MyDefence referred lawyers at Kauthen Legal recently secured bail for a client who had spent two years on remand due to what a County Court judge described as the "extraordinary delay" caused by the caronavirus pandemic.
The pandemic has meant that jury trials have been suspended until 2021, and with the second infection outbreak in Victoria there is no certainty as to when the client will have his trial brought before the courts.
Click here to read the full story in The Age.
A MyDefence referred lawyer secured a win at the Dandenong Magistrates’ Court recently where they successfully argued that a search on his vehicle was unlawful in a separate hearing called a voir dire. The Magistrate further ruled that the evidence obtained is not to be used in proceedings against the client. This is also known as fruit of the poisonous tree. Accordingly, the client was found not guilty for want of prosecution, and had to have returned to him a raft of items that were seized in the search.
The client and his partner were driving a rental vehicle on their way to a motel they were staying at. It was early in the morning. On the way they stopped into a convenience store to get some drinks. At this time of morning a night counter is open for safety reasons, so you can only be served through a window from the footpath outside. The client was waiting in a queue of 2 others which was taking longer than he expected so decided to go back to his car and continue on without the drinks.
During this time an unmarked police vehicle had seen a group outside the convenience store and covertly observed them through their side mirrors for a little under one minute. They claimed that they saw what bore the hallmarks of a drug transaction.
They followed our client in pursuit of their car for around a kilometre. The client was not speeding or driving erratically. During this time the police did a plate check and confirmed that the car was a rental car.
They then sped up past our client’s car and intercepted them. A pat down search of our client yielded no result, but when they asked him his name, the police recognised it him being a person of interest for an investigation.
Power to search
For this reason they searched his vehicle under s82 of the Drugs, Poisons and Controlled Substances Act. This allows police to search a vehicle without a warrant if they “reasonable suspect” there is are drugs of dependence in the vehicle. Consequently, drugs, money and other contraband were found.
The MyDefence referred lawyer negotiated to have many charges rolled up into one charge and have some withdrawn if the client plead guilty to others. However, given the circumstances of the arrest the lawyer applied for a voir dire hearing prior to any entering of a plea. This type of hearing is used to determine whether evidence was:
The voir dire hearing – reasonable suspicion
Counsel cross-examined the police involved and elicited that the informant’s suspicion to search the vehicle was based on three propositions:
In defeating these three propositions, counsel relied on the following:
The Magistrate agreed with counsel's arguments and further said that “reasonable suspicion” must be more than just a possibility. Yes there was suspicion, however it was unreasonable based on the circumstances when objectively viewed on what the police claim at the time that informed their suspicion. Ultimately what the police believed they suspected at the time is irrelevant.
Even if the search is unlawful, the evidence may be admissible
Magistrates can still allow unlawfully obtained evidence under s138 of the Evidence Act, however they must balance a number of competing factors including:
Undoubtedly it was conceded that in the case of the client these factors were high.
Reasons the evidence was inadmissible
However, the Magistrate decided to rule the evidence inadmissible for the following reasons:
Accordingly, the Magistrate found the client not guilty of all charges.
This case highlights that there are defences available that many clients would not think of by forensically analysing police briefs and testing prosecution cases to their limit. Whilst this was a great outcome for the client, it does demonstrate the need to not accept prosecution cases at face value and to always dig deeper to ensure that investigations have been legally complied with.
A criminal record can be detrimental to your work prospects and ability to do volunteer work. Often organisations will ask you for a National Police Check to see that you are of good character or suitable for the role. But not all criminal offences show up on a police check. We detail what and what doesn't show on your criminal record.
Firstly there are two types of criminal records in most states. One that shows driving convictions maintained by your state's road authority, and one that is maintained by the police. A police check will show both, nationwide.
It is clear there is a lot at stake for a person's future. We founded MyDefence so that clients don't have to stress about expensive lawyers fees and don't feel that they need to plead guilty to avoid more expense. This gives our client the best chance possible at avoiding a damaging criminal record.
