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!
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.