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Jury

If you have been charged with a criminal offence, it is normally up to the prosecution to prove each ‘element’ (or ingredient) of that offence “beyond reasonable doubt.”

But what exactly do those words mean?

“Beyond reasonable doubt” is the tried and true formula used to determine guilt for centuries. But did you know it has no legal definition at all?

According to the Criminal Trial Courts Bench Book in NSW, the standard “beyond reasonable doubt… [is] an ancient one… and it needs no explanation from trial judges.”

This may seem baffling, as it is arguably one of the most important phrases in criminal law. Not only this, but coming up with a definition has actually been found time and time again to be perilous.

When criminal cases are heard in the District Court in NSW, defendants have the right to a jury trial – and it is a jury’s job to decide whether or not the prosecution has proved the offence “beyond reasonable doubt.”

And even when cases come before magistrates and judges-alone, they too must determine guilt or innocence against that test.

It seems logical, then, that fact-finders such as juries, magistrates and judges would want to know the precise meaning of the term – especially given that the future of the person on trial depends so heavily upon it.

Attempts to define the phrase

Judges who have tried to explain the phrase have consistently had their judgments overturned.

This happened in the case of Green v The Queen (1971) 126 CLR 28.

In that case, Mr Green appealed his conviction on the basis that the trial judge’s explanation of “beyond reasonable doubt” was an error of law.

During Mr Green’s trial, the judge gave a lengthy explanation of the term to the jury.

On appeal, the High Court found that this was an error because the ‘explanation’ may, at best, have led to confusion amongst jurors and, at worst, caused them to convict where they may otherwise have acquitted.

The High Court found that: “a reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances.”

Because of the error, Mr Green’s conviction was overturned and a new trial was ordered.

Looking for a definition

The lack of a concrete definition is unfortunate because it may lead to uncertain jury members doing their own research into the term, which is against the law and lead the trial being “aborted” and a new trial ordered.

Under section 68C of the NSW Jury Act NSW , it is an offence punishable by two years imprisonment and/or a $5,500 fine to ask anyone a question, use the Internet to research, conduct an experiment or conduct an inquiry about the accused or anything to do with the trial.

But even this hasn’t stopped jurors from conducting their own investigations – one juror in Victoria caused a mistrial by looking up the definition of “a reasonable doubt” on the Internet.

Defining the indefinable?

Throughout legal jurisprudence, any attempts to define the phrase, or substitute it with other words, have been doomed to fail and condemned by judges in higher courts.

In fact, one judge described trying to define or rephrase it as “embark[ing] on a dangerous sea.”

The phrase has been described as something so commonplace, and such a traditional formula, that it needs no explanation because everyone already knows what it means.

But given the fact that trial judges feel the need to (erroneously) explain it, and jurors continue to seek definitions, it would seem that those assumptions are not quite accurate.

Instead, we have decisions being overturned and jurors facing criminal prosecution – all for wanting to do the right thing.

Enter Downing Centre Court

As a recent law graduate keen to work in the criminal law field, I was thrilled when I was recently presented with the exciting opportunity of instructing in my very first trial in Downing Centre District Court.

Instructing lawyers have a very important role in trial proceedings. While they usually do not perform any advocacy work in court (this is generally left to the barrister or senior lawyer) they are expected to liaise with the client and the barrister, make sure that the client has an in-depth understanding of what is going on in the trial, take extensive notes of all conferences and court proceedings, and maintain a list of exhibits that are presented during the trial.

Though I’ve spent the past 6 and a half years studying the ins and outs of law at university, there is only so much that you can learn out of a textbook, and there is simply no substitute for practical experience.

Sadly, most law graduates enter the field with few practical skills, and some law firms are hesitant to let new lawyers gain courtroom experience. This effectively means that they are thrown in the deep end when they start representing clients in court.

I was lucky enough to be given the opportunity to get a grasp on courtroom procedures early on, and this first experience has taught me valuable skills and knowledge which will no doubt prove useful in my legal career.

I have shared some of the things that I have learned from this experience below.

1.    Be Prepared

As an instructing criminal defence lawyer, you are expected to have a thorough knowledge of all the evidence in the case because the barrister could ask you important questions at a moment’s notice inside the courtroom.

All the evidence in the case will be compiled in a brief, and as an instructing lawyer you are responsible for organising the brief for both yourself and the barrister. It’s important to organise and index the brief properly so that you can quickly navigate it to pull out any documents in the middle of the trial or in conference.

Instructing lawyers will also be responsible for chasing up any missing witness statements or documents. My experience taught me that the police and DPP often take their time in getting back to you with documents, so you must keep at them to make sure that all evidence is received in advance of the trial.

You’ll need to read the brief several times over and make notes of any key points in witness statements and other evidence.

I found that this serves two purposes – firstly, it really helps you familiarise yourself with the evidence at hand, and secondly – and most importantly – it can help you flag any issues which should be raised with the barrister.

An in-depth knowledge of the brief allows you to identify any possible defences or factors that may support your case at an early stage – and conversely, it will help you predict how the prosecution is going to run their case, and any arguments that they will raise.

