CRIMINAL LAW

WE GET IT

Being charged with a criminal offence can be tough especially when you don’t know what you’re up against. Our team of experienced Solicitors understands the criminal procedures and laws of the criminal justice system, and give high regard to the presumption of innocence; that is, you are innocent until proven guilty

It can be difficult and sometimes embarrassing to approach a Solicitor with the allegations and charges brought against you. It is important to remember that as professionals, Solicitors leave judgement to the Judge! It is critical that you are upfront and honest with your Solicitor so they can provide you with the best possible representation in Court. 

Remember, we are on the same team! At Jameson Law, we are across the latest Australian law reform and Criminal code providing our clients with the most well-rounded legal advice possible, laying down all your legal options and paths. 

If you have recently been charged with an offence and don’t know where to go from here, speak to our office about your free initial legal advice over the telephone today, or ask to speak to one of our Solicitors for guidance or even just support!

What do I have to do?

When you are served with a Court Attendance Notice you should seek legal advice quickly. The sooner you act, the sooner your matter will be disposed of!

Do I have to go to Court and how does the Court decide if I am guilty?

You are required to attend Court on every date your matter is listed unless you have legal representation and they ask for you to be excused on the next occasion. If the Court excuses you then you do not have to attend the next mention however you still have to attend your hearing or sentencing. 

With the current COVID-19 restrictions, the Courts are attempting to reduce attendance as much as possible. It is recommended that you wait outside the Courtroom until your matter is called or the time you matter is listed and then step into the Courtroom when it is your turn. If you have legal representation, they may advise you to wait outside for your safety and the safety of others. If you have travelled overseas in the last 14-days and/or have the flu, cold or like symptoms, you should not attend Court. If you have legal representation, they can appear on your behalf. Otherwise, contact the Court to advise why you are unable to attend. 

The onus of proof in Australia rests with the prosecution. That is, you are not required to prove that you are not guilty of the criminal offence, but rather it is up to the police to convince the Court beyond reasonable doubt that you are guilty of the criminal offence with which they have charged you. Case law indicates that this phrase, basically means that the court must have no doubt that there is any other explanation for what happened other than that you committed the offence. If your Solicitor is able to create doubt that you committed the offence you have been charged with, the Court is likely to find you not guilty of the offence. 

There are however other defences that can be raised that are considered either complete or partial defences which could result in no penalty or a reduction of penalty. 

Defences 

Complete Defences include:

Self Defence – used reasonable or equivalent force to defend yourself.

Duress/Necessity – You were forced to act the way you did either due to threat or fear and/or necessity. 

Automatism –  including uncontrolled acts, sleepwalking, under anaesthetic, suffering from some forms of epilepsy or concussion,  

Mental Impairment – Mental health at the time of the incident may be a factor that the Court will consider in making a decision in your criminal law matter if it is raised a defence. This may lead to a court order for your detention in a fitting institution until such time when the Court is satisfied that your release will not be an endangerment to the community. 

Section 10

Everyone has heard the words “section 10” being thrown around. Basically, ‘section 10’ refers to section 10 of the Crimes (Sentencing Procedure) Act 1999 which sets out that a court may dismiss charges or impose conditional discharge of an offender without recording charges against their criminal record. 

10   Dismissal of charges and conditional discharge of offender

(1)  Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders—
(a)  an order directing that the relevant charge be dismissed,
(b)  an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),
(c)  an order discharging the person on condition that the person enters into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

Criminal Record 

If you are found guilty of an offence and convicted, that charge will be recorded against you and you will have a criminal record. Your record is usually valid for 10 years and then the charge will no longer appear on your criminal record when most searches are conducted. However, there are some circumstances where this will still appear on your record even if it has passed the 10 year period, for example in jobs where you are working with children/young people. This may create complications if you have a conviction in relation to a related offence such as sexual assault of a child. 

Speak to one of our Solicitors today if you have been charged with a criminal law matter

What does Criminal Law Mean?

Generally speaking, everyone in Australia understands the concept of Criminal Law. What they don’t know however is that the criminal justice system is one of the broadest areas of law.

