AVOs – What are they and how do they work?

Headshot of Dan Daley - Solicitor at Everingham Solomons TamworthAn AVO is an Apprehended Violence Order. The relevant legislation that applies to AVOs is the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the Act”).

Under the Act, there are two types of AVOs. The first and more common type is an Apprehended Domestic Violence Order (ADVO). An ADVO applies when the parties in question are in or were previously in a domestic relationship. What constitutes a domestic relationship is outlined in section 5 of the Act, but suffice to say the definition of a domestic relationship is very broad.

The second type of AVO is an Apprehended Personal Violence Order (APVO). An APVO applies when the parties in question are not connected by way of domestic relationship. A common example being two neighbours in dispute.

AVO matters are very common in the Local Court. For instance, in 2020 NSW Courts issued 37,981 final AVOs, with 33,830 being ADVOs, whilst 4,151 were APVOs. There is no doubt that an AVO can be a very useful tool to protect victims from violence. However, a short coming of the relatively easy application process for AVOs is that applications for AVOs are open to being abused. This sometimes leads to very minor incidents between parties ending up in Court, where these minor conflicts would be better resolved through less formal means.

When it comes to dealing with an AVO there are three main options. Firstly, the defendant can consent to the AVO on a “without admissions” basis. In plain English, this means agree to the AVO being made against them without admitting that they have done anything wrong.

A second option is to try to seek a mediated solution to the issue, commonly by way of written undertakings between the parties as to future conduct.

A third option is to oppose the making of the AVO and have the matter set for hearing. At the hearing it is for the applicant to prove to the Court on the balance of probabilities that he/she has reasonable ground to fear violence, stalking or intimidation on the part of the defendant. If the applicant can prove this, the AVO will be made by the Court. If the applicant can’t, the AVO application will be dismissed.

A final matter to consider upon the successful defence of a AVO is the recovery of costs. Costs in AVO matters are governed by s 99A of the Act. Costs are only to be awarded in AVO matters if the Court finds the application was frivolous or vexatious. Costs in AVO applications run by Police have further elements that must be satisfied.

If you have any AVO related queries please contact the experienced team at Everingham Solomons as Helping You is Our Business.

Click here for more information on Dan Daley.

The Common Crime of Common Assault

Headshot of Dan Daley - Solicitor at Everingham Solomons TamworthAssault is a very common crime dealt with by the Courts, but it is often misunderstood by the lay person.

Originally at common law, there were two separate offences, assault, and battery. An assault being where one person causes another to fear the imminent infliction of unlawful force, whilst battery involved the actual infliction of unlawful force. Today these two previously separate offences have collapsed into one, codified in the Crimes Act 1900 (NSW).

The most frequent charge of assault before the Courts is common assault, found in section 61 of the Act. It carries a maximum penalty of 2 years in prison and/or a fine of $5,500. To be guilty of common assault the police must prove:
• That you caused another person to fear imminent and unlawful violence, or that you made physical contact with another person, and
• That the other person did not consent, and
• That your actions were intentional or reckless.

The question then arises just how imminent does the threat of violence need to be to constitute an assault?

The case of Zanker v Vartzokas (1988) 34 A Crim R 11, considered this point. It involved a young woman accepting a lift from a man she didn’t know. The man sexually propositioned her whilst driving and the woman asked to be let out of the vehicle. The man increased the speed of the vehicle and said “I am going to take you to my mate’s house. He will really fix you up.” Such was her fear, the woman opened the door of the vehicle and leapt out whilst it was travelling at around 60 kilometres per hour.

The driver was charged with assault. It was accepted by the Court that his words and acceleration of the vehicle were enough to cause the woman to fear for her future safety – when they arrived at the mate’s house. But was this fear immediate enough to constitute assault?

The Court held that the feared injury or harm need not be immediate, it was enough that the threat of harm operated immediately upon the victim’s mind. The defendant was convicted of the assault. The law around assault can be quite complex. Should you be charged with an assault, it is important to ensure you are represented by someone with knowledge and expertise in this area.

Our experienced team at Everingham Solomons can look after you in this regard as Helping You is Our Business.

Click here for more information on Dan Daley.

Mental Health Legislation Changes

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) came into effect on 29 March 2021 and replaced the Mental Health (Forensic Provisions) Act 1990 (NSW).

There are a number of changes that this new piece of legislation introduces in relation to the previous act. This new act makes amendments and additions to the previous definitions relating to cognitive impairment and mental illness and/or mental condition, now referred to as a “mental health impairment”.

A mental health impairment is now defined as a “temporary or ongoing disturbance of thought, mood, volition, perception or memory” which “would be regarded as significant for clinical diagnostic purposes” that “impairs the emotional wellbeing, judgment or behaviour of the person.” The mental health impairment can come about due to anxiety, affective disorder, psychotic disorder or a substance-induced disorder that is not of a temporary nature.