2.    Do Your Research

Trials involve a lot of research, both legal and other – you may be required to look up relevant case law, statistics or other information which might help you prove a particular point. You may need to research a particular profession or trade, or make enquiries with bodies like the bureau of meteorology about weather, or attend the scene of the alleged crime to photograph and videotape, or attend to urgent subpoenas, or a range of other matters. Usually, the senior lawyers and barrister will let you know of the research and preparatory work which they require.

In my particular case, the barrister asked me to research therapeutic massage practices. I spent time accessing medical journals to try to find any information that could help our case, and communicated my findings to the barrister.

Our case also involved an application to exclude tendency evidence, which is evidence about a person’s character, reputation or conduct that can be used to prove that they had a tendency to act in a particular way or have a particular state of mind.

Usually, this kind of evidence is not allowed to be admitted, however in our case the prosecution made an application to have this evidence admitted, arguing that there were striking similarities which could help prove that our client had a particular state of mind in the present case. The prosecution also argued that admitting the evidence would not unfairly prejudice our client and prevent him from having a fair trial.

I had the invaluable benefit of being able to consult highly experienced lawyers at the practice for advice and insight throughout my involvement with the case.

We naturally opposed the application in our case, and the barrister handed up some previous judgments which supported our case. I took the time to read these judgments to make sure that I understood what the law said. It was a steep learning curve.

For new lawyers, instructing is a great learning experience – doing this type of research can help you the intricacies of certain areas of criminal and evidence law.

3.    Make Sure the Client Understands What is Going On

It’s no secret that lawyers can get caught up in difficult to understand legal jargon when explaining matters to clients.

After all, lawyers are used to dealing with other legal professionals in a variety of situations. They may therefore make the mistake of assuming that a layperson fully understands basic legal terms and procedures.

Of course, the danger in making these assumptions is that clients may be left in the dark about what is going on in their case. The likelihood of this occurring is increased where a client has limited English skills, or where they have mental health issues or drug and alcohol problems.

In very serious cases, a client may even end up unintentionally breaking the law, which can give rise to serious consequences. For instance, if a lawyer does not fully explain that a client is required to attend court on a particular day, the court may issue a warrant for their arrest.

Or, if a lawyer does not ensure that a client understands all of their bail conditions, the client may end up breaching their bail. If this occurs, the court may decide whether it wants to take no action for the breach, vary the bail conditions, impose more conditions, or, in serious cases, refuse bail altogether and order that the person be placed in custody.

While this did not happen in the case I was working on, this example illustrates the importance of making sure that a client understands everything that is going on in the courtroom. It is vitally important to make sure that the client understand every aspect of the case, and gives informed instructions and makes informed decisions.

In the trial that I was instructing on, our client was from a non-English speaking background, and even with the assistance of an interpreter it was sometimes apparent that things that the barrister was saying were going over his head.

For instance, when the barrister was trying to explain complicated laws about evidence and sentencing procedures, our client was visibly confused and would ask questions about things which had just been explained to him. I learnt that part of my role was to pull up the barrister when this was occurring.

I quickly realised the value of explaining legal terminology in plain English, which made our client more responsive and willing to answer our questions. I also made sure to ask whether he understood what had been said, to explain to me what had been said just to make sure, and encouraged him to ask us any questions if he was unsure about anything.

4.    Consult Your Superiors

If any questions arise while instructing, it’s also important to consult your more experienced colleagues for their advice and opinion about the best way forward.

Unfortunately, many law firms do not have an open-door policy and may criticise young lawyers for asking questions early on in their career. I am very grateful to work in an environment where discussion and learning is encouraged, and it is always good to know that I can raise any concerns or questions with any of the lawyers on our team.

During this case, I worked closely with our Principal Ugur Nedim, as well as our experienced Senior Lawyer Jimmy Singh, both of whom have a wealth of experience representing clients in extremely complex and serious criminal trials.

I was able to ask their advice about issues such as the admissibility of tendency evidence, procedural matters, and the best ways to communicate with our client.

Their support helped me effectively assist our client and the barrister during the trial.

5.    Understanding, Explaining and Respecting a Client’s Options

Besides making sure that your client understands complex legal principles and procedures, I learned that it’s very important to make sure that he or she is fully informed of all their options and the case against them before they make any decisions – particularly when they are deciding whether to plead guilty or not guilty.

I also learned the importance of feeling comfortable to consult the senior lawyers at the firm for advice about complex law and procedure, and that a team environment is by far the most conducive to providing clients with the best advice and strongest legal representation.

At the end of the day, your client has a right to choose whether they want to plead guilty or not guilty, and as their legal representative, you must respect that decision. This means that even if there is a strong case against them, you should continue fighting for them until the very end if they maintain their innocence and wish to plead not guilty.

This is not to say that you shouldn’t advise your client of the risks of proceeding to trial. Rather, I learned that your job as their lawyer is to make sure that they understand the strengths and weaknesses of the case against them, any legal arguments that can be put forth to win their case and the prospects of succeeding based on these arguments. You should also identify and explain grounds on which their evidence can be challenged.

As your client’s legal representative, you should also carefully explain any rulings that the court has made and how those rulings may affect the case. For instance, the judge may decide to have certain evidence admitted which may damage your case, or alternatively they may rule that certain evidence will not be heard by the jury, which can give you an upper hand in winning the case.

