Violence Offences
Part 2, s.4 of the Act introduces a new regime for domestic violence offenders:
Part 2 – Penalties that may be imposed
Division 1 – General
4 Penalties generally
4A Domestic violence offenders–requirement for full-time detention or supervision
- If a court finds a person guilty of a domestic violence offence, the court must impose on the person either:
(a) a sentence of full-time detention, or
(b) a supervised order.
- However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view.
- For the purposes of this section, a “supervised order” is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition.
4B Domestic violence offenders–protection and safety of victims
1. An intensive correction order must not be made in respect of:
(a) a sentence of imprisonment for a domestic violence offence, or
(b) an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence,
unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason).
2. If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence.
3. Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence.
Please get in touch with us to learn more about criminal law and how the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 may affect you.
A Pre-Sentence Report (“PSR”) is a report about you prepared for the court by the community offenders service. It is used by the Court to help decide what sentence to impose on you. It will also let the court know whether you are suitable to be placed on a Community Service Order.
A Community Service Order is an alternative to a term of imprisonment and therefore whether you are assessed as suitable can have significant implications.
Besides ascertaining whether you are medically capable and willing, the PSR will also provide the court with valuable information about your personal circumstances and attitude towards the offence.
This can help you stand out in circumstances where the Magistrate has probably seen the same offence many times before and maybe several times on the same day that you are being sentenced.
Although it may feel daunting at first, you should consider the interview with the Community Corrections worker as an opportunity to help your case.
The Community Corrections worker will obviously ask you questions but it is up to you to give thoughtful answers. Where appropriate volunteer information if you are not asked about something important.
It is not a time to air frustrations you may feel about the court process, the Police, and victims or witnesses. The interview is less about the offence itself and more about you. Even questions about the offence are really aimed at ascertaining your attitude towards it.
The interview can be relatively short, so you should spend that valuable time talking about the most relevant and important things.
The sort of things that may appear in the PSR which will not help you get the best result includes;
- Minimised his/her role in the offending;
- Apportioned blame on the victim;
- Disputed the Facts;
- Did not appear to have insight.
A Community Service Order can add additional pressure to your other commitments such as work or family. That’s okay, you should be upfront about practical issues but don’t be misunderstood as unwilling.
Finally, Community Corrections workers are people too. So, try make their job as easy as possible by being on time, looking presentable, being efficient with the time of your responses, and being courteous and respectful.
Making the most of a PSR interview is one way that you can be proactive and take a process that can sometimes make you feel powerless into your own hands.
Opinion | What’s behind area’s rising crime statistics
The NSW Bureau of Crime Statistics and Research disclosed last week that crime across most of NSW had remained stable or fallen over the past two years. The bad news, particularly for Newcastle, is that most major crimes are increasing in the Newcastle and Lake Macquarie Statistical Area.
This region is showing significant increases in four of the 17 major offences: motor vehicle theft (up 15.9 per cent), steal from motor vehicle (up 10.1 per cent), steal from retail store (up 17.8 per cent), and malicious damage to property (up 8.2 per cent).
Newcastle itself, however, has significant increases in five major offences including sexual assault (up 13.1 per cent) and indecent assault (up 26.9 per cent).
Why has there been such increases in [reported] sex crimes?
It should be emphasised that there has been an increase in the reporting of such crimes, not necessarily that more crimes of this nature have been committed. No one would know whether or not there has been an actual rise in this type of offending, or whether victims are now more likely to make a complaint to police. There are many and varying reasons as to the increases, but few would argue with the following:
- The work of the Child Abuse Royal Commission since it started in 2013 and particularly, extensive media coverage of it;
- Extensive media coverage of sex crimes in general and domestic violence;
- Gradual but significant changes to laws governing the manner in which sex trials are run and dealing with the non-admissibility of evidence that used to be taken for granted and would be put before the jury.
Although the Child Abuse Royal Commission has particularly focused on systemic child abuse, there could not be any doubt that victims of sexual abuse, hearing the heart-breaking stories of survivors and the exposure of sex crimes, in many cases committed many decades ago, would have encouraged victims to find the strength to make a complaint to police.
