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Courtroom wig

Appearing before a magistrate at the Downing Centre Court can be a nerve wracking experience.

For those who are charged with crimes, magistrates can be viewed as tough, emotionless beings with all the power in the world over their future.

Experienced criminal defence lawyers will often be aware of the particular likes and dislikes of specific magistrates, and how to go about getting the best possible result.

Although some think that magistrates ‘live in an ivory tower’ and are ‘out of tuch’ with the community, the reality is that magistrates often live in the same communities and deal with the same day-to-day issues as most others – even though they have led illustrious legal careers.

He we take a behind-the-scenes look at three of the most accomplished magistrates at Sydney’s Downing Centre court.

Graeme Henson – Chief Magistrate

Graeme Henson was appointed as Chief Magistrate of the Local Court of New South Wales in 2006.

In 2010, he was also appointed as a Judge of the District Court of NSW by then Attorney-General John Hatzistergos. He currently serves in both roles interchangeably – although he is usually found in Court 5.2 at the Downing Centre Court; or in the Chief Magistrates Office on Level 5.

Magistrate Henson was admitted as a lawyer in 1980. He spent two years working for the Office of the Director of Public Prosecutions between 1986 and 1988 before being appointed a Magistrate. Besides his judicial positions, Mr Henson is also a member of the Wollongong University Faculty of Law Committee and the Anglican Aged Care Board.

His Honour has presided over several newsworthy cases during his time on the Bench: earlier this year, he sentenced Rebecca Hannibal, the 19-year-old woman who supplied her best friend Georgina Bartter with three ecstasy pills.

Ms Bartter ultimately died after consuming the pills; collapsing at the Harbour Life Music Festival in 2014.

At a sentencing hearing in June, His Honour placed Ms Hannibal on a 12-month good behaviour bond after providing lengthy remarks on sentence.

And late last year, Mr Henson made headlines after he infamously revoked Amirah Droudis’ bail.

Ms Droudis was the partner of Sydney siege gunman Man Haron Monis, and was facing charges for murdering his former wife. A review of her bail was ordered by then NSW Attorney-General Brad Hazzard following the highly-publicised siege. Ms Droudis is currently in custody at Silverwater Womens’ Prison awaiting trial.

Besides overseeing a wide range of criminal cases in the Local Court, the Chief Magistrate has been known to fight for greater working benefits for his fellow colleagues.

Back in 2012, he made the news after demanding a range of entitlements for Magistrates, including a minimum two-week court break over the holiday season, as well as mid-year break for the Local Court Conference.

He has also asked for extended long service leave, greater carer’s leave entitlements and free travel on public transport.

Jane Mottley – Deputy Chief Magistrate

Magistrate Mottley began her legal career in 1979 when she commenced working as a clerk at North Sydney Court.

But she soon rose through the ranks; being admitted as a lawyer in 1989 and spending time working for Legal Aid and the State Drug Crime Commission, before being appointed as a Magistrate in 2000. She was promoted to the role of Deputy Chief Magistrate in 2009.

Like her colleagues, Magistrate Mottley has presided over many famous cases before the Court: earlier this year, she heard a bail application made by disgraced criminal lawyer Ugo Parente, who was charged with drug supply after police located a number of containers filled with GHB in his car and home. Her Honour refused Mr Parente bail.

In December 2014, Ms Mottley sent Manly Sea Eagles player Jamil Hopoate to prison for his ‘savage and unprovoked’ assault on a man outside the Ivanhoe Hotel in Manly, finding that ‘Mr Hopoate and his co-offenders set out to exact revenge on a person or persons’. She handed him an 18 months prison sentence with a non-parole period of 12 months.

Christopher O’Brien – Deputy Chief Magistrate

Christopher O’Brien was appointed a Deputy Chief Magistrate in January 2014, after spending 8 years as a Local Court Magistrate working all around the state.

Prior to his appointment to the Bench, he spent 17 years working as a partner in a Sutherland law firm.

He has also presided over several interesting cases – including that of a police officer who was charged with misconduct in public office after he drove a drink-driver home.

Police officer Christopher Dove failed to charge the woman with drink driving, instead seizing the opportunity to make sexual advances towards her.

