Mirror of Justice

Criminal Law – Drink Driving Offences (vic.)

July 14th, 2009 at 02:58am Under Criminal Law

Part 5 of the Road Safety Act (Vic.) contains six types of drink-driving offences as follows:
1 Driving or being in charge of a motor vehicle under the influence of alcohol (DUI);
2 Driving or being in charge of a motor vehicle while the blood alcohol content (BAC) exceeds or is equal to the prescribed limit of 0.05;
3 “Fail the test” offences;
4 Refusing a breath test or failing to undergo a blood sample in hospital after a motor vehicle accident;
5 Failure to have a zero blood alcohol (for Probationary license holders); and
6 An accompanying driver offence.
Penalties for blood alcohol offences usually involve fines or imprisonment or license or permit disqualification. License or permit penalties for drink-driving offences involving BAC readings vary according to the nature of the driver’s BAC, prior drink-driving offences, and when the offence took place.
Conviction for more serious offences like DUI or refusing a breath or blood test, involves two years’ license disqualification for a first offence and four years license disqualification for subsequent offences.
Conviction for BAC reading offences involves license disqualification on a sliding scale according to the BAC reading. The period of disqualification is doubled for a subsequent offence.
As a result of the Road Safety (Amendment) Act 2000 (Vic.), drink-drivers with readings of 0.07 or above must have their license cancelled, irrespective of whether they were issued with a traffic infringement or a summons to appear in court. Magistrates have no discretion to alter the period of cancellation. Drink-drivers with alcohol readings of 0.05 or 0.06 may retain their licenses subject to incurring 10 demerit points whereupon VicRoads has the power to suspend or cancel licenses and permits.
Whilst difficult, it is possible to challenge BAC readings successfully. These defences are generally based upon expert evidence, using the breathalyser over-estimation and rise and fall arguments. These defences are confined to offences of being in charge of a motor vehicle while the blood alcohol content exceeds the prescribed limit.
It is more difficult to challenge “fail the test” offences where a driver has, within three hours of driving or being in charge of a motor vehicle, provided a breath sample or a blood sample which, when analysed, exceeds the prescribed BAC. In relation to those offences, challenges appear to be limited to situations where the elements of the offence are not made out. In other words, defences are that the defendant was not driving; the test was not done within three hours of driving; or where the defendant can establish that the BAC was solely due to the post-driving consumption of alcohol; or the breathalyser was on the occasion not in proper working order or not properly operated.
It is also becoming increasingly common for drink-driving charges to be challenged on grounds that the Police have failed to comply with the drink-driving legislation.
It is important for clients to seek legal advice, particularly where BAC readings are alleged to be 0.07 or above.

