Criminal Law FAQs


Author(s):LAC Lawyers
Publish Date: April 26, 2008

Welcome to LAC Lawyers Criminal Law Frequently Asked Questions page. We have put together some questions that we are often asked by potential clients about issues relating to Criminal Law. For ease of reference the FAQs have been broken up in to sections so clients can browse as they wish. Feel free to read through the following sections:

  • AVOs
  • Assault
  • Drink Driving
  • Drug Matters
  • Speeding
  • General

Additional information about our Criminal Law services can be found on our Criminal Law Services Page.

Apprehended Violence Orders (AVOs) (more info)

Q. A person has made a number of false allegations to the police against me and I am now subject to an interim AVO requiring me to attend the local court. What can I do and is it serious.

A. Basically there are three options:

  • withdrawal of the complaint and the giving of undertakings;
  • consenting to the AVO but without admissions;
  • a contested hearing known as a Show Cause Hearing.

AVOs have potential career implications with regard to obtaining and/or retaining of employment in a field involving contact with children. In serious cases it has the potential to disqualify some people from employment in their chosen field.

Q. A person has made a number of false accusations against me to the police culminating in an AVO being taken out against me. Can I have this person charged for making false accusations?

A. No, as the NSW Crimes Act only operates on offences and an AVO is not an offence.

Q. Recently I was involved in a domestic assault on my girlfriend who called the police and charges were laid against me. She now wants to withdraw them. What should I do?

A. There is absolutely nothing you can do to have the charges withdrawn. She complained of the assault which she was entitled to do and the fact that she now regrets her action in reporting it to the police does not end it. The police are entitled to prosecute the matter and if she is an unwilling party they could charge her and if she changes her story she could be similarly charged and if this is carried through to the courtroom she could be charged with perjury.

 Q. I am in breach of an AVO and have been arrested. Is this a serious matter?

A. Yes. Any form of apprehended violence order needs to be abided by otherwise you can be arrested and held without bail. The court considers these matters very seriously as you are in breach of court orders and depending on the seriousness of it may receive a custodial sentence.

Q. I got involved in a fight with my boyfriend whilst we were both under the influence of intoxicating liquor and as a result I reported the matter to the local police station who attended the premises and asked me to provide them with a signed statement which I did. Unfortunately my boyfriend has to appear in court with respect to an APVO my concern being that we were both at fault and I can’t really recall what happened because of my level of intoxication. What can I do in the circumstances?

A. Unfortunately you place yourself in a difficult position. First you call the police and they responded and obtained your signed statement. Next you have either had a change of mind or heart or you really can’t remember what occurred. The police are within their rights to insist that you attend court and if you change your evidence then they can charge you with creating a public mischief or if you give evidence of a contrary nature then you may be charged with perjury. The lesson is, don’t cry wolf unless you mean it.

Q. If I am sitting in a car under the influence of intoxicating liquor and the police apprehend me can they charge me with a drink driving offence?

A. Yes. All they have to do is have a reasonable suspicion that you are under the influence of intoxicating liquor or a drug. In these circumstances it is always best to obtain advice and representation from a legal practitioner who can always put your circumstances in the best possible light whether you are defending a matter or pleading guilty.

Q. I was recently charged with low range PCA which is of particular concern to me as I am a pilot. If I am convicted I will not only lose my driver’s licence but my pilot’s licence and therefore my livelihood. Can you do anything for me?

A. Yes. Provided you have either a clean or a reasonable driving record where no prior drink driving offence was involved then you stand a reasonable chance of being able to achieve a section 10 although if granted there will be a loss of points.

Q. I am currently in breach of an AVO. The police came to my home, arrested me and I am currently in the metropolitan remand centre where I have been refused bail. Is this right?

A. Yes. You are in breach of court orders and therefore you have been refused bail as the court is not prepared to take the risk that you may reoffend. In your circumstances you need to obtain competent legal advice and representation otherwise the court is at liberty to deal with you severely. 

Assault (more info)

Q. What are my rights where I have been charged by the police for assault when a fight broke out in the street when I was just a passer-by? 