Before your client decides upon a plea, whether guilty or not guilty, you should explain all of their options so that they can make a fully informed decision.

For instance, in some cases you can negotiate with the prosecution to have one or more of the charges downgraded provided that you enter a plea of guilty to the lesser charge. If there are multiple charges, you can try to have several charges ‘attached’ to the main charge, so that the sentencing judge will take the other charges into account when sentencing your client for the most serious (‘principal’) offence. This can help your client achieve a more lenient penalty.

Your client should also be made aware of their right to appeal, the prospects of success on appeal, and the fact that they will normally lose their right to appeal against any conviction if they plead guilty to the charges.

Finally, you should make sure that your client is aware of the impact that an adverse finding may have on their future life.

While it may sometimes appear that there is a strong case against your client, I learned that it’s important that your client understands that you have not lost hope for them, and that you will fight until the very end if they wish to proceed with the trial. This, sadly, is a point that is forgotten by many lawyers who may encourage or coerce a person to plead guilty based on the evidence against them.

Instructing in a trial is an incredibly interesting and enjoyable experience which can teach you so much about the law, court procedures, evidence and client (and colleague) communication.

It challenges you to think outside the box, to develop a relationship of trust and confidence with your client, and to do everything possible to secure the best possible outcome for your client.

Most importantly, it gives you a fantastic insight into life as a criminal defence lawyer and the kind of workload to expect in practice.

Nudie run on the beach

The Downing Centre is the busiest court complex in Sydney.

It has heard the cases of many high-profile figures over the years; from Justice Marcus Einfield, to Matthew Newton, Jodhi Meares and Freya Newman.

Cases in the Downing Centre are as varied as the thousands of defendants who find themselves within its walls each year.

So the case of an unknown teenager doing a nudie run wouldn’t seem to rank amongst the Centre’s most illustrious moments – but just such a case has hit the news headlines.

Eighteen-year-old Victorian Jack Mascitelli recently appeared in Downing Centre Court for stripping naked and running through the streets of Byron Bay for a free kebab.

Police located the teenager hiding in, where else but a kebab shop. He was arrested and slapped with a $500 fine, making the ‘free’ kebab anything but.

However, Mascitelli didn’t want the fine to tarnish his reputation, so he took the matter to court, hoping to receive a better outcome.

Mascitelli had to travel from Victoria to the Downing Centre to answer the charges.

And the Presiding Magistrate certainly didn’t see the funny side of the dare, calling Mascitelli a “goose” and sternly lecturing him about the inappropriateness of his conduct.

Mascitelli was also rhetorically  questioned about why anyone would want a kebab at 8:45 in the morning, saying that he thought kebabs were something eaten at night (perhaps His Honour has never worked up an appetite after partying all night).

But Mascitelli was fortunate when it came to the penalty; he was given a “non conviction order” after His Honour noted his remorse and acceptance of responsibility. This meant that no criminal conviction was recorded against Mascitelli’s name, and the fine of $500 was wiped ways.

As a law and commerce student, Mascitelli was relieved about the outcome. But the Magistrate warned the youngster that his actions could have jeopardised his legal career.

The nudie footy runner

Not all those found guilty of public nudity get off so easily.

In fact, one man, Wati Holmwood, was sent to prison after he streaked through a rugby match held at ANZ Stadium in Sydney. This wasn’t a first offence for Holmwood, who had already breached two good behaviour bonds.

What does the NSW law say on nudie runs?

Although nudie runs are often seen as a bit of fun, this is not how the law perceives such behaviour. Nudie runs amount to ‘obscene exposure’ – an offence under section 5 of the NSW Summary Offences Act which carries a maximum fine of $1,100 and / or imprisonment for up to six months.

But it looks like Mascitelli will avoid any future temptation or penalty, after declaring on Twitter that his days of nudie runs are over for good.

If you have been charged with a criminal offence and have to appear in Downing Centre Court, it is a good idea to speak with a criminal lawyer to find out your options and the best way forward.

Sydney Criminal Lawyers® is located across the road from the Downing Centre and offers a free conference to those who are going to court.

 

Handgun with bullets

Law enforcement agencies are constantly demanding greater powers, despite dramatic recent increases in their powers of investigation and arrest, and even immunities from prosecution for criminal offences in certain situations.

The Police Association is now demanding that officers have the right to take their guns inside courtrooms, and mass meetings are reportedly about to commence in a bid to force the change.

But is this really necessary, or even desirable?

Let’s take a look at the current law in NSW.

What is the current law?

When it comes to court security, there are rules about what items can be take into courthouses – and this applies to police too!

Under section 8 of the Court Security Act 2005, it is an offence to carry a restricted item into a courthouse. This includes any firearm, imitation firearm, knife, bomb, grenade, crossbow, spear gun, slingshot, baton, knuckle dusters, handcuffs, body armour vests.

Body-scanners at courthouses like the Downing Centre Court check each person who enters the courthouse to ensure that no one brings in a prohibited item.

The rules currently say that police must take off their guns – but they are still allowed to carry their extendable batons, handcuffs and pepper spray.

Police can also seek permission from the court to carry firearms in high-risk cases.

Police Association

The NSW Police Association President Scott Weber claims that police of all ranks need access to firearms in all locations to protect themselves and the community.

