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Presumption of Guilt for DUI Charges

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The Road Traffic Act 1974 (WA) (the RTA) is the legislation that sets out the rules on how we share and use the road. Naturally, matters involving driving under the influence of alcohol fall under the purview of the RTA.

 In the State of Western Australia, an individual charged with a criminal offence is deemed innocent until proven guilty in a court of law. To be deemed guilty, it must be deemed beyond a reasonable doubt that an individual is guilty of a criminal offence. There does appear to be one exception to this rule however: charges relating to driving under the influence of alcohol.

Of particular concern are the evidentiary provisions set out in ss70 & 71 of the RTA.  Sections 70 and 71 of the RTA allows for Police Officers to breath test you within 4 hours after the alleged use or management of a motor vehicle, then you are subject to being charged for driving under the influence under the RTA.

What makes matters worse is that the RTA provides under the same sections that should Police require a blood or urine sample from an accused, that there is a window of 12 hours between the collection of said sample and the alleged use or management of a motor vehicle for it to be admissible as evidence in a Western Australian Court.

The problem with these evidentiary provisions is that it provides Police with an enormous window to charge an individual with an offence that they might not have actually committed.

For example, you’re involved in a traffic collision and provide Police with your details should they require a statement. You return home and have a drink to calm your nerves after being involved in a traumatic event. Police arrive a short time later requesting a statement or to question you further and during that process, request a breath sample for analysis, picking up on the alcohol you had just consumed.

Under the RTA, that breath test is admissible as evidence and you would be charged with Driving Under the Influence, even if you hadn’t had a sip of alcohol before returning home.

These provisions provide for far too generous an amount of time between an alleged offence and testing. The presumption of guilt that follows goes against one of the cornerstones of our legal system, being the presumption of innocence. Further, these provisions circumvent the onus of the prosecution to prove an individual’s guilt beyond a reasonable doubt as the collection of a sample within the specified timeframe does not recognise that an accused may consume alcohol after the purported incident.

If the contents of this article apply to your current situation, please do not hesitate to contact one of our criminal lawyers on (08) 9408 5212 and speak to a lawyer regarding your rights.

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

Will my Past Criminal Convictions Stay on my History Forever?

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Your past criminal convictions on your criminal record can impede your future; it can impact your ability to get a job, travel to some countries, obtain visas and loans.

If you have been convicted of a crime in the past, you may be worried about whether it will stay on your criminal record forever.

While there is no obligation for the police in Western Australia to destroy any conviction record information – you may be able to apply to have your convictions “spent”.

 

What is a Spent Conviction?

A spent conviction does not have to be disclosed under most circumstances and will not be included when you apply for a National Police Clearance check.

This does not mean that the offence disappears completely, the police will still have a complete record and if you have later court appearances, even spent applications are considered.

Certain situations do require you to disclose a spent conviction such as when you apply for a Working with Children Check, or if you are applying to work for a casino or the police.

 

Am I Eligible?

To be considered eligible for a spent conviction in WA for a past offence, the conviction must:

  • Be a ‘lesser conviction’ in which the penalty was;
    • A fine of $15,000 or less; or
    • An imprisonment term of 12 months or less.
  • Have been heard in a West Australian Court;
  • Be over 10 years old; and
  • The most recent conviction (if multiple), including traffic and interstate matters, must be over 10 years old or have a fine of under $500.

For lesser convictions these are dealt with by the Commissioner of Police.

If however you wish to have more serious convictions spent (that being penalties above the $15,000 / 12-month limit) you must make an application to the District Court.

Factors that are considered for a successful application include;

  • Your personal circumstances;
  • The type of offence;
  • The penalty you receive; and
  • Your criminal history.

 

Commonwealth (Federal) Offences

If you have been convicted of a federal offence, this conviction may automatically become spent after a certain amount of time under the Crimes Act 1914 (Cth).

These times are:

  • For an adult, 10 years beginning on the date of conviction, and
  • For a minor, 5 years beginning on the date of conviction.

 

How can a lawyer help?

Lawyers would be able to advise you on whether or not you are eligible to apply to have your past criminal convictions spent. On top of that, we can assist you in drafting your documents needed to progress your application and put your best foot forward before the Courts.

If you wish to be assisted on the matters discussed above or have any further questions, please do not hesitate to contact us today on (08) 9408 5212 and speak with a lawyer regarding all your criminal record queries.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your legal matter.

Carrying a Weapon: Could what’s in my Bag Get me in Trouble?