A.  Some of these matters may be successfully defended provided there is evidence to substantiate that no assault took place.  One of the best ways of doing this in a public place is to find out whether or not there were any security cameras operating at the time and whether the film is available to be viewed to prove what happened  in the circumstances.  Often the police refuse to release these tapes and they have to be viewed in order to ascertain exactly what transpired provided the tape shows that no assault took place and this, in conjunction with proper cross-examination should lead to the charges being dismissed.

Q. Do I need a lawyer if I am involved in fight and seriously injure a person?

A. Yes.  There are a number of offences you may be charged with under NSW law. They may fall under section 59 or section 35 of the NSW Crimes Act for example. One offence may be assault occasioning actual bodily harm and the other maliciously inflicting grievous bodily harm. The second is the most serious being a T1 offence. Imprisonment is a real possibility with the more serious matter.

Q. I have been falsely accused of sexual assault and asked to attend a police interview. What should I do?

A. When police ask you to attend an interview their intention is to obtain a statement following which charges are often laid. Here you should exercise your right to silence until you receive proper legal advice and under no circumstances should you attend the police station without your lawyer. Often the police will charge you, however they do not have the benefit of any admissions you would have made if you had been cautioned. This is extremely important as it allows your case to be presented in the best possible light as all they have is information obtained from the other side.

Q. Is intoxication a defence when I am charged with assault?

A. In cases of general intent no, but under section 428C of the Crimes Act 1900 NSW, self-induced intoxication may be a defence with offences of specific intent.

Q. My son has been charged with common assault, can you help?

A. Yes. Common assault is the least serious of the assault charges. It is a summary offence and is dealt with in the Local Court. It is highly unlikely that your son will be given a custodial sentence unless he has a serious criminal record of assault.

Q. I was recently involved in a fight when I went to my brother’s aid who was attacked in the street. The police was called and as I was trying to assist him as he suffers from a medical condition they started pushing me around and I retaliated. I have been charged with assault and resisting arrest. Can you help me?

A. An assault on police whether in or out of uniform is a very serious matter and can involve a custodial sentence of up to five years. Your circumstances are such that there appear to be substantial mitigating factors which need to be brought to the attention of the police as they were in fact inferring your ability to attend your brother provided you can prove that he suffers from some form of serious medical condition.

Q. I was recently charged with sexual assault on my ex-defacto partner because I put my hand between her thighs and touched her inappropriately. Am I in serious trouble and is there anything you can do for me?

A. Yes. The matter with which you have been charged is extremely serious and carries a custodial sentence. As in all of these cases what you need to be able to do is to provide us with all the relevant information so we can raise a spirited defence on your behalf. Although sexual assault of any type is serious it is far better that the extent of your involvement is limited to touching rather than to penetration otherwise you may well be sentenced to a term of imprisonment for aggravated sexual assault for up to 20 years. Where the sexual assault does not amount to aggravated sexual assault the maximum penalty is normally 14 years and carries a standard non-parole period of 7 years. An attempt to commit the offence earns the same penalty as the offence itself.

Q. I have just ended a short term relationship with my former girlfriend who is threatening that if I do not return to her she will report me to the police saying that I sexually assaulted her?

A. This situation is not uncommon and involves both males and females alike. Irrespective of gender if you are blackmailed by someone to return to a relationship which you have terminated then do not hesitate to approach your lawyer and have them contact the police to ensure that you are adequately protected.

Q. I was recently at a sporting event and my conduct was a bit untidy. As a result I said some derogatory things about one of the teams playing and unfortunately I was sitting amongst a lot of their supporters. Apparently they called the police. Whilst I was standing up cheering I felt an arm on my shoulder which I attempted to shrug off. The next thing I knew I was being wrestled to the ground by police and taken to a nearby police station where I was subsequently charged. The charges included - resisting arrest and striking a policeman whilst on duty. Is this serious?

A. Yes. Unfortunately resisting arrest and striking a police office in the performance of his duties carries an extended gaol term. In your case the matter needs to be properly explained to the court to mitigate your sentence.

Q. I am a young person who has had a AVO taken out against me as it is alleged that I have had a sexual relationship with a minor. What do I do in the circumstances?