Magistrate O’Brien dismissed the charge under a section 10 dismissal or conditional release order, finding that the officer’s legal battles were ‘sufficient to reflect the objective seriousness of the offending overall.’

He also sentenced a young law student who ran naked through a Byron Bay kebab shop during schoolies last year, dismissing the charge of offensive behaviour under a non conviction order.

Officer caught drink driving

Earlier this year, we published a blog about a police officer who was charged with drink driving and driving without a licence.

46-year-old Andrew Clarke, a Detective Sergeant who had worked for the NSW Police Force for over 26 years, made headlines in July after he blew a high range reading of 0.17 at a roadside breath test – more than three times the legal limit.

Subsequent investigations revealed that he had not held a licence in over 25 years, despite the fact that NSW Police guidelines require police officers to hold a current driver licence.

Officer Sentenced

After appearing at the Downing Centre Local Court earlier in the year, Mr Clarke proceeded to sentence before Local Court Magistrate Gary Wilson last week.

Mr Clarke’s criminal defence lawyer argued that the Court should have regard to the fact that he was not performing duties as a police officer at the time of the incident, and that he was suffering from mental health problems which were exacerbated by his duties as an undercover officer.

However, the police prosecutor argued that a heavy sentence was warranted due to Mr Clarke’s role as a police officer, which meant that he should have known about the seriousness of his actions.

After hearing submissions from both sides, Magistrate Wilson imposed a fine of $2,000 and made an order preventing Wilson from applying for a licence for nine months.

A fine carries a criminal conviction, which means that the offence will be recorded on Mr Clarke’s criminal record.

His lawyer indicated that this could have a detrimental affect on his ability to continue as a police officer in NSW.

A Fair Penalty?

High range drink driving is considered to be a serious offence in NSW, especially if the offender does not hold a driver licence.

In NSW, section 110 of the Road Transport Act 2013 prescribes a maximum penalty for high range drink driving (i.e. a reading of 0.15 or higher) of 18 months imprisonment and a fine of $3,300 for a a first offence.

For the offence of driving without a licence, section 53 of the Road Transport Act 2013 prescribes a maximum penalty of $2,200.

Taking all matters into account, it could certainly be argued that Mr Clarke received a relatively lenient penalty – particularly considering his breach of the public’s trust as a police officer.

Police with Criminal Convictions

Although Mr Clarke may fear losing his job, he can take comfort in the fact that hundreds of other police officers around the state have been allowed to keep their positions despite being convicted of criminal offences – many of which are more serious than high range drink driving and driving without a licence.

Last year, the ABC obtained records under Freedom of Information laws showing that 434 officers in NSW have convictions for criminal offences; which is around 1 in 40.

Many officers have been convicted of more than one crime – and several of them are senior members of the police force.

A breakdown of the offences showed that 58 officers have been convicted of high-range drink driving, 144 have convictions for mid-range drink driving, 39 have convictions for stealing, 14 for break, enter and steal, 7 for common assault and 4 for assault occasioning actual bodily harm.

These statistics have led many to question whether those who are entrusted with enforcing the law should be allowed to become police officers – or, indeed, continue working within the force if they commit criminal offences.

Sydney Harbour

An elusive father and son duo has featured heavily in the news over the past week.

Gino and Mark Stocco are two of the most wanted fugitives in the nation at present. They are suspected of number of serious criminal offences, including stealing firearms, burning down farms, killing animals, damaging and destroying property, and various acts of identity fraud.There are nine outstanding warrants for their arrest.

Police hope that the increased media attention will assist members of the public to recognise and report the men to police.

But they are not alone: Police recently released a list of 20 of the Most Wanted People in Australia as part of Operation Roam; a national initiative between Crime Stoppers and state and territory police which aims to gather information from the public to assist in tracking down fugitives.

Counting down five of Australia’s most wanted:

5. Brady Hamilton

47-year-old Brady Hamilton has been on the run for 16 years, after he allegedly bashed a man named Peter Ledger to death in Erskine Park in 1999.

Police say that Hamilton was an inner circle member of the Comanchero motorcycle group. They claim that he was called in by the group’s Supreme Commander to take care of Ledger after there was a disagreement about the swap of a Triumph motorcycle for a Harley-Davidson.

