Velasquez Legal | Criminal Law Blog

Christmas Holiday 2024-2025

carlajose1@gmail.com (Carla Velasquez) — Tue, 17 Dec 2024 08:10:09 GMT

Wishing You a Merry Christmas and a Happy New Year!

This holiday season, we hope you enjoy the time spent with your loved ones. May your days be filled with joy, warmth, and the spirit of Christmas. We look forward to reconnecting with you in the new year and continuing to provide the best service possible.

Thank you for your support throughout the year! We'll be back in 2025 with even more exciting plans to share. Until then, take care, relax, and have a wonderful festive season!

Closure Dates:

Start: 19 December 2024
End: 13 January 2025
Reopening: 14 January 2025

Happy Holidays from all of us!

For urgent matters please leave an email at carla@velasquezlegal.com or reach out to our customer support staff using (02) 8815 8175.

Downing Centre Closure 2024-2025

carlajose1@gmail.com (Carla Velasquez) — Tue, 17 Dec 2024 08:06:08 GMT

Christmas Closure

The Downing Centre Local Court will be closed from

Friday 20 December 2024

and will re-open on

Monday 6 January 2025.

Any emails received during that period will not be actioned until after

Monday 6 January 2025

Telephone inquiries may continue to be made between
8:30am and 4:30pm Mondays to Fridays (public holidays excluded)
via the NSW Courts Service Centre on: 1300 679 272

Understanding the NSW Criminal Justice System: A Step-by-Step Guide

Sun, 15 Sep 2024 21:00:00 GMT

This step-by-step guide aims to demystify the system, providing clarity on what to expect at each stage.

Navigating the criminal justice system in New South Wales (NSW) can be a daunting experience, especially if you're unfamiliar with the legal processes involved. This step-by-step guide aims to demystify the system, providing clarity on what to expect at each stage. Whether you're facing charges, supporting someone who is, or simply interested in understanding how the system works, this guide offers a comprehensive overview.

1. Investigation

The criminal justice process often begins with an investigation by law enforcement agencies. Police gather evidence through various means, such as:

Interviews and Statements: Speaking with victims, witnesses, and suspects.
Physical Evidence Collection: Gathering forensic evidence from crime scenes.
Surveillance and Undercover Operations: Monitoring suspects to collect information.

Your Rights During Investigation:

Right to Silence: You are not obliged to answer questions beyond providing your name and address.
Legal Representation: You can request a lawyer before participating in any formal interviews.

2. Arrest and Charge

If the police believe there is sufficient evidence, they may proceed to arrest and charge an individual.

Arrest: Police can arrest you with or without a warrant if they suspect you have committed an offense.
Charging: Formal allegations are made, specifying the offenses you are accused of.

What to Do If Arrested:

Stay Calm: Cooperate without resisting.
Exercise Your Rights: Remember your right to silence and request legal assistance.

3. Bail Proceedings

After being charged, the question of bail arises.

Police Bail: Police may grant bail at the station with specific conditions.
Court Bail: If police bail is refused, you will appear before a court where a magistrate will decide.

Factors Influencing Bail:

Severity of the Offense
Risk of Re-Offending
Flight Risk
Protection of the Community

4. Court Proceedings

a. Mention and First Hearing

Mention: The initial court appearance where charges are formally read.
Plea Entry: You can plead guilty, not guilty, or request an adjournment for legal advice.

b. Committal Proceedings (For Serious Offenses)

Purpose: To determine if there is enough evidence for a case to go to trial.
Process: Examination of evidence and cross-examination of witnesses.

c. Trial

Local Court: Handles summary offenses (less serious crimes).
District or Supreme Court: Handles indictable offenses (more serious crimes).

Trial Phases:

Jury Selection (if applicable): For indictable offenses, a jury is selected.
Prosecution Case: Presentation of evidence and witnesses.
Defense Case: Opportunity to present your evidence and witnesses.
Closing Arguments: Both sides summarize their cases.
Verdict: The judge or jury delivers a verdict of guilty or not guilty.

5. Sentencing

If found guilty, the court proceeds to sentencing.

Factors Affecting Sentencing:

Nature and Gravity of the Offense
Criminal History
Mitigating Circumstances: Such as remorse or early guilty plea.
Aggravating Factors: Such as use of violence or breach of trust.

Possible Sentences:

Fines
Good Behaviour Bonds
Community Service Orders
Suspended Sentences
Imprisonment

6. Appeals

You have the right to appeal against a conviction or sentence.

Grounds for Appeal: Legal errors, miscarriage of justice, or disproportionate sentencing.
Time Limits: Strict deadlines apply, usually within 28 days of the decision.
Appeal Courts: Appeals are heard in higher courts, such as the District Court or the Court of Criminal Appeal.

7. Post-Sentencing Considerations

a. Criminal Records

Impact: A criminal record can affect employment, travel, and more.
Spent Convictions Scheme: Some convictions become 'spent' after a crime-free period.

b. Parole

Eligibility: For sentences over a certain length, you may be eligible for parole.
Conditions: Compliance with specific conditions is mandatory during the parole period.

8. Support Services

Navigating the criminal justice system can be stressful. Various support services are available:

Legal Aid NSW: Offers legal assistance to those who qualify.
Community Legal Centres: Provide free legal advice and assistance.
Counseling Services: For emotional and psychological support.

Conclusion

Understanding each step of the NSW criminal justice system empowers you to make informed decisions and better navigate the legal landscape. Whether you're directly involved or supporting someone who is, being informed is the first step toward ensuring your rights are protected.

Need Legal Assistance?

Facing criminal charges is a serious matter that requires expert legal advice. Our experienced criminal defence lawyers are here to help you through every step of the process. Contact us for a confidential consultation.

Case Conference - What does it mean to you?

carlajose1@gmail.com (Carla Velasquez) — Thu, 12 Sep 2024 01:41:22 GMT

Understanding Your Role and the Benefits of an Early Case Conference

Case Conference – What It Means for You

As part of the legal process in indictable matters, we need to have a formal meeting called a "case conference."

This is where your lawyer, and the prosecution lawyer discuss your case to figure out if it's possible to resolve it early or reduce the number of issues we need to argue later on.

Why Is This Important?

If you decide to plead guilty early, it can reduce your sentence because the court gives a "discount" for saving time and resources.
The earlier you plead guilty, the bigger the discount. For example:
25% off if you plead guilty in the Local Court.
10% off if you plead guilty within two weeks before the trial starts.
5% off if you plead guilty later or during the trial.

What Happens During the Conference?

Both the prosecution and I will meet, either in person or over video.
We’ll go over the details of the case to see if we can reach an agreement or make the process smoother.
This meeting must happen within six weeks after the charges are filed.

Your Role in the Process

We can only act based on your specific instructions. This means we will not accept or reject any offers from the prosecution without discussing them with you first and getting your input at the right time.
You will always have the final say in decisions regarding any offers made during the case.

Where Will This Take Place?

Any space with video link facilities or phone facilities for the conference.
As a client you need to be somewhere quiet and private.

If you have an indictable matter that you need to discuss please give us a call.

Why You Need a Specialist Criminal Defense Lawyer in NSW

Thu, 12 Sep 2024 01:37:17 GMT

Protecting Your Rights and Future: The Value of Hiring a Specialist Criminal Defense Lawyer in NSW

When facing criminal charges, the legal system can be overwhelming and intimidating. Whether it's a minor offense or a serious criminal charge, having an experienced and dedicated criminal defense lawyer in NSW can make all the difference. Here’s why hiring a specialist criminal lawyer is invaluable.

1. Expert Guidance on Your Rights

The moment you're charged with a crime, the clock starts ticking. A specialist criminal lawyer ensures that you understand your rights and that those rights are protected throughout the legal process. They explain your options clearly, giving you confidence and peace of mind in navigating the complexities of the legal system.

2. Tailored Case Strategy

Criminal cases are rarely straightforward, and every case has its nuances. An experienced lawyer will build a defense tailored specifically to your circumstances. They meticulously review the evidence, identify weaknesses in the prosecution's case, and develop a strategy aimed at getting the best possible outcome for you—whether it's dismissal, a plea deal, or a win at trial.

3. Access to Resources

Specialist criminal lawyers have access to a network of resources, including expert witnesses, forensic analysts, and private investigators, that can be crucial in building your defense. These professionals can analyze evidence, challenge the prosecution's findings, and provide valuable testimony that can significantly strengthen your case.

4. Effective Court Representation

Court procedures can be complicated, and one wrong step could jeopardize your defense. A seasoned criminal lawyer is familiar with court protocols and understands how to present your case persuasively. Whether it's a bail application, a pre-trial hearing, or representing you during a full trial, a specialist lawyer will ensure that every legal argument is expertly made.

5. Negotiation Skills

In many cases, your lawyer can negotiate with the prosecution to secure a more favorable outcome. A skilled criminal lawyer knows when and how to approach plea bargains, working to reduce charges or lessen the severity of the sentence you face. This experience in negotiation can be the key to avoiding harsher penalties.

6. Knowledge of Precedents and Case Law

A good criminal lawyer will have in-depth knowledge of NSW criminal law and be up to date on the latest legal precedents. This expertise allows them to craft innovative defense strategies and challenge the prosecution’s evidence using relevant case law that can lead to the dismissal or reduction of charges.

7. Preparation for Trial

If your case goes to trial, thorough preparation is essential. Your criminal lawyer will handle every aspect of trial preparation, including reviewing witness testimony, gathering evidence, and devising cross-examination strategies. A well-prepared lawyer can anticipate the prosecution’s moves and is equipped to counter them effectively, increasing your chances of a successful outcome.

8. Minimizing Penalties or Sentences

Even if a conviction seems unavoidable, a specialist criminal lawyer will fight to reduce penalties or seek alternative sentencing options. They will present compelling arguments in sentencing hearings, emphasizing mitigating factors that could lead to a reduced sentence or a more favorable outcome.

9. Post-Trial Support

A criminal lawyer’s work doesn’t always end after the trial. If there are grounds for appeal, they can help you through the process and argue your case in higher courts. They ensure that you’re supported at every stage, even after the trial concludes.

Conclusion: The Right Defense Matters

When you're facing criminal charges, the stakes are high. Hiring a specialist criminal defense lawyer in NSW ensures that you have expert representation from someone who understands the complexities of the law, knows how to build a strong defense, and is committed to achieving the best possible outcome for you. Their experience, dedication, and knowledge are essential to navigating the legal system and protecting your future.

Contact our team today to discuss your case and see how we can help you through this challenging time.

Breaking Barriers: Female Solicitor at Velasquez Legal Named one of Sydney's Best for 2023

Fri, 14 Apr 2023 05:16:53 GMT

Celebrating the Hard Work and Expertise of a Trailblazing Colleague

Congratulations to our very own principal solicitor for being featured as one of the best female solicitors in Sydney for 2023!

We are extremely proud of your achievement and this recognition of your hard work, dedication, and expertise in the legal field.

As a female solicitor within our team, you have demonstrated that women can excel in the legal profession. Your achievement reflects the high standard of legal services that we provide to our clients, and the trust and confidence that they have in our team. You have shown that with hard work, dedication, and expertise, it is possible to succeed and excel in the legal profession.

Your colleagues and support staff have worked tirelessly alongside you to provide exceptional legal services to our clients, and this recognition is a testament to our team's dedication to our clients and their legal needs.

As you continue to build on your success and reputation, we will continue to support you in your efforts to provide the highest quality legal services to our clients. We are confident that your success will inspire other members of our team to strive for excellence in their respective roles, and we look forward to continuing to work together to achieve great things.

Check out who else was featured on the list at https://www.lawyersbarristersawards.com.au/

Threatening or Intimidating Judges, Witnesses, Jurors or Public Justice Officials | Section 322 Crimes Act 1900

Thu, 05 Jan 2023 02:50:16 GMT

Section 322 of the Crimes Act of 1900 makes it illegal to threaten or intimidate judges, witnesses, jurors, or public justice officials. The maximum sentence for this crime is 10 years in prison, or 14 years if the behaviour was meant to get someone convicted or found not guilty of a serious indictable crime.

To prove the crime, the prosecution has to prove a number of facts beyond a reasonable doubt, and if they can't do that, the person is entitled to be set free.

There are also a number of ways to defend yourself in court if you are charged with the crime.

Read on to learn more about threatening or intimidating judges, witnesses, jurors, or other public justice officials, including what the crimes are, what the prosecution has to prove, what your options are, how you can defend yourself, and what the penalties are.

The Rules

What is the crime of threatening or trying to scare judges, witnesses, jurors, or other people involved in the justice system?

Under section 322 of the Crimes Act of 1900, it is against the law to threaten or scare judges, witnesses, jurors, or public justice officials.

Trying to scare or threaten a witness

A person is guilty of threatening or intimidating a witness under Section 322(a) if he or she:

Doing something to hurt or hurt someone else, or threatening to do so, with the intention of getting a person who has been or will be called as a witness in a court case to give false evidence, withhold true evidence, not show up to the court case, or not produce evidence under a summons or subpoena.

A "judicial proceeding" is a place or time where a judge or other judge-like person can take sworn testimony.

A "judicial tribunal" is any person, like a coroner or arbitrator, court, or other group that is allowed by law or by the parties to hold a hearing to decide something.

Trying to scare or threaten a juror

A person is guilty of threatening or intimidating a juror under Section 322(b) if he or she:

Does or causes an injury or harm to a person, or threatens to do so, with the intention of swaying someone, whether or not it's a specific person, in his or her behaviour as a juror or attendance at a court case.

It doesn't matter if the person was sworn in as a juror at the time of the behaviour.

Trying to scare or threaten a judge or police officer

A person is guilty of threatening or intimidating a judicial officer under Section 322(c) if he or she:

Does or causes harm or injury to a person, or threatens to do so, and the person is a judicial officer, and the person does this to try to change how the person acts as a judge.

A "judicial officer" is a person who is a court of law or who, alone or with others, makes up a court of law.

Among these are:

A coroner, a magistrate in a local or children's court, a judge in a district court, and a justice in the Federal, Supreme, or High Court.

Trying to scare or scare off a public justice official

A person is guilty of threatening or intimidating a public justice official under Section 322(d) if he or she:

Does or causes any harm or harm to a person, or threatens to do so, and the person was a public justice official, and the person did this to try to change the person's behaviour as a public justice official.

A "public justice official" is anyone who works for a government agency, department, or organisation to investigate, find, or prosecute criminals. A judicial officer, like a magistrate, judge, or justice of a court or tribunal, is not a "public justice official."

Among these are:

A police officer, a prosecutor for the police, a lawyer for the DPP, and a prosecutor for the Crown.

What is the punishment?

For threatening or intimidating judges, witnesses, jurors, or public justice officials, the maximum sentence is 10 years in prison, or 14 years if the behaviour was meant to get someone convicted or cleared of a serious crime.

But it's important to remember that this is the maximum sentence that can be given and that the court can choose from any of the following:

Section 10: Order of Dismissal with Conditions

Fine Order for Community Service

Order for Strict Punishment

Less time in prison

What Does the Government Need to Show?

It's important to remember that the prosecution has to prove each "element" (or ingredient) of the specific crime under Section 322 beyond all reasonable doubt at all times.

Trying to scare or threaten a witness

For someone to be found guilty of threatening or intimidating a witness, the prosecution must prove beyond a reasonable doubt that each of the following is true:

The defendant hurt or hurt someone or threatened to hurt them, and by doing so, the defendant wanted to get a person called as a witness in a court case or to be called as a witness in a court case to give false evidence, withhold true evidence, not show up to the court case, or not produce anything in evidence in response to a summons or subpoena.

A "judicial proceeding" is a place or time where a judge or other judge-like person can take sworn testimony.

A "judicial tribunal" is any person, like a coroner or arbitrator, court, or other group that is allowed by law or with the consent of the parties to hold a hearing to decide something.

If the prosecution can't prove each of these things to the required level, the case will be dropped.

Trying to scare or threaten a juror

For someone to be found guilty of threatening or intimidating a juror, the prosecution must prove beyond a reasonable doubt all of the following:

The defendant hurt or hurt someone or threatened to hurt them, and he or she did this with the intention of swaying someone, even if it wasn't a specific person, in how they acted as a juror or whether or not they went to court as a juror.

It doesn't matter if the person was sworn in as a juror at the time of the behaviour.

Trying to scare or threaten a judge or police officer

For a person to be found guilty of threatening or intimidating a judge or lawyer, the prosecution must prove beyond a reasonable doubt that each of the following is true:

The person who was hurt or threatened to be hurt was a judge, and the person who was hurt or threatened to be hurt was a judge. The person who was hurt was a judge, and the person who was hurt was a judge. The person who was hurt was a judge, and the person who was hurt was a judge.

A "judicial officer" is a person who is a court of law or who, alone or with others, makes up a court of law.

A "judicial tribunal" is any person, court, or other group that is allowed by law or by the parties to hold a hearing to decide something.

Among these are:

A coroner, a magistrate in a local or children's court, a judge in a district court, and a justice in the Federal, Supreme, or High Court.

Trying to scare or scare off a public justice official

For someone to be found guilty of threatening or intimidating a public justice official, the prosecution must prove beyond a reasonable doubt that each of the following is true:

The person who was hurt or threatened to be hurt was a public justice official. The person who was hurt or threatened to be hurt was a public justice official. The person who was hurt or threatened to be hurt was a public justice official. The person who was hurt or threatened to be hurt was a public justice official.

Among these are:

A policeman or woman

A police prosecutor

A lawyer for the DPP and a prosecutor for the Crown.

How do you defend yourself?

In addition to having to prove each part of the crime, the prosecution must also refute any of the following defences if they are raised in a proper way:

Duress is when you were scared or forced to do something.

Necessity, in which the act was done to avoid danger, and Self-Defense, in which the act was done to protect yourself or someone else.

It must prove beyond a reasonable doubt that these defences don't work.

Your Choices in Court Not Guilty Plea

It is important to remember that it is always up to the prosecution to prove guilt beyond a reasonable doubt, and that the prosecution must disprove any legal defence that can be made based on the evidence in front of the court.

Trying to scare or threaten a witness

Section 322(a) says that you can't be found guilty of threatening or intimidating a witness unless the prosecution can prove beyond a reasonable doubt that:

You hurt or hurt someone, or threatened to hurt them, and you did so with the intention of getting a person called as a witness in a court case, or to be called as a witness in a court case, to give false evidence, withhold true evidence, not show up to the case, or not bring anything in as evidence when asked to by a summons or subpoena.

There are a number of ways to defend yourself against the charge, such as saying:

The prosecution can't show that you hurt or hurt someone else, or that you threatened to hurt or hurt someone else.

The prosecution can't prove that any of these actions or threats were meant to get a witness or potential witness to give false evidence, withhold true evidence, not show up to court, or not give anything in response to a summons or subpoena. Or, there is a good legal defence that the prosecution can't prove isn't true.

If any of these things happen, you should not be found guilty of the crime.

Trying to scare or threaten a juror

Before you can be found guilty of threatening or intimidating a juror under section 322(b), the prosecution must prove beyond a reasonable doubt that:

You hurt or hurt someone or threatened to hurt them, and by doing so, you wanted to influence someone, whether or not it was a specific person, in how they acted as a juror in a court case or whether or not they showed up as a juror in a court case.

There are a number of ways to defend yourself against the charge, such as saying:

The prosecution can't prove that you hurt or harmed someone or threatened to, The prosecution can't prove that any of your actions or threats were meant to get someone to behave differently as a juror in a court case or not show up as a juror in a court case, or There is a valid legal defence that the prosecution can't disprove beyond a reasonable doubt.

If any of these things happen, you should not be found guilty of the crime.

Trying to scare or threaten a judge or police officer

Before you can be found guilty of threatening or intimidating a judicial officer under section 322(c), the prosecution must prove beyond a reasonable doubt that:

You hurt or hurt someone, or threatened to hurt them, and the person was a judicial officer. You did this because you wanted to make the person act differently as a judicial officer.

There are a number of ways to defend yourself against the charge, such as saying:

The prosecution can't show that you hurt or hurt someone else, or that you threatened to do so.

The government can't prove that the person was a judge or lawyer.

The prosecution can't prove that the action or threat was meant to make the person act differently as a judge, or there is a good legal defence that the prosecution can't prove beyond a reasonable doubt.

If any of these things happen, you should not be found guilty of the crime.

Trying to scare or scare off a public justice official

Before you can be found guilty of threatening or intimidating a public justice official under section 322(d), the prosecution must prove beyond a reasonable doubt that:

You hurt or hurt someone, or threatened to hurt them, and the person was a public justice official. You meant for your actions to affect the person's behaviour as a public justice official in a court case or related to a court case.

There are a number of ways to defend yourself against the charge, such as saying:

The prosecution can't show that you hurt or hurt someone else, or that you threatened to do so.

The prosecution can't prove that the person was a public justice official, that the action or threat was meant to affect the person's behaviour as a public justice official, or that there is a good legal defence that the prosecution can't disprove beyond a reasonable doubt.

If any of these things happen, you should not be found guilty of the crime.

A good lawyer will be able to write to the prosecution to try to get the case against you dropped, or they will fight to get it thrown out of court if it goes to a hearing or trial.

Taking the blame

You might decide to plead guilty to the crime if the evidence against you is very strong.

In that case, your lawyer might be able to talk with the police about the "facts" to make the crime less serious.

Your lawyer can also help you get materials that can be given to the court during your sentencing, such as a letter of apology, references from people who know you well, and any documents from counsellors or doctors you have seen.

Together, these pieces of evidence and your lawyer's convincing arguments in court can help make sure you get the lightest sentence possible given the situation.

By pleading guilty early, you could get a "discount" of up to 25% on your sentence. This could mean that you get a less severe punishment, like a section 10 dismissal or a conditional release order, instead of a harsher one.

You will also save time, money, and stress by not having to go to a hearing or trial to defend yourself.

Corruption of Witnesses or Jurors | Section 321 Crimes Act 1900

Thu, 05 Jan 2023 02:49:53 GMT

Corrupting witnesses or jurors is an offence under section 321 of the Crimes Act 1900.

The maximum penalty for the offence is 10 years in prison, or 14 years where the conduct was intended to procure the conviction or acquittal of any person for a serious indictable offence.

The prosecution is required to prove a number of facts beyond a reasonable doubt in order to establish the offence, and a person is entitled to an acquittal if they are unable to do so.

There are also a number of legal defences available to those who are going to court for the offence.

Read on for more information about corruption of witnesses or jurors, including the offence itself, the matters that the prosecution needs to prove, your options, the available defences and the applicable penalties.

The Law

What is the Offence of Corrupting Witnesses or Jurors?

Corruption of witnesses or jurors is an offence under section 321 of the Crimes Act 1900.

Corrupting a witness

Section 321(1)(a) states that a person is guilty of corrupting a witness if he or she:

Confers procures or offers any benefit on or for any person or attempts to do so, and

Does so intending to influence any person called, or to be called, in judicial proceedings to give false evidence, withhold true evidence or not to attend as a witness, or not produce anything in evidence under a summons or subpoena.

A ‘judicial proceeding’ is one in or before which a judicial tribunal can take evidence under oath.

A ‘judicial tribunal’ is any person, including a coroner or arbitrator, or any court or other body authorised by law or by the consent of parties that may conduct a hearing to determine any matter or thing.

Corrupting a juror

Section 321(1)(b) states that a person is guilty of corrupting a juror if he or she:

Confers procures or offers any benefit on or for any person or attempts to do so,

Does so intending to influence any person, whether or not a particular person, in their conduct as a juror in any judicial proceeding, or not to attend as a juror in any judicial proceeding, and

Intends by doing so to pervert the course of justice.

It is immaterial whether the person who is intended to be influenced had been sworn as a juror at the time of the conduct.

‘Perverting the course of justice’ is defined by section 312 of the Act as, “obstructing, preventing, perverting or defeating the course of justice or the administration of law”.

It includes such conduct as:

Attempting to bribe a police or judicial officer to avoid being prosecuted or punished,

Falsely swearing or declaring that another person was responsible for an offence

Using another person’s phone or email to manufacture a defence to a crime, or

Encouraging or bribing another person to plead guilty to a crime they did not commit, or to provide a false alibi, or give false testimony in court.

Benefitting from corrupting a witness

Section 321(2)(a) states that a person is guilty of benefitting from corrupting a witness if he or she:

Solicits accepts or agrees to accept any benefit for him or herself or for another, and

Does so in order for a witness in judicial proceedings to give false evidence, or withhold true evidence, or not attend as a witness, or not produce anything in evidence under a summons or subpoena.

Benefitting from corrupting a juror

Section 321(2)(b) states that a person is guilty of benefitting from corrupting a juror if he or she:

Solicits accepts or agrees to accept any benefit for him or herself or for another,

Does for him or herself as a juror in judicial proceedings or for any other person who is a juror in judicial proceedings to do or not do anything related to those proceedings, or to not attend those proceedings, and

Intends by doing so to pervert the course of justice.

What are the Penalties?

The maximum penalty for corrupting witnesses or jurors is 10 years in prison or 14 years where the conduct was intended to procure the conviction or acquittal of any person for a serious indictable offence (which is an offence that carries a maximum penalty of 5 years or more in prison).

However, is important to bear in mind that this is the maximum sentence that can be imposed, and that the court can apply any of the following penalties for the offence:

Section 10 Dismissal

Conditional Release Order

Fine

Community Correction Order

Intensive Correction Order

A shorter prison term

What Does the Prosecution Have to Prove?

It is important to bear in mind that, at all times, the prosecution bears the onus of establishing each element of the specific offence under section 321 beyond all reasonable doubt.

Corrupting a witness

For a person to be found guilty of corrupting a witness under section 321(1)(a), the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond a reasonable doubt:

The defendant conferred, procured or offered any benefit on or for any person or attempted to do so, and

The defendant did so intending to influence any person called, or to be called, in judicial proceedings to give false evidence, withhold true evidence or not to attend as a witness, or not produce anything in evidence under a summons or subpoena.

A ‘judicial proceeding’ is one in or before which a judicial tribunal can take evidence under oath.

The prosecution will fail if it cannot prove each of these elements to the required standard.

Corrupting a juror

For a person to be found guilty of corrupting a juror under section 321(1)(b), the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond a reasonable doubt:

The defendant conferred, procured or offered any benefit on or for any person or attempted to do so,

The defendant did so intending to influence any person, whether or not a particular person, in their conduct as a juror in any judicial proceeding, or not to attend as a juror in any judicial proceeding, and

The defendant intended by doing so to pervert the course of justice.

It is immaterial whether the person intended to be influenced had been sworn as a juror at the time of the conduct.

‘Pervert the course of justice’ is defined by section 312 of the Act as: “obstructing, preventing, perverting or defeating the course of justice or the administration of law”.

It includes such conduct as:

Attempting to bribe a police or judicial officer to avoid being prosecuted or punished,

Falsely swearing or declaring that another person was responsible for an offence

Using another person’s phone or email to manufacture a defence to a crime, or

Encouraging or bribing another person to plead guilty to a crime they did not commit, or to provide a false alibi, or give false testimony in court.

Benefitting from corrupting a witness

For a person to be found guilty of benefitting from corrupting a witness under 321(2)(a), the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond a reasonable doubt:

The defendant solicited, accepted or agreed to accept any benefit for yourself or another, and

The defendant did so in order for a witness in judicial proceedings to give false evidence, or withhold true evidence, or not attend as a witness, or not produce anything in evidence under a summons or subpoena.

Benefitting from corrupting a juror

For a person to be found guilty of benefitting from corrupting a juror under 321(2)(b), the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond a reasonable doubt:

The defendant solicited, accepted or agreed to accept any benefit for him or herself or another person,

The defendant did so for him or herself as a juror in judicial proceedings or for any other person who is a juror in judicial proceedings to do or not do anything related to those proceedings, or to not attend those proceedings, and

The defendant intended by doing so to pervert the course of justice.

What are the Defences?

In addition to the requirement to prove each element of the offence, the prosecution must also disprove any of the following defences if properly raised:

Duress, which is where you were threatened or coerced,

Necessity, where the act was necessary to avert danger, and

Self-defence, where you engaged in the act to defend yourself or another

It must disprove any such defences beyond all reasonable doubt.

Your Options in Court

Pleading Not Guilty

It is important to bear in mind that the burden of proving guilt beyond a reasonable doubt always rests on the prosecution, and that the prosecution must disprove any valid legal defence raised on the evidence before the court.

Corrupting a witness

Before you can be found guilty of corrupting a witness under 321(1)(a), the prosecution must prove beyond reasonable doubt that:

You conferred, procured or offered any benefit on or for any person or attempted to do so, and

You did so intending to influence any person called, or to be called, in judicial proceedings, give false evidence, withhold true evidence or not to attend as a witness, or not produce anything in evidence under a summons or subpoena.

There are a number of ways to defend a charge of corrupting a witness, including raising the fact that:

The prosecution cannot prove you conferred, procured or offered any benefit on or for any person or attempted to do so,

The prosecution cannot prove did so intending to influence any person called, or to be called, in judicial proceedings,

The prosecution cannot prove any such influence was intended to get them to give false evidence, withhold true evidence or not to attend as a witness, or not produce anything in evidence under a summons or subpoena, or

A valid legal defence is available which the prosecution is unable to disprove beyond a reasonable doubt.

If any of these matters prevail, you must be found not guilty of the offence.

A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn, or fight to have it thrown out of court if it proceeds to a defended hearing or trial.

Corrupting a juror

Before you can be found guilty of corrupting a juror under 321(1)(b), the prosecution must prove beyond reasonable doubt that:

You conferred, procured or offered any benefit on or for any person or attempted to do so,

You did so intending to influence any person, whether or not a particular person, in their conduct as a juror in any judicial proceeding, or not to attend as a juror in any judicial proceeding, and

You intended by doing so to pervert the course of justice.

There are a number of ways to defend a charge of corrupting a juror, including raising the fact that:

The prosecution cannot prove you conferred, procured or offered any benefit on or for any person or attempted to do so,

The prosecution cannot prove that if you did the above, you did not do so intending to influence any person, whether or not a particular person, in their conduct,

The prosecution cannot prove that any conduct you intended to influence was in relation to as a juror in any judicial proceeding, or not to attend as a juror in any judicial proceeding,

The prosecution cannot prove that, through your conduct, you intended to pervert the course of justice, or

A valid legal defence is available which the prosecution is unable to disprove beyond a reasonable doubt.

If any of these matters prevail, you must be found not guilty of the offence.