A. You will need to obtain the services of a competent criminal lawyer to aggressively defend you with respect to the AVO. Under no circumstances whatsoever should you speak to the police given the gravity of the allegations against you and rely upon your right to silence. If the police call on you then you should refer them to your lawyer and if arrested the police should give you the opportunity to contact them prior to being interviewed. In all these cases it is absolutely imperative that you be properly represented and say nothing to anybody in any context whatsoever about this matter. The success or otherwise of these types of cases often depend upon whether you have made admissions including what other evidence you have furnished to the police which provides them with an opportunity to obtain further information against you.

Q. Recently I was charged with sexual assault by my ex-wife who suffers from mental illness. She has a history of bizarre behavioural problems but despite this the police would not listen. What should I do?

A. Any form of sexual assault is a serious matter which can lead to a long term of imprisonment. Under no circumstances should you make any admissions to the police thereby exercising your right to silence. Given the seriousness of the allegation you should retain a competent criminal lawyer who can assist you to deal with this matter. Fortunately you will be put to unnecessary expense and unless the police have acted maliciously the costs to defend yourself are not recoverable.

Q. I lent some money to a friend who was in financial trouble on strict terms and conditions about repayment. Subsequently he defaulted and I continued to discuss the matter with him until he indicated he wasn’t going to pay me back. During the course of discussions it was agreed I would visit him at his home to ascertain what could be done to remedy the situation. I attended his home and after much discussion a fight broke out which led to him being hospitalised. What should I do?

A. Given the serious nature of what happened you should immediately retain a competent criminal lawyer to assist you. Serious assault cases can lead to extended periods of imprisonment if there are no mitigating circumstances.

Drink Driving or PCA Matters (more info)

Q. Recently I was charged with high-range PCA; it is my first offence; I am 20 yo and I only recently obtained my full licence. What can you do for me?

A. Obviously the court is not going to be impressed by the fact that you have been charged with a high range PCA given your age and the circumstances on the night in question. Where you have been charged with a high range PCA you may be disqualified from driving from anywhere between 12 months to three years together with a fine of up to $3,300 and imprisonment for 18 months. Given the seriousness of the matter you need to retain proper legal representation to mitigate the likely penalties to achieve the best result in the circumstances. 

Q. I was recently charged with high range PCA and don’t understand how this occurred as I only had two drinks on the particular night and am wondering whether my medication could have influenced the reading?

A. There are certain types of medication which can influence blood alcohol concentrations or readings which are obtained as a result. Unfortunately a certain amount of scientific evidence has to be produced and this is not cheap. Where a driver’s licence is essential for an individual’s ability to maintain their employment or business then of course this should be properly investigated to give you the best possible chance of properly defending the matter.

Q. I have recently been charged with my second drink driving offence within the last five years and am concerned that the loss of my licence will cause me to lose my business. Is there anything you can do for me?

A. Yes. Unfortunately you will lose your licence for a period and there is no such thing as a restricted licence allowing you to drive to and from work or during the course of employment any more. Drink driving offences are treated as serious and although in some contexts Section 10 may be available to the offender it would not be in your case. What you need to do is to mitigate the penalties to receive the minimum with the least disruption to your business.

Q. I am 40 years old and involved in sales and I have recently been charged for the second time with high range PCA. What should I do?

A. The courts do not like drink-driving offences and more so where they are high range PCA. Where this type of offence has been repeated within a period of five years then the penalties are severe involving disqualification, fine and/or imprisonment. In all such cases proper legal advice should be obtained in order to mitigate the sentence and questions of financial hardship associated with losing your licence need to be ventilated with the court to obtain consideration.

Q. Do courts take into account a prior drink driving record and does it have any appreciable effect on the sentence handed down?

A. In NSW a prior drink driving offence within a period of five years has an appreciable effect on the sentence imposed by any court. For a low range PCA for a first offender there is an automatic minimum disqualification period of three months apart from the question of fines or imprisonment. In the case of a second offence committed within a five year period there is an automatic minimum disqualification period of six months apart from the questions of fine and imprisonment once again. The lesson is, if you have been caught once for drink driving don’t get caught again irrespective of whether the courts are only meant to take a prior offence into account within a five year period as they are entitled to consider the whole of your driving record when imposing sentence.

Drug Matters (more info)

Q. I was found to be in possession of drugs which led to a police search of my home. Am I in serious trouble and do I need the services of a lawyer?