The media coverage of the Royal Commission, appropriately covered with sympathy and empathy for the survivors and outrage against the perpetrators and institutions that allowed abuse, would also have gone a long way towards giving victims the strength to come forward.
One ought not underestimate the link between domestic violence (with all its variables) and its continued calling out in the media and social media and victims of sex crimes being fortified with the belief that the community is behind them and that “enough is enough”.
Lastly, it is one thing for a victim to make a complaint to police and entirely another for them to tell police and prosecutors that she or he is prepared to stare down their attacker, to see him (usually a him) charged and be prepared to give evidence against him. Significant changes to laws over recent years and media coverage of them, would have emboldened victims to not only report the crime but to see the arduous proceedings through to the end. These changes include:
- Significant difficulties for the defence to access confidential counselling notes of the victim, let alone getting any part of the notes admitted into evidence;
- Significant difficulties for the defence to cross examine the victim about his or her sexual history, even if relevant to the alleged offence;
- The initial complaint to police by a child victim is recorded on a DVD by police and generally, that DVD becomes the child’s evidence as to the alleged offence;
- The child complainant is assisted by “the Children’s Champion” in readiness for cross examination;
- A report is prepared on behalf of the child complainant informing lawyers [and judges] of terms and expressions to avoid, having regard to the child’s level of maturity and understanding;
- The cross examination of the child complainant is recorded before the jury is empaneled and later played back to the jury.
Newcastle Herald – Original Article: http://www.theherald.com.au/story/4920761/whats-behind-areas-rising-crime-statistics/
Recent changes to parole and shoot to kill laws and regulations introduced through amendments to terrorism legislation in New South Wales present some very real concerns to our priceless civil liberties under the repeated political populace mantra that this is necessary to make us “safer from terrorists that would see us harm”.
This bill was rushed through parliament without proper scrutiny and is another step in the continual fettering of our civil liberties. It raises a number of significant concerns that will likely impact on our lives and have regrettable unintended consequences.
Changes to parole
Under the new regulations, parole will not likely be granted to a person who the police suspect has links to or is associated with terrorists or terrorism, potentially, even in an indirect way. It is absolutely crucial that we understand what the words “associated” or “linked” mean. It would appear that suspicion and possibly speculation will suffice; that is “guilt by association”. Who is to determine whether there is sufficient evidence for such association or link: is it the police or government? What is the standard of proof that will be required before an offender loses his or her right to parole – to ever be released from prison?
To illustrate this point let’s consider this example; Bill, an Australian with Anglo Saxon lineage, grew up with Mahmoud, whose background is Lebanese – Muslim, and they remained friends. Unbeknown to Bill, Mahmoud had covert interests in ISIS and/or terrorist activity. Bill is then gaoled for stealing a car and after spending three years in prison is due for parole. Under the new legislation, the police could present evidence of Bill’s “association” and/or “links” to Mahmoud and the presumption would be against Bill getting parole – yet – Bill has no direct link or interest in terrorist activity or ISIS and does not support or condone their activities in any way.
Fear of such an occurrence could have the effect of isolating, even more so, persons such as Mahmoud.
Increased police powers – shoot to kill
The Coroner in the Lindt Siege Inquest made it clear that police already had sufficient power to shoot and kill Monis. This additional power – to shoot to kill even where there is no evidence that the hostages have actually been threatened – is unnecessary and problematic. The legislation does not allow for independent oversight of the police commissioner’s declaration of an event that is or is likely to be a ‘terrorist act’. Why doesn’t such life ending power with unintended potential consequences have an adequate check and balance, such as with a request for a search warrant where a Justice or Justices’ sign off on the “declaration”? This could be done within a couple of hours and sieges are notorious for lasting many hours.
Likely Unintended Consequence
Any siege is likely to be treated as a terrorist act and increases the potential for hostages to be killed or seriously injured even where there is no direct evidence that the hostages were threatened or in actual danger at the hands of the hostage taker.
