Blog

September 10, 2016 by Daniel

Police Powers

Police have many more rights than ordinary citizens when it comes to carrying out their work.

No doubt there are some police who take this too far, however by and large these powers are absolutely necessary to ensure that police can carry out their duties in preventing and prosecuting crime.

It is important however that they stick to the rules when doing so. Police powers of arrest are as follows:

A police officer can arrest you if:

You are committing an offence.
The officer has reasonable grounds to suspect that you have committed an offence.
You are breaching the peace.
You have breached your bail conditions.
A warrant has been issued for your arrest.
Apprehended Violence Order related issues.

If you are arrested the police are under certain obligations to give you certain information. This includes:

To tell you that you are under arrest.
To tell you that you are being arrested before they arrest you.
To identify themselves with his or her name and place of duty.

A police officer may use as much force as they deem necessary to arrest you. That said, unreasonable force will be deemed to be an assault. It is important to remember that if you are arrested, you should cooperate even if you think you are innocent. This is because resisting arrest is an offence unto itself. Submitting to an arrest is not an admission of guilt, it is simply avoiding the threat of any further charges.

Once you are arrested the police then have the power to search you and if they deem necessary search you again once they take you to a police station.

Once you are at the police station you have a right to contact a lawyer and you should do so before submitting to an interview to make sure you understand your rights.

The police will then decide whether to charge you with an offence and if they do charge you, whether to release you on bail or keep you in custody.

September 8, 2016 by Daniel

Family Provision – Wran Estate

ANOTHER FAMOUS WILL BATTLE

The daughter of former New South Wales Premier Neville Wran has settled out of Court over a dispute with her half-sister about Wran’s $40 million Estate.

Harriet Wran is currently in gaol accused of murder. She launched her legal action together with her brother Hugo from behind bars.

There are a number of specific people who are eligible to contest a deceased person’s Will and this includes natural children, adopted children, spouses and de factos and some other categories of people who were dependent on the deceased.

While the terms of the settlement remain confidential there are a number of claims that accused murderer Harriet Wran may have been making regarding Mr Wran’s Estate. These include:

Asking for a greater share of the Estate (it is understood she stood to receive approximately $10 million).
Altering the terms of the Will, for example if there were restrictions on when and how Harriet could access her money.
Contesting who was to be in charge of her inheritance while she remains in gaol.

The process for making a claim against a deceased person’s Estate is as follows:

Establish that you are an eligible person to make a claim.
File a Summons in the Supreme Court within one year of the deceased’s date of death.
Attend a compulsory mediation with the Defendant (who is usually the Executor).
While the above is occurring the legal representatives of the parties may correspond with each other trying to settle the matter.
If the matter cannot be settled out of Court, then it will go to a full hearing whereby a Judge will decide what the outcome is.

Interestingly, being convicted of a serious crime does not preclude a person who is an eligible claimant from making a claim against a deceased person’s Estate.

Typically, the Court will only be concerned with this conduct if it involved the deceased.

If you have been left out of a Will or haven’t been adequately provided for, or you are an Executor who has been threatened with legal action, contact us today to discuss your rights.

September 6, 2016 by Daniel

Criticism of Section 10 Dismissals

The Daily Telegraph this week ran an article about people who have been charged with various drink driving offences who receive Section 10 dismissals, saying “thousands of people are escaping convictions for drink driving every year”, blaming these statistics on a “legal loophole”.

Unfortunately, this article lacks any true understanding of the legal reasoning behind the concept of Section 10 dismissals and why they exist.

A Section 10 dismissal means that the Court acknowledges that the offence was committed, however in the discretion of the Magistrate decides not to record a conviction because that particular case may have had extenuating circumstances attached to it.

The attitude of the Daily Telegraph seems to be that every person who drinks and drives should be convicted and punished. This concept, similar to mandatory sentencing, has been tried and failed as it does not take into the account that every matter that comes before the Court has with it a unique set of factual circumstances.

Take for example, a person who has been driving for 20 years without a single offence on their record, who is a positive contributor to their community, and an otherwise upstanding citizen. Let’s say they consume two drinks at a bar and believe they are under the threshold to drive, but following a breath test are found to be in the low-range category for drink driving. Imagine further that this person works in a job that requires them to hold a license, and should they lose their license, they will also lose their job. Should this person be so severely punished for what was at worst an error in judgement?

