These types of investigations and hearings can have serious consequences on your career and might result in criminal charges being laid. It is essential to have an experienced team of criminal defence lawyers in your corner.
We provide advice and representation to persons who are being investigated by, or are required to appear before, various Commissions and Inquiries including ICAC and the Crime Commission.
We can also assist you with reviews of decisions by various government departments or organisations to the NSW or ACT Civil + Administrative Tribunal. Decision makers (such as the NSW Police, AFP or Office of the Children’s Guardian) often have broad powers. Reviewing and challenging a decision can be a complex process requiring careful strategic planning and preparation.
Below are some of the types of reviews that we can help you with:
Coronial inquests following the death of a loved one can be a long and challenging process. If you have a sufficient interest in the subject matter of the coronial inquiry, you may be entitled to legal representation at the hearing. Whether looking for answers, the real responsibility for a death, or dealing with broader reputational issues, we will guide you through the process and give you a chance to be heard.
Coronial inquests are held to determine:
A Coroner can also make recommendations that an investigation or review be conducted by persons, departments or organisations.
IN WHAT CIRCUMSTANCES WILL AN INQUEST BE HELD?
A Coronial Inquest may be held by a Coroner’s Court for matters where:
The Senior Coroner has jurisdiction to hold an inquest where:
WHEN MUST AN INQUEST BE HELD?
An inquest must be held if it appears to the Coroner that:
An inquest is not required to be held if an official enquiry has already taken place or will take place in another state.
WHO WILL BE IN THE COURTROOM?
The following people may also be in the courtroom:
WILL SOMEONE BE FOUND GUILTY AT THE END OF THE INQUEST?
A Coroner cannot find someone guilty of a crime. If, during the inquest, the Coroner believes that a person has committed an indictable offence in relation to the death, they must suspend the inquest and refer the matter to the Office of the Director of Public Prosecutions (ODPP).
What is a Coroner?
A Coroner is an Australian lawyer who has been appointed by the Governor. A Coroner is similar to a Magistrate and their role is to direct the coronial inquest and to make findings in relation to a person’s death.
Who is ‘Council Assisting’?
Counsel assisting is a lawyer who assists the Coroner.
What are some examples of matters where a coronial inquest may be held?
Is there a jury in a coronial inquest?
Coronial inquests are conducted by a Coroner without a jury unless the State Coroner determines there are sufficient reasons to justify the matter being heard by a jury.
Can I request that an inquest be held?
Yes. A person can make a request in writing that an inquest be held for a death or suspected death. A request must outline the reasons why an inquest should be held and decisions on whether or not to hold an inquest are made by a Coroner.
Health professionals and police are obligated to report certain deaths to the Coroner, so it may be the case that the death has already been referred to a Coroner.
Who can appear in a coronial inquest?
A coroner may allow any person, who in the opinion of the coroner, has a sufficient interest in the subject-matter of the proceedings, to appear in person in proceedings or to be represented by a lawyer.
The coroner must allow a relative of a deceased person (including a spouse, parent or sibling) unless there are exceptional circumstances to justify refusing leave.
Is the family of a deceased or missing person allowed to give a personal statement in court?
Before final submissions, a statement by the family of a deceased person may be read to the Court. A statement can be read out by a family member or a barrister on behalf of the family.
The MHRT is divided into two areas, the civil jurisdiction and the forensic jurisdiction.
The civil jurisdiction makes decisions regarding the care and treatment of people who are inpatients in a mental health facility or receiving treatment in the community.
The MHRT can make a wide range of decisions for civil patients, such as:
The forensic jurisdiction makes decisions in relation to people involved with the criminal justice system.
Specifically, it makes decisions for people who have been charged with a crime but found not guilty by reason of mental illness and people found unfit to be tried for an offence, that is they are unable to comprehend and participate in the criminal justice process. It also makes decisions in relation to inmates transferred from a prison to a mental health facility.
Within the forensic jurisdiction the MHRT makes decisions in relation to:
The MHRT is required to review the treatment plans of forensic patients and inmates at least once every 6 months.
WHAT HAPPENS AT A CIVIL HEARING?
After the patient’s healthcare professional (e.g. doctor, social worker or case manager) makes an application to the MHRT, the matter will be given be a hearing date.
At the hearing, the healthcare professional will give evidence in support of their application. The patient and their family members will also have the opportunity to give their opinion.
After each party has given their evidence, the MHRT will make a decision based on the evidence and in accordance with the law.
Decisions made by the MHRT are legally enforceable.
WHAT HAPPENS AT A FORENSIC REVIEW HEARING?
Review hearings take place in the patient’s prison, hospital or via video link.
Prior to the hearing, the patient’s treating doctors and healthcare professionals will submit reports to the MHRT. The patient’s lawyers can also submit their own reports and documents in support of their case.
