Recklessly cause injury / Dismissed, costs awarded against police

Case: Magistrate dismisses serious assault charge.

Our client attended a friend’s house for a catch up. Another person was already there and had drunk over 10 cans of beer. The person claims that a minor argument led to our client punching him in the face,  kneeling on his neck and attempting to hit him with a shovel. Our client denied this and claimed the injury was likely self-inflicted due to drunkenness after he pushed the complainant out of the way to leave after the complainant aggressively got in our client’s face and was poking at his chest. Our client was charged with serious assault offences and contested them at a hearing before a magistrate.

Charges/ Ch1 (recklessly cause injury), Ch2 (common assault)

Result/ Contested hearing: all charged dismissed, costs awarded against police

Our lawyer offered from the earliest opportunity for the police to withdraw the charges without costs, on the basis that the complainant lacked  credibility. The kneeling on the neck story mimicked the George Floyd murder that was in the news at the time, and the complainant’s medical report stated that he could not recall being punched. The complainant also said another witness was present at the time of the assault, but that witness gave evidence that he did not witness any incident. Our client also had previously had leg surgery that made it painful and difficult to kneel in the way alleged. The prosecutor stubbornly refused to withdraw and decided to contest the matter. At the hearing the complainant made inconsistent statements that provided enough doubt for the Magistrate to acquit our client. This is an example of key strategy that BCL lawyers undertake to offer an early withdrawal of costs for highly contestable cases in order for police to avoid costs orders.

Speeding 35-45kph / Withdrawn

Case: Police Highway Patrol Charged Our Client With Excessive Speed Despite His Radar Having Detected A Different Vehicle.

Client drove his car on a highway and indicated into a left lane while police were pursuing another vehicle causing them to lose the pursuit. They intercepted our client and gave him an infringement for speeding between 25 and 35 kph carrying a mandatory 6 months loss of licence. Our client denied speeding and took the matter to court.

Charges/ Ch1 (speeding  between 25- 35kph)

Result/ Ch1: withdrawn

Our client’s charge was withdrawn following review of the police in-car dash cam footage and body worn camera footage showed the police had detected the speed of the other vehicle it was pursuing and they said about our client “he’ll do he was speeding too”. This material is not readily available for parties unless requested from the police. This material should always be reviewed especially for speeding offences due to the inaccuracy of the police in car radar detector (Stalker Dual DSR – Direction Sensing Moving Police Radar). Whilst stationary or travelling, the transmitted signal from the DSR can strike a moving target and transmit the signal back to the antenna. The traffic radar then measures the frequency shift to obtain the target speed. The unique Direction Sensing ability of the DSR allows the radar to automatically determine the correct speed of all same lane targets and opposite lane targets. However, the DSR does not provide police with any corroborating evidence as to which vehicle was locked on and unfortunately in certain situations, even police members can become confused in heavy traffic conditions. This technology is difficult to incorporate a built in camera due to the fact that such radars generally detect cars hundreds of metres away. For the foreseeable future, we will continue to request access to the police in-car dash cam footage and body worn camera footage to ensure that no stone is left unturned.

Dangerous driving / Withdrawn

Case: Helicopter speed detection method agreed to be inaccurate by prosecutor at contest mention 

Client drove his car on the freeway whilst being followed by Victoria Police Air Wing. Tactical Flight officers from the air wing kept constant observations and estimated the speed to be between 140 – 150kmph. He received a summons for court charged with dangerous driving and careless driving and exceeding the speed limit by more than 45kmph.

Charges/ Ch1 (dangerous driving), Ch2 (careless driving), Ch3 (speeding  by more than 45kph)

Result/ Ch1, 2: withdrawn; Ch3: Charge amended to reduce the exceeded speed limit by less than 45kph, licence suspension 6 mo (instead of 12 mo)

BCL lawyer argued that the police informant could not have accurately calculated the distance over time which was the mathematic formula used by police officers from the air wing unit. Prosecutor agreed prior to contest mention and matter proceeded by way of a plea of guilty whereby client received the minimum mandatory of 6 months licence loss, rather than 12 months on the original charge.

Large Commercial Quantity Of Drugs / Bail Granted

Case: Bail granted for Serious drug charges.

Our client’s house was raided and large commercial quantity of drugs was allegedly found. This quantity makes bail unlikely given the almost certain prospects of a term of imprisonment if found guilty. Client had to show exceptional circumstances why bail should be granted.

Charges/ Ch1 (trafficking of a large commercial quantity of drugs)

Result/  Bail Granted – exceptional circumstances found

Our lawyer advised client to run a self represented bail application which is usually unsuccessful and to preserve a later more considered bail application with legal representation. Our lawyer however assisted by arranging a surety of $200,000, stable accommodation and providing prior guidance to our client. Police also did not allege our client was an unacceptable risk and the magistrate granted bail.