Hamilton is said to have visited Ledger along with two associates, including fellow Comanchero Ian Clissold, brutally bashing him after demanding money and the return of his club colours.

It is believed that the men did not intend to kill Ledger, but simply wanted to ‘teach him a lesson’. However, the bashing went one step too far and Ledger’s body was later found dumped outside a house in Erskine Park.

It is believed that Hamilton fled the state after the incident. Despite police issuing numerous appeals for information about his whereabouts, Hamilton remains on the loose.

4. Warwick McEwen

Warwick McEwen ran a successful chiropractic business in Campbelltown for over two decades before he was charged with 45 counts of child sexual assault which had allegedly been committed at his workplace in the 1980’s.

He had previously spent time in custody for other child sex offences; but in 2006, shortly after his release from prison – and the laying of fresh charges – McEwen decided to take off.

Police were alerted to his disappearance after he failed to appear at Campbelltown court in relation to the new charges.

3. Stuart Pearce

Adelaide man Stuart Pearce is believed to be the most wanted person in South Australia.

He is wanted for his alleged role in the horrific murder of his wife, Meredith, and their three children in 1991.

Police say that Pearce tied his wife to a chair and stuffed a towel into her mouth, before spreading petrol across the floor and lighting a fire that quickly destroyed the family’s Parafield Gardens home.

His three children, aged 11, 9 and 2, were found with plastic bags over their heads. They are believed to have suffocated to death before the fire took hold.

By a stroke of luck, another son, Matthew Pearce, escaped injury as he was sleeping over at a friend’s house on the morning of the incident.

There are a variety of explanations for the heinous alleged incident: some say he was suffering severe financial hardship and wanted a way out. Others believe it had something to do with drugs, as 25 cannabis plants were found in a bunker underneath his home.

There have been no reports of Pearce’s sighting since the incident – and police do not know whether he is still in Australia, or even alive.

2. Michael Davison Tillman

A renowned snooker player, Michael Tillman is wanted by in relation to his alleged involvement in an attempted murder which occurred in Surfers Paradise in 2010.

Police say that Tillman became involved in an altercation with his friend, Troy Kiss, whilst the pair were enjoying a night out with friends.

Tillman allegedly stabbed Kiss 11 times in the neck, chest and back, and was charged with attempted murder and grievous bodily harm as a result. He was released on bail pending his trial, but whilst in the community, Tillman allegedly attacked another man named William Patterson at a pub.

Mr Patterson says that he was confronted by Tillman and three of his friends in 2011. The group threw him to the ground, before Tillman allegedly bit his face – leaving him with a chunk of his cheek and half his nose missing. Tillman then fled the scene.

Although there have been numerous reports of sightings since, police have been unable to track Tillman down.

He had previously served time in prison for the killing of a former friend outside a Sydney hotel in 2003 by gouging his eyes out.

1.    Graham Gene Potter

Victoria’s most wanted fugitive, Graham Gene Potter, is also one of the country’s most dangerous.

In 1980, Potter murdered 19-year-old Kim Barry, a shop assistant from Wollongong, after she reportedly refused his sexual advances. In a horrific act of violence, he cut off the young woman’s fingers and head while her brother slept in the next room.  On the night of the incident, he was enjoying his bucks night, and had met Ms Barry at a local nightclub.

Ms Barry’s body was found dumped near Jamberoo. It is believed that her bra had been used to tie her wrists and legs together. Her fingers and head were discovered around 1km away in a plastic bag, together with clothing and bedclothes belonging to Potter.

The heinous crime earned Potter the nickname ‘the head and fingers killer.’

Potter spent 16 years in prison for the murder – and incredibly ended up marrying his wife whilst in prison.

He was released from custody in 1996, but went back to prison again in 2008 after being charged with conspiracy to murder and various drug offences.

In a desperate bid to secure his early release, Potter acted as a police informant; giving authorities valuable information about drug importation schemes. His co-operation with police resulted in him being granted bail – but he failed to appear at Melbourne Magistrate’s Court in 2010.

There have been sighting of Potter since – one in 2012 when he was pulled over by police and fled yet again, and another in 2013 when he was seen picking fruit on the NSW and Victoria border.

A $100,000 reward has been offered for information leading to his arrest.