Benefitting from corrupting a witness

Before you can be found guilty of benefitting from corrupting a witness under 321(2)(a), the prosecution must prove beyond reasonable doubt that:

You solicited, accepted or agreed to accept any benefit for yourself or another, and

You did so in order for a witness in judicial proceedings to give false evidence, or withhold true evidence, or not attend as a witness, or not produce anything in evidence under a summons or subpoena.

There are a number of ways to defend a charge of benefitting from corrupting a witness, including raising the fact that:

The prosecution cannot prove you solicited, accepted or agreed to accept any benefit for yourself or another,

The prosecution cannot prove the purpose of any such benefit was for a witness in judicial proceedings to give false evidence or withhold true evidence, or not attend as a witness, or not produce anything in evidence under a summons or subpoena, or

A valid legal defence is available which the prosecution is unable to disprove beyond a reasonable doubt.

If any of these matters prevail, you must be found not guilty of the offence.

Benefitting from corrupting a juror

Before you can be found guilty of benefitting from corrupting a juror under 321(2)(b), the prosecution must prove beyond reasonable doubt that:

You solicited, accepted or agreed to accept any benefit for him or herself or another person,

You did so for yourself as a juror in judicial proceedings or for any other person who is a juror in judicial proceedings to do or not do anything related to those proceedings or to not attend those proceedings, and

You intended by doing so to pervert the course of justice.

There are a number of ways to defend a charge of benefitting from corrupting a juror, including raising the fact that:

The prosecution cannot prove you solicited, accepted or agreed to accept any benefit for him or herself or another person,

The prosecution cannot prove the purpose of any such benefit was for yourself as a juror in judicial proceedings or for any other person who is a juror in judicial proceedings to do or not do anything related to those proceedings or to not attend those proceedings, and

The prosecution cannot prove you intended by doing so to pervert the course of justice.

A valid legal defence is available which the prosecution is unable to disprove beyond a reasonable doubt.

If any of these matters prevail, you must be found not guilty of the offence.

Pleading Guilty

Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.

In that case, your lawyer may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.

Your lawyer can also guide you on obtaining materials that can be handed up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.

These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.

By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.

You will also be spared the time, expense and stress of a defended hearing or trial.

Perverting the Course of Justice | Section 319 Crimes Act 1900

Thu, 05 Jan 2023 02:49:45 GMT

Section 319 of the Crimes Act of 1900 says that changing the way justice is done is a crime that can get you up to 14 years in prison.

To prove the crime, the prosecution has to prove a number of facts beyond a reasonable doubt, and if they can't do that, the person is entitled to be set free.

There are also a number of ways to defend yourself in court if you are charged with the crime.

Read on to learn more about perverting the course of justice, including what it is, what the prosecution has to prove, what your options are, how you can defend yourself, and what the penalties are.

The Rules

What does it mean to change the way justice is done?

Under section 319 of the Crimes Act of 1900, it is illegal to try to get around the law.

In this part, it says that a person is guilty if:

Does something or doesn't do something, and does it or doesn't do it with the intent to change the way justice is done.

"Pervert the course of justice" is defined by Section 312 of the Crimes Act as "obstructing, preventing, perverting, or defeating the course of justice or the administration of the law."

Some examples of tampering with the course of justice are:

Trying to pay off a police officer or a judge to avoid being charged or punished,

Making a false oath or statement that someone else did something wrong

Using someone else's phone or email to make up a defence for a crime. Encouraging or paying someone to plead guilty to a crime they didn't commit, give a false alibi, or lie in court.

What is the punishment?

If you try to change the way justice is done, you can get up to 14 years in prison.

But it's important to remember that this is the maximum sentence that can be given and that the court can choose from any of the following:

Section 10: Order of Dismissal with Conditions

Fine Order for Community Service

Order for Strict Punishment

Less time in prison

What Does the Government Need to Show?

For someone to be found guilty of perverting the course of justice, the prosecution must prove beyond a reasonable doubt that each of the following "elements" of the crime were present:

The defendant did something or didn't do something, and he or she did it or didn't do it with the intent to get around the law.

If the prosecution can't prove each of these things to the required level, the case will be dropped.

How do you defend yourself?

In addition to having to prove each part of the crime, the prosecution must also refute any of the following defences if they are raised in a proper way:

Duress is when you were scared or forced to do something.

Necessity, in which the act was done to avoid danger, and Self-Defense, in which the act was done to protect yourself or someone else.

It must prove beyond a reasonable doubt that these defences don't work.

Your Choices in Court Not Guilty Plea

Before you can be found guilty of perverting the course of justice, the prosecution must prove beyond a reasonable doubt that:

You did something or didn't do something, and you did it or didn't do it with the intention of getting in the way of justice.

There are a number of ways to defend yourself against charges of perverting the course of justice.

The prosecution can't prove that you did something or didn't do something. They also can't prove that anything you did or didn't do was done with the intention of perverting the course of justice. You have a valid legal defence that the prosecution can't prove beyond a reasonable doubt.

If any of these things happen, you should not be found guilty of the crime.

A good lawyer will be able to write to the prosecution to try to get the case against you dropped, or they will fight to get it thrown out of court if it goes to a hearing or trial.

Taking the blame

You might decide to plead guilty to the crime if the evidence against you is very strong.

In that case, your lawyer might be able to talk with the police about the "facts" to make the crime less serious.

Together, these pieces of evidence and your lawyer's convincing arguments in court can help make sure you get the lightest sentence possible given the situation.

You will also save time, money, and stress by not having to go to a hearing or trial to defend yourself.

Making or Using False Official Instrument to Pervert the Course of Justice | Section 318 Crimes Act 1900

Thu, 05 Jan 2023 02:49:28 GMT

Under section 318 of the Crimes Act of 1900, it is illegal to make or use a fake official document to get around the law. This is punishable by up to 14 years in prison.

To prove the crime, the prosecution has to prove a number of facts beyond a reasonable doubt, and if they can't do that, the person is entitled to be set free.

There are also a number of ways to defend yourself in court if you are charged with the crime.

If you have been charged with making or using a fake official document to pervert the course of justice, you can call Sydney Criminal Lawyers at any time at (02) 9261 8881 to set up a free first meeting with an experienced criminal defence lawyer who will look over the accusations and tell you what your options are and the best way to move forward.

Read on to learn more about the laws surrounding the crime, including what the crime is, what the prosecution has to prove, what your options are, how you can defend yourself, and what the penalties are.

The Laws

What is the crime of making or using a fake official document to change the way justice is done?

Under section 318 of the Crimes Act of 1900, it is illegal to make or use a fake official document to get around the law.

Section 318(2) says that a person is guilty of making a false official document to get around the law if:

Makes a copy of a document that he or she knows is a fake official document, or makes a copy of a document that he or she knows is a fake official document. The person does this with the intention of getting someone else to accept the document as real or the copy as a real official document.

Section 318(3) says that a person is guilty of perverting the course of justice by using a fake official document if he or she:

makes use of a tool,

Knows the document was a fake official document or a copy of a fake official document, tries to get someone else to accept the document as real or the copy as a real official document, and plans to change the way the law works if the person accepts the document.

An "official instrument" is one that is made or given out by a public official or by a court.

A "public officer" is someone who has any power, authority, duty, or function given to them by any level of the Australian government or delegated by any level of the Australian government.

A "judicial tribunal" can be a person, like a coroner or arbitrator, a court, or any other group that is allowed by law or by the agreement of the parties to hold a hearing to decide something.

A "false document" is something that claims to be:

Made in a form or with terms by someone who didn't make it in that form or with those terms. Made in a form or with terms, or changed in any way, on authority, by someone who didn't have authority or didn't exist. Made or changed on the wrong date or at the wrong place.

Section 312 of the Act says that "perverting the course of justice" means to "obstruct, prevent, pervert, or defeat the course of justice or the administration of the law."

Some examples of tampering with the course of justice are:

Trying to pay off a police officer or a judge to avoid being charged or punished,

swearing or saying that someone else did something wrong when they didn't,

Using someone else's phone or email to make up a defence for a crime. Encouraging or paying someone to plead guilty to a crime they didn't do, give a fake alibi, or lie in court.

What is the punishment?

If you make or use a fake official document to get around the law, you could spend up to 14 years in prison.

But it's important to remember that this is the maximum sentence that can be given and that the court can choose from any of the following:

Section 10: Order of Dismissal with Conditions

Fine Order for Community Service

Order for Strict Punishment

Less time in prison

What Does the Government Need to Show?

For a person to be found guilty of section 318(2)'s "making a false official instrument to pervert the course of justice," the prosecution must prove beyond a reasonable doubt each of the following "elements" of the crime:

The defendant made a fake official document or a copy of a document he or she knew was a fake official document. The defendant did this with the intention of getting someone else to accept the document as real or the copy as a real official document. The defendant intended for this acceptance to change the way justice was done.

If the prosecution can't prove each of these things to the required level, the case will be dropped.

For a person to be found guilty of section 318(3)'s "using a false official instrument to pervert the course of justice," the prosecution must prove beyond a reasonable doubt each of the following "elements" of the crime:

The defendant used a document that he or she knew was a fake official document or a copy of a fake official document. The defendant knew it was a fake official document or a copy of a fake official document. The defendant did this on purpose to get someone else to accept the document as real or to accept the copy as a real official document.

Again, the case will be dropped if the prosecution can't prove each of these things to the required level.

How do you defend yourself?

In addition to having to prove each part of the crime, the prosecution must also refute any of the following defences if they are raised in a proper way:

Duress is when you were scared or forced to do something.

Necessity, in which the act was done to avoid danger, and Self-Defense, in which the act was done to protect yourself or someone else.

It must prove beyond a reasonable doubt that these defences don't work.

Your Choices in Court

Not Guilty Plea

Before you can be found guilty under section 318(2) of making a false official document to obstruct the course of justice, the prosecution must prove beyond a reasonable doubt that:

You made a fake official document, or you made a copy of a fake official document that you knew was fake. You did this on purpose to get someone else to accept the document as real, or to accept the copy as real, and you intended for that acceptance to change the way justice works.

There are several ways to defend making false official instrument charges, such as saying:

The prosecution can't prove that you made an instrument or made a copy of an instrument. They also can't prove that any instrument you made or copied was an official one.

The prosecution can't show that the original document or its copy was a "false" official document.

The prosecution can't prove that you knew the document you made or copied was fake.

The prosecution can't show that you meant for your actions to make someone accept the original or a copy as real.

The prosecution can't prove that you accepted something with the intent to change the way justice works, or you have a good legal defence that the prosecution can't prove isn't true.

If any of these things happen, you should not be found guilty of the crime.

Before you can be found guilty of section 318(3)'s charge of using a fake official document to get around the law, the prosecution must prove beyond a reasonable doubt that:

You used an official document that you knew was a fake, or you used a copy of a fake official document that you knew was a fake. You did this on purpose to get someone else to accept the document as real, or the copy as real, and you meant for that acceptance to change the way justice works.

There are a number of ways to defend yourself against charges of using a fake official document.

The prosecution can't prove that you used an official instrument or a copy of one.

The prosecution can't prove that the official document or copy you used was "false."

The prosecution can't prove that you knew the official document or copy you used was a fake,

The prosecution can't show that you meant for your actions to make someone accept the original or a copy as real.

The prosecution can't prove that you accepted something with the intent to change the way justice works, or you have a good legal defence that the prosecution can't prove isn't true.

Again, any of these things must happen for you to be found not guilty of the crime.

A good lawyer will be able to write to the prosecution to try to get the case against you dropped, or they will fight to get it thrown out of court if it goes to a hearing or trial.

Taking the blame

You might decide to plead guilty to the crime if the evidence against you is very strong.

In that case, your lawyer might be able to talk with the police about the "facts" to make the crime less serious.

Together, these pieces of evidence and your lawyer's convincing arguments in court can help make sure you get the lightest sentence possible given the situation.

You will also save time, money, and stress by not having to go to a hearing or trial to defend yourself.

Concealing Child Abuse Offence | Section 316A(1) Crimes Act 1900

Mon, 19 Dec 2022 17:00:05 GMT

Section 316A(1) of the Crimes Act of 1900 makes it a crime to hide a child abuse crime. The maximum penalty for this crime is:

2 years in prison if the maximum prison sentence for hiding child abuse was less than 5 years
5 years in prison if the maximum prison sentence for hiding child abuse was 5 years or more.

To prove the crime, the prosecution has to prove a number of facts beyond a reasonable doubt, and if they can't do that, the person is entitled to be set free.

There are also a number of ways to defend yourself in court if you are charged with the crime.

The Law

What is Hiding a Crime Against a Child?

Section 316A(1) of the Crimes Act of 1900 makes it a crime to hide a child abuse crime. The maximum penalty for this crime is:

2 years in prison if the maximum prison sentence for hiding child abuse was less than 5 years
5 years in prison if the maximum prison sentence for hiding child abuse was 5 years or more.

In this section, it says that a person has broken the law if he or she:

Was an adult
Knew, thought, or should have known that a crime against a child had been committed
Knew, thought, or should have known that he or she had information that could help catch, prosecute, or convict the criminal
Didn't tell a NSW police officer about the information as soon as possible after getting it
didn't have a good reason for not doing so.

Section 316A makes it clear that telling someone about a crime of child abuse is not unprofessional or a breach of professional ethics. It also doesn't make you liable in a civil case, like for defamation, if you told someone in good faith.

It also says that a prosecution can't start without the DPP's permission if the information came from certain professions, callings, and vocations. These include doctors, lawyers, and people in the clergy.

A child abuse offence is:

a) The murder or manslaughter of a child, including infanticide under section 22A of the Act. b) Any of the following crimes where the victim is a child:

I Murder with the intent to kill, as defined by Section 27 of the Act, which includes giving someone a poison or something that will hurt them, or making them seriously hurt or kill them.

(ii) Under Section 29 of the Act, trying to kill someone by giving them a poison or something that will hurt them, shooting at or firing a gun, drowning, suffocating, or strangling them with the intent to kill,

(iii) Intentional wounding or serious bodily harm under section 33,

(iv) Section 35 reckless wounding or serious bodily harm,

(v) Section 37: Choking, strangulation, or suffocation

(vi) Using a drug that makes you drunk to commit a felony under Section 38,

(vii) Spiking food or drink in violation of Section 38A,

(viii) Using poison to put someone's life in danger or cause serious bodily harm, which is against section 39,

(ix) Using poison to hurt or upset someone, which is against section 41,

(x) Poisoning the water supply in violation of Section 41A,

(xi) Not giving people the things they need to live, as stated in Section 44,

(xii) Female genital mutilation under section 45,

(xiii) Removing a person from the state for female genital mutilation under Section 45A,

(xiv) Injuring a person with gunpowder, which is against section 46,

(xv) Assault causing real bodily harm under section 59,

(xvi) Assaults in schools, according to section 60E,

(xvii) Abduction according to section 86,

(xviii) Voyeurism under section 91J

(xix) Sexual assault under section 61i,

(xx) Assault on a woman with a weapon under section 61J,

(xxi) Section 61JA aggravated sexual assault in company,

(xxii) Assault with the intent to have a sexual act under Section 61K,

(xxiii) Sections 61KC, 66DA, and 66DB talk about sexual touching.

(xxiv) Section 61KD, aggravated sexual touching,

(xxv) Acts of sexuality listed in sections 61KE, 66DC, and 66DD,

(xxvi) Sexual act with serious consequences under sections 61KF and 66DE,

(xxvii) Having sexual relations with a child in violation of sections 66A and 66C,

(xxviii) Under sections 66B and 66D, if you try to have sexual relations with a child,

(xxix) Sexual act for the purpose of making material about child abuse under section 66DF,

(xxx) Sexual abuse of a child that goes on for a long time (section 66EA),

(xxxi) Getting or preparing a child under 16 for sexual activity that is against the law (section 66EB), (xxxii) Getting or preparing a person for sexual activity with a child under that person's control (section 66EC),

(xxxiii) Sexual contact with a minor in a special case, as described in Sections 73 and 73A,

(xxxiv) Incest under section 78A

(xxxv) Section 78B, attempted incest,

(xxxvi) Sexual assault by forced self-manipulation, which is a violation of section 80A; (xxxvii) sexual servitude, which is a violation of section 80D;

(xxxviii) Business dealings that involve sexual servitude under Section 80E,

(xxxix) Incitement to commit sexual servitude under section 80G,

(xl) Under Section 91D, promoting or taking part in acts of child prostitution,

(xli) Getting money from child prostitution, which is a violation of section 91E, and (xlii) using a place for child prostitution, which is a violation of section 91F.

I Injuring a child at birth (section 42), (ii) Leaving a child under 7 years old alone or in a dangerous place (section 43),

(iii) Not taking care of a child as a parent should under Section 43A,

(iv) Using a child to make child abuse material, which is against the law under section 91G, and (v) making, spreading, or having child abuse material, which is against the law under section 91H.

(d) Sexual crimes committed in the past that involved a child, (e) Attempts to commit any of the above crimes, and (f) Crimes from the past that are very similar to any of the above crimes.

What is the punishment?

The worst punishment for hiding a crime of child abuse is:

2 years in prison if the maximum prison sentence for hiding child abuse was less than 5 years
5 years in prison if the maximum prison sentence for hiding child abuse was 5 years or more.

But it's important to remember that this is the maximum sentence that can be given and that the court can choose from any of the following:

Section 10
Community Correction Order
Fine
Conditional Release Order for Dismissal
Order for Strict Punishment
Less time in prison

What does the prosecution need to prove?

For a person to be found guilty of hiding a child abuse crime, the prosecution must prove beyond a reasonable doubt that each of the following "elements" of the crime were met by the defendant:

Was an adult, knew, thought, or should have known that a crime against a child had been committed, knew, thought, or should have known that he or she had information that could help catch, prosecute, or convict the criminal,

Didn't tell a NSW police officer about the information as soon as possible after getting it, and didn't have a good reason for not doing so.

If the prosecution can't prove each of these things to the required level, the case will be dropped.

How do you defend yourself?

In addition to having to prove each part of the crime, the prosecution must also refute any of the following defences if they are raised in a proper way:

Duress is when you were scared or forced to do something.
Necessity, in which the act was done to avoid danger
Self-Defense, in which the act was done to protect yourself or someone else.

It must prove beyond a reasonable doubt that these defences don't work.

You can also show that you had a "reasonable excuse" for what you did. This includes situations like:

You had a good reason to think that the police already had the information
You told the police about the information through another law, like the Children and Young Persons (Care and Protection) Act 1998, the Children's Guardian Act 2019, or Part 3A of the Ombudsman Act 1974 before it was thrown out, or you had a good reason to think that someone else had done so,
You had good reason to worry about someone's safety if you told anyone about the information.
When you got the information, you were under 18 years old,
When you got the information, the alleged victim was an adult, and you had a good reason to think he or she didn't want it reported, or
The details were about a fight at a school, and:

There was only a small injury as a result.

Both sides were school kids younger than 18 years old.

You worked at the school

You took reasonable steps to tell the incident reporting unit or the principal or governing body if it was a government school. If it was a non-government school, you told the principal or governing body.

Your Choices in Court

Not Guilty Plea

Before you can be found guilty of hiding a child abuse crime, the prosecution must prove beyond a reasonable doubt that:

You were an adult
You knew, thought, or should have known that a child abuse crime had been committed
You knew, thought, or should have known that you had information that could help catch, prosecute, or convict the offender
You didn't tell a NSW police officer about the information as soon as you could after getting it
You didn't have a good reason for not doing so.

There are a number of ways to defend yourself against charges of hiding a child abuse crime, such as:

The prosecution can't show that you got information that could have helped them catch, prosecute, or convict someone else of a child abuse crime.
The prosecution can't show that you were an adult when you got this information.
The prosecution can't show that you thought or should have thought that the information you got could be useful in catching, prosecuting, or convicting someone else of a child abuse crime.
The prosecution can't prove that you didn't tell a New South Wales police officer about the information you got. If you're accused of telling a New South Wales police officer about the information, but not as soon as you could have, the prosecution can't prove that you didn't tell the officer as soon as you could have.
That the prosecution can't show that you didn't have a good reason for what you did. Concerning the last point, the law makes it clear that any of the following is a good reason:
You had a good reason to think that the police already knew,
You told someone about the information through the Children and Young Persons (Care and Protection) Act 1998, the Children's Guardian Act 2019, or Part 3A of the Ombudsman Act 1974 before it was taken away, or you had a good reason to think that someone else had done so.
You had good reason to worry about someone's safety if you told anyone about the information.
You were under 18 when you got the information, the alleged victim was an adult when you got the information, and you had a good reason to think he or she didn't want it reported, or
The details were about a fight at a school, and:

There was only a small injury as a result.

Both sides were school kids younger than 18 years old.

You worked at the school

If any of these things are true, you can't be found guilty of the crime.

A good lawyer will be able to write to the prosecution to try to get the case against you dropped, or they will fight to get it thrown out of court if it goes to a hearing or trial.

Guilty Plea

You might decide to plead guilty to the crime if the evidence against you is very strong.

In that case, your lawyer might be able to talk with the police about the "facts" to make the crime less serious.

Together, these pieces of evidence and your lawyer's convincing arguments in court can help make sure you get the lightest sentence possible given the situation.

You will also save time, money, and stress by not having to go to a hearing or trial to defend yourself.

Concealing a Serious Indictable Offence | Section 316(2) Crimes Act 1900

Wed, 14 Dec 2022 17:00:00 GMT

Section 316(1) of the Crimes Act of 1900 makes it illegal to hide a serious indictable crime. The maximum penalty for this crime is:

- 2 years in prison if the maximum sentence for the crime they hid was less than 10 years

- 3 years in prison if the maximum sentence for the crime they hid was more than 10 years but less than 20 years, or

- 5 years in prison, even though the maximum sentence for the crime was more than 20 years.

To prove the crime, the prosecution has to prove a number of facts beyond a reasonable doubt, and if they can't do that, the person is entitled to be set free.

There are also a number of ways to defend yourself in court if you are charged with the crime.

The Law

What does it mean to hide a serious indictable crime?

Under section 316(1) of the Crimes Act of 1900, it is a crime to hide a serious indictable crime.

In this section, it says that a person has broken the law if he or she:

- Was an adult at the time

- Knew or thought that another person had committed a serious indictable crime

- Knew or thought that he or she had information that could help with the arrest prosecution, or conviction of the offender

- Didn't tell law enforcement about the information

- Had no good reason for not telling them.

A "serious indictable offence" is a crime that can get you at least 5 years in prison as a maximum sentence. The covers most assault crimes (except for common assault), as well as other crimes against people (like detaining someone for personal gain or robbing them), drug crimes (except for drug possession), destroying or damaging property, and most crimes of dishonesty (eg larceny, embezzlement, fraud, break and enter etc).

For the purposes of this section, child abuse crimes like having a sexual relationship with a child, having child abuse materials, touching a child in a sexual way, etc. are not serious indictable crimes.

Section 316A of the Act says that it is a separate crime to hide a crime of child abuse.

No charges can be brought against someone for hiding a serious indictable crime without the approval of the Director of Public Prosecutions (DPP), if the relevant information was learned while the person was working as a lawyer or in another prescribed calling, profession, or vocation, like being a priest.

What is the punishment?

If you try to hide a serious indictable crime, you could get:

2 years in prison if the maximum sentence for the crime they hid was less than 10 years

3 years in prison if the maximum sentence for the crime they hid was more than 10 years but less than 20 years

5 years in prison if the maximum sentence for the crime they hid was more than 20 years.

But it's important to remember that these are the most severe punishments that can be given. The court can also use any of the following:

-Section 10: Order of Dismissal with Conditions

-Fine Order for Community Service

-Order for Strict Punishment

-Less time in prison

What does the prosecution need to prove?

For a person to be found guilty of hiding a serious indictable crime, the prosecution must prove beyond a reasonable doubt that each of the following are part of the crime:

- The accused was an adult,

- The defendant knew or thought that another person had committed a serious indictable crime.

- The defendant knew or thought that he or she had information that could help with the arrest, prosecution, or conviction of the offender for that crime.

The defendant did not tell law enforcement about that information. The defendant had no good reason for not telling law enforcement about that information.

If the prosecution can't prove each of these things to the required level, the case will be dropped.

A "serious indictable offence" is a crime that can get you at least 5 years in prison as a maximum sentence.

The crime does not include hiding a crime of child abuse, such as sexual contact with a child, child abuse material, or sexual contact with a child. Section 316A makes it a separate crime to hide these kinds of crimes.

Without the DPP's permission, no charges can be brought against an Australian lawyer or a member of the clergy.

What are the defences?

Your Choices in Court

Not Guilty Plea

Before you can be found guilty of hiding a serious indictable crime, the prosecution must prove beyond a reasonable doubt that:

- You were an adult

- You knew or thought that another person had committed a serious indictable crime

- You knew or thought that he or she had information that could help with the arrest, prosecution, or conviction of the offender for that crime

- You didn't tell law enforcement about that information

- You didn't have a good reason for not telling them.

You can defend yourself against a charge of hiding a serious indictable crime in a number of ways. For example, you can say:

- The government can't show that you were an adult at the time,

- The prosecution can't prove that you knew or thought that another person had committed a serious crime.

- The prosecution can't show that you knew or thought that he or she had information that could have helped catch or convict the criminal.

- The prosecution can't prove you didn't tell law enforcement about that information.

- The prosecution can't prove that you didn't tell law enforcement about the information because you had a good reason not to.

- You were a lawyer, a member of the clergy, or someone else on the list, and you were charged without the DPP's permission. - - - You have a good legal defence that the prosecution can't prove beyond a reasonable doubt.

If any of these things happen, you should not be found guilty of the crime.

A good lawyer will be able to write to the prosecution to try to get the case against you dropped, or they will fight to get it thrown out of court if it goes to a hearing or trial.

Guilty Plea

You might decide to plead guilty to the crime if the evidence against you is very strong.

In that case, your lawyer might be able to talk with the police about the "facts" to make the crime less serious.

Together, these pieces of evidence and your lawyer's convincing arguments in court can help make sure you get the lightest sentence possible given the situation.

You will also save time, money, and stress by not having to go to a hearing or trial to defend yourself.

Revenue NSW cancels more than 33,000 COVID-19 fines after Supreme Court ruling

Sun, 11 Dec 2022 06:09:29 GMT

After reviewing two fines totaling between $1,000 and $3,000, Justice Dina Yehia SC ruled earlier today that they did not comply with section 20 of the Fines Act.

It was the proverbial tipping point, and almost immediately afterward, more than half of the infringements issued under NSW's COVID-19 regulations were rescinded.

The notices at issue in this instance were challenged on the grounds that they did not contain a sufficiently detailed explanation of the alleged violation.

Immediately following the verdict, Revenue NSW published a statement confirming it will cancel 33,121 penalties.

Throughout the course of the pandemic, 62,128 violations were issued in the state due to concerns over the spread of COVID.

When a fine is cancelled, the associated sanctions are also lifted, the statement said. This includes the suspension of driving privileges and the suspension of any garnishment proceedings.

"Where a fine has been rescinded and a payment has been made, either in part or in full, Revenue NSW will make contact to arrange a refund or apply the payment towards other outstanding obligations," it says.

The department added that this "does not mean the offences were not committed" and that "the remaining 29,017 fines will still be required to be paid if not previously settled."

Before this, David Kell SC, appearing for the NSW Commissioner of Fines Administration, cautioned the court that the two infractions did not meet the provisions of the act.

As Mr. Kell put it, the court should be "conservative" in dismissing the fines since doing so would set a precedent.

An extensive rescheduling is being conducted.

The challenge brought by Brendan Beame and Teal Els of the Redfern Legal Centre was successful, and this is what prompted the mass cancellation.

According to Katherine Richardson SC, who represents the pair, more than 160 other people, including Ms. Els, have gotten identical fines of $3,000, and more than 500 others have received fines with similar phrasing.

According to Ms. Richardson, Ms. Els was sitting in the park with her sister after their workout when police approached her and gave her a fine.

Ms. Richardson questioned the court, "How can she tell, for example, having no idea what offence she claims to have committed with a penalty sum of $3,000," which is obviously a very big amount of money to be imposed by notice procedure.

"According to our evidence, they should get their money back. We are demanding that all available remedies be exhausted in an effort to rectify the situation, since they have been wrongfully charged money."

In August 2021, while Sydney was under lockdown, Rohan Pank sat on a park bench and was subsequently fined.

The three claimants, who were represented by Redfern Legal Centre, complained that they were given few information and that their fines lacked information regarding any violations of public health rules.

According to Revenue NSW, the total amount of fines imposed during the lockdown was more than $33 million.

In the middle to latter half of 2021, Sydney was locked down for 107 days due to the spread of the Delta and Omicron waves.

In addition, 12 Western Sydney LGAs were subject to tighter lockdown regulations, including as a nighttime curfew.

Samantha Lee, acting principal counsel at Redfern Legal Centre, said it was a "exceptional day" for NSW outside of court.

"The state has agreed that the COVID fines presented before the court today are illegal," she stated.

"We'll be contacting the fines commissioner to inquire about reimbursing the money. The only option they have is to cancel the penalties. An important legal standard has been established by this case."

Ms. Lee has stated that the current judgements may render all COVID-19 fines issued during the freeze years of 2020 and 2021 null and void.

By early 2023, Justice Yehia is scheduled to issue a formal ruling.

Here at Velasquez Legal, we will be doing fixed price appeals for anyone who wants to appeal their Covid fine.

Please feel free to give us a call at the number below.

Section 314 - Making a False Accusation

Thu, 08 Dec 2022 13:00:04 GMT

Under section 314 of the Crimes Act of 1900, making a false accusation is punishable by up to seven years in jail.

In order to establish an offence, the prosecution must prove certain facts beyond a reasonable doubt, and a defendant is entitled to an acquittal if they are unable to do so.

There are also a variety of legal defences available to defendants in court for the offence.

What is the Crime of Falsely Accusing Someone?

A false accusation constitutes a crime under section 314 of the Crimes Act of 1900.

According to the statute, a person is guilty of the offence if he or she:

Makes a charge against another individual,
Intents by doing so to subject the other individual to a criminal probe, and
Knows that the other individual is innocent of the crime.

What are the Consequences?

The maximum prison sentence for making a false accusation is seven years.

It is essential to note, however, that this is the maximum sentence that can be imposed, and that the court may impose any of the following punishments for the offence:

Section 10 Dismissal
Order for Conditional Release
Fine
Order for Community Corrections
Intensive Corrective Measures
A shorter sentence

What Must the Prosecution Establish?

For a person to be found guilty of making a false accusation, the prosecution must prove beyond a reasonable doubt each of the following "elements" (or ingredients):

The defendant made a charge against a third party,
By doing so, the defendant meant to subject the other person to an investigation.
False allegations were made against the opposite party, and
The defendant was aware that the accused was innocent.

