Suppose Johnny has in his possession 6 grams of methamphetamine.
3 grams is the trafficable quantity of methamphetamine. As Johnny has twice that amount, he is deemed to have the drug in his possession for supply, unless he can prove that he had it in his possession for a reason other than supply.
WHAT IS SUPPLY?
Supply has a broad definition and includes:
selling and distributing;
agreeing to supply;
offering to supply;
sending, forwarding, delivering or receiving for supply;
or authorising, directing, causing, permitting or attempting any of those acts or things.
(Drug Misuse and Trafficking Act 1985 (NSW) s3)
WHAT WILL HAPPEN TO JOHNNY?
If Johnny is convicted of supplying a prohibited drug the sentence he receives will be dependent on the range of factors outlined in (s21A of the Crimes Sentencing Procedure Act 1999) and the appropriateness of each sentencing option in holding Johnny accountable for his actions, protecting the community and deterring the commission of similar offences.
The maximum penalty Johnny could face is a fine of 2000 penalty units ($200,000), imprisonment for 15 years, or both.
If you have been charged with a drug related offence the Solicitors at Everingham Solomons can assist you in preparing and presenting your case to obtain the best possible result because Helping You is Our Business.
An Apprehended Violence Order (AVO) is a court order designed to ensure protection from violence, intimidation, harassment and stalking.
The person against whom the order is sought, the defendant, has two options, to consent to the order or to contest the order.
If you chose to consent to an AVO you can do so without admissions. This means that you are not agreeing to or admitting any or all or the particulars of the application. Rather, you are stating that you don’t object to the order being put in place because you are happy to comply with the prohibitions and restrictions sought in the application.
If you choose to contest an AVO, the matter will be listed for hearing and both parties, the applicant and the defendant, will have to provide evidence. The magistrate will then make a determination as to whether the order is warranted and if so, what prohibitions and restrictions on the behavior of the defendant are necessary or desirable to ensure the safety and protection of the applicant.
Once an order has been made by the Court it must be complied with. To knowingly contravene a prohibition or restriction specified in an apprehended violence order is an offence punishable by a maximum fine of $5,500 and or imprisonment for a period of up to 2 years.
Although consenting may often be the most expeditious way to dispose of an AVO, it needs to be remembered that breaching an AVO is a criminal offence.
If you require advice or representation in relation to an AVO matter the experienced solicitors at Everingham Solomons can assist you because Helping You is Our Business.
Under section 110 of the Road Transport Act 2013 it is an offence to:
drive a motor vehicle;
occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion; or
occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle,
with a prescribed concentration of alcohol (PCA) present in breath or blood.
The statutory penalties for PCA offences are as follows:
For a low range offence (reading between 0.05 and 0.08) a maximum fine of $1,100 and a minimum disqualification period of 3 months.
For a mid-range offence (reading between 0.08 and 0.15) a maximum fine of $2,200 imprisonment for a maximum of nine months and a minimum disqualification period of 6 months.
For a high range offence (reading of 0.15 or above) a maximum fine of $3,300 imprisonment for a maximum of 18 months, a minimum disqualification period of 12 months and minimum interlock period of 24 months.
The penalty imposed by the Court will vary depending on a range of factors, including but not limited to, criminal history/traffic record, the considerations outlined in s21A of the Crimes Sentencing Procedure Act 1999, and the appropriateness of other sentencing options.
If you require advice or representation regarding a PCA offence the experienced solicitors at Everingham Solomons can assist you because Helping You is Our Business.
There are criminal penalties and civil remedies for defamation and the laws apply to all forms of communication, including social media.
Under s529(3) of the Crimes Act 1900, it is an offence to publish, without lawful excuse, a matter defamatory to another person knowing the matter to be false, and with intent to cause serious harm, or being reckless as to whether such harm has been caused.
The offence of defamation carries a maximum penalty of 3 years imprisonment.
In accordance with the Defamation Act 2005 defamation is a tort for which damages can be recovered. As indicated in the case of Mickle v Farley in which the NSW District Court awarded damages in the sum of $105,000 for defamatory comments posted on a social medial site, you must think before you post.