Like a civil hearing, the patient will have the opportunity to give their opinion.
At the hearing, the Tribunal Members may ask the treating doctors and the patient questions to clarify any issues.
The patient can also have family and friends to support them at the hearing.
If the victim is present at the hearing and they have requested an order to stop the patient contacting them or going to a particular place, the Tribunal Members may ask them questions in relation to these requests.
After each party has given their evidence, the MHRT will make a decision based on the evidence and in accordance with the law.
Can a lawyer represent me at a MHRT hearing?
Yes. If you have a matter before the MHRT, you may have a lawyer represent you.
It is important that a lawyer properly prepares and presents your case to ensure the best outcome.
Are MHRT hearings open to the public?
Similar to criminal proceedings, MHRT hearings are open to the public. However, there are strict rules in place to protect the identity of people involved in the hearings.
The MHRT does not publish lists of upcoming hearings. If you wish to observe a hearing, you will need to contact the Tribunal first.
Who makes up a MHRT panel?
The MHRT sits in panels of 3 members, consisting of:
Can I appeal a decision of the MHRT?
Yes. If you are dissatisfied with a decision of the MHRT, you can appeal to the Supreme Court of NSW, within 28 days of the proceedings.
The Court will not hear your appeal automatically, you must first seek leave to appeal. That means, the Court will need to grant you permission before they review your matter.
Appeals against a Financial Management Order can be made to the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court.
The SPA makes decisions about:
WHAT CONSIDERATIONS DO THE SPA TAKE INTO ACCOUNT?
The SPA considers parole applications for offenders who have a sentence of more than 3 years with a non-parole period.
Before making a decision to release an offender on parole, the SPA must be satisfied that it is in the interests of community safety.
They also need to consider a number of other factors, including:
WHEN WILL THE SPA CONSIDER PAROLE?
The SPA must make a decision about whether to release an inmate on parole at least 60 days before their parole eligibility date (i.e. the earliest possible date they can be released from gaol).
When making their decision, the SPA will consider a number of documents, including:
They may also consider submissions from the offender and the offender’s legal representative, submissions from the victim’s family and psychological reports.
What is parole?
Parole is when an offender is released from custody to serve the remainder of their sentence in the community.
The purpose of parole is to help offenders reintegrate into society, whilst ensuring community safety.
Who makes up the SPA?
The SPA sits in panels of 5 members, consisting of:
What happens if my parole application is refused?
If the SPA decide to refuse to release an offender on parole, they must give reasons for their decision.
They may decide to automatically grant you a hearing, or you may need to request a hearing. The hearing will be take place via audio-visual link. A lawyer may represent you at the hearing.
If you decide not to request a hearing or the SPA refuse to grant you a hearing, you can make another parole application on your annual review date (i.e. on the anniversary of your parole eligibility date).
What happens if I breach parole?
It is important that you comply with the conditions of your parole.
If Community Corrections advises the SPA that you have breached a condition of your parole, the SPA may:
If the SPA revoke parole, a warrant will be issued for your arrest and you have to return to gaol.
HOW ARE ROYAL COMMISSIONS ESTABLISHED?
Royal Commissions are appointed by the Governor-General on the advice of the Executive Council.
The government prepares the terms of reference, which is a formal document that defines the purpose of the Royal Commission, appoints Commissioners and sets out the rules under which it should operate.
Commissioners are people selected to manage the Royal Commission and are usually members of the Judiciary or legal profession. Generally, they come from outside government, to ensure the independence of the Inquiry.
WHAT TYPE OF MATTERS DO ROYAL COMMISSIONS INVESTIGATE?
There have been almost 150 Royal Commissions appointed by the Australian Federal Government since 1902.
Royal Commissions have been used to investigate a range of significant public issues, including:
Royal Commissions have extensive powers of investigation that allow them to compel witnesses to give evidence and produce documents.
They can also authorise search warrants and telephone intercepts if that information is relevant to the inquiry.
What happens if I’m called to give evidence at a Royal Commission?
If you receive a summons to give evidence at a Royal Commission, you must attend unless you have a reasonable excuse.
If you fail to attend, you will be in breach of the Royal Commissions Act 1902 (Cth) and face a substantial fine and/or 2 years imprisonment if convicted.
Will I be able to give evidence in private?
Royal Commission hearings can be conducted in public or private. When determining whether to allow a witness to give evidence in private, the Commission will consider whether the potential damage to the witness’ reputation is outweighed by the public interest in holding an open hearing.
Can I be prosecuted by a Royal Commission?
No. Royal Commissions do not have prosecutorial powers. However, they can refer information about suspected illegal activities to law enforcement agencies.
Importantly, the evidence you give at a Royal Commission cannot be used against you in any other civil or criminal proceedings.
Should I seek legal advice if I receive a summons?
