Criminal Law

As a general rule, victim compensation claims can only be made in respect of crimes involving violence. Some jurisdictions consider sexual crimes and domestic violence to fall within this definition, but the rules will vary based on where the crime occurred in Australia.

Australia's victim compensation laws distinguish between three classes of people:

 The Primary Victim – This is a person who was injured or died as a direct result of the crime. They may also be a person who suffered these injuries because they were attempting to stop the commission of an offence, rescue a victim or arrest the offender.

 The Secondary Victim(s) – These victims are a much wider group of people. They include people who were injured because they witnessed the crime being committed against the primary victim. In addition, some victim compensation laws cover close relatives of the primary victim who were not at the scene of the crime, but became aware of the violent crime.

 The Family Victim(s) – This final group includes family members of the primary victim. The term “family” is defined broadly, including a spouse, de-facto partner, parent, child or sibling. Owing to the wide number potential claimants in this class, victim compensation laws will often provide a limit on the total compensation payable for an offence and may allocate priorities between different family members.

There are also a number of key exclusions from claiming victim compensation. These include victims who could also claim through other entitlement schemes (such as Medicare or workers compensation) or victims involved in traffic accidents.

Yes. It is no exaggeration that Centrelink takes an extraordinarily dim view of not reporting changes in income. There is clearly an ongoing legal obligation on the person receiving the benefit to update Centrelink with all relevant information. There have even been cases when a charge of fraud arises several years after the event.

While this might seem excessive, it is clearly best to ensure full and proactive disclosure.

Should you have particular concerns with income reporting or if you have been contacted by Centrelink in relation to information you previously provided, it is strongly recommended that you speak to a qualified defence lawyer regarding your situation.

Arguably, one of the most common offences of indecency is that of indecent assault, with the offence exhibiting an element of sexual connotation. In R v Harkin, Lee J in the NSWCAA, with whom the others agreed, said the following:

“It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas… The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.”

Despite the difference in name, the law is generally similar throughout Australia. The crime consists of three basic elements:

• sexual intercourse;
• an absence of consent; and
• the mental element of the accused.

The first requirement relates to the physical nature of the crime. The law is now generally expressed in gender-neutral terms, so that there is not an assumption that only a woman could be the victim of a rape. In addition, the crime is wide enough to include acts that would not involve actual penile penetration.

This topic naturally brings up some difficult issues concerning when someone consents. It would, however, be reasonable to say that consent must be freely given, may be withdrawn at any time and cannot be obtained in situations involving force, fraud or intimidation. The law also considers some individuals (such as a young person under age or someone who is mentally disabled) as being incapable of giving consent. Likewise, a person who is asleep or sedated would be unable to give their consent.

The final mental element reflects the mental state of the accused. It requires the prosecution to prove that the accused knew of the lack of consent, was reckless or indifferent to it or failed to stop when the complainant (that is, the person alleging the sexual attack) said no. This may also address situations where the complainant did not say no, but it would be clear that they had not consented. This is a separate issue from the accused claiming that they had an honest or reasonable belief that the complainant had consented.

Most people will be aware that when intoxicated, a person’s physical and mental faculties are diminished, therefore, impairing their conduct and judgment. However as a general principle, drunkenness is not a defence, as noted in the New Zealand case of R v Kamipeli and approved by the High Court in R v O’Connor.

In Kamipeli McCarthy P said:

“Drunkenness is not a defence of itself. Its true relevance by way of defence is that a jury must take into consideration all the evidence, including evidence as to the accused's drunken state, drawing such inferences there from as appear proper in the circumstances. It is the fact of intent rather than capacity for intent which must be the subject matter of the inquiry.”

One of the essential elements in the discussion of criminal law is whether an accused has formed the necessary intent, and becomes a more pertinent line of inquiry when intoxication is a factor. In Cutter v The Queen, Brennan CJ and Dawson J in relation to s 28 of the Criminal Code (WA) noted:

“Intoxication is relevant to the question whether an accused had the relevant specific intent in fact whether or not it establishes that he had lost the capacity to form an intent. The common law is no different…”

The elements of intoxication and intent are also significant considerations in legislation as we shall see.

For minor offences which are not punishable by imprisonment, the issuing of bail is often not necessary, instead a person will be issued with a notice to appear before the court.

For other criminal matters, there is still a presumption in favour of granting bail to an accused, and the onus is on the police to demonstrate why bail should not be granted. However, crimes that are considered as serious criminal matters such as manslaughter, violent sexual offences and murder, the presumption of bail may not be applicable.

When a court is deciding whether or not to grant bail, the following considerations may be taken into account:

• the seriousness of the offence;

• the need for the accused to prepare a defence;

• the severity of the punishment if the accused is found guilty;

• how long the accused might be held in custody before their case can be heard;

• any past instances where the accused has failed to appear before the court after the granting of bail;

• the likelihood of the accused to re-offend while out on bail.

In making a decision on whether to grant bail – as well as the attaching of any conditions associated with the bail – the courts must balance the interests of the accused, and the protection of the community and the victim.

When a police officer is undertaking an action of arrest, they must do so by using reasonable force, and must not subject a person to a greater indignity, than is necessary in completing the action of arrest. So for example, if a police officer decides to use pepper spray on a member of the public for jaywalking, the action may be considered as out of proportion to the offence, if the person has not committed any further actions to warrant such a response by an officer.

While it may be standard practice for police to take a photograph and fingerprints when an adult has been charged with a criminal office, if the police believe that an offence has been committed by a child between the ages of 10 and 14, they, may only do so under limited circumstances.

For example, police officers in Victoria can take the fingerprints of a child under the age of 14 with the permission of a parent or guardian. Additionally, a court order can also be sought to take the fingerprints of a child. In contrast, police in New South Wales can only take a take a photograph and the fingerprints of a child after a court order has been obtained.