People are not perfect and from time-to-time make mistakes that without the option for discretion on the part of the court system could result in a punishment that is severely disproportionate to the offence they committed.

Our legal system is designed to allow people who are convicted with a criminal offence the opportunity to explain their actions to ensure that more serious offenders are dealt with more harshly than less serious offenders. Section 10 of the Crimes (Sentencing Procedure) Act allows the Court to exercise some discretion in circumstances where members of society who make mistakes deserve a second chance. It can hardly be described as a “legal loophole” which has with it connotations of inadequacy or cheating the system.

For the most part, serious offences are dealt with by the courts in a serious manner. Unfortunately, some journalists latch on to statistical anomalies that do not tell the whole story or outliers that are the inevitable by-product of an imperfect system when reporting on legal matters.

If you have been charged with an offence by police, contact Complete Legal to discuss your options.

September 4, 2016 by Daniel

What is Self Defence?

Ben Batterham of Newcastle has been charged with the murder of Ricky Slater-Dickson arising out of an altercation that occurred at Batterham’s home on Saturday morning. It is alleged that Batterham discovered the deceased in his home at 3:30am and proceeded to chase him from the residence and assault him, resulting in his death.

Social commentators are saying that this is a simple case of a man defending his “castle”. It is not so simple however. For an act to constitute self-defence under the Law the act must be done to defend a person (from violence for example) and it must be perceived to be a “reasonable response” in the circumstances.

The problem faced by Batterham in this case is that it appears that he may have chased Slater-Dickson from the home before the assault occurred. If this is the case, and Slater-Dickson was retreating, then there was arguably no threat from which Batterham needed to defend himself or his family once Slater-Dickson had left the property and was running away.

This case is one of great interest to the community for obvious reasons. In particular, there appears to be a common principal amongst every day Australians that a person should be able to defend his or her family and their property. The question for the Court to consider is whether or not Batterham has gone too far in doing so. Despite the eventual outcome, this loss of life is tragic for both Slater-Dickson‘s family and for the family of Batterham. If Batterham is convicted of murder he will spend a significant period of time in jail, which some may perceive as an injustice in circumstances where the alleged trespass that lead to the offence was thrust upon him by the alleged criminal conduct of Slater-Dickson.

There are no specific details available to us to form a definitive opinion as to whether or not Batterham’s conduct constituted self-defence at this stage. The murder charge brought against Batterham however, indicates that the police have formed the view that his conduct was unreasonable in the circumstances and does not constitute self-defence. It is likely that a jury of 12 ordinary citizens will determine Batterham’s guilty if the matter goes to trial.

September 2, 2016 by Daniel

Possible Double Dissolution Election

Prime Minister Malcolm Turnbull announced on Monday that he will recall Parliament, bringing the budget forward a week, and setting the scene for a possible double dissolution election.

Speculation has been rife in the media that this might occur, but everyday Australians might not necessary understand what a double dissolution election is, especially considering that this would be the first time this has occurred since 1987.

In Australia, for a law to be passed, it must be approved by the two houses of Parliament, being the Senate and the House of Representatives. If there is disagreement over a proposed Bill and a deadlock occurs, the Australian Constitution provides a mechanism to solve this problem by “dissolving the Parliament” which means that both the Senate and the House of Representatives are shut down in order for a federal election to take place to determine the matter. All Senators and Members of the House of Representatives must then be re-elected in order to hold their seats. One of the following three results can occur:

Every Senator and Member of Parliament is re-elected and therefore the government remains exactly the same on both sides (this is incredibly unlikely).
The sitting government wins more seats than it had before, making it more likely that their laws will be passed.
The Opposition win more seats than the sitting government, potentially meaning a new government and the laws that triggered the election being defeated.

A good example of how this type of political situation can play out occurred in 1975 when the Whitlam government could not pass laws pertaining to the federal budget, and therefore could not legally spend government money. In that example however, the Prime Minister chose not to dissolve the parliament, causing the Governor General to dismiss the government resulting in an election anyway.

If the Prime Minister Turnbull triggers a double dissolution election, Australia will most likely go to the polls on 2 July 2016.