If the prosecution cannot establish each of these factors to the required standard, it will fail.

What are the Protections?

In addition to proving each element of the crime, the prosecution must additionally refute the following defences if they are properly raised:

Under duress, you were threatened or compelled.
Necessity, if the conduct was required to avert danger, and Provocation.
Self-defence is the use of force to defend oneself or another.

It must debunk such arguments beyond any reasonable doubt.

Your Court Options

Admitting No Guilt

Before you can be convicted of making a false accusation, the prosecution must establish beyond a reasonable doubt the following:

You made a charge against another individual,
By doing so, you meant to submit the other person to an investigation for an offence, and
You were aware that the other party was innocent of the crime.

There are numerous strategies to defend against false accusations, including the following:

The prosecution cannot establish that you brought an accusation against someone else.
The prosecution cannot prove that you intended for the other individual to be subject to a formal investigation.
The prosecution cannot prove you knew the other person was innocent of the crime or that you knew the other person was innocent.
You have a valid legal defence that cannot be disproven beyond a reasonable doubt by the prosecution.

If any of these circumstances prevail, you must be judged not guilty.

A competent attorney will be able to submit written arguments to the prosecution in an effort to have the charge against you dropped, or seek to have it dismissed if the matter advances to a defence hearing or trial.

Admitting Guilt

If the evidence presented by the prosecution is particularly compelling, you may elect to enter a guilty plea.

In such a case, your attorney may be able to negotiate the police's "facts" to lessen the severity of the crime.

Your attorney can also advise you on how to get papers that can be presented to the court during your sentencing, such as an apology letter, character references, and any documentation from counsellors or medical specialists you have consulted.

Together with your attorney's strong oral arguments in court, these materials can help ensure that you receive the most merciful sentence feasible under the circumstances.

By admitting guilty at an early stage, you will also be eligible for a 'discount' of up to 25% on your sentence, which can result in a less severe sort of punishment, such as a section 10 dismissal or a conditional release order, as opposed to a more severe penalty.

You will also save the time, expense, and stress of a hearing or trial in which you are the defendant.

Section 315 - Hindering an Investigation

Mon, 21 Nov 2022 13:00:03 GMT

Under section 315 of the Crimes Act of 1900, it is illegal to get in the way of an investigation, which can get you up to 7 years in prison.

To prove the crime, the prosecution has to prove a number of facts beyond a reasonable doubt, and if they can't do that, the person is entitled to be set free.

There are also a number of ways to defend yourself in court if you are charged with the crime.

The Law

What does it mean to obstruct a police investigation?

Section 315 of the Crimes Act of 1900 makes it a crime to get in the way of an investigation.

In the section, it says that a person is guilty of the crime if they do anything with the intent to:

The investigation of a serious crime that another person committed,

The discovery of evidence that someone else has committed a serious indictable crime, or

The arrest of someone who has committed a serious crime that can be charged in court.

For the purposes of this section, a person is considered to have committed a serious indictable crime if a "public officer" who is looking for or investigating criminals, like a police officer, has a good reason to think that person has done something wrong.

A "serious indictable offence" is any crime that can get you at least 5 years in prison. This includes most crimes in the Crimes Act, such as assaults that cause actual bodily harm, wounds, or grievous bodily harm, theft, fraud, and property damage.

The section makes it clear that a person can't be found guilty of the crime just by refusing or failing to give information or evidence. Instead, they must do at least one thing that makes it harder for officers to do their jobs.

Some examples the offence may include:

Taking steps to hide evidence that could help solve a crime

Lying to police to get them to look in a different direction and keeping false statements to protect someone who has broken the law.

The courts have decided that a person can be found guilty of obstructing an investigation even if the person reasonably suspected of a serious indictable crime is never convicted.

What is the punishment?

The maximum penalty hindering an investigation is 7 years in prison.

But it's important to remember that this is the maximum sentence that can be given and that the court can choose from any of the following:

Section 10 Dismissal
Fine
Conditional Release Order
Order for Strict Punishment
Less time in prison

What Does the Prosecution need to Prove?

For someone to be found guilty of interfering with an investigation, the prosecution must prove beyond a reasonable doubt that each of the following are true:

The defendant engaged in an act, and
The defendant intended by doing so to hinder the investigation of a serious indictable offence committed by another person, or

The defendant intended by doing so to hinder the discovery of evidence concerning a serious indictable offence committed by another person, or

The defendant intended by doing so to hinder the apprehension of another person who committed a serious indictable offence.

If the prosecution can't prove each of these things to the required level, the case will be dropped.

A ‘serious indictable offence’ is one that carries a maximum penalty of at least 5 years in prison.

The section states that a person is considered to have committed a serious indictable offence if a ‘public officer’ engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed an offence.

However, it is important to note that a defendant cannot be found guilty for merely refusing or failing to divulge information or produce evidence; he or she must have engaged in conduct with the intention of hindering.

What are the Defences?

In addition to the requirement to prove each element of the offence, the prosecution must also disprove any of the following defences if properly raised:

Duress, which is where you were threatened or coerced,

Necessity, where the act was necessary to avert danger

Self-defence, where you engaged in the act to defend yourself or another

It must disprove any such defences beyond all reasonable doubt.

Your Options in Court Pleading Not Guilty

Before you can be found guilty of hindering an investigation, the prosecution must prove beyond a reasonable doubt that:

You engaged in an act, and either
You intended by doing so to hinder the investigation of a serious indictable offence committed by another person, or

You intended by doing so to hinder the discovery of evidence concerning a serious indictable offence committed by another person, or

You intended by doing so to hinder the apprehension of another person who committed a serious indictable offence.

There are a number of ways to defend the charge, including raising the fact that:

The prosecution cannot prove you engaged in a positive act,
The prosecution cannot prove you intended by doing so to hinder the investigation of a serious indictable offence committed by another person, to hinder the discovery of evidence concerning a serious indictable offence committed by another person, or to hinder the apprehension of another person who committed a serious indictable offence,
You have a valid legal defence which the prosecution is unable to disprove beyond a reasonable doubt.

If any of these matters prevail, you must be found not guilty of the offence.

Pleading Guilty

Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.

In that case, your lawyer may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.

These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.

You will also be spared the time, expense and stress of a defended hearing or trial.

Emails down today due to an internal iiNet Error

Mon, 21 Nov 2022 00:52:57 GMT

Currently our emails are down as there is an internal iiNet error that is affecting us. We are currently working with iiNet to find a resolution so the emails can hey back up and running.

If the matter is urgent please call (02) 8815 8175.

Rex Orange County Lead Singer Accused of multiple accounts of Sexual Assault

Sun, 13 Nov 2022 12:39:16 GMT

The singer of Rex Orange County has been charged with sexually assaulting a woman six times in two days in the U.K.

A woman accused the 24-year-old musician, born Alexander O’Connor, of assaulting her twice in London’s West End on June 1, 2021, The Sun reported . He then allegedly assaulted her in a taxi and three times at his Notting Hill home on June 2. O’Connor pleaded not guilty in court on October 10 and was released on unconditional bail, with a trial set for January 3, 2023.

A representative said that O’Connor “is shocked by the allegations which he denies and looks forward to clearing his name in court.” As the pop singer Rex Orange County, O’Connor has released three albums, most recently Who Cares? in March. He broke out in 2017 after contributing to Tyler, the Creator’s album Flower Boy .

When it comes to Sexual assault it is smart to be knowledgeable on the laws. What you might deem as harmless flirting might be different to others.

Follow this links to read up on various Sexual Assault laws and how we could help:

https://www.velasquezlegal.com/sexual-assault-sexual-touching-and-sexual-acts

Possessing, Supplying or Making an Explosive - s93FA(2) Crimes Act

Mon, 31 Oct 2022 16:45:00 GMT

Being charged with owning, supplying, or manufacturing an explosive can turn your world upside down and have a negative impact on your future ambitions.

Your Options

Admitting No Guilt

To establish guilt, the prosecution must prove beyond a reasonable doubt the following:

That you had, supplied, or manufactured an explosive
In the event that there is a reasonable suspicion that you did not have an authorised cause for possessing, providing, or manufacturing the explosive, you may be prosecuted.

If you believe that the prosecution cannot prove these elements beyond a reasonable doubt, you may decide to enter a "not guilty" plea.

You may also wish to enter a not-guilty plea if you have a valid justification or lawful purpose for possessing, selling, or manufacturing the explosive, such as if you had the explosive for work-related purposes, such as demolition, or for festivities, scientific research, or artistic purposes.

You will then be able to defend yourself in court by producing proof demonstrating your innocence.

For instance, you may wish to provide an explanation or justification for your actions:

Where you were threatened or blackmailed into possessing, manufacturing, or providing explosives (duress)
Possession, production, or distribution of the explosive was required to prevent significant injury or danger (necessity)
You owned, manufactured, or provided the explosive to defend yourself, your property, or another individual (self-defence)
Where you had a valid excuse for holding, creating, or supplying the explosive, such as for work-related reasons, as mentioned previously.

If you have been charged with possessing, manufacturing, or providing an explosive, it is crucial that you retain the services of a skilled attorney.

Admitting Guilt

If you do not desire to contest the allegations, you may wish to submit a guilty plea.

By pleading guilty early on, you will demonstrate to the court that you accept responsibility for your acts, which could result in a more favourable outcome. This may convince the magistrate or judge to grant you a less sentence.

However, prior to pleading guilty to the accusations, you should always consult with a criminal attorney, who will be able to advise you on whether there is a viable defence strategy.

You should also be aware of any potential maximum penalties.

If your case is considered in the Local Court, you could face up to two years in prison and/or a fine of $5,500.

In more severe circumstances, however, the prosecution may elect to have your case heard in District Court, where the maximum sentence is three years in prison and/or a $5,500 fine.

However, these are maximum penalties that will only be imposed in the most severe circumstances.

With the assistance of a competent criminal attorney, you may be able to avoid jail by convincing the magistrate to impose an alternative punishment.

UN ends Australia anti-torture mission after inspectors barred

Sat, 29 Oct 2022 13:07:11 GMT

The United Nations unexpectedly terminated its anti-torture mission in Australia after inspectors were denied access to multiple prisons, with a major monitoring agency criticising the "embarrassing fiasco" on Monday.

The inspectors, who were tasked with examining facilities as part of a voluntary agreement to minimise cruelty to detainees, claimed they made the "draconian" decision after being denied access to "many" jails and detention centres.

Maldivian Supreme Court judge and chief inspector Aisha Muhammad stated that Australia was in "obvious violation" of its international commitments.

In 2017, Australia adopted the Optional Protocol to the Convention against Torture, pledging to improvements to protect detainees and make facilities subject to inspection.

Former prison inspector Steven Caruana coordinated the national organisation responsible for monitoring the convention's implementation in Australia.

"Australia will have to explain this embarrassing fiasco to the United Nations Committee against Torture," he said.

Australia's unwillingness to accept the inspectors stemmed from a disagreement between the federal and state governments about finance.

The federal government ratified the convention, but it was up to the states and territories to put it into effect.

New South Wales and Queensland, two eastern states comprising about half of Australia's population, have impeded the convention's implementation by claiming they require additional funds.

The UN delegation stated that New South Wales prevented UN inspectors from entering a small courthouse cell last week.

According to the Queensland Health department, inspectors were denied access to inpatient units at mental health facilities in Queensland.

Outside material brought by juror aborts Trial for Bruce Lerhmann

Sat, 29 Oct 2022 12:41:50 GMT

A juror was found to have carried a research paper on sexual assault into the jury chamber, resulting in the dismissal of the whole jury in the trial of Bruce Lehrmann.

On Thursday morning, the ACT supreme court heard that Lehrmann's trial must be halted because a jury had undertaken research outside the courtroom, which juries are instructed not to do.

The court was informed that the juror had presented a research paper that aimed to quantify the number of bogus complaints and investigate the motivations for filing them. The use of the study paper violated at least 17 directives from the trial judge prohibiting jurors from conducting their own research or enquiry.

Unintentionally, a sheriff's deputy spotted the paper while performing standard jury room cleaning. The sheriff's deputy accidentally touched one of the juror's plastic folders and discovered the title page of a research paper among the papers.

The chief judge, Lucy McCallum, stated that she had no choice but to dismiss one of the twelve jurors who have been deliberating for the past week. She stated that this meant she must dismiss them all.

For more information regarding your responsibilities as a juror please click here:

Possessing Explosives in a Public Place - s93FA(1) Crimes Act

Wed, 26 Oct 2022 16:00:08 GMT

Possession of explosives in a public area might have a significant impact on your life, preventing you from pursuing your future goals.

Your Options:

Admitting No Guilt

To establish guilt for possession of explosives in a public place, the prosecution must prove beyond a reasonable doubt two elements:

Your possession of an explosive

When you were in possession of the explosive, you were in a public location.

A public place is any location that is accessible to the general public. This includes parks, commercial centres, pubs, public reserves, etc.

If you do not believe the prosecution can show both of these criteria beyond a reasonable doubt, you may decide to enter a not guilty plea.

Our attorneys can attempt to get the charges reduced if you have a good justification or legal reason for carrying the explosive, such as demolition work, cultural celebrations, sporting events, scientific study, or artistic endeavours.

Typically, this leads in the charges being withdrawn at an early stage without incurring the cost or time of going to court.

If the prosecution refuses to drop the accusations, our great attorneys will actively defend your case in court by presenting all evidence to prove your case and interviewing witnesses thoroughly.

We will also inform you of any possible explanations for your behaviour, such as:

Where you were compelled or threatened to possess the explosives (duress)

The possession of the explosive was required to prevent major harm or danger (necessity)

You possessed the explosive to defend yourself, your property, or someone else (self-defence)

Where you had a justifiable justification for holding the explosive, such as for employment purposes as mentioned above.

If you have been charged with possession of an explosive in a public place, it is imperative that you retain the services of an experienced criminal defence attorney as quickly as possible, since a conviction might result in severe penalties.

A Guilty Plea

Sometimes, you may not choose to fight the charges; rather, you may wish to just plead guilty and accept the allegations against you.

If you have decided to submit a guilty plea, it is recommended that you do so as soon as possible, as doing so will demonstrate to the court that you have accepted responsibility for your conduct; as a result, you may receive a more lenient punishment.

However, prior to pleading guilty, it is essential to consult with an expert criminal attorney who can advise you on your choices. In certain instances, you may be able to provide a defence and obtain a "not guilty" conviction.

If you are contemplating a guilty plea, you should also be informed of the maximum penalties that could apply.

Under the statute, the maximum penalty if your case is considered before the Local Court is two years in prison or a $5,500 fine.

However, if the prosecution chooses to have your case considered in District Court, the maximum possible sentence increases to five years in prison.

However, these are simply the maximum punishments; they will only be applied in the most severe circumstances. After reviewing the facts and circumstances, the magistrate or court will determine the appropriate punishment in your case.

Appealing to the district court

Tue, 25 Oct 2022 15:11:11 GMT

If you are not happy about a decision made in your case, you have the right to appeal.

When can I go to the District Court to make a case?

You can challenge many decisions made by the Local Court or the Children's Court.

A judge has found you guilty of a crime, but you say you are innocent.

The judge gave you a sentence that you think is too harsh.

You've been banned from driving for a certain amount of time by a judge, and you think that time is too long or that you shouldn't have been banned at all.

An application to overturn a conviction or other order made in your absence was turned down by the magistrate.

You have been given an Apprehended Violence Order (AVO), but you don't think it's necessary.

your request for an AVO (Apprehended Violence Order) was turned down, or

You are a party to an AVO that has been changed or revoked by the Local Court, or the Local Court refused to change or revoke an AVO.

You might be able to appeal other decisions made by the Local Court. To find out if you can file an appeal in other matters, you should talk to a lawyer or ask the court staff at the Local Court.

How do I make a case?

Any Local Court will accept an appeal.

You should tell the clerk of the Local Court that you want to appeal. The people who work at the Local Court will be able to help you fill out a form called a Notice of Appeal.

If you want to appeal, you will have to pay a fee. If you have a low income, you can ask the registrar to waive this fee or put it off until later. If you want to do this, you should bring proof of how much money you have with you to court. You could bring a bank statement or a letter from Centrelink that says what benefits you get as proof.

If you are in gaol you can lodge an appeal from gaol. As soon as possible, talk to the welfare officer or the person in charge of your complex. You can get a Notice of Appeal from them. A lawyer from the Prisoners Legal Service may also be able to help you.

When do I have to file the appeal?

You have 28 days to appeal from the date of the order, which is the date of your sentence. It is a good idea to lodge your appeal as soon as possible after the order has been made by the Local or Children’s Court.

If you have not lodged your appeal within 28 days you will need to lodge another form called an Application for Leave to Appeal. You must do this within three months of your order being made. You will need to explain why you did not lodge your appeal within the 28-day period. If more than three months have passed since the date of the conviction, sentence or other order made by the Local or Children’s Court, then you will not be able to appeal.

What do I write on the Notice of Appeal form?

You need to give your personal details (name, address), details of the matter you had at court and the order you are appealing against. For example if you had a criminal or traffic matter at court you need to say whether you are appealing because:

you are not guilty (called a conviction appeal) and/or

the penalty is too severe (called a severity appeal).

Staff at the Local or Children’s Court or at the gaol will be able to assist you with completing the Notice of Appeal.

What happens after I lodge the Notice of Appeal?

Your application will be listed at the District Court. The court registrar will notify you and any other person affected by the decision of when and where the appeal will be heard.

If the matter you are appealing against is a traffic or criminal matter the police and the Office of the Director of Public Prosecutions (DPP) will be notified. If it is an Apprehended Violence Order (AVO) the other parties involved with the AVO will be notified. They are entitled to attend court.

What happens to the Local Court/ Children’s Court order until my appeal is heard?

When you lodge your appeal check with court staff about what will happen in your case.

Criminal matters

If you are appealing against an order made in a criminal matter the penalty is usually stayed (suspended) once the appeal is lodged. This only happens if you lodge your appeal within 28 days. If you are seeking leave to appeal the order will not be stayed until leave is granted.

If you received a sentence of imprisonment, including an intensive correction order, and you are released on bail your sentence is stayed.

If you received a sentence of imprisonment, including an intensive correction order, and you are refused bail while waiting for the appeal to be heard, then your sentence continues to run.

Traffic matters

If your licence was disqualified by the Local Court it is important to know whether that disqualification is stayed while you are waiting for your appeal. It is important that you know whether or not you are allowed to drive. If you drive while your licence is suspended or disqualified you may be charged and face a gaol sentence.

If you have a serious traffic matter, for example if you were charged with a mid-range or high- range drink driving offence or an offence involving death or grievous bodily harm, and your licence was suspended by the police at the time you were charged, your licence normally remains suspended even after you lodge your appeal. This means that you cannot drive.

If you were charged with a less serious traffic offence and your licence was not suspended before you went to the Local Court and were sentenced to a period of disqualification, the disqualification period will be stayed.

It is very important that you know whether you can drive so check before you leave the court. If you are not sure whether you are allowed to drive do not do so until you get legal advice about whether your licence is suspended or disqualified.

Apprehended Violence Orders (AVOs)

If you are appealing against an AVO the order is not automatically stayed (suspended). You may ask the Local Court to stay the AVO while you are waiting for the appeal to be heard. If this does not happen you must comply with the AVO until you go to the District Court and a judge makes a decision about your case.

Can I get bail while waiting for my appeal?

If you received a sentence of imprisonment, including home detention, you may apply to be released on bail until you appear at the District Court. You can make an application for bail at the Local Court on the same date as you are sentenced or you can make it later at the gaol.

Sometimes it may be better not to apply for bail. If you are expecting that the District Court will also give you a gaol sentence but you are hoping that it will be a shorter sentence, it may be a good idea not to apply for bail and spend some time in gaol before you appear before the District Court. It is a good idea to get legal advice about this.

How can I prepare for my appeal?

You should go to the District Court registry and ask for a copy of all the papers which will be handed up to the judge on your appeal, including a copy of the transcript if it is a conviction appeal.

You should make photocopies of any documents which you wish to give to the judge. These should be given to the Office of the Director of Public Prosecutions (DPP) solicitor before your court date. Ask the court staff at the District Court registry how to do this.

If you have a conviction appeal and you want to give evidence, or call a witness to give evidence, you need to file a notice of motion and an affidavit explaining why the witness did not attend and give evidence in the Local Court. Ask the court staff to assist you with this. These documents must be served on the solicitor for the DPP before the court date.

Make sure your witnesses attend court in case you are allowed to call them. Witnesses can also be subpoenaed.

Think about what you want to say to the judge beforehand and write it out to make sure you remember everything. If it is easier you may want to hand up a letter setting out your arguments.

What happens at the hearing of the appeal?

A solicitor from the DPP represents the police in a criminal or traffic matter.

In a conviction appeal

The judge will look at any documents or other items that were tendered at the Local Court hearing and read the transcript of evidence given in the Local Court. The transcript is a typed copy of the spoken evidence given by the witnesses in the Local Court.

Normally the judge makes a decision about your case after reading these documents and listening to submissions (legal arguments) from the solicitor from the DPP and you.

You can only give evidence or call witnesses in a conviction appeal in the District Court if the judge gives you leave to do so. You need to explain why the witnesses did not attend the Local Court and give evidence there. In order to do this, you need to apply for leave. This is usually done by filing a Notice of Motion and an Affidavit explaining why the witness was not called in the Local Court and should be allowed to give evidence in the appeal.

It is very rare for witnesses who gave evidence in the Local Court to be called to give evidence again in the District Court. If you think that a witness should be called to the District Court to give evidence in your appeal it would be a good idea to get legal advice about this before going to court.

In a severity appeal

The judge will read the Local Court papers as they would in a conviction appeal. You can give evidence as part of a severity appeal. You may wish to give evidence yourself or call someone to give evidence about you. You may wish to give the judge some documents about you.

These may include:

medical certificates if you have any health issues

a report from a rehabilitation centre or counsellor if you have been participating in drug or alcohol rehabilitation

a psychological or psychiatric report if that is relevant, or

character references.

It is a good idea to give copies of any certificates or reports that you intend to hand to the judge to the solicitor from the DPP before the court case so that they can check that they are genuine. If you don’t do this, you may not be allowed to give them to the judge.

What happens in court?

In a conviction appeal

The solicitor for the DPP will tender (give the court) all the documents from the Local Court. These will include the Local Court record of the proceedings, the transcript of the evidence given in the Local Court and any documents or other items tendered in the Local Court.

If the transcript of evidence is not ready on the first date your appeal is listed at the District Court your appeal will have to be adjourned to another day.

The judge must have the transcript before your appeal can be heard. If you wish to give evidence or call witnesses you will have to seek leave from the court to do so.

Otherwise, you can make submissions to the judge about why you think you should not have been convicted (found guilty).

The DPP solicitor will then make submissions to the court.

The judge will then make a decision.

In a severity appeal

The solicitor for the DPP will provide all the documents from the Local Court. These will include the Local Court record of the proceedings, the police fact sheet and your criminal or traffic record. It should also include all references and reports tendered in the Local Court. You should check that all documents have been included.

The solicitor for the DPP will then tell the judge what penalty was given to you in the Local Court and the maximum penalty which applies for the offence.

It is then your turn to speak to the judge and explain why you think the penalty was too harsh. You may wish to:

hand up character references, medical certificates, psychological reports or other documents that may be relevant to your case and that are not already in the bundle of documents which came from the Local Court

give evidence yourself, or

call a witness to give evidence about your character or rehabilitation.

If you, or someone else, gives evidence the solicitor from the DPP may cross-examine (question) you, or your witness, about what you have said or anything else that is relevant to the case.

After all of the documents have been given to the judge you may then make submissions about your case. The DPP solicitor will then make submissions about your case.

The judge then makes a decision.

Could it be worse for me if I appeal?

Yes. It is possible that the judge may give you a harsher penalty. However, the judge must warn you if he or she is considering doing this. This is called a Parker Warning. If you receive a Parker Warning you then have the chance to withdraw your appeal and the original order of the Local Court stands (the penalty you received in the Local Court remains in place and, if it has been stayed, will start).

What happens if I am successful in the District Court?

The judge might set aside the order or conviction against you.

In a conviction appeal the judge might decide that you are not guilty.

In a severity appeal the judge might decide that a less severe punishment is appropriate.

In an appeal against an AVO the judge may decide that an AVO is, or is not, necessary or that the conditions should be changed.

What happens if I am unsuccessful in the District Court?

The orders made by the Local Court will take effect.

If you received a sentence of imprisonment from the Local Court and were given bail you will be taken into custody.

Velasquez Legal Wins Appeal in the New South Wales Court of Criminal Appeal

Tue, 25 Oct 2022 14:44:05 GMT

On 12 October 2022, the New South Wales Court of Criminal Appeal handed down its decision in Garcia v R. This decision concerned an appeal by Jose Maria Garcia, conducted on his behalf by Velasquez Legal, against a sentence that had been imposed upon him for a number of Commonwealth and State offences. In the District Court, Garcia had been sentenced to a term of imprisonment of 15 years and 6 months with a non-parole period of 11 years. However, the Court of Criminal Appeal found that the sentencing judge’s original decision was made in error, and instead imposed a lower sentence of 14 years and 9 months with a non-parole period of 10 years and 3 months.

Garcia had pleaded guilty to the following offences:

Dealing with more than $1,000,000 while being reckless as to whether it would become an instrument of crime.
Trafficking 451.1g of methamphetamine.
Failing to comply with the terms of a conditional release order.
Associating with individuals to facilitate an offence (conspiracy to import 28kg of heroin).
Supplying a commercial quantity of cocaine.
Supplying a large commercial quantity of methamphetamine.

It was found that, regarding the first offence, Garcia had met with individuals over the course of multiple years to give them large sums of cash to be laundered so that Garcia would not have to comply with financial reporting laws. In total, it was found that he possessed or handed over more than $7,000,000.

As to the drug trafficking and drug supply offences, it was found that Garcia was a principal organiser of an enterprise trafficking large volumes of methamphetamine between Perth and Sydney. It was also found that he was in the process of obtaining methamphetamine from one of his associates. When police arrested him after a meeting with his associate and found almost 2kg of methamphetamine in his possession, they searched his car and found 558g of cocaine.

The sentencing judge found that all of the offences were serious and that Garcia was an active participant in the drug supply enterprise.

Garcia appealed his sentence to the Court of Criminal Appeal on multiple grounds. It was the following grounds that the appeal court upheld:

The sentencing judge erred in sentencing Garcia on the basis that the money in the first offence was both derived from “drug or other serious criminal activity” and that he was “reckless to the source of the money being from criminal activity.
The sentencing judge erred in his assessment of how much of a discount on sentence Garcia was entitled to after pleading guilty to the money laundering offence.
The sentencing judge erred in setting a non-parole period of approximately 71% of the overall sentence.

“Proceeds of drug or other serious criminal activity”

The first offence to which Garcia pleaded guilty (the money laundering offence) can be established in two ways. Under section 400.3(2) of the Commonwealth Criminal Code, it is an offence to deal with money in two alternate ways:

Dealing with the money where it is the proceeds of crime.
Dealing with the money where there is a risk that it will become an instrument of crime.

It was the second of those options which the prosecution had chosen to charge Garcia with, and that was the charge that he pleaded guilty to.

However, in the original sentencing judgment, the sentencing judge found that, in addition to there being a risk that the money could become an instrument of crime, the money was in fact the proceeds of other crime already and that Garcia had been reckless as to this fact.

It has been the law in Australia since at least 1981, when the High Court decided the case of De Simoni, that a person cannot be sentenced for an offence of which they have not been found guilty. The Court of Criminal Appeal found that that is what the sentencing judge had done here: even though there may have been evidence upon which the sentencing judge could have concluded that Garcia was aware of the risk that the money was already the proceeds of crime, and that it actually was the proceeds of crime, to make that finding would ultimately be to punish Garcia for the more serious offence which he hadn’t pleaded guilty to.

When the appeal was argued, the prosecution tried to argue that, even though the sentencing judge might have been in error here, it was only a technical error that didn’t affect the appropriate sentence for Garcia. The Court disagreed. It found that the judge had considered factors which “went beyond considerations which properly informed [Garcia’s] culpability for the charged offence”.

Discount for guilty plea

Ordinarily, someone who pleads guilty to an offence at the earliest possible opportunity is entitled to a 25% discount on the sentence that they would otherwise be given for that offence. When a plea of guilty is entered later on, that percentage can drop. In this case, Garcia pleaded guilty to the money laundering offence and the sentencing judge decided that he should receive a discount of 10%.

Garcia was first charged with a money laundering offence in March 2018. However, this was a more serious charge than the one that he ultimately pleaded guilty to: the prosecution had initially alleged that, not only did Garcia know of the risk that the money might be used as an instrument of crime, he actually believed that it would be.

However, over the next two years, the defence and the prosecution negotiated a plea deal. Garcia would not plead guilty to the offence with which he had initially been charged, but he would plead guilty to the less serious charge of being reckless as to whether the money would become an instrument of crime. On 17 July 2020, the more serious charge was withdrawn by the prosecution and Garcia was charged with the less serious offence. In turn, he pleaded guilty to that offence on 20 July 2020.

It would be expected that, having pleaded guilty to this offence only three days after it was charged, Garcia would be entitled to a significant discount. However, the sentencing judge only gave him a 10% discount.

On the appeal, the prosecution essentially argued that the two charged were the same, and that Garcia should be treated as having pleaded guilty to an offence that he had been charged with two years earlier. The defence argued that they were two different charges, so Garcia should receive the full discount.

Ultimately, while finding that Garcia shouldn’t be treated as having pleaded guilty to an entirely new offence, the Court found that the sentencing judge was mistaken when he treated the offence to which he had pleaded guilty as the exact same one with which he had originally been charged. Accordingly, the Court decided that Garcia should have received a discount of 15%, not 10%.

Non-parole period

The final ground of Garcia’s argument that the Court of Criminal Appeal accepted was that the sentencing judge had made a mistake in setting the non-parole period of Garcia’s sentence.

In deciding Garcia’s overall sentence, the sentencing judge had made assessments of “indicative sentences”. It is a common misconception that, when someone pleads guilty to multiple offences, the sentence for each offence “stacks” on top of the last one. Instead, sentencing judges will almost always allow a large degree of overlap between the sentences for each offence so that an offender does not receive an overall sentence that is completely disproportionate to what they actually did. However, when they do so, judges are still required to give each offence an indicative sentence: this is the sentence that the offender would have received if it had been only that offence that the offender was found guilty of.

