Expert Videos

Consensual Sex Between Minors – A Criminal Offence?

What a lot of parents don’t realise, particularly parents with teenage children, is the concern where two young people, and I mean under the age of 16 years… they might go to school together for example… meet, have a relationship, have sex.

Do you realise that one or the other, and it’s usually the boy, even in a situation where there has been consensual sex, has, according to law as it is at the moment, potentially committed a criminal offence.

That’s right: a criminal offence not withstanding that there is no issue that what occurred between the two was consensual.

What I suggest is that there is time for there to be informed community discussion about this topic. A consideration about whether the laws need to be changed. There are cases on foot at the moment that would speak volumes for the change of the law.

 

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How Does Bail Work?

The topic of bail frequently comes up in conversations.

But what people don’t realise is that there have been three changes to the bail laws in the past 18 months or so. And they have been fairly significant. Having said that, as simple as one can state at the moment, persons applying for bail fall into two categories:

  • The first is what we call show-cause type offences.
  • The other is offences where they are not show-cause type offences and in which case the court, the prosecutor, and the defence deal with issues of unacceptable risks in the extent which those risks can be mitigated.

How Bail Works in Show-cause Offences.

Show-cause offences relate to offences that are of the more serious type. In show-cause offences, the responsibilities and the onus is on the person applying for bail to show that the continued detention of the person in custody is unjustified.

So the person applying for bail has that onus of proof. And there are various ways one goes about establishing that the detention is unjustified. For example, the delay caused in or would be caused in the matter proceeding to trial. Quite often that’s anywhere between one year to two years. There can be other subjective factors which would include the weakness of the prosecution case if that’s so.

I recently appeared in a case in the Supreme Court where we were able to show-cause for the person being granted bail. We were able to show in effect that the continued detention of this person was unreasonable largely due to what the judge described as the weakness of the Crown case.

So the weakness of the Crown case is a very important factor in show-cause type offences. There are other reasons. There might be particular exceptional circumstances as to why the person should be released out into the community to deal with the welfare of other people. He or she may be a carer for a particular person or children and that could also be a factor going to showing cause in a particular case.

How Bail Works In Not Show-cause Offences

The other types of matters are matters where there are no show-cause type of offence and therefore both the court, the prosecution, and the defence address the issue of whether there are any unacceptable risks for the person to be out on bail. Unacceptable risks can be as long as you like.

There are various reasons as to, that would amount to unacceptable risks and in which case the defence would be required to point to various bail conditions or factors that could mitigate against these unacceptable risks.

So for example if a risk or bail concern is that a person may not attend court because of a particular type of offence that he may flee the jurisdiction, one can come up with bail conditions that will more or less ensure that person’s attendance at court. That might be the surrendering of a passport. It might be a strict residential address. It might be reporting to police three or four or seven days per week. It may be the involvement of an acceptable person being assuring by lodging a sum of money with the court to ensure that the accused person complies with his or her bail conditions.

These are just some ways in which one can mitigate against an unacceptable risk.

If you need legal advice with regard to bail or any other matter, please click here to contact Conditsis today.

What is a Section 10? (Part 1)

What is a Section 10? (Part 1)

Welcome to this instalment of the Conditsis Expert Video series. My name is Michal Mantaj and I’m one of the directors here at Conditsis and today I’ll be talking about how it is possible to plead guilty to a criminal offence but none the less retain a clean criminal record and avoid a penalty being imposed on you.

Normally if you plead guilty to a criminal offence whether it be a traffic offence or some other kind of criminal offence, it’s automatic almost that the court will direct that a conviction be recorded against your name and your criminal record for the defence and then the court will go on to impose some kind of a penalty whether that’s imprisonment or a fine or for a traffic offence or loss of licence or some other kind of penalty.

There is however one way in which even though you plead guilty to a criminal offence, you can actually avoid those consequences following from that plea of guilty.

In essence, it’s something called a Section 10. Now let me explain firstly what a Section 10 is.
A Section 10 simply stated is, it’s a power that the court has to find that a person has committed a criminal offence including a traffic offence. But let them off without recording your conviction against their name and without imposing any real penalty on them.

There is what’s called a straight Section 10 and that’s where the court simply says that you’re discharged under Section 10, you walk out of court, there’s no criminal record, there’s no conviction, there’s no penalty and nothing else happens.

The other kind of a Section 10 is a Section 10 with a good behaviour bond. That means that the court says there will be no criminal record recorded against you.There will be no penalty. However that you will be on a good behaviour bond for the next however many months the court decides.

Click here to watch Part 2.

If you need legal advice with regard to a Section 10, or any other matter, please click here to contact Conditsis today.

What is a Section 10? (Part 2)

What to watch Part 1? Click here.

What is a Section 10? (Part 2)

Now, everybody wants a Section 10 and the question is well how do you get a Section 10?

The first thing to say about that is that there is no magic formula I can give you to make sure that the court will give you a Section 10 if you are pleading guilty to an offence. But what I can do and what I will do is give you some very good guidelines as to some of the most important things that you need to think about or that the court will think about when he’s determining whether or not you in your particular case deserve a Section 10. What, why, and how; let me just explain those in turn.

The ‘What’ stands for what happened. That’s the first thing the court wants to know what happened. The second is the ‘Why’. Why did it happen? And the third thing is how will you stop it from happening again.

In terms of the, what happened, the court will look at a whole range of things when determining what actually happened and how you committed the offence and really what the court is looking is to decide how serious your particular offence was in comparison with other offences of that type.

The two main things that the court will look at in determining what happened or how serious the offence is, is firstly the actual charge you have been charged with or actual offence you’ve been charged with.