A. Yes. Both the police and the courts focus on supply for obvious reasons. Type, quantity and the weight of drugs being supplied is extremely important. There is a big difference between small, trafficable, indictable, commercial and a large commercial quantity of drugs with a consequent increase in penalties. The maximum sentence for drug offences range from two years and 20 penalty units ($2,200) for an offence such as possession to life imprisonment for importation. Fines can be as high as $550,000 for major offences and assets may be forfeited.

Q. I have been arrested by the police for trafficking drugs and now they are trying to seize my property. Can they do this and do I need the services of a lawyer?

A. Yes. There are two NSW Acts and one Commonwealth act which deal with asset forfeiture. They specifically focus on drug trafficking and property may be fortified to the Crown or the offender be ordered to pay financial restitution. The court is entitled to lift the corporate veil by treating any property of the defendant as being within the courts reach.

Speeding

 

 

General (more info)

Q. Should I call a solicitor when I am called to attend a police interview or am arrested?

A. Yes, to:

  • Advise you of your rights.
  • Explain any charges against you.
  • Explain your options.
  • Advise on any possible penalties.
  • Attend a police interview with you.
  • Make a bail application for you in court where you are bail-refused.
  • Represent you at court.

Q. If I am arrested, should I answer any questions put to me by the police?

A. In most cases do not answer any questions apart from your name and address until you see a lawyer.  The police should inform you that you have a right to contact a lawyer.  Irrespective of the type of assurances you receive from the police, any answers given by you without proper legal advice may lead to the successful prosecution of the matter by the police leading to a gaol term.

Q. Can anyone gain access to my criminal record?

A. No. Unless you have given consent or it is at the request of police or an authorised public body.

Q. What impact does a conviction have on my employment prospects?

A. To name a few, having a conviction; disentitles you to public office; it prevents you from holding a licence where the licensee must be of good fame and character; applying for registration as a medical professional or being employed in the public service.

Q. I have been charged with stealing from my employer. Is this serious and do I need the services of a lawyer?

A. Yes. Section 117 of the NSW Crimes Act provides that where a person commits larceny they are liable to imprisonment for a period of five years. Alternatively these matters may be dealt with summarily and although the penalties are less they are serious and they can involve both imprisonment and a fine. 

Q. What happens if I use a toy pistol to intimidate people or use one in a crime?

A. A toy pistol in circumstances such as this amounts to an offensive weapon carrying up to a 14 year gaol term.

Q. Can I recover my legal costs if I am successful in defending criminal charges brought against me?

A. In general costs could be granted to you but it is most unusual and highly unlikely that this will occur unless it can be shown that the police did not act reasonably and bona fide in the circumstances. 

Q. I made a claim for youth allowance whilst at the same time working casually at a local retail store and now I have been summonsed to appear in the local court to answer charges that I obtained the benefit by deception from a commonwealth entity. Is there anything you can do for me?

A. Yes. The first thing is to obtain all the relevant background information. The second is that if money was obtained then full reparation needs to be made as soon as possible. Thirdly you need to avoid making any admissions to anyone as social security fraud is considered and dealt with as a serious breach of the criminal law.  

Q. Am I likely to get off a speeding charge if I can prove that my car’s speedo was in error?

A. No, but this would be taken into account when you are sentenced.

Q. Unfortunately I do not have a good driving record; I am separated from my wife who does not have a driver’s licence which means that I have to take my son to and from child care. Will this be taken into account although I have recently committed another driving offence?

A. Yes. The court takes a very poor view of repeated transgressions by drivers particularly where they are young and have a bad driving history. Courts often take into account these circumstances but more particularly where the offender’s continuing employment is likely to be affected.

Contact us now for Fast, Accurate and Timely legal advice

Phone LAC Lawyers on NSW 1300 799 888 or VIC 1300 734 638 or send us an email

Q. Recently I was picked up for exceeding the speed limit by more than 30 kph and I am concerned that I am may lose my driver’s licence when this matter comes before the court. I need to know what to do?

A. In NSW where you are exceeding the speed limit by over 30 kph it is an serious offence as it constitute dangerous driving. Aggravated dangerous driving occurs where a person exceeds the speed limit by more than 45kph which involves automatic suspension of licence and in some cases a term of imprisonment.



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