Criminal Law Insights
The new offence of performing a Nazi gesture
Victoria has recently introduced legislation making it an offence to perform a Nazi gesture, the most common form being the Nazi salute, in public catching up with New South Wales, Queensland and Tasmania. In most jurisdictions, the offence carries a penalty that involves a fine, imprisonment or both.
Excluding improperly obtained evidence
The integrity of a judicial system relies heavily on the assurance that evidence presented during a trial adheres to legal and ethical standards. In many jurisdictions, including New South Wales, a mechanism exists in the Evidence Act 1995 (NSW) that allows the Court to exclude improperly or illegally obtained evidence. It is an important discretionary power and safeguard.
SPENT CONVICTIONS IN WESTERN AUSTRALIA
A person who has been convicted of an offence against the law of Western Australia or of a foreign country and who has not reoffended during a specified period and shows to be rehabilitated may be entitled to having that conviction spent under the Spent Convictions Act 1988 (WA) (‘the Act’).
Conditional Release Orders (NSW)
Sentencing in NSW is governed by the Crimes (Sentencing Procedure) Act 1999 (‘CSPA’). Under CSPA, the Court has several options when determining a sentence for an offence. Non-custodial alternatives are frequently used for less serious offences where the threshold for imprisonment has not been crossed.
A Trojan Horse: The use of Firearms Prohibition Orders to conduct unlawful searches
A Firearm Prohibition Order (FPO) prohibits a person in NSW from acquiring, possessing or using a firearm, firearm parts or ammunition. The Commissioner of New South Wales may make a FPO against a person if the Commissioner is of the opinion the person is not fit, in the public interest, to have possession of a firearm.
THE RARE OFFENCE OF BIGAMY
Bigamy is the act of entering into a marriage with one person while still legally married to another. Bigamy is currently a federal offence in Australia under section 94 of the Marriage Act 1961 (Cth) which states ‘a person who is married shall not go through a form or ceremony of marriage with any person’. Offences of bigamy are very rare. The offence carries a maximum penalty of 5 years imprisonment. If the offence is heard summarily in a local court the maximum penalty is 12-months imprisonment.
THE ADMISSIBILITY OF PRIVATE RECORDINGS
Mobile phones are a way of life these days. Where would we be without them? We don’t just use them for calls, we use them to record life events. We are so used to grabbing the phone to record something that often people don’t turn their minds to whether or not recording something is in fact legal.
If you are a regular of law dramas like ‘Suits’ and ‘Rake’, you have probably heard the words “objection, hearsay!” many times before. It is often shouted by an impassioned barrister as they slam their hand down on the bar table after a witness reveals a case-altering piece of evidence. But what does hearsay actually mean and how does it really play it out in court?
DNA Evidence in Criminal Cases
In recent decades, advancements in forensic science have significantly impacted criminal investigations and legal proceedings. Among these advancements, the use of DNA evidence has emerged as a powerful tool for identifying and convicting persons accused of crimes.
THE OFFENCE OF STALKING
The offence of stalking is defined as ‘the following of a person about or the watching or frequenting of the vicinity of, or an approach to a person’s place of residence, business or work or any place that a person frequents for the purpose of any social or leisure activity’.
Police “Stop and Search” Powers in New South Wales
Police “stop and search” powers are a part of maintaining public confidence and safety but they can all too easily be abused and infringe upon personal rights. There are a range of important limitations to these powers and remedies if you have been subjected to an unlawful stop and search.
An alibi can be used as part of a defence strategy to raise that you were not present at the scene of a crime when it was committed. Alibi evidence can include a statement from a witness who you were with at the time of the offence, video footage or other documentation that proves, or tends to prove, that you were in a different location at the relevant time. If alibi evidence is accepted, it can refute the prosecution’s claim that you are guilty of the offence. If there is otherwise at least a reasonable possibility that the alibi evidence is true that would be sufficient to raise a reasonable doubt about the guilt of a crime and would lead to acquittal.
Money Laundering offences in Australia
Money laundering is a serious crime that involves the conversion or transfer of funds obtained illegally into seemingly legitimate funds. The process of money laundering is used to disguise the illicit origin of funds and make them appear as though they have been obtained legally.
Non-Conviction Orders in the ACT (section 17)
If you have had any experience or interest in the criminal justice system, it is likely that you will have heard of ‘non-conviction’ orders. In the ACT these are referred to as ‘section 17’s’ as they are governed by section 17 of the Crimes (Sentencing) Act 2005.
Decriminalisation of low-level drug possession in the ACT
In late October 2023 new laws will come into effect in the ACT decriminalising possession of low quantities of a range of illicit drugs including cocaine, heroin and methylamphetamine. The general purpose of the new provisions is to shift the focus from a ‘crime and punishment’ regime for small drug possession, with all the costs that involves, to harm-minimisation, health and rehabilitation.
Working with Children Check
The Working with Children Check (WWCC) regime in New South Wales aims to support child safety by only allowing approved individuals to work in child-related work. The Child Protection (Working with Children) Act 2012 (NSW) (the Act) regulates the approval of these clearances.