When he was giving his indicative sentences in this case, the sentencing judge gave the State offences an average non-parole period of 62.5% of each sentence and he gave the Commonwealth offences an average non-parole period of about 67.2%. However, when he handed down his overall sentence, the non-parole period was 71% of the total sentence. The sentencing judge had not indicated in his judgment that he had any special reason to increase the non-parole period.

The defence argued, and the Court of Criminal Appeal accepted, that this must have been just a simple mistake by the sentencing judge: reading his judgment as a whole, it was clear that the sentencing judge had actually intended to impose a non-parole period of 66.7% of the overall sentence.

Re-sentencing

Having established error on multiple grounds, the Court of Criminal Appeal found it necessary to re-sentence Garcia. This was despite the fact that the prosecution had argued that the errors were not material, and that Garcia should serve the original sentence regardless.

The Court of Criminal appeal found that much of what the sentencing judge had originally found was accurate—the offences were serious, and Garcia took an active part in them.

However, the Court found that, because of the sentencing judge’s error, Garcia should receive a lower sentence for the money laundering offence. Additionally, it found that he should receive a greater discount for pleading guilty to that offence, and that the non-parole period should be less than what was initially imposed. Taking those factors into consideration, and considering Garcia’s personal circumstances, including that the effects of COVID-19 had made his imprisonment more difficult and that he had good prospects of rehabilitation, the Court imposed a new sentence of 14 years and 9 months with a non-parole period of 10 years and 3 months.

Possession of Dangerous Articles other than Firearms - s93FB Crimes Act

Mon, 24 Oct 2022 14:45:00 GMT

Possession of a dangerous item other than a handgun can be criminal.

With Sydney's most experienced criminal lawyers, you may feel guaranteed you'll achieve a favourable conclusion, no matter how serious the allegations.

Choose

NOT GUILTY

The prosecution must establish three things beyond a reasonable doubt to convict someone of possessing a dangerous non-firearm item.

You possessed a non-firearm deadly weapon

The deadly weapon could discharge an irritant or other harmful substance, or a fuse or detonator for an explosive.

You had the firearm in public

If you believe the prosecution can't prove these criteria, you may want to plead not guilty.

Our trained weapons professionals can help you fight the charges.

In many situations, our lawyers have been able to get these charges withdrawn early by pointing out flaws in the prosecution's case. This saves our clients time and money.

Should the prosecution refuse to withdraw the accusations, our convincing advocates will fight hard to safeguard your innocence in court by summoning all favourable witnesses and presenting compelling evidence.

We can also advise if there are any defences to the accusations that could result in a not-guilty verdict.

Common defences:

You were persuaded or threatened into owning the risky item (duress)

When the risky item was needed to prevent harm (necessity)

When you needed to protect yourself, your property, or someone else (self-defence)

Where you had a reasonable excuse for possessing the item, such as if you were a woman strolling alone at night and had been attacked before.

The court will analyse all the facts and circumstances of the case, including:

Threat immediacy

The item's time and location

Item's nature

The accused's age, traits, and experiences

Confession

If you're guilty, plead guilty.

In some circumstances, pleading guilty early might show the court that you take responsibility and are remorseful. This could reduce your punishment.

Before pleading guilty, consult an expert criminal lawyer as there may be a method to fight the accusations and get a 'not guilty' judgement.

If convicted, you may face 2 years in prison and/or a $5,500 fine.

This maximum penalty will only be applied in the most extreme circumstances.

Dangerous Use of Firearm or Spear Gun - s93H(2) Crimes Act

Thu, 20 Oct 2022 16:00:03 GMT

Being charged with the dangerous use of a firearm or spear gun is a serious offence that can have serious consequences for your life and future.

PLEADING NOT GUILTY

The prosecution must prove two things beyond a reasonable doubt before you can be found guilty of dangerously using a firearm or spear gun:

You used a firearm or a spear gun to attack a building.
That you had no reasonable excuse or legal reason for doing so.

If you believe that either of these elements cannot be proven - for example, if you did not fire the firearm or spear gun, or if you believe you had a reasonable excuse or lawful purpose - our attorneys can assist you in fighting the charges to prove your innocence.

We can do this by urging the charges to be dropped at an early stage, highlighting any flaws in the prosecution's evidence, or by presenting evidence to prove your side of the story.

If necessary, our highly respected advocates can fight your case in court by presenting all relevant evidence and questioning all relevant witnesses.

We can also assist you in raising any defences that explain your actions, such as:

Where you were coerced or threatened into firing the firearm or spear gun (duress)
Where firing the firearm or spear gun was necessary to prevent serious injury or danger (necessity)
Where firing the firearm or spear gun was necessary to protect yourself, your property or another person (self-defence)
Where you were the owner of the property on which the weapon was fired, or where the owner of the property has given you permission to use the weapon on their property
Where you had a lawful purpose for using the firearm or spear gun – for example, for approved hunting or the approved culling of animals.

If the court accepts your defence, you will be found ‘not guilty.’

PLEADING GUILTY

You could also simply accept the allegations levelled against you. In these circumstances, you might want to enter a guilty plea as soon as possible.

You may get a better outcome in your dangerous use of a firearm or spear gun case if you enter an early guilty plea.

This is because you will avoid the time and expense of a hearing or trial to determine your guilt, and, more importantly, you may receive a less severe penalty because you will be demonstrating to the court that you accept responsibility for your actions.

Before pleading guilty, you should consult with an experienced criminal lawyer who can best advise you on your available options.

If you intend to plead guilty, you should be aware of the maximum penalties that may apply in this case.

If your case is heard in the Local Court, the maximum penalty for dangerously using a firearm or spear gun is two years in prison and/or a $5,000 fine.

In some cases, the prosecution can choose to have the matter heard in the District Court, where the maximum penalty is 10 years imprisonment.

However, these are maximum penalties only, and they will only apply in the most serious cases.

Disrespectful Behaviour in Court

Mon, 17 Oct 2022 13:00:03 GMT

According to section 24A of the Local Court Act 2007, section 200A of the District Court Act 1973, section 131 of the Supreme Court Act 1970, and section 103A of the Coroners Act 2009, disrespectful behaviour in court is a criminal offence.

Each offence is punishable by a maximum of 14 days in prison and/or 10 punishment units.

In order to establish an offence, the prosecution must prove certain facts beyond a reasonable doubt, and a defendant is entitled to an acquittal if they are unable to do so.

There are also a variety of legal defences available to defendants in court for the offence.

The Statutes

What is Disrespectful Behavior in Court?

Disrespectful conduct in court is a violation of:

Section 24A of the Local Court Act 2007 (Commonwealth)

District Court Act 1973, section 200A,

The Supreme Court Act of 1970, Section 131, and

The section 103A of the 2009 Coroners Act.

According to the provisions, a person is guilty of the offence if he or she:

Is a defendant in, or party to, proceedings in the Local, District, or Supreme Court, or has been summoned to provide evidence in one of those courts, or is a person appearing in, or being represented in Coronial proceedings, or has been summoned to give evidence in those proceedings, and

Engages in conduct that is disrespectful to the court in Local, District, or Supreme Court proceedings, or to coronial proceedings in proceedings under the Coroners Act, or to the magistrate in Local Court proceedings, or the judge in District or Supreme Court proceedings, or the Coroner or Assistant Coroner in coronial proceedings, in accordance with established court practise and convention, and

Participates in the behaviour on purpose.

The statute does not define "disrespectful conduct," but the courts have determined that it must be behaviour that violates "established judicial practise and convention."

So, for instance, in the case of devout Muslim woman Moutiaa El-Zahed, the court determined that neglecting to stand in court before a judge constituted disrespectful behaviour because standing before a presiding member of the judiciary is a convention.

Other customs and practises include:

Not using profanity unless required; for instance, when testifying as a witness and repeating what someone else said.

Not emitting loud burps or farts, or

The practise of bowing to the presiding judge upon entering and exiting court (although it is arguable whether breaching this convention would amount to an offence).

What are the Consequences?

14 days in prison and/or 10 punishment units is the maximum sentence for disrespectful behaviour in court.

It is essential to remember, however, that this is the maximum sentence that can be imposed, and the court may impose any of the following:

Section 10 Termination

Order for Conditional Release

Fine

Order for Community Corrections

Intensive Corrective Measures

A reduced sentence length

What Must the Prosecution Establish?

For a person to be found guilty of disrespectful behaviour in court, the prosecution must prove beyond a reasonable doubt each of the following 'components' (or ingredients) of the crime:

The defendant was in, or a party to, proceedings in the Local, District, or Supreme Court, or was a person called to give evidence in one of those courts, or was a person appearing in, or being represented in Coronial proceedings, or was a person called to give evidence in those proceedings, and the defendant was convicted of a felony.

The defendant engaged in conduct that was disrespectful to the court in the case of Local, District or Supreme Court proceedings, or to the coronial proceedings in the case of proceedings under the Coroners Act, or to the magistrate in Local Court proceedings, or the judge in District or Supreme Court proceedings, or to the Coroner or Assistant Coroner in coronial proceedings, and to the Coroner or Assistant Coroner in coronial proceedings, and to the Coroner or Assistant Coroner in coronial proceedings

The conduct was inconsistent with established court procedure and protocol, and

The conduct was deliberate.

If the prosecution cannot establish each of these factors to the required standard, it will fail.

What are the Defences?

In addition to proving each element of the crime, the prosecution must additionally refute the following defences if they are properly raised:

Under duress, you were threatened or compelled.

Necessity, if the conduct was required to avert danger, and Provocation.

Self-defence is the use of force to defend oneself or another.

It must debunk such arguments beyond any reasonable doubt.

Your Court Options

Admitting No Guilt

Before you can be found guilty of discourtesy in court, the prosecution must establish beyond a reasonable doubt:

You were a defendant in, or a party to, proceedings in the Local, District, or Supreme Court, or a person called to give evidence in one of those courts, or you were a person appearing in, or being represented in Coronial proceedings, or you were called to give evidence in those proceedings, and you were convicted of a criminal offence as a result of your participation in those proceedings.

You behaved in a manner that was disrespectful to the court in Local, District, or Supreme Court proceedings, or to coronial proceedings in proceedings under the Coroners Act, or to the magistrate in Local Court proceedings, or the judge in District or Supreme Court proceedings, or to the Coroner or Assistant Coroner in coronial proceedings, and

Your actions violated established judicial procedure and precedent, and

Your conduct was deliberate.

There are numerous strategies to defend an accusation of disrespectful conduct in court, including the following:

The prosecution cannot prove that you were a defendant in, or party to proceedings in the Local, District, or Supreme Court, or a person called to give evidence in one of those courts, or that you were a person appearing in, or being represented in Coronial proceedings, or that you were called to give evidence in those proceedings, or that you were a defendant in, or party to proceedings in the Coroner's Court.

The prosecution cannot prove you engaged in conduct that was disrespectful to the court in the case of Local, District or Supreme Court proceedings, or to the coronial proceedings in the case of proceedings under the Coroners Act, or to the magistrate in Local Court proceedings, or the judge in District or Supreme Court proceedings, or to the Coroner or Assistant Coroner in coronial proceedings, or to the magistrate or judge in coronial proceedings, or to the Coroner or Assistant Coroner in coronial proceedings,

The prosecution cannot establish that your behaviour was counter to established court procedures and norms, or

The prosecution cannot establish that your behaviour was purposeful, or

The prosecution cannot refute your proper legal defence beyond a reasonable doubt.

If any of these circumstances prevail, you must be judged not guilty.

Admitting Guilt

If the evidence presented by the prosecution is particularly compelling, you may elect to enter a guilty plea.

In such a case, your attorney may be able to negotiate the police's "facts" to lessen the severity of the crime.

Together with your attorney's strong oral arguments in court, these materials can help ensure that you receive the most merciful sentence feasible under the circumstances.

You will also save the time, expense, and stress of a hearing or trial in which you are the defendant.

Murder and Manslaughter

Thu, 13 Oct 2022 13:00:04 GMT

Being accused of a major crime like murder or manslaughter can be nerve-wracking.

About Homicide

Homicide refers to murder.

Two types of wrongful homicide are recognised by law:

1. Murder is the intentional death of another person.

2. Manslaughter: unintentional killing.

S18 murder

Unlawful and purposeful killing is murder.

It's the worst crime and carries a life sentence.

Your Choices

NOT GUILTY

The prosecution must prove two elements to convict of murder:

You meant to kill or maim the victim.
Your acts or omissions killed someone.

If you don't trust these two aspects, plead not guilty.

Our seasoned defence team can then help you defend your innocence.

In many circumstances, we can get charges dropped early by discovering flaws in the prosecution's case, such as insufficient evidence that your conduct caused the other person's death.

We regularly avoid clients the stress and expense of a Supreme Court trial by trying to have charges withdrawn or lowered.

If your case goes to court, you'll be represented by one of our experienced criminal lawyers, who have won murder cases.

We can also suggest defences that could explain your behaviour or minimise its severity, such as:

Self-defence
Psychological Provocation The charge will be reduced from murder to manslaughter.
Murder is a serious crime, hence the Supreme Court handles it.

If you plead "not guilty," a criminal trial will decide your guilt. Long, difficult trials are common.

Guilty Plea

If you don't want to fight the charges, one of our senior defence lawyers can help you plead guilty.

If you plead guilty from the start, you'll go straight to sentence, when the justice chooses your penalty.

Often, admitting guilty early will result in a lower sentence since you have taken responsibility.

Before accepting a plea, see one of our criminal law experts; you may be able to defend the allegations in court.

Being charged with murder might be unpleasant, so you'll want to know your penalties.

Life in prison is the highest penalty for murder, but it's normally reserved for the worst cases.

Depending on the facts and circumstances of your case, the sentence you receive may be significantly lower. Certain variables may raise the seriousness of the offence, resulting in harsher penalties, while other aspects may diminish the seriousness, resulting in lighter penalties.

More Information on Manslaughter

When you’re facing criminal charges such as manslaughter, you will likely want to find out as much information as possible about the offence and how it could impact your life.

We have provided some additional information below which may assist you.

What are the four different types of manslaughter?

As discussed above, there are four different categories of manslaughter. In order to be found guilty of manslaughter, the prosecution must prove that the other person’s death came about due to one of these four circumstances:

1. Manslaughter by criminal negligence:

Manslaughter by criminal negligence arises where you owed the deceased a ‘duty of care,’ and a reasonable person in your position would have realised that your actions were negligent and posed a high risk of death or serious injury.

To be found guilty of manslaughter by criminal negligence, the prosecution must prove beyond a reasonable doubt that:

(i) You had a duty of care to the accused:

The prosecution must show that you owed a duty of care to the other person. A duty of care is a legal obligation that you take reasonable care of another person in certain circumstances.

The law recognises a duty of care in four situations:

Where the law imposes a duty of care upon you – for example, when you drive you have a legal duty of care to other road users not to drive negligently;
Where your relationship with the other person implies a duty of care – for example, a teacher has a duty of care towards her students;
Where a duty of care arises due to a contractual relationship – for example, an employer has a duty of care towards their employees;
Where you assume a duty of care through your conduct.

The judge will decide whether you owed a duty of care to the deceased person based on the facts and circumstances of your case.

(ii) You acted negligently and in breach of that duty of care:

The prosecution must show that your actions fell short of the duty of care that a ‘reasonable person’ would have exercised in the same circumstances. It won’t matter whether or not you believed that you were acting outside your duty of care.

The court will consider your actions from the perspective of an ordinary member of the public. If it is found that an ordinary member of the community would have acted differently in the same circumstances, you will be found to have acted negligently in breach of your duty of care.

A ‘reasonable person’ is someone of the same age and gender as you, with the same level of education and training. A reasonable person is someone who is not affected by drugs or alcohol.

(iii) Your negligent actions contributed to the other person’s death:

The prosecution must prove beyond a reasonable doubt that your actions were a ‘substantial cause’ of the other person’s death.

Alternatively, they may prove that your actions accelerated the deceased’s death.

(iv) Your actions demanded criminal punishment:

The prosecution must prove that you deserve to be punished by the law because:

You breached the standard of care that a reasonable person would have exercised;
You knew or should have known that your actions were highly likely to result in serious injury or death;
Your negligence was so severe that it warrants legal punishment.

2. Manslaughter by unlawful and dangerous act:

Manslaughter by an unlawful and dangerous act arises where you cause another person’s death by acting in a way that you knew, or should have known, could result in serious injury.

To be found guilty of manslaughter by unlawful and dangerous act, the prosecution must prove that:

(i) Your actions were unlawful and resulted in the other person’s death:

The prosecution must prove that your actions were intentional and ‘substantially contributed’ to the other person’s death. Your actions must have also been unlawful – i.e. it must be shown that you were not acting in self-defence or for some other lawful purpose.

(ii) A reasonable person in your position would have realised that your actions could result in serious injury:

The prosecution must show that your actions were dangerous. Your actions will be found to be ‘dangerous’ where a reasonable person in your position would have realised that your actions had a probability of inflicting serious injury upon another person.

It will not matter whether or not you believed that your actions were dangerous.

A ‘reasonable person’ is someone of the same age and gender as you, with the same level of education and training. A reasonable person is someone who is not affected by drugs or alcohol.

3. Manslaughter by Excessive Self-Defence

In situations where you were acting to protect yourself, your property or another person, you may be able to justify your actions on the basis of self-defence. However, to be found ‘not guilty’ on the basis of self-defence, you must prove that your actions were reasonable in the circumstances.

Where you act unreasonably in exercising self-defence and your actions result in the death of the other person, you may be charged with manslaughter by excessive self-defence.

To be found guilty of manslaughter by excessive self-defence, it is necessary for the prosecution to prove three things beyond a reasonable doubt:

(i) You used force which resulted in the intentional or reckless killing of the other person:

It must be shown that your actions ‘substantially contributed’ to the other person’s death. Your actions may be shown to be intentional or reckless – i.e. that you knew, or should have known that they would result in the other person’s death.

(ii) Your were aware that your conduct was excessive and unreasonable:

The defence of self-defence is premised on the understanding that you honestly believed that your actions were reasonable in the circumstances.

The court will look at the situation from your perspective to determine whether you believed that your actions were reasonable at the time of the offence.

However, where it is shown that you knew that your actions were excessive or unreasonable, you will not be able to justify your actions on the basis of self-defence. Where your actions result in the death of the other person, you may be charged with manslaughter.

(iii) You acted to defend yourself or another person:

You must be able to prove that you were trying to protect yourself or someone else from another person. For example, where someone is attempting to hurt another person and you intervene to protect that person by assaulting the attacker.

4. Manslaughter by omission

Manslaughter by omission refers to situations where you had an obligation to perform some action, and you failed to do so. For example, where you are a parent and you fail to properly take care of your child, who dies as a result of malnourishment.

To be found guilty of manslaughter by omission, the prosecution must prove beyond a reasonable doubt that you:

(i) Had a legal obligation to care for someone:

The prosecution must show that you owed a duty of care to the other person. A duty of care is a legal obligation that you take reasonable care of another person in certain circumstances.

For example, a parent or teacher has a duty of care to look after his or her children.

(ii) Omitted to do some action in line with your duty of care:

An omission is a failure to perform some act expected of a reasonable person with a duty of care – for example, a parent failing to seek medical assistance after his or her child is seriously injured.

The prosecution must show that your omission fell short of the duty of care that a ‘reasonable person’ would have exercised in the same circumstances. It won’t matter whether or not you believed that you were acting outside your duty of care.

A ‘reasonable person’ is someone of the same age and gender as you, with the same level of education and training. A reasonable person is someone who is not affected by drugs or alcohol.

(iii) Your omission substantially contributed to their death:

The prosecution must prove beyond a reasonable doubt that your omission was a ‘substantial cause’ of the other person’s death.

What penalties could I face?

If you choose to plead ‘guilty’ from the outset to the charge, you will proceed straight to sentencing, which is where the judge determines the type and length of the penalty that you will receive.

The maximum penalty for manslaughter is 25 years imprisonment, however this is usually reserved only for the most serious offences.

Often, the sentence received will be much lower than this depending on the facts and circumstances of your case.

Statistics show that the average term of imprisonment for persons found guilty of manslaughter is 7 years in total. However, the average non-parole period is 4.5 years – meaning that the average person found guilty of manslaughter spends 4.5 years in gaol.

Certain factors may increase the seriousness of the offence and attract a harsher penalty, while other factors may decrease the seriousness of the offence. The judge will award the appropriate penalty after looking at all the facts and circumstances of your case.

Breach of AVO "Apprehended Violence Order"

Mon, 10 Oct 2022 13:00:07 GMT

If you are accused of violating your AVO, you could incur fines unless you can get the allegations dismissed or withdrawn.

What are the Consequences?

If you violate your AVO, the Local Court will handle your case. If you plead guilty or are found guilty, the magistrate has the authority to impose a sentence. Included among the possible sanctions are:

Section 10 Termination
Order for Conditional Release
Fine
Order for Community Corrections
Intensive Corrective Measures0
Prison

In the end, the type of penalty you receive will depend on the specifics of your case and the severity of the violation.

Our specialised criminal attorneys routinely fight hard to protect our clients rights by presenting all evidence in a persuasive manner to buttress their case.

In numerous instances, our attorneys have been able to aid clients in avoiding lengthy prison sentences by convincing the magistrate to deal leniently with "contravene AVO" cases, despite the fact that the law states that anyone who violates an AVO by using physical force should be sent to prison.

We obtain these exceptional results in AVO cases on a regular basis, so you can rest certain that your freedom is in good hands.

What Must the Prosecution Establish?

To prove that you violated an AVO, the prosecution must show that you:

Violation of an AVO condition or limitation
That you knew you committed the breach (i.e. the breach was not accidental)

The maximum penalty for violating an AVO is two years in prison and/or a fine of $5,500; therefore, if you have been charged with violating an AVO, it is crucial to talk with a lawyer who has expertise representing clients in similar cases.

A competent attorney will be able to determine if you have a defence to the allegations that could explain or justify your conduct. If your defence is accepted, you will be deemed to be "not guilty" of violating the AVO.

What are the Protections?

These are examples of defences:

Where you were unaware or unaware that you were violating the AVO.
Where you were not served an AVO or you were not present in court when the AVO was issued.
Where you violated the AVO by failing to attend mediation or comply with a property recovery order, you are guilty of a violation.
Where you violated the AVO to defend yourself, another person (such as your children), or your property, you will not be punished (self-defence)
This is called duress.
Where it was necessary to violate the AVO to prevent substantial harm or risk (necessity)

National Day of Mourning for Her Majesty Queen Elizabeth II

carlajose1@gmail.com (Carla Velasquez) — Wed, 21 Sep 2022 01:53:55 GMT

Thursday, September 22 has been designated as the National Day of Mourning for Her Majesty Queen Elizabeth II. Australians will get a one-off public holiday on the national day of mourning for Queen Elizabeth II.

The day coincides with the National Memorial Service to be held in Canberra.

Shops and retailers can trade as they normally would on other public holidays such as Australia Day or New Year’s Day.

This additional public holiday will not be a “restricted trading day” (such as Good Friday or Anzac Day) under the Retail Trading Act 2008.

For banks and other financial institutions it will be a “bank close day” under the Retail Trading Act 2008.

For employers and employees the provisions of the Fair Work Act 2009 that deal with working on public holidays will apply.

Here at Velasquez Legal we will be closed for the day in honour of Queen Elizabeth II. We will be open again on Friday September 23.

Aggravated Possession of Unregistered Firearm - s93I(2) Crimes Act

Mon, 19 Sep 2022 16:00:03 GMT

Charges of aggravated possession of a gun without a licence can look bad on a person's criminal record.

What could happen:

Admitting that you are innocent

"Aggravated possession of an unregistered firearm" is similar to "possess an unregistered firearm in a public place," but there are "circumstances of aggravation" in this crime.

For this crime to be a crime, the prosecution must prove beyond a reasonable doubt that all three of the following are true:

That you were in public with a gun that hadn't been registered
Based on the Firearms Act of 1996, you were not allowed to have the gun.
There must be one or more things that make you mad.

The law recognises three different kinds of things that make things worse. Prosecutors only need to prove one of the three things listed above in addition to the others:

If you had more than one gun that wasn't registered, you could get in trouble.
In this case, the unregistered weapon was a handgun.
The gun was a "prohibited weapon," so it was against the law to own it.
You can find a full list of banned weapons at the bottom of this page.

There are a number of ways you might be able to defend yourself against the charges. For example:

You were allowed to own the gun because the law said so.
There was a record of who owned the gun.
You got the gun because someone threatened you or forced you to. I had to keep a pistol on me to protect myself and others from serious harm or danger (necessity)
You could have used the gun to protect yourself, your property, or someone else's (self-defence)

Taking a guilty plea

You might not want to fight the charges at all if you don't want to. If you agree with the accusations against you, you can enter a "guilty" plea before going to court. So, you won't have to do a trial, which will save you time and money. So, if you take responsibility for what you did and plead guilty, it's more likely that your case will be dealt with in a better way.

Before you plead guilty to a crime, you should talk to a skilled criminal lawyer to find out if you have a chance of defending yourself and being found "not guilty."

If you're thinking about pleading guilty, you should also know the worst things that could happen.

The maximum sentence will depend on whether this case is heard in the Local Court or the District Court.

If a judge in the district court hears the case, the maximum sentence is two years in jail.

For more serious crimes, the maximum sentence in District Court is 14 years, but this option is only open to the prosecution.

Because these are the worst punishments that can be given, they will only be used in the worst cases. The court can send someone to jail only in the worst cases.

Possess Unregistered Firearm in Public Place - s93I(1) Crimes Act

Thu, 15 Sep 2022 16:00:06 GMT

Being charged with having an unregistered firearm in a public place can be frightening and stressful, especially if your freedom is at stake.

Pleading Not Guilty

To be found guilty of having an unregistered firearm in a public place, the prosecution must prove two elements beyond a reasonable doubt:

That you had an unregistered firearm in your possession in a public place
That you were not authorised to possess the firearm under the Firearms Act 1996

If you believe the prosecution will not be able to prove these elements beyond a reasonable doubt, you should consider entering a not guilty plea.

Our highly experienced criminal defence team can then assist you in fighting the charges by writing to the prosecution and pointing out any flaws in the prosecution's case.

As a result, we were able to have charges dropped at an early stage, saving our clients the time and expense of fighting the matter in court.

If the prosecution refuses to drop the charges, you can be confident that our highly skilled advocates will fight hard in court to prove your innocence by presenting all evidence to show why you should be found 'not guilty.'

For example, you may argue that:

You were authorised to possess the firearm
The firearm was registered
You were coerced or threatened into possessing the firearm (duress)
The possession of the firearm was necessary to prevent serious injury or danger (necessity)
You possessed the firearm to protect yourself, your property or another person (self-defence)

Pleading Guilty

If you do not want to fight the charges, you can enter a guilty plea before your case is heard in court.

You will save yourself the time and money associated with a trial or hearing by doing so.

You will also most likely face a lower penalty than if you were found guilty after a trial or hearing, because the court will consider the fact that you accepted responsibility for your actions.

If you want to plead guilty, you should be aware of the maximum penalties that could apply in your case.

Typically, these types of cases are heard in the Local Court, where the maximum penalty is two years in prison.

However, if the prosecution chooses to have the case heard in District Court, you could face up to ten years in prison.

Finally, the penalty you will receive will be determined by the facts and circumstances of your case, such as the type of weapon you used, whether there were witnesses present, and whether you have a prior criminal record.

It is therefore critical to ensure that your lawyer is experienced in these types of cases and that he or she can effectively present your case in order to secure a favourable outcome.

Our expert lawyers have extensive experience preparing persuasive 'sentencing submissions,' which are extremely effective in assisting our clients in obtaining favourable outcomes.

What does the prosecution need to prove?

The prosecution must prove two things beyond a reasonable doubt before you can be found guilty of this offence. If they cannot prove both of these elements, you will be found 'not guilty' of the offence:

That you were carrying an unregistered firearm in a public place.

The prosecution must prove that you had possession and control of a firearm.

They must also show that it was not registered on the Firearms Register of the NSW Police Force.

Finally, they must demonstrate that you possessed the firearm in a public place, which is defined as any open to the public place or premise. This can include parks, shopping malls, pubs, and public parks, among other things.

According to the Firearms Act of 1996, you were not authorised to possess the firearm.

This means that you must show proof of a valid licence or permit in order to possess the firearm.

You must also demonstrate that you have a legitimate reason for possessing the firearm. Personal protection or the protection of another person or property are not legitimate reasons.

You must be able to provide evidence of a ‘genuine reason’ to the court.

Genuine reasons include:

Sport or target shooting, where you are a member of an approved shooting club
Recreational hunting or vermin control, on rural land where you have permission from the owner of the rural land or a valid authority (such as the National Parks and Wildlife Service)
Where you are a farmer and you need to use the firearm in relation to farming
Pest control, where you are a professional contract shooter engaged or employed in controlling pests or rural land, or where you are employed by the government to control pests, or where you are a farmer and you are authorised to eradicate feral or diseased animals
Where you need the firearm for your work or employment – for example as a security guard or a police officer
For animal welfare reasons, where you are an RSPCA or Animal Welfare League officer or a vet, or someone else who needs to destroy animals to prevent suffering
Where you have a firearms collection and you are a current member of an approved collectors society or club

Queen Elizabeth II, We give our condolences

Fri, 09 Sep 2022 12:19:35 GMT

Everyone here at Velasquez Legal sends our condolences to the Royal Family in their time of mourning.

September 8th 2022, will be remembered as the day we lost an important individual. Queen Elizabeth II passed peacefully at Balmoral this afternoon.

Born into the Royal Family, she was never anticipated to ascend to the throne.

When her uncle, King Edward VIII, abdicated the kingdom in 1936, transferring the crown and all responsibilities to her father, her life took a dramatic change, one of incalculable consequence.

Instantaneously, she became the heir apparent to the crown.

Her succession in 1952, at the age of 25, occurred earlier than many had anticipated. Her father unfortunately passed leaving the throne vacant for his young daughter. Her actual coronation took place in 1953 at Westminster Abbey, at the age of 27, when she was crowned queen.

She would become the longest-reigning British monarch with 70 years on the throne, guiding her kingdom and Commonwealth through the Cold War and space race, revolutions in Eastern and Central Europe, the advent of the internet, the British Invasion, the war on terror and London tube bombings, and the formation of the European Union. She was there for it all. She was always there, and now It's an odd feeling. She has been a constant throughout all of our lives and now it is changing. She was beloved and will continue to be for years to come. May she rest in peace.