 

Punch thrown

The Downing Centre District Court is the venue where James Ian Longworth, 34, is facing trial after knocking out a security guard with a single punch.

Described by a friend as “the nicest guy in the world”, Mr Longworth’s loved-ones were shocked by his actions.

The court heard that Mr Longworth was slurring and stumbling by the time he and a friend, Mr Hume, arrived at Bar 333 in the city. The court was told that before arriving, Longworth drank about 10 schooners of beer at another bar. He was refused entry from Bar 333 on that basis.

His friend walked away from the Bar despite being told he could enter, intending to come back in a few minutes.

After his friend had left, Mr Longworth punched security guard Fady Taiba to the ground. Taiba was seriously injured and later went into a coma.

Mr Taiba told police: “I gave him a tap.  I didn’t know he would land like that. I stupidly gave him a tap.”

In court, Mr Longworth testified that: “I remember thinking I wanted to hit him and it was spontaneous. I just remember the impact of the punch and being in disbelief that I hit him.”

Mr Longworth said that he had been overwhelmed by the recent death of his father, and the fact that he didn’t get to say goodbye. He testified that he would not have reacted in that way on any other night.

Mr Longworth is pleading ‘not guilty’ on the basis that he did not intent to cause grievous bodily harm to Mr Taiba. This is an essential part of the offence of ‘cause grievous bodily harm with intent’, with which Longworth is charged. Under section 33 of the Crimes Act, that offence carries a maximum penalty of 25 years imprisonment.

Specific Intent

Being intoxicated is not, by itself, enough for a person to be found ‘not guilty’ of an offence.

However, some offences require a person to have a specific mental state at the time of the incident. The fact that the person was severely intoxicated at the time may be used as evidence that he or she could not have formed the required intent, and could not therefore be guilty of the offence charged.

In that case, they may still be found guilty of an alternative, less-serious offence such as ‘recklessly cause grievous bodily harm’ under section 35 of the Crimes Act, which carries a maximum penalty of 14 years imprisonment.

‘One Punch’ Laws

Mr Taiba was fortunate to survive Mr Longworth’s the attack.

If the punch had been fatal, Mr Longworth could have faced mandatory penalties under new ‘one punch laws’. Section 25B of the Crimes Act says that anyone who assaults another person while intoxicated and causes their death is subject to a mandatory minimum prison term of 8 years. The maximum penalty is 20 years imprisonment.

This was part of the NSW government’s plan to crack down on alcohol-fuelled violence, which also included the Sydney lockout laws, and greater police powers to ‘move on’ intoxicated people.

Mr Longworth’s trial continues, and it remains to be seen whether the jury will find him guilty of the offence charged, or of an alternative offence.

Handcuffed defendant

The Public Service Association prison officer Branch President Steve McMahon believes that the Downing Centre escape should never have been possible, and wants to ensure it will never happen again. He wants all defendants who are in the ‘dock’ to be handcuffed, with the exception of pregnant women and those with medical conditions. The dock is where those in custody normally sit while in court, and also where defendants sit during jury trials and sentencing proceedings in the higher courts.

The story so far…

Last week, we reported on the extraordinary escape of Ali Chahine from the Downing Centre District Court. Unfortunately for Mr Chahine, he was re-arrested on Monday 4 October – less than a week after his bolt for freedom.

He was found hiding at a unit in Alexandria, and has since been charged with escaping lawful custody, as well as two counts of assault occasioning actual bodily harm.

Mr Chahine’s bare footed bolt has sparked the call for all defendants to be handcuffed in the dock.

The bureaucratic response

At first, NSW Corrections Minister David Elliot tried to blame the judge for the escape, saying that he should have ordered Chahine to be handcuffed.

But a person in Mr Elliot’s position should be aware such decisions are normally made by Corrective Services after assessing the risk – not by the judge, who normally knows nothing in advance about the defendant or even the nature of the case.

Mr McMahon’s response was to appeal to the NSW Corrective Services Commissioner Peter Severin to implement an across the board policy for all defendants to be handcuffed in court while they are in the dock.

Mr McMahon told ABC news that the Public Service Association had been “asking for a very long time that there be a blanket decision… [and that the issue] be taken out of the judges and magistrates hands and allow us to handcuff prisoners while they’re on the dock.”