He says that the current restrictions are “ludicrous” and that “the safety of both police officers and the community is at risk… It is a tragedy waiting to happen.”

One police officer said “it makes sense, that’s where all the bad guys are.” Of course, not everyone in court is a ‘bad guy’ – in fact, the most likely defendant you will come across is a drink-driver or a young drug possessor.

In fact, those who are suspected of more serious offences will normally be in custody refused bail, and Corrections Officers and Court Sherrifs have done a good job preventing any incidents to date.

So are police using fear-mongering in order to demand more power, or is there a genuine need for more police power?

Despite the security scans, Weber argues that even at a place like the Downing Centre, it would be possible to take in a ceramic 3D gun or knife which would not be detected by the scanners.

Police argue that courts are becoming increasingly dangerous, and could even be the site for terrorist attacks.

While there have been allegations that terror plots have targeted courthouses, there is no actual evidence that this has ever occurred.

Views of the judiciary and lawyers

Judges and criminal lawyers are not convinced that police taking firearms into court is necessary, or desirable.

The Chief Magistrate has so far refused to allow police to bring firearms into court, and perhaps for good reason.

Like many other experienced criminal lawyers, I have personally cross-examined hundreds of police officers on the witness stand – causing many of them to become visibly frustrated, red-faced and angry; especially when their untruths are exposed. The last thing I would want is a furious police officer with a gun on the witness stand.

The mere fact of police having guns in court would, in my view, give them an aura of great authority and power – where any such authority should rest with magistrates, judges and court sheriffs.  And for criminal lawyers, having to question someone who has possession of a gun has obvious psychological implications; especially when the cross-examination is lengthy and involves credibility. Such a situation would, in my view, be contrary to the interests of justice.

Police having body armour, batons, handcuffs and pepper spray in an environment where others are unarmed is enough. Guns are simply unnecessary.

Negotiations ongoing 

The debate about guns in the courtroom has been going on for months, with police even threatening to black-ban giving evidence in court unless their demands are met. This is despite the lack of any evidence being put forward that police need to have guns inside court.

Negotiations are still going on between the judiciary, police and the NSW government.

One spokesperson from the NSW Department of Justice said that court security was being reviewed to ensure that “all users” are being protected.

Gun and liquor

NSW motorists must adhere to blood alcohol limits when it comes to driving a car or boat, or riding a motorcycle – so should people who handle dangerous weapons like guns be subjected to similar restrictions?

It’s not hard to imagine situations involving alcohol and guns going wrong – and anti-gun groups are keen to see specific alcohol limits imposed on those who use firearms.

The Tasmanian Proposal

In Tasmania, amendments to the Firearms Act which would incorporate a blood alcohol concentration (BAC) limit for gun users are currently being debated in parliament.

The Vice President of Gun Control, Roland Browne, proposes that gun-users should be restricted to a BAC of 0.05 – the same as most drivers.

While Browne acknowledges that the majority of gun owners are responsible, he believes that the law is required to target the few that recklessly drink before performing jobs that require them to handle a firearm.

Shooters groups vehemently oppose the proposals, pointing-out that the industry has been successfully self-regulated thus far.

Under current Tasmanian law, it is an offence to use a firearm while “under the influence” of alcohol – but it can be far more difficult to prove that a person is under the influence than it is to establish a particular level of blood in their system, eg that they are 0.05.

This is because proof that a person is under the influence requires evidence that the person’s ability was actually affected by alcohol, rather than simply producing a reading from a testing machine.

What is the law in NSW?

In NSW, there is currently no BAC limit on gun use.

Section 64(1) of the NSW Firearms Act 1996 simply states that a person must not handle a firearm while “under the influence” of alcohol or any other drug.

This is similar to existing Tasmanian legislation, although the penalties differ.

In NSW, the maximum penalty for this is five years imprisonment, while in Tasmania it is a $7,000 fine and/or two years imprisonment.

What does “under the influence” mean?

Being under the influence does not necessarily mean that a person is highly intoxicated – it simply means that a person’s ability to drive a car (or use a gun as the case may be) is affected or impaired to some extent by the use existence of alcohol.

Police do not currently have the power to require a person in possession of a firearm to undergo a random breath test like they do if someone is driving a car.

Instead, to prove that a person is under the influence of alcohol, a police officer must look for signs that a person is actually affected, such as erratic behaviour, glazed or red eyes, having trouble talking, stumbling and the smell of intoxicating liquor.

The story of John Jedrasiak

One man recently got himself into trouble with the law after consuming a few alcoholic beverages with his son over lunch.

John Jedrasiak worked as a security officer, and the two or three beers he consumed over lunch would prove fatal to his career.

At about 9pm, he went to lock up Cabramatta mall as part of his job. After an altercation with two men who threatened to kill him, Jedrasiak called the police. When they arrived, he was interviewed but things quickly changed when he became the focus of suspicion himself.

The police officer who interviewed Jedrasiak formed the opinion that he was affected by alcohol. He told the Tribunal that he smelt liquor on Jedrasiak’s breath and noted his glazed and slightly red eyes.

The officer intended to charge him, but after receiving legal advice, decided not to.