At some stage or another we've all played a sport, whether at school when we are younger or on weekends in our adult lives. Physical contact increases the chances of getting injured. Most of the time it is accidental but occasionally it is deliberate.
Here's some things that you should know when you play any sport:
Relevant cases supporting this position: R v Stanley (unreported, NSWCCA, 7 April 1995) and Rootes v Shelton (1967) 116 CLR 383:
In Stanley, the court said as follows:
"in an organised game of rugby league the players consent to acts of violence and acts of substantial violence, and the risks of injury, from the minor to the serious, flowing therefrom, provided that those acts occurred during the course of play in accordance with the rules and usages of the game. Players are not to be taken as consenting to the malicious use of violence intended or recklessly to cause grievous bodily injury. The policy of the law will not permit the mere occasion of a rugby league match to render innocent or otherwise excuse conduct which can discretely be found, beyond reasonable doubt, to constitute a criminal offence."
Practically speaking what does that mean? If you tackle someone when when they have possession of the ball during a football game, that is not an assault.
However it is an assault if a player is standing free away from the ball and is intentionally tackled and sustains a serious injury. It would also be an assault if a rule prohibits high tackles and a player makes such a tackle that does not appear accidental in the circumstances.
The assaulting player is liable to be charged by police. The sporting body can also punish the player by banning them for life from playing the sport.
The insurance cover that you get when you pay your competition fees is for acts that may arise out of negligence. For example if there is a pothole in in the sports ground, or if one of the goalposts falls onto a player and injures them.
The insurer will normally not cover injuries for assaults.
If the assaulting player is charged and convicted of assaulting another player, you can apply to the court for compensation directly against the accused person. In Victoria you can apply under s85B of the Sentencing Act. Otherwise you can sue the assaulting player for personal injury damages as an intentional tort. When suing someone in the civil courts, an assault is called a "tresspass against a person".
All states have systems to not punish people for minor or first time offences and to give them a second chance. Importantly this avoids a criminal conviction. Examples of this are diversion and no conviction orders.
A criminal conviction can affect a person's job prospects for a long time where the most law abiding citizen has committed minor criminal offences because of errors of judgment or circumstances where they acted outside their character.
The criminal justice system does not want to punish people for these oversights of behaviour. We explain the two approaches below taken by Victorian and NSW courts.
Victoria has a Diversion Program. This program takes the police charges outside of the criminal justice system and is dealt with separately like a good behaviour bond. Diversion is a great outcome where the charges can be proven and a finding of guilt is assured.
To have your matter considered for diversion, MyDefence negotiates with the prosecutor and charging police officer for their consent. If they consent, then a Diversion Hearing is scheduled.
Typical conditions for diversion include:
At the end of the time period, all the charges are automatically dismissed and will not appear on your criminal record. You do not have to appear at court for this.
If you don't fulfil the terms of Diversion, then your case will progress through the court system. This still provides a chance for our lawyers to request the Magistrate to "prove and dismiss" the charges without conviction.
NSW enables Magistrates' to dismiss charges and order no conviction under sentencing legislation.
MyDefence lawyers will craft a plea to the court on behalf our client that draws all the circumstances to the attention of the Magistrate to help secure a dismissal of charges or a no conviction order.
This is also done with negotiation with the police and prosecution to not oppose our submission.
The transport police entering your carriage on a train can send dread through the hearts of most commuters. So what happens when you think you have a valid ticket and the officer scans it and it reads as invalid?
The Victorian Transport Regulations conveniently outline the key defence that is deemed acceptable where a ticket is scanned as invalid.
It is a defence to a charge under that the commuter took all reasonable steps to have in the their possession or to produce for inspection a ticket that was valid for the whole of their travel that were available—
(a) before commencing the travel; and
(b) while undertaking the travel.
But the Regulations also outline what is not taking all reasonable steps.
So to answer common questions...
