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Remandee Sues Corrections Victoria For Negligence.

We acted for a client in a bail application in December 2021 who had been hospitalised on numerous occasions because of allergic reactions to consuming pepper from meals provided by the Dame Phyllis Frost Centre.   Despite Corrections Victoria being aware of her allergy, meals were provided to our client without care.   At the bail application, we provided all the relevant Justice Health documents that outlined the danger to our client’s life, however the Magistrate wanted to hear from a representative from Corrections Victoria and adjourned the bail application to when court resumes from the Christmas break on 10 January 2022.    During that period of time, our client suffered further allergic reactions and was finally bailed when the representative of Corrections Victoria agreed that they could not keep our client safe.   Police were aware of the danger to our client’s health however continued to maintain their opposition to her bail.    Since being bailed, our client developed a form of anaphylaxis that can occur without being exposed to any pathogen. She has been in and out of hospital since and is now seeking compensation for negligence from the State of Victoria.   While the situation was unacceptable it brings to light the issue of prisoner rights and human rights generally in not being subjected to cruel and unusual punishment.    The Herald Sun recently wrote a story on our client’s plight. While this is once instance where  accountability can be brought to bear, we often hear stories of clients being subjected to poor treatment by police and the corrections system. A typical complaint is excessive use of force during arrest and lengthy wait times to be provided with medical attention while in custody.   There is little transparency in the corrections system where there should be greater oversight to ensure human rights abuses are not swept under the carpet.   Furthermore there needs to be accountability on the police who oppose bail, and for there to be a duty on them when information is provided to agree to the release of remands where their health is at risk; or when their investigations reveal a significant weakening of their case that no longer justifies bail.

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Operation Achillies Targeting Hoon Driving - Charged by Social Media.
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Operation Achillies Targeting Hoon Driving – Charged by Social Media.

If you think posting videos of burnouts means you can’t be charged then you should be made aware of Operation Achilles. Since 2021, Victoria Police have been trawling social media posts of videos, photos and comments depicting hoon driving. Police have then used this as  evidence which has lead to 75 arrests resulting in 518 charges and 111 impounds. A plea of guilty to Dangerous Driving is a mandatory 6 months licence disqualification. This is the most common charge laid and can be proven where the person charged did a burnout with people nearby.People don’t need to be mere spectators, they include the camera person and passengers in the vehicle at the time. If you are concerned, it’s best to review your social media content and head off to Heathcote or Sandown instead.

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No Comment
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“No Comment”. Can it be used against you as evidence of guilt?

When you are charged with an offence, the police will normally interview you. Sometimes it can happen without you knowing, such as being caught speeding – an officer will ask why you were speeding.   You may think this is just conversational, but in reality the officer is looking for an admission that makes for a stronger case in prosecuting you in court, if you choose to defend the charge.   At the same time people often think that by saying “no comment” to the police, it will make them look guilty. This is in fact not true. Accused persons have a right to silence, and providing a “no comment” interview is asserting that right.   This is founded on the principle that police need to prove the charge against you and you are not obliged to help them do it. Courts are also not allowed to draw an adverse inference from a no comment interview.   So once a police officer starts questioning you, you can make an assumption that it is for a good reason, and that reason is to get a confession.   It is good practice to just say “no comment” to anything they ask you other than what you lawfully must tell them, such as your name and address.   Where police place a person under arrest or have formed a belief that a person has committed an offence, they are obliged to inform you of your rights prior to questioning you.   In these instances, it is always advisable to say “no comment” and seek legal advice immediately after.   BCL lawyers are often surprised at how many of our clients have made admissions without knowing that what they said was going to be used against them.   There is an old saying, it takes one slap to get someone to talk and 10 slaps to shut them up. Police know this technique works in police interviews. So if you are ever interacting with the police because they are charging you with an offence, to be safe, it always advisable to say “no comment”.

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How A Statement Of No Complaint Can Lead To Dropped Charges.
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How A Statement Of No Complaint Can Lead To Dropped Charges.

