There 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.
For full licence holders, the RMS will likely suspend your licence if you are driving faster than 30km/hour over the speed limit. This is one type of decision that can be appealed in the Local Court.
If you are a P-plater the RMS will also suspend your licence if you are travelling faster than 30km/hour above the speed limit, but they will also suspend your licence if you exceed your demerit points quota.
A P-plater has as few as four demerit points, which can easily be exceeded by a relatively minor offence during a double demerit point period.
In the country being able to drive is very important. Having your licence suspended can have a devastating effect on your employment and on your family. In certain circumstances it may be well worthwhile appealing the RMS’s decision to suspend your licence.
If you would like any further advice about licence appeals or any other court matter, please contact Everingham Solomons becauseHelping You is Our Business.
The 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. With that in mind, it is useful to look at exactly what courts are entitled to consider when embarking upon a sentencing exercise.
The starting point comes from section 3A of the Crimes (Sentencing Procedure) Act 1999. That section guides the court by setting out the purposes for which a court may impose a sentence on an offender. They are:
to ensure the offender is adequately punished;
to prevent crime by deterring the offender and other persons from committing similar offences;
to protect the community from the offender;
to promote the rehabilitation of the offender;
to make the offender accountable for his actions;
to denounce the conduct of the offender; and
to recognize the harm done to the victim of the crime and the community.
In applying the purposes above, section 21A of the Act says that the court is to take into account the aggravating and mitigating circumstances of the offence, and any other objective or subjective factors that affect the relative seriousness of the offence.
The sort of things that aggravate an offence include the offender’s record for similar offences, the level of planning that went into the offence, the harm caused by the offence, the vulnerability of the victim and the offender’s personal benefit arising from the offence.
The sort of things that tends to mitigate an offence include provocation or duress of the offender, the offender’s good character, the offender’s prospects of rehabilitation and the remorse shown by the offender.
In most circumstances, the court is also bound to take into account an offender’s early plea of guilty as a demonstration that the offender has accepted responsibility for the crime.
If you have questions about a criminal matter, please don’t hesitate to contact Everingham Solomons, because Helping You is Our Business.
Federal 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. An example of a statement of fact is to say that a car is 4 metres long.
Where someone expresses an opinion, the law on misleading and deceptive conduct is less clear. An example of an opinion would be to say that a car is nice, or that a car is safe. Those statements are not statements of fact. Two people could reasonably come to differing views on the car based on the information they have and the way that any information is applied to the person’s subjective standards.
Courts have said that a statement of opinion can be misleading when there are no grounds for expressing the opinion. For example if a person was to say that a car was safe, when they in fact knew that the brakes did not work.
Advertising puffery is when sellers describe items without reference to any particular standard. For example to say that a car is nice. How nice a car might be to an individual probably depends on what they currently drive and cannot easily be compared to any global standard. Generally, advertising puff is unlikely to be considered misleading or deceptive.
Silence is rarely considered to be misleading or deceptive. Staying silent is no act at all, and therefore generally, the courts have said that remaining silent does not satisfy the requirement of conduct under section 18 of the ACL . There are however, three main exceptions which apply to that general rule.
Firstly, where there is a reasonable expectation that the matter not announced should be disclosed.
Secondly, where a half truth is told. For example to say a car is 4 metres long, without going on to say that the reason for the length of the car is because the bumper bar is partly detached and is dragging behind it.
Thirdly where a representation about a factual matter is initially made, but the state of the factual matter subsequently changes, and there is an obligation to tell of the change in circumstances.
If you think you have been the subject of misleading and deceptive conduct, please contact Everingham Solomons, because Helping You is Our Business.
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. Her husband told Mr Hay that it was time to go. Mr Hay, although not at all well, got up and left. He was found dead in a nearby toilet block the next day.
Mrs Burns was charged with, and stood her trial for manslaughter in the District Court. She was convicted. She appealed. The NSW Court of Criminal Appeal upheld her conviction. Right result? Wrong. In September last year, the High Court quashed the conviction. The Court found that the act of supplying the methadone, whilst illegal, was not dangerous. The risk of injury arose when the drug was consumed. The cause of death was the consumption of the drug not the supply. Further, the Court said that a failure to help where help would have saved the life of another can be manslaughter but only within confined categories requiring particular kinds of relationship. The relationship of drug dealer and customer is not one of those relationships.