These changes go a long way to achieving a perverse result; giving the terrorists’ at least part of what they seek to achieve; to cause us to react out of fear and to change the way we live. Whenever we make changes to our laws that take away or whittle down our civil liberties – such as granting (even) greater powers to our police force and intelligence agencies – these changes have the real potential to cause innocent people, particularly, if they are of different ethnicities or religions, to be locked up indefinitely without there being sufficient evidence for them to be charged or brought before a court for any (other) offence. Through these laws we then achieve an unintended consequence; that, in a perverse way, at least on one level, the terrorists’ achieve their goal; that is, to affect the way we live; to limit our civil rights and freedoms that we hold so dear and for which our forefathers have fought wars and lost their lives.
For further information, contact Manny Conditsis today.
When Police are investigating an allegation that you have committed a criminal offence, they will usually invite you to participate in an interview with them about the allegations. Deciding whether or not to accept this invitation can be one of the most difficult and important decisions you will need to make. Here are some things you should know before you make that decision:
Things you should know
Right to silence
Except for some specific circumstances, generally, every person who is suspected of a crime has the right to silence. This means that you cannot be forced to be interviewed by police. In fact, the law provides that if you choose to remain silent, your silence cannot be used against you in court.
Practical Hint: Your right to silence includes the right not to have your refusal to participate in an interview recorded. Sometimes, when you tell police that you do not want to participate in an interview, some will suggest to you that it is still a requirement that your refusal to participate in an interview should be recorded on video and audio. This is incorrect and, if you have make a decision not to be interviewed by police, you should insist that you do not want your refusal to be recorded in this way. You may however, agree to sign a police notebook saying you don’t want to be interviewed. Too often, after the recording equipment has been turned on, despite knowing that you have said that you don’t want to be interviewed, police nonetheless start asking questions about the allegations and, under the pressure of the moment, you might start to answer the questions even though that was not your intention.
No single right answer
Many people, including some lawyers, will tell you that you should never “talk to the cops”. While this is often wise advice, that is not always the case. Sometimes, participating in an interview with police can be of great benefit to your case. Get a lawyer – a really good one!
There is no easy way to decide whether or not it is a good idea to be interviewed by police. This article explores some of the factors that might influence that decision. However, there are many other things to consider and they will vary from case to case. At the end of the day, there is no substitute for getting advice from an experienced and highly skilled criminal defence lawyer who will be able to weigh up all of the relevant considerations and help you make this crucial decision. That said, there are some common factors which need to be considered in most cases.
What happens in a police interview
Usually, when Police interview a suspect they will do it in a specialised room in a police station called an ERISP room. ERISP stands for Electronic Record of Interview with Suspected Person. An ERISP room is a small room, usually with no windows, which is fitted with a desk and recording equipment. The entire interview is normally recorded on both an audio and a video disc so that there can be no dispute about what was said.
There are usually two police officers who conduct the interview. One who does most of the talking and another one who will initially listen and take notes and might later ask additional questions if he or she thinks the first police officer missed something.
You have the right to have either a Lawyer or a support person with you during the interview.
The form of the interview is usually question and answer. That is, police will ask you questions about the allegations and ask you to respond.
It is important to understand that, before police interview you, they would have already carried out investigations and likely, have a great deal of knowledge about the allegations and surrounding circumstances. Often, police will already know many of the answers to the questions they are asking you and the purpose of asking is not to find out what happened but to see whether or not you will give a truthful answer.
Depending on the personality of the police officers who are conducting the interview and the nature of the case, the questions and the comments by police can get accusatorial, heated, and sometimes even downright rude or offensive. If this happens, it can rattle you and prevent you from thinking straight.
At the end of the interview, the interviewing police will leave the room and another police officer who is not involved in your matter will come into the room and ask you a series of standard questions designed to have you confirm that the interview was conducted in a fair manner. If you feel that the investigating police have pressured you in any way (whether before the interview or during it) or you have been mistreated in any way, it is very important to tell this police officer.
Things you should think about
The kind of person you are can have a big impact on your decision of whether to agree to be interviewed by police. Some of the things you should consider are:
- How do you cope with pressure?
- How articulate are you?