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Have you ever been going about your day, minding your own business and then had to go through a bag check and wondered if the contents of your bag could get you in trouble?

What exactly is a weapon? Could that pocket knife you got for your 16th birthday that you always forget is there get you in trouble?

Almost anything can be a weapon if it is carried or possessed with the relevant intent.

Section 8 of the Weapons Act 1999, holds that it is an offence to carry an item that is not a controlled or prohibited weapon, but could be used as a weapon (such as a baseball bat or wrench), if the person has an intention to use it as a weapon, or threatens to use it as a weapon. Whilst the section does provide a list, it is important to know this isn’t exhaustive. The biggest concern is what you intend to do with the object.

Whether or not an item can be said to be a weapon, depends on the way in which it is being held or used. There needs to be enough evidence to give reasonable grounds for suspecting that the person has the relevant intention to use the item as a weapon. Circumstances which may be taken into account to determine intention include the object itself, the location in which it is being carried, how it is being carried, the time of day, and whether there is a credible explanation.

A good example of the matter of ‘circumstance’ is that of Guant v Hooft [2009] WASC 36. A tow truck driver approached another driver with a spanner in his hand. He argued he had it because he did not want the other driver to leave, he had no intention of using it as a weapon. Even though he was yelling as he approached the other driver, it was decided that he did not have the relevant intent for the spanner to be considered a weapon and that under the circumstances it was reasonable for him to have a spanner without the intention of it being a weapon.

If you have been charged with a Weapons offence or had property seized by police under suspicion of a weapons offence, get in contact with one of our criminal lawyers to discuss your matter and your rights and obligations.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Can I be Charged for Drink-Driving if I am Sitting in a Stationary Vehicle?

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In Australia, the dangers of drink-driving are well known. We have almost all viewed and been exposed to the government funded Road Safety Commission television advertisements and educational campaigns. It is generally common knowledge amongst license holding Western Australian’s that driving with a blood-alcohol level of over 0.05% is illegal. However, not many people know that sitting in a stationary car and drinking alcohol, or being under the influence of alcohol, may also be against the law.

According to Section 63 of the Road Traffic Act 1974 (WA):

  • A person who drives or attempts to drive a motor vehicle-
    • While under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; or
    • While under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle; or
    • While under the influence of alcohol or drugs to such an extent as to be incapable of

          having proper control of the vehicle,

          commits an offence, and the offender may be arrested without a warrant.

In order to determine whether or not a person is under the influence of drugs or alcohol, Section 66 of the Road Traffic Act relevantly states that:

  • A police officer may require the driver or person in charge of a motor vehicle, or any person he has reasonable grounds to believe was the driver or person in charge of a motor vehicle, to provide a sample of his breath for a preliminary test in accordance with the directions of the police officer, and for the purposes of this subsection may require that person to wait at the place at which the first-mentioned requirement was made.

A person may therefore be charged with drink-driving if they are over the legal blood alcohol limit and they are:

  1. Driving a motor vehicle; or
  2. Attempting to put a motor vehicle into motion; or
  3. ‘In charge’ of a motor vehicle.

A person will be determined to be ‘in charge’ of a motor vehicle if they have the ability to exercise physical control over it. This is a broad definition which encompasses a range of situations, such as: sitting in an idling vehicle; sitting in a stationary vehicle while in possession of the keys; or even sleeping behind the wheel of a stationary vehicle.

Whether or not a person is determined to be ‘in charge’ of a vehicle will depend upon a combination of the following factors:

Location of the Person

The location of the person is a key factor in determining whether or not a person is ‘in charge’ of a motor vehicle. Put simply, the closer the person is to the ignition of the vehicle, the more likely they are to be determined to be ‘in charge’ of it.  For example, a person is sitting in the driver’s seat is, by nature, far more likely to be able to exercise physical control over the vehicle than a person who is sitting in the backseat.

Location of the Car

Another important factor in determining whether or not a person is ‘in charge’ of a motor vehicle is the location of the car. The location of the car will not only give police an indication of whether the person was driving before the offence occurred, but the extent to which putting the car into motion may have presented a danger to the public. For example, a person parked in their own driveway may present less of a concern to police than someone who is parked on the side of the freeway or on a major street in a busy area.

Location of the Keys

The location of the keys will also play an important role in determining whether or not a person is ‘in charge’ of a motor vehicle. Given that keys are required to start the engine of most motor vehicles, not having possession of them would indicate to police that a person is unlikely to be able to exercise physical control over the vehicle. The keys being located in a person’s bag, on the backseat of the vehicle or in the boot would also be more favourable than being found in the ignition, for example.