Mrs Burns walked free although His Honour Justice Heydon, in the minority on the point, said that she should be sent for a new trial to determine whether she helped Mr Hay inject, which, in His Honour’s opinion, might constitute the dangerous act causing death.
What a piece of work is the needle? Drug addiction rendered Mrs Burns’ soul as dead as Hamlet’s father and her heart as empty as a scarecrow’s pockets.
If you have a case for the High Court or any other Court, the litigation team at Everingham Solomons can help you because Helping You is Our Business.
Sexting 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. Both the person who sent the image and the person who received it, even though it may not have been requested, would be charged.
What’s more the person who receives it would also be placed on the sex offenders’ registry. It is immaterial if the person who received it was 15 or 16 years old. Once a person is on the sex offenders’ registry you are required to tell the Police where you live, where you work and in short where you are at all times, including, if you go on holidays.
An example of this might be if a 15 year old girl takes a provocative photograph of herself and forwards that on to her 15 year old boyfriend. One of the parents seeing the image then alerts the Police. Both children would be charged and the receiver of the image put on the sex offenders registry. The sex offenders registry is reserved for pedophiles not sex offenders. Once on the sex offenders registry working in a school or coaching a soccer team on the weekend would be impossible.
In this digital new age where only five years ago texting didn’t exist, the grown ups are trying very hard to make the laws and grapple with new technology, however the consequences are not always as expected.
If you should have any concerns in respect to criminal matters, we can help because Helping You is Our Business.
If 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.
The debtor then has the option to file a defence, which sets out there reasoning as to why the money is not owed, or why the amount owed is less than the amount claimed.
The debtor has 28 days to file a defence. If a defence is not filed with 28 days, the person owed the money (‘plaintiff’), can ask that the court make a judgment in their favour without hearing from the debtor.
If there are problems with the drafting of a statement of claim, or a defence, those problems can later hinder your case when evidence is being heard.
If the debtor responds by filing a defence, the court will try to assist the parties to come to a compromised agreement. If that is not possible the matter is given a further court date at which point the parties will have a chance to tell their stories and explain their claim or defence.
In the small claims division, both parties will generally be ordered by the court to make written statements of their version of events and to give those statements to the other party. Usually the court will then determine the dispute based on the written statements.
The preparation of written statements is a crucial step in the litigation process and it is important that all the legal elements of the claim are made out in that evidence. The failure to mention one small event or discussion can often be the difference between winning and losing the case.
Despite the importance of the preparing well drafted written statements, the hearing itself is conducted with as little formality and does not require strict compliance with the rules of evidence.
If you would like more advice about debt recovery and small claims please contact us because at Everingham Solomons Helping You is Our Business.
The 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.
Where the offence is a single act, such as an assault, the time that the offence was alleged to be committed is straightforward.
However, where the offence is a continuous offence, meaning that it can be discontinued at will by the offender, (e.g. keeping stolen goods in custody) the offence will be taken to be committed just before the illegal act was discontinued.
The Criminal Procedure Act states that proceedings are commenced by the police or a prosecuting authority when the Court Attendance Notice (‘CAN)’ is filed in the court registry.
Often, when a person is arrested and charged for a minor offence, they are issued an on the spot or field CAN. The issuing of this notice does not however, commence the proceedings for the purpose of the Criminal Procedure Act. It may be the case that the CAN is not filed in the court registry until some time later.
In other instances, the police or prosecuting authority might spend a substantial amount of time investigating an offence before charging anyone. If this is the case it is important to ensure that any charge has been laid within the time limits set by the Criminal Procedure Act.
If you have any questions relating to summary offences please do not hesitate to contact Everingham Solomons Solicitors because Helping You is Our Business.
An 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.
An AVO is not of itself a criminal charge which means that if you have an AVO placed against you, it will not be recorded on your criminal convictions history.
However, if an AVO is placed against you and you then break the orders made by the AVO, you will be charged with a criminal offence and if convicted, that offence will appear on your criminal record. For this reason it is important that you have a clear understanding of your obligations under an AVO.
If you are the subject of an AVO application, you can either dispute that your behaviour warrants the making of an AVO, or you can agree to the AVO being put in place.
Becoming the subject of an AVO can have serious consequences when it comes to your employability. Many industries, are unable or unwilling to employ people that are named as a defendant on an AVO. Having an AVO placed against your name can also prevent you from holding a firearms licence as well as many other security licences and the like.
