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Criminal Law Matters

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

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

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

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

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

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

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

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

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

Should consensual sex between teenagers be a criminal offence?

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

Food for Thought

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

What are the consequences?

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

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

Hung Juries in Sexual Assault Trials

What does a hung Jury mean?

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

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

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

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

Does a hung jury mean the trial failed?

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

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

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

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

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

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

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

New domestic violence laws bad news for unrepresented defendants

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

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

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

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

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

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

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

A: EVERYONE!

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

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

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

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

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

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

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

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

-loading manager, -loader/unloader, -packer

-consignee/consignor

-operator

-scheduler

-employer

-executive officer

-prime contractor

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

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

The goal is safety.

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

 

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

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

 

Criminal Law Matters: Issue 7

CAN I GET A LICENCE JUST FOR WORK?

CAN I GET A WORK LICENCE?

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

 No! No! No! Not in NSW!! NOOOOO!

 

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

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

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

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

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

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

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

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

Criminal Law Matters: Issue 6

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

Group of Cheering Fish: Release!

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

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

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

In the case of ‘Meissner’ Justice Dawson said –

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

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

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

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

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

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

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

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

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

In this case the question became:

 

IS THE COURT FUNCTUS?

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

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

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

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

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

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

 

Criminal Law Matters: Issue 5

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

William Pitt, 1st Earl of Chatham

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So is a man’s home his castle?

Tell ’em they’re dreaming!

Criminal Law Matters: Issue 4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Criminal Law Matters: Issue 3

‘Deemed supply’ is a tricky legal concept.

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

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

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

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

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

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

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

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

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

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

Criminal Law Matters: Issue 2

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

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

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

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

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

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

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

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

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

Criminal Law Matters: Issue 1

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

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

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

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

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

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

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

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

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

For all your criminal law matters get Natasha Konic involved.

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