What Happened to my Right to Remain Silent?



 

By MacDonald Law civil & criminal law solicitor, Jag MacDonald

The Crime and Corruption Commission (CCC) was first formed in 2001 under the Crime and Corruption Act 2001 (Qld). The main purposes are twofold; firstly, to reduce the occurrence of major crime and, secondly, continue to reduce corruption in the public sector. Whilst the Act and the creation of the CCC has been heralded as being instrumental in the investigation of a number of high profile criminal and corruption cases; the negatives of a CCC investigation to an individual can be widespread and all encompassing.

The CCC has what it refers to as a “coercive hearings power”, which requires a witness in a CCC hearing to answer all questions asked. These answers can then be published in many circumstances, and be used as evidence against that person or others in other proceedings, including the prosecution of criminal charges.

In criminal proceedings, a person ordinarily has the right to remain silent and abstain from answering questions, so an appearance before the CCC can often result in serious consequences, including criminal charges being brought against you when they otherwise may not.

What should you do if you are served with a subpoena to appear in the CCC?

You must comply with the subpoena for you to appear in the CCC or produce documents. Failure to do so may mean that a warrant is issued for your arrest. This means that the Police attend at your home, or workplace to arrest you and bring you before the Court.

Often you will have very limited time between being served with a subpoena and when you need to attend before the CCC. We recommend that you seek independent legal advice from a Solicitor prior to attending the CCC, as your attendance there can have varying consequences. At MacDonald Law, our office is open 7 days a week so you can usually obtain advice from a solicitor, even at short notice.

Why should I see a solicitor?

When you appear in the CCC to give evidence, you must give evidence and answer all questions that you are asked. You are, of course, under oath to tell the truth and a failure to do so can result in you being charged with a criminal offence of perjury. If you fail or refuse to answer a question, then you can be held in contempt of Court and held in custody until you answer the question.

Many people who are brought before the CCC will find themselves charged with a criminal offence as a result of the evidence they give before the CCC. Unless the CCC orders a prohibition on the publication of any evidence given, then the answers you give on the witness stand can be used against you. A solicitor is able to advocate on your behalf to make an application to prohibit the publication of your testimony, in eligible circumstances. An application can also be made for an immunity from prosecution in certain circumstances.

A solicitor will also ensure that you are completely prepared for the rigorous cross-examination which you may experience, and attempt to limit any possible exposure you may have in other avenues.

It is important that you have a Solicitor present with you throughout the whole process, as it can help to assist with the defence of any subsequent criminal charges or other matters if the same firm of solicitors were involved and present at the CCC hearing.

Several of our solicitors at MacDonald Law have appeared before the CCC on a number of occasions for varying types of matters. In fact, on a number of occasions Applications for a prohibition on publication and for blanket immunity have been successful. Therefore, if you are served with a subpoena to appear before the CCC, we recommend you contact our office to discuss the matter prior to your attendance.


Is it Worth Fighting my Speeding Fine?



By MacDonald Law criminal law solicitor, John Davis

When you are weighing this up, the real question is whether your demerit points matter more than your money or whether you are quite certain that you were not at fault. The legal fees for running a summary hearing on a speeding charge will cost significantly more than any fine you are required to pay.

However, in the Magistrates Court, most people are not aware that, if you are found not guilty of an offence, the Court can order that the police pay costs in your favour.

What are costs?

Essentially, the Police must pay toward the costs of your legal fees, because they have wasted your time and your money persisting with a charge in which you were found not guilty. The policy behind this is to make sure that police on run worthy cases to final hearing. The fees are worked out on a scale, and every time your lawyer appears for you in Court there can be an amount payable of up to $250.00. For the hearing (or trial) of the charge $1,500.00. So, if costs are awarded, Police have to pay at least a large portion of your legal fees. Bear in mind however, that your legal fees may end up being higher than the amount you get back from the Police.

Costs sound great right? The problem is, it is not a risk-free process. If you are found guilty, you will not get your legal fees back, you will have to pay a fine and you will lose the demerit points. Also, even if you are found not guilty, the Court might find that there were good grounds for the Police to run the charge to a hearing and may not order costs in your favour.

Can I just do it myself?

While you are entitled to represent yourself, it is not recommended. This is not because lawyers have mythical powers, it is more because you are unlikely to be found not guilty on the grounds you would think. Why? These horrible little things called ‘deeming provisions’.