Q. Can you use the excuse that you thought there was money on it? A. No, as you didn't take sufficient care.
Q. Can you use the excuse that you didn't have time to get a ticket? A. No, as this is not a reason to not have a valid ticket.
Q. Can you promise to top up your ticket there and then and scan it? A. No, as you didn't take sufficient care.
Q. Can a faulty reader at the station where you touched on be an excuse? A. Yes, in many cases. Providing that other readers were also faulty, and that there was no reader on the train to touch on, and you had funds available on your ticket.
If you have never been fined for evading but you had a reasonable excuse that did not fit within the key defence, you can always write to the infringement body for an internal review to have the fine withdrawn.
A little known danger with requesting any internal review is that they can refer it off to the Magistrates' Court without your permission. So you need to exercise caution when you do this.
Criminal justice tends not to discriminate when it comes to the laying of police charges and the prosecutors' ability to prove those charges. Whether you have a clean criminal record or have been before the courts previously, you are treated the same.
Where circumstances seem genuinely unfair, we’ve often been told by prosecutors that “it’s not about fairness.”
The “summary” stream of the court system can be likened the worst company you’ve ever done business with. Poor customer service, little directional signage, stone-faced staff with little patience for having to explain what is to them the obvious.
There is no purported ideal “experience”, no net promotor score sought from the customer at the end of their hearing, no friendly follow up emails.
On any given day the “accused” persons are told to be at court at 9.30am – the time dutifully written on their charge sheets or court attendance notices. For the first-time accused, they would be led to think that their matter will be heard at that time. Like an appointment time to be kept in any general business.
Not at the Magistrates’ or Local Court. Havoc and confusion is the daily staple to be consumed. Likening it to live cattle exports, everyone is forced into an enclosed space at the same time and one by one drip fed past a magistrate. The sheer volume of people places pressure on prosecutors and magistrates to clear the daily work load by end of day.
As criminal defence lawyers, we are constantly exposed to inconsistency in the skilful application of the law. Whether by police laying charges, prosecutors prosecuting or withdrawing those charges, and magistrates sentencing those who are guilty of offences.
The overarching safeguard is a right to appeal any decision to a higher court. But this is more time and money that few people can stomach with the catch cry “I just want it over with” commonly pronounced.
But the consequences are great both short term and long term. Not wanting to risk being found guilty at a contested hearing or trial, many people facing charges decide to plead guilty instead. They hope that such a plea will give them a “without conviction” sentence.
The only pressure release is for prosecutors to withdraw charges so as not to risk the accused seeking costs against them if they were to lose.
Unfortunately throughout the whole process luck plays a big part with police and prosecutors.
Luck that the police officer:
Luck that you get a prosecutor who:
To give an example, our client of sudanese background was riding a motorbike without a licence. A drunk Australian rules footballer illegally walked across our client’s path and he came off the bike.
Our client sustained injuries that left him in hospital for two days. Our client was charged and forced to front court, the footballer was given a fine (with the full PR machinery of his club in action).
We alleged that there was a bias in the charging police to providing leniency to a well known sports person. When explaining the situation to the prosecutor, all they said was that it had nothing to do with fairness.
We raised the issue with the magistrate who was sympathetic to our client and fined him, did not interfere with his drivers licence. However he gave him a driving conviction for riding unlicensed.
In another example, another client of sudanese background was charged with assault. On examining CCTV footage the alleged victim is shown pushing our client. The police recommended Diversion, however our this would have jeopardised our client’s desire to work in the security industry.
We rejected Diversion and informed prosecutors we will contest the charge. Ultimately the charge was withdrawn but on the condition of our client not seeking costs. While this was a good outcome for our client, he still had to bear the unfair cost of challenging what should never have been charges brought upon him in the first place.
We emphasise that there are many excellent police and prosecutors. At the same time, for the accused person, the stakes are high. Criminal records are lifelong and most employers now undertake police checks which can affect the employability of convicted persons.
Prosecutors need to be a greater check and balance on the police who lay the charges, too often they side with the charging officer.