Criticism

There have been a number of studies showing that the way a defendant is presented in court can affect a jury’s determination of guilt. Specifically, there are concerns that requring defendants to wear handcuffs could unfairly lead the jury to believe that they are dangerous, thereby increasing the likelihood of a conviction. It could also be argued that requiring defendants to wear handcuffs for several hours a day during trials that could last for weeks or even months is unnecessary and cruel, not to mention limiting their ability to write notes.

Forcing defendants to wear handcuffs would also go against centuries of legal tradition. As far back as the 1700s, the great legal mind Judge William Blackstone famously wrote that:

“it is laid down in our antient books, that, though under an indictment of the highest nature… [a defendant must be] brought to the bar without irons, or any form of shackles or bonds; unless there be evident danger of an escape.”

This was quoted in an influential United States case which embedded the principle into US law.

And the fact remains that escapes from courthouses are extremely rare. In addition to all these points, who is to say that handcuffs will prevent an eager escapee from making a dash for freedom, given that stocky Mr Chahine was able to escape from level 3 of a secure courthouse in bare feet.

Running away

On Wednesday afternoon, 30 September, a man left his shoes behind in his dash for freedom.

Mr Ali Chahine, 33, was facing the court for breaching his bail. He was originally charged with drug supply and receiving stolen goods. The bail application was being heard in courtroom 3.1, which is a Sydney District Courtroom located on level 3 of the Downing Centre court complex.

In the same courtroom, one of our lawyers, Avinash Singh from Sydney Criminal Lawyers®, was present for another case and witnessed the action.

Avinash noticed that the client looked agitated, and the decision to refuse him bail didn’t go down too well.

Evidently Mr Chahine decided that, rather than be taken back into custody, he would roll the dice and attempt to leg it out of the courtroom.

While courtroom 3.1 is often very busy, it was fairly empty by Wednesday afternoon. Apart from his mother, lawyer, the DPP solicitor, Avinash and our client, only the Judge and court officers were present when Mr Chahine made a run for it.

Mr Chahine jumped over the wall of the dock and headed towards the door – he was in such a hurry that he left his blue thongs behind. At first, the DPP solicitor jumped back, before realising that she was not his target when he headed towards the exit.

Avinash says “He made it to the door before the Corrective Service Officers got to him – a large man and a small woman.

They had a firm grip on him but he must have escaped outside the courtroom.”

He remembers hearing “a scuffle outside” – it was later reported that two officers were badly injured during the encounter.

According to newspapers, Mr Chahine assaulted the pair before managing to flee the courthouse through a fire exit.

He is reported to have gotten onto a bus on Castlereagh Street, headed towards Newtown. Mr Chahine was last seen on Wednesday afternoon, disembarking from a bus at Central Station. The hunt continues.

Detective Inspector Stewart Leggatt believes that Chahine probably caught a train, and is currently in the Bankstown/Greenacre area.

Meanwhile, back in the courtroom, Avinash noted that the Presiding Judge did not say anything, but left the bench, probably intending to come back on when Mr Chahine was caught.

In the meantime, Mr Chahine’s Legal Aid lawyer was at a loss of what to do. Avinash recalls that she asked “Do I have to stay here?”, before leaving the courtroom a short time later.

When it became clear Mr Chahine was not returning, the Judge returned to the bench to deal with his final matter for the day, Avinash’s. His Honour said that this was the first time he had witnessed a defendant escape from the courtroom.

After the drama subsided, Avinash went on to successfully appeal his client’s case.

The Blame Game

The NSW Corrective Services Minister, David Elliott, originally tried to pin the blame for Chahine’s escape on the Judge, pointing out that the defendant was not wearing handcuffs, and was not in the dock.

But the fact is that defendants in court are rarely handcuffed, and Mr Chahine was, in fact, in the dock before he leapt out.

Moreover, the decision about whether to handcuff a defendant is for Corrective Services to make, not the Judge.

Penalties for Escaping

Interestingly, Mr Chahine was not the only man who chose last Wednesday to make his escape.  On the same day, James Wiles, aged 25, escaped from Goulburn prison. He is also still on the run.