Under section 5 of the new act, cognitive impairment is defined as “an ongoing impairment in adaptive functioning and comprehension, reasoning, judgment, learning or memory which result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind.” Cognitive impairment can relate to intellectual disability, borderline intellectual functioning, dementia, acquired brain injury, drug or alcohol related brain damage and autism amongst other causes.

Section 15 of the new act outlines a list of factors that a Magistrate may take into account in deciding whether diversion is more appropriate then dealing with the matter otherwise in accordance with the criminal law. These factors include:

• The nature of the mental health or cognitive impairment,
• The seriousness and circumstances of the alleged offence,
• The suitability of the sentencing options available,
• Any changes in the circumstances of the defendant,
• The defendant’s criminal history,
• Any previous mental health diversion,
• Any treatment plan and its contents,
• Whether the defendant is likely to endanger the safety of themselves, the alleged victim, or any other member of the public, and
• Any other relevant factor.

The intersection between mental health, cognitive impairment and the criminal law can be quite complex. Should issues relating to mental health and/or cognitive impairment arise in criminal law proceedings, it is important to ensure you are represented by someone with knowledge and expertise in this area. Our experienced team at Everingham Solomons can look after these issues for you because Helping You is Our Business.

Click here for more information on Dan Daley.

Good behavior driver licence

In NSW a demerit point system applies to traffic offences. Different categories of drivers have differing numbers of points on their licence. For instance, a professional driver has 14 points, unrestricted drivers have 13 points, P2 licence holders have 7 points and drivers on their P1 licence or learner’s licence have 4 points.

The demerit point system works by allocating demerit point penalties for different types of driving offences. If the driver accumulates more demerit points than allowed based on their category of licence, within a three-year period, their licence will automatically be suspended.

The length of a demerit point suspension depends upon the amount of points accumulated in the 3 year period. For professional or unrestricted licence holders, demerit point suspensions can range from 3 to 5 months suspension, whilst restricted licence holders (P and L platers) face a standard 3 month suspension.

In rural areas a licence suspension can have serious consequences in relation to employment and family life. For this reason, many people on an unrestricted licence choose to serve a 12 month period on a “good behaviour” licence rather than serve the mandated suspension period.

A good behaviour licence will give the driver a further two demerit points for a 12 month period. If the driver exceeds this 2 demerit point limit during this 12 month period of good behaviour, the suspension period will then be double the original suspension imposed. For this reason, a good behaviour licence is sometimes known colloquially as “double or nothing” licence.

Whilst it is not ideal to be charged with driving offence whilst on a good behaviour licence, it is possible to challenge the matter in Court. If a driver is found not guilty of the offence, no demerit points will apply and they will be able to keep their licence.

Alternatively, in some limited situations, it may be possible to enter a guilty plea and have the Court deal with the matter leniently and not record a conviction for the offence. No conviction means no demerit points accrue and no suspension from driving.

Traffic law can be quite a complex area and thus it is important to ensure you are represented by someone with thorough knowledge of how the system works. If you have any traffic related queries please contact the experienced team at Everingham Solomons as Helping You is our Business.

Click here for more information on Dan Daley.

A policeman and a dog walk into a bar….

The phrase above isn’t an introduction to a joke, but rather the exact scenario in Darby v Director of Public Prosecutions [2004] NSWCA 431.

Mr Darby was standing outside a nightclub in Sydney. A plain clothes police officer and his drug detection dog, Rocky, were walking past on their way to enter the club. As Rocky walked past Darby he began sniffing the air and then walked up to and placed his nose on Darby’s pocket. Rocky’s actions in placing his nose on Darby’s pockets, involved him “bunting and ferreting” Darby’s pocket and genital areas. Police subsequently searched Darby and found him to be carrying drugs.

The crux of the matter was whether Rocky’s actions constituted a search, and if so, did the police have “reasonable suspicion” to conduct the search, as any search conducted before having reasonable suspicion would be illegal, and the drugs found during this search could be excluded as inadmissible evidence in Court. Thus much turned on whether Rocky “searched” Mr Darby or not.

At first instance, the Magistrate found that Rocky’s actions constituted a search of Mr Darby, the search was illegal as it was not based on reasonable suspicion, and the drugs found on Darby during the search were held to be inadmissible evidence. Consequently, the charges were dismissed.

The DPP appealed the decision of the Magistrate to the Supreme Court of New South Wales. Here O’Keefe J found that the actions of Rocky were not a search but rather identification and this identification gave police reasonable suspicion to search Darby.

Mr Darby appealed this decision to the New South Wales Court of Appeal. Darby’s counsel raised the point that Rocky’s actions of “ferreting and bunting” constituted an assault and battery and thus Rocky’s actions were illegal.

