Police Matters

Click on the questions below to reveal the answer.

I recently received an expiation notice for speeding and I am going to be suspended from holding a driver’s licence. Is there any way of keeping my licence so that I can travel to work?

If you are on your full driver’s licence and incur more than 12 demerit points then you will be suspended from driving for a period of time. The length of your suspension will depend on how many demerit points you have incurred.

It is important that you make enquiries with a lawyer immediately if you believe you are at risk of losing your licence as in certain circumstances, an application can be made to the Court to reduce the amount of demerit points you will incur for a particular traffic offence.

If you receive an expiation notice which puts you at risk of incurring 12 demerit points or more it is also important that you do not pay the associated fine and alternatively elect to be prosecuted. Once you elect to be prosecuted you will receive a summons which will include a date and time for you to appear in the Magistrates Court. Once your matter is in Court your lawyer can engage in negotiations with the Prosecution and make an application on your behalf.

An application to reduce demerit points can be made to the Court on the basis that the offending is trifling, or if there is any proper cause that the offence may be considered atypical. This will depend on the circumstances of the offending.

If an application to the Court is successful then you will be able to avoid suspension of your licence.

Remember, Scammell & Co offer the first 30 minutes of your first appointment free. Bring along all the detail you can and we may be able to resolve more than you may think, in the first 30 minutes.

Do everyday people get served with intervention orders and could this ever happen to me?

In light of the public discourse about domestic violence, applications for intervention orders are often pursued by the police out of an abundance of caution and sometimes in cases that intervention orders were not designed for. A common scenario is when a relationship breaks down and the usual exaggerated anger-fuelled accusations find their way into a police statement designed to demonise an ex-partner.

If the police bring the application based on that complaint, or even if the complainant brings the application in person, the court will hear it in the defendant’s absence and will make an interim order if it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person and the issuing of the order is appropriate in the circumstances.

Once the interim order is made, it cannot be withdrawn unless the complainant chooses to do so and the matter will have to go to trial.

While the interim order is on foot or if it becomes a final order there is a risk the defendant will be accused of breaching the interim order. If so, the police may charge the defendant with breaching the intervention order and this charge carries a term of imprisonment.

These applications are served on everyday people experiencing what they regard as a normal breakup. It is therefore vital that you seek legal advice in the event you are served with an application for an intervention order.

What should I do if I find myself being questioned by police and what procedure would you advise me to follow?

Should you find yourself under police investigation you have certain rights, once you are considered a suspect. For example, at any interview with the police you have a right to remain silent, a right to have a lawyer or friend present, and to have an interpreter present, if required.

However, there are certain questions that you must answer or procedures with which you must comply, failing which you could be charged with an offence or ordered to comply.

In relation to offences allegedly involving your motor vehicle, you are required to tell the police who was driving your motor vehicle at the time of the alleged offence. A failure to tell the police, or to truthfully answer their questions, can result in you being charged with an offence.

If you are reasonably suspected of being under the influence of alcohol at the time of driving, you are required to submit to a breath analysis and failure to do so will lead to you being charged with an offence, unless you have a defence.

There are also procedures relating to collecting fingerprints and DNA which are compulsory when you are facing a minor or major indictable offence. If you fail to submit, the police will get the necessary order for you to do so and you will be required to submit. To avoid the police getting the necessary order it is advisable to comply, once you are assured the procedure is compulsory for

the offence you are suspected of committing.

These examples only skim the surface. You need to instruct an experienced lawyer to guide you through the legislation overseeing the procedure that applies to the offence(s) in question.

Recently I lost my licence, due to disqualification. Can I apply to the Court to get it back, just to get to and from work?

If you have committed a drink driving, drug driving offences or have accrued over 12 demerit points, then it is likely you will receive a licence disqualification for a period of time.

Unfortunately, it is not the case that an application can be made to the Court for you to hold your licence to get to and from work or for any other purpose.

What a lawyer can do for you is to assess your case and see whether there is a defence to the charge. If there is no defence to the charge then it may be possible to make a trifling application or achieve the very minimum disqualification period.

If you are to be issued with a Court ordered disqualification, depending on the circumstances of your case there is a mandatory minimum disqualification period. That means that the Court has the discretion to impose more than the minimum penalty (the minimum is not always granted). Your legal representative can put submissions to the Court to seek the very minimum penalty, based on your personal circumstances and also the circumstances of the case.

If you are on a probationary or provisional licence and you have not applied for an appeal in the last 5 years you may be eligible for an appeal in the Magistrates Court. Scammell & Co. can assist you in lodging the required paperwork and facilitating your appeal.

Contact any of our offices to arrange an appointment to discuss your particular detail. Remember, in most cases the first half hour of your first appointment is free.

I was recently involved in a car accident and I have been charged with Driving Without Due Care. Can you provide me with advice?

If you have been charged with this offence under section 45 of the Road Traffic Act 1961 SA then it is alleged that you have driven a motor vehicle without due care or attention, or without reasonable consideration for others.

If the matter is a basic offence then the maximum penalty is a $2,500 fine and three demerit points. If the offence is aggravated then the maximum penalty is one year imprisonment and a driver’s licence disqualification for six months.

An offence is aggravated if you:

•  Caused death or serious harm;

•  Were escaping from pursuit by the police;

•  Are disqualified or suspended from driving;

•  Had a blood alcohol reading of .08 grams or more;

•  Were exceeding the speed limit by 45 km / h. or

•  Driving under the influence.

The Prosecution must prove that:

1.  You were driving the vehicle.

2.  That you were driving on a road; and

3.  That you did not drive the vehicle with the care and attention required.

It is always important that you seek proper legal advice prior to a Court case, even if you want to

Plead guilty to the charge. A lawyer can advise you whether there is a defence, or whether the charge is properly laid.

It is very often the case that charges can be amended, downgraded, or in some cases withdrawn. This of course depends on the charge and also the circumstances of your matter.

Victims of Crime Compensation – when am I eligible and how do I make a claim?

People who fall victim to an offence such as an assault, a sexual assault, or a myriad of other offences may be eligible to receive compensation from a government funded scheme under the Victims of Crime Act, 2001 or the Criminal Injuries Compensation Act 1978.

In order to be eligible you must have sustained an injury, whether that be physical or psychological, and you must seek treatment from a GP, specialist or any other recognised professional. If the only damage caused was to your property or the offences are along the lines of a property damage or trespass on property, you will not be eligible for Victims of Crime Compensation.

However, even if you have sustained a compensable injury, the government solicitor must firstly be satisfied there is sufficient proof that the offence was committed. If the offender was found guilty or pleaded guilty, you will automatically be eligible to apply for victims of crime compensation, as the offence(s) are already regarded as proven.

However, if the offender is unknown or cannot