 Status of the Engine

Like the location of the keys, the status of the engine will play a critical role in whether or not a person is determined to be ‘in charge’ of a motor vehicle. For example, if the vehicle’s engine is running, a person is far more likely to be able to exercise physical control over the vehicle than if it had been turned off. However, the status of the engine may also be mitigated by other factors, such as the location of the driver and how alert they appear to be. For example, a person sleeping on the backseat of their car may be able to justify the engine running for the purposes of air conditioning while they sleep.

Level of Alertness

The final factor in determining whether or not a person is ‘in charge’ of a motor vehicle is how alert the person appears to be; or in other words, whether they are awake or asleep when found by police. A person who is found to be asleep would, from a logical perspective, be far less likely to be able to exercise physical control over the vehicle than someone who is awake. However, a person who is asleep is not automatically excluded from committing an offence and would still need to prove that they were not ‘in charge’ of the vehicle when they were found by police.

 

Even if a person satisfies each of these factors and is determined to be ‘in charge’ of a motor vehicle, they may still be able to contest this charge if they can sufficiently demonstrate that they did not intend to drive and/or were not in control of the motor vehicle. This may apply in situations where a passenger was drinking alcohol but did not have sufficient control over the vehicle, for example.

Drink driving offences of this nature are a complicated and niche area of law. Due to the complexity of the situation, the specific factual circumstances play a prominent role in any defence.

If the content of this article appears relevant to your circumstances, or if you require assistance with another matter related to Traffic Law, please contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

Will my Past Criminal Convictions Stay on my Criminal Record Forever?

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The short answer: if the last conviction is at least 10 years old, then you may be able to clear your record.

Your criminal record is adduced from your criminal history, which consists of all arrests, court appearances, convictions, non-convictions and police warnings that are kept on file by the police. Naturally, you may be anxious about these past issues staying on your criminal record forever. This record may have an impact on potential job applications, should an employer make a request for you to disclose any criminal convictions.

While there is no obligation for the police in Western Australia to destroy your conviction record information – you may be able to apply for a spent conviction.

 

What is a Spent Conviction?

A spent conviction is essentially the same as having no conviction recorded. This means the disclosure requirements for that conviction will be limited. A spent conviction does not have to be disclosed under most circumstances, and will not be included when you apply for a National Police Clearance check (a key document employers may require when applying for employment).

However, it is noted that although a conviction is ‘spent’, the conviction does not disappear completely – the police will keep the record as part of your private criminal record, and your whole criminal history will be reviewed if you find yourself in court for another offence.

Certain situations do require you to disclose a spent conviction such as when you apply for a Working with Children Check, or if you are applying to work for a casino or the police.

For a full list of exemptions, you can review the Spent Convictions Act 1998 (WA), or talk to a lawyer regarding your specific situation.

 

How can I Apply for a Spent Conviction?

You can apply for a spent conviction while you are being sentenced. Preparing this simultaneous application will not have any impact on your actual penalty, rather this is treated as a separate matter once the sentence has been handed down.

If your concern is regarding a previous conviction, you may apply to have it spent by submitting a Spent Conviction Application form, or through a National Police Certificate application as the application includes a request for the WA Police to spend any eligible WA Convictions.

 

Am I Eligible?

To be considered eligible for a spent conviction in WA, the conviction must;

  • Be a ‘lesser conviction’ in which the penalty was;
    • A fine of $15,000 or less; or
    • An imprisonment term of 12 months or less.
  • Have been heard in a West Australian Court;
  • Be over 10 years old; and
  • The most recent conviction (if multiple), including traffic and interstate matters, must be over 10 years old or have a fine of under $500.

All serious convictions that imposed penalties above the $15,000 or 12-month limit can only be spent by making an application to the District Court.

A successful District Court application will depend on a number of factors including:

  • Your personal circumstances;
  • The type of offence;
  • The penalty you receive; and
  • Your criminal history.

You must ensure that you provide adequate reasons for the Court to make this decision in their discretion. Carter Dickens Lawyers specialises in spent conviction applications and may assist you with efficiently working through the necessary steps to apply for such orders.

 

Commonwealth (Federal) Offences

If you have been convicted of a Federal offence, this conviction may automatically become spent after a certain amount of time under the Crimes Act 1914 (Cth). These times are:

  • For an adult, 10 years beginning on the date of conviction, and
  • For a minor, 5 years beginning on the date of conviction.

 

How can a lawyer help?