- How good is your understanding of English?
- If the interview is being conducted through an interpreter, how good is the interpreter? (Finding this out can be tricky but a good lawyer might be able to suggest ways to do this)
- How even tempered are you – might you get angry or lose your cool in the interview?
How much do you know about the allegations?
Sometimes, you might have a very good idea about what is being alleged against you, at other times you might have no idea at all. The more you know ahead of the interview the better your chances of being able to answer questions persuasively and accurately.
Do you have something to hide?
Even if you are innocent, there may still be things you might be tempted to hide from police. If you think there is any chance that police might ask you about something which you might be tempted to lie about, it is probably not a good idea to be interviewed.
As a hypothetical example, assume that your partner thinks that you have cheated on them and, as revenge, reports you to police and makes false allegations that you have been violent towards her/him. You have never raised a hand against your partner however, their suspicions of your infidelity are true. Unless you are prepared to fess up to your infidelity to police, you should not agree to be interviewed. If the question of your infidelity comes up in the interview and you lie about it and police can prove you lied, your credit will be damaged and this might lose you the whole case even though you might be innocent of the actual charge against you. This is not to mention the fact that lying to police creates an offence in itself.
Is this the right time to be interviewed?
Sometimes, you get to choose a mutually convenient date and time for your interview with police. Other times, police arrest you without notice, take you back to the police station and then ask you whether or not you want to participate in an interview. It might be completely the wrong time for you to have your wits about you. For example, you might be tired, you might be affected by alcohol or you might be still distraught about something that has just happened. If you think that for any reason you are not in the right state of mind to do well in the interview it is best to decline any invitation to be interviewed.
Some of the advantages of giving an interview to police are:
- Avoiding a charge – sometimes, giving an interview to police can help to avoid being charged with a criminal offence in the first place. For example, if you can tell police during the interview that there is compelling evidence to show that you are innocent and tell them where or how to get that evidence, police might not charge you in the first place (assuming that evidence checks out). This can avoid a great deal of stress, anxiety and cost.
However, you should not place too much weight on this possibility. In practice, it is rare that police would not charge a person because of what they have said in an interview. Remember, if you have been invited to an interview with police it is because police already have evidence against you. It is very difficult to persuade police not to charge you. It is definitely not as simple as telling police that you are innocent or trying to explain to them why the person who has made allegations against you might have made it up. Experience shows that police will usually charge you after the interview unless what you tell them in the interview is extremely compelling as to your innocence and is able to be verified independently of you.
For example, if police suspect that you have carried out a robbery at 4pm on the 1st January and you are able to tell them that at the time of the robbery you were several hundred kilometres away on a holiday and that you were at a particular fast food restaurant that has cameras and police are able to retrieve footage from those cameras which confirm that you indeed were where you say you were, that might be a case where police would not charge you. However, without those cameras or other compelling evidence supporting your story, you would probably still be charged.
- Early denial – if you do find yourself having to defend the charge in Court, your interview with police will be played to the Court [including the jury] at your trial. If – and only if -you did well in the interview – that is, you denied the allegations against you in a way that is believable and reliable and you dealt well with any curve balls thrown at you by police – this can go a long way to persuading a judge and/or jury that you are in fact innocent.
Additionally, it is tactically wise to have the recording of your interview played to the Court early, which is what will happen if you participated in an ERISP.
Rest assured, an early and good ERISP can go a long way toward winning you the case.
- Preserving evidence of your innocence – sometimes during an interview with police, you may be able to point them in the direction of evidence that shows that you are innocent. Assuming that police are doing their job properly, they should then go out and get that evidence. This can be particularly important if the evidence of your innocence can only be obtained by police and might disappear unless it is secured quickly. One example is the CTTV footage at a fast food restaurant used in the example above. If police know about it, they can contact that restaurant and obtain a copy of that footage before it is overwritten or deleted and lost forever.
The flip side of what is said above under ‘The pros of doing an ERISP’ is that a bad interview, can just as easily lose you the case. For every pro, there are cons to being an interviewed by police. Some of the main ones are:
- Making admissions – if you participate in an interview with police some of the things you say may incriminate you. For example, you might admit having done something which police could not have otherwise proved against you. Another way you might incriminate yourself is by saying something which the police can prove was a lie.