If you are summoned to give evidence or produce a document at a Royal Commission, it is important that you speak to a lawyer beforehand.
Your lawyer can give you legal advice about your rights as a witness and explain the hearing process to you.
Can I refuse to produce a document on the basis of legal professional privilege?
Legal professional privilege is designed to protect certain communications between you and your lawyer.
If you are summoned to produce a document, you must do so unless you have a reasonable excuse.
Legal professional privilege may be a reasonable excuse for refusing or failing to produce a document, but the Commission will need to consider your claim.
If you are unsure whether your document is subject to legal professional privilege, you should speak to your lawyer.
WHAT TYPES OF MATTERS DOES NCAT DEAL WITH?
NCAT consists of four divisions, which each deal with different types of matters.
Administrative and Equal Opportunity Division
The Administrative and Equal Opportunity Division reviews administrative decisions made by NSW government agencies, including decisions about:
For example, if you have been refused a working with children clearance check, you can apply to NCAT to have the decision reviewed.
This division of NCAT also resolves complaints referred to it by the Anti-Discrimination Board for alleged breaches of the Anti-Discrimination Act 1977 (NSW).
Consumer and Commercial Division
The Consumer and Commercial Division deals with a wide range of everyday disputes, including:
For example, if you wish to resolve a dispute about the payment of your rental bond at the end of a tenancy, you can make an application to the Consumer and Commercial Division of NCAT.
The Guardianship Division determines applications for adults who are incapable of making their own decisions, such as:
If you are making an application to the Guardianship Division it must be in relation to a person who is in NSW or has property or other financial assets in NSW.
The Occupational Division reviews decisions by government agencies about licensing for:
This Division also reviews complaints concerning professional conduct and discipline in relation to:
HOW DOES NCAT WORK?
NCAT is not a Court. Although there are two or more parties involved in a dispute and (sometimes) a decision maker, there are not too many other similarities between NCAT and NSW Courts.
Most applications to NCAT result in a hearing, however the Tribunal encourages parties involved in a dispute to try and resolve the matter without the need for a hearing. If you resolve a matter prior to hearing, you can withdraw your application or give the Tribunal ‘consent orders’ which record your agreement.
After you have lodged your application and paid the application fee, NCAT will try to assist you resolve the matter through the use of alternative dispute resolution methods.
If you have made an application to the Administrative and Equal Opportunity Division, you will need to take part in a ‘preliminary session’. A Tribunal Member will talk to you and the other party and discuss ways in which the dispute may be resolved.
Conciliation and Meditation
In some cases, you may be asked to attend a conciliation or mediation session. This is the final step before a hearing. The purpose of conciliation and mediation is to bring parties together in an informal way, to try and reach an agreement.
Meditation is facilitated by a neutral third-party mediator. The mediator manages the process but does not take sides or give an opinion about the case.
Any agreements that are made during conciliation or mediation are not legally enforceable.
If the parties cannot come to an agreement, the matter will proceed to a hearing for determination by a Tribunal Member.
Before the hearing it is important that you gather all relevant documents and material that you intend to use as evidence in support of your case. It may be useful to prepare a chronology of events, which lists the important facts, dates, and events in relation to the matter.
At the hearing, the Tribunal Member will ask questions about your application and both parties will have the opportunity to show their evidence and ask one another questions. After each party has given their evidence, the Tribunal Member will make a decision based on the evidence and in accordance with the law.
Decisions made by NCAT are legally enforceable.
Is there a time limit to make an application to NCAT?
Yes. Applications to NCAT must be made within a specific timeframe. Different matter types will have different time limits.
It is important that a lawyer assists you to ensure you have used the appropriate form and lodged the application within the specified time period.
How do I make an application?
For most matters, you can lodge your application online via the NCAT website.
There are different application forms for different matter types.
Can a lawyer represent me at the hearing?
NCAT encourages parties to represent themselves at hearing. However, if you wish to be represented by a lawyer, you can make a written request to NCAT, which sets out the reasons why you wish to be represented. You can make your request before the matter is heard or you can apply at the hearing. The Tribunal Member will decide on the day if you can be represented.
What happens if I miss the hearing?
It is important that you attend the hearing date, as the Tribunal can make legally enforceable orders that affect you, even if you are absent.
If you are the applicant (i.e. you lodged the original NCAT application) and you miss the hearing date, the Tribunal may dismiss your application.
Are NCAT proceedings open to the public?
Similar to criminal proceedings, all NCAT hearings are open to the general public, unless there is a specific order prohibiting this. For example, a suppression order or non-publication order.
Can I appeal a decision of NCAT?
Not all NCAT decisions are appealable. If you wish to appeal against a decision by NCAT, it is important that you seek legal advice first.