In a majority decision (2 -1), the Court of Appeal upheld the decision of the Supreme Court. It was held unanimously by the Court of Appeal that using a dog to sniff in the vicinity of a person for the purpose of drug detection does not constitute a search. However, in his dissenting judgment, Giles JA held that the actions of Rocky in bunting Mr Darby constituted battery and thus were unlawful.

Today most police powers can be found in the Law Enforcement (Powers and Responsibilities) Act 2002. Should you have any criminal law matters, please feel free to contact our experienced team of solicitors at Everingham Solomons because Helping You is Our Business.

Click here for more information on Dan Daley.

70’s Rock & Traffic Law

“Life in the fast lane” is the title of one of the Eagles’ biggest hits from the 1970s. Unfortunately however, it is also a turn of phrase that can be used to describe the driving habits of many drivers.
If you have, to quote Meatloaf, been driving “like a bat out of hell” and had your licence suspended, in certain circumstances you are able to appeal a licence suspension made by either Transport for NSW (TfNSW) or the Police. Examples of appellable decisions include:

– TfNSW licence suspensions for exceeding the speed limit by more than 30          but less than 45 kilometres per hour;
– Police on the spot licence suspensions for exceeding the speed limit by more than 45 kilometres per hour; and
– TfNSW decisions to suspend P1 or P2 provisional drivers licence for loss of demerit points.

An appellant only has 28 days from receiving the suspension letter from TfNSW to lodge an appeal. The appeal form can be obtained from the Local Court registry or Local Court website. If you do not lodge your appeal within the 28 day time limit, you will be prohibited from appealing and will have to serve the suspension.

You must show the Court that circumstances exist that justify the lifting or varying of the suspension. Generally, appellants need to show:

– that they are of good character and thus a fit and proper person to hold a licence;
– that they require their licence for work and/or family purposes;
– that their driving behaviour does not expose the community to an excessive risk; and/or
– that there are other exceptional circumstances that are relevant to the appeal.

To help in this process it is advisable to compile a number of strong references that attest to your good character, including a reference from your employer explaining your need for a licence in your job. You will also need to complete the Traffic Offenders Intervention Program to demonstrate a willingness to improve future driving behaviour.
If you have a licence issue that you need help with please contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Dan Daley.

On the road again, just can’t wait to get on the road again?

As Willie Nelson famously put it, being on the road is a source of freedom and enjoyment for many people. More than this though, having a licence is crucial for people in rural and regional areas, given the tyranny of distance and lack of public transport alternatives.
Despite the importance of a drivers licence, many people lose it for significant periods of time due to poor behaviour on the roads. Previous legislation in this area meant that any driver who committed three relevant offences within a five year period could be declared a Habitual Traffic Offender (HTO). The effect of HTO declaration was that the Roads and Maritime Services would impose a further five-year licence disqualification on top of any disqualification imposed by the court.
Although the HTO scheme has been abolished since 2017, under the Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW), there are many people who still have years, if not decades of licence disqualification to serve under the old scheme.
All is not lost however, as applications can be made to the Court to quash old HTO declarations under clause 65 of schedule 4 of the Road Transport Act 2013 (NSW).
Such an application will be successful only if:

• a certified copy of the person’s driving record is provided to the Court;
• the offender has served the minimum disqualification period (two or four years depending on the offence);
• the offender has not been convicted of any further serious driving offences; and
• the magistrate determines that “the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person in the special circumstances of the case”.

If you require assistance in relation to licence disqualification or other traffic matters, our team of experienced solicitors at Everingham Solomons can assist you because Helping You is Our Business.

Click here for more information on Dan Daley.

Introducing Dan Daley – Solicitor

I have recently joined Everingham Solomons working in the litigation team.
My professional qualifications include graduating with a Bachelor of Commerce, Bachelor of Laws and a Graduate Diploma in Education from the University of New England. I also hold a Graduate Diploma in Legal Practice through the College of Law. I have been admitted as a Solicitor to the Supreme Court of New South Wales and the High Court of Australia.
Previous to joining Everingham Solomons, I have worked in the finance and education sectors, as well as in other law firms.
Although I have only recently commenced working at Everingham Solomons, my connection to the firm is strong, having been the recipient of the inaugural Sir Adrian Solomons Memorial Law Bursary in 1998. In fact, my sister Laura, who is now also a solicitor, won the same bursary the following year – a “Daley Double” so to speak. Working at Everingham Solomons some twenty odd years after receiving the Bursary completes the circle. It is personally rewarding to work for Everingham Solomons given the support they provided me via the Law Bursary when I was a local high school and university student.
On a personal note, my interests include equestrian pursuits, particularly Australian Stock Horses and polocrosse as well as spending time with my family.
Tamworth is a great place to work and live. I am looking forward to providing excellent legal service as part of the Everingham Solomons team, because Helping You is our Business.

Click here for more information on Dan Daley.