Criminal Law – Drugs: Police Sniffer Dogs

July 12th, 2009 at 02:57pm Under Criminal Law

The dogs have been let loose recently. Numerous people have been charged generally involving small amounts of cannabis and MDMA (ecstasy) as a result of over active Labradors at pubs, parties and big days out. A client who recently contacted me was apprehended walking to a dance party in the Botanical Gardens. She had in her possession, 1 joint and 1 pill. The dogs detected her and she foolishly threw away a cigarette pack containing the joint in sight of the police. As the detective was taking her 1 pill and issuing her with a court attendance notice, he blithely noted that he hoped a friend could give her a pill inside the party. Such is the hypocritical operation of drug laws in New South Wales.
What are your rights when a member of the canine constabulary shows you particular attention? The police have no power at common law to search someone prior to arrest. If you are arrested, the police can and will search you and ask you to empty your pockets and go through your clothing. Most minor drug offences are not situations where arrest would normally be appropriate.
Legislation gives the police power to ’stop search and detain’ if they form a reasonable suspicion that you have committed a drug possession offence. A ‘reasonable suspicion’ involves less than a belief but more than a possibility. There must be some factual basis for the suspicion; reasonable suspicion is not arbitrary.
For minor drug offences the issue is what is a reasonable suspicion and how do the police get their hands lawfully into your pockets. Drug detector dogs are a relatively recent phenomenon on the streets of Sydney and for the police a very useful investigatory tool. A recent Supreme Court decision noted Rocky’s (the drug detector dog) ‘nostrils will flare and he will start to sniff rapidly and he will follow the source of the scent until he has found it.’
To what extent can the police rely on an agitated Labrador trained in drug detection to justify a search? The matter was considered by the supreme Court of NSW in 2004 in Darby’s case. The Supreme Court cast doubt on the legitimacy of the use of police dogs to routinely justify searches. The court also pointed out that having an agitated Labrador jump all over you could constitute an assault and an illegal search. The court nevertheless did not state that drug dogs cannot assist a police officer in forming a reasonable belief that an offence has been committed.
On 22 February 2002, the NSW Parliament enacted the Police Power (Drug Detection Dogs) Act (The Drug Dog Act). The Drug Dog Act continues to allow police to use drug dogs to search an individual once they have formed a reasonable suspicion that an offence has been committed. The Act also gives police wide powers to enter venues and screen persons for drugs with the aid of drug dogs.
The Act provides the police with the power to enter premises and undertake ‘general drug detection’. The police may enter without a warrant any licensed premises, a sporting event, concert or artistic performance, dance part, parade and public transport facilities with a drug detector dog. The definition includes persons seeking to enter or leave any of the above. Accordingly on the train, at the pub and at the footy, the police can put the dogs over you while you are entering and leaving. Any drug detection work conducted by the police outside of this very wide definition requires a warrant.
The issue of what will form a reasonable suspicion is still left to the courts and the Drug Dog Act does not empower the police to arbitrarily search persons. The Act gets the police into venues and gives them the opportunity to screen people. The reaction of a drug dog alone likely does not amount to a reasonable suspicion. The police are told not to rely solely on the reaction of the drug detection dog and observe very closely the reaction of the person subject to screening. If a person bolts, starts walking the other way or discards a cigarette package when detection dog’s nostrils flare in their direction this can empower a police officer to search and detain the individual.
A word of warning! You have rights and the law does provide you with some protection but you should not argue with police. It is an offence to tell a police officer to get f…ked, hinder a police officer and assault a police officer. Police routinely arrest persons for these offences. Be cooperative, do not say anything other than your name and your address and get legal advice if you are charged. There is a time and a place to challenge the police and this is at court with your lawyer. The courts will exclude evidence illegally obtained and the prosecution will fail as a result.
Most importantly stay calm. What will give you away is your behaviour. It is likely that you are not the only person at the big day out who has the smell of cannabis on their clothing. The police will generally not search and detain someone unless they give them some real reason to do so. Do not make it hard on yourself, so stay calm if and when approached and ask are you being arrested; if yes call us!

Criminal Law – How Serious Are Avos (new South Wales)

