Mar32022 by Connor JamesNo Comments

Common Law Claims for False Imprisonment

We are running a series of posts for law students and junior lawyers looking at legal basics. In this first post, we examine common law claims for false imprisonment. If you are looking for legal advice on the following area, please consult a lawyer.

False imprisonment is an unlawful restraint of a person by another within a fixed area and can give rise to a civil claim. This is a sub-category of the tort of trespass to the person.

There are some areas of law that cross into both civil and criminal law. One such area is false imprisonment. In the criminal realm, false imprisonment is often alleged alongside assault and battery. That being so, false imprisonment is not merely a subcategory of assault. In NSW, false imprisonment is a common law offence.

The right to not be the subject of false imprisonment and to liberty more generally has been described as:

“the most elementary and important of all common law rights and is protected by the common law doctrine of false imprisonment”: Ruddock v Taylor (2005) 221 ALR 32; [2005] HCA 48

What are the elements

The elements of false imprisonment are:

The defendant must have been restrained directly (a positive/ voluntary act) against their will by the plaintiff. Note that a physical restraint is not required, restraint can occur as a result of a mental coercion. This may result from a threat of force (see Symes v Mahon [1922] SASR 447).
The defendant must have been restrained within a fixed area. It is not sufficient, for example, to claim false imprisonment within Australia. (see Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 53)
The restraint must be total. Where there is a physical restraint, it must be total and not merely an obstruction. Whether or not restraint is total is a question of fact (see Bird v Jones (1845) 7 QB 742).

Who must show what?

The plaintiff must first prove that his or her imprisonment was caused by the defendant. It is then for the defendant to show lawful justification (see Ruddock v Taylor (2005) 221 ALR 32; [2005] HCA 48 at 140).

The duration of the false imprisonment is not an element but will be relevant to the question of damages (see White v State of South Australia [2010] SASC 95).

Consent is another potential defence to a claim of false imprisonment (see Myer Stores Ltd v Soo [1991] 2 VR 597).

Nov262021 by Connor JamesNo Comments

Have You Been Charged with Novice Range Drink Driving/ PCA in NSW?

Criminal Law

What does PCA stand for?

PCA stands for Prescribed Concentration of Alcohol. Drive with PCA is often referred to as drink driving. PCA is calculated by a ratio of grams of alcohol to ml’s of blood.

What is ‘novice range’ drink driving?

Novice range drink driving is where a licence holder, usually a learner, provisional or interlock licence holder (who is subject to zero tolerance), records a blood alcohol concentration of 0.00 to 0.019.

I need my licence for work. Should I pay the fine or elect to go to court?

On 20 May 2019, the drink driving laws for novice range offences in NSW, came into effect. Prior to this date, everyone charged with novice range drink driving had to go to court. Now, for a first offence, you receive an infringement notice from police (like a speeding ticket). Like any infringement notice, you can elect to go to court or pay the fine.

I you elect to go to court you may have your matter dismissed (referred to as a section 10). This would mean that you don’t get a fine and don’t lose your licence. (Before you get your hopes us, keep reading…)

Prior to 20 May 2019, the courts were very reluctant to grant a section 10 for a novice range drink driving offence. Their rationale was the need for general deterrence, that is, sending a strong message to the community that you will not get any leniency for this offence.

Magistrates would often cite the fact that NSW Governments over the years have spent vast sums on advertising to get the message across that drink driving is serious. Section 10’s for drink driving offences were rare and remain so.

But here is the kicker…

Under the new system, if you elect to go to court and don’t get a section 10, you will have a criminal conviction on your record. If you pay the fine you don’t have a criminal conviction recorded. Only a (criminal) court can impose a criminal conviction.

Another point to consider is this. If you elect to go to court and don’t get a section 10, then the court will disqualify you from driving (where TfNSW will suspend your licence). The difference between a suspension (given by TfNSW) and disqualification (given by a court) is that if you are disqualified you must re-apply to TfNSW for your licence after the disqualification period expires before you can drive again. You do not have to re-apply if your licence is only suspended.

Also, the automatic disqualification period given by the court for novice range drink driving is 6 months. The court can reduce the disqualification period to 3 months (but cannot go below 3 months).

But I need my licence. Do I take the risk of getting a conviction?