If you would like to discuss your eligibility and the process involved in applying for a spent conviction, Carter Dickens Lawyers are able to guide you through this application.

If your matter concerns a serious conviction, preparing your case to convince the Court can be a difficult task, and for this reason, it is advised that you speak to a lawyer before commencing your application process.

If you require assistance with any of the matters discussed in this article, please do not hesitate to contact us today on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

It’s the Drugs, Not Me!: How Perth’s Drug Court addresses drug addictions and helps to reduce overall sentences simultaneously

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Drugs are often related to crime through the effects that they have on the user’s behaviour. In the eyes of the law, an offender cannot use their drug use as an excuse for criminal actions.

However, while an offender cannot blame drugs on their offending behaviour, an acknowledgement of a drug problem may enable them to access the Perth Drug Court for help.

 

What is the Drug Court? What does it do?

The Perth Drug Court operates in the Perth Magistrates Court and is aimed at breaking the cycle of drug related offences by allowing individuals to enter a treatment program prior to sentencing. Allowing the participant to deal with the problems prior to sentencing shows the Court that they have taken positive steps in the attempt to reduce the likelihood of reoffending. As a result, the presiding judicial officer will take these steps and efforts by the offender to change their behaviour into account, and may subsequently reduce their overall sentence in light of this information.

This process aims to help individuals by:

  • Supporting participants in addressing their substance misuse and associated lifestyle;
  • Helping participants change their behaviour so that they can lead a constructive, fulfilling and law-abiding life;
  • Reducing the imprisonment of those with substance misuse issues by addressing problems that are integral to offending behaviour; and
  • Reducing post-treatment supervision requirements for participants by having them address relevant requirements at an earlier stage in the process.

A review of the Perth Drug Court conducted by the Department of the Attorney-General found strong evidence that involvement in a Drug Court program had a positive effect in reducing the level of re-offending among individuals charged with a drug-related offence. Specifically, it was found to be associated with a net reduction in recidivism of 17% over prison and 10.4% over community corrections.

 

Who is accepted by the Drug Court?

Not everyone is automatically eligible to participate in the Drug Court program. To participate, an applicant must:

  • Admit that they have an illicit substance abuse problem;
  • Enter a plea of guilty to all charges;
  • Be willing to undergo appropriate and agreed evidence-based drug treatment, in the community or a residential rehabilitation facility; and
  • Be willing to be supported and supervised by the Drug Court and the Court Assessment and Treatment Service (CATS).

 

How do I get referred to the Drug Court?

The Perth Drug Court accepts referrals from the Magistrate, District and Supreme Courts, and is normally referred at your first court appearance. After you have been referred to the program, you will undertake an initial assessment, and be considered by the Drug Court Magistrate as to your suitability.

The Drug Court Magistrate, when assessing your suitability, will take into consideration the seriousness of your drug problem, the seriousness of the offence and what individual requirements have been identified during the assessment. If accepted, your final sentencing will be deferred until after you complete the treatment program.

 

What are the Drug Court programs? Which one will benefit me?

There are three different pre-sentence programs available within the Perth Drug Court, which are as follows:

  • Supervised Treatment Intervention Regime (STIR): For those that have committed less serious offences that would not result in a prison sentence. This program runs for up to 6 months and involves community-based treatment and less intense case management.
  • Drug Court Regime (DCR): For those with a significant criminal history and drug problems, who have committed a serious offence. This program runs for up to 6 months.
  • Pre-Sentence Order (PSO): For those with a significant criminal history and who are looking at a substantial prison sentence. This program runs for approximately 12 months and heavy supervision is required.

All of the above programs require you to undertake regular drug screen urine tests, make regular appearances in the Drug Court, and participate in treatment through the help of support services and programs within the community.

 

How can a lawyer help?

Although decision making is largely dependent on the discretion of the Court, one of our lawyers may be able to assist in your matter by:

  • Providing you with detailed information on the Drug Court;
  • Discussing whether you are likely to be eligible for a program;
  • Representing you throughout your proceedings before the Court;
  • Providing you with specific information on how participating in a program can be beneficial to you;
  • Assisting you in obtaining a referral from the Court; and
  • Once the program is completed, assist you in preparing for your sentencing hearing with the aim of minimising your sentence to the greatest extent possible.

If you wish to be assisted in the matters outlined above or have any further questions about the Drug Court and wish to speak to a lawyer, please do not hesitate to contact Carter Dickens Lawyers on (08) 9408 5212.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

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Phone: (08) 9408 5212

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