Trespassing with Firearm or Speargun - s93H(1) Crimes Act

Thu, 08 Sep 2022 16:00:01 GMT

Being charged with trespassing with a firearm or spear gun can have a negative impact on your life, interfering with your ability to work and travel.

PLEADING NOT GUILTY

The prosecution must prove two things beyond a reasonable doubt before you can be found guilty of trespassing with a firearm or spear gun:

That you entered a building or land without the owner’s permission (trespass)
That you had in your possession a firearm, imitation firearm, spear gun or imitation spear gun

If you believe the prosecution will not be able to prove these two elements beyond a reasonable doubt, you may wish to plead 'not guilty' to the charges.

Our firearms experts can then advocate for the charges to be dropped before you go to court by pointing out any flaws in the prosecution's evidence or explaining your side of the story, along with any evidence that supports your case.

For example, you could argue that you were not trespassing because you had permission from the property's owner, or that the weapon you had did not match the description above.0

your options, including whether you have a relevant defence, for example:

Where you were coerced or threatened into trespassing with the weapon (duress)
Where trespassing with the weapon was necessary to prevent serious injury or danger (necessity)
Where you committed the offence to protect yourself, your property or another person (self-defence)
Where you were unaware that you were trespassing honest and reasonable mistake of fact

PLEADING NOT GUILTY

If you do not want to fight the charges in court, you may want to enter a guilty plea.

In many cases, entering a guilty plea early can be advantageous because it saves you the time, expense, and inconvenience of having your case heard in court.

It may also result in a more favourable outcome for you because it demonstrates to the court that you have accepted responsibility for your actions. This may result in a lower penalty than if you were found guilty after a hearing or trial.

However, before pleading guilty to any offence, you should consult with an experienced lawyer who can examine your case and advise you on whether you have a defence.

If you intend to plead guilty, you should be aware of the maximum penalties that may be imposed.

In most cases, your case will be heard in the Local Court, where the maximum penalty is two years in prison.

In more serious cases, however, the prosecution may choose to have the case heard in District Court, where the maximum penalty is 5 years in prison.

It's important to note that these are the maximum penalties, so they'll only be applied in extreme cases.

draft bill to outlaw coercive control in intimate partner relationships NSW

Sat, 20 Aug 2022 05:03:44 GMT

The NSW Government's "Have Your Say" website allows for the submission of comments on the Crimes Legislation Amendment (Coercive Control) Bill 2022. The consultation will end on August 31, 2022.

As part of its ongoing response to the Parliamentary Joint Select Committee on Coercive Control, the NSW Government is conducting public consultations on a draught bill that would make it illegal to use coercion in relationships with intimate partners.

Repeatedly abusing a current or previous intimate partner will now be a crime punishable by up to seven years in prison, according to the new law.

Prior to releasing an exposure document for wider input, the NSW Government distributed an earlier draught to select legal parties and NSW Police to identify and address any technical legal issues. In the spring of 2022, the final measure is anticipated to be introduced in the legislature.

Domestic abuse that involves coercive control involves behaviour patterns that together deprive victims and survivors of their autonomy and independence. Physical, sexual, psychological, and financial abuse are all examples of this type of abuse.

An important "red flag" for intimate relationship homicide is coercive control. The Domestic Violence Death Review Team noted that the relationship was marked by the abuser's use of coercive and controlling behaviours towards the victim in 111 of the 112 (99%) intimate partner domestic violence homicides that occurred in NSW between 10 March 2008 and 30 June 2016 that it reviewed.

Unauthorised Possession or Use of Prohibited Firearms - s7 Firearms Act

Mon, 15 Aug 2022 17:00:00 GMT

"Unauthorised possession or use of forbidden firearm" is similar to "possess or use unlicensed firearm," except it applies to a restricted firearm, not merely weapons.

Because these firearms are more dangerous, the maximum sentence for this offence is higher than for 'possess or use unlicensed firearm.'

Not Guilty

The prosecution must show two things beyond a reasonable doubt before charging you with possessing or using a restricted firearm:

You used or had a handgun or banned gun
You lacked a valid permit to use or possess the gun

If the prosecution can't show both factors, you'll be ruled "not guilty."

This implies that if you didn't use or possess a restricted firearm or had a legal permit or licence, you may wish to plead "not guilty" and fight the case in court.

You can go to court to prove your innocence.

You may also want to defend your behaviour, such as:

Where you were persuaded or frightened into owning or using the gun (duress)
Where the banned firearm was needed to prevent serious injury or danger (necessity)
You used or possessed the gun to protect yourself, your property, or another person (self-defence)

If you want to plead "not guilty," you need a criminal lawyer with a track record of winning similar cases. An competent criminal lawyer can help you win your prohibited guns case with appropriate counsel and representation.

Plea of Guilty

If you accept the charges, you may want to plead guilty early.

Early guilty pleas show the court that you accept responsibility for your acts, which may lead to a reduced sentence. If you plead guilty early, you'll save a costly trial or defence hearing. f you're considering pleading guilty, know the potential penalties.

Your case will be heard in Local Court before a magistrate, where the maximum sentence is 2 years.

If the prosecution chooses District Court, you might face up to 14 years in prison.

Make sure your lawyer has experience with these types of cases; a qualified criminal lawyer will fight to keep your case in local court.

The type of sentence you receive depends on the facts and circumstances of your case, such as the number and type of weapons, your criminal past, and so on.

Courts can impose a wide range of fines, including:

Dismissal Conditional Release Fine Community Correction Intensive Correction Prison

What is a prohibited firearm?

1. Any machine gun, sub-machine gun or other firearm capable of propelling projectiles in rapid succession during one pressure of the trigger.

2. Any self-loading rimfire rifle

3. Any self-loading centre-fire rifle

4. Any self-loading or pump action shotgun

5. Any self-loading centre-fire rifle of a kind that is designed or adapted for military purposes.

6. Any self-loading shotgun of a kind that is designed or adapted for military purposes.

7. Any firearm that substantially duplicates in appearance (regardless of calibre or manner of operation) a firearm referred to in item 1, 5 or 6.

8. A firearm, not being a pistol, of the Uberti or Armi-Jager brands, or any similar firearm fitted with a revolving ammunition cylinder (other than a firearm manufactured before 1920).

9. A shotgun fitted with or designed to be fitted with a drum magazine of the “Striker 12” assault shotgun type or any similar weapon.

10. Any firearm to which there is attached any article or device capable of muffling, reducing or stopping the noise created by firing the firearm.

11. A firearm, not being a pistol, fitted with a stock that is specially designed so as to be readily detachable, or to operate on a swivel, folding or telescopic basis.

12. A firearm made up in the form of a stylographic or propelling pen or pencil, capable of being used for the discharge of gas, bullets, shot, dye or pyrotechnic flares.

13. A firearm capable of discharging by any means:

a) Any irritant matter in liquid, powder, gas or chemical form, or

b) Any pyrotechnic flare or dye, or

c) Any article known as a “paint-ball”.

14. A firearm that:

a) Substantially duplicates in appearance some other article (such as a walking stick, walking cane or key ring), and

b) Disguises or conceals the fact that it is a firearm.

15. A cannon or other weapon by whatever name known of a type which will expel a projectile by the action of an explosive or other propellant, and which has a barrel with a bore in excess of 10 gauge, not being a firearm of the Very or rocket type designed and intended for use for life saving or distress signalling purposes, an antique muzzle loading firearm, or a rifle or shotgun manufactured before 1920.

16. Any firearm which, or part of which, has a dimension less than the minimum dimension prescribed for the firearm or part by the regulations.

18. Any device known as a “powerhead” that can be attached to the end of a spear gun and that is designed to propel a projectile by means of an explosive.

Unauthorised Possession or Use of Firearms - s7A Firearms Act

Fri, 12 Aug 2022 17:30:00 GMT

The law prohibits anyone from owning or using a handgun unless they have a valid firearms permit.

The consequences might be severe for those who are found in possession of a firearm without a valid permission. As a result of being charged with a firearms offence, you may be unable to work or travel.

Choices Available to You

Pleas of Innocence

Possession of an unauthorised firearm necessitates two components to be shown beyond a reasonable doubt by the prosecution. These include:

Your gun ownership was a known fact.
That you were not in possession of a valid permit to possess a firearm.

The prosecution must also establish two things beyond a reasonable doubt if you are accused of using an unauthorised firearm:

That you had a handgun at hand
A claim that you used a firearm illegally or that it was not in accordance with the terms and conditions of your guns licence

In this case, you will be acquitted if the prosecution fails to meet its burden of proof.

It's possible to plead 'not guilty' to the charge if you believe that you were in possession of a valid firearms licence or believe that you had some other good reason to believe that your actions were justified.

Your case will then be heard in court by an impartial magistrate who will take into account all the evidence before making a decision.

In addition, we may provide you with information about possible defences, such as:

if you were threatened or pressured into owning or using the gun (duress)
In cases where a firearm was required to prevent death or serious bodily harm (necessity)
While using or possessing the handgun for self-defense or the defence of another individual (self-defence)

Our seasoned defence attorneys, we'll be able to provide you the best advice on your options and whether or not to plead "not guilty."

GUILTY PLEA

You may want to accept the charges against you and file a guilty plea as quickly as feasible. This will save you time and money, and it's likely to result in a better outcome than if you had been found guilty in court.

Most of these cases are adjudicated in the Local Court, where a two-year prison sentence is the maximum penalty for having or using an illegal firearm.

In contrast, if the case is handled in District Court, you could face a maximum sentence of five years in prison.

Note that these maximum punishments only apply to the most serious offences, and will not be applied in all circumstances. In actuality, the court can only utilise jail as a last resort in criminal proceedings.

Criminal defence attorneys can help you achieve the greatest possible sentence by presenting your case in its best light and convincing the magistrate to deal with the offence leniently, which is what our team can do for you!

An order of non-conviction means that you have been convicted of the crime and are still able to work and travel, but you do not obtain a criminal record.

Unlicensed firearm possession and use most frequently results in a fine, according to the data.

Unregistered Firearms - s36 Firearms Act

Wed, 10 Aug 2022 21:30:00 GMT

If you buy, sell, or own a firearm, the law requires you to register it with the NSW Police Firearms Registry.

If you are caught selling, buying, or possessing an unregistered firearm, you may face harsh penalties that will have a negative impact on your life, affecting your ability to carry out your work duties and travel abroad.

PLEADING NOT GUILTY

Before you can be found guilty of buying, selling or possessing an unregistered firearm, the prosecution has to prove several factors (elements).

If they are unable to prove these elements beyond a reasonable doubt, you will be found ‘not guilty:’

That you sold, bought or possessed a firearm
That the firearm was not registered with the Firearms Registry run by the NSW Police Force

PLEADING GUILTY

If you do not want to fight the charges, you may wish to enter a guilty plea.

Pleading guilty at an early stage is often advantageous because it saves you the costs of having the matter heard in court and also ensures that the matter is dealt with quickly.

It may also result in a less severe penalty because an early guilty plea shows the court that you have accepted responsibility for your actions.

If you're considering pleading guilty, you should be aware of the maximum penalties that could be imposed.

Unregistered firearms cases are typically heard in the Local Court, where the maximum penalty is two years in prison.

If the prosecution elects to have the case heard in District Court, the maximum penalty is ten years in prison if the firearm is a prohibited firearm or pistol, and five years in prison for all other firearms.

It's important to remember that the penalties discussed above are only maximum penalties, so they'll only be applied in the most serious cases. Your penalty will be determined by the facts and circumstances of your case.

Even if you simply wish to plead guilty, it is critical that you are represented by a highly experienced and reputable lawyer, as the right legal team can make all the difference in avoiding these harsh maximum penalties.

Our experienced lawyers will be able to advise you on whether you have grounds to fight the charges, such as if you were unaware that the firearm was unregistered, or if you did not own the firearm at the time of the offence.

If necessary, we can provide you with the best possible representation in court by vigorously contesting the prosecution's allegations and presenting all evidence to support your case.

We can also advise you if you have any other defences to explain or justify your actions, such as:

Where you were coerced or threatened into possessing or using the unregistered firearm (duress)
Where the use or possession of the unregistered firearm was necessary to prevent serious injury or danger (necessity)
Where you used or possessed the unregistered firearm to protect yourself, your property or another person (self-defence)
Where you were unaware that the firearm had to be registered ( honest and reasonable mistake of fact )

Break and Enter Charges in NSW

Mon, 08 Aug 2022 21:15:00 GMT

Breaking and Entering: What Is It and How Can You Be Charged?

The Crimes Act has several different types of break-and-enter offences, each with its own set of punishments. According to 112 of the Crimes Act, the most usually prosecuted crime is "break, enter and commit a major indictable offence," which includes "break, enter and steal."

It's understandable that you'd be concerned about the impact of a break-and-enter conviction on your life and career.

Break-and-enter charges include a variety of punishments, and the information provided in the sections that follow will help you understand the evidence the prosecution will need to support their case.

Break and enter offences under the Crimes Act have also been explained in depth, as well as the definition of "aggravating circumstances."

Read on to learn more about the "break and enter" accusation.

Other break and enter crimes

Breaking and entering with the purpose to commit a severe indictable offence is a separate crime under the Crimes Act's § 113. This means that even if you don't conduct a severe indictable offence – such as stealing something - the homeowner can nonetheless catch you.
Under the Crimes Act, you can also be charged if you are captured on enclosed grounds with a weapon, instrument, housebreaking device or disguises in your possession. It's possible to be caught in someone's backyard with bolt cutters on your head, for example.
A previous conviction for an indictable offence and the possession of a weapon with the intent to commit a major indictable offence might lead to heavier punishment.

Complicating factors

The seriousness of an offence can be increased by characteristics known as aggravating circumstances.

It is possible that you will face a more severe punishment if the prosecution can show that you committed an offence under "aggravating circumstances."

As a result of additional circumstances, the offence can become more serious. In these cases, you'll find:

Weapon or instrument: You're armed with a "offensive weapon" Anything that has the potential to do harm to another person is considered a "offensive weapon or instrument." Things like guns, knives, baseball bats, and syringes are all examples. It can also refer to non-weapons like autos and smashed bottles. You don't need to use the weapon; having it is enough.
You're with others: This implies the prosecution must establish that at least one additional person was present during the crime and shared a common objective with the accused. The court will assess the group's effect on the act or victim. It's not enough to establish that someone participated in the crime without being physically there, such as by acting as a lookout or helping plan it.
You beat someone: Physical harm is corporal violence.
You hurt someone physically: Actual bodily harm is lasting harm, but it doesn't have to be permanent. Actual bodily harm includes bruises or scratches and substantial, enduring psychiatric harm.
You rob someone of their liberty when you tie them up, lock them in a room, or pin them down.
You knew someone was inside when you committed the crime.

The court recognises two 'circumstances of extraordinary aggravation' If proven, you may face harsher penalties:

You intentionally wound another person : Grievous bodily damage is 'permanent or significant disfiguring' Stabbing or shooting someone during a break-in is an example.
You have a deadly weapon : Guns and other banned weapons are considered dangerous.

What must prosecution prove for guilty verdict?

The prosecution must show numerous 'components' of the crime beyond a reasonable doubt to prove 'break, enter and conduct a major indictable offence' You'll be found "not guilty" if they can't.

1) The prosecution must establish you broke into and accessed private property without permission.

Private property includes a person's home, automobile, caravan, boat, or business, church, or school.

This element doesn't require breaking or forcing open a window or door. If you broke and entered through an unlocked but closed door, window, or gate, the prosecution may still be able to establish it.

The prosecution may also prove a 'break and enter' if you gained admission by fraud, threat, or using a key without permission.

If you can prove that the door, window, or gate was already open, the prosecution cannot prove this aspect. For example, if a window is left open and you climb through it.

2) You committed a felony

Indictable crimes have a minimum five-year jail sentence. Theft and assault are indictable offences.

Not Guilty Plea

To be convicted of a break-in, the prosecution must prove two things beyond a reasonable doubt:

1. You trespassed on private property

2. You committed a felony (an offence carrying a period of imprisonment of 5 years or more, such as larceny or assault)

If you don't think the prosecution can show the above factors, our criminal lawyers can assist you fight the charges by casting doubt on the prosecution case.

We can also raise possible defences to explain or justify your actions to have the charges dropped early, sparing you the time and money of a defended hearing.

Break-and-enter defences include :

Where someone coerced or intimidated you to break-in (duress)
Where you broke in to save someone's life (necessity)
Where the owner let you break and enter

Our skilled defence team will assist you comprehend the law and fight to have the charges dropped so you may move on with your life as soon as possible.

Guilty Plea

If you accept the charges, you may want to plead guilty.

Early guilty pleas show the court that you take responsibility. This can assist you win your case because the magistrate may reduce your punishment.

If you plead guilty, the magistrate will set your sentence.

You'll avoid a costly and time-consuming defence hearing.

Before pleading guilty, talk to one of our experienced criminal lawyers who can advise if you can fight the accusations and get a 'not guilty' judgement.

Recklessly Causing Grievous Bodily Harm (GBH) or Wounding – s 35 Crimes Act 1900

Sat, 06 Aug 2022 17:45:00 GMT

What is the crime of Willfully Causing Grievous Bodily Harm (GBH) or Wounding?

Recklessly Causing Grievous Bodily Harm is a crime punishable by up to ten years in prison under Section 35 of the Crimes Act of 1900.

GBH (grievous bodily harm) is defined as "very serious harm" and includes, but is not limited to:

Any permanent or significant disfigurement
The killing of a foetus by means other than a medical procedure, and
Any severe bodily disease

You are 'reckless' if you foresaw the possibility of inflicting GBH, which means you were aware that GBH could be inflicted but proceeded with your actions anyway.

What is the Prosecution required to prove?

The prosecution must prove two things beyond a reasonable doubt before you can be found guilty of recklessly wounding or inflicting grievous bodily harm:

1) That your carelessness caused the wound or serious bodily harm.

The offence of reckless wounding or grievous bodily harm applies when you did not intend to wound another person or inflict grievous bodily harm, but your recklessness resulted in this type of physical injury.

Recklessness refers to situations in which you knew, or should have known, that your actions could cause wounding or grievous bodily harm, but you continued to act anyway, such as when you were carelessly waving a knife around and cut someone, or punching someone and breaking a bone.

2) That you inflicted serious bodily harm or caused a wound on another person.

A wound is commonly defined as an injury that occurs when both layers of skin are broken, such as a deep cut or a split lip.

Grievous bodily harm is defined as "extremely serious harm," which includes permanent and significant disfigurement. Examples include broken bones, organ damage, and the death of a foetus.

What are the Consequences?

The type of penalty that will be imposed in your case is determined by your actions as well as whether they were committed in the workplace.

The court will consider the extent of the injury caused, as well as other factors, such as whether you have a previous criminal record and whether you have demonstrated remorse, in determining the appropriate penalty (whether you have shown that you are sorry).

According to statistics, the most common penalty in cases of recklessly causing great bodily harm is imprisonment (88 percent). The average sentence is 36 months, with an 18-month non-parole period. This means that the average time you will spend in prison is 18 months.

The most common penalty for reckless wounding is imprisonment (55 percent), followed by a suspended sentence (29.8 percent). The average non-parole period was 18 months, with a median term of 30 months.

What are the Countermeasures?

The following are the most common defences to Recklessly Causing Grievous Bodily Harm (GBH) or Wounding:

Self-Defence
Duress
and necessity
Legal Correction

Your Legal Options

Plea of Not Guilty

The prosecution must prove two factors beyond a reasonable doubt before you can be found guilty of recklessly causing grievous bodily harm or wounding:

That you inflicted serious bodily harm or injury on another person.
That the wound or grievous bodily harm was caused by your recklessness - that is, you knew or should have known that your actions could cause wounding or grievous bodily harm, but you continued to act anyway.

A wound is a type of injury that occurs when both layers of skin are broken, such as a deep cut or a split lip.

Grievous bodily harm is defined as "extremely serious harm," which includes permanent and severe disfigurement. Examples include broken bones, organ damage, and the death of a foetus.

If you want to plead 'not guilty,' our lawyers can provide you with the best defence possible.

Our expert defence team can also assist you in raising any defences necessary to obtain a 'not guilty' verdict, such as:

(self-defence) When acting to protect yourself, another person, or your property
(necessity) When it was absolutely necessary to avoid serious injury or danger
(duress) Where you were threatened or coerced into injuring or causing serious bodily harm to another person

Accepting Guilty Plea

If you do not want to fight the charges, you should enter a guilty plea as soon as possible. This will demonstrate to the court that you have accepted responsibility for your actions, which may help you obtain a lesser penalty in many cases.

However, before pleading guilty, you should consult with one of our experienced criminal lawyers, who will be able to advise you on any available defences that may result in a 'not guilty' verdict.

Assaulting a Police Officer Charge – Section 60 Crimes Act 1900

Thu, 04 Aug 2022 16:42:49 GMT

Assaulting a Police Officer

is an offence under Section 60 of the Crimes Act 1900 which carries a maximum penalty of 5 years in prison.

An ‘assault’ is where:

You caused the officer to fear immediate and unlawful violence, or you made unauthorised physical contact with the officer,
The officer did not consent, and
Your actions were intentional or reckless

An act is considered to be against a police officer even though he or she is not on duty, if it is carried out due to:

Actions by the officer while executing his or her duty, or
The fact he or she is a police officer

Assaulting a Police Officer carries a maximum penalty of 5 years in prison.

The maximum penalty increases to 7 years in prison where you inflicted ‘actual bodily harm’ on the officer which is harm that is more than ‘transient or trifling’ and includes lasting cuts or bruises.

The maximum increases to 12 years in prison where you inflicted ‘grievous bodily harm’ on the officer which is ‘very serious harm’ that includes, but is not limited to:

Any permanent or serious disfigurement
The destruction of a foetus, other than by a medical procedure, and
Any grievous bodily disease

To establish the offence, the prosecution must prove beyond reasonable doubt that:

You assaulted, threw a missile at, stalked, harassed or intimidated a police officer.

Defences to the charge include self defence , duress and necessity .

If evidence of any of these defences is raised, the prosecution must then prove beyond reasonable doubt that it does not apply.

Pleading Not Guilty :

Before you can be found guilty of ‘assault police,’ the prosecution must prove beyond a reasonable doubt that:

You acted in a way that caused a police officer to fear immediate and unlawful personal violence OR that you touched a police officer without their consent, and
The police officer did not consent to your actions
You acted either intentionally or recklessly

If you believe that the prosecution will be unable to prove each of these factors beyond a reasonable doubt, you may wish to speak to our highly experienced criminal lawyers about pleading ‘not guilty’ and fighting the charges in court. Our Accredited Criminal Law Specialists have considerable experience dealing with ‘assault police’ matters, and can help you present your case persuasively to ensure that you get the best possible outcome. Our dedicated lawyers will carefully examine all evidence to find problems with the prosecution case, which can help you secure a verdict of ‘not guilty.’

We can also advise you of any defences to explain or justify your conduct, for example:

Where the police officer was acting with excessive force and you acted to defend yourself ( self-defence )
Where you were threatened or coerced into assaulting the police officer ( duress )
Where your actions were necessary to prevent serious injury or danger ( necessity )
Where the touching was purely accidental – for example, where the contact occurred in a large crowd by mistake.

When it comes to fighting the charges, it is important to ensure that you are represented by a reputable criminal lawyer who can give you the best possible defence in your case.

Pleading Guilty:

If you are willing to accept the charges against you, you may wish to plead guilty as soon as possible.

In some cases, this may be beneficial as it will show to the court that you have accepted responsibility for your actions. Accordingly, you may end up with a lesser penalty.

However, before you enter a plea to any offence, it is important to speak to a reputable criminal lawyer, who can advise whether you can defend the charges to avoid a conviction.

Jury Duty - A Guide For Potential Jurors

Mon, 18 Jul 2022 20:58:36 GMT

Most people have never served on a jury before. While some regard it as an honour, others seek to avoid it at all costs. The following is a list of frequently asked jury service questions.

Eligibility and Selection:

The Jury Act of 1977 governs jury duty and jury selection (NSW). In NSW, any criminal proceedings in the Supreme Court or District Court that are to be tried by jury must have a jury of 12 people.

Except for the sheriff, potential jurors are not required to reveal their identities. Throughout the proceedings, jurors will be referred to by numbers assigned to them by the sheriff. The defence has no right to any information about the jurors.

The Sheriff leads a pool of potential jurors into the courtroom when selecting jurors. The trial judge must direct the prosecutor to inform the jury panel members of the nature of the charge, the identity of the accused, and the main witnesses to be called. The judge then requests that members of the panel apply to be excused if they are unable to provide impartial consideration to the case.

The prosecution and defence each have three objections to potential jurors. Such objections are made without the possibility of a juror being questioned. If either the prosecution or the defence object, the juror is immediately excused.

The people listed below have the right to request an exemption from serving on a jury:

Clergy.
Vowed members of any religious order.
Persons practising as dentists.
Persons practising as pharmacists.
Persons practising as medical practitioners.
A person employed or engaged (except on a casual or voluntary basis) in the provision of fire, ambulance, rescue, or other emergency services, whether or not in the public sector.
A person who:
7.1. within the 3 years that end on the date of the person’s claim for exemption, attended court in accordance with a summons and served as a juror, or
7.2. within the 12 months that end on the date of the person’s claim for exemption, attended court in accordance with a summons and who was prepared to, but did not, serve as a juror.
A person who is entitled to be exempted under section 39 on account of previous lengthy jury service.
A person who resides with, and has the full-time care of, a person who is sick, infirm or disabled.

The following are persons who are excluded from jury service:

Persons having committed certain serious offences excluded from jury service for life

A person is barred from serving on a jury for life if they have been found guilty or convicted of any of the following offences (wherever committed):

an offence punishable by life imprisonment if committed in New South Wales
an offence involving a terrorist act within the meaning of the Terrorism (Police Powers) Act 2002
an offence under Part 7 (Public justice offences) of the Crimes Act 1900
a sexual offence within the meaning of Section 7 of the Criminal Records Act 1991

Individuals who are serving or have served a prison sentence

A person is barred from serving on a jury while serving a sentence of imprisonment (in New South Wales or elsewhere) for an offence committed when the person was 18 or older.

A person is barred from serving on a jury if:

for 7 years following a sentence or sentences of imprisonment of less than 3 months, or
for 10 years following a sentence or sentences of imprisonment of 3 months or more.

Persons who are Australian lawyers

A person who is an Australian lawyer, whether or not an Australian legal practitioner, is excluded from jury service.

People in positions of authority

Anyone holding any of the following positions is barred from serving on a jury:

The Governor, a judicial officer (as defined by the Judicial Officers Act 1986)
a member of the Executive Council
a member of the Legislative Council or Legislative Assembly, the Ombudsman
a Deputy Ombudsman, or
an Assistant Ombudsman are all examples of public servants.

Individuals who have access to information about inmates and other detainees

A person is barred from serving on a jury during any period in which he or she holds the position and has direct access to or information about inmates as a result of holding that position.

Insolvent bankrupts

Any time a person is an undischarged bankrupt, he or she is barred from serving on a jury.

Individuals employed or engaged in specific occupations in the public sector

A paralegal is barred from serving on a jury if he or she is employed or engaged in the public sector in the provision of legal services in criminal cases.

A person is barred from serving on a jury if he or she is employed or engaged as a member of staff in any of the following bodies, with the exception of clerical, administrative, or support staff:

the Ombudsman's Office
the Director of Public Prosecutions' Office
the Crown Solicitor's Office

A person is barred from serving on a jury if he or she is employed or engaged in law enforcement or criminal investigation in any of the following bodies, except if employed or engaged on a casual or voluntary basis or as clerical, administrative, or support staff:

the NSW Police Force ,
the Australian Federal Police (AFP),
the NSW Crime Commission ,
the Australian Crime Commission ,
the Law Enforcement Conduct Commission (LECC),
the Independent Commission Against Corruption (ICAC).

Individuals subject to certain orders and disqualifications, as well as those in custody

A person is barred from serving on a jury during any period during which the person is bound by an order made in New South Wales or elsewhere in connection with or as a result of a criminal charge or conviction, including the following orders:

an apprehended violence order within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 ,
a community service order or an order under section 9, 10 or 11 of the Crimes (Sentencing Procedure) Act 1999,
an extended supervision order, a continuing detention order, an interim detention order or an emergency detention order under the Crimes (High Risk Offenders) Act 2006 ,
a non-association order or place restriction order within the meaning of the Crimes (Sentencing Procedure) Act 1999 ,
a prohibition order or contact prohibition order within the meaning of the Child Protection (Offenders Prohibition Orders) Act 2004 ,
an order under section 7A of the Drug Court Act 1998 ,
an intervention program order within the meaning of the Crimes (Sentencing Procedure) Act 1999 .

A person is excluded from jury service during any period in which the person is

awaiting trial or sentence for an offence or the determination of appeal proceedings in relation to an offence for which the person has been found guilty or convicted, or
subject to a preventative detention order within the meaning of the Terrorism (Police Powers) Act 2002 or a control order or interim control order under Division 104 of the Criminal Code of the Commonwealth, or
a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000, or
bound by an undertaking to participate in the Program under the Pre-Trial Diversion of Offenders Act 1985, or
subject to a limiting term under the Mental Health (Forensic Provisions) Act 1990, or
detained in a hospital or other place under Division 6 of Part IB of the Crimes Act 1914 of the Commonwealth, or
subject to an interim control order, or a control order, within the meaning of the Crimes (Criminal Organisations Control) Act 2012.

A person is excluded from jury service during any period of 12 months or more in which the person is disqualified from holding a driver licence.

Role of Judge and Jury

The jury as a whole is responsible for deciding facts and issues raised by the evidence, as well as determining whether the accused is guilty of the crime or crimes charged in the indictment. These decisions are based on the evidence presented at the trial as well as the judge's legal directions. Counsel will make their own submissions and arguments based on the evidence before the jury is asked to deliberate on their verdict. The jury must follow the judge's legal instructions and take into account any warnings given about specific aspects of the evidence. Each juror is required to follow the oath or affirmation made at the start of the trial in order to render "a true verdict in all respects ." A ccording to the evidence. A true verdict is not one based on sympathy, prejudice, or information obtained outside of the courtroom.

The judge is in charge of how the parties conduct the trial. Throughout the trial, the judge may be required to make legal decisions, such as whether evidence sought to be led by a party is relevant. The judge must ensure that the trial is fair and follows the rules of the law. Before the jury begins deliberations, the judge will provide legal directions to the jury regarding how they should approach their task during their deliberations in a summing up. The judge does not make any factual determinations, resolve any issues raised by the evidence, or render a verdict.

