Criminal Law

Moss Vale Local Court comes to Picton Court House

Moss Vale Local Court come to Picton Court House

During the first two weeks of March, Moss Vale local court will sit in Picton.

We are really pleased to hear that the Picton Court House is now repaired and open after a severe storm last June damaged the court house. The court house is a historically important landmark in Picton and we are lucky enough to have our office opposite it.

While the Picton Court House was closed for repair work, the local court was temporarily sitting in Moss Vale. In early March this year, Moss Vale local court will sit in Picton Court House while Moss Vale gets some TLC of its own.

At Coutts Solicitors & Conveyancers we offer a full range of agency services for criminal law including defended AVO, traffic offences and assault as well as for any civil listings.

What you need to know about bail

Bail is the term used to describe the release of any accused person awaiting a trial. If you have been charged with an offence, Police must make a decision as to whether to release you on bail or keep you in custody.

If the police refuse to give you bail, they are required to take you to court as soon as possible so that you can make an application for bail to the court.

Will I get bail?

In order for the court to give you bail, it must assess:

1.       Whether you need to show cause

If the court determines you must show cause then this means you must satisfy the magistrate as to why locking you up is not justified.

2.       Bail concerns

The court must also consider:

  • Your background and criminal history;

  • Nature and seriousness of the offence;

  • Whether you will attend court when you are required;

  • Whether you will commit serious offences;

  • Whether you will endanger any person in the community;

  • Whether you will interfere with any witnesses or evidence; and

  • Any other factor the court considered relevant.

If the court is not concerned with any of the above matters then they may give you bail.

Will my bail be conditional?

The below are examples of conditions that may be imposed on your bail:

  • Report to Police daily, weekly, etc

  • Live at a certain address

  • Give up your passport

  • Not associate with certain people

  • Not go within a specific distance of certain places

  • Obey a curfew

  • Agree to submit to breath tests

How long will my bail last?

Bail will last until your court case in finalised.

What if my bail is refused?

If you have been refused bail then you can only ask for bail again in the same court if:

  • You were not represented by a Solicitor the first time you asked for bail;

  • You have new information that would impact the courts assessment;

  • You are under 18 years of age and the last bail application you made was on the first appearance of your offence

If your bail is refused then you may choose to apply to the Supreme Court to give you bail. Otherwise, you must wait until your trial or sentencing date for your court case to be completed.

What happens if I breach my bail?

If you breach your bail or any bail conditions then you may be arrested and brought back to court.

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887.

4 Do's and Don'ts when your house is being broken into.

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Generally, when a person’s home is being broken into, they automatically assume that they have the right to fight the intruder and/or assault the intruder because the intruder is trespassing in their home. Unfortunately, the law does not account for homeowners having a right to fight or hurt an intruder, and this mentality is what sees a lot of people experience the Criminal Courts across New South Wales.

So the question then is: what should you do if your house is being broken into?

  1. Listen carefully so that you can assess where the intruder may be and whether it is safe for you to get out of the house;
  2. If it is safe to do so, leave the house and go to your neighbours. If you do not feel that it is safe to leave, hide in a safe place inside the house with your family all in the one room and lock the door;
  3. If you do come into contact with the intruder, comply with their requests; and
  4. Call the police and report the incident. Wait for the police to attend before you return to your house.

What shouldn’t you do if your house is being broken into?

  1. Do not approach the intruder;
  2. *Do not assault the intruder.
  3. Do not call out and let the intruder know that you are in the house, if it is not safe to leave; and
  4. Do not tell the intruder that you have called the police.

*If you do assault an intruder, you may face legal implications and be charged. It's difficult to prove that you have acted in self-defence. It is up to the court to determine if you have acted in self-defence based on the evidence provided to them. If you are charged, you can be given up to 5 years imprisonment depending on the decision made by the court

Things to consider before you approach an intruder if you decide not to take the above advice:

  1. You don’t know who the intruder is;
  2. You don’t know how many intruder’s there are;
  3. You don’t know the mental or physical state of the intruder (For example, whether the intruder is under the influence of drugs or alcohol); and
  4. Whether the intruder is carrying a weapon.

Do not be a hero in these circumstances – you could be placing yourself and/or your family in a very dangerous situation.

You should ensure that you have good measures in place for your home security to limit the chances of having your home invaded. Also note that if an intruder is injured during their attempt to break into your property as a result of a homeowner assaulting them, they may have a right to claim through the civil courts, against the homeowner.