 

Australia’s criminal justice system and criminal law legislation are derived from the English common law legislation. Criminal law is most dominantly handled by each state, with only several exceptions being tried at a federal level, including fraud or sexual misconduct, for example. The Criminal Code Act 1995 of the Commonwealth of Australia defines offences and sets out the elements of an offence, being the things that need to be established in order to prove that a person is guilty of an offence.

 

Each state is governed by its own legislation, unrelated to other states in Australia, for example NSW law is different to Queensland (QLD) or Victoria (VIC).  In NSW, the Criminal Justice System is governed by the Crimes Act 1900 which specifically sets out the elements and maximum penalties for criminal offences.

 

Generally, New South Wales, South Australia, and Victoria follow common law jurisdictions, while the Australian Capital Territory, Queensland, Tasmania, the Northern Territory, and Western Australia, follow a criminal law replacing the common law, except in cases of ambiguity.

 

It’s also worth mentioning that in Australiacriminal law legislation is different from civil law legislation in that civil law relates to non-criminal laws.

In 2007, Law reform has seen family violence added to the list of criminal offences in NSW and is governed by a separate legislation known as the Crimes (Domestic and Personal Violence) Act 2007. The Act defines domestic violence offence as ‘an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship. The Act makes it clear that ‘offence’ includes an offence under the Criminal Code Act 1995 of the Commonwealth. In a nutshell, the Criminal Code Act 1995 of the Commonwealth lists the acts that would be considered an offence. Note that the Criminal Code Act deals more with Commonwealth Criminal Law, noting that it is Commonwealth Legislation.

What are the types of Criminal Offences?

There are generally 2 types of criminal offences.

1. Summary Offences

These are offences which are considered less serious. They Summary Offences Act 1988 NSW sets out the offences that are considered summary in the criminal justice system, and the penalty for each offence. These include:

  • Offensive Behaviour:
    • Offensive conduct
    • Offensive language
    • Obscene exposure
    • Obstructing traffic
    • Unauthorised entry of vehicle or boat
    • Damaging fountains
    • Damaging or desecrating protected places
    • Climbing on or jumping from buildings and other structures
    • Continuation of intoxicated and disorderly behaviour following move on direction
    • Possession of liquor by minors
    • Violent disorder
  • Dangerous Behaviour:
    • custody or use of knives and offensive implements
    • custody or use of laser pointers
    • Loitering by convicted child sexual offenders
    • Intimidatory use of vehicles and vessels
    • Prostitution
    • Minors in sex clubs
    • Unauthorised Public Assemblies
    • Hunting on private land

The Crimes Act NSW 1900 also contains a list of summary offences including:

  • Stealing and Similar Offences
  • Robbery
  • Demanding property with intent to steal
  • Sacrilige and housebreaking
  • Larceny
  • Stealing motor vehicle, vessel or trailer
  • Embezzlement or Larceny
  • Receivers, such as receiving stolen property

2. Indictable Offence

 Indictable offences are the more serious charges that are generally penalised by incarceration; that is, the maximum penalty is imprisonment although you will not necessarily be sentenced to imprisonment. 

The following criminal offences are brought under the Crimes Act NSW 1900:

  • Offence against a person 
    • Homicide, such as murder and manslaughter 
    • Conspiracy to murder 
    • Attempts to murder 
    • Documents containing threats
    • Suicide 
    • Acts causing danger to life or bodily harm
    • Possessing or making explosive etc with intent to injury the person 
    • Assaults 
    • Assaults and other actions against police and other law enforcement officers 
    • Assaults etc at schools 
    • Common assaults 
    • Sexual offences against adults and children, such as sexual touching, sexual act,  sexual assault with intent to have intercourse (without actually doing so), persistent sexual abuse of a child, procuring or grooming child under 16 for unlawful sexual activity
    • Misconduct with regard to corpses
    • Termination of pregnancy performed by unqualified person
    • Concealment of birth of a child 
    • Kidnapping
    • Procuring for prostitution 
    • Child prostitution 
    • Child abuse material 
    • Voyeurism and related offences 
    • Record intimate image without consent
    • Distribute intimate image without consent
    • Threaten to record or distribute intimate image
    • Bigamy
  • Offence relating to Public Order
    • Riot and affray 
    • Explosives and firearms offences including possession, supply, firing and trespassing with use
    • Contamination of goods, including threatening to contaminate  with intent to cause public alarm or economic loss
    • Bomb and other hoaxes
    • Criminal Groups 
    • Unlawful gambling
    • Consorting 
    • Public Threats or indictment of violence
  • Fraud, including intention to defraud or deceive 
  • Identity Offences 
  • Money Laundering 
  • Cheating at Gambling 
  • Criminal Destruction and Damage 
    • Destroying or damaging property, including threatening to destroy or damage property, and destroying or damaging property with the intent to injure person 
    • Interfering with a mine 
    • Causing damage etc to sea, river, canal and other works
    • Sabotage 
    • Threaten to sabotage 
    • Bushfires 
  • Offences relating to transport services 
    • Offences relating to aircraft, vessels etc
    • Offences relating to railways etc
  • Corruptly receiving commission and other corrupt practices 
  • Blackmail 
  • Forgery 
  • False and misleading information 
  • Computer offences 
  • Offences relating to escape from lawful custody 
  • Terrorism 
  • Public justice offences 
    • Interfering with the administration of justice 
    • Interference with judicial officers, witnesses, jurors etc 
    • Perjury, false statement etc
  • Attempts
  • Abettors and Accessories – that is people who assist someone to commit a crime or are in any way involved before or after the crime is committed, including harbouring someone who has committed an offences.

Domestic Violence 

Since 2007 domestic violence offences have been dealt with under Criminal Law. They are also governed by state legislation, meaning that NSW has its own legislation regarding domestic violence criminal offences. The victims of crime in such cases are considered persons with whom the accused has or a had a domestic relationship. This may be a current or ex-partner or even a sibling, child or parent. Young people and child related matter may become more severe and lead to other proceedings being commenced in the children’s court

It is important to realise that domestic violence offences are dealt with in the same way that other criminal offences are dealt with by the Court. Do not take this lightly and seek legal advice as soon as you become aware of any charges being brought against you in that regard.

What does it mean when I receive a Court Attendance Notice (CAN)?

All criminal matters are commenced in the Local Court (unless the criminal offence is more severe in which case it may be moved to the district court or supreme court. Note: it is rare for a criminal law matter to be heard in the High Court of Australia). In order to bring charges against an accused, the Police must personally serve a Court Attendance Notice (CAN) on the person. The CAN should set out the charges, including the section of the Act under which they are being charged, Police facts of the incident, and notice of the date and time on which the matter is listed and which Court they are required to attend. 

If you have been served with a Court attendance notice and charged with any of the above offences, it is recommended that you seek legal advice as soon as possible before the date on which your matter is listed. You will see the date, time and Court that you are required to attend at the top of the first page of the Court attendance notice. 

STEP 1

Service of Court Attendance Notice

This is where police serve you with a Court Attendance Notice (CAN). This may be done at the police station if you are detained, or at your home.

STEP 1

STEP 2

First Court Mention

The Court Attendance Notice will indicate the date, time and Court that you need to attend. This can be found at the top of the first page of your Court Attendance Notice. Your matter will be listed for mention before a Magistrate at which time, you can elect to either:

1. Adjourn the matter to obtain legal advice if you have not already done so in which case your matter will be listed on another day for mention; or

2. Enter a plea of guilty or not guilty. Note: entering a plea of guilty means that you admit that you are guilty of the charge although you may not agree with everything written in the police facts. Entering a plea of not guilty means you do not admit to the charge. The matter will be adjourned to another day for hearing if you plead not guilty or sentencing may be done on the spot for summary offences if you enter a plea of guilty.

If your matter is considered an indictable offence, it may be necessary to move the matter to the District Court or the Supreme Court depending on the severity of the offence. In saying that section 475A of the Crimes Act 1900 provides that the Supreme Court can also hear summary offences of conspiracy to cheat and defraud:

…proceedings for any offence mentioned in Schedule 10 may, pursuant to Part 5 of Chapter 4 of the Criminal Procedure Act 1986 by the Attorney-General or the Director of Public Prosecutions, be taken before the Supreme Court in its summary jurisdiction.