- Making mistakes – even people who are innocent can look like they are guilty if they get tripped up and make a mistake under pressure. This can happen in many different ways. For example, your memory of the events about which police are asking might be hazy because they happened a long time ago or because you were affected by alcohol at the time. You might say something that you genuinely believe to be true but may later turn out to be wrong. Although, this might be about a detail which does not in and of itself prove that you are either guilty or innocent,, if it can be shown that what you said was not true, it can look like you have either deliberately lied because you know you are guilty or your memory of the events is unreliable and cannot be trusted.
- Looking guilty – sometimes, even innocent people can come across as looking guilty, especially when they are nervous. The nerves, anxiety and pressure of being under interrogation by police can make you sound and behave in a way which can later be interpreted by a judge or jury as a sign that you are guilty. This can go a long way to persuading a judge or jury that your protestations of innocence should be rejected.
There is a lot more to it
The decision whether or not to participate in an interview with police is very complex and there are many things to consider. The topics addressed above are only the tip of the iceberg. Given that the decision about being interviewed by police is a crucial decision which can make or break the whole case for you, we strongly advise that you speak to a highly qualified and experienced criminal lawyer before you make it.
Criminal law is a complex topic that will require expert advice from one of the best criminal law firms in NSW in order to secure your future.
Contact Michal Mantaj to find out more.
The Federal Government has recently announced that it intends to make new encryption laws to force tech companies to provide law enforcement authorities with assistance to intercept and decrypt communications. While little else is known concerning the details of these proposed laws, the language which the Prime Minister and the Attorney General have used to describe it is concerning.
Most people accept that there is a need for our laws to keep up with changes in technology and that the delicate balance between civil liberties and community safety must change in response to the circumstances which we face as a society. However, the proposed new encryption laws shift that balance too far towards authoritarian style, Big Brother surveillance by the state of its citizens.
Reading between the lines of what both the Prime Minister and the Attorney General said in their press conference, it appears that the new encryption laws will seek to force tech companies to help law enforcement authorities with intercepting and decrypting communications by building tools for that purpose. It is one thing to require companies to release information they already have to law enforcement authorities; it is quite another to force them to “assist” those authorities with decrypting that information.
To force tech companies (or for that matter any other non-Government entity) to build tools for law enforcement authorities to help them crack encoded messages would be an unprecedented incursion into the civil liberties of private individuals and companies. Effectively, it amounts to the Government co-opting the private sector to do its job for it.
If this is what the legislation will require, then it is disingenuous of the Government to claim that the new encryption laws will not involve any change in legal principle but will simply bring those principals into the online world. The truth of the matter is, existing obligations to cooperate with law enforcement authorities already apply as much to the online world as they do in the real world. The only reason the Government might need new legislation would be to impose new and fundamentally different obligations.
As if the civil libertarian concerns were not enough, there is also the obvious danger that any decryption tool built for law enforcement authorities could be leaked to criminal organisations which will then use it to wreak havoc on ordinary law-abiding citizens and organisations. We would do well to remember that the recent, devastating wannacry cyber-attacks-which crippled many computers around the world and caused an estimated four billion dollars’ worth of damage, originated with a leak from the NSA. We would be naïve to think that if these new powers are implemented the resulting decryption tools would only ever be used for legitimate law enforcement purposes.
Michal is a Law Society Accredited Specialist in Criminal Law. If you need help with a criminal matter, contact Michal today.
Do you have an unregistered firearm? Dispose of it without penalty as part of the Australian Government’s firearm’s amnesty
The Federal Attorney General’s Department has announced a National Firearms Amnesty aimed at reducing the number of unregistered firearms in our community, to run from 1 July to 30 September 2017.
The amnesty allows anyone with an unregistered firearm to either register, sell or dispose of it, including its accessories, without penalty or risk of prosecution.