If you have been charged, or need advice in relation to a criminal law matter, please contact our Criminal Law Hotline on 02 8324 7527 to arrange an initial free consultation today.

Your guide to Apprehended Violence Orders (AVO) in NSW

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What is an Apprehended Violence Order (AVO)?

An AVO is an Order made by a court against a person for the following reasons:

  • That person has made you fear for your safety;
  • To protect you from further violence, intimidation or harassment;
  • To prohibit the person from assaulting, harassing, threatening, stalking, or intimidating, amongst other conditions.

The person that is feared is known as the defendant, and the defendant must obey the Order made by the court.

There are two types of Apprehended Violence Orders:

  1. Apprehended Domestic Violence Order (ADVO) is made where the people involved are related, living together or in an intimate relationship, or have previously been in a similar situation. They can also be available to people who are or have been in a dependent care arrangement with another person, including paid carers, and to people living in the same residential facility.
  2. Apprehended Personal Violence Order (APVO) is made where the people involved are not related and do not have a domestic relationship, for example, if they work together or live in the same neighbourhood.

In both circumstances, the police can make a Provisional AVO when they are waiting for the matter to be listed in court. When it is listed in court, the police can then apply for an interim AVO to protect a person, whilst the matter is pending.

A provisional order will remain in place for 28 days at the most. An interim AVO will remain in place until the matters has finalised, and either been dismissed or a final AVO has been granted.

If a final AVO is made, they are generally made for 12 months to 2 years. An alleged victim has the opportunity to extend the AVO prior to the end date, if they are still fearful of the Defendant, and have proof of same.

When can the court make an Order?

The Court can make an AVO if:

  • The Defendant has been served with the Application but does not come to court without a good reason;
  • The Defendant consents to an AVO being made; or
  • After hearing evidence, the Magistrate is satisfied that there are fears for a person’s safety and those fears are reasonable.

Proceeding to Hearing

If the Defendant does not agree to the AVO being made, the matter will be delayed for Hearing. The Magistrate will then direct both the Defendant and the Police to file written statements to the court by a specific date. If the Applicant (person in need of protection) fails to comply with these directions, the court may dismiss the Application, or the court may delay the matter for the filing of these statements. Similarly, if the Defendant does not comply with the direction, they may not be able to give any evidence at Hearing.

Once both parties have complied with the direction of the Courts, the Magistrate will set the matter down for a Hearing.

At the Hearing, the evidence is usually based on what is contained in the statements; however the parties may be required to give further evidence verbally. The police may also submit a video or audio recording.

The Applicant or the Police Prosecutor on behalf of the Applicant, presents their case first. The Defendant or their lawyer will then have the opportunity to ask the Applicant and witnesses questions about the evidence. The Defendant will then present their case. The Police Prosecutor on behalf of the Applicant will have the opportunity to ask the Defendant questions about their evidence.

What conditions can be imposed?

 The court can impose both Mandatory Conditions and Additional Conditions, if they deem it necessary.

 Mandatory Conditions

  1. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
  2. The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
  3. The defendant must not stalk the protect person(s) or a person with whom the protected person(s) has/have a domestic relationship.

Additional Conditions

  1. The defendant must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises.
  2. The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises.
  3. The defendant must not go within a certain distance from where the protected person(s) may from time to time reside or work.
  4. The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative, or as agreed in writing, or as directed from Family Law Court Orders.
  5. The defendant must surrender all firearms and licences/permits.
  6. The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care.
  7. The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) may from time to time reside or work within a specified time of the defendant consuming drugs or alcohol.
  8. The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s).

Can the AVO be dismissed if the alleged Victim does not appear at Court?

A number of scenarios can occur if the alleged victim does not appear at Court. These include:

  • Dismissing the AVO;
  • Issuing a warrant for the arrest of the alleged victim (more likely if the alleged victim has been served with a subpoena);
  • Adjourning the matter to see if the police can get the alleged victim to attend court on another date; or
  • The matter is stood in the list until later on in the day to see if the police can contact the alleged victim to attend court.

Can I be charged along with the AVO?

Police can charge a Defendant, as well as take out an AVO on the Defendant. There is a chance that the charge or AVO can be dropped, however this is uncommon as Police are determined to have these matters dealt with in Court, according to law.

What effect will an AVO have on my future?