So let me give you some examples. For example, if you were caught with some drugs, the police might have charged you with supplying a prohibited drug. Now, you might say I agree I had the drugs in my possession, but it was for personal use. It wasn’t for supply. That would mean that you shouldn’t be pleading guilty to supplying a prohibited drug but rather possessing the prohibited drug. And the difference is very substantial between those two offences. You’re much more likely to get a Section 10 in respect of a possessed offence than in respect of a supply offence.

So that’s the first thing under the ‘What’ heading, the actual charge. The second thing is the facts. So the court will, once it knows what the offence is, it will want to know the exact facts as to how that offence was committed and the circumstances in which it was committed.

Click here to watch Part 3.

If you need legal advice with regard to a Section 10, or any other matter, please click here to contact Conditsis today.

What is a Section 10? (Part 3)

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What is a Section 10? (Part 3)

So that’s the ‘What’. Let’s now go through the ‘Why’.

What the court will want to know is why the offence was committed. Now you need to have a think about what it is that led you to the behaviour that constituted the commission of whatever the offence is.

Was the underlying problem alcohol? Was the underlying problem drugs? Was it anger? Was it something else? We want to know not only what you did but why is it that you did it. So it’s very important that if you are struggling with some kind of mental health problem that has led you to behave in the way that you have, let the court know about it, and it have an expert to confirm.

Now thirdly, the ‘How’. That is how will you satisfy the court that what has happened will not happen again in the future?

It’s very important if you are asking the court to give you a Section 10 to not record a conviction again against you, that you do everything you possibly can to satisfy the court that yes, I have made a mistake, it was a one off mistake. I’ve now addressed the problems that led to it and therefore the court can have some confidence that it’s not going to happen again.

Again, it all depends on the particular circumstances offence but it’s a very important aspect of any application for a Section 10 as I’ve said that you give the court comfort that you have changed and there will not be repetition of the behaviour.

Click here to watch Part 4.

If you need legal advice with regard to a Section 10, or any other matter, please click here to contact Conditsis today.

What is a Section 10? (Part 4)

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What is a Section 10? (Part 4)

Now let me go on to the last topic and that is perhaps for most people a very important topic and that is how Section 10s work together with criminal records.

Most people have this impression that if you walk out of a court with a Section 10 that gives you a guarantee that that offence will never appear on your criminal record and so you can freely apply for employment, you can apply for travel overseas, without worrying about having your criminal record.

Now, that’s true to an extent but there are some important exceptions that you need to know about. It’s important to know this because sometimes you will have a particular need to be able to show a clean criminal record within the next 6 to 12 months or the duration of the bond.

For instance you might be in the process for applying for a new job or you might have some plans to travel overseas in the next little while, etc. If that’s the case, it’s important that you let the court know about that and it’s important that you explain to the court or that your lawyer explains to the court that there is this problem in the law that even though the Section 10 is a non-conviction, it will appear on your criminal record for the duration of the bond and ask for if the court can possibly give it to you, this straight out Section 10 without a bond so that there will be no criminal record recorded against you at all and you can go on and apply for whatever employment and travel and so on that you need to and demonstrate a clean criminal record straight away.

That is all that I have time to go through with about Section 10s in this video. So thank you for watching and if you have any other questions, you are more than welcome to give either myself or one of our other lawyers here at Conditsis a call and we’re more than happy to talk to you about your case.

If you need legal advice with regard to a Section 10, or any other matter, please click here to contact Conditsis today.

How To Beat A Drink Driving Charge (Part 1)

Hi and welcome to this instalment of the Conditsis Expert Video series. My name is Michal Mantaj. I’m one of the directors here at Conditsis and today I will be talking about how to beat a drink-driving charge, or as we lawyers prefer to call it, what’s called a PCA charge.

Now, there’s a common misconception out there in the community that if you are charged with a drink-driving offence, there is only one option and that is to plead guilty and cop the penalty on the chin as it were.

In actual fact there are many different ways that a drink-driving charge can be defended against in the right circumstances. And just very briefly, the three that I’m going to go through are firstly actually challenging the reading that you get from the police. Secondly a defence based on something called the two hour rule. And thirdly the defence of what’s called honest and reasonable mistake of fact.

The first one is challenging the reading. So the actual reading that the police produce and give you after your breath has been analysed is not necessarily written in stone. It’s something that you can actually in the right circumstances challenge.

The way that we challenge that kind of a reading is through expert evidence from scientists called pharmacologists and what these people can do is that with given the right information, they can actually calculate scientifically the alcohol concentration that you would have had at the time of the driving and if they come back with a lower reading than the reading from the police, that can form the basis of a defence to say well now I challenge the reading. I was in fact under the limit at the time of driving, not over the limit as the police allege.

Click here to watch Part 2

If you need legal advice with regard to drink driving or any other matter, please click here to contact Conditsis today.

How To Beat A Drink Driving Charge (Part 2)

The second defence is based on something called the two hour rule.

The two-hour rule is simply a rule of law that states that the police have a two hour time window between the time that you drive and the time that the breath analysis which is later used in court to prove their reading is conducted.

If the two hour time window is missed or if the police simply cannot prove that they’ve complied with the two hour rule, then very often the police case against you will collapse and you will therefore win almost by default.
For instance, very often after a car accident, the police are not there at the time of the accident.

It’s very difficult to establish the exact time that the accident took place. The police arrive sometime later. They conduct the breath analysis. You’re over the limit but police can’t necessarily prove that that breath analysis conducted within the two hours of the accident and if that’s the case that might be the foundation of the defence based on this two-hour rule.

Click here to watch Part 1

If you need legal advice with regard to drink driving or any other matter, please click here to contact Conditsis today.

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