July 12th, 2009 at 08:58am Under Criminal Law

There is a strong desire on the part of the legislature to reduce the incidence of, and provide protection to, the victims of domestic violence. Apprehended violence orders and bail are the main vehicles chosen to provide this protection. These provisions are fundamentally in aid of the prosecution.
Domestic Violence
Apprehended Violence
Apprehended Violence Orders (”AVO”) are preventative and intended to provide protection against apprehended breaches of the law. A typical order will also prohibit a person from conduct that is less than criminal such as harassing and intimidating the person in need of protection (”PINOP”) and stop the defendant attending places frequented by the PINOP. A knowing contravention of an order is a criminal offence punishable by up to two years imprisonment.
AVOs fall into two catgegories. Apprehended domestic violence orders (ADVOs); and Apprehended personal violence orders (APVOs). The defining characteristic is the relationship between the PINOP and the defendant. If you are in a domestic relationship with the one you fear you get an ADVO, whilst everyone else gets an APVO. There is no great difference once an order is in place and the process is broadly similar.
ADVOs are commonly applied for and obtained in response to an allegation of domestic violence. Frequently the parties will continue to live together or resume cohabitation at some stage during the proceedings. Proceedings for an ADVO will run in tandem with criminal prosecutions generally for assault or malicious damage. The police will apply for the ADVO on behalf of the PINOP. The PINOP will also generally be the main prosecution witness for the criminal charge.
Legislative Recognition of Domestic Violence
The NSW Crimes Act 1900 contains definitions of what are “domestic violence offences” and “personal violence offences”.
A Domestic Violence Offence may arise from any of the following categories:
1 marriage relationship:
2 de facto relationship;
3 intimate personal relationship;
4 living or has lived in the same household;
5 dependent relationship involving paid or unpaid care;
are related.
6 The Making of the Interim Order
The usual scenario where the criminal justice system intervenes in a “domestic” is where there is an altercation in the home (usually involving a large amount of alcohol), there is a notification, the police attend and the perpetrator is arrested and charged with a personal violence offence and an interim telephone ADVO is made for the protection of the victim.
The Crimes Act deals with the making of telephone interim orders and is the reason why your partner will get charged rather than told to behave him or herself. The Act severely restricts the discretion of the police when dealing with allegations of domestic violence, and provides a capacity for police officers to apply by telephone for apprehended violence orders.
If the attending police officer declines to make an telephone interim order in the face of an allegation of a domestic violence offence, the police officer must provide written reason as to why an order wasn’t applied for.
Where the police do not get a telephone interim order the Act requires a magistrate to make an interim apprehended violence order when a person is accused of a domestic violence offence. The court can decline to make the order if it is satisfied that an order is not required, however its reasons must be given.
Bail
Bail is generally about whether or not the accused will attend court on the next occasion. In making a determination as to bail the court is required to take into account various matters.
There are a number of provisions relating to bail that are relevant to situations involving domestic violence. The Bail Act removes the presumption in favour of bail for certain domestic violence offences and the offence of contravening an apprehended domestic violence order. This applies to accused persons with a “history of violence” or violence to another person in the past or who has a failure to comply with bail conditions. An accused will have a “history of violence” if the accused has been found guilty within the last 10 years of a personal violence offence or an offence of contravening an apprehended violence order by an act of violence. The Act states that bail should only be granted in exceptional circumstances to a person in respect of a “serious personal violence offence” if the applicant is a repeat offender. This provision will apply to extreme examples of domestic violence.
The police will be likely to refuse to grant police bail in circumstances where an accused is a repeat offender or on bail. A bail application in front of a magistrate will be necessary and this will mean a longer stay in custody.
A fundamental condition of bail is to be of good behaviour for the duration of the bail. Conditional bail can have conditions similar to any interim order. Accordingly, misbehaving whilst on bail can constitute a contravention of the interim order. Any breach of bail can cause the bail to be reconsidered. In practice the accused will be arrested, refused police bail and brought before a magistrate to have a bail determination made.
Witnesses
The main prosecution witness often gets less enthusiastic about the prosecution as domestic tranquillity re-establishes itself. The continuance of the prosecution is a question for the police.
An absence of reliable evidence does not deter the NSW police from continuing with a prosecution. The NSW police will not discontinue a prosecution concerning domestic violence on the basis that the principal witness does not want the matter to proceed. Despite this prosecutions proceed in these circumstances with the accused pleading not guilty, the matter is then listed for hearing and proceeds to hearing even though it may fall over at this stage.
Something that can and does occur is that if the victim attends and gives evidence which contradicts the earlier statement provided, the witness is declared an unfavourable witness. The victim is then attacked by the police prosecutor and accused of perjury. Not a very nice result.
Police will sometimes arrest the witness and almost always bring him/her to court.
There is a qualified spousal privilege which applies to a person who, when required to give evidence, is the “spouse, de facto spouse, parent or child of a defendant”. The objection needs to come from the witness and generally should be made when the witness is called to give evidence. Theoretically any person who is the sole witness to a minor domestic assault and in a relationship with the accused should not be excused from giving evidence.
Sentencing Considerations
Common assault is punishable by two years imprisonment. A person who knowingly contravenes a prohibition or restriction specified in an order is also guilty of an offence that carries a maximum of two years imprisonment. The two offences can be constituted by identical facts. Contravention of an order will generally be considered a more serious offence as it involves the addition element of a breach of a court order. Offenders are routinely imprisoned for serious or repeated contraventions of orders.
One of the reasons why contravention of an order is a serious offence is that offenders will frequently be recalcitrant. A plea of guilty must be taken into account. The utilitarian value of a plea should be assessed in the range of 10-25%. This is before other considerations such as contrition are taken into account. A discount of 25% is fairly common for a plea of guilty.
Alcohol may aggravate an offence as it demonstrates recklessness, or mitigate as it shows that an offence is out of character. The courts have made it clear that a domestic context does not excuse an offence or make it less serious. That is, “violent acts in domestic situations must be treated with real seriousness”.
The Court of Criminal Appeal has stated “Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished.”
A suspended sentence under section 12 of the Crime (Sentencing Procedure) Act 1999 should be approached with care. Once a section 12 bond is breached the best that an offender can do is periodic detention. Frequently such bonds are for durations that are longer than what would be the appropriate sentence of imprisonment.
A crime committed in the home is treated as seriously as a crime committed in a public place against a stranger. Don’t forget that it is an offence to contravene any term of an AVO which carries a maximum penalty of 50 penalty units and/or two years imprisonment.
Should you become the subject of a TIO (telephone interim order) do not delay – call LAC Lawyers for an urgent appointment before the matter proceeds to properly protect yourself in these circumstances.
It is important to keep the following points in mind.
- An AVO remains in force for the period specified by the courts, otherwise for six months.
- An application may be made to the court to vary or revoke an AVO where it is appropriate to do so.
- A defendant may appeal to the District Court against an AVO made in either the Local Court or Children’s Court but this must be done within 28 days of the lower court’s decision.
- An AVO can affect employment opportunities, the ability to maintain various licences including a firearm’s licence or permit, restrictions on personal freedom including communication and movement and may conflict with Orders made by the Family Law Court.