Possession of Drug of Dependence / Adjourned Undertaking

Case: Caught in a car with drugs while having a seizure.

Client was suffering brain cancer and pulled over their car sensing the onset of a seizure. Police intercepted and unlawfully searched the vehicle finding drugs. Case was dealt with in 2015 by Legal Aid however client was informed there was a warrant for her arrest for failing to attend court 7 years earlier.

Charges/ Ch1, 2, 3  (trafficking drug of dependence); Ch4, 5, 6. 7 (possession drug of dependence); Ch8 (proceeds of crime)

Result/ Ch2 to 9 Withdrawn; Ch 1 Amended to Possession of Drug of Dependence – 60mo adjourned undertaking with $1500 donation

BCL Lawyer made enquiries with Legal Aid who had no notes about our client’s case. The police informant was no help and refused to make enquiries about our client’s version of events that other people had access to the car and the drugs were not hers. It was agreed in negotiations that the 7 years that transpired made obtaining any corroborative evidence difficult and the prosecutor agreed to resolve our client’s matter on a single charge of drug possession.

Breach of Chief Health Officer Direction / Diversion

Case: Diversion for Protesting lockdown Laws.

Client presented at Parliament House with a megaphone peacefully protesting the Victorian pandemic lockdown laws. Police attended and gave him a fine for breaching the Chief Health Officer directions. Client elected to have the matter taken to court due to the laws being against the Australian Constitution and implied freedom of political communication.

Charges/ Ch1 (breach of Chief Health Officer direction)

Result/ Diversion granted – $350 donation

The case of Cotterill -v- Romanes held that the lockdown laws were lawful in curtailing the right to protest, however this was being appealed in the High Court. Client decided he wanted the matter dealt with as long as he didn’t receive a criminal record as Cotterill may take years before there is a decision. Diversion was a good outcome as it met our client’s objective and he paid less than the original fine.

Traffick Firearms / Bail Granted

Case: Bail Granted For Operation Ironside Accused.

Client is charged with trafficking firearms as part of the Anom encryption app phone sting named Operation Ironside in cooperation with international law enforcement agencies including the FBI. Client was remanded and made an application for bail.

Result/ Bail Granted  exceptional circumstances found

BCL lawyers worked with Queens Counsel Dermot Dann and our client’s family in organising a surety, confirming employment and arranging support letters to show his ties to the community. Magistrate found exceptional circumstances acknowledging the delay in court matters due to Covid-19. Prosecutors alleged our client was an unacceptable risk and should remain remanded. However, the magistrate was also satisfied that bail conditions could ameliorate any risk and granted bail.

Drive Whilst Suspended / Withdrawn

Case: Police served the same brief twice.

Client drove his car while his licence was suspended. He received a summons for court however a court date was not listed to attend. Client was subsequently served the same brief again one year later.

Charges/ Ch1 (drive whilst suspended)

Result/ Ch1: withdrawn

BCL lawyer argued that the police informant failed to seek an extension of time to serve the brief from the court registry within the time limits of the Criminal Procedure Act. Prosecutor agreed to withdraw the charge.

Unlawful Assault / Withdrawn (Jail Avoided)

Case: 15 serious assault charges dropped.

Our client suffered mental health and substance abuse problems and previously lost his licence for drink driving. A female friend alleged that he viciously assaulted her multiple times and damaged her car. 
Charges/ Ch1-3 (damage property); Ch4 (stalking); Ch5-22 (unlawful assault); Ch23-25 (recklessly cause injury); Ch26 (dangerous driving); Ch27 (drink driving)
Result/ Ch4-25: withdrawn;  Ch1-3, 26, 27:  24 month Community Corrections Order (therapeutic), 24 month loss of licence
BCL lawyer had the stalking and assault charges withdrawn on the grounds that our client committed no assault and there were witnesses that could corroborate this. The remaining charges were of a lesser seriousness that warranted our client avoiding jail and being placed on a Community Corrections Order instead. A therapeutic order was made focused on rehabilitation rather than community service punishment. The court gave our client mandatory minimum loss of licence due to prior drink driving offences.

Mid-range Drink Driving / No Loss of Licence

Case: Drink Driving in Byron bay NSW.

Our client went out drinking the night before New Years Day and drove straight into a booze bus after he left dinner. He blew a mid-range PCA and was summonsed to Court for a charge of drink driving.
Charges/ Ch1 (Drive with middle range PCA)
Result/  Ch1: Placed on conditional release order for 9 months pursuant to Section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999
Our lawyer submitted that our client was a youthful offender and under pressure as a young project manager working interstate and thought he was ok to drive home after dinner. Magistrate was of the view that client had great previous character appearing before the Court with no priors and with great prospect of rehabilitation.