However for Jedrasiak, those beers still came with unfortunate consequences. Although he avoided criminal charges, he ended up losing his firearm licence.

He appealed and the matter came before the Administrative Decisions Tribunal.

The Tribunal found that Jedrasiak had made an error by assuming that he could be drink alcohol and then do his job, which involved carrying a firearm. It therefore dismissed his appeal and upheld the cancellation of his licence.

The case shows that harsh consequences may flow from using or handing a gun under the influence of alcohol.

 

Rapist arrested

Luke Lazarus, son of prominent nightclub owner Paul Lazarus, has had a tumultuous few weeks.

After being found guilty of sexually assaulting an 18-year-old girl in an alleyway behind his father’s nightclub earlier this year, Lazarus was sentenced in Downing Centre District Court to five years imprisonment with a non-parole period of three years. This means that he must spend at least three years in prison before being eligible for release.

During the hearing, the court heard that Lazarus had approached the young woman at Soho nightclub and offered to take her to a VIP area. Instead, he led her to an alleyway behind the club where they kissed before he demanded that she put her hands on a fence and bend over. He then pulled down her underwear and engaged in anal sex with her, during which she informed him that she was a virgin.

He bragged to his friends the following day about taking the girl’s virginity.

Prominent Figures Criticised for Giving Character References

Following the outcome of the case, the ‘spontaneous and opportunistic’ attack was widely condemned by the media and general public, with several women’s advocacy groups campaigning for Mr Lazarus’ sentence to be reviewed on appeal.

But the matter took on another element of controversy when it emerged that prominent public figures lent their names to Mr Lazarus by writing ‘glowing’ character references that were handed-up during his sentencing hearing.

Amongst those who reportedly penned references were Waverley Mayor Sally Betts, South Sydney Rabbitohs chairman Nick Pappas,and the secretary of the Honorary Consul-General of Greece, Tsambico K Athanasas.

The distinguished figures have since faced a public backlash after Minister for the Prevention of Domestic Violence and Sexual Assault, Pru Goward, publicly slammed their actions. 

Ms Goward beieves that the character references could potentially discourage other victims from coming forward, and that ‘glowing references about [victim’s] attackers will not help justice to be done.’

Several others have expressed the view that people should not receive favourable treatment simply because their family is well-connected.

However, key members of the Bar Association have hit back, with Junior Vice President Arthur Moses SC saying that while Mr Lazarus’ actions should not go unpunished, ‘no member of the community should be deterred from providing evidence in a criminal matter.’

Mr Moses went on to say that humiliating or victimising those who give references may constitute a contempt of court.

What Is A Character Reference?

Criminal lawyers often advise clients who are pleading, or who have been found guilty, to obtain character references to be handed up to the court, or call witnesses to give testimony of good character during sentencing proceedings.

This is because evidence that the offending conduct was out of character and that the defendant is unlikely to reoffend can be taken into account during the sentencing process.

A written character reference is a letter from another person, known as a ‘referee,’ which sets out who they are, how they know the defendant and which contains positive observations about the defendant’s conduct, personality and character.

The letter should also state that the referee is aware of the nature and seriousness of the offence, and of any previous offences that the defendant has committed.

The referee may also discuss any concerns about the possible impact of a particular penalty – for example, ‘John is very concerned about losing his licence as it would prevent him from working as a truck driver,’ but most criminal lawyers will strongly recommend that they refrain from telling the magistrate or judge what penalty to impose.

This is because it is for the court to assess all relevant factors and decide the most appropriate penalty, not the referee. Magistrates and judges will have many years of legal education and experience practising the law. They will consider a wide range of information during the sentencing process which will assist in the determination of sentence.

Were Lazarus’ Referees Out of Line? 

Unfortunately in Luke Lazarus’ case, it appears that some of the referees went one step too far, assuming that they are in a better position than the judge to know the appropriate sentence.

For example, it has been reported that Father Gerasimos Koutsouras, a priest at Mr Lazarus’ church, stated that ‘the possibility of imprisonment is completely undeserved for this promising young man.’

Waverley Mayor Sally Betts has reportedly been inundated with requests to stand down, with some alleging that she broke the councillors Code of Conduct by providing the reference. However, Ms Betts has stood by her decision, arguing that she provided the reference in a personal capacity, and that she did not deny that Lazarus should be punished for his actions.

Despite the public backlash, the Bar Association maintains that all offenders – regardless of their crimes – are entitled to present material in their own support, and that prominent figures should not be prohibited from providing character references or testimony just because of their position in the community

Lawyer with client inside courtroom

If it’s your first time in court, you may have a lot of questions about the day including: when to turn up, what to bring, where to go, what to say and even what to wear.

If you are representing yourself, working out the complex rules of going to court can be tricky, and while clothing may seem trivial, turning up in the wrong attire may just compound your feelings of stress or discomfort.

And if you come across certain magistrates, inappropriate clothing may even earn you a lecture.

You’re a grub!

This is what happened in Victoria to 23-year-old Jai Russell Eliott who turned up to court wearing thongs, shorts and a singlet.

Eliott turned up to plead guilty to the charge of “assault or obstruct police and committing a public nuisance”; but before he got to the sentencing, the magistrate gave him a lecture on his poor wardrobe choice, telling him that if he behaved like a “grub” he would be treated like one too.

