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F.A.Q.

a. I have received a Penalty Notice for speeding over 30 or 45 KPH. The Police officer told me that I will lose my driver's licence. Is there anything I can do to appeal?

You have a number of options:

(i) If you think that you were not exceeding the speed limit by either 30 or 45 KPH (even if you were exceeding the prevailing speed limit) then you can go to Court and defend the case on the basis that either you were not speeding or that even though you might have been going over the speed limit (e.g.100 in an 80 zone) that you are not guilty of going 110 in that area. If the Court finds for you then you will keep your licence.

(ii) You can pay the fine. The RTA will then send you out a notice telling you that you will be suspended from a certain date for at least 3 months. The letter will give you the option of appealing the suspension. If you do appeal, the court will consider your case and perhaps reduce or even quash the suspension.

If you need to speak to someone about a driver's licence suspension contact Sharon Ramsden at sramsden@marsdens.net.au and she will help you.

b. We have just had a visit from the Police who say that our son is suspected of being involved in a serious crime. They want to take a sample of his DNA. Do they have the right to do this?

The short answer to this question is 'yes'. However, whilst the Police have a number of powers to compel people to do things during the course of an investigation, they do not have the power to conduct what are referred to as intimate forensic procedures which include taking a DNA sample from a person without their consent. Providing a DNA sample is a painless procedure which involves the collection of fluid from the mouth of the person using a soft 'swab'. It is not a medical procedure.

If the person does not give consent to providing a sample, the Police have to apply to a Magistrate to justify the reasons for wanting to take the sample which includes what basis they have for suspecting the person in question is involved in the investigation.

If you need to speak to someone about Police taking a DNA sample contact Sharon Ramsden at sramsden@marsdens.net.au and she will help you.

c. We have recently moved into a new home and the neighbours next door have started to become threatening and abusive to my wife and children. I have called the Police on numerous occasions but they do not seem that interested. Life is becoming hell for us. Is there anything we can do?

There certainly is. Whilst it really is the role of Police to assist you in these types of situations, they are not always properly resourced with the staff or experience to deal with what can be very difficult situations.

You have the right to make an application for an Apprehended Personal Violence Order (APVO) in the Local Court. Your case will be heard by a Magistrate who will, if necessary, make an order that certain individuals do not assault, molest, harass intimidate or interfere with you and your family. Once an order is made, any breach of that order may result in serious punishment including a prison sentence.

However, the Magistrate may also refer the case to conciliation to avoid a Court case.

We are able to assist in advising and representing you in these types of situations.

If you need to speak to someone about an Apprehended Personal Violence Order or an Apprehended Domestic Violence Order, contact Sharon Ramsden at sramsden@marsdens.net.au and she will help you.

d. I have had a telephone call from a Police officer who has asked me to come to the Police station and speak with her about "an assault". She would not give me any other details. I had an argument with my ex in the car park of a club a couple of weeks ago but nothing happened. I have nothing to hide and have done nothing wrong but do I need to speak to a lawyer?

Absolutely. Even if you have done nothing wrong and have a clear conscience, you need to get legal advice before you say anything to the Police. Our legal system ensures that an accused person has the right to remain silent when spoken to by the Police and if that person exercises their right to silence it cannot be held against them. There is no doubt a telephone call from a Police officer can cause great stress and discomfort to a person, even when they have done nothing wrong. The most effective way to deal with this is to have a lawyer contact the Police and act on your behalf from the start so that your rights are protected.

If you have been contacted or approached by the police contact Sharon Ramsden at sramsden@marsdens.net.au and she will help you.

e. I was at a music festival with friends last weekend and the Police sniffer dog caught me with a small amount of drugs. Even though the drugs weren't really mine, I don't know if I really need a lawyer. Do I need to go to all that trouble for a minor offence?

People (especially young people) need to remember that what is considered to be a minor offence by certain members of the community in this country is not always the case overseas. If you are found guilty of a drug related offence (no matter how small the amount) you may face considerable difficulty in gaining a visa or entry into an increasing number of countries that include the United States and the U.K.

You should also understand that a 'conviction' on a person's record remains on a person's record for a number of years and every time you apply for a job, the odds are that you will have to declare the conviction.

If a person is guilty of a crime (even crimes that are not trivial) the court has the discretion to not record a conviction against them. A conviction recorded against a person can have an effect on a person's life and reputation over many years. For that reason it is most important that your case is argued in court in the most thorough and competent manner. Sometimes, a person thinks that they are guilty of a crime when they are technically not guilty. To guarantee the best result you should be represented for any matter.

Contact Sharon Ramsden at sramsden@marsdens.net.au for advice and representation to help you retain your good name and character.

f. Our adult son has been charged with damaging property and has to appear in Court. He has never been in trouble before but recently went through a bad marriage break-up which has caused him to suffer terrible depression. He is currently seeing a psychologist. We don't think that he is mentally ill but we are worried that if he is convicted for this offence that he will have a black mark over his name that will affect his ability to get a job in the future. Is there any way the court can take this into account?

There certainly is. People who have not been diagnosed as 'mentally ill' but are suffering from a condition for which treatment is available by a medical health professional, or are developmentally disabled, can be diverted from being dealt with in the criminal justice system in certain circumstances. Their case can be presented so that the Court will consider not recording a conviction or even a finding of guilt against them. Rather, the Court may direct the charge be dismissed upon condition the person continue with a certain course of treatment.

