Articles

Spent Convictions – An Overview

Spent convictions can be extremely valuable to clients charged with criminal offences who may hope to avoid a conviction for employment, travel or other reasons. A spent conviction is an order made that the conviction for an offence, either on a plea of guilty or a finding of guilt after a trial, be ‘spent’. In other words, it is an order that no conviction be recorded, or that the conviction already recorded be removed. The consequences of not obtaining a spent conviction In the absence of a spent conviction order, a conviction will ordinarily be recorded when an adult pleads…

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Assault and Violence Related Offences

Assault and other violence-related charges are increasingly common in WA criminal courts. Successive State governments have made it very clear that they will empower the WA Police to take a hard-line approach when dealing with all forms of violence. Accordingly, if you have been charged with this type of offence, it is vital that you obtain legal advice to ensure you have a good understanding of the charges and the possible defences available. There are several different ‘levels’ of violence-related offences. The most common charges are: Common Assault At the lowest end of the spectrum is the charge known as…

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The Children’s Court of Western Australia: Appearing as an Accused

Being charged with a criminal offence can be a daunting and confusing experience for an adult, let alone for a child. From the age of 10 to 17, children can be arrested by the Police and charged with criminal offences. As a parent to a child facing a criminal charge, you want to be sure that you have the best representation for them. Questions that might immediately spring to your mind are… Will the child receive a criminal record? How will they get a job? What kind of penalty is the child going to receive? Will they go to jail?…

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Extraordinary Driver’s Licence: Getting Back Behind the Wheel

They say you don’t realise what you have got until it’s gone. For most people, driving is a large and integral part of their life. It is easy to take for granted having a driver’s licence. However, losing your driver’s licence can be a frustrating, expensive, and even debilitating experience. The restrictive regime of catching public transport or becoming completely reliant on friends and family, can be a real burden. Gone are the days of driving to work, driving to the grocery store, catching up with friends, school drop-offs, and going for road trips down south on the weekend. An…

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Low Template DNA and Criminal Trials

The use of DNA in criminal trial is commonplace and most people would be aware of what DNA is and how it might be used in court. In a rape case, for example, it might be alleged that an accused person has left some of his DNA on the clothes of his victim, in the form of saliva, blood or semen. DNA can be found attached to a hair left at the scene or the victim of a violent assault may have their DNA under the finger nails of the attacker in the form of skin or blood. In the…

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Trial By Judge Alone: is it possible and if so, is it preferable?

In recent years, there have been numerous high profile criminal defendants across Australia that have been the subject of intense media coverage, including Gerard Bayden-Clay, Adrian Bayley, Robert Hughes and Cardinal George Pell.In Western Australia, there was a veritable media frenzy during the trials of Lloyd Rayney, Francis Wark and now, the alleged ‘Claremont serial killer’ Bradley John Edwards. Invariably, the accused in these cases is discredited, encumbered by ignominy and highly unlikely to attract any sympathy – until and unless, of course, they are found not guilty, in the style of Lindy Chamberlain. In an age of search engines…

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Violence Restraining Orders: Then and Now

On 1 July 2017, major amendments to the Restraining Orders Act 1997 came into effect, creating, among other things, a new class of restraining order; the Family Violence Restraining Order. Just over a year later, and more than twenty years after the Act became law, it is worth reflecting on what the law was, what it is now and why it has changed. The Restraining Orders Act 1997 The Restraining Orders Act (‘the Act’), as passed, provided that a court may make a violence restraining order (VRO) if it is satisfied that, unless restrained, the respondent will: “commit a violent…

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A Brief Outline of Confiscation Legislation in Western Australia

Considering the impact a criminal confiscation can have on an individual and their family, experience has shown that most people charged with an offence that enlivens the provisions of Criminal Property Confiscation Act 2000, have no idea of the ramifications or how the Act works. Put at its simplest, the State can confiscate any property owned or controlled by a person, when that person has been declared a drug trafficker or the property is crime used or crime derived. In the case of a drug trafficker, it matters not whether the property was lawfully acquired. So, for example, a person…

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Aggravated Home Burglaries – Three Strikes and You Are Out!

Aggravated home burglaries are considered one of the more serious criminal offences in Western Australia. Under section 401(1) of the Criminal Code, the offence of home burglary carries a penalty of up to 18 years imprisonment.1 If the offence is carried out in circumstances of aggravation, the offender could face a term of up to 20 years imprisonment.2 To put that into perspective, only a handful of offences carry greater penalties. These include murder, armed robbery and arson. In 1996, Parliament implemented the Three-Strike Home Burglary Policy (‘the Policy’), which introduced mandatory minimum sentences for repeat home burglary offenders (both…

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Proposed Changes to Jurisdiction in the Magistrates, District and Supreme Courts

September, 2018. Changes that could have a big effect on the efficiency of the court system are currently being discussed in the Western Australian Parliament. These proposed changes follow the recent changes to the Misuse of Drugs Act, which raised the maximum penalty of possession of more than 28grams of methylamphetamine, with intent to sell or supply, to life imprisonment and allowed these types of charges to fall within the jurisdiction of the District Court of Western Australian. With a Magistrates’ Court that is already struggling with the sheer volume of matters that appear in a list on a day…

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