Contrary to popular belief freedom of speech and freedom of expression does not give you immunity to make unfounded or baseless accusations or allegations.
For example;
you cannot vindicate someone’s reputation
ridicule
or accuse someone of committing a crime.
The things you post on social media must either be true, or a comment based on fact.
If you need advice in relation to a defamation matter, the experienced solicitors at Everingham Solomons can assist you because Helping You is Our Business.
Recently, the High Court handed down a ruling in favour of Roseanne Beckett, a woman who had been wrongfully arrested, convicted and imprisoned for 10 years for the alleged attempted murder of her husband. After protesting her innocence for 26 years, Ms Beckett was awarded $2.3 million in damages to be paid by the state of NSW for ‘malicious prosecution’. In fact, she had been framed by a dodgy detective with a vendetta against her family. Although this is an extreme case, it begs the question: do you know your rights when you are arrested?
The police can arrest you if:
you are committing an offence or
they have reasonable grounds to suspect you have committed an offence
you are breaching the peace
you have breached any bail conditions you may have
a warrant has been issued for your arrest or
you are to be served with an Apprehended Violence Order.
However, the police officer arresting you should:
(1) tell you that you are under arrest
(2) give you reasons why you are being arrested and
(3) tell you his or her name and place of duty.
In 2014, the Law Enforcement (Powers and Responsibilities) Act 2002 was amended so that if a police officer does not provide you with their name and place of duty their arrest will still be lawful, however if you ask a police officer for the information and they do not provide it, your arrest will not be lawful.
Once at the police station, the Police will inform you of your rights, and this includes your right to have a solicitor or other person present. Generally, when being questioned you have a right to silence, although in most circumstances you will need to provide your name and address and in some circumstances proof of age or, in the case of traffic offences, your driver’s licence. Aside from this, however, you are not obliged to answer any questions. If you are unsure, your best option is to request that the police wait to question you until you can seek legal advice.
At Everingham Solomons Solicitors we have the expertise and experience to assist you because Helping You is Our Business.
If you hold a judgement against an individual a Garnishee Order is an option to recover your judgment debt. This is an Order from the court that requires monies to be taken from a judgment debtor’s bank accounts, wages or from someone else who holds money on behalf of the judgment debtor.
For example a real estate agent may be collecting rent on behalf of a judgment debtor. In those circumstances a garnishee order would require the real estate agent to deduct monies held on behalf of the judgment debtor.
In the event that an institution or person that is holding money on behalf of the judgment debtor, fails to deduct money in accordance with a garnishee order then that person or institution may become liable for part or whole of the judgment.
The more information provided about the judgment debtor the more effective a creditor can be at recovery. Information such as which bank the debtor holds accounts at, who is their employer or what real estate agent they use, allows a more precise drafting of any Garnishee Order and with it better prospects of success. The filing fee for a Garnishee Order in the Local Court is $78 for an individual creditor or $156 for a company creditor.
A downfall of the Garnishee Order is if there is no monies available at the time the Order is received by the institution or individual then no monies can be deducted. Timing is important and it can sometimes come down to luck.
A Garnishee Order can be an efficient and cost effective way of recovering monies owed under a judgment. If you hold a judgment and wish to enforce it you should contact a solicitor to discuss your options.
At Everingham Solomons, our dispute resolution team is committed to providing the most time and cost efficient outcome when pursuing enforcement of judgments because Helping You is Our Business.
Stalking, harassment and intimidation are against the law but there appears to be a commonly held misconception regarding what those words actually mean.
The definition of stalking is: intentionally and repeatedly following, watching or contacting another person with the intention of causing that person to fear physical or mental harm.
The definition of harassment is: persistent conduct designed to torment, threaten, intimidate or cause fear of violence.
The definition of intimidation is: repeated threatening behaviour that causes reasonable apprehension of injury, violence or damage to property.
These three definitions encompass a wide range of actions and in turn impose a standard that defines criminality.