The penalty for a first time drink driving offence, when you are given an infringement notice, is a $587 fine (currently) and immediate suspension of your licence for 3 months. In court the maximum penalties are up to 20 penalty units (currently $2,200) and an automatic licence disqualification of 6 months (which can be reduced to three months.) Again, if you elect to go to court and don’t get a section 10, you will have a criminal record.

Are there any other options?

Yes. Pay the infringement notice and appeal the licence suspension.

Remember that once you have received your infringement notice at the time you are fined, you are immediately suspended from driving. DO NOT DRIVE.

Go to your nearest local court registry and lodge an appeal against your licence suspension. Complete the form and pay the filing fee (currently $99). This appeal is against TfNSW, Transport or New South Wales (formerly known as the RMS).

You must lodge the appeal within 28 days of receiving your suspension notice (generally the date of the offence). If you don’t lodge the appeal within 28 days the magistrate will not be able to hear your case. This is an administrative application and not a criminal process.

If your appeal is unsuccessful TfNSW may ask the magistrate to make an order for you to pay their legal costs. However, TfNSW do not usually seek costs in licence appeal matters. Also note, you cannot get a criminal record from this process. If your appeal is successful the court can remove the suspension or lower the duration of the suspension.

I didn’t know about this. I elected to go to court and lost my licence and got a conviction. What can I do?

The only thing you can do now is appeal the decision of the Local Court magistrate to the District Court. Again, an appeal needs to be lodged within 28 days of the local court matter being finalised. You can lodge your appeal after the 28 days but only up to three months after the date that the local court decision is made. You would need to give reasons why you did not lodge the appeal within 28 days. The court may hear your appeal if they accept your reasons.

You should obtain legal advice before lodging your appeal. A lawyer can assist you in lodging the appeal and appear for you in court.

Nov262021 by Connor JamesNo Comments

Have You Been Charged with drive with illicit substance in NSW?

Criminal Law

This charge is cited as (s111 of the Road Transport Act 2013) drive with presence of prescribed drug in oral fluid, blood or urine. This charge is made out when there is a presence of an illicit substance in your oral fluids. It does not mean the drug was active at the time of the roadside test. That would be a different charge, namely drive under the influence of a drug (s112 of the Road Transport Act 2013).

I need my licence for work. Should I pay the fine or elect to go to court?

On 20 May 2019, changes to the drive with illicit substance charges in NSW, came into effect. Prior to this date, everyone charged with this offence had to go to court. Now, for a first offence, you receive an infringement notice from police (like a speeding ticket). Like any infringement notice, you can elect to go to court or pay the fine.

You will also have your licence suspended by Transport for New South Wales (TfNSW) formerly known as the RMS, for a period of three months. This usually happens (via letter) after you have paid your fine (some days or weeks after the charge is laid).

If you elect to go to court you may have your matter dismissed (referred to as a section 10). This would mean that you don’t get a fine and don’t lose your licence. (Before you get your hopes us, keep reading…)

Prior to 20 May 2019, the courts were very reluctant to grant a section 10 for this offence. Their rationale was the need for general deterrence, that is, sending a strong message to the community that you will not get any leniency for this offence.

But here is the kicker…

Another point to consider is this. If you elect to go to court and don’t get a section 10, then the court will disqualify you from driving (where TfNSW will suspend your licence). The difference between a suspension (given by TfNSW) and disqualification (given by a court) is that if you are disqualified you must re-apply to TfNSW for your licence after the disqualification period before you can drive again. You do not have to re-apply if your licence is only suspended.

Also, the automatic disqualification period given by the court for is 6 months. The court can reduce the disqualification period to 3 months (but cannot go below 3 months).

But I need my licence. Do I take the risk of getting a conviction and disqualification?

The penalty for a first time drive with illicit substance offence, when you are given an infringement notice, is a $581 fine (currently) and suspension of your licence for 3 months. In court the maximum penalties are up to 20 penalty units (currently $2,200) and an automatic licence disqualification of 6 months (which can be reduced to 3 months.) Again, if you elect to go to court and don’t get a section 10, you will have a criminal record.

Are there any other options?

Yes. Pay the infringement notice and appeal the licence suspension.