Sentence hearings in the NSW Local Court
Sentence hearings are one of the most common proceedings that take place at the Local Court in New South Wales. Sentence hearings occur when an offender has either entered a plea of guilty or has been found guilty at the conclusion of a defended hearing.
Driving while disqualified in the ACT and NSW
Offences of driving during a period of court-ordered licence disqualification are considered serious offences. Driving in the ACT while a license is disqualified carries significant penalties that range from further lengthy periods of licence disqualification, fines or imprisonment.
Doli Incapax – When is a child too young or immature to be guilty of crime?
The term “Doli Incapax” is a Latin phrase meaning “incapable of evil”. It comes from the idea that people can be too young to form the understanding necessary to be capable of committing a crime. Children under the age of 10 cannot be found guilty of an offence.
‘Beyond Reasonable Doubt’
‘Beyond reasonable doubt’ refers to the legal standard of proof required to substantiate criminal allegations in an adversarial legal system. When charged with an offence by the police, the prosecution must prove all elements of the alleged offence ‘beyond reasonable doubt’ before securing a conviction.
The Strangest Offences at Law
No doubt, Australia, like many other countries and jurisdictions around the globe has a variety of bizarre laws that are technically still in the books. Therefore, we researched the veracity of some of these claims, to determine whether there was any truth to them.
Apprehended Domestic Violence Orders (ADVOs) in NSW
The NSW Police are responsible for investigating allegations of domestic violence. Upon receiving a complaint of domestic violence, the police will attend to investigate the allegation and consider whether it is appropriate to lay criminal charges or apply for an ADVO on the protected person’s behalf.
Parole Applications in the ACT
Any sentences of imprisonment in the ACT with a portion of full-time custody and a minimum term of 12 months must have what is called a non-parole period. The rest of the sentence may be served under parole, so long as it is granted. If a parole application in the ACT is successful, a sentenced individual can serve the end of their sentence in the community (outside of gaol), under supervision.
Examinations by the Australian Criminal Intelligence Commission (ACIC)
The Australian Criminal Intelligence Commission (ACIC) (formerly known as the Australian Crime Commission) is an investigative body which was established by the Australian Crime Commission Act 2002 (Cth). The ACIC has a broad range of powers to authorise and use coercive powers for intelligence operations or investigations into a wide range of serious criminal activity, or suspected criminal activity in the community.
Subpoenas can play a crucial role in preparing your matter for sentence, hearing or trial. A subpoena is a court order that compels a person/s to produce tangible evidence (e.g. documents, sound recordings or video footage) and/or to give evidence in court proceedings. Subpoenas are issued in any one of the following forms:
Jury Trials in Canberra
For many centuries, juries have been recognised as the cornerstone of a justice system, and particularly a criminal justice system. Where the truth is in dispute, 12 (sometimes more) of one’s fellow laypeople are generally accepted to be the fairest and most effective means of sorting the fact from the fiction, and the reasonable from the unreasonable.
Sex Offender Register (NSW)
The Child Protection Register, also known as the sex offender register, is a record of people who have been sentenced for offending against a child, meaning a person under the age of 18. The purpose of the register is to ensure the protection of children by monitoring the conduct of registered persons.
The Defence of ‘Claim of Right’
Claim of right is a legal defence to offences that involve the taking of property. In the broadest terms, claim of right acts as a defence in circumstances where a person takes property in a way that would normally amount to an offence, but at the time they honestly believed they had a proprietary or possessory (i.e. legal) right to the property, even if their belief is mistaken.
No Case Submissions
In some criminal hearings or trials charges are dismissed even before any defence evidence is called. For the prosecution to prove an offence has been committed after a not guilty plea they must present evidence which they say satisfies the ingredients of what makes up the charge.
Extra-curial punishment is any form of loss or disadvantage that occurs to an offender that is not imposed by the court on sentence. It is “punishment that is inflicted upon an offender otherwise than by a court of law”: R v Wilhelm  NSWSC 378 per Howie J at .
Reckless Wounding Offences [NSW]
Wounding means the breaking of the inner layer of skin. A wound does not need to be caused by a weapon; punching someone and splitting their lip could amount to a wound. Bruises, scratches or marks which only break the outer layer of skin do not amount to wounding.
Child Sexual Offence Evidence Program Scheme
Under the NSW Child Sexual Offence Evidence Program Scheme all cases of sexual offending involving a complainant under the age of 18 in Sydney and Newcastle are part of a separately managed list with its own procedures and specialised judges.
Drug Supply Offences [NSW]
Under the Drug Misuse and Trafficking Act 1985 (NSW) (‘DMTA’), you can be criminally liable for the possession, supply, and manufacture of illicit substances. These can include prohibited drugs, prohibited plants, and unprescribed medication, among other substances.
Severity Appeals from the ACT Magistrates Court
If you have been convicted and sentenced for a criminal offence in the summary jurisdiction of the ACT Magistrates Court, there is a statutory right to appeal your conviction and/or your sentence to a single judge of the ACT Supreme Court.