Deeming provisions are little shortcuts for the police. Generally, the police must prove everything. But how can they prove it was you driving, you aren’t in the photo? Unfortunately, if it is your car, and you can’t prove who else was driving, you are ‘deemed’ to be the driver. How can they say the machine is accurate if they didn’t test it that day? Again, unluckily for you, the camera is ‘deemed’ to be accurate, so unless you can get that exact machine at the time it caught you speeding, and get it to an expert who can test its accuracy you are out of luck there too. 

Then how can I be found not guilty?

As anyone who has taken a short cut down a muddy back road knows, short cuts are filled with pot holes. The police are under very strict obligations to comply with every legislative requirement before their evidence can be admitted into a hearing, and if any of their evidence isn’t allowed into the hearing then that is an element of their case that isn’t able to be proved and you would be found not guilty of the offence.

It can be something as small as not naming the correct section of an act of parliament, or not providing evidence that the person signing the certificates had the requisite authority or it can be fundamental misconception of the legislation or, of course, you may have evidence that calls into question the accuracy of the charge.  Analysing evidence for a traffic hearing is a technical skill that even most lawyers have not developed. At MacDonald Law, we have the advantage of being experienced at looking at the relevant legislation on a regular basis and we also work closely with barristers, some of which have worked for Queensland Transport so know the legislation inside and out. This relationship has ensured that our criminal lawyers are able to make quick and accurate assessments about the admissibility of Police evidence and interpretation of the relevant legislation.

Has MacDonald Law been successful in fighting traffic offences?

Yes. Many times. Just as one example, a client came to us after one of his work vehicles was allegedly caught speeding by a stationary speed van. It wasn’t him driving, but because of the ‘deeming provisions’ he was in the firing line, and was down to his last few points.

To our client, the demerit points were all that really mattered as he ran a small business, and was close to losing his licence which would have seen him in extreme financial hardship.  

He engaged MacDonald Law, listed the matter for hearing, was found not guilty and had costs ordered in his favour.

End result, he was hardly out of pocket, walked out with all of his points still intact.

Of course, every case is different and there can never be any guarantee of success; however, if you would like to have MacDonald Law review the matter and the evidence and give you some advice on your likely prospects of success make an appointment at either of our offices. We have appointments available 7 days per week.

 

 

 

 

 


Buying or Selling? Keep your Conveyancer in the Loop.

KEEP YOUR CONVEYANCER IN THE LOOP

By MacDonald Law solicitor, Jag MacDonald

When buying or selling a house, there are lots of people involved in the transaction who are available to assist and move the transaction along. Each person involved has a role to play: the buyer, seller, their conveyancers, their respective banks, the real estate agent, a possible broker. The list goes on and on. 

One thing that seems to happen all too often is that someone integral to the completion of the transaction is left out of the loop. Conveyancing transactions are fast-paced, averaging a start to finish time of 30 days. In the scheme of legal matters which, depending on the matter and other factors, can take more than 2 years to finalisation, conveyancing matters can change from straight-forward to complicated in the blink of an eye. 

Real Estate Agents play an integral role to ensure that inspections take place and things are kept on track so that settlements are completed on time. Quite often they end up assisting with negotiations between the Buyer and Seller as they usually have a relationship with both the seller and the buyer and have an intimate knowledge of the property and the background to the transaction. However, it is fundamental to a smooth transaction that you keep your conveyancer informed of all of these negotiations, changes, agreements and amendments. This includes negotiations or agreements directly between the parties, or through a third party such as a friend, neighbour, family member, or other professional such as a real estate agent and get legal advice before agreeing to anything, even informally.

If you don’t, settlement could be prolonged as your conveyancer is not aware of the agreed change and it can cause delays if they become aware at a late stage. Other unintended consequences could arise as there are some very complex laws in the property law sector. 

Quite simply, it is imperative that your conveyancer is aware of and involved in all aspects of the legal transfer of the property from one party to another. This includes, but is not limited to, discussions relating to repairs to a property, council approvals, price reductions, arranging settlement, and early access to a property. 

Similarly, we recommend that you seek legal advice before entering into any agreement, amendment or change to the contract or the sale or purchase of the property. If you do enter into any agreement or contract without legal advice, you may not be aware of all of the possible consequences of any decision, including estimated costs which could be incurred, your obligations in relation to the suggested changes, the ongoing effect of the suggested changes on the original contract and some alternative options to achieve the same or similar result with better consequences. These are just some of the areas which we recommend you seek advice about prior to entering into any amendment to the Contract.

Our conveyancers are experienced in all aspects of residential conveyancing transactions and are able to quickly advise you in relation to the pro’s and con’s of many basic matters as they have probably seen people in the same position many times before. For more complex matters, we have several solicitors available to provide expert legal advice on the effects that any possible negotiations or amendments may have on your contract.