An AVO is not a criminal charge, so if an AVO is made, you won’t get a criminal record. However, there are some issues that arrive in the event that an AVO is made against you. These include:

  • The police will record the AVO in their database.
  • If you have registered firearms, you will have to give them to the police, and your firearms licence or permit is automatically suspended by a provisional or interim order, and revoked by a final order.
  • You cannot obtain a new firearms licence for 10 years after the order has finished.
  • An order may affect your ability to work as a security officer, police officer or corrections officer, or if it involves children, it may also affect your ability to work with children.

Breaching the AVO

You can be charged with the offence of Contravene AVO if you breach the AVO. The maximum penalty is a fine of $5,500.00 and/or a prison sentence of 2 years. It is a very serious offence, and if you have been charged, please contact our 24 hour legal hotline on 0403 242 924 to arrange an initial free consultation.

If you have any questions, or are seeking advice in relation to an AVO, please contact our Criminal Law Hotline on 02 8324 7527 to arrange an initial free consultation.

KNOW YOUR RIGHTS WHEN DEALING WITH NSW POLICE

Want to know your rights when dealing with NSW Police? From being approached by police, to being questioned by police, to being searched by police, to being arrested…

Approached by Police

If you are approached by police, they will generally request that you provide them with a copy of your identification. If requested, you SHOULD comply with this request from the police and provide them with your identification. You MUST legally comply with this request in the following situations:

  • If you are under the age of 18 years;
  • If you are suspected of committing an offence on a public train;
  • If police suspect on reasonable grounds that you may be able to assist them to investigate an indictable offence; and
  • In situations involving traffic offences.

Please note that if the police lawfully require you to provide photographic identification, they also have the power to ask you to remove any face covering to allow the police to see your face.

Police Questioning

ALWAYS obtain legal advice prior to agreeing to being questioned by police.

  • DO NOT answer any questions, except for providing your name and address;
  • DO NOT agree to be recorded;
  • DO NOT sign anything.

If you have NOT been arrested, you DO NOT have to attend the police station for questioning.

If you have been arrested, you generally have the RIGHT TO REMAIN SILENT and do not have to say or do anything.

You must answer police questioning in relation to traffic offences, with the following situations:

  • You have to provide police with your licence, including if you are accompanying a learner driver;
  • If you were involved in a traffic accident, you have to provide details about the accident to the police if they are called; and
  • If a vehicle is suspected of being used for a serious offence, the owner, driver and passengers must provide their details to the police.

Searching

The police can search you (including your car and possessions) under the following circumstances:

  • If you agree;
  • If you are under arrest or in custody;
  • If they have a search warrant;
  • If they suspect on reasonable grounds that you have in your possession, prohibited drugs;
  • If they suspect on reasonable grounds that you have in your possession, any weapon that may be used to commit a serious offence;
  • If they suspect that your car may have been used in connection with an indictable offence; and
  • If they suspect that you may have something stolen in your possession or obtained illegally.

If police are going to search you, they must:

  • Tell you why they are searching you;
  • The name and station of the person searching you;
  • They should not make you remove any clothing, except outer clothing, such as a jacket. In the event that they wish to strip search you, you are entitled to as much privacy as possible, in the circumstances.

As far as is practicable, police must use an officer of the same gender as the person being searched.

Drug Dogs - The police have dogs which have been trained to detect drugs. If a dog detects that you may have drugs, then the police may have a REASONABLE SUSPICION to perform a search on you and your possessions.

Arrested

If you are arrested by police, you have the RIGHT TO REMAIN SILENT. This means that you do not have to participate in an interview, answer any questions or participate in an identification parade.

The police can arrest you if:

  • They know or suspect on reasonable grounds that you have committed an offence;
  • There is a warrant out for your arrest;
  • They think you are about to commit an offence;
  • You are breaching the peace;
  • You have breached your bail conditions; or
  • An application for an AVO needs to be served on you.

When being arrested, the police must do the following:

  • Tell you why they are arresting you; and
  • Tell you their name, rank and place of duty.

If it is not reasonably practicable to tell you these details at the time of your arrest, they must tell you as soon as possible after your arrest.

Police must use REASONABLE FORCE to arrest you. Unreasonable force is considered to be assault.

Bail

If the police charge you with an offence, they must make a decision as to whether to release you on bail or keep you in custody. If the police refuse to grant you bail, they are required to take you to court as soon as practicable so that you may make an application for bail to the court.

Police can detain you for up to four (4) hours after arrest for investigation and questioning. At the end of this period, police must make a determination as to whether they will charge you and if so, whether you will be granted bail.

Luisa is an experienced criminal law solicitor and legal aid approved to give advice and act on criminal law matters. Contact her on the 24 hour emergency hotline 02 8324 7527.