Roles and Functions

The facts are decided solely by the jurors. In any case, jurors, not the judge, will have to resolve all disputes about factual issues. That means, in part, that it is entirely up to the jurors to decide what evidence to accept and what evidence to reject. As a result, jurors must pay close attention to each witness as he or she testifies. Jurors should not only listen to what witnesses say, but also observe them as they give their testimony. How a witness presents to jurors and responds to questioning, particularly during cross-examination, may help jurors decide whether or not to accept what that witness was saying as true and reliable. You have the right to accept some of what a witness says while rejecting other aspects of the evidence.

Each juror is expected to act as a judge. Jurors are the fact-finders, which means that the verdict(s) will be decided by the jurors. The judge will have no say over whether jurors accept or reject evidence or which arguments and submissions of counsel they find persuasive. The judge also does not decide what verdict or verdicts jurors give on any charge. It is up to the jury to make that determination.

The judge is the law's judge. During the trial, the judge is responsible for ensuring that all procedural and evidence rules are followed. During the trial and at the conclusion of the evidence, the judge will instruct jurors on the legal principles relevant to the case and explain how they should be applied by the jurors to the issues on which they must decide. The judge may be required by law to instruct jurors on how to handle certain types of evidence. In order to fulfil your role as a juror, you must accept and apply the judge's ruling.

Foreman of the Jury

The jury foreperson is the jury's representative or spokesperson. He or she can be chosen in any way the jury deems appropriate. The foreperson's primary responsibility is to deliver the jury's verdict. The jury may choose to communicate with the judge through a note from the foreperson. In the jury's deliberations, the foreperson is no more important or responsible than any other member of the jury. The foreperson can be changed at any time.

Nature of a Criminal Trial

When the Crown alleges that a member of the community has committed a crime and the accused denies the allegation, a criminal trial is held. The trial is conducted on the basis that the parties decide which evidence to present to the jury and which issues the jury must consider. The jury decides whether the defendant is guilty or not guilty of the crime or crimes charged. A criminal trial is not an investigation into the events surrounding the Crown's allegation, nor is it a search for the truth. As a result, neither the judge nor the jury have the authority to conduct any kind of investigation or inquiry outside of the courtroom and independent of the parties. The verdict must be based solely on an evaluation of the evidence presented by the parties. That evidence must be considered objectively, fairly, and without favour or prejudice to either party. The evidence-based verdict must be in accordance with the law as explained by the judge.

The burden of proof and the standard of proof

The Crown is responsible for proving the accused's guilt based on the evidence presented to the jury. This obligation lasts for the duration of the trial. The accused is not required to prove any facts or to respond to the Crown's arguments or submissions. The accused is presumed innocent until a jury finds his or her guilt proven by evidence in accordance with the law.

The Crown must establish the essential facts or elements that comprise the charge levelled against the accused. Before the accused can be found guilty, each of the essential facts must be proven beyond a reasonable doubt.A guilty verdict cannot be based on suspicion, nor can a finding that the accused most likely committed the crime. Any reasonable doubt about the accused's guilt must be given to him or her.

No Discussions Outside Jury Room

A juror should not discuss the case or any aspect of it with anyone other than his or her fellow jurors. Any jury discussion about the evidence or the law should take place only in the jury room and only when all jurors are present. This is because each member of the jury has the right to know what the other members of the jury think about the evidence and the law as the trial progresses.

Any conversation with someone who is not a juror risks influencing the jury's deliberations and, ultimately, the verdict given because that person has not heard the evidence, has not heard counsel's arguments or submissions, or may not understand the applicable law. The opinions of people who are not jurors are not only irrelevant, but also untrustworthy because they may be based on prejudice or ignorance.

Juror's Obligation to Report Irregularities

A juror's duty is to bring to the judge's attention any irregularity that occurred during the trial as a result of the conduct of fellow jurors. This should happen as soon as the juror learns of the misconduct. The following issues will be raised:

the fact that a juror has been discussing the matter with someone who is not a juror or making inquiries outside the jury room
the fact that a juror is refusing to participate in the jury's functions
the fact that a juror does not appear to understand the English language
and the fact that a juror appears to lack the ability to be impartial

Press Releases

Members of the jury should disregard any media reports on the trial's proceedings. Obviously, the report will be a summary of the proceedings or a specific aspect of the evidence or counsel's arguments. No weight should be given to that piece of evidence or any argument simply because it was reported in the media. Sometimes the material reported is removed from the context of the entire trial and may not be fair or accurate.

The Verdict

It is a fundamental principle that the jury be allowed to deliberate freely and without undue influence. Finally, all twelve jurors must agree on a verdict. It is possible that the paths that each juror took to reach that unanimous decision were not exactly the same, but the verdict of "guilty" or "not guilty" must be unanimous. In other words, if jurors agree that a particular verdict should be rendered, it makes no difference if they disagree on why that verdict should be rendered.

In certain cases, a judge may accept a majority verdict and reduce the jury to eleven jurors to make a decision as a jury in the case.

The judge has the authority to release the jury from the obligation to render a verdict, but will only do so if he is satisfied that there is no chance of genuine agreement being reached after further deliberation. Judges are usually hesitant to discharge a jury because past experience has shown that if given more time to consider and discuss the issues, juries can often agree. If there is still no chance of agreement, the foreperson must be examined under oath to establish that fact before the jury can be discharged. A retrial will almost certainly follow.

Drug Supply and Possession

carlajose1@gmail.com (Carla Velasquez) — Sun, 10 Jul 2022 07:53:23 GMT

Definition of 'Prohibited Drug'

Cannabis, MDMA or ecstasy, cocaine, Amphetamine, Methylamphetamine, and other drugs listed in Schedule 1 of the Drug Misuse and Trafficking Act are examples of prohibited drugs.

Penalties for Drug Possession

Penalties for drug possession in NSW include up to two years in prison, a $2,200 fine, or both. A criminal conviction is included.

The maximum sentence for drug possession is rarely imposed. A conviction for drug possession in NSW can be avoided even if you plead guilty in court if the court imposes a section 10 penalty on your sentence.

In New South Wales, drug possession penalties include a section 10 non-conviction, as explained below.

Section 10 Drug Possession

In New South Wales, there are several types of drug possession penalties, including a section 10 or Conditional Release Order non-conviction penalty, which can be imposed after pleading guilty to a charge of possessing a prohibited drug.

If you receive a section 10 drug possession penalty on sentence for drug possession charges in NSW, you will have no criminal record.

Those charged with second or first-time drug possession in NSW do not automatically receive a section 10 non-conviction. To achieve section 10 for drug possession charges, solid and thoughtful preparation tailored to your case is required, rather than a generic approach. It is critical to have a thorough understanding of drug possession laws, court procedures, and familiarity with Judges and Magistrates.

The following are some of the main factors that the Magistrate or Judge will consider when deciding whether or not to impose a section 10 sentence for drug possession charges:

Your good character.
Your age and health.
Your mental illness if any, and if so, whether it contributed to you committing the offence.
The absence of having a prior criminal record.
Trivial nature of the offence.
Any extenuating circumstances of the offence.
Anything else the court considers proper, including the impact a conviction will have on your job, and the flow-on effect of that on anyone else who relies on your income.

Drug Possession Charges NSW | What is Drug Possession?

According to sections 10 and 21 of the Drug Misuse and Trafficking Act, drug possession offences carry severe criminal penalties in NSW, including criminal conviction and up to two years in prison.

Drug possession is defined as knowingly having it in your custody or under your physical control to the exclusion of others who are not acting in concert. This includes 'de facto possession,' which occurs when it is knowingly located somewhere else where you intend to (and do) exercise dominion and control over it.

What does it mean to have "physical custody or control"? Physical custody means having it in your immediate physical custody, where you have complete control over it. For instance, where you have the drugs on you, such as your hands or pockets.

Common Defences to Drug Possession? Not knowing it was there is an available defence to drug possession offences. But forgetting that it was there is not a defence.

Definition of 'Prohibited Drug'

Cannabis, MDMA or ecstasy, cocaine, Amphetamine, Methylamphetamine, and other drugs listed in Schedule 1 of the Drug Misuse and Trafficking Act are examples of prohibited drugs.

How do you Win a Drug Possession Case?

To beat a drug possession charge, there are four main ways to avoid a criminal record for drug possession charges in NSW:

Dismissal because of a 'not guilty' verdict in court.
Mental illness dismissal because you've been diverted away from the criminal justice system under a s32 (now called s14) application under a mental impairment.
Section 10 dismissal or Conditional Release Order non-conviction sentence is imposed even after pleading guilty.
You've paid a penalty notice fine for drug possession, if issued by police, which results in no criminal charge.

Sexual Assault, Sexual Touching, and Sexual Acts

Sun, 10 Jul 2022 07:23:53 GMT

In New South Wales, having sexual relations with another person without their consent is a crime. This'sexual assault' offence carries a maximum prison sentence of fourteen years.

It is also illegal to sexually touch or perform a sexual act on another person without their consent. Sexual touching can result in up to five years in prison, while sexual acts can result in up to 18 months in prison.

Under New South Wales law, "sexual intercourse" has a broad definition. It refers to:

vaginal penetration by any part of another person's body or by an object held by that other person;
anus penetration by any part of another person's body or by an object held by that other person; or
oral sex.

Touching someone with your body or an object in situations that a reasonable person would consider sexual is referred to as "sexual touching."

Any other act that a reasonable person would consider sexual is considered a "sexual act."

Consent is defined as a "free and voluntary agreement" under New South Wales law.

The prosecution can prove that you were aware of the other person's refusal to consent in one of three ways:

They can establish beyond a reasonable doubt that you were aware that the other person did not consent.
They can establish beyond a reasonable doubt that you were negligent in determining whether the other person consented.
They can prove beyond a reasonable doubt that you had no reason to believe the other person consented.

Sexual offences are very serious. They can be even more serious if you are charged with an aggravated version of the offence, which can occur if the police allege that you physically harmed the other person or that they were under your authority at the time.

Sexual offences can be justified in a number of ways. You can successfully defend a sexual offence charge if you can show:

There is a reasonable possibility that you never actually had sexual intercourse with/sexually touched/performed a sexual act towards the other person.
There is a reasonable chance that the other person agreed.
There is a reasonable possibility that you mistook the other person for consenting.

Chief Magistrates Memorandum 28

Sun, 03 Jul 2022 21:03:49 GMT

Attached here is a .pdf file of the "Memorandum 28 – Covid 19" which will commence on 4 July 2022 .

Some key points to take from it:

The wearing of masks in court is no longer mandated but instead will be at the direction of the presiding magistrate
All appearances in Criminal Law matters will be in person unless an application to appear remotely is approved by the Court (some exceptions apply)
Applications for e-mail and/or AVL appearances in Criminal Law matters will only be granted where the Court considers that the circumstances justify remote attendance
Defendants in custody will continue to appear remotely where the Court considers that the circumstances justify remote attendance
Court users may continue to apply for remote appearances where they are unable to attend court for health reasons, and the Court may make such orders of its own motion

Court Security Act Order Expiry

Please note that on 4 July at 5pm the current Court Security Act Order will expire. There are currently no plans to renew the Order. The expiry of the Court Security Act Order will have the practical effect that Sheriff’s Officers will no longer enforce mask use and social distancing at the Local Court. Neither will Sheriff's Officers be checking if court users have ‘a legitimate reason associated with a particular matter’ before the person is granted access. Magistrates will retain the power to direct mask-use in their courtrooms. The Chief Magistrate may issue a further Court Security Act Order, at short notice, should the need arise in the future.

Note: If you've been charged with an offence under this section click on the orange button in the bottom right to chat to a lawyer in real time 24/7.

New s22B - Change in Bail Legislation

Wed, 29 Jun 2022 23:58:24 GMT

Parliament passed a significant amendment to the Bail Act on Thursday night, and it will go into effect as soon as it receives assent, which could be as soon as today. We will notify you once it has received assent. Because these changes will affect many people, it is critical that you understand them and plan for them.

The new section 22B of the Bail Act states that if an accused has been found guilty or has entered a guilty plea and will be sentenced to full-time imprisonment, the court must deny bail unless there are special or exceptional circumstances.

This new and stricter presumption against bail will apply in cases where a release or detention application is made after a plea or conviction. This could include situations in which your client: has violated bail and appears on a detention application (and a plea of guilty is entered or has previously been entered); has been convicted under section 196, a warrant has been issued, and you appear and apply for bail; enters a plea of guilty and the prosecution makes a detention application; is found guilty after a hearing or trial and the prosecution makes a detention application;

Bail exists to keep victims and our communities safe before and during a trial, as well as to protect everyone's right to the presumption of innocence and the general right to be free until their day in court and their matter is resolved. Bail is not intended to be a pre-judgment of someone's guilt or punishment prior to conviction. However, this does not mean that criminals who have been convicted or plead guilty and who the court believes will be sentenced to fulltime detention should be allowed to walk free in our community while they await their sentence. After a conviction or guilty plea, the presumption of innocence is no longer applicable. Currently, when an accused person is found guilty of an offence and the case is adjourned for sentencing to a later date, a bail decision-maker must consider the possibility of a custodial sentence being imposed under section 18 (1) (i1) of the Bail Act.

The provision will go even further, requiring that serious offenders sentenced to imprisonment to be served by fulltime detention not be granted bail post-conviction prior to sentencing. Offenders will not be taken into remand under the provision if they are later sentenced to a lesser penalty and released, or if they are considered for an intensive corrections order or an order under section 11 of the Crimes (Sentencing Procedure) Act 1999, because those are not circumstances in which the offender "will be sentenced" to full-time detention. This is not a fictitious or shortened sentencing hearing. A full sentencing hearing will still take place before a judge at a later date determined by the court, with the usual opportunities for parties to make submissions. The defence will still have the opportunity to present evidence and arguments about the appropriate sentence. However, this reform will ensure that those offenders who will be receiving fulltime detention are not granted bail in order to be released back into the community before their sentencing hearing.

It is not about increasing the number of people incarcerated. It is about ensuring that offenders who have already been found guilty beyond a reasonable doubt or who have pled guilty and are on their way to prison get there faster and are not out in the community while awaiting sentence. The New South Wales Government will closely monitor the impact of this reform in practise to ensure that it does not undermine the Government's early guilty plea reforms, though this is difficult to imagine. If a person enters an early guilty plea under the early guilty plea scheme, they will already have a good idea of the type of sentence they can expect. If the sentence is imprisonment with full-time detention, it should come as no surprise if the new section 22B is activated during a bail decision prior to sentencing.

The provision does acknowledge that special or exceptional circumstances may arise from time to time that justify the granting of bail even in these circumstances, which is consistent with the approach taken in the Bail Acts' existing section 22. Section 22 supersedes other sections of the Bail Act by stating that bail cannot be granted in certain situations unless there are special or exceptional circumstances. The courts have refused to provide an exhaustive list of factors that could be considered "special or exceptional." In EliHilli and Melville v R [2015] NSWCCA 146 at [29], Justice Hamill stated, with their Honours Simpson and Davies concurring:

"Special or exceptional circumstances" may exist in the combination of factors or in "the coincidence of a number of features" … It is not possible to determine or predict in advance what those features may be.

What is clear is that it is a high bar to clear, and it will be a high bar under new section 22B as well. For example, a person may argue that special or exceptional circumstances exist because they are required to make arrangements before beginning their prison sentence to avoid hardship on third parties, such as a person for whom they care. This, however, is a high standard. It would be up to the court to decide whether the test was met based on the facts of the case. Even if special or exceptional circumstances can be demonstrated in a given case, subsection (3) of the new provision states:

(3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section.

________________________________________________________________________________________________________________________________________

THE LEGISLATION

1. On 23 June 2022, the Bail Amendment Bill was passed by Parliament. We understand

that the Act may commence early next week once it receives asset. Section 22B reads

as follows:

22B Limitation regarding bail during period following conviction and before

sentencing for certain offences

(1) During the period following conviction and before sentencing for an offence for

which the accused person will be sentenced to imprisonment to be served by fulltime detention, a court—

(a) on a release application made by the accused person—must not grant

bail or dispense with bail, unless it is established that special or exceptional

circumstances exist that justify the decision, or

(b) on a detention application made in relation to the accused person—

must refuse bail, unless it is established that special or exceptional

circumstances exist that justify the decision.

(2) If the offence is a show cause offence, the requirement that the accused person

establish that special or exceptional circumstances exist that justify a decision to

grant bail or dispense with bail applies instead of the requirement that the accused

person show cause why the accused person’s detention is not justified.

(3) Subject to subsection (1), Division 2 applies to a bail decision made by a court

under this section.

(4) This section applies despite anything to the contrary in this Act.

(5) In this section—

conviction also includes a plea of guilty.

Note— Conviction is defined in section 4(1) to include a finding of guilt.

2. In broad terms, it seems to us that the power in s22B could only be exercised if the

following facts are satisfied:

a. That the accused person has either:

i. been found guilty, or

ii. has entered a plea of guilty;

b. That the accused person will be sentenced to imprisonment to be served by

way of full-time imprisonment.

________________________________________________________________________________________________________________________________________

Note: If you've been charged with an offence under this section click on the orange button in the bottom right to chat to a lawyer in real time 24/7.

Victoria bans the display of Nazi Symbol: The Swastika

Mon, 27 Jun 2022 13:33:42 GMT

Victoria is the first state in Australia to expressly prohibit the display of the Nazi swastika.

People who intentionally display the symbol face up to a year in jail or a A $22,000 ($12,300; $15,000) fine under a new law.

"Nobody has the right to spread racism, hatred, or anti-Semitism," said Victorian Premier Dan Andrews.

In recent years, Australia, like many other countries, has seen an increase in anti-Semitic incidents. Victoria already has anti-hate speech laws in place, but they have been criticised for "gaps." The local community was enraged when a couple raised a swastika flag above their home in 2020, fueling calls for reform.

State officials referred to the new legislation as a "proud moment." Three other states have stated that they will enact similar legislation.

"The Nazi symbol glorifies one of history's most hateful ideologies; its public display does nothing but cause further pain and division," Victorian Attorney-General Jaclyn Symes said in a statement.

Exemptions exist for displaying the symbol in historical, educational, and artistic contexts. It has also been used in Hindu, Buddhist, and Jain religious contexts for millennia.

The swastika was popular throughout the world until Nazis stole it.
The terrifying day the Swastika flew over Britain

People will only be prosecuted if they refuse to remove the symbol after being asked to do so.

Dvir Abramovich, chairman of the Anti-Defamation Commission, who campaigned for the law, called it a "thunderous blow" to the neo-Nazi movement.

"As our nation confronts the deep stain of a resurgent white supremacist movement peddling a dangerous and dehumanising agenda," he told the Australian Broadcasting Corporation, "this parliament has declared that the symbol of Nazism will never find a safe harbour in our state."

According to a Tel Aviv University study, the number of anti-Semitic incidents worldwide increased dramatically last year. Australia set a national record with 88 in a single month.

In 2020, Australia's intelligence chief warned of a "real threat" from neo-Nazis to the country's security. He claimed that "small cells" of right-wing extremists met on a regular basis to salute Nazi flags and share their ideology.

Unions and others have accused far-right groups of "infiltrating" large protests against lockdowns and other restrictions since the pandemic began.

The new laws will be implemented in six months.

If you've been charged with an offence under this section click on the orange button in the bottom right to chat to a lawyer in real time 24/7

Relocation of Central Local Court to the Downing Centre

Mon, 20 Jun 2022 10:03:04 GMT

The decision was made to close Sydney's Central Local Court due to nearby excavations and disruption to court users. The building will be closed for at least 112 weeks (roughly two years) beginning Monday, July 4, 2022. From that day forward, all matters listed at Central Local Court will be transferred to the Downing Centre.

The existing Central Local Court lists will be transferred to the Downing Centre, where the number of sittings will be increased to meet the caseload:

Central Court lists will be heard on levels 2, 4, and 5 of the Downing Centre. While some details are still being worked out, Court 1 at Central will be held in Court 4.1 on level 4 of the Downing Centre.

There will be no magistrates sitting at Central Local Court during this time. All phone inquiries should be directed to the courts' service centre at 1300 679 272. All correspondence and mail (including subpoenaed documents) should be addressed to the Downing Centre Local Court at the following address:

PO Box A4 Sydney South 1235 Downing Centre Local Court

Inquiries about previous court records should be directed to the Downing Centre Local Court (dclc@justice.nsw.gov.au). As new information becomes available, the Local Court will notify stakeholders.

If you've been charged with an offence under this section click on the orange button in the bottom right to chat to a lawyer in real time 24/7

Possession of Prohibited Drugs

Sun, 12 Jun 2022 02:06:29 GMT

Possession of a controlled substance, such as cannabis, cocaine, methylamphetamine, or ecstasy, is illegal in New South Wales under section 10 of the Drug Misuse and Trafficking Act 1985. Possession of a controlled narcotic carries a maximum sentence of two years in jail and/or a fine of $2,200.

To convict you of possessing an illegal drug, the police must establish beyond a reasonable doubt that you had sole control of the drug and that you were aware of its presence. It is not enough for the police to persuade the court that there was a good likelihood of those two things happening, or even that they were likely to happen—the court must be convinced of both beyond all reasonable doubt.

Even if the cops are successful, it doesn't imply you'll be found guilty—you can still get a "not guilty" verdict if you can show the court that you were acting under duress from another person or that possessing the drug was required under the circumstances.

Furthermore, if the police did not have a legitimate suspicion to search you when the narcotics were discovered, you may be able to show that the arrest was unlawful and the charges dismissed.

If you're caught with more than the traffickable amount of a drug, you'll be charged with the more serious offence of supplying a prohibited drug.

NSW Police launch Operation Snow: Safety for these snowy times

Fri, 10 Jun 2022 08:47:16 GMT

Due to early heavy snowfalls, the official NSW snow season begins tomorrow (Saturday, June 11th, 2022), with ski resorts anticipating high visitors. NSW Police are advising residents to have a plan and keep 'Snow Safe.'

As part of the high-visibility police operation, more officers from around the state will be deployed to the Snowy Mountains region. Throughout the season, visitors may expect to see officers from the General Duties, Traffic and Highway Patrol Command, Southern Region Enforcement Squad, licencing police, and various speciality officers - including qualified Alpine Operators.

Assistant Commissioner Peter Cotter APM, the Southern Region Commander, said "police will be out and about throughout the season, focusing on road safety, anti-social behaviour, and personal safety."

Monaro Police District Commander, Superintendent John Klepczarek APM, said local police efforts will be bolstered by additional resources.

Paul Toole the Minister for Police, the Deputy Premier and Minister for Regional NSW, has asked everyone to be extra cautious on the roads this winter, with double demerits in effect from now until the long weekend.

Hikers visiting the region are also urged to submit a Trip Intention Form and hire a Personal Locator Beacon (PLB) before venturing inside the national park. - Hikers can contact the Snowy Region Visitor Centre for more information or visit: http://www.nationalparks.nsw.gov.au or www.environment.nsw.gov.au .

Beginning at 12:01 a.m. on Friday, June 10, 2022, and ending at 11:59 p.m. on Monday, June 13, 2022, a state-wide traffic operation will run during the Queen's Birthday long weekend. During this time, double demerits will be in effect. More information into Double Demerits can be found here: https://roadsafety.transport.nsw.gov.au/campaigns/double-demerits.html and here: https://www.nsw.gov.au/driving-boating-and-transport/demerits-penalties-and-offences/offences/search-offences-and-penalties

Further information on driving in snowfield conditions can be found by visiting the Centre for Road Safety website: https://roadsafety.transport.nsw.gov.au/index.html

For general snow safety tips when visiting alpine regions, as well as useful links you can access: http://snowsafe.org.au/

Assault occassioning actual bodily harm

Thu, 09 Jun 2022 07:18:45 GMT

S59 Crimes Act NSW - Assault occassioning actual bodily harm (AOABH)

What is an Assault Occasioning Actual Bodily Harm ?

An Assault Occasioning Actual Bodily Harm is any act (but not a failure to act) where a person intentionally or recklessly causes another person to apprehend immediate and unlawful violence and Actual Bodily Harm results.

Some examples of assault include:

Striking at a person with a first or slapping a person;
Throwing an object at another person (even if it misses); and/or
Unlawful imprisonment of another person

Assaults are divided into different categories – “common assaults” and “aggravated assaults”. This article deals with Assault Occasioning Actual Bodily Harm which is an aggravated assault.

Case law/Jurisdiction

An offence of Assault Occasioning Actual Bodily Harm is what is known as a “Table 2” offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is it is to be dealt with on indictment by the Director of Public Prosecutions (DPP). What must the prosecution prove? Since Assault Occasioning Actual Bodily Harm is a criminal offence, the burden of proof lies on the Prosecution. The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Assault Occasioning Actual Bodily Harm

To establish Assault Occasioning Actual Bodily Harm the prosecution must prove each of the following matters beyond reasonable doubt:

You applied force, hit or touched another;
You did so intentionally or recklessly;
Without consent or lawful excuse; and
That action caused bodily harm to the other person.

Actual bodily harm is “hurt or injury that interferes with the health or comfort of the person assaulted”. The Law The Law in relation to Assault Occasioning Actual Bodily Harm is found in section 59 of the Crimes Act 1900 (NSW). It states:

(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.

(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (3) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years.

If you are charged with the offence of Assault Occasioning Actual Bodily Harm what are your options? National Criminal Lawyers have been successful in defending a number of Assault Occasioning Actual Bodily Harm charges where the prosecution could not establish each of the elements of Assault. We have also achieved a number of non-convictions for Assault Occasioning Actual Bodily Harm. NCL offer the following options for those who have been charged with Assault:\

We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Amendments to Sexual Assault Laws in NS W

Thu, 26 May 2022 06:25:30 GMT

Amendments to Sexual Assault Laws

On 8 December 2021, the governor of New South Wales gave royal assent to the Crimes (Sexual Consent Reform) Bill 2021 after it had passed through Parliament two weeks earlier. The bill has brought in sweeping reforms to the law regarding consent in sexual crimes and will likely change the complexion of how these crimes are prosecuted in New South Wales courts. At the moment, the amendments have now come into effect. This article will look at the three key areas in which the law has been changed.

What will judges have to tell juries about consent?

The first major amendment to the law of consent is in the content of what judges will now have to tell juries in trials for sexual offences. The New South Wales government has emphasised that the purpose of the amendments is to recognise that people have a right to participate or not participate in sexual activity and that it is a communicative and ongoing process, and that can clearly be seen in what judges will now have to instruct juries on. The key new directions that judges will usually have to give juries are:

· Non-consensual activity can occur between people who know each other and are in a relationship.

· Victims of sexual offences can react in any number of ways to non-consensual sexual activity.

· A lack of threats or violence doesn’t mean that someone consents to sexual activity.

· It shouldn’t be presumed that someone consented to sexual activity because they got drunk or because they were wearing certain clothes.

· Juries should put aside their preconceived notions about sexual consent.

When do people consent?

The second major amendment is the extended list of circumstances in which the law will automatically deem a person to have not consented to sexual activity. Right now, the only such circumstances are those found in section 61HE of the Crimes Act 1900:

· The person is mentally incapable of consenting.

· The person is unconscious or asleep.

· The person “consents” because of threats of force or terror.

· The person is illegally detained.

In addition to the above, subsection (6) of section 61HE provides that a person automatically doesn’t consent to sexual activity if they “consent” because they have a mistaken belief about who the person is, about whether they are married to the other person, about whether the sexual activity is for health purposes, or any other mistaken belief induced by fraudulent means.

The amending bill adds the following to the list of circumstances will automatically deem there to be no consent:

· The person doesn’t do anything to communicate consent.

· The person is too intoxicated to be able to consent.

· The person “consents” because of coercion or blackmail, whether in one instance or as part of a pattern.

· The person is overcome by an abuse of trust or authority.

In addition to the above, the amendment makes it clear that there still won’t be consent where the person “consents” because of threats of force or terror, but now that threat can be in the form of a single instance or an ongoing pattern.

When does someone know that another person isn’t consenting?

In order to prove that someone is guilty of sexual intercourse, sexual touching, or a sexual act without consent, it is necessary for the prosecution to prove that the person on trial “knows” that the other person doesn’t consent. Section 61HE of the Crimes Act currently lists the circumstances in which someone “knows” that the other person isn’t consenting.

· The person actually knows that the other person isn’t consenting.

· The person either:

o Knows there’s a risk that the other person isn’t consenting.

o Doesn’t even think about whether the other person is consenting.

· There aren’t any reasonable grounds upon which the person could believe that the other person isn’t consenting.

The bill amends the last option to where a person doesn’t have a reasonable belief that the other person is consenting. This might seem like a very minor amendment, but the practical effects might be great.

The likely motivation comes from the Lazarus cases between 2015 and 2017. In that series of cases, Luke Lazarus went through two trials and two appeals over allegations that he had sexually assaulted a woman outside a King’s Cross nightclub. He was first convicted before the verdict was set aside by the Court of Criminal Appeal. He was then acquitted at his second trial, but the prosecution appealed that verdict to the Court of Criminal Appeal again. While the prosecution was technically successful on the appeal, the appeal court determined that it would have been unjust for him to stand trial a third time.

The significance of the words “reasonable grounds” was highlighted in the first appeal in 2016. At the first trial, where a jury found him guilty, the judge had told the jury that they should convict Lazarus if they were satisfied beyond reasonable doubt that he didn’t have a reasonable belief that the woman was consenting. However, the appeal court determined that this was an error, as the law didn’t say he needed to have a reasonable belief—he was allowed to have an unreasonable belief so long as there may have been some reasonable grounds upon which he could have formed that opinion. Indeed, at his second trial, the judge sitting alone was satisfied beyond reasonable doubt that the woman had not consented, but acquitted him this time after her Honour found that there were reasonable grounds upon which he could have had a belief as to consent.

The amendment to the law that we see now is most likely a reaction by Parliament to what might have been seen as a “technicality” entitling people to an acquittal on sexual assault charges where the person on trial didn’t have a reasonable belief that the other person was consenting. Furthermore, the law will now deem a belief as to consent to not be reasonable if the person on trial didn’t say or do anything to find out if the other person was consenting. Going forward, it won’t be enough for someone on trial to point to some reasonable grounds upon which they could have formed a belief as to consent—the person’s belief itself will need to have been a reasonable one based upon action they took to find out if the other person was consenting.