If you are able to appeal an NCAT decision, you will need to lodge a Notice of Appeal within 28 days of receiving notice of the decision.
Can I apply for costs?
Parties involved in NCAT proceedings must pay their own legal costs. NCAT will not order one party to pay the other party’s legal costs unless there are special circumstances, such as:
WHAT IS THE PURPOSE OF THE NSWCC AND ACIC?
The NSWCC and the ACIC investigate and gather intelligence on matters relating to serious crime and organised crime within New South Wales and nationally.
They do this by:
WHAT POWERS DO THE NSWCC AND ACIC HAVE?
The NSWCC and ACIC have a number of powers they can use to obtain information, including abilities to compel witnesses to give evidence and produce documents.
The ACIC also has the power to authorise search warrants and telephone intercepts if that information is relevant to their investigation.
Both Crime Commissions have broad incidental powers that allow them to do all things necessary for the performance of their functions.
WHAT HAPPENS AT A HEARING OR EXAMINATION?
The hearing or examination will be conducted in private before the Commissioner or Assistant Commissioner. It will not be open to the general public.
Also present will be the Counsel assisting the Commissioner, the witness and their lawyer (if they have arranged for representation).
Prior to commencing questioning, the witness may be asked to take an oath or affirmation. This means they will need to answer all questions truthfully.
The witness must answer all questions, even if it means they will incriminate themselves.
What happens if I’m called to give evidence at the NSWCC or ACIC?
If you receive a summons to give evidence at the NSWCC and ACIC, you must attend unless you have a reasonable excuse.
If you fail to attend, you may be committing an offence and could face a substantial fine and/or a term of imprisonment if convicted.
Will I be able to give evidence in private?
Yes. NSWCC hearings and ACIC examinations are conducted in private to protect the privacy of its witnesses.
Do I have a right to silence?
No. Unlike police investigations, if you are being questioned by the NSWCC or the ACIC, you do not have a right to silence.
You must answer all questions truthfully, even if it means you may incriminate yourself.
There is some protection for witnesses. The evidence you give at the NSWCC or ACIC cannot be used against you in any other civil or criminal proceedings.
Can I tell my family and friends if I’m called give evidence at the NSWCC or ACIC?
If you receive a summons from the NSWCC or the ACIC, you should speak to a lawyer, before discussing it with your family and friends.
You may not be allowed to disclose information about the summons to anyone else. If that is the case and you share this information with your family and friends, you may be committing an offence.
Can a lawyer represent me at the hearing or examination?
Yes. If you are summoned to attend a NSWCC hearing or an ACIC examination, it is important that you speak to a lawyer.
Your lawyer can represent you at the hearing to ensure your rights are protected and that you do not incriminate yourself during the examination.
Can I be prosecuted by the NSWCC or ACIC?
No. The NSWCC and the ACIC do not have prosecutorial powers. However, they can share information with other law enforcement agencies.
WHO CAN ICAC INVESTIGATE?
ICAC can investigate allegations of corruption within the following NSW public sector organisations:
ICAC does not investigate NSW Police Force officers or NSW Crime Commission officers. These two bodies are dealt with under a separate anti-corruption agency, known as the Law Enforcement Conduct Commission (LECC).
ICAC can only investigate conduct involving NSW Police Force and NSW Crime Commission employees if the matter involves other NSW public officials.
WHAT CAN ICAC DO AFTER THEY RECEIVE A COMPLAINT?
ICAC receives complaints from many different sources, including members of the public and public officials, and reports by principal officers in public sector organisations.
After a matter is referred to ICAC, they will assess the complaint and determine what action take. Depending on the matter, ICAC may decide to:
ICAC must investigate matters that are referred to it by both Houses of the NSW Parliament. For all other matters, ICAC has a discretion as to whether it should investigate or take an alternative course of action.
Am I required to co-operate with ICAC?
Yes. Unlike police investigations, there is no right to silence.
If you are called as a witness at a public inquiry or compulsory examination, you must answer all questions truthfully and produce any documents requested.
If you receive an ICAC summons and fail to appear, the Commissioner may issue a warrant for your arrest.
I’m being investigated by ICAC, should I get a lawyer?
If you are being investigated by ICAC, a lawyer can assist you by providing legal advice about your rights and liaise with ICAC on your behalf.
You can also seek leave for a lawyer to represent you at a public inquiry or compulsory examination.
How do I know whether I am being investigated?
Generally, ICAC will not confirm or deny whether someone is under investigation. You may not become aware that you are the subject of an ICAC investigation until you receive a summons to appear.
Will ICAC question me privately?
If you are summoned to appear at a compulsory examination, you will be questioned in private. ICAC may determine that this is necessary to protect witnesses and the integrity of the investigation.
Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.
Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.
Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.
At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.
Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.
Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.
As leaders in criminal defence, we know that every story has two sides. We defend yours.