Expert Evidence

MKG-newOn 13 August 2014 the High Court handed down a decision in a case called Honeysett v The Queen [2014] HCA 29.

In court cases evidence is not admissible unless it is based on fact.  There is no room for opinions.  The exception to this rule is expert evidence that allows evidence of certain persons that have specialised knowledge to be admitted.

Mr Honeysett was convicted of armed robbery at the Narabeen Sands Hotel based on the opinion of expert evidence.  There was CCTV footage of the robbery that showed three offenders that each had on long dark clothing and disguised their faces with ‘white pillows or T-shirts wrapped around’ their faces.… Read More

DNA Evidence

MKG-newLast week on 13 August 2014 the High Court handed down two decisions in criminal matters, one dealing with expert evidence and the admissibility of that evidence, and the other on a similar topic, DNA evidence.

In respect to DNA evidence this case was called Fitzgerald v The Queen [2014] HCA28, and involved the murder of a victim where a number of people were involved. The only evidence that tied Mr Fitzgerald to the scene was his DNA evidence that was on a didgeridoo. There were no witnesses to put him at the scene of the crime or any other evidence apart from this one piece of DNA.… Read More

Appealing a Driver’s Licence Suspension

CCThere are a few circumstances in which the Roads and Maritime Service (RMS), or Road Transport Authority as they used to be called, can decide to suspend your driver’s licence.

These are the types of suspensions in which you receive a letter from the RMS in the mail, not the type where your licence is confiscated by a police officer.

Sometimes the decision of the RMS may appear to you to be harsh however, there may be good grounds for you to apply to the court to overturn it and have your licence suspension lifted.

The relevant provisions differentiate between provisional drivers, or P-platers and full licence holders.… Read More

Criminal Sentencing

CCThe last number of months has seen the media filled with a number of high profile criminal cases which has in turn generated a great deal of media attention and public discussion about the court’s effectiveness in dealing with criminals.

In criminal matters the court has two essential tasks.  The first is concluding whether or not the defendant is guilty.  If he or she is so found to be, the second task is to decide what sentence is appropriate in all of the circumstances.

It often appears as though the court’s second task, the exercise of sentencing discretion, is the one that draws the most public attention. … Read More

Misleading and Deceptive Conduct

CCFederal legislation provides protection for people that are misled in business.  Section 18 of the Australian Consumer Law says that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

The courts have spent much time in considering what sort of conduct is able to be categorised as misleading or deceptive or conduct likely to mislead or deceive.

Generally to be misleading there must be a statement made about a fact, and the statement must be false.  To make a statement of fact is to refer to an objective feature which is not reasonably disputable. … Read More

The Needle and the Damage Done

The law is that a person who causes the death of another by an illegal and dangerous act or by criminal negligence is guilty of manslaughter.

On 9 February 2007, David Hay died in Belmore, Sydney after taking methadone supplied to him by a woman called Natalie Burns. She or her husband or both may have helped him inject.  A few hours before, Mr Hay had taken olanzapine and cannabis. Methadone is very dangerous when taken with other drugs. Mr Hay showed signs of an adverse reaction to the methadone shortly after taking it and Mrs Burns, rather than helping him in any way, told her husband to throw him out of her flat. … Read More

Youth Sexting – The Legal Implications

MKG-newSexting refers to the sending of sexually explicit material by way of a phone or some other electronic means.

Whilst sometimes it may be malicious, often it may be an attempt at humour or where somebody has not thought through the consequences of their actions.  (Which teenagers do not have a mortgage on.)

It is an offence to distribute the images and store the images.  The criminal law implicates both the sender and the receiver of the images and whether there is consent by both parties is immaterial.

For instance a person who is under 16 takes a photograph of themselves and sends it to another person. … Read More

Small Claims in the Local Court

CCIf you are owed money by someone then you have the right and opportunity to recover that money through the court system.

If the amount of money owing is less than $10,000 the claim will generally be heard in the small claims division of the local court, which uses simplified rules to quickly and efficiently resolve the matter.

The process is initiated when a statement of claim is filed in the court and then served on the party that owes the money (‘debtor’).  It is important that the statement of claim be drafted competently as it provides to the debtor an outline of the claim that they must meet.… Read More

Is your crime out of time?

CCThe Criminal Procedure Acts sets strict time limits in which a person must be charged for a summary offence.

Summary offences are those crimes of lesser severity which must be finalized in a local court by a magistrate.  Summary offences have a maximum penalty of two years imprisonment or less.

If a person is accused of a summary offence, the police must commence their proceedings against the accused person within six months of the date that the offence was said to have been committed.  There are however exceptions to this general rule.

This means that two dates become critical.  The first is the time of the alleged offence and the second is the time that the proceedings are commenced.… Read More

AVOs: What do they all mean?

CCAn Apprehended Violence Order (“AVO”) is an order of the court that restricts the behaviour of the person against whom the order is made.

A court has the power to make an AVO against someone, if the applicant or protected person has reasonable grounds to fear and in fact fears violence, intimidation or stalking.

All AVOs have a condition that the person against whom the order is made (“the defendant”) must not assault, molest, harass, threaten, stalk, intimidate or otherwise interfere with the protected person.  In addition, the applicant can apply to the court for additional orders, such as those that restrict the defendant from approaching or going within a certain distance of the protected person.… Read More