The above amendments have generally been met with widespread support from the public and from advocacy groups. Saxon Mullins, the complainant in the Lazarus series of cases, said that she was “really happy” with the bill as passed and that the amendments were “common sense”. However, others, such as prominent Sydney barrister Stephen Odgers SC, have expressed concerns that the amendments might go too far in criminalising behaviour that we might not ordinarily consider to be sexual assault. Ultimately, time will tell if the amendments to consent laws have struck the right balance and promoted a modern understanding of consent.

Affirmative Consent and Coercive Control

carlajose1@gmail.com (Carla Velasquez) — Thu, 26 May 2022 06:22:07 GMT

Possible new criminal offences relating to coercive control

The NSW Government is taking the necessary steps criminalize coercive control. Coercive control is not so much physical abuse but more so intimidating the victim, humiliating, and establishing fear with possible threats of harm.

The committee on Coercive Control was established in 2020 to explore whether or not to criminalize the conduct. England and Wales deemed coercive control a criminal offense in 2015, and the murder of Hannah Clark and her three children brought the focus to the controlling behavior and how it leads to physical violence.

It is very common to encounter offenders who are unaware that their behavior amounts to an offence. It is important that matters are thoroughly investigated. Cooney stated that several challenges need to be considered in drafting the legislation. The 2021-2022 budget provided enhanced funding and the Department of Education will review school programs and include content on coercive control and controlling behavior.

The India Travel Ban

carlajose1@gmail.com (Carla Velasquez) — Thu, 06 May 2021 20:30:02 GMT

The Federal Court Hears Challenge to India Ban

The Federal Health Minister Greg Hunt announced early on Saturday 1 May 2021 that a temporary pause had been enacted from 12.01am on Monday 3 May 2021 for Australian Citizens travelling back from India and entering Australian territory if they had been in India within 14 days of their arrival date in Australia.

The pause follows a meeting by the National Cabinet on 30th April 2021 about the worsening COVID-19 situation in India. Failure to comply with the emergency determination under the Biosecurity Act 2015 may incur a civil penalty of $33,000, five years imprisonment or both.

The Federal Court is hearing a challenge to the India flight ban, which is currently in force currently prevents Australian Citizens stranded in India from flying back to Australia.

A Melbourne man who is currently stranded in India is challenging the government’s decision, arguing the emergency declaration under the Biosecurity Act 2015 (Cth) is invalid on constitutional grounds.

Justice Stephen Burley is hearing the proceedings, which have been expedited.

The temporary ban is being reconsidered by National Cabinet on 15 May 2021. The full media release is linked HERE.

Masks at Court?

carlajose1@gmail.com (Carla Velasquez) — Thu, 06 May 2021 07:52:33 GMT

Masks are required once more if visiting a Court

If you're confused as to whether to bring your mask to court or not. The advice is that masks should be worn in all public corridors and waiting areas within that part of the court building.

Everyone in a courtroom must wear a mask, unless:

The person concerned is an active participant in the proceedings namely the presiding judge, a practitioner who is responsible for presenting the case in court or a witness giving evidence.
one of the exemptions stated in the Public Health Order applies; or
at the discretion of the presiding judge.

Despite the above, it's a good idea to just wear your mask unless told otherwise.

COVID-19 Restrictions back in place

carlajose1@gmail.com (Carla Velasquez) — Thu, 06 May 2021 07:42:08 GMT

From 5PM 6 May 2021 Restrictions Apply

The following measures will be effective from midday today, 6 May 2021 (enforceable from 5pm) until 12:01am Monday, 10 May for the Greater Sydney region (including Wollongong, Central Coast and Blue Mountains):

visitors to households will be limited to 20 guests – including children
masks will be compulsory on public transport and in all public indoor venues, such as retail, theatres, hospitals, aged care facilities and for front-of-house hospitality staff (except in a hospitality venue when eating or drinking)
drinking while standing up at indoor venues will not be allowed
singing by audiences at indoor shows or by congregants at indoor places of worship will not be allowed
dancing will not be allowed at indoor hospitality venues or nightclubs however, dancing is allowed at weddings with a strong recommendation that no more than 20 people should be on the dancefloor at any one time
visitors to aged care facilities will be limited to two people.
It is also strongly recommended the community avoids mingling in large groups over the coming days, and is careful not to put our most vulnerable at risk.

“Anyone experiencing any cold or flu-like symptoms, even if they are mild, must isolate immediately, get tested and continue to isolate until a negative result is received,” Mr Hazzard said.

“It is also important to remember that even if you have had your first or second dose of the COVID-19 vaccine you must still come forward for testing if you have any symptoms.”

Chief Health Officer Dr Kerry Chant said high testing rates are critical to NSW Health’s efforts to identify COVID-19 cases and prevent the virus from spreading.

“We are asking the community to be on alert, continue to practice COVID-Safe behaviours and stay home and get tested if they’re unwell,” Dr Chant said.

What does "Committal" mean?

Sun, 04 Apr 2021 20:00:01 GMT

The committal process can be confusing

Historically the majority of committal matters proceeded by waiver of committal. A waiver of committal simply means that the Magistrate does not have to decide whether there is enough evidence to commit the defendant for trial in the District Court of New South Wales. The Magistrate could make that decision on the brief alone (with submissions from Defence and Prosecution) or by hearing oral evidence from Prosecution witnesses.

The Early Appropriate Guilty Plea Reforms have completely changed this process. The power of a Magistrate to discharge alleged offences against an accused person has been abolished.

Instead the Magistrate performs a case management role and ensures that the matter progresses smoothly. The Magistrate will maintain the power to direct the attendance of prosecution witnesses at ‘witness hearings’ and will still commit an accused for trial or sentence.

A committal strictly means the transfer of your matter from

the Local Court to the District or Supreme Court.

Witness Hearings

A witness hearing is where the Magistrate directs the attendance of a prosecution witnesses for cross-examination. The key purposes of directing the attendance of a witness are to assess the strength of the case against the accused person, resolve a factual dispute and narrow the issues at the trial. The witness hearing may result in a changed charge certificate being filed or the withdrawal of certain charges.

Witnesses are not directed to attend for a hearing unless there is either substantial or special reasons. The Magistrate must be satisfied that there are substantial reasons why in the interests of justice the witness should attend or be satisfied (in the case of an alleged victim of an offence involving violence) of special reasons why, in the interests of justice an alleged victim of an offence should attend.

There are some classes of victims which must not be directed to attend, they include a complainant in proceedings for a prescribed sexual offence who is cognitively impaired, a complainant in proceedings for a child sexual assault offence if the complainant was under 16 at earliest date when the offence was allegedly committed and is under 18 at time of the

proceedings.

For more information about the new committals procedures and the new EAGP reforms please feel free to contact our team.

Traffic Offenders Programs 2021 Edition

carlajose1@gmail.com (Carla Velasquez) — Fri, 02 Apr 2021 20:00:02 GMT

Confused about the TOP?

Traffic Offenders Intervention Programs are courses which aim to provide participants with information and skills necessary to develop positive attitudes towards driving and encourage safer driving behaviours.

We do not provide programs but can help point you in the right direction to find a program that is right for you.

Successful engagement and completion of the program can assist you in getting a better result at your sentencing hearing. When sentencing a traffic offender the Magistrate will take your attendance at a traffic offenders program into account as it forms part of your punishment.

Attendance at the program and genuine engagement shows that you are sorry for your offending behaviour and it contributes to minimising the likelihood of your re-offending. The program also gives you valuable safe driving strategies that you can use in your everyday life.

There are six week programs and one day programs to suit your schedule.

Recommended Programs:

S.A.V.E - Traffic Offender Intervention Program Website (Information Pamphlet)
Road Sense Australia Website (Information Pamphlet)
PCYC Marrickville (Information Pamphlet)
Traffic Offenders Rehabilitation Program. https://www.trafficoffendersprogram.org.au
Download an exhaustive list of Traffic Offenders Programs and Information HERE

Mandatory Interlock Program

Thu, 01 Apr 2021 16:00:06 GMT

Mandatory for drink driving offences of mid-range and above

The mandatory interlock program is a court ordered penalty for drivers who:

Commit a mid range drink driving offence and higher;
Commit a second drink driving offence within five years; and
Refuse to take a breath test.

If you are ordered by the Court to participate in the program you will receive a period of driver licence disqualification and be required to have an alcohol interlock device installed in your vehicle for a minimum 12 months. This is in addition to any other penalty ordered by the Court.

If a driver fails to participate in the interlock program, they may remain disqualified from driving for at

least five years from their date of conviction.

What is Interlock?

Interlocks are electronic breath testing devices linked to the ignition system of cars, motorcycles and heavy vehicles.

Drivers must provide a breath sample that the interlock analyses for the presence of alcohol. It prevents the vehicle

from starting if alcohol is detected. Randomly timed breath tests must also be passed while you drive. All breath test results, a photograph of the person providing the sample, and any attempts to tamper with the device are recorded by the interlock. This information is used to monitor attempts to drink and drive, and any breach of interlock licence conditions. All participants must have a zero blood alcohol concentration when driving.

How much does Interlock Cost?

The participant is required to pay all costs of being involved in the installation, maintaining and removing interlock for every vehicle you will be driving in the future. There is also a program administration fee to Roads and Maritime when you apply for an interlock licence. Generally the costs are $2,200 per annually.

What if I need an Exemption to Interlock Orders?

There are limited situations where a court can make an interlock exemption order. The Court may only make an exemption order if the offender proves that they: a) do not have access to a car in which to install the device or b) has a medical condition diagnosed by a medical practitioner that prevents the offender from providing a breath sample to operate the device. There are no exemptions for financial grounds or remoteness. There are concession rates and severe financial hardship assistance available for eligible persons.

Bail Applications NSW

carlajose1@gmail.com (Carla Velasquez) — Wed, 31 Mar 2021 19:30:02 GMT

What should I do if I am arrested?

What should I do If I am arrested?

Arrests may happen at any time, such as evenings, weekends and public holidays. If this occurs contact Velasquez Legal (02) 8815 8175 or via our chat bot (found in the bottom right hand of the screen) to ensure that you protect your position in the face of criminal charges.

You can contact our office 24 hours a day 7 days a week on our chat bot. We ensure that your loved ones can contact a lawyer directly at the drop of a hat. In the meantime, ensure that you maintain your right to silence until you have had a chance to speak to a criminal defence solicitor who will engage with the NSW Police on your behalf.

The NSW Police must decide whether to give you police bail. If they do not give you Police bail then you must be brought before a court as soon as reasonably practicable.

What if I get arrested on a Friday?

People often get arrested over the weekends and public holidays. This can sometimes interfere with the Police obligation to bring a person who is refused Police bail before a Magistrate or a Registrar at Bail Court which is conducted on weekends and public holidays. An application for release by an accused person on their very first appearance before a Court must be heard. This is the rule however an accused person may choose to delay their bail application until such time as they have made the proper preparations for a successful bail application. Preparations may include affidavits of sureties and mortgage consent documents where equity in a property is used as bail surety.

Unacceptable Risk

The concept of ‘unacceptable risk’ is an important one when the Court considers whether to grant an applicant bail. The Court must consider whether there is an unacceptable risk that the accused, if granted bail will:-

Fail to appear at any proceedings for the offence;

Commit a serious offence;

Endanger the safety of victims, individuals or the community; and/or

Interfere with witnesses or evidence.

Our applications involve preparation of affidavits on behalf of the persons who are providing a surety to the court in order to give the Court comfort that the applicant will comply with their bail conditions.

The court can impose the following bail conditions:

The applicant must be of good behaviour meaning they must not commit further offences;
The applicant must reside at a suitable nominated address;
The applicant must report to a Police Station either daily, three times a week or weekly;
The applicant must surrender their passport;
The applicant must not apply for any travel documents;
The applicant must not contact any co-accused or any Prosecution witnesses;
The applicant must not contact the complainant or alleged victim;
The applicant must only possess one mobile phone and provide that number to the officer in charge;
The applicant must be subject to a curfew and be present at the residence between 8pm-5am;
The applicant must not go within 5km of an international point of departure.
Any other orders that the court deems necessary for the protection of the community.

What to do if the Magistrate refuses bail?

If you are refused bail in the Local Court then you may make an application to the Supreme Court to have your matter considered by a Supreme Court Justice. There are lengthy delays in the Supreme Court to hear bail applications and applicants appear via AVL. An application for Supreme Court bail can only be made once bail has been refused in the lower court jurisdiction.

Can I make more than one bail application?

A subsequent application for bail can also be made in the lower jurisdiction so long as there is a change in circumstances relevant to the grant of bail since the previous application was made.

You may also make a further bail application if you were not legally represented on the previous application but you are now legally represented. You can also make a further application for bail if there is material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application.

The Court may refuse to hear a further bail application if it is vexatious or frivolous or if it has no reasonable prospects of success.

Show Cause Provisions

The Bail Act of 2013 introduced "show cause" requirements into the Bail Act which outlines that a bail authority/decision-maker must refuse bail unless the accused person shows cause why his or her detention is not justified.

Congratulating Jess on an excellent court outcome and client review

carlajose1@gmail.com (Carla Velasquez) — Wed, 31 Mar 2021 02:28:13 GMT

Another excellent review from a satisfied customer.

We congratulate Jessica on her hard work, her communication with her client and the excellent result. Well done! She represents the gold standard of legal advice and customer service that we strive for at Velasquez Legal. If you need to speak to a lawyer who cares, contact us using our messenger chat below.

Drug Driving - Roadside Testing

Tue, 30 Mar 2021 04:24:25 GMT

Be aware of the roadside drug driving test

The NSW Police can conduct a roadside drug test which includes the licking of a swab. This is similar to the roadside breath test however the saliva test will detect the presence of illicit drugs in a persons system as opposed to alcohol. The drugs which are tested for include: cocaine, cannabis, ecstasy/MDMA, cocaine, methylamphetamine and speed (amphetamines).

If you fail the swab test the swab will be sent for laboratory analysis. This can take 24 hours, and you will not be permitted to drive in that time. If the test confirms the presence of illicit drugs, you will be charged with the offence of driving with the presence of an illicit drug.

Please be extra cautious when on our roads and do not take drugs before driving.

Going to court for the first time?

carlajose1@gmail.com (Carla Velasquez) — Tue, 30 Mar 2021 01:44:31 GMT

Things to know before you attend court

Attending Court for the First Time

Attending court on your own for the first time is both daunting and stressful. The first mention will generally be heard in the Registrar's Court from 9:30am onwards. It is important that you attend the right court room on time or your matter may be dealt with in your absence.

Once you are in the room make sure you make yourself known to the Court Officer who will ask you whether you want to get an adjournment for legal advice or to enter a plea of guilty or not guilty on the spot.

Once the Court Officer has taken down your name and confirmed that you are in attendance, you may need to wait until the Magistrate deals with the applications that Solicitors have from the bar table. Please do not sit at the bar table if you are not represented, this will not make the Magistrate get to you faster.

To Plead or Not to Plead?

Once the Magistrate is ready to deal with your matter, you must declare whether you want some time to get a lawyer or whether you want to enter a plea of guilty. If you enter a plea of guilty, no matter what your reason for pleading guilty is, the court will take that as evidence that you are guilty of the offence charged.

Plea of Guilty

It is important that you seek legal advice before entering a plea of guilty to ensure that your position is protected and you have the best set of facts which the Magistrate will read on your sentencing. If you are not represented it is important to prepare yourself by collecting references and other material which will assist you on sentence. For more information on how to prepare references please go to our page: Preparing for Sentence.

Plea of Not Guilty

If you are entering a plea of not guilty your matter will be adjourned to allow the NSW Police to serve the brief of evidence on you. This can take some time, up to 2 months for the brief to be complete depending on the type of matter.

If you maintain your plea of guilty it is important to get a lawyer to help you at the hearing. You will be at a significant disadvantage if you try to run your hearing yourself.

Please ensure that if you are not in the court room for any period of time that you are in an area around the court room in case your matter is called by the Court Officer.

How do I know where to go?

You can find out which court you need to attend at this website: Online Registry

Strike Force Raptor Intimidated Solicitor

Sun, 28 Mar 2021 01:58:35 GMT

"Deliberate, deceitful and malicious harassment"

The article which appeared in yesterday's Sydney Morning Herald by Georgina Mitchell was a shocking but unsurprising look into an extreme example of NSW Police harassment against a criminal defence lawyer. Sadly this story was fairly familiar to me and I am sure many other solicitors who work in criminal defence law. I have invited my colleagues to submit some horror stories to me so that I can share them here and will also be sharing some horror stories of my own in the coming days. Ongoing harassment by NSW Police against criminal defence lawyers is often a big part of why defence lawyers suffer some of the highest rates of anxiety and depression.

A link to the article is found HERE .

COVID-19 Restrictions Ease

carlajose1@gmail.com (Carla Velasquez) — Thu, 25 Feb 2021 05:43:57 GMT

From 12.01am Friday 26 February 2021

From 12.01am Friday 26 February , a number of COVID restrictions will be lifted across Greater Sydney and NSW.

50 visitors will now be allowed in the home;
30 people allowed to dance at weddings, with rotation on and off the dance floor;
Increased class limits for gyms to 50 people (currently 30) subject to the 4sqm rule;
Number of performers singing indoors increased to 30 (currently 5) subject to physical distancing requirements;
Singing by congregants allowed in places of worship if masks are worn and subject to one person per 4sqm (currently no congregant singing allowed, with one per 2sqm permitted in places of worship);
Increase capacity for cinemas to 100 per cent.

More information here.

Does AVL affect likelihood of bail?

Mon, 08 Feb 2021 11:26:10 GMT

New study into the impact of audio-visual link on being granted bail

Min-Taec Kim of the NSW Bureau of Crime Statistics and Research has studied and aims to estimate the causal impact (if any) of appearing via AVL on a bail application as opposed to in person.

Pre COVID-19 it was commonplace to appear in person on bail applications. The new trend in criminal cases in NSW is for bail applicants who have been refused bail in the Local Court to appear via AVL.

This is the first study of it's kind and in summary it outlines that there is no evidence for a meaningful disadvantage to appearing via AVL on whether the defendant is granted bail. It goes on to find that there is no evidence that appearing via AVL causes defendants of specific subgroups such as by gender or Aboriginality to be less likely to be granted bail.

Read the summary or full report at the BOSCAR website using the following LINK.

Spared extra gaol time...

Fri, 28 Aug 2020 10:04:13 GMT

Spared extra time together with Ms Mikhaiel of Counsel

We successfully had our client spared extra gaol time together with Ms Mikhaiel of Counsel in relation to a serious and complex matter. News link: https://www.dailytelegraph.com.au/newslocal/illawarra-star/mariah-powell-glam-exlover-spared-more-jail-time-after-helping-wanted-man-darren-butler-escape-cops/news-story/19d5e2ae59c1067fc074d5a0c530e4e1

Murder

Fri, 21 Aug 2020 09:57:33 GMT

Jessica Kells-Spartalis appears at Burwood Local Court

Jessica Kells-Spartalis of Velasquez Legal featured in the news today after appearing for her client at Burwood Local Court, on a serious and high profile matter. She will be working hard for her client who will be pleading not guilty.

Links to further news articles below:

COVID-19: Positive case in Parklea gaol

Thu, 30 Jul 2020 00:09:20 GMT

Parklea gaol in lock down

Parklea gaol is in lock down after an inmate has tested positive to COVID-19. The inmate housed at 6B arrived at the prison on 27 July 2020. The governor Paul Baker has indicated that inmate was not in direct contact with staff or inmates. This is the first confirmed case of COVID-19 in an NSW gaol. The inmate has been transferred to the Metropolitan Remand and Reception Centre where a purpose built COVID-19 hospital has been set up. Prisoners have had their visiting privileges suspended since 17 March 2020 with no end of the suspension in sight.

COVID-19: Queensland Shuts Border to Greater Sydney

Wed, 29 Jul 2020 02:21:32 GMT

Greater Sydney Declared COVID-19 hotspot

People who are from Sydney will not be allowed to travel to Queensland from 1AM this Saturday 1st August 2020.

Annastacia Palaszczuk said “There has been more outbreaks in other parts of Greater Sydney and that will now become a COVID declared hotspot, taking effect from 1am on Saturday”.

If you are a Queensland resident and want to return home after the deadline you will have to isolate in a hotel for two weeks at your own expense. This wider ban comes after Queensland had already closed its borders to persons from Campbelltown, Liverpool and Fairfield.

COVID-19 Restrictions Tightened from 12:01 Fri 24 July 2020

Thu, 23 Jul 2020 10:41:32 GMT

The State Government will tighten COVID-19 restrictions around “highe risk” activities as the pandemic enters a new phase of community transmission within New South Wales.

From 12:01am Friday, 24 July 2020 the following rules will be in force in NSW:

Compliance measures introduced to pubs will be extended to restaurants, bars cafés and clubs.

This includes:

1. limiting group bookings to a maximum of 10 people

2. mandatory COVID-Safe plans and registration as a COVID-Safe business

3. a digital record must be created within 24 hours.

Corporate events and weddings will be limited to 150 people subject to the four square metre rule and registration as a COVID-Safe business. Strict COVID-Safe plans must be in place and choirs and dancing are prohibited.

Funerals and places of worship will be limited to 100 people, subject to the one person per four square metre rule and a COVID-Safe business registration.

The rules on gatherings remain the same: 20 guests inside the home and 20 for gatherings in a public place.

However, as the home is a high transmission area, the NSW Chief Health Officer strongly recommends a COVID-Safe precautionary approach of limiting visitors to the home to 10 people as a general principle.

The measures apply equally across the state to both city dwellers and residents in rural and regional NSW.

For further information visit: https://www.nsw.gov.au/media-releases/covid-19-restrictions-to-be-tightened

Introducing Real-Time SMS Chat

carlajose1@gmail.com (Carla Velasquez) — Fri, 10 Jul 2020 09:25:21 GMT

A unique and new experience for legal enquiries

Velasquez Legal are leading the field in legal-tech implementation and we have partnered with Podium to deliver to our clients and future customers our real-time customer support system.

We understand that you expect a personalised and seamless support and we promise never to keep you stuck on the phone with terrible elevator music.

We will allow you to contact a lawyer in real-time at your convenience from your mobile phone. This means that you're not tied to a web-based live chat in order to keep the conversation going even after you walk away from your computer.

This means that we will always be available to interact with you, to schedule your appointments and answer your questions.

We want to ensure all our current and future customers are respected and get the information that they need when they need it.

Do you have documents you want to send through? No problem, the chat system allows you to take photos and share your important documents in one secure and convenient spot.

Want to test it out? Press the orange button in the bottom right corner of the screen.

Is Zoom Secure?

Fri, 10 Jul 2020 08:51:37 GMT

Zoom is an easy way to stay connected with our clients but is it secure?

The COVID-19 pandemic has forced many businesses to re-evaluate how they communicate with their clients. It has driven the fairly low-tech legal fraternity screaming into the future. In our journey to maintain high quality of service delivery Velasquez Legal has taken up the use of Zoom online meetings. But is it safe? It is important to us that our clients feel secure in the knowledge that their conference are conducted in a confidential setting. We have done the research so our clients don't have to.

On 1 July 2020, Zoom released an executive letter which outlines the security measures which are implemented by Zoom in order to keep you safe whilst online. Below is an extract of that letter:

"Zoom is currently being used by a wide range of clients from schools, to universities to governments (including the US Government, the British Parliament and many other governments around the world), to enterprises of all sizes, industries and geographies, including full deployments in many Fortune 500 companies.

Zoom has grown from 10 million daily participants as at December 2019, to over 300 million a day in April 2020.

Zoom absolutely delivers a safe and secure virtual meeting environment when used with the appropriate safeguards to protect meetings. Like enabling passwords and waiting rooms. Zoom has been and continues to be - the platform of choice for many sophisticated organizations all over the world."

The key Zoom features for secure meetings include:

AES 256 GCM Encryption of data in transit and at rest;
Transparency on data routing via the account administration dashboard;
Safeguards and controls to prohibit unauthorised participants ;
Meeting host controls which can enable/disable participants content sharing and chat;
Content watermarking superimposes the image of a meeting participant's email address onto shared content they screenshot.

Zoom also meets the following industry and security organisation standards:

SOC 2 (Type II);
FedRAMP (Moderate):
GDPR, CCPA, COPPA, FERPA, and HIPAA Compliant (with BAA);
Privacy shield certified (EU/US, Swiss/US, Data Privacy Practices);
TrustArc Certified Privacy Practices and Statements.

The safety of your information is our top priority and we will continue to implement further security measures in order to ensure safety online.

NSW and VIC Border Closure

Thu, 09 Jul 2020 05:10:10 GMT

Quick Factsheet

The NSW Government have introduced new measures to prevent the spread of COVID-19 into NSW from Victoria by closing the border between the two states.

The border closed at 12:01AM on Wednesday 8 JULY 2020. This border closure order can last up to 90 days if it is not revoked earlier.

In order to enter NSW from Victoria you will need to have a permit. Both children and adults are required to have permits. They are valid for 14 days. If you are entering NSW solely for the purpose of travelling to a different state or territory you still need a permit.

Entry permits must be applied for through Service NSW. For more information call Service NSW on 13 77 88. The link for the permit is here.

Once you have an entry permit you must provide it to an enforcement officer for each individual travelling across the border.

Penalties for entering NSW without a permit:

NSW Police may issue on-the-spot fines of $1,000 to individuals or $5,000 to corporations for breaking the order.
The maximum penalty for breaching the order is $11,000 or imprisonment for 6 months or both. A further $5,000 penalty may apply for each day the offence continues.
For corporations the maximum penalty is $55,000. A further $27,500 penalty may apply for each day the offence continues.

What do I do if I get a fine?

You should get legal advice tailored specifically to your situation.

FineFixer New South Wales

Thu, 02 Jul 2020 09:17:50 GMT

Self-Help for fines available

The Legal Aid Commission New South Wales has recently created and released a guided pathway to enable people to get help in relation to their fine without having to see a lawyer.

The Legal Aid Fine Fixer New South Wales is an online self-help tool that takes people through a series of simple questions and provides them with useful, ranked options to deal with their fines - whether by challenging the fine, applying to pay in installments, getting legal help or providing other options depending on their circumstances. A wide variety of fine types are covered in the tool including public transport, tolls, parking, council, court, failure to vote, failure to attend jury duty and ambulance fines.

CLICK HERE

We're COVID Safe

Thu, 02 Jul 2020 07:05:55 GMT

Implementing a COVID-19 Safety Plan

We have officially registered as a COVID Safe Business with the NSW Government. This means that we have implemented a COVID Safe safety plan which will ensure the continuing service provision to our clients in a manner that keeps everyone safe.

Conferences:

The most important strategies we are implementing include conferencing clients via secure Zoom meetings which are password protected.
If face-to-face meetings are required at our offices in person we will be guided by the COVID-19 Safety Management Directive set out by our office at Level 1, 299 Elizabeth Street Sydney.
This includes a requirement for all persons entering the premises regardless of status or purpose to enter their details in the attendance log which is located in the entry foyer of Level 1.
All persons entering are to hand sanitise upon entering the premises with sanitising stations located in the entry foyer to Level 1.
There are new restrictions in relation to meeting rooms on Level 1 being maximum 2 persons at one time. This includes the solicitor that you are meeting. Unfortunately this means that if you are booked for a face-to-face conference that you will not be able to bring along a support person.

Gaol Visits:

We are continuing to see our clients in custody at NSW Correctional Centres where necessary.
We are focusing on engaging audio visual systems where possible to conference our clients in custody.
We are engaging the general conventions of regular hand washing and hand santitising during our time in a NSW Correctional Centre.
We are also maintaining 1.5 metres physical distancing from other persons or where not possible we are using non-contact legal visit rooms.

Witnessing Legal Documents:

Where possible we are engaging in the use of Adobe e-signing technology in our legal documents.

Flexibility:

We are continually engaged with the latest news and are poised to change where necessary to ensure the safety of our community.

Payment Plan Fees Waived until Dec 2020

carlajose1@gmail.com (Carla Velasquez) — Thu, 02 Jul 2020 06:42:31 GMT

Continuing support through COVID-19

The health and safety of our team members, customers and local communities is our top priority as we continue to navigate the ongoing COVID-19 pandemic together.

As a result of the ongoing Australian economic conditions and to assist our clients Rapid Pay our payment plan partners have extended the $0 Installment Plan establishment fee period until 30 December 2020.

This will be automatically applied to all new plans created between 1 April 2020 and 30 December 2020.

If you need legal assistance and are experiencing financial difficulty speak with one of our Solicitors who will be able to assist.

Changes to Migration Legal Advice Delivery

carlajose1@gmail.com (Carla Velasquez) — Thu, 18 Jun 2020 06:03:39 GMT

Immigration Advice Coming Soon

The Migration Amendment (Regulation of Migration Agents) Bill 2019 amends the Migration Act 1958 to remove unrestricted legal practitioners from the regulatory scheme that governs migration agents.

This means that unrestricted legal practitioners will no longer be required to be registered with MARA in order to give legal advice with regards to migration into Australia.

On 15 June 2020, this long awaited legislation was passed in both houses. In anticipation of this bill passing our Principal Ms Velasquez began her Graduate Diploma in Migration Law and Practice with the University of Technology Sydney.

This is due for completion at the end of Spring Semester 2020. S he will be uniquely placed to advise and assist you in relation to all your migration law needs.

The schedules of the Bills will commence by Proclamation, or six/nine months after Royal Assent, whichever is earlier. A firm start date will be identified in future updates.

COVID-19: How long can the lock-down orders be enforced?

Thu, 30 Apr 2020 06:01:32 GMT

Opening not too far in the future, but how long can lock-down actually last?

The current public health orders issued under the Public Health Act 2010 (NSW) including the social distancing rule and the public gathering rule are currently in force until mid June 2020. This is an estimated time frame, which was provided at the time the orders were issued in order to give the community a rough estimate of when the orders will cease.

As we know, the Australian situation continues to develop rapidly and therefore, it is important that the New South Wales Government continues to re-assess whether the orders need to be amended. The Prime Minister has in his address on 29 April 2020 indicated that he believes that the road back to pre-covid rules are "not too far away".

Under the legislation, orders are made to last approximately three months, however, are subject to changes and continuation. The NSW government can choose to continue the orders or to set an end date. We hope that that date comes soon.

$5000 fine for spitting or coughing

Mon, 20 Apr 2020 06:24:08 GMT

All workers to be covered by new Police powers

On Sunday 19th April 2020, the NSW Health Minister Brad Hazzard indicated that anyone at work or travelling to or from work would be protected from persons coughing or spitting on them.

The new Police powers include a significant $5000 on-the-spot fine. The power initially covered only NSW health care staff and police officers.