These are not exactly the words you want to hear from a person who is about to decide what penalty you will be given.

Whether pleading guilty or not guilty, you want the court to concentrate on what you (or your lawyer) has to say, not your outfit.

Dressing inappropriately for court can give the magistrate or judge the impression that you do not respect the court, or don’t take the process seriously. Some magistrates may take offence to defendants who do not dress appropriately or find it disrespectful.

If you intend, for example, to tell the magistrate about your genuine remorse and acceptance of responsibility, you do not want the magistrate forming the opposite opinion based on how you dress.

Appropriate dress

So what should you wear if going to a District or Local court in New South Wales? 

Court is a formal environment, but this doesn’t mean you need to wear a tuxedo.

If you have a dark coloured suit, this is the time to wear it. If not, men should wear pants, a long sleeved shirt and a tie if you have one.

Women should wear pants, or a skirt that is not too short, and a shirt or conservative top. A dark coloured, plain dress is also acceptable.

If you don’t have those things, wear clothing that is neat, clean and ironed.

Needless to say, you should not wear anything that could be considered provocative – for example, a t-shirt with marijuana leaves or profanity printed on it – and it is best to avoid visible tattoos and excessive piercings.

Keep bright colours to a minimum and don’t show too much skin, and try not to wear anything that is ripped.

Remove your hat and sunglasses before entering the courtroom and make sure you aren’t chewing gum, or carrying a newspaper, magazine, food or drinks.

Does clothing really make a difference?

Your parents probably told you that it is what’s inside that counts – but unfortunately, the reality is that people judge others based on their outward appearance – and courts are no exception.

Psychologists have found that how you dress can significantly affect your outcome in given situations, and those who dress appropriately have a better chance of success.

Of course, what you wear to court should never be an indication of your guilt or innocence, but fair or not, how you look can have an impact on the outcome.

Should I wear my glasses?

Glasses are often associated with intelligence or ‘geekiness’, but did you know that studies have found them to have a marked impact on the outcome of criminal trials?

They suggest that wearing glasses can have either a positive or negative effect on perceptions of the wearer, depending on the crime they are accused of. It was found that glasses may help a person accused of a violent crime, whereas they could have the opposite effect when it comes to white-collar crime.

This is because glasses – regardless of race or gender – give the impression of diminished forcefulness and increased sophistication. This explains why they may help a person appear less likely to commit a violent crime, but hurt a person accused of complex corporate fraud.

Studies have also found that a person’s attractiveness can influence jurors, and that an attractive person is more likely to receive a “softer” punishment than a less attractive individual for certain crimes. Conversely, it was found that attractiveness can be harmful if it assisted in the commission of the crime itself – for example, swindling someone – and can lead to harsher penalties.

So when you have your day in court, make sure you look tidy and act respectful in order to give yourself the best shot at the outcome you want.

Breathalyser

Random breath testing (RBT) met with a great deal of criticism before it was first introduced, as many people saw it as an unjustified intrusion into privacy and individual freedom.

Critics of RBTs argued that police should not be allowed to pull people over and sujecting them to a test without having a solid reason to do so.

But most of us now accept that being pulled over for an RBT is part-and-parcel of driving, and that the scheme has contributed significantly to reducing road fatalities.

If you’ve made the mistake of drinking and driving, you might wonder if it’s worth refusing a breath test or failing to exhale hard enough.

Well the short answer is: it is never a good idea because the penalties are severe – the same as high range drink driving.

Power to perform a breath test

Schedule 3, clause 16 of the Road Transport Act 2013 gives police the power to require a person to submit to a breath test or analysis, or a sobriety assessment.

However, police are not permitted breath test you if:

  • You have been admitted to hospital for medical treatment, unless your medical practitioner is notified and does not object;
  • The authorised sample taker believes that to do so would be dangerous to the person’s health;
  • The police officer believes that because of the injuries sustained, it would be dangerous to the persons medical condition;
  • It has been over two hours after you were driving; or
  • You are on your own residential property.

In other situations, police have a wide discretion when it comes to conducting breath tests.

What is the difference between a breath test and a breath analysis?

There are two types of breath tests that police can perform.

The first is often called a “roadside breath test” – which, as the name suggests, usually occurs at the roadside after you have been pulled over or involved in an accident.

Roadside breath tests give an indication of your blood alcohol concentration (BAC), and give police a basis to arrest you for the purpose of a breath analysis if you blow a prescribed reading. However, the reading from the roadside breath test is not permissible in court to prove a certain BAC.

The second type of breath test is called a “breath analysis”. It is carried out after you have blown a positive roadside breath test, or refused or failed to submit to a breath test. It usually occurs at the police station or in a ‘booze bus’.

The results of a breath analysis can be used in court.

What are the penalties for refusing?

Refusing a breath test comes with a maximum penalty of $1,100.

The penalties are more severe if you refuse a breath analysis.

For a first offence, the penalty for refusing a breath analysis is a fine of $3,300 and/or imprisonment for up to 18 months. There is also an ‘automatic’ 3 year licence disqualification. This can be reduced to a minimum of 12 months if there are good reasons to do so.