Remember that once you have received your infringement notice and paid your fine, TfNSW will send you a Notice of Suspension. As soon as you get this letter lodge your appeal. You will see from the letter that by lodging an appeal you can continue to drive after the suspension date (only if you have lodged an appeal). If the court dismisses your matter any suspension or reduced suspension starts from that court date.

So….

Go to your nearest local court registry and lodge an appeal against your licence suspension after you have received your Notice of Suspension from TfNSW. Make sure you lodge your appeal before the suspension period starts and within 28 days of the date on your suspension letter. Complete the form and pay the filing fee (currently $99). This appeal is against TfNSW, Transport or New South Wales (formerly known as the RMS).

Remember, you can continue driving after you have lodged your appeal if you have lodged your appeal before the suspension period starts.

You must lodge the appeal within 28 days of receiving your suspension notice (the date of the offence). If you don’t lodge the appeal within 28 days the magistrate will not be able to hear your case. This is an administrative application and not a criminal process.

I didn’t know about this. I elected to go to court and lost my licence and got a conviction. What can I do?

You should obtain legal advice before lodging your appeal. A lawyer can assist you in lodging the appeal and appear for you in court.

Aug32020 by Connor JamesNo Comments

Serious Criminal Offence Procedure Part One

Criminal Law, Private Law

All offences commence in the Local Court in New South Wales and are then either dealt with in the Local Court’s summary jurisdiction or if they are more serious, are transferred to the District Court.

Early Appropriate Guilty Pleas

The Early Appropriate Guilty Plea Reform commenced on 30 April 2018 and applies to all strictly indictable and elected table offences where proceedings commenced after 30 April 2018.

Service of the Brief

The first step in a matter dealt with under the EAGP scheme is for a magistrate to make brief orders i.e. for the Officer in Charge to prepare the brief. Police Prosecutors appear until the brief has been served and until orders for a charge certification have been made. The Office of the Department of Public Prosecutions will appear thereafter.

Disclosure Obligations

The DPP has a legal obligation to disclose all evidence that might reasonably be expected to assist the case for the prosecution or the case for the accused person.

In addition, the ODPP Guidelines requires prosecutors to make full disclosure to the accused of, inter alia, “all material known to the prosecutor which can be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case.

The Charge Certificate

The next step requires a senior prosecutor to review the charges laid and served on the defence and file a “charge certificate” with the Local Court, not later than 6 months after the first return date. That timeline can be extended by a magistrate if it is in the interests of justice to do so.

Oct72019 by Connor JamesNo Comments

Going to court- the basics

Criminal Law, Private Law

For most people, going to court is not an everyday experience. It can be stressful, disruptive and expensive. If you are aware that you need to go to court it is imperative that you contact a solicitor as soon as possible. If you need a Central Coast lawyer or a lawyer who can represent you in a Sydney or Newcastle court you have come to the right place.

If you are going to court for a criminal matter you should check the details provided to you on your Court Attendance Notice or bail form. You must make sure that you are in the court on that date and time. When preparing for court, you should review all of the paperwork provided to you. If you have not been given paperwork, you should ring the police and obtain a copy or instruct your solicitor to do so.

You can check your court date and time on this website. The NSW Online Registry will usually tell you which court number your matter is listed at. It will also often tell you who the presiding officer is for your matter.

You should dress neatly and formally for your court appearance. You should arrive at the court early. You will need to enter the building and go through security. You will usually find signs to the court number your matter is to be heard in.

You should bow as you enter the court room towards the registrar or magistrate. You should ensure that your phone is off. When your matter is called you should sit at the table facing the registrar or magistrate. You should address a registrar as ‘Registrar’ and a magistrate or judge as ‘Your Honour.’ If you are unsure about orders made you should ask the registrar or judge to repeat them to you.

If you have a matter listed for court, you can contact our lawyers to attend on your behalf. Ensure that you call us as soon as possible so that we can adequately prepare to get you the best possible outcome.

Oct72019 by Connor JamesNo Comments

Time in the police station

Criminal Law

Spending time in a police station is a daunting experience for most. It is imperative that you call your solicitor if you have been taken to a police station or if you have been asked to go to the police station.

When you are at a police station, police will typically seek to question you about the relevant events and may seek to conduct certain forensic procedures. In other words, they will carry out an investigation. There are time limits placed on police under legislation that are designed to limit the amount of time of detention for the purposes of investigation.