Escaping from lawful custody – whether it be a prison, police station, courthouse or elsewhere – is an offence under section 310D of the NSW Crimes Act 1900, which comes with a maximum penalty of ten years imprisonment.

So, if the escapees are eventually caught – as most are – they may ultimately regret their decision.

 

Ecstasy in a drug deal

Over ten thousand drug cases are heard in Local Courts around NSW every year, including the Downing Centre court in Sydney – which is the busiest courthouse in the state. In 2014 alone 13,639 people were found guilty of drug possession in NSW, which makes it the third-most common criminal offence, ranking behind drink driving/DUI and common assault, according to the Bureau of Crime Statistics and Research.

Last year, the tragic death of teenager Georgina Bartter showed that taking pills that are produced by strangers – often with deadly “fillers” – is not only against the law, but can be fatal.

Ms Bartter died in hospital from a cardiac arrest after consuming one and a half of pills sold as ecstacy at a music festival.

Recently, the man who sold these fatal pills faced the music in the Downing Centre District Court.

19-year-old university student Matthew Forti didn’t sell the drugs directly to Bartter, but to her friend, Rebecca Hannibal, who was sentenced in the Downing Centre courthouse year in June. Hannibal received a criminal record and a good behaviour bond for 12 months.

However, Forti would not be so lucky when it came to avoiding prison time. Before the Judge handed down her sentence, the court heard that even after Ms Bartter’s death, Forti had continued to sell drugs.

Texts to Ms Hannibal suggested that he felt bad after the tragedy, but this was not enough to prevent him from continuing to sell drugs to friends and acquaintances on several occasions.

Mr Forti said that his involvement with drugs began when his parents’ marriage broke down in 2014, and the Judge accepted that Forti was “essentially a positive young man who went astray for a while.”

Her Honour noted that Forti was not legally responsible for Bartter’s death – which was the same comment made by Chief Magistrate Henson when he sentenced Hannibal in the local court back in June.

Mr Forti’s criminal lawyer argued that his client had excellent prospects of rehabilitation, which is something that judges take into account during the sentencing process. The lawyer argued for a good behaviour bond, community service or an “intensive correction order” instead of full time imprisonment.

But District Court Judge Deborah Sweeney came to the conclusion that prison was the only appropriate penalty for Mr Forti, saying that “despite his positive character and demonstration of remorse he is to serve some time in custody.”

But like other defendants who enter an early plea of guilty, Forti received a 25% discount on his sentence. He was given a maximum of 22 months imprisonment, and will have to serve 12 months behind bars before being eligible for parole.

The maximum penalty that Forti could have received for each of the supply charges was 15 years imprisonment and/or a $220,000 fine.

Forti is reported to have appeared “stunned” by the sentence, while his mother and girlfriend cried. He was allowed to hug them before being taken away by corrective service officers.

I’ve been charged with a drug offence: what should I do?

With 7 levels of courtrooms, the Downing Centre courthouse in Sydney hears all kinds of drug cases each year.

If you are facing drug charges, you are certainly not alone. The first step is to contact law firms that have a proven track record of achieving outstanding outcomes in drug cases. Many firms offer a first free conference if you have an upcoming court date, so you can find out your options, the best way forward and the likely result before deciding whether to hand them your hard-earned money.

Take the time to have a look through the recent cases and client testimonials on their websites, and it is a good idea to see several law firms before deciding which one is right for you.

 

Drinking beer while driving

As most of us are aware, fully licensed drivers in NSW must have a Blood Alcohol Content (BAC) below 0.05 to legally drive.

This is the same across Australia, as well as in many other countries – but this wasn’t always the case. Decades ago, the limit was 0.08, and this is still the legal limit in some countries including England, Wales and several US states.

In NSW, driving with a reading of 0.08 constitutes the offence of ‘mid range drink driving’.

On the other hand, some countries take drink driving so seriously that they have imposed a zero limit – including the Czech Republic, Hungary, Indonesia and Japan.

The Effect of Alcohol on Driving Ability

Drinkwise Australia says that having a BAC of 0.05 means you are twice as likely to crash than if you have no alcohol in your system.

The level of alcohol causes drivers to have a slower reaction time, shorter concentration span and impaired sensitivity to red lights. It also reduces the ability to judge distances.