No Convictions Orders Made for Sexual Offences
The recent NSW Court of Criminal Appeal decision of R v AB  NSWCCA 3 has opened up the question of whether it can ever be appropriate to make a No Conviction Order when sentencing an offender to multiple counts of child sexual assault. The short answer (according to the judgement) is yes but only in the “most exceptional and rare circumstances”.
Self-Defence Laws [ACT]
In ACT, you may be found not guilty of a criminal offence if a court is satisfied that you were carrying out your actions in self-defence. This can be self-defence of yourself, or another. Self-defence is usually raised in offences relating to violence, and includes charges such as murder and resisting arrest.
The term parole refers to the release of a prisoner under supervision, prior to the expiry of a sentence of imprisonment. The rationale behind the granting of parole before the end of a total sentence is that it provides a safer pathway for the re-integration of an offender into the community, when compared to simply releasing the offender at the end of their sentence, with no period of supervision in the community.
Coroners, Coronial Law and Inquests in the ACT
Coroners and coronial law are predominately concerned with how and why people die, whether a death raises any concerns for public health or safety, and whether the death could have been prevented. At certain times Coroners also look into the causes of disasters and fires which have caused substantial property damage.
Revenge Porn Offences
Offences of revenge porn or unlawfully capturing/distributing intimate images are part of a relatively new category of criminal offences in most Australian jurisdictions. Almost all forms of these types of offences are considered serious and can often result in the imposition of custodial sentences.
Conviction Appeals [NSW]
If you are found guilty after a hearing in the NSW Local Court (or Children’s Court), you have an automatic right to appeal your conviction to the District Court. You must lodge your conviction appeal within 28 days of your conviction. The date of the conviction is the date of sentencing so if your matter is adjourned for sentence, the clock starts ticking on your 28 days when your sentence is determined not necessarily on the date that the Local Court found the offences proven.
Extraordinary AFP Powers for Terrorism Offences
A police officer in the ACT that suspects on reasonable grounds that a person intends, or has the capacity, or is preparing to commit a ‘terrorist act’, is permitted to rely on new and additional powers not available for standard offences. These additional powers could be described as ‘extraordinary’, as is made clear by the aptly-named Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT).
Firearms and Weapons Offences [NSW]
Possession of an unregistered firearm in a public place is an offence under section 93I of the Crimes Act 1900 (NSW). It is normally dealt with in the Local Court but can sometimes be dealt with in the District Court. The maximum penalty is 10 years imprisonment. If dealt with in the Local Court, the maximum penalty is 2 years imprisonment and/or 50 penalty units (i.e. a fine of up to $5,500). If there are aggravating circumstances, the maximum penalty is14 years imprisonment.
Are False Memories Real?
When a person is charged with a criminal offence and they plead not guilty, at times it is not just the legal ingredients of the offence they are denying but the facts of what happened. Defendants will often agree broadly with what happened but challenge discrete aspects of the facts. In my experience the truth often falls somewhere in the middle.
Geographical Jurisdiction in Criminal Law
The location in which alleged criminal conduct occurred is almost always the first issue facing police and prosecutors in deciding who is responsible for prosecuting and the Court in which the proceedings are brought. These considerations are often broadly described as “geographical jurisdiction”.
Beyond Bugmy v The Queen: Addressing Indigenous Incarceration Rates
30 years on from the conclusion of The Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’), the experience and interaction of Indigenous peoples with the Australian criminal justice system remains as daunting as ever.
Privacy and COVID Check-In Data
Can police use your COVID check-in data in criminal proceedings? The short answer is – maybe. ‘Unprecedented times’ is the catch phrase that aptly describes the last 18 months, and with those unprecedented times has come a new era of ‘check-ins’ and check-in data.
Key Roles in The Courtroom
The court is a busy place and there are many court personnel who work hard to ensure that matters move efficiently through the court system. If you have never been to court before, you may find it hard to work out who is who in the courtroom. Identifying court personnel will become easy once you know who to look for.
The COVID Outbreak in NSW and ACT Gaols
In late August 2021, news first broke that COVID had made its way into NSW prisons. By September 7 there were 150 confirmed cases between the Parklea Correctional Centre and Silverwater Correctional Complex. Soon after, there were known active cases of COVID in Silverwater, Parklea and The Metropolitan Remand and Reception Centre. By 15 September, COVID had made its way into the Alexander Maconochie Centre in the ACT.
Facing stiff resistance almost nationwide, pill testing trials offered in the ACT may be finally helping pierce the many stigmas associated with the practice. Possessing a small amount of drugs is often thought of as a minor offence but it can still potentially see a sentence of up to two years imprisonment. It might seem counterintuitive then to offer to test these drugs to ensure they are safe to take.
The Limits of Cannabis Legislation [ACT]
In a first for Australia, the ACT has become the country’s only jurisdiction to legalise low-level personal cannabis possession and cultivation. Before getting too excited or outraged, depending on your stance on this, it is important to understand the limited scope of these changes.