Pursuant to s 115 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) -, the investigation period is determined by what is reasonable in all the circumstances, up to a maximum of six hours, subject to specific ‘time out’ periods. Time out periods mean periods of time that do not count towards the maximum period and these include the time that you spend talking to a solicitor, and time allowed for medical assistance being provided to you.

Police may apply for an extension of the maximum period of time from a Local Court Magistrate, Local Court Registrar, or an employee of the NSW Attorney-General’s Department.

Oct72019 by Connor JamesNo Comments

The right to silence

Criminal Law, Private Law

If you have been charged with a crime you should contact a criminal lawyer immediately.

Further to this article, also have a look at our articles on time in a police station and on serious criminal procedure. If you are looking for a Central Coast lawyer or a lawyer to represent you in courts in Sydney or Newcastle you have come to the right place.

Typically, your solicitor will tell you that you have a right to silence and will tell you to refuse to answer any questions from police. The right to silence literally means that you do not have to say anything, give information or answer questions. Even if the Police ask you a direct question, you have the right to not answer it.

Police will typically ask you questions about whether you were at a location at a time, whether you recognise someone in CCTV footage, and what you were doing at a particular time. The right to silence means that if you refuse to answer, police cannot assume your guilt as a result of your silence.

There are some exceptions and modifications to the right. Exceptions to the right to silence include where police ask for your identification- i.e. name and address- where they have the right to do so. Also, if your car was involved in a serious crime then you are obliged to give the police details of the driver and any passengers at the time of the offence.

These days, thanks to s 89A of the Evidence Act 1995 (NSW) your solicitor may refuse to come and visit the police with you in relation to an offence that you have been, or are at risk of being, charged with.

Before the introduction of s 89A, police would issue a general caution that anything you say could be used in evidence against you and they would tell you that you have the right to remain silent. Since 1 August 2013 and pursuant to s 89A, police can now give a special caution in certain circumstances.

When police give you a special caution they will tell you that a) you do not have to say or do anything, but it may harm your defence if you do not mention something when questioned that you later rely on in court, and (b) anything that you do or say be used in evidence. This means that, after receiving the special caution, by remaining silent, you may jeopardise your defence in court if you fail to mention things you rely on during questioning.

A special caution may not be given unless you are accompanied by a solicitor who is acting for you. As a result, solicitors will often refuse to come to the police station and will prefer to give you advice over the phone.

Mar262018 by LawEditorNo Comments

What are my chances of getting a ‘Section 10’?

Criminal Law

Many people will have heard of the term ‘section 10’. It is often referred to in the context of relatively minor offences such as traffic infringements, drug offences and common assault. However, in actuality, the Court has a discretion to award a ‘section 10’ for any criminal or driving offence.

By Alex Silcock, Law Quarter.

What does ‘section 10’ mean?

A ‘section 10’ generally refers to that provision of the Crimes (Sentencing Procedure) Act 1999. This section applies when there has been a finding of guilty. It gives the Court a discretion to discharge the offender with no conviction, meaning that there will be no criminal record, or other penalty like loss of licence.

There are different types of ‘section 10’ orders that may be granted. The best-case scenario for a guilty party would be an unconditional dismissal under s 10(1)(a). In this situation, no criminal conviction is recorded whatsoever. Other section 10 orders may be conditional on a good behaviour bond, or the completion of an offenders program. It is important to remember that a ‘section 10’ with a good behaviour bond attached, will still result in a finding of guilty being present on a person’s record until the bond is extinguished.

When will a court grant a ‘section 10’?

Section 10 grants the Court a discretionary power, allowing it to exercise its own authority or judgment in determining whether to grant such an order. However, there are certain factors which the Court must consider when making a decision.

These include: age of the offender, prior record, mental health issues, the seriousness of the offence, extenuating circumstances and anything else that might be considered relevant.

It is a common misconception that anyone who is convicted of their first offence will be successful in a section 10 application. However, courts do not grant section 10’s lightly and will need to be convinced that the factors mentioned above warrant such an order being made.

If you would like affordable and honest advice on your prospects of receiving a ‘section 10’, please contact us at Law Quarter.