If it is your second or more major traffic offence in 5 years, the penalty jumps to a $5,500 fine and/or 2 years imprisonment. The automatic disqualification period increases to 5 years. This can be reduced to 2 years if you can convince the magistrate that there are good reasons to do so.

If you are guilty, the only way to avoid a criminal conviction against your name, and also avoid a licence disqualification, is to persuade the magistrate to grant you what’s known as a ‘section 10 dismissal or conditional release order’; which means guilty but no criminal record.

What if I drive after I have been suspended or disqualified?

Driving whilst suspended is when you drive after police have issued you with a suspension notice or after you have been suspended by the RMS.

For a first major traffic offence within 5 years, the automatic period of disqualification is 12 months.

If it is your second or subsequent major traffic offence, the period increases to 2 years.

Driving whilst disqualified is when you drive after a court has disqualified you from driving, or during a ‘habitual offender disqualification period’.

If you are caught driving whilst disqualified in NSW, the courts also have the option to send you to prison; but prison is considered to be as a last resort.

What is a ‘habitual offender declaration’?

If it’s your third or more major traffic offence within a 5 year period, the RMS can declare you a ‘habitual traffic offender’ and add an extra 5 year disqualification on top of what the court imposed.

What should I do if I am charged by police?

If you have been charged with refusing to submit to a breath test or analysis, or driving whilst suspended or disqualified, your best bet is to seek legal advice immediately.

An experienced traffic lawyer will be able to advise you about your options and the best way forward.

In certain circumstances, they may be able to have the charges withdrawn or thrown out of court or, if you wish to plead guilty, help you to avoid a criminal conviction and a licence disqualification by pushing for a ‘non conviction order’.

 

DJ

The licensee of a prominent Sydney bar has been fined $2,000 and given a criminal conviction in Downing Centre Local Court after he pleaded guilty to breaching strict lockout laws introduced last year.

The venue also accrued one ‘strike’ under the ‘three strikes and you’re out’ regime.

Chady Khouzame, who is the licensee of Hotel Chambers in Martin Place, allowed two women into the venue at around 1.40am on the 1st of June last year.

It is believed that one of the women was the girlfriend of a DJ who was playing at the venue that night, yet Khouzame claimed that she was a ‘staff member’ who was working for the DJ.

Inspectors from the Office of Gaming and Liquor entered the premises around the same time as part of a compliance check and observed Khouzame letting the women in.

Khouzame’s criminal lawyer argued for a ‘non conviction order‘, which is a finding of guilt that does not result in a conviction on that person’s criminal record.

But the Magistrate rejected that request, stating that Khouzame’s conduct was particularly serious as he had made the decision to admit the patrons himself, not a bouncer or another employee. In handing down the sentence, Her Honour noted that there is a strong need for ‘general deterrence’ to ensure that other licensees do not similarly flout the lock-out laws.

The sentence has been welcomed by the Office of Liquor and Gambling, with a spokesperson saying that the outcome sends a clear message to other licensed venues in the area who are subject to the laws.

Lockout Laws: A Brief Summary

The lockout laws, introduced early last year, make it an offence for a licensee to admit or re-admit patrons into premises after 1.30am. The laws also impose a 3a.m cut-off period for the service of alcohol which prohibits them from serving alcohol to patrons after this time.

Licensees found in breach of these laws face fines of up to $11,000 and / or 12 months imprisonment.  They will also be automatically issued with a first ‘strike’.

However, where a licensee already has a strike on their record, a magistrate may choose whether or not to issue a second or third strike if that licensee is convicted or is made to pay a penalty notice or comply with an enforcement order under the Liquor Act.

Strikes accumulated under the scheme are active for a period of three years. Where three strikes are accumulated, conditions may be imposed on the licensee’s licence or it may be suspended altogether.

Operators of the venue may also be prevented from obtaining another liquor licence for a period of up to 12 months.

One Year On: Have the Lockout Laws Worked?

This February marked the one-year anniversary of the controversial lockout laws, which were introduced by former Premier Barry O’Farrell following a number of highly-publicised alcohol-fuelled assaults.

BOSCAR statistics have shown that non-domestic violent assaults have been on the decline for some time now, however surprisingly in the months immediately following the introduction of the laws, there was a slight increase in the number of assaults in the Kings Cross and CBD areas.

However, across the whole year, BOSCAR reports a 40% decrease in the number of alcohol-related assaults at venues in the Kings Cross area.

But the director of the BOSCAR research project cautioned that the sharp fall in alcohol-related assaults is not because of a lower consumption of alcohol per person, but rather a massive decline in the number of visitors to the Kings Cross area. He suggests that the laws may have just transferred crime to other areas in Sydney, and have had little impact on overall violent crime trends.

Since the laws were introduced, 42 venues in the precinct have closed their doors, including the once-popular Flinders Hotel. Business owners have reported a fall in profits of up to 40%, while foot traffic in the area has decreased by 84%.

Brisbane Destined for Harsher Lockout Laws 

With some politicians declaring the Sydney lockout laws a resounding success, Brisbane looks set to embrace their own lockout laws in the near future.

The proposed laws seek to impose a 1am lockout on businesses in the Brisbane CBD, along with a 3am closing time and a ban on serving shots after midnight.