In Australia, it is illegal to have an unregistered firearm. Outside of the amnesty period, anyone caught with an unregistered firearm could face a fine of up to $280,000, 14 years in jail, and a criminal record.
How to dispose of firearms
Amnesty participants do not need to provide personal details to surrender a firearm or firearm-related article for destruction – there is a no questions asked policy. There is also no cost involved with handing in firearms or related items for destruction.
Find your registered drop-off point by calling the Amnesty hotline on 1800 909 826 or searching for the closest point using your postcode via the Amnesty website.
For further information, contact us.
If you are a traffic offender the Magistrate or Judge may refer you to the program or you can book in directly. If you undertake to complete it, your court proceedings are typically adjourned by the Magistrate (at your request) until after you have finished the program. Completion involves attending and participating in the course, completing a workbook and providing personal comments. (If you have difficulty writing this can be accommodated). Attending the course costs about $130.
I have been involved in the program by way of presentations since about 1995, however it has been operating in NSW for much longer than that. I am involved in the PCYC program run over a number of evenings at Bateau Bay PCYC; this is an excellent program with various speakers including police and people injured or affected by motor vehicle incidents.
There is also a one day program known as ‘SAVE’ or save traffic offenders program run across NSW on Saturdays (which is sometimes easier to attend for those without transport and due to work commitments). The contact number to book into this save traffic course is 0408 910 025 or email: email@example.com
If the Court allows you to attend the traffic offenders intervention program then it will take your participation ‘into account’ when sentencing you; you should receive a more lenient penalty than if you did not attend the course. While attending the program does not automatically entitle you to a non-conviction (section 10 – with reference to the Crimes (Sentencing Procedure) Act) it certainly augurs well for a better outcome in your court proceedings than if you had not attended and could help to persuade a court not to convict and disqualify you.
The program ‘opens the eyes’ of offenders. Most participants say: ‘this program should be offered to all people gaining their driver’s licence for the first time’. In fact, it is often likened to ‘AA’ in that the participants seem to become champions of the cause despite any ‘court outcome’. There is almost a religious reaction to it in relation to the impact it has on participants.
I am involved with the ‘legal side’ of the traffic offenders course however the part of the program with greatest impact is the police and emergency services section. I have had clients physically faint in this section of the course. It shows the very real, possible outcome of a traffic offence, such as accidents, injuries, death.
Traffic law is complex and open to tricky interpretation and clever manipulation in order to avoid legal sanction. However, when it comes to the ‘crunch’, traffic law is highly legislated with the sole purpose of reducing deaths on the roads.
If you have the opportunity to attend the traffic offenders program, I suggest that you embrace that opportunity and share what you learn with your peers, work colleagues and family. Do not be ashamed, but be an advocate so that injuries and deaths on the road are reduced due to education and mindfulness executed in the practice of driving.
We can help
If you need help with a traffic offence, Conditsis Lawyers can provide you with advice on the best strategy for your case. Contact Conditsis Lawyers today.
If you’re charged with a drink driving offence, you need to take it seriously. Acting quickly to get advice from an expert traffic lawyer could mean the difference between receiving a fine, losing your licence or even a stint in jail.
Depending on your case, your lawyer may recommend using the two hour rule as part of your defence in court.
What is the two hour rule?
Under the law, the police can’t make you take a breath test (or have a blood sample taken) more than two hours after you last drove.
It’s widely accepted that your prescribed concentration of alcohol, or PCA, measured using a breath test can fluctuate; the results you get initially may be different to those returned in a test taken 30 minutes later. The two hour rule makes allowances for such variations in your PCA.
The reading you record within two hours of driving is accepted as being your reading when you were behind the wheel.
How the law is applied
The prosecution must prove (beyond a reasonable doubt), that the breath test or blood sample was taken within two hours of you driving. If you claim as part of your defence that it was taken more than two hours after, they must provide evidence to prove you wrong.
This defence puts the focus on the police procedures used when you were arrested and charged.
Using the two hour rule as a defence
This can be a useful defence if you’re involved in a car accident. By the time police are called to the scene of the accident and address safety, deal with any injuries and transport you to a police station for a breath test, more than two hours may have passed.