There needs to be a process at the prosecutor level where there can be an appeal against the charges being laid in the first place. This should be only for people who have been charged with lesser crimes in arguable circumstances where fairness is an issue. And where it is highly likely that they will never be a return customer to the court system.
The appeal should be considered by a third party prosecutor (at a different location to the court hearing the charges) with the discretion to withdraw charges on the basis of fairness and where the accused is of good character.
The discretion should be allowed where there is no victim, or the victim negatively contributed to the offence faced by the accused. The prosecutor should be highly skilled in the law and the social impact of criminal convictions for different classes of accused persons.
Such a reform would lead to a reduction in the casework before magistrates and court prosecutors, and lead to greater faith in the criminal justice system by society at large.
The net effect will result in better decision making at the police and prosecutor level in knowing that their decisions are under scrutiny by an overriding influence. But this is before the “all or nothing” stage of running a contested hearing which leads to many people pleading guilty even when they do not believe they should.
When you are charged with an offence, the police will normally interview you. Sometimes it can happen without you knowing, such as being caught speeding - an officer will ask why you were speeding.
You may think this is just conversational, but in reality the officer is looking for an admission that makes for a stronger case in prosecuting you in court, if you choose to defend the charge.
At the same time people often think that by saying "no comment" to the police, it will make them look guilty. This is in fact not true. Accused persons have a right to silence, and providing a "no comment" interview is you asserting that right.
This is founded on the principle that police need to prove the charge against you and you are not obliged to help them do it. And courts are not allowed to draw an adverse inference from a no comment interview.
So once a police officer starts questioning you, you can make an assumption that it is for a good reason, and that reason may be to elicit a confession.
For summary offences, which are less serious offences such as minor driving offences, or being drunk in public, the police do not need to caution you. They can use anything you say as evidence later.
It is good practice to just say "no comment" to anything they ask you other than what you lawfully must tell them, such as your name and address.
For indictable offences, which are more serious offences such as being caught with drugs, theft, or being in possession with weapons, police are obliged to inform you of your rights prior to questioning you.
In these instances, it is always advisable to say "no comment" and seek legal advice immediately after.
MyDefence lawyers are often surprised at how many of our clients have made admissions without knowing that what they said was going to be used against them.
So if you are ever interacting with the police because they are charging you with an offence, to be safe, it always advisable to say "no comment".
Driving and traffic offences are some of the most common offences MyDefence sees from clients. The normal questions asked is whether a client can get off on a technicality. The short answer is yes but you have to be lucky.
These kinds of offences can be difficult to challenge as often there is photographic evidence or a laser detector used. However MyDefence lawyers have had success in finding technical defences or holes in the evidence.
One example is police not following correct procedures as outlined in the police manual. A high risk strategy is to contest the charges at a hearing and have the charging police officer run through the operation of the laser detector from memory. If they slip up then it provides reasonable doubt to the Magistrate that the device was operated correctly.
Another example is where the police fail to file the police brief with the court correctly. MyDefence lawyers are always on the lookout for these kinds of slip ups and we've had drink driving and suspended driving offences dismissed as a result.
MyDefence lawyers work hard to either get charges withdrawn or lowered. Sometimes this happens in a plea deal with the prosecutor where our client agrees to plead guilty to lesser or fewer charges in order to get the more serious charges withdrawn.
We will only recommend this if we advise that the evidence that the prosecutor has will prove an offence. A plea of guilty also gets a sentencing discount of around 25% less than if a client ran a case to trial.
Even though a client may plead guilty, that does not mean our job is done. The magistrate or judge has wide discretion as to what penalty to impose at sentence such as whether:
For the court to make this decision, a Plea Hearing is held. We get an opportunity to inform the court about the circumstances of the offence and the background of our client. Factors that the court looks for are:
MyDefence lawyers have pleas down to a fine art. We connect our clients with services and character reference templates to get all the information aimed at securing the most minimum penalty.