Police will also be granted greater powers to breath test people who appear intoxicated. It is suggested that evidence obtained from breath tests will then be used to prosecute licensees for breaking the laws.

But it’s unclear when Brisbanites are likely to be subjected to the new laws – as a start date has not yet been set.

In the meantime, NSW Premier Mike Baird has promised to undertake a review of the Sydney lockout laws in a move that has won support from suffering businesses in the CBD area.

Licensees hope that the review will reverse some of the negative economic effects they have experienced thus far

Angry face

Missing out on your favourite meal at the end of a hard day at work is enough to make anyone a bit grumpy. But for 54-year-old Top Gear presenter Jeremy Clarkson, finding out that he couldn’t order his steak and chips after finishing a day of filming reportedly caused him to lose the plot.

The nearby hotel where he had planned on having dinner had stopped serving food by the time he was ready to order.

The target of his anger was his producer, Oisin Tymon. Clarkson reportedly yelled and threatened to fire Tymon in a tirade lasting for about 20 minutes before punching him in the face. Tyson then took himself to hospital after suffering swollen and bleeding lips.

And although Tymon did not make a formal complaint, the BBC has decided that it will drop Clarkson from the Top Gear team.

Clarkson quickly admitted his wrong-doing and apologised for his conduct, but it was not enough to save his job. Clarkson’s current contract is due to expire at the end of this month and the BBC has announced that it will not be renewed.

Former Top Gear host Quentin Wilson said that Clarkson was a difficult man to work with. He believes that success may have gone to Clarkson’s head, and hitting a co-worker because he didn’t get his dinner was not acceptable.

The BBC defended its decision to fire the popular presenter, although fans have started a petition in an attempt to change the broadcaster’s mind. The ‘Bring Back Clarkson’ petition has already been signed by more than 1 million fans, who believe that the show will not be the same without him.

In fairness, Clarkson has been instrumental in turning Top Gear into the popular and well-known show it is today. But many support the BBC’s decision and are happy to see the back of Clarkson, saying that stars should not be allowed to get away with inappropriate behaviour in the workplace no matter how popular they are.

Clarkson may also face assault charges after police investigate the confrontation and its criminal implications. Witnesses have been interviewed and police have also asked the BBC for a report that details their internal findings.

Assaults in NSW

If this attack had taken place here in NSW, there is certainly a possibility that Clarkson could have faced assault charges; with or without a formal complaint or statement from the alleged victim.

Assault is divided up into several categories, depending on the nature of the conduct and the injuries inflicted (if any).

The available facts in the Clarkson case would leave open the possibility of at least 3 types of assault charges:

  1. Common assault,
  2. Assault occasioning actual bodily harm
  3. Reckless wounding

What is common assault?

Common assault is an offence under section 61 of the Crimes Act 1900(“the Act”) and is the least serious of assault charges. It includes any action that causes a person to fear immediate and unlawful personal violence, even if no physical contact is actually made. If physical contact is made, it will include minor injuries that heal quickly, like scratches or grazes, but not more serious injuries.

In NSW, the maximum penalty for common assault will depend on which court it is heard in. If it is heard in a Local court, such as the Downing Centre court, the maximum penalty is twelve months imprisonment and/or a $2,200 fine. If the case is heard in the District court, the maximum penalty is two years imprisonment.

What is assault occasioning actual bodily harm?

Assault occasioning actual bodily harm (AOABH) is an offence under section 58 of the Act and is the next most serious assault charge. It involves injuries that are more than just “transient or trifling”. This may include, for example, scratches, bruising and grazes that last more than just a couple of days. And in terms of mental health, psychological injury must be something more than transient emotion, feeling and states of mind.

The maximum penalty for AOABH in NSW if heard in the Local court is two years imprisonment and/or a $5,500 fine. If heard in the District court, the penalties are higher: five years imprisonment.

What is reckless wounding?

Reckless wounding is an offence under section 35(4) of the Act, and it is more serious than AOABH. In order to constitute reckless wounding, the injury must involve the cutting of the interior layer of the skin (the dermis). Breaking only the outer layer is not sufficient; however a split lip may constitute reckless wounding.

The maximum penalty for reckless wounding is seven years imprisonment in the District Court or two years if the case remains in the Local Court.

Will types of penalties can I expect for an assault charge?

Common assault, AOABH and Reckless wounding all come with a criminal record if you are convicted. The penalties that a court may impose also includes good behaviour bonds, community service orders, intensive correction orders, fines, suspended sentences and prison.

However, it is possible to escape a criminal record and a penalty if you are able to beat the charge by arguing that there is not enough evidence to prove your guilt or if you have a valid legal defence, such as ‘self-defence’.

Even if you wish to plead guilty, you will be able to avoid a criminal record if you can convince a magistrate or judge to order a ‘section 10 dismissal or conditional release order’; which mean that you are guilty but a criminal conviction is not recorded against your name.

Clarkson defiant

Back to the UK, it is reported that Clarkson is unhappy with BBC’s decision to sack him and that he has vowed not to go down without a fight.

Legal action may even be on the cards from Clarkson’s corner.

And adding to the BBC’s woes, it has also been reported that Top Gear co-stars James May and Richard Hammond may turn down the offer to continue as presenters of the show if Clarkson is not reinstated.