It has now been extended to cover all workers after several incidents involving retail and transport workers.

This includes, retail staff, transport staff, health workers, police, pharmacists, paramedics and any other public official.

Mr Hazzard stated "Every worker in this COVID-19 crisis is now an essential worker and will have the added protection they deserve, including those in retail stores and those critical to our public transport system."

This new fine sends a very clear and stern message that all essential workers must be protected. The move demonstrates the new "zero-tolerance" policy that the NSW Government is enacting.

The expansion commences on 20 April 2020. What are your thoughts on this new on-the-spot fine?

COVID-19: What are the rules?

Fri, 17 Apr 2020 00:35:14 GMT

What exactly can you leave your house for?

With the Prime Minister extending the lock-down laws for another four weeks we all need to be clear about what is allowed and what is not allowed. Here's a list of things you CAN and CANNOT do.

CAN DO’s:

Under the COVID-19 legislation (Health Act NSW 2010) a person must not without reasonable excuse, leave the person's place of residence. This means you can only leave your house for the following reasons:

Obtaining food or other goods and services. This includes ordering and picking up take-away foods, going to the hairdressers or buying new work clothes.
Travelling for the purposes of work or education if the person cannot do it at home. This includes those who are working within essential businesses such as: builders, retail staff, doctors, nurses etc. This also includes your children attending school if they are unable to continue their education from home.
Exercise. This means that you can exercise outside. For example taking a walk around the block is okay. You can do this with the persons you live with, but, if you’re training with a friend, you, must keep it to a minimum of two people, yourself and your friend.
Medical or caring reasons i.e. to attend doctor’s appointments or to help your elderly parents get to and from their medical appointments or taking their grocery shopping to them.
Avoid injury or illness or escape a risk of harm i.e. if you’re a victim of domestic violence.
Dealing with emergencies or on compassionate grounds.
Attend a wedding (limited to a total of 5 people) or funeral (limited to a total of 10 people, excluding the person/s necessary to conduct the funeral e.g. funeral director).
Moving to a new residence, or between different places of residence (a holiday is not an acceptable reason).
Donating blood or plasma.
Undertaking legal obligations i.e. attending your court dates where it is necessary you attend.
Access social services, employment services, services provided to victims i.e. domestic violence services, and mental health services.
Continue existing arrangements for access to, and contact between, parents and children for children who do not live in the same household as their parents or one of their parents.
If you are a priest, minister of religion or member of a religious order, go to a place of worship or to provide pastoral care.
If you do volunteer work, you can leave your house to engage in these activities i.e. provide food to the homeless.

DON’T DO’s:

The COVID-19 legislation also states that a person must not participate in a gathering in a public place of more than 2 persons except:

Gatherings of members of the same household, and
Gatherings essential for work or education.

You still cannot:

Visit family or friends that live outside of your house, unless of course you’re caring for those persons as outlined above;
Go for scenic drives;
Teach your children how to drive;
Travel for a holiday;
You cannot exercise with more than two people who are not living in the same house hold as you;
You cannot attend shopping centers, hairdresser’s or take away restaurant’s with more than two persons, unless these persons are from the same household.
You cannot do anything that does not fall within the exceptions listed above.
The two person rule does not apply to people gatherings at public transport stops, train stations or platforms. However, remember that the social distancing rule still applies.

IF YOU FAIL TO COMPLY YOU CAN RECEIVE A FINE AND OR BE IMPRISONED

The legislation also states that if an individual fails to comply, they can be fined up to a maximum penalty of imprisonment for 6 months or a fine of up to $ 11 ,000 (or both) plus a further $5,500 fine each day the offence continues. Corporations that fail to comply with a direction are liable to a fine of $55,000 and $27,500 each day the offence continues.

An article by Jessica Kells-Spartalis, Solicitor.

COVID-19: Public Order and Riot Squad given new powers

carlajose1@gmail.com (Carla Velasquez) — Wed, 25 Mar 2020 05:01:28 GMT

NSW Police can issue $1,000 on-the-spot fines for individuals and $5,000 for corporations breaking new social distancing guidelines.

If you are caught breaking the social distancing rules the NSW Police will now have the power to issue you with an on the spot fine and the offence will carry up to six months gaol time. Co rporations will also be hit with the new fines if they fail to comply of up to $5,000 for breaching.

The NSW Police will increase patrols and also implement random checks. Tip offs have been received by NSW Police and they will also be checking those tip offs. The NSW Police Minister said "NSW Parliament introduced last night swift and certain penalties for people that don't obey the law." The Minister also indicated that the laws will be removed in due time.

He indicated that blatant ignoring of the social distancing rules and the scenes at Bondi Beach over the weekend were the catalyst for the drastic new laws.

COVID-19: Local court cancels hearings

Wed, 18 Mar 2020 11:27:23 GMT

All non-custody hearings between 23 March 2020 - 1 May 2020 to be deferred

The Chief Magistrate of the Local Court in New South Wales has today announced via memorandum that all local court hearings which do not relate to an accused person who is in-custody bail refused is to be deferred to another date.

If you are a client who has your hearing between 23 March 2020 to 1 May 2020 please contact us immediately to discuss your matter.

Hearings involving people in custody will continue as listed however wherever practical the appearance of the defendant

should be facilitated by AVL.

If your defended matter is one where it is appropriate to negotiate a plea of guilty your solicitor will contact you to discuss. If your defended matter does become a plea of guilty it should be finalised on the day originally allocated for the hearing or at

such later date the court considers appropriate.

The position will be reviewed by the Chief Magistrate's office in the week commencing 27 April 2020. The office has warned stakeholders that i t may be necessary to extend the deferral of the listing of defended hearings again.

COVID-19: The Governor-General declares a human biosecurity emergency

Wed, 18 Mar 2020 10:58:24 GMT

Bio-security emergency declared

The Governor-General has declared that a human biosecurity emergency exists under the Biosecurity Act 2015 (Cth) for the period of 3 months from 18 March 2020. The declaration is made under section 475 of the Biosecurity Act 2015 (Cth).

The nature of the human biosecurity emergency is that human coronavirus with pandemic potential is an infectious disease which:

has entered Australian territory; and
is fatal in some cases; and
there was no vaccine against, or antiviral treatment for, immediately before the commencement of this instrument; and
it is posing a severe and immediate threat to human health on a nationally significant scale.

The Biosecurity Act 2015 (Cth) provides special powers for dealing with emergencies involving threats or harm to human health on a nationally significant scale.

The Governor-General may make a human biosecurity emergency declaration if the Health Minister is satisfied that the special powers in this Part are needed to deal with a human biosecurity emergency.

The special emergency powers are in addition to the powers generally available under Chapter 2 (managing biosecurity risks: human health), which may also be used to deal with a human biosecurity emergency.

The declaration will be in effect until 18 June 2020. Three months is the longest period that a human biosecurity emergency can be in force but the period may be extended under section 476.

https://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/num_act/ba2015156/

COVID-19: Prisons suspend social visits

Wed, 18 Mar 2020 10:35:00 GMT

Social visits suspended from 17 March 2020 - 22 March 2020

Corrective Services NSW (CSNSW) announced today that all personal visits to inmates in custody in New South Wales are to be suspended until 22 March 2020 (inclusive).

The temporary suspension will allow CSNSW to implement additional processes and procedures for visitor health-screenings to ensure the health safety of staff, inmates and members of the community by minimising all potential cases of COVID-19 in the prisons.

At this stage there are no reports of confirmed cases of COVID-19 within any of the correctional facilities in New South Wales at this stage. Inmates and staff have been advised to take extra care with handwashing and hygiene. The CSNSW memorandum indicates that they have long-standing safety practices in place to prevent and control infections and communicable diseases in prisons.

For more information visit: Corrective Services

COVID-19: Changes to Service Delivery

Wed, 18 Mar 2020 05:14:00 GMT

Changes to the way we service our clients

COVID-19 has challenged the traditional delivery of legal services to clients. The solicitors at Velasquez Legal are dedicated to continuing our important work in representing you in the Local or District Court. We want to ensure the continuation of work despite the virus, whilst also ensuring the safety of our solicitors.

From Wednesday 18 March 2020 we will be asking all clients to not attend face to face advice sessions where possible. If a face to face session is required we will be asking you the following two questions:

Have you travelled to, through or from any of the following countries in the last 14 days? Mainland China, Iran, South Korea, Italy (these countries may change subject to advice).
Have you had contact with anyone who you know has a confirmed case of coronavirus in the past 14 days?

If the answer to either of the above questions is YES then no face to face service is to be provided and an alternate approach must be provided. This might be via FaceTime, phone or skype.

These changes to service delivery due to COVID-19 are unprecedented, however we hope they will be temporary. The information and our approach to service delivery will likely evolve, and probably rapidly. Our approach, including screening, will be evidence based and we will rely on the advice of the NSW and Commonwealth Health Departments.

We will update you if there are any changes to these arrangements.

COVID-19: New Local Court Arrangements

Mon, 16 Mar 2020 04:30:41 GMT

NSW Local Courts are asking people to stay away

The Chief Magistrate issued a memorandum to the users of the Local Court of NSW that special arrangements and rules will be in place from 16th March 2020. If you have to go to court in the next few months w hat does this mean for you?

If you have a new matter and are legally represented:

You can ask your lawyer to email the court for you. This is only where you are not listed for sentence or hearing. If your lawyer contacts the court then your appearance will be deemed to be a physical appearance.

If its the first appearance at court and you are not legally represented:

You can email the court and request an adjournment to a different (future date) as long as you include the reasons why you need that adjournment.

If you are not legally represented and you want to enter a plea of guilty:

You can email the court and notify them that way. You will only be required to attend for your sentence if the presiding magistrate considers that your offence is so serious that your attendance is absolutely necessary. If this is the case the court will adjourn your matter and tell you in writing when the new date is.
If you are writing to the court you will need to make sure that you include your email address, your residential address and your mobile number so that the court can write back to you or send you an SMS.

If you want to plead not guilty:

You can write to the court or get your lawyer to write to the court. The court will then make orders for service of the brief if it is required and advise you or your lawyer via electronic means.

If you already have a brief and you want to maintain your plea of not-guilty:

Then you must advise the court together with a list of dates on which you will be available for the matter to be heard. The court will then inform you of the hearing date.

If the court hears nothing from your your lawyer:

In circumstances where there is no appearance by yourself of a lawyer and there is no communication received , the court will adjourn the proceedings until a date in June 2020.

If you're a person in need of protection in a domestic violence matter:

You will not be required to attend court if the police have brought the application for a Domestic Violence Order unless the matter is listed for final hearing.

Future arrangements:

The court has set aside October 2020 to catch up on backlogs. The court will not be listing any defended hearings during October 2020.

State Debt Recovery Office:

The State Debt Recovery Office has agreed not to list any traffic matters in the Local Court during the period of 1 July 2020 - 1 October 2020.

If you're on a restricted licence you need this

Thu, 12 Mar 2020 02:46:05 GMT

How to use the "Do Not Disturb" function on your Iphone

We're not all computer or phone whizzes so here are some handy tips on how to use the technology that you already have sitting in your pocket to prevent you from grabbing your phone whilst you're driving in your car.

The function is called Do Not Disturb While Driving and it's there to keep you focused on the road. When it's turned on, text messages and other notifications are silenced or limited. You can ask Siri to read replies to you, so you don’t have to look at your iPhone.

Incoming calls are allowed only when iPhone is connected to CarPlay—a car Bluetooth system—or a hands-free accessory, or when you use Do Not Disturb settings to allow some calls.

If iPhone detects you might be driving and you haven’t set up Do Not Disturb While Driving, you’re asked if you want to turn it on.

Turning on Do Not Disturb While Driving

Go to Settings > Do Not Disturb.
Scroll down, then tap Activate.
Choose when you want Do Not Disturb While Driving to turn on.
Automatically: When iPhone detects you might be driving.
When Connected to Car Bluetooth: When your iPhone is connected to a car’s Bluetooth system.
Manually: When you turn it on in Control Center.
Activate With CarPlay: Automatically when iPhone is connected to CarPlay.

Send an auto-reply text message that you’re driving

When Do Not Disturb While Driving is on, by default, an auto-reply is sent to anyone in your Favorites group. You can change who receives the auto-reply.

Go to Settings > Do Not Disturb > Auto-Reply To.
Choose one of the following:
No One: Turns off auto-reply.
Recents: Sends an auto-reply to anyone you sent a message to in the previous two days, even if they’re not in your Contacts.
Favorites: Sends an auto-reply to anyone in your Favorites group in Phone.
All Contacts: Sends an auto-reply to everyone in Contacts.

If anyone responds to your auto-reply message with the message “Urgent,” all subsequent texts from that person come through for the remainder of your drive.

Create a custom auto-reply text message

Go to Settings , then tap Do Not Disturb > Auto-Reply.

Tap the message to bring up the keyboard, then type a new message.

Celebrating women in the Judiciary 2020

Mon, 09 Mar 2020 07:46:51 GMT

Celebrating with the Women Lawyers Association of NSW

We were very pleased to have celebrated the 2020 Women in the Judiciary event together with the Women Lawyers Association of New South Wales and our friends from other female run firms like Alicia Boehm, Jeanette Fahd and Seemab Awan. We are all especially proud of all the new female appointees to the bench.

$344 fine for camera detected phone use

Tue, 03 Mar 2020 04:25:23 GMT

Camera Detected Fines being rolled out - 2 minute read

The mobile phone detection camera program which has been rolled out across New South Wales since 1 December 2019 includes fixed and transportable cameras that operate at locations across the road network.

These camera's are used by NSW Police to target illegal mobile phone use by capturing mobile phone use from a high-definition camera system. This system will operate 24 hours a day and in all weather conditions. They will capture images of the front-row of all vehicles to detect illegal mobile phone use.

From 1 March 2020 mobile phone detection cameras will begin enforcing illegal use of mobile phones while driving or riding.

The penalty for offending drivers is five demerit points and a $344 fine ($457 in a school zone). The penalty increases to 10 demerit points during double-demerit periods. For many people this could mean the loss of their licence.

Learner and provisional P1 licence holders will exceed their demerit point threshold and lose their licence if caught illegally using their mobile phone. All learner and provisional P1 and P2 licence holders will exceed their demerit point threshold and lose their licence if they are caught using a mobile phone during a double demerit period.

The cameras use artificial intelligence to automatically review images, detect offending drivers, and exclude images of non-offending drivers from further action. Images that the automated system considers likely to contain a driver illegally using a mobile phone will be verified by authorised personnel.

When can I legally use my phone?

If you are on your full licence you can make or receive an audio phone call, but ONLY if the phone is secured in a cradle fixed to the vehicle or if it can be operated without touching any part of the phone. Ie Bluetooth use is allowed.

Can I listen to music or audio functions?

If you are on your full licence you can use music or audio functions if the phone is secured in a cradle and or if you can operate it without touching the phone.

Can I use my phone to navigate?

You can if you are on your full licence and only if the phone is secured in a cradle fixed to the vehicle.

What if I am on my L's or my P's?

If you're on your L's or your P's you cannot make or receive an audio phone call, use music or audio functions or even use your phone as a driver's aid for navigation.

Can I use my phone if I am stationary in a car park, driveway or drive thru?

You can use your phone only if the vehicle is stationary and off the road. This would mean having the vehicle in park before touching your phone. The ignition does not have to be turned off.

All functions such as video calls, texting, checking emails ore social medial are illegal unless your vehicle is parked.

Can I even hold and use my phone at any time while driving?

No, it is illegal to hold a mobile phone at any time while driving or riding.

Can I use my mobile if it is on my lap and on loudspeaker?

No. If you are on your L's or your P's you are not allowed to use your phone at all. This is whether you're holding or even resting it on any part of you body. This includes if it is in a cradle or if it's being used via Bluetooth.

What if I am on my push bike?

It might surprise you to know that it is also illegal to hold and use your mobile phone even if you are on a push bike. So if you use your bike as a food delivery courier please make sure that you are at a complete stop and have dismounted your bike before using your phone. This is to avoid heavy penalties including fines.

What do I do now? I have received a fine and I am going to lose my licence!

Contact us via phone, email, Facebook or what's app and we will organise a time to meet and discuss your options. Those options might include taking your matter to court.

Sydney Mardi Gras 2020 - Free Legal Advice

Tue, 25 Feb 2020 23:50:07 GMT

We're so proud to be able to stand in solidarity with the LGBTQI community in Sydney in honour of the 2020 Sydney Mardi Gras.

If you have any queries regarding a criminal matter please don't hesitate to give us a call any time during the day or night throughout this weekend.

Our special free legal advice promotion starts on Friday 28th February 2020 and will end on Tuesday 3 March 2020.

During this period, we will be offering f ree immediate over the phone legal advice of up to 20 minutes.

If your matter is complex or you need to speak to a lawyer in person and the booking is made this weekend - w e will give you the first conference free of up to 45 minutes in our Sydney office on Elizabeth Street.

We will also be available to communicate via the following apps and messenger services:

Facebook Messenger
Whatsapp
SMS

We are wishing everyone a happy and safe Mardi Gras 2020!

#sydney #2020 #sydneymardigras #sydneymardigras2020 #mardigras2020 #lovewins #whatmatters #pride #pride2020 #sydneylatinos #latinlovers #LGBTILatinos

ICO for Sash By Day Drug Supply

Tue, 16 Jul 2019 10:56:46 GMT

Intensive Corrections Order Imposed

We are pleased our client who was charged with two counts of supplying over 16 grams of MDMA at the Sash By Day Club today received the sentence of an Intensive Corrections Order from the Sydney District Court.

An offence of supply prohibited drug under s25(1) Drug Misuse and Trafficking Act 1985 is punishable by imprisonment of a maximum 15 years and/or 2000 penalty units.

It was our client's first time before the court, a plea of guilty had been entered at the earliest opportunity and there were underlying mental health issues such as depression and anxiety.

The judge indicated that when determining whether to make an ICO, community safety was the court's paramount consideration as required by s 66(1) Crimes (Sentencing Procedure) Act 1999. When considering community safety, the court must assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of re-offending. In this case, the court found that community safety was better served with the use of an ICO.

Cyber Crime Alert Targeting Solicitor Clients

carlajose1@gmail.com (Carla Velasquez) — Mon, 15 Jul 2019 11:02:24 GMT

Cyber Crime Alert

The Law Society of New South Wales has today warned solicitors and their clients about the threat of cyber crime targeting clients of law practices. The scam essentially involves clients receiving a mix of emails and/or invoices from persons purporting to be from the law firm seeking that funds be placed into the trust account where the bank account details had been tampered with. If you receive such an email, please ensure you contact the principal of the firm and confirm that the email was legitimately sent and if so that the bank account details are correct.

For more information see: Link to Law Society Article

Supreme Court Bail Applications

carlajose1@gmail.com (Carla Velasquez) — Tue, 04 Jun 2019 11:42:22 GMT

Summary of Practice Note No. SC CL 11 for SC Bail Apps

On 3rd June 2019, a new Supreme Court practice note No. SC CL 11 comes into effect in relation to Supreme Court bail applications. The purpose of the practice note is to streamline the application process and to ultimately cut down the waiting time between filling and hearing of bail applications. Most notably, it aims to cut down the waiting time between the call-over and the actual bail hearing to 20 days.

Previous bail refusal
Applicants for Supreme Court bail must ensure that bail has previously been refused by a Police Officer, a Local Court Magistrate or a District Court Judge.

Application and attachments must be complete upon filing
The application will only be accepted for filing if it is accompanied by all the material that you intend to rely upon in your application for bail. Incomplete applications may result in the application being rejected, not listed for hearing, or administratively dismissed. If your matter is administratively dismissed you may need to lodge another application.

Attachments on filing
Your lawyer must attach with the application to be filed the proposed bail conditions, the submissions upon which you intend to rely in support of the application, all affidavit evidence in support of the application, all reports in support of the application and all character references in support of the application. A completed interactive bail form signed by the solicitor (Bail Act 2013 (NSW) and Supreme Court Practice Note No. SC CL 11) must also be filed.

If the application is accepted
If the application is accompanied by all the required material, it will be accepted by the Registry for filing. If the material is received by the Registry by close of business Wednesday it will be placed in the following week's call-over list.

Allocated duration of hearing
All matters will be allocated 30 minutes hearing time. If more hearing time is required by the Applicant, an affidavit must be prepared by your lawyer setting out the reasons why the extra time is needed. This document must be filed at the same time as the original application.

For excellent representation in relation to a Supreme Court bail application please call our team.

After-hours assistance in Criminal Law

Mon, 27 May 2019 12:07:42 GMT

You can contact us after-hours

We would like to advise our clients and potential clients that you can call us outside of business hours 24/7. This is helpful if a friend or loved one has been arrested outside of business hours or on a public holiday. You can trust that there will be a solicitor on the other side of the phone to assist you. This service is free of charge. Don't forget to save our number in your phone for those crucial times.

Photo Featured in the Bar News

Fri, 17 May 2019 09:07:04 GMT

High Court Photo Featured in the Bar Association Journal

We are very pleased that a photo taken of Ms Velasquez, Ms Abby Van Der Velde (Solicitor), Ms Gaby Bashir SC, Kara Shead SC, Tanya Smith and Georgia Huxley at the High Court in Canberra relating to the matter of DL v R was featured in the latest edition of the NSW Bar Association Journal.

Is it illegal to...drive barefoot?

Mon, 13 May 2019 08:12:57 GMT

Is it illegal to... drive barefoot in NSW?

The Road Rules 2014 govern what you can and can't do whilst driving or riding in a car. It may surprise you to hear that you can drive barefoot in New South Wales. There is no specific rule that prevents you from driving barefoot.

Harsher Low Range Drink Driving Penalties

Tue, 07 May 2019 23:24:12 GMT

Immediate 3 month suspension

The NSW Government has announced changes to the laws surrounding Low Range Drink Driving . From 20 May 2019 , first-time lower range offenders will have their licences suspended for three months on-the-spot .

Changes have also been announced to Driving with Illicit Substance. First-time offenders who drive with the presence of illicit drugs will receive a three month licence suspension and a $561 fine if the offence is confirmed by laboratory analysis.

Despite an on-the-spot fine and suspension being imposed, you still have the right to appeal your fine and suspension before the Local Court.
If you are charged with any of the above offences, call our friendly staff on (02) 8815 8175 and make a booking for your complimentary first conference. The first conference is valued at $275.

Please see the Transport NSW Media Release for more information on the changes: https://www.transport.nsw.gov.au/news-and-events/media-releases/immediate-loss-of-licence-for-all-drink-drivers

We are moving offices

Tue, 07 May 2019 02:13:42 GMT

Updated Contact Details

We are happy to announce we are moving offices to Sydney.

Our new space will be at Level 1, 299 Elizabeth Street, Sydney NSW 2000.

New Phone Number: (02) 8815 8175 New Fax Number: (02) 8251 0097.

DX11569 Sydney Downtown

Our Newest Addition

Tue, 09 Apr 2019 22:14:06 GMT

Welcome to Jessica Kells-Spartalis, Solicitor

We would like to welcome Jessica Kells-Spartalis as our newest lawyer at Velasquez Legal.

Jessica’s career started early into her university studies with the Legal Profession Board at Sydney University. Jessica's love for criminal law began while she was working as a legal receptionist at Samuel Griffith Chambers, one of Sydney’s leading barrister chambers. She followed that by working as a paralegal in a busy Sydney criminal law firm.

As a paralegal Jessica worked on a variety of matters, ranging from summary offences to the most serious offence of murder. Jessica gained valuable court experience appearing in various local courts around New South Wales to instructing in the Court of Criminal Appeal.

Jessica is passionate about criminal law, always striving to go above and beyond. Jessica is committed to putting in hard work to achieve the best outcome for every matter, making her service as a criminal defence lawyer distinct and invaluable.

We look forward to working with her to provide the best possible outcomes for our clients.

Chileans Sentenced

Tue, 09 Apr 2019 22:02:29 GMT

Return to Chile in December 2019

Our clients have received their sentences after 19 months in custody. The father and son duo will be released from custody and deported back to Chile in December 2019 and January 2020, respectively.

Find out more information about the case here 9NEWS.

Serious District Court Charges Withdrawn

carlajose1@gmail.com (Carla Velasquez) — Fri, 19 Oct 2018 02:30:15 GMT

Wound with intent to cause grievous bodily harm withdrawn

This week, Velasquez Legal successfully defended charges of wound with intent to cause grievous bodily harm. This charge carries a maximum penalty of 25 years and a standard non-parole period of seven years. There were serious defects with the circumstantial Crown case including issues of false identification, illegally obtained evidence and unreliable witnesses. After over two years of waiting in custody for trial, our client who consistently indicated he was not guilty was released yesterday from custody at Silverwater to his waiting family.

For more information about the case see the link below.

Link to Media Article

Kiama Court House

Wed, 08 Aug 2018 09:35:20 GMT

Charges withdrawn and dismissed at picturesque Kiama Court House

This week we had charges of common assault and a stalk/intimidate withdrawn and dismissed at Kiama Court House. We could not be more pleased for the client who maintains a clean criminal history. Kiama Court house only sits for defended hearings once a month. If you need assistance with a defended hearing please feel free to contact us for your free evaluation.

"The Chilean Job"

Wed, 01 Aug 2018 02:39:41 GMT

Inaccurate reporting by the Sunday Telegraph

The Sunday Telegraph on Sunday July 29 2018 reported on "the Chilean Job" and reported that "Ubaldo Pizarro, 53, and Cristian Alvarado, 30, followed the victims in the lift up to their level to figure out their room numbers... When the victims left again, the men ransacked their hotel rooms looking for the jewellery." As the representative of Mr Pizarro, I can clarify that the break and enter to which the article refers has been withdrawn.

Successful Bail Application

carlajose1@gmail.com (Carla Velasquez) — Mon, 14 May 2018 09:08:18 GMT

Penrith Local Court

This afternoon, Ms Velasquez and Ms Mikhaiel of Counsel successfully applied for bail for our client charged with specially aggravated break and enter, robbery in company with a weapon, robbery in company and take/drive and conveyance.

The Magistrate found that we had successfully demonstrated very strong ties to the community through our affidavit evidence and that despite the Prosecution submitting there was a risk of further offending, that any risk was ameliorated by strict bail conditions.

The client, who is defending the matter and had no criminal history had been in custody since arrest. If you need to get your loved one out of gaol, please contact us on 0414 632 396.

High Court Matter of DL v The Queen

carlajose1@gmail.com (Carla Velasquez) — Fri, 11 May 2018 00:00:00 GMT

Canberra, ACT - All Female Bar Table

Ms Velasquez along with Matouk Joyner Lawyers instructed Ms Georgia Huxley and Ms Gabrielle Bashir SC in the matter of DL v The Queen on 11 May 2018 in the High Court at Canberra ACT . What also made this date special is that this may be the first time that there has been an all female bar table on both the Defence and Crown sides. The photo above is of the practitioners post-hearing. The transcript is available at this website: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans//2018/83.html

Brief overview of the matter
The matter appealed the decision of the New South Wales Court of Criminal Appeal [2017] NSWCCA 58. In March 2008 the Appellant was found guilty of the murder of a 15 year old girl in July 2005. At the time that he committed the offence, the Appellant was just 16 years old. The then maximum penalty for murder was life imprisonment, with a standard non-parole period (which also applied to juvenile offenders) of 25 years if the victim was a child.

In November 2008 Justice RS Hulme sentenced the Appellant to 22 years imprisonment, with a non-parole period of 17 years. In doing so, his Honour concluded that that the offence fell a little below the mid-range of objective seriousness, being a conclusion relevant to the applicability of the then standard non-parole period. For various reasons, the Appellant did not appeal either his sentence or his conviction until 2016.

Upon appeal the Crown conceded that Justice Hulme had committed a “Muldrock error”. Justice Hulme did this by assessing the sentence in accordance with the principles of R v Way [2004] NSWCCA 131 and then giving considerable importance to the standard non-parole period of 25 years.

Although correct at the time, this approach was subsequently overturned by Muldrock v The Queen [2011] HCA 39. On 13 April 2017 the Court of Criminal Appeal (Leeming JA, Rothman & Wilson JJ) nonetheless dismissed the Appellant’s appeal against conviction, with Justices Leeming and Wilson also dismissing the appeal against sentence. Justice Rothman however would have allowed the appeal against sentence.

When it came to resentencing the Appellant, almost a decade after he had initially been sentenced, Justices Leeming and Wilson came to a very different conclusion concerning the objective seriousness of the Appellant’s crime as did Justice Hulme. Unlike Justice Hulme, who partly relied upon the assumption that the Appellant had been suffering from a temporary psychosis as a mitigating factor, the majority noted that no diagnosis of serious mental illness had ever been made in the decade that the Appellant had been in custody.

Justices Leeming and Wilson therefore found the level of the Appellant’s offending as being objectively very serious and not one warranting the imposition of a lesser sentence. Justice Rothman however noted that the offence was a violent one, seemingly without motive and wholly irrational. The attack was frenzied and the mental condition of the Appellant was, at least in part, causative of the offending. He further noted that the Appellant was then an extremely immature 16 year old. His Honour concluded that the Appellant’s mental health contributed to the commission of the offence in a material way and, as a consequence, his moral culpability was reduced. In those circumstances, the necessity for denunciation as an element of the sentence was reduced. Justice Rothman would have therefore imposed a head sentence of 18 years imprisonment, with a nonparole period of 12 years.

The grounds of appeal are:

The Court erred in dismissing the appeal in circumstances where the Appellant was denied procedural fairness.
The Court erred in substituting aggravated factual findings, on an Appellant’s appeal, in the absence of any challenge to the factual findings of the primary judge by the Crown, and in circumstances where the majority held that the primary findings of the sentencing judge were “open”, when determining whether a lesser sentence was warranted in law.

The High Court reserved their decision. To read the submissions and listen to the oral argument please click this link: http://www.hcourt.gov.au/cases/case_s309-2017

EAGP - Early Appropriate Guilty Plea

Sun, 06 May 2018 00:00:00 GMT

Effective from 30 April 2018 is the commencement of the Early Appropriate Guilty Plea reforms.

These reforms are important and wide reaching a full blog on what the changes are and how they will affect you is forthcoming.

No, the Internet is Not Your Best Source of Legal Advice

Wed, 15 Nov 2017 00:00:00 GMT

An increasing number of people are turning to the internet for all sorts of advice. Fashion advice. Medical advice. Marriage advice.

Here are Velasquez Legal, we certainly won’t dissuade you from getting fashion advice online, but we strongly recommend that you don’t turn to Google for legal advice. Because it could end up costing you a whole lot more than you expected.