For example without the presence of one of more of the above elements, someone frequenting a public place for a legitimate purpose is not stalking; someone you dislike sporadically driving past your house on the way to their destination is not intimidation; and someone acting in a manner in which you find irritating or annoying is not harassment. However, if a person acts in a threatening manner intending to cause fear, or with the knowledge that their actions would cause a reasonable person in the same situation to fear for their safety, that person has committed an offence.
Stalking, intimidation and harassment are serious offences. If after considering the definitions of what constitutes stalking, harassment and intimidation you have any concerns that you are the victim of such conduct, or alternatively if you are being unjustly accused of such conduct, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
This ANZAC Day you can play Two-Up in the region safe in the knowledge that you are not breaking the law.
In June 1998 the Minister for Racing introduced into the NSW Parliament ‘The Gambling (Two-Up) Act 1998(NSW)’.
This Act allows people in NSW to play two-up on ANZAC Day or any other designated commemorative day. Other designated Commemorative Days include Victory in the Pacific (15 August) and Remembrance Day (11 November) after 12.00 noon (presumably to ensure that the minute silence is not interrupted by exuberant punters).
If however you travel north into Queensland and join a game of two-up you will be breaking that State’s laws.
Insofar as the history of the law and two-up is concerned, prior to 1989 it was illegal to play two-up in NSW. In that year the Gaming & Betting (Two-Up) Amendment Act allowed two-up to be played on ANZAC Day. In 1992 there was a further amendment to allow two-up to be played all year round in Broken Hill. When the 1998 Act was introduced section 9 of that Act provides that certain areas in Broken Hill may hold games of two-up on the basis that it is organised by Council or the Broken Hill Council has approved the venue for the game to be held.
The 1998 Act requires that the games that are played on ANZAC Day are on a not for profit basis or if it is in a club no entrance fee is to be charged. Clubs that host the game and receive some monies must donate all proceeds to charity.
So this ANZAC Day, for all those taking a plunge in the region, good luck and come in spinner!
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
On 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.
The Prosecution managed to have admitted into evidence, over the objection of the accused, the evidence of a Professor of Anatomy, Maciej Henneberg from the University of Adelaide.
Professor Henneberg gave evidence from viewing the CCTV footage and also seeing photographs of the accused when he was in a Police cell, that included that there were eight features that he could see from the CCTV footage that included that he was adult male, had a skinny body build, medium body height, short hair and the shape of his head. The Professor used medical terms to describe the above characteristics. The Professor came to the view that the accused shared those eight characteristics. The accused asserted that the Professor’s opinion was not expert evidence, but rather an opinion that anybody could have made.
The High Court held that the evidence of Professor Henneberg was not based wholly or substantially on his knowledge of anatomy and that his opinion of the characteristics of the offender was based on his subjective impression of what he viewed on the video and as such was not expert evidence and not admissible.
On that basis the appeal was upheld and a new trial was ordered, which will be without the evidence of Professor Henneberg.
If we can be of assistance, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
Last 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. There was however evidence that Mr Fitzgerald had, during the course of the day, been in contact with other persons that were convicted of the murder and had been also in the same room as the didgeridoo.
Expert witnesses said that insofar as the DNA evidence was concerned, that it was possible that it was transferred from a person that Mr Fitzgerald had been with during the course of the day or, it was also possible that Mr Fitzgerald left it on the didgeridoo earlier in the day.
On this basis the High Court held that it could not be established, beyond reasonable doubt, that Mr Fitzgerald was present at and participated in the murder, and a conviction based solely on DNA evidence, with these particular facts was not sound.
There was a similar case in Germany that was known as the Phantom of Heilbronn or the Woman without a Face. Between 1993 and 2007 there was DNA evidence of a lady found at numerous crime scenes which included six murders. The Police thought that they were dealing with a female criminal mastermind that had committed murders, burglaries and armed robberies across Austria, France and Germany.
It turned out that the DNA was that of a lady that worked in the cotton bud factory in Bavaria that manufactured the cotton buds that the Police were using and they had not been properly sterilised before being distributed by the factory.
Next week I will talk about another case that involves expert evidence.
If we can be of assistance, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
Suppose Johnny has in his possession 6 grams of methamphetamine.