The organisation states that by the time your BAC reaches 0.08, you are five times more likely to have a crash than with a zero BAC.

But despite the general trend towards lowering the legal BAC for driving, not all agree that a lower maximum BAC is a good thing.

Drink Driving to Cure Depression!

In 2013, one Irish council backed a motion to allow drink driving in their rural community in order to combat depression and suicide.

The council proposed to allowed special permits to allow driving after ‘two or three drinks’, because this would allow people in isolated communities to get out more and ward off depression and suicidal thoughts.

Interestingly, three of the councillors in favour of the change are also believed to own pubs.

Perhaps unsurprisingly, the idea didn’t spread to the rest of country, with one Labor party councillor refusing to be associated with the suggestion, and Ireland’s Road Safety Authority labelling the idea “off the wall.”

Dealing with Low-Range Drink Driving Out of Court

Going to court can be a stressful experience for anyone. But in NSW, drink driving, even a low-range charge, means you must go to court and will have a criminal record if you are convicted by the Magistrate. The only way around a criminal conviction is for you (or your lawyer) to successfully argue for a ‘section 10 dismissal or conditional release order’; which means that you are guilty but no conviction is recorded against your name.

But should low-range drink driving be dealt with in court, or should police have the option of dealing with it by way of a fine, just like for speeding, or running a red light?

In Western Australia, police have the discretion to give you an infringement notice instead of sending you to court. For a first offence between 0.05 and 0.06, WA police can give you a $400 fine and you will end up losing 3 demerit points, but you will not automatically get a criminal record and lose your licence.

If your BAC is between 0.06 and 0.07, you can be given a $400 fine and lose four points. The same fine applies for between 0.07 and 0.08, but you will lose 5 demerit points.

But police can still choose to send you to court for low-range drink driving in that state, where a criminal conviction, a fine of up to $500 and licence disqualification can be imposed.

With thousands of low range drink driving cases clogging up NSW courts every year, some believe that only lawyers really benefit from drivers having to face court rather than receiving an infringement notice from police.

What are your thoughts?

Hand on the Bible and testify

A question that defendants often ask their lawyer is: will I have to testify in court?

The simple answer is no, you never have to go on the witness stand if you have been charged with a criminal offence and are going to court.

The exception to this rule is where you are going to certain tribunals – such as at the Crime Commission or Independent Commission Against Corruption – where you may be under an obligation to answer questions.

But if you are a defendant in court, you have a right to silence and cannot be forced to testify on the witness stand.

Right to Silence in Court

Witnesses who are subpoenaed to attend court are under an obligation to answer questions. However, the right to silence means that defendants cannot be forced onto the witness stand.

But this ‘right to silence’ has been undermined to an extent by section 20 of the NSW Evidence Act, which says that a judge “may comment on a failure of the defendant to give evidence” as long as that “comment” does not suggest that the defendant is guilty.

So while you do not have to testify, the question of whether you should take the witness stand is an entirely different matter – and one which should be carefully considered by your lawyer.

The Pros of Testifying

The prosecution’s case will always go first. For that reason, the final decision about whether the defendant should testify is often left until after the prosecution case has finished. If, after all of the prosecution witnesses have given evidence, the prosecution case is weak, then it may be against a defendant’s interests to risk taking the witness stand and being exposed to questioning by the prosecution (called ‘cross-examination’).

On the other hand, if the prosecution case is relatively strong and the defendant’s evidence will rebut that case, then it may be in the defendant’s interests to take the stand.

A defendant who is credible and convincing can be the turning point in a case. It could be the thing that makes a favourable impression upon the jury and convinces them to acquit.

While the prosecution must prove the accused’s guilt beyond reasonable doubt, a defendant who comes across as honest and sincere can help establish the necessary doubt to get them over the line. And testifying is often the only way to introduce evidence of an alternative explanation of the events when there is no other way to get that material before the jury.

The Cons of Testifying

While putting the defendant on the stand could win a trial, it also comes with considerable risks – even for an innocent person.

A defendant who comes across as implausible due to nerves, anxiety, presentation or personality type, can have a disastrous effect on their case.