If more than two hours have passed and they take a test, they’ve obtained evidence outside the law.
Bear in mind, the prosecution may rely on other evidence to prove when you last drove – not just your version of events.
Smart use of this defence
Knowing when to use this defence can be tricky. Revealing it too early can disadvantage your defence, while delaying it too long can mean it’s too late. An experienced lawyer will know when and how to use this defence to your benefit.
Should I defend the charge?
Drink driving charges are rarely defended, usually because of the efficient detection, documentation and prosecution system, and the cost of a defence hearing. The focus is usually on minimising the consequences – not recording a conviction, reducing your fine, or minimising loss of licence time or jail term.
Pleading guilty may end up being the best strategy, but you should be aware of all your options including a potential defence before making that decision.
We can help
Look for an experienced traffic lawyer who can give you a straight answer on pleading guilty or options for defending the charge.
Being convicted of a drink driving charge can potentially have devastating consequences for both you and your family. It begins with a loss of your driver’s licence. For some people that is merely an inconvenience, however for others -who rely on their licence to maintain their employment- it can be a disaster. It can lead to loss of employment and that, in turn, can have flow on consequences such as losing a house, increased stress and anxiety and relationship problems.
If you have been charged with a drink driving offence, before deciding to plead guilty it is very important to consider whether you might have a defence open to you. There is a whole range of ways in which a defence can be mounted against a drink driving charge. Below are some of the more common defences to the most common type of drink driving charge.
The defences described in this article are only a sample of some of the ways in which a PCA charge can be defended. There are many others. In addition, the law is very complex. It is not possible to fully describe a defence in a few lines. Therefore, the descriptions of defences provided here are merely simplified summaries and should not be relied upon in place of competent legal advice.
Types of Drink Driving Charges
When most people talk about drink driving charges, they usually refer to them either as “drink driving” or “DUI”. In fact, there are two (2) different types of drink driving charges. These are PCA (“Prescribed Concentration of Alcohol”) charges and DUI (“Driving Under the Influence”) charges. PCA charges are by far the most common types of drink driving charges. They involve allegations that a person drove with a particular blood alcohol concentration reading. There are five (5) different sub categories of PCA Charges as follows: novice range, special range, low range, mid range and high range PCA’s. The level of alcohol concentration required for each of these ranges is different. However what they all have in common is that a conviction for any of them leads to an automatic loss of licence.The defences described below can (in appropriate circumstances) apply to any of these categories of PCA charges.
Challenging the Reading
The reading produced by the breath analysis conducted by police is not always representative of the driver’s true blood alcohol concentration at the time of driving. Sometimes, with the help of expert pharmacologists, it is possible to establish that the reading alleged by police is higher than the true reading of the driver at the time of driving and that the true reading was either below the limit or, at least, in a less serious category of a PCA offence.
Honest and Reasonable Mistake
Many people are surprised when they first learn that if a driver honestly and reasonably believed that they were under the limit at the time they drove then they are not guilty of a PCA offence even if, in reality, they were in fact over the limit. This defence is not as simple as it sounds. Raising this defence can be very tricky, particularly when it comes to convincing the court that any mistake made by the driver was a reasonable one. However, it is certainly a defence worth bearing in mind and discussing with a competent lawyer.
The Two (2) Hour Rule
The law provides that police must conduct a breath analysis within two (2) hours of driving. Otherwise, the police may not be able to rely on the result of the breath analysis in court. This means that if the police cannot prove that the breath analysis was conducted within two (2) hours of driving, that may provide a defence to a PCA charge.
Home Safe Rule
The law says that it is illegal for police to conduct a breath test at a person’s home. Consequently, if a driver was breath tested whilst on their property, it can be argued before a court that the reading produced by the breath analysis cannot be used in court against the driver.
Speak to Us
If you have been charged with a drink driving offence, speak to one of our expert criminal and traffic lawyers about your particular circumstances. Your first consolation with us is free if you choose not to proceed with us so you have nothing to lose by talking to us, and it may end up saving you a great deal.
Accredited Specialist, Criminal Law
(02) 4324 5688