For this reason it is extremely important that you consult with a solicitor if someone takes out an AVO against you. Similarly, if you fear violence and hold concerns for your personal safety because of the actions of another, a solicitor can advise you on the options and best approach to apply for an AVO.
Should you have any further questions about AVOs please do not hesitate to contact one of our solicitors, because at Everingham Solomons, Helping You is Our Business.
There is a great deal of illegal downloading of copyright material via the internet worldwide. It has been going on for years. The copyright owners are in a terrific flap about it. They call it “theft”. There will be a great deal less of it, in Australia at least, if the copyright owners are successful in their appeal to the High Court in the case of Roadshow Films Pty Limited v iiNet Limited.
Films and other works the subject of copyright can be downloaded through unauthorised file sharing on the BIT Torrent system, the operation of which is pretty technical but the effect of which is that anyone with a computer and access to the internet can download and enjoy all manner of copyright protected works without paying a cent other than the subscription fee to the internet service provider.
Copyright owners are extremely unhappy about illegal downloading. This is understandable. Hollywood production houses pay millions of dollars for the rights to eg the latest Harry Potter and millions more to turn those rights into a film and bring it to the screen only to lose what countless 14 year olds would have paid to watch the movie at the cinema if they had not downloaded it illegally and watched it at home on their parents’ flat screen, possibly with surround sound, while eating popcorn and a packet of Jaffas.
In Roadshow Films, the Australian Federation Against Copyright Theft argued that iiNet was liable for the copyright infringement by its customers when they illegally downloaded films because iiNet had authorised the infringement. The complicated fortress of copyright and related legislation prohibits authorising infringement. iiNet knew its services were being used for downloading and did nothing to stop it by terminating accounts that had been identified to it. iiNet argued that it did not give express authority or invite its customers to do acts in breach of copyright. iiNet’s argument has been successful so far but the case has gone on appeal from the full bench of the Federal Court to the High Court. Plainly, there is a lot of money at stake for the copyright owners.
If the High Court makes internet service providers liable for illegal downloading, it will come to a crashing halt. If not, rumour has it that pirate hunters for the copyright owners can use the aptly named “bot crawler” to sneak through the back doors of illegal downloaders’ computers to catch them at it. Some may think it unacceptable to commit a crime to detect a crime. Watch this space because Helping You is Our Business.
With the festive season upon us it is important to be mindful of the laws relating to drink driving.
With 70 percent of drink drivers convicted in the local court having no previous criminal history, it seems clear that this is an offence which often catches law abiding people off guard.
It is important to remember that the limits of blood alcohol content (BAC) differ for different classes of driver.
The limit for Learner and Provisional drivers is zero. For drivers of public and heavy vehicles the BAC limit is 0.02. For ordinary licence holders the limit is 0.05.
Passengers acting as ‘supervisors’ to a learner driver can also be charged with exceeding the prescribed limit of alcohol content whilst acting as a supervisor. Being full licence holders, the supervising passenger must be at a BAC below 0.05. Such a case received some press coverage recently.
One mistake which often causes people to come before the local Magistrate, is a failure to monitor the number of standard drinks that have been consumed over a period. It is quite common for drivers to be charged with exceeding the prescribed limit of blood alcohol many hours or even the day after drinking.
The general rule of thumb to follow is that the body cleanses itself of one ‘standard drink’ each hour, although this is subject to a number of factors including the drinkers age, sex, weight and the like.
When calculating how long it will be before you are able to drive it is important to remember that each glass consumed by the drinker is not necessarily one ‘standard drink’. A ‘standard drink’ in Australia is defined as 12.5ml of pure alcohol. Many commercialized products hold more than one ‘standard drink’ in a single serving, so it is important to take note of the number of ‘standard drinks’ consumed and not, the number of cans or glasses of the beverage.
Take for example one ‘stubbie’ of full strength beer which typically contains 17.5 ml of alcohol or 1.4 standard drinks, but can vary depending on the brand and type of beer. Although a drinker might consume only two stubbies over a one hour period and expect to be able to legally drive, in fact they have consumed almost three ‘standard drinks’ and could be well above the legal limit of alcohol prescribed for driving.
It is important to note that the above calculations are general in nature. The way in which alcohol is absorbed by the body varies greatly between individuals and the advice provided above should not be relied on to calculate or estimate your BAC. The most certain way to avoid drink driving offences is to refrain from driving if you have consumed any alcohol whatsoever.
If you have any enquiries relating to drink driving please call Everingham Solomons Solicitors because Helping You is Our Business.
There 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.