Some might think that an innocent person has nothing to worry about, but the courtroom is a daunting place that can cause extreme anxiety – imagine facing a courtroom full of people – including lawyers, the judge, jury, court staff, complainant, families and the public – and having to accurately answer questions when you are facing the prospect of many years in prison..

Anxiety can cause all sorts of problems –from hesitating before answering questions, to giving inconsistent answers, to making mistake or failing to recall times and dates – all of which can undermine a person’s credibility.

For that reason, the question of whether a defendant will take the witness stand is one of the most important call that a defendant (in consultation with their lawyer) can make.

Case study:

I was recently instructing in a case where our client and a co-accused both pleaded guilty and were both put on the stand during sentencing. Our client gave evidence of his remorse and regret for his actions, as well as the positive steps that he had taken since committing the offence in order to turn his life around.

While our client came across as genuine, remorseful and credible (and got a significant penalty reduction), the co-accused gave exactly the opposite impression.

The look on the judge’s face during the questioning said it all – he was clearly not impressed. I did not get to see the sentence that the judge ultimately imposed on him, but my guess is that the co-accused’s testimony only harmed, not helped, him.

Under pressure, it is very difficult to predict how a person will act, and despite all of the preparation in the lead up to court, a lawyer will never know for certain how their client will perform on the witness stand in a busy courtroom. Because of this, many lawyers will often advise their client not to give evidence, unless there is a compelling reason for them to do so.

Downing Centre Court entrance

Courthouses are places where you might expect people to be on their best behaviour. At the same time, the courtroom can be a tense and stressful place for all involved, including their families.

While court is not the best place to let your anger take over, not everyone succeeds in keeping their cool when emotions run high.

Father Attacks Child’s Abuser

Just last week, the Downing Centre District Court was at the centre of unanticipated drama when a defendant was attacked while sitting in the dock.

The 64-year-old defendant, who cannot be named, was convicted of sexually assaulting a five-year-old girl. He faced four charges of “aggravated sexual assault of a child under 10” and was convicted of two of them, before being sentenced to imprisonment

Section 66A of the Crimes Act 1900 (NSW) sets down a maximum penalty of life imprisonment for the sexual assault of a child under the age of 10 years. Although the defendant did not receive a life sentence, he will not be eligible for release from prison until 2023.

The Presiding Judge had just finished handing down his sentence, when the little girl’s father leapt over a banister and a bench before arriving at the dock area and punching the defendant several times in the face. He had to be dragged away by five people.

The defendant cowered in the dock, repeating the words: “I am innocent.” To add to the drama, the defendant’s wife called the girl’s mother a “liar and a bitch”. The mother returned fire, lunging at the wife and allegedly punching her in the face.

The Judge is reported to have sat there emotionless, not uttering a word. He is said to have waited for the defendant to be escorted away, before leaving the courtroom himself.

It remains to be seen whether the parents will face charges as a result of their actions.

Fights at Courthouses

This couple are by no means the only ones to attract attention for physical fights inside the Downing Centre.

In fact, level four of the courthouse was the scene of another dramatic fight last year between police and a family of three men who, ironically, were themselves on trial for brawling with police.

A riot squad was called in to break up the fight, which one witness described as a “football match.”

And earlier this year in Melbourne, a fight between two families caused an entire floor of Melbourne’s busiest courthouse to close. The families knew each other well, having a history of altercations. Court officers subdued the fighting men using capsicum spray, which unfortunately also affected innocent bystanders, including several young children.

One of the brawling men is a kick-boxer who calls himself “the punisher”.  Four men were later arrested and questioned over the fight.

What Does the Law Say About Fighting in Court?

You probably won’t be surprised that brawling in court is against the law. Possible charges include “common assault” (where no injuries, or only trivial ones, are caused) “assault occasioning actual bodily harm” (where injuries are caused), “affray” (which involves the use or threat of unlawful violence) and “contempt of court”.

Contempt of court can involve any act which has the tendency to interfere with, or undermine, the authority, performance or dignity of those who participate in court proceedings.

Contempt of court can potentially include refusing to leave court when directed to do so, refusing to answer questions on the witness stand, showing serious disrespect to the court, and a wide range of other conduct. Engaging in physical violence during court proceedings could certainly form the basis of contempt charges.

So there you have it – real courtroom dramas and the potential consequences.