The Changes In Toronto Drunk Driving Laws and Its Implications

July 12th, 2009 at 03:02am Under Drunk Driving Law

When the first cars and most important the mass production of cars were invented, no one could even imagine how big this industry will be. It took about hundred years and the cars rapidly multiplied in numbers, becoming an important element of our everyday life. Unfortunately they became not only a useful thing, but also made their own death toll and turned even the smallest road a pretty dangerous place. The worst part of the accidents is definitely driving under the influence of better to say drunk driving, as you will see in this article even the smallest changes in laws on drunk driving can lead to heated debates.The first rules regulating the driving under the influence were set with the Criminal Law Amendment Act, 1968-69, also known as Bill C-150. The bill made it a “per se” offence to drive with a blood alcohol content (BAC) in excess of milligrams of alcohol in 100 milliliters of blood. Also the Bill stated that a refusal of a police officer’s demand to provide a breath sample is an offence too. Still the drivers managed to handle small over the norm alcohol level with “two-beer” defense. The idea of this defense is following, people accused of driving with more than the norm set by the law (.08 milligrams of alcohol in 100 milliliters of blood) would often argue they had consumed just two beers. Also a popular statement is that the last beer was consumed not long before the breath test, so there is more alcohol in their breath than in their blood.An often used driver “two-beer” defense has been virtually abolished by a new federal legislation. The new changes, that are part of the federal government’s Tackling Violent Crime Act, kept the right to question the breathalyzer results, but only if the person provides the court with technical evidence proving the equipment was malfunctioning or wasn’t operated properly.Some lawyers stated that the new legislation is unconstitutional and they will appear before the Superior Court of Justice in Toronto to present their arguments. They try to resolve thing quickly, before the government can get on with the business of prosecuting impaired drivers. The main argument is that with this change divers will be unable to protect themselves if the equipment is really damaged or malfunctioning. Usually drivers don’t know much about breathalyzers and they won’t be able to present valid evidence to the court. Also the information of the breath machines, including maintenance records, specs and the manufacturers’ manual are kept secret and not available to casual driver who is stopped on the street. This turns a useful tool into a one-way guilty ticket, in case of malfunctioning.On the other side this change is positive for the police officers. Usually they are in a difficult situation. Some of the officers stated that they rely more on temporary license suspensions and not on the charges against drivers slightly over the limit, because the “two-beer” defense can easily beat these charges.

Canadian Criminal Law Amendments Act – How Justified is It Actually?