STEP 2

STEP 3

Second Court Attendance or Hearing

If you adjourned your matter at the first mention, it is expected that you have either sought legal representation or advice and will enter a plea at that time. You must elect whether to enter a plea of guilty or not guilty.  The matter will be adjourned to another day for hearing if your plead not guilty or sentencing may be done on the spot for summary offences if you enter a plea of guilty.

If you entered a plea of not guilty at the first mention, your matter will be heard by a judge on that day and you will receive a verdict/conviction on that day. Depending on the severity of the offence, the hearing may go on for a number of days. The police would have served your Solicitor with the Police brief which sets out all the criminal investigation conducted and evidence they have in your matter. Your Solicitor would also have advised the Police which if any witnesses they will required to attend the hearing. 

It is highly recommended that you have legal representation if your matter is proceeding to a hearing.

STEP 3

STEP 4

Representations

If you enter a plea of guilty, you are entitled to make representations to the police to drop some or all charges based on lack of evidence or overcharging. If you bring on a Solicitor early in your case, they are able to do this early on and try to get some or all charges dropped before you get to this stage.

STEP 4

STEP 5

Hearing

Your matter will be heard and you will receive a verdict on the last day of your hearing/trial. Generally speaking, you will be called to give evidence in the witness box along with any other witnesses in the matter.

STEP 5

STEP 6

Court of Appeal

If you are dissatisfied with the Outcome, speak to a Solicitor about your prospects of filing an appeal in the Court of Appeal.

STEP 6

How do I know how serious my offence/charge is?

Indictable offences are more serious charges than summary offences. Each section in the Crimes Act sets out the elements of an offence and the maximum penalty. However, depending on the facts of the case and the evidence available, the penalty can be anywhere between charges being dropped and the maximum penalty for the offence. It is important that you seek legal advice to determine how serious your specific case is, regardless of how serious the charge actually is. In many cases, representations may be made to the police setting out reasons why some or all charges should be dropped and this will save you the hassle of having to go to Court or at least avoid a hearing. 

What happens in Criminal Matters?

The Criminal Procedure Act sets out how Criminal Law matters should be managed. All Criminal Law Solicitors should be well aware of the Criminal procedures and how the Criminal justice system is run. Once again the Criminal Procedure Act is a New South Wales legislation and accordingly, the Criminal procedure is not a Commonwealth uniform procedure but rather difference in every state.

Frequently Asked Questions.

Our lawyers cover a multitude of areas, including more serious offences. Including but not limited to:

Family Violence
Family violence is among the most common cases we encounter, with both men and women subject to institutional abuse. While it doesn’t necessarily entail sexual abuse, in many cases, it does, and sexual assault is part of the Criminal Code. We handle such cases with confidentiality and cautiousness to ensure the best possible compensation outcomes.

Children-related Issues
The children’s court is frequently confronted with issues of child protection, children’s rights, custody arrangements as a result of divorce, parental responsibilities, and more.

Because we understand how far the impacts of such situations can go in the memories of children, we work rapidly and efficiently to establish protective measures against children’s trauma and minimize time spent in a children’s court. You and your children are fully protected with us!

Drugs
We have a track record of achieving outstanding results when it comes to drug offence charges, ranging from demolishing the possibility of a criminal conviction, dropping charges through negotiations, securing “not guilty” verdicts in court trials, and more.

Our drug offences include commercial drug charges, drug importation charges, drug possession charges, and cultivating prohibited plant charges. We also work with minor possessions of prohibited drug offences, providing you with legal representation throughout the process!

Fraud

Fraud is considered one of the most scheming criminal offences, and accordingly, it is punished severely by the court system’s penal code and criminal code. As specified by Australia’s penal code, the penalties can go as high as ten years of imprisonment.

Accordingly, understanding the criminal law adequately and reaching out for professional legal advice to be your intermediary with the criminal justice system is a must. We specialize in forgery, identity crimes, tax fraud, Medicare fraud, and ID fraud.

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