If you need to speak to someone about a mentally ill person who has been charged with a criminal offence contact Sharon Ramsden at sramsden@marsdens.net.au and she will help you.

g. I have been caught drink driving. Some people have told me there is nothing much that can be done and that it is a waste of money getting a lawyer. Is that true?

That depends upon the lawyer that you get. Drink driving offences can carry with them jail sentences where it involves high range (over 0.150) or middle range (over 0.08). Also, a person who is convicted of a drink driving offence faces automatic disqualification of 3 years for High Range, 12 months for Middle Range and for Low Range (0.05 to 0.08) 6 months. The 'automatic' periods of disqualification may be varied by the court to 12 months - High Range, 6 months - Mid Range and 3 months - Low Range.

If the person before the Court has a conviction for a similar 'major offence' within the previous 5 years the penalties are much higher.

In 2007, the New South Wales Supreme Court handed down a Guideline Judgment in relation to high range drink driving offences. This was relevant to people charged with all types of drink driving offences because the principles set out by the Supreme Court are followed by most Magistrates sitting in the Local Courts. One of the points the Supreme Court made was that "automatic means automatic" as far as disqualification is concerned, unless there is good reason demonstrated as to why the automatic period should be lowered.

The Guideline Judgment also makes it very clear that courts should consider sending people to prison for High Range offences in circumstances where there is increased moral culpability.

Magistrates in the Local Court hear many drink driving cases each day. The reality is that in order to obtain the best result possible and to get you back on the road as quickly as possible, you may need careful and considered legal representation.

Contact Sharon Ramsden at sramsden@marsdens.net.au if you need any assistance with your drink driving case.

h. I am a student receiving Austudy Centrelink payments whilst working part-time during the holidays. I recently got a telephone call from someone at Centrelink who said that I had been overpaid and could I pay the money the back. I did as I was asked but have now received a Court Attendance Notice for fraud. I will never get a job if I am convicted of fraud. Are there lawyers who are experienced in this area?

Yes. Social security fraud is a particularly difficult and technical area of the criminal law. Prosecutions of this type are launched under federal legislation and cases are considered on the basis of the Commonwealth Criminal Code.

The evidence presented by the prosecution is often complex and intimidating to those who are not well versed and experienced in these matters. Many prosecutions under this type of legislation are open to challenge and it is important to ensure that your legal representative is knowledgeable in this challenging area of the law.

Contact Sharon Ramsden to help you at sramsden@marsdens.net.au now.

i. I am a security officer licensed to carry a firearm. I recently had an argument with a neighbour over a noise complaint that I had made and he alleged that I threatened him. I did not. I was not charged but now the Police have suspended my Security and Firearms licences. I am unable to work without either and think this is most unfair. Do I have a right of appeal?

There is an appeal process for both types of licence which may end in your case being considered by the Administrative Decisions Tribunal. The New South Wales Police Firearms Registry is responsible for the granting of firearms licences in this State, as is the New South Wales Police Security Registry in relation to the regulation of licence holders in that industry. Whilst both governmental agencies have the best interests of the community at heart, they are also capable from time to time of not fully considering the interests of the licence holder or, on occasion, make an error as to the operation of the law.

The appeal process for both types of licence involves a number of steps and time limits that need to be complied with.

Sharon Ramsden can be contacted at sramsden@marsdens.net.au today.

j. My partner has been arrested by the Police. How long can they keep them for before charging them?

Generally speaking, a person who is under arrest can be detained by Police for the period of time that is referred to as ‘the investigation period' . This period referred to as a reasonable time, as set out in the legislation that give Police the power to hold a person against their will.

However, the Police are not permitted to hold the person for more than 4 hours unless given an extension by a Court or as set out in what is known as an investigation warrant that they have got from a Justice prior to the arrest. In determining what is a reasonable time, certain periods can be disregarded as dead time. Periods which can be treated as 'dead time' include:

  • Time taken to convey the person to the nearest location with facilities for conducting forensic procedures;
  • A reasonable time waiting for the arrival of Police officers or people whose special skills are necessary for the investigation;
  • Time waiting for a tape recorder or video tape to become available to record a record of interview;
  • Time to allow the accused to communicate with (presumably by phone) a friend, relative, guardian, independent person, lawyer or consular official;
  • Time taken in waiting for one of the people referred to in (iv) to arrive;
  • Time taken to allow the accused to consult at the place where he is detained with one of the people referred to in (iv);
  • Time taken in arranging for and allowing the accused to have medical treatment;
  • Time waiting for an interpreter to arrive or become available;
  • Time reasonably required to arrange and conduct an identification parade;
  • Time for the accused to rest, receive refreshments, or go to the toilet;
  • Time for the accused to recover from intoxication from alcohol and/or drugs;
  • Time for the Police to prepare, make and dispose of an application for a detention warrant or search warrant;
  • Time reasonably required to charge the accused.


As a general rule, the person must be released during the investigation period or brought before a Justice, Magistrate or Court within the investigation period or 'as soon as practicable' after the end of that period.
If you require any assistance with a person being held by Police contact Sharon Ramsden at sramsden@marsdens.net.au to obtain assistance for your family.
 

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