July 11th, 2009 at 02:58pm Under Criminal Law

The Criminal Law Amendment Act, 1968-69 was introduced as Bill C-150 by then Minister of Justice Pierre Trudeau in the second session of the 27th Canadian Parliament on December 21, 1967. It passed third reading in the House of Commons after heated debates by a vote of 149 (119 Liberals, 18 New Democrats, 12 Progressive Conservatives) to 55 (43 Progressive Conservatives, 11 Créditistes, 1 Liberal) on May 14, 1969. It introduced major changes to the Criminal Code of Canada and it was literally a cornerstone of modern Canadian law. The bill decriminalized homosexuality, allowed abortion and contraception, and regulated lotteries, gun possession, drinking and driving offences, harassing phone calls, misleading advertising and cruelty to animals. This year it will be the 40th anniversary of the bill’s passage.Homosexuality was one of the biggest problems of the Bill-150. This change was influenced in the late 1960s by the British Parliament’s adoption of the Sexual Offences Act 1967, which decriminalized homosexual acts in England and Wales. Naturally Canada wanted to follow this democratic decision. The biggest opposition was from the religious people, the Catholic Créditistes of Quebec held up debate for three weeks supported by the far-right Edmund Burke Society and the Fellowship of Evangelical Baptist Churches in Canada. Still at the end homosexuality was legalized with age of consent at 21; although it was later lowered to 18.Contraception and therapeutic abortion under certain conditions were legalized by the bill. This was a step away form the influence of the Catholic Church’s moral positions on these issues, basically one more separation of the Church and State. Bill C-150 made it legal for women to get an abortion if a committee of three doctors felt the pregnancy endangered the mental, emotional or physical well-being of the mother. These changes were very important and became a stepping stone for many other freedoms and options that have altered women’s place in Canadian society. In 1988 the R. v. Morgentaler ruling, left Canada without any laws regulating abortion.A number of minor but important changes were made to gambling, gun control and driving under the influence. Before the bill small scale gambling on behalf of charities was permitted, but only Bill C-150 gave the provincial and federal governments the opportunity to use lotteries to fund worthwhile activities, the best example were the 1976 Montreal Olympics. For the first time the bill made it illegal to provide firearms to persons of “unsound mind” or criminals under prohibition orders. The term “firearm” was also expanded; non-restricted, restricted, and prohibited firearm categories were also introduced. Bill C-150 made it a “per se” offence to drive with a blood alcohol content (BAC) in excess of 80 mg/100 ml of blood. The refusal of a police officer’s demand to provide a breath sample was made an offence too. These are the basic rules against drunk driving now.The Criminal Law Amendment Act 1968-69 basically changed almost all the complicated and important spheres (except for maybe immigration) and solved many ethical problems, creating laws suitable for modern society.

Construction Law in Canada

July 9th, 2009 at 08:56pm Under Construction Law

Construction law is the body of law that deals with all matters relating to the construction process.  These include such topics as building contracts, bonds and sureties, construction and builders’ liens, tendering, and construction claims, and affect all participants in the construction industry, including financial institutions, architects, builders, engineers and planners.

Construction Law explores the general principles which govern civil liability for the design and construction of building works.  Essentially it is concerned with three key questions which arise in case of the design or construction proving defective-

Who Can Be Sued   

Contractors or builders or concerned agents can be sued for errors while construction and can be held liable for damages to the workers and other injured persons.

Who Can Sue

The workers injured in construction site can sue the contractors/builders for injuries and damages on their part and in case of any death, their families can sue guilty persons who are liable for errors in construction.

Remedies Available to the Injured Party

Compensation is given to the injured persons for errors and negligence of contractors or builders.  Remedies are available for breach of contract by the contractors and if anywhere while construction, any person falls from height or gets injured due to any reason, he/she can sue the concerned contractor for damages etc.

Construction Claims Procedures

Two construction claim procedures can be followed.

Notice requirements

Every construction contract includes notice requirements which impact the parties’ contractual rights and obligations.  Giving timely notice can avoid costly and time consuming errors.  The first and foremost consideration in addressing notice is actual notice language.  Each contract should be carefully reviewed to identify its notice obligations.  The representative who is at the site of the construction should be duly informed about these notice obligations as early as possible in the construction process.  From the owner’s prospective contact should be drafted to ensure that the notice requirements are set forth clearly and unambiguously.  Notice requirements should be fair. 

When a company wants to construct anything, it must properly notify all parties who may be affected by or have an interest in the proposed construction, so that they can have the opportunity to make a submission to the concerned party regarding the proposed construction.  Such notice may include direct notice to affected landowners, communities and others, as well as public notices in local newspapers. 

Dispute resolution provisions

Dispute which is not resolved by discussion and negotiation are send to the arbitrators and mediators for resolution. The panel of arbitrators and mediators shall have the jurisdiction to arbitrate in respect of any matter which the agreement stipulates is to be determined by the arbitration and any matter concerning the interpretation or application of the agreement where the parties agree to be bound by an arbitration decision.    

Canadian Construction Documents Committee (“CCDC”)

Parties enter into a standard form contract, in case of larger projects.  The CCDC has developed a series of licensed contracts for different situations including stipulated price contract for a situation where there are is an owner and general contractor and a design build contract where there is no general contractor.  The CCDC contract is often modified through a series of negotiated supplementary conditions.

The CCDC documents contain partnering language whereby disputes may be resolved by an arbitrator or project consultant early and frequently throughout the progress of the project.