Author Archive mydefence

The family violence system is broken in Victoria. Legal practitioners in our circle are exhausted from the heavy handed approach to the way police and prosecutors handle family violence complaints.

Typically a matter runs as follows:

• a partner calls police to de-escalate a situation;
• police attend and make immediate value judgements on who is the “victim”;
• police mislead complainants by not telling them that a statement will be used to charge their partner;
• once a statement is made, families are thrown into disarray. Family Violence Safety Notices are issued and police make an application for an Intervention Order often based on hearsay evidence.
• the alleged perpetrator is told they cannot return to their home and are rendered homeless in many cases – no support services are offered;
• police then disregard the wishes of the complainant and persist with the unwanted Intervention Order Application, or continue a criminal prosecution where the complainant never wanted their partner charged.
• Despite complainants being a party to Intervention Order proceedings, magistrates will often refuse their request to have the application struck out where police refuse to withdraw the application. This is the nanny state operating at its worst.

Case study Werribee / Wyndham Prosecutions.

We had a matter concerning Werribee / Wyndham prosecutions whereby our client, who was a victim of stalking, made a complaint.

The alleged perpetrator had admitted to police that he went “nuts” and said he wasn’t innocent.

The issue arose that our client did not disclose to police a particular issue at the time.

Police called our client in for an interview to be questioned about making a false police report.

The investigating police officer was in contact with the alleged perpetrator and told him when our client was to be interviewed.

Call charge records we obtained showed that the alleged perpetrator called our client after being notified by police when she would be interviewed and then told her he will take her to the police interview. The alleged perpetrator then made a threat to our client and told her to admit to making up the allegation.

Our client made admissions fearing that the alleged perpetrator would make good on his threat and she was charged with making a false police report.

We obtained mobile phone tower records to show that the alleged perpetrator was in the location near the police station at the time our client was being interviewed to corroborate what our client alleged. We sought the police station recordings but were told that they were wiped over.

No investigation was made into our client’s allegation of perverting the course of justice and threats by the alleged perpetrator.

We brought this to the attention of Wyndham prosecutions who maintained a prosecution against our client despite their supposed experience with family violence matters. They refused to withdraw the charge and sided with the alleged perpetrator. They then threatened to charge our client with Perjury if we were successful in having the charge struck out because of a technical filing error that we identified.

This is despite the Victoria Police Code of Practice For Family Violence Investigations stating that perpetrators can be manipulative and that there is a policy to encourage reporting of family violence.

We often have charges withdrawn for clients charged with family violence offences when they provide contrary evidence to the statement of the complainant. In none of those cases was the complainant charged with making a false statement.

Conclusion.

Legal practitioners are often lectured by courts that victims of family do not behave in any pre-conceived ways and there are many factors at play as to how people deal with family violence. Police and Wyndham prosecutions have failed our client in this case by making value judgements that they are supposed to be wary of.

Our client should have never prosecuted and the conduct by prosecutors  was disappointing, disgraceful and against all the tenets of dealing with victims of family violence.

The net result of this case is that victims of family violence who want to maintain the family unit should be think twice before reporting family violence. There is a high risk that they can be charged with making a false police report and the experience with our client is that they will be charged and treated with contempt by the prosecution.

Automatic number plate recognition (ANPR) technology is increasingly being installed at your local service station. For good reason too, after many late night fill and runs have left service stations needing a way to protect themselves against petrol theft.

But servos have done a deal to assist police with access to that same ANPR technology to catch unregistered vehicles, and suspended or disqualified drivers. How’s that for customer service.

Police will run the number plate through the Police LEAP system and if the owner of number plate is a person with a suspended or disqualified licence, they will allege an offence has been committed by that person.

Our firm has had a recent case where a client has been charged with driving disqualified on over 50 occasions…all at service stations. It is lazy policing which comes as no surprise, usually with no complaint or reason that a person has come to police attention.

With lazy policing also comes mistakes. Police will seek CCTV footage in an attempt to identify the offender and this is where problems arise. The footage is often unclear, with people wearing baseball caps or covered clothing making it difficult to reasonably identify the driver.

Rather than doing a proper investigation, police just charge the owner of the car and say the person in the footage was him or her.

Case example

To that end, we have also had a case where a brother of a suspended driver was driving the car of their suspended sibling, and the sibling then got charged. In that case our client sought costs against police for wasting his time and money on having to defend a charge that should not have been brought in the first place.

If you grew up playing cowboys and Indians and bought toy guns from the local market, you may be surprised to know that possessing many of them is illegal.

Section 5AB of the Control of Weapons Act 1990 makes it an offence to possess an imitation firearm.

Go to any toy retailer these days and you’ll not see any toy guns that look real, they are all brightly coloured with ridiculous form factors to conform with the law.

To prove the offence, police just need to demonstrate that the toy gun could be reasonably mistaken for a real one. This is why you often find red nozzles on toy guns to make it obvious.

The law came into force in the year 2000 which means anyone who bought any movie memorabilia such as a James Bond Goldeneye Walther PPK or a Lone Star Luger cap gun when they were kids is unknowingly committing an offence.

We’ve run into cases where search warrants have been executed on client’s homes only for them to be charged with this offence when police found toy guns in the backs of cupboards that haven’t been played with for years.

Consequences of a criminal conviction in Australia

The greatest concern of clients pleading guilty to an offence is the effect this will have on their employment. In most Australian States and Territories there are spent conviction laws that operate so that any sentences given with or without conviction will not appear on police checks.

The principle behind spent convictions is that people should not have a life sentence for bad decisions in the past that were a one-off instance or an error of judgment.

Previously, the only way in Victoria to avoid this was to be accepted on the Diversion Program or to have the charges fully withdrawn.

Spent convictions laws

The Victorian Parliament has passed the Spent Convictions Act 2021 which has the effect that:

• Convictions for non-serious convictions will be spent after 10 years for adults and 5 years for children provided there was no further offending;
• Sentences given "without conviction" will be immediately spent;
• Convictions for children under 15 will be spent immediately;
• It will be unlawful to discriminate against a person who has had a spent conviction.

A 'serious conviction' is defined as finding of guilt which resulted in a jail sentence of more than 30 months, a finding of guilt for a sexual offence or a finding of guilt for a serious violence offence. For these convictions, a person can apply to the court to have their conviction classed as spent.

MyDefence lawyers assist their clients in avoiding convictions by creating strategies and crafting pleas of guilty to be designed to offer the best chance of being sentence without conviction.

This will also mean that clients do not have to go to the expense and risk of taking their matter to a Contested Hearing if a sentencing indication from a magistrate indicates a sentence without conviction.

Criminal charges from violent threats

Threatening another person with violence can include:

• Threats to inflict serious injury; or
• Threats to kill.

However, it is not always the case that the threat can be proved by police beyond reasonable doubt.

Elements of the offence

1. The accused made a threat to the complainant to inflict serious injury/or kill upon either the complainant or another person;
2. The accused either:
   1. intended the complainant to fear that the threat would be carried out; or
   2. was reckless (in that they probably should have known) as to whether or not the complainant would fear that the threat would be carried out; and
3. The threat was made without lawful excuse.

The grey area - only serious threats matter

At first it may appear that these are difficult charges to defend as it is easy to be reckless in making a threat. If you think about environments where passions run hot such as football games, or even out socialising with friends and have had a few too many drinks.

However the circumstances and the nature of the relationship between the victim and accused person is important. If a relationship between two persons is dysfunctional and words such as "do that again and I'll kill you" becomes between the two people, then the threat is not a threat that would attract a criminal penalty.

Words in the context of the relationship matter which means that only serious threats can be successfully prosecuted.