How police use victim statements When police charge a person (the accused) for committing an offence against another person (the victim), a formal complaint is required by the victim in order for the police to proceed with an investigation. Police will take a signed and witnessed statement from the victim outlining what the accused did to them. Police will then use that statement as evidence to prove the offence in court. Victim doubts their recollection Sometimes victim statements are made in the height of anger, or while the victim was under the influence of alcohol or drugs. Often the victim has second thoughts and have doubts about their recollection as to what had actually occurred at the time of the incident. We find this typically in the case of domestic partners having an argument that gets out of hand and escalates to the point where police have attended and someone is charged. Often partners reconcile but the charges are still on foot. The victim wants the charges dropped so that their partner doesn’t end up being sentenced and possibly convicted, all which will impact their criminal record. In cases like this, the victim can attend their police station and tell the arresting officer that they wish to make a Statement of No Complaint. What is a Statement of No Complaint A Statement of No Complaint is a statement made by a victim stating that they do not wish for charges to proceed against an accused person. What many people don’t realise is that the police can still proceed with the case against the accused. For example the accused may have made admissions to the police in a recorded interview, or there may be CCTV footage that proves the offence. Victims can still be issued a summons to attend and be compelled to give evidence even if they do not wish to do so. In the case of close relationships, s18 of the Evidence Act 2008 can operate to provide a privilege for de facto and married partners, parents and children. This privilege means that the victim cannot be compelled to testify against the accused. Rather than simply stating that they wish the charges to be dropped, victims can write their own Statement of No Complaint and provide clarifications to the original statement taken by the police. Example Let’s use the example of two friends John and Callum who one nigh had been drinking alcohol and ended up having an argument. The argument escalates to some pushing and shoving. Callum ends up losing his balance and suffering bruising to his arm. A neighbour hears the argument and calls the police who attend and separate John and Callum. Callum tells police that John pushed him out of nowhere and he landed hard against a coffee table. Police take a statement from him that captures Callum’s version of events. Police then charge John with assault. The next day after he has sobered up, Callum does not want John charged as they are mates and have gotten over the night’s events. He recalls that as he and John were both pushing and shoving each other and he can’t remember who pushed who first. He also recalls that he and John were wrestling earlier and it started off friendly but they started challenging each other to see who can push who the farthest and it got a bit heated. This recollection is important because it give John two defences to assault charges in that: not knowing who pushed who first means that John may have acted in self defence; by challenging each other to pushing each other, Callum has consented to being assaulted. Both of these are valid defences to assault. Callum’s Statement of No Complaint may read as follows: Statement of No Complaint My name is Callum Smith (Date of Birth 22/08/95) and my details are known to police.  On 22 January 2020, I made a statement to police relating to charges against John Sampson. I would like to provide this additional statement outlining that I would like the assault charge dropped against John.  I do this for the reason that on the night of the incident we had been drinking alcohol and my recollection is that I cannot definitely say who pushed who first. We were also wrestling each other just before the incident and I recall that we were being physical with each other and challenging each other to push each other as hard as we could.  I would like to thank how the police have handled the situation and feel embarrassed that it has escalated to this level. On reflection of the incident, I do not think it fair that John should be charged with assault. How Callum’s Statement of No Complaint would be used A statement like this would make it difficult to prosecute John even though Callum can be compelled to give evidence against John. If the prosecutor decided to take Callum’s matter to a Contested Hearing or trial, John’s barrister would cross-examine Callum on his Statement of No Complaint which would substantiate John’s defences. Accordingly, the assault charge would unlikely be proven beyond reasonable doubt and John would be acquitted. How a Statement of No Complaint is used to resolve Domestic Violence charges It is common that a complainant for domestic violence offences may call the police to assist in de-escalating a situation between partners. In many cases these are one-off incidents and complainant’s are led to believe that the police will help on this basis as there is every intention that the partners want to stay together in the relationship. Furthermore the accused partner will often make admissions not realising that they will be used against them. This would likely make any charges laid as proven. In these kinds of situations and where there is no history of domestic violence and it appears that it was a one off incident, our lawyers have had success in seeking that the matter be dealt with by way of Diversion. These are good outcomes as it means that the accused partner does not

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When Is A Toy Gun An Imitation Firearm?
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When Is A Toy Gun An Imitation Firearm?

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.

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