In deciding whether to allow the police to photograph and take the fingerprints of a child, the courts must determine whether there is a reasonable belief that an offence was committed by the child, and that the order is justified due to the seriousness of the offence.

My son, who is 16, has been issued with a summons to attend the Children's Court. A neighbour told me that he might be too old for Children's Court and may have to face the Local, District or Supreme Court. What should we do?

Your son is under the age of 18 years old, which is the age where the Children's Court has jurisdiction to hear. In Queensland and Western Australia, the Childrens Court has jurisdiction to hear matters if the defendant is under 17 years of age.

Children's Court has jurisdiction to hear and determine:

• proceedings in respect of any offence (whether indictable or otherwise) other than a serious indictable offence.Generally, a case involving a child will only go to the District and Supreme Courts if it involves a serious indictable offence which includes homicide [murder, manslaughter],
• an offence punishable by jail for life or 25 years,
• certain sexual offences, and an attempt to commit certain sexual offences.

It is important to speak to a lawyer, who will know the rights of your child based on the facts of his case.

Cyber Security is now a national and international issue. It is important to report incidents to authorities for tracing and tracking, and to the financial or other institution involved.

Cybercrime can be reported to the Australian Federal Police (AFP) which works to enforce Commonwealth Criminal Law and protect Commonwealth and national interests in Australia and internationally. In relation to cyber security, the AFP:

• Provide a specialised investigative capacity to support the identification, investigation and prosecution of complex technology-enabled criminal offences;
• Work in partnership with the Australian law enforcement community to respond to organised and complex technology-enabled crime;
• Actively engage in the implementation of crime prevention strategies aimed at raising awareness of cyber security risks in the Australian community.

For further information, review current Government discussion surrounding cybercrime at http://www.ag.gov.au/www/agd/agd.nsf/Page/CyberSecurity_CyberSecurity

If you think you have become a victim of Cybercrime, it is important to consult your Solicitor to discuss the best course of action to rectify the violation, and appropriately increase your Cyber Security.

You should be aware that a parking ticket does not appear on your personal traffic record as would a speeding ticket. The ticket attaches to the vehicle rather than the person driving. The registered owner should therefore be aware of any tickets incurred or outstanding, as unpaid tickets will attract enforcement from the State Debt Recovery Office.

There may be legitimate reasons you may have for avoiding a ticket, such as the theft of a vehicle, or if the driver wasn't actually the owner. In the circumstance where someone else besides the owner was driving the car in question, the owner can fill out a statutory declaration form to your State infringement or compliance bureau.

If you feel you have legitimate reasons to contest your parking fines, it is important to seek legal advice on how to best proceed.

In the case of possessing an unlicensed firearm, the police need to prove that the firearm in your son’s possession was unlicensed.

The police need to prove the accused either sold, purchased, possessed or used a firearm, and at the time, the firearm was not registered. Possible defences could be that the accused did not know, or could not reasonably be expected to have known that the firearm concerned was unregistered, and was not the owner of the firearm at the time of the alleged offence. However, your lawyer will be able to advise you further ab out your particular situation.

Police also need to implement the appropriate identification evidence; meaning to prove it was your son who in fact possessed the firearm.

There are also important aggravating factors to consider that may influence the severity of the punishment. These include:

• Possession of more than one unlicensed firearm; or
• Possession of an unlicensed firearm that is a pistol; or
• Possession of an unlicensed firearm that is a prohibited firearm.

Without going into the specifics of authorisation and telecommunications licensing, we'll assume that this would occur without your neighbour's consent and that the unsecured connection was used for browsing the internet (without conducting any form of network interception to see what your neighbour is doing online).

To date, most criminal investigations have tended to focus on what the open Wi-Fi connection was actually used for. As a result, you should speak to a criminal lawyer with experience in cybercrime offences if you have been contacted by the police in relation to the use of your internet connection. On the other hand, it is unclear whether the police would be in a position to assist if you believe your Wi-Fi is being merely accessed by your neighbours for web browsing. A much more practical solution in this case is to take steps to implement security on your wireless connection.

It depends on what State or Territory the Children's Court is sitting. In all Australian States and Territories, there are specialised children's courts (or juvenile courts). These courts have jurisdiction over offences committed by young people (usually under the age of 18 years) and determine child protection matters in accordance with the relevant legislation.

Usually Children's Courts are closed to the public and only those directly involved in the case may attend.

Unless your son's math tutor is a witness, defendant, or part of a Government welfare agency, then he would not generally be able to attend. It is best to check with your lawyer and the court.

An Apprehended Violence Order (AVO) is an order to protect victims of domestic violence when they are fearful of future violence or threats to their safety. They are sometimes called restraining orders or protection orders. There are two types of AVOs:

• Apprehended Domestic Violence Order (ADVO): this is made where the people involved are related or have had a domestic or intimate relationship. Women's Domestic Violence Court Advocacy Services are funded to assist women in ADVO matters.

• Apprehended Personal Violence Order (APVO): this is made where the people involved are not related or do not have a domestic or intimate relationship, for example, they are neighbours, or where a person is being stalked or intimidated by someone.

In deciding whether or not to make an Apprehended Violence Order (AVO)  the Court will consider:

• The safety and protection of the protected person and any child directly or indirectly affected by the conduct of the person;
• Where an AVO would prohibit or restrict access to a protected person's residence the effects and consequences on the safety and protection of the protected person and any children living at the residence if an order restricting access to the residence is not made;
• Any hardship that may be caused by making or not making the order, particularly to the protected person and any children;
• The accommodation needs of all relevant parties, in particular the protected person and any children; and
• Any other relevant matter.