 For example, did you know that when a price reduction or rebate is granted while a contract is on foot, the general law is that transfer duty has to still be paid on the higher amount. There are some measures that can sometimes be put in place to alleviate this; however, these must be done before an agreement has concluded.

MacDonald Law is available 24/7 by phone on 4638 9433 to answer your simple conveyancing queries. We are also available for appointments in our Toowoomba office 7 days a week, because we understand that legal matters do not occur only between ‘standard’ business hours. 


Domestic Violence Protection Orders

DOMESTIC VIOLENCE PROTECTION ORDERS

 By MacDonald Law Senior Associate, Sarah-Jane MacDonald.

In recent times, there has been a huge amount of media attention and focus on the domestic violence and lots of changes to the legislation surrounding domestic violence. So, what does it take to obtain a protection order and are the courts simply making orders as a matter of course? Well, the answer is not as straightforward as you might think. 

In making a determination as to whether a protection order should be made, the Court must be satisfied of a few things including:-

1.       That there is a relevant relationship between the aggrieved and the respondent; and

2.       That an act of domestic violence has actually taken place; and

3.       That a protection order is necessary or desirable to protect the aggrieved from domestic violence.

Unless the court believes that an act of domestic violence has occurred in the past, then it cannot go on and look at whether the court believes that a protection order is necessary or desirable to protect the aggrieved. The court does this by looking at all of the evidence, which can include police reports, electronic records, medical reports and anything else that the Court feels is relevant including evidence from the aggrieved and respondent as well as any other witnesses.  

Evidence from the aggrieved and respondent to the application is usually given in written form by way of affidavit. This is the main body of direct evidence that the court will use to determine whether a final long term order should be made or not. Therefore, it is vital that these documents are drafted properly and professionally to give the best chance of being successful in either obtaining the order as an applicant or resisting an order being made as a respondent. The affidavits need to be clear and concise, free of irrelevant or contradictory material and specific enough for the judicial officer determining the case to be able to make a decision on whether an act of domestic violence occurred on a particular day or not. Each individual act will be decided on separately.  

If you are responding to an application, it is important that you can point to matters in an applicant’s affidavit that are inconsistent and to any independent evidence that can discredit the other party’s evidence without coming across as vindictive or argumentative. This can be quite difficult but a case can stand or fall on how the affidavit material is drafted.

Most applications for a protection order are determined without the parties having to go to a final hearing. However, if the making of a final order is contested all the way to final hearing, then the parties and any other witnesses will usually need to make themselves available for cross-examination. However, in certain circumstances, an application can be made to the Court for an order that the aggrieved not allowed to be cross-examined at all or, if cross-examination is allowed, that screens be put in place so that the parties cannot see each other or even if different rooms by video link.

A protection order can be made protecting not only the actual aggrieved but also other family members such as children or even elderly parents. Orders can also be made that include that the respondent cannot contact the aggrieved in any way, whether in person or by telephone, text message, Facebook or any other social media platform nor get someone else to contact for you. This can include conditions such as not attending at the children’s schools or the workplace of the aggrieved.

An order can also be made by the court ordering the respondent to vacate premises where the parties live together and not return. This can be done on an urgent basis very quickly after the application is filed but the court needs be satisfied under the legislation that it is necessary or desirable. This is especially useful if the person needing protection has children in their care and needs to be able to get back into the house so that there is a place for the children to live where they are comfortable and have all of their toys and personal items.

If there is a breach of any conditions of a domestic violence protection order, this is a criminal offence. The police investigate and prosecute the charge and penalties, including lengthy jail terms can be imposed, depending on the severity of the breach.

Having a protection order made also means that a respondent cannot hold a weapons licence nor apply for one for 5 years from the making of the order. This can mean serious consequences for a respondent who works in a job that requires the use of a weapon. For example, security guard or armed forces but even occupations such as a kangaroo shooter or farmer.

So, it can be seen that there are lots of things that need to be considered in applications for protection orders and it is important that the court is properly informed of all relevant matters with proper evidence as the consequences of making or not making an order can be quite serious.

To give yourself the best chance of having an order made or resisting an order that you believe should not be made, it is important that you have the right legal advice and representation. A solicitor that works at the coal face in the domestic violence courts regularly gives you the best chance of being properly prepared with the best material possible, being able to prove the other party wrong under cross-examination and knowing what interim applications to bring before the court and when to give you the best chance of achieving the result you are seeking.

MacDonald Law has both male and female solicitors experienced in domestic violence matters who can review your case and assist you with all aspects of domestic violence and relationship law.