August 31, 2016 by Daniel

Licence Suspensions – Demerit Points

Many of our clients find themselves receiving a letter from Roads & Maritime Services suspending their driver’s licence for the accrual of too many demerit points.

While the demerit points system is designed to punish drivers who consistently breach the road rules, there are some circumstances where you can appeal your suspension to either serve a shorter suspension or avoid a suspension altogether.

Typically, this type of appeal is reserved for someone who has a relatively good traffic record and can demonstrate that not only do they have a need for a licence, but they are a fit a proper person to hold a driver’s licence.

You might be a suitable candidate to appeal a decision of the RMS to suspend your driver’s licence for the accrual of too many demerit points if:

You have no other offences on your driving record, but were caught speeding more than 30 kms over the limit which attracts a minimum three months’ suspension.
You are a ‘P’ plate driver who has lost your licence for committing one offence, but can demonstrate that you are a fit and proper person to hold a driver’s licence (for example, by completing a traffic offenders program).
You drive for a living (for example, as a truck driver) and have demonstrated a tendency to adhere to the road rules over a number of years.
You are a person who contributes in a positive way to the community through charity work or other means.
You have a genuine need for a driver’s licence.

The test for determining whether or not an RMS suspension should be overturned is whether or not, in the opinion of the Court, you are a “fit and proper person”. If you wish to go down this path it may be necessary for you to obtain references from people who know you and potentially complete driver education programs to show the Court that you are serious about learning from your mistakes and not reoffending in the future.

If you have received a Notice of Suspension from Roads & Maritime Services and want to know if you might be able to appeal this decision and keep your licence, contact us today to discuss your case.

August 29, 2016 by Daniel

AVOs in New South Wales

Harrowing footage has emerged via major media outlets this week showing a man named Shane Cuthbert physically and mentally abusing his wife. In an interview with A Current Affair the victim has told of countless episodes of horrific abuse that left her battered and bruised which were filmed by her husband for his own sadistic pleasure. Stories like these undoubtedly raise questions about the powers of the victims of abuse to be protected from their attackers. The article looks at AVOs and how they work in New South Wales.

There are typically two types of AVO. The first is an Apprehended Domestic Violence Order and it is made where the people involved are related or have been party to a domestic or intimate relationship.

The second type is an Apprehended Personal Violence Order which is made where the people involved are not related or are not in a domestic or intimate relationship, for example neighbours or someone who is being stalked or intimidated by another person.

An AVO is not a criminal charge it is an Order for future protection, meaning it restricts a person’s behaviour to prevent them from causing any harm or threat of violence to the victim.

There are two ways a person can apply for an AVO. You can make a private application, meaning that you go to your Local Court or engage a solicitor to make the application for you. The second way an AVO can be taken out is by the Police who are at liberty to make an application on a person’s behalf.

If an AVO is taken out against you have the right to defend it by going to Court to respond to the application.

If you do not agree with an AVO application against you the Court will either refer the matter to a Community Justice Centre for mediation or the Court will want to hear evidence by way of a court hearing to determine whether the AVO should be granted.

If a person breaches an AVO it is a criminal offense. The most severe punishment for breaching an AVO is imprisonment.

There are a number of organisations who provide free advice in relation to AVOs both for victims and respondents. These include Legal Aid and the Women’s Domestic Violence Court Advocacy Service. While an AVO does little to actually protect a person from violence, it is the first step in indicating to perpetrators that they should cease their behaviour or risk serious punishment.

May 24, 2016 by Daniel

Lawyer vs Lawyer – Class Action

LAWYER V LAWYER – CLASS ACTION 2016

Reports have emerged in the media this week that two of Australia’s biggest law firms are set to go head to head in a class action. Maurice Blackburn is set to file against Slater & Gordon who in 2007 became the first law firm in the world to list on the stock exchange.

The proposed class action is a result of Slater & Gordon recently announcing half year losses of $958 million dollars after its board took the decision to write down the value of the firm’s United Kingdom assets which have taken a significant fall in value since they were acquired recently.

Slater & Gordon is accused of misleading shareholders as to the financial health of the company. In essence, information put out by Slater & Gordon in November 2015 indicated that the business was travelling well and the company was in good shape. Some three months later however the company is reporting massive losses which has resulted in a plummeting share price and huge losses to wealthy shareholders and mum and dad investors alike.

There is no specific evidence yet of any of Slater & Gordon’s directors breaching their duties under the Corporations Act however this case does highlight that running a business via a company structure does have with it important rules that directors must follow including:

Taking adequate care in exercising your powers as a director in running the company;
Acting in the best interests of the company;
Not improperly using your position to gain an advantage for yourself or someone else;
Preventing the improper use of information obtained through your position to gain an advantage for yourself or someone else;
A duty not to trade while insolvent;
A duty to keep adequate financial records that clearly record and explain transactions and the company’s financial position.

In essence, the Corporations Act requires directors of companies to act in a manner that is beneficial to the company and does not seek to cause any detriment or loss to the company. These obligations extend to misleading shareholders who usually make their investment decisions based on the information the company provides to them about its financial performance.
It remains to be seen who will stand victorious as two of Australia’s legal juggernauts come up against each other in what will be one of the most expensive, hard fought and publicised legal battles of recent times.

May 23, 2016 by Daniel

Getting a Divorce

Unfortunately, the percentage of marriages that result in divorce in Australia is quite high. If you find yourself in a position where your marriage has come to an end, this article is designed to give you an insight to process of divorce.

You must satisfy the Family Court that you and your spouse have been separated for a period of at least 12 months before applying to divorce.
You must demonstrate to the Family Court that there is no reasonable likelihood in resuming married life (note: It is possible to live together in the same home but still be separated).
If you can satisfy the above two criteria, you are then able to make an application for divorce. Part of your application will include proof that you are in fact married, proof that you are an Australian citizen, and details about when you separated from your spouse.

In Australia, the principal of “no fault divorce” applies. This means that in considering a divorce application the Court does not take into account why the marriage ended, only evidence that satisfies the Court that the marriage has broken down irretrievably.

In circumstances where the marriage has resulted in children aged under 18, the Family Court will only grant a divorce if it is satisfied that proper arrangements have been made for them.

It is important to note that a divorce is different to a financial settlement and parenting/custody of children.

You must seek the advice of a Family Lawyer to ensure that not only are you successful in divorcing your spouse, but also that you receive a fair share of the matrimonial assets and that any children of your relationship are appropriately cared for.

Some of the things that the law considers when deciding what is a fair asset split is the contribution by each party to the asset pool, non financial contributions such as the care of children and maintenance of the family home and the capacity of each party to earn income.

If you need family law advice, contact Complete Legal & Conveyancing to arrange a Skype or telephone consultation today.

May 22, 2016 by Daniel

What is a Class Action?

The media is reporting that members of the Australian Navy are launching a class action against the government claiming that they were promised engineer training when they joined, which the Navy failed to provide.

A class action is a court case brought by one person on behalf of a larger group. Class actions typically arise where multiple people share a common legal problem that can be dealt with by combining resources and running it as one case. One of the main advantages of this type of action is that the aggrieved parties have “strength in numbers”.

The class action concept is well depicted in the famous Australian film ‘The Castle’ and in the American film ‘Erin Brockovich’.

Australia has its own history of large class action cases. Following the devastating 2009 Victoria bushfires in which 119 people died and over 1,000 homes were destroyed, a class action on behalf of 10,000 survivors was launched. The basis of the class action was that a faulty electricity cable being maintained by power distributor SP AusNet & Utility Services Group caused the fire, and as a result the fire’s victims should be entitled to compensation.

The class action resulted in a $500 million payout in 2014, which makes this class action one of the biggest settlements in Australian legal history.

In 2010, a class action was launched on behalf of hundreds of thousands of bank customers against the Commonwealth Bank, ANZ, Westpac and NAB on the basis that these banks were charging fees ranging from a few dollars to $45.00 for things like ‘Account Overdraw Fees’ or ‘Late Payments’ without having the consent or agreement of the customer.

In 2014, Australia’s Federal Court ruled that these charges were in some cases exorbitant, particularly in the case of the ANZ Bank.

In 2015, the ANZ Bank won the right to appeal this decision to the High Court of Australia. Whatever the eventual decision of the Court is, it will set an important precedent in determining other class actions that have been launched against other lenders as a result of the above.

Other examples include a class action on behalf of the victims of Queensland’s 2011 floods, and actions being pursued by residents of Badgerys Creek who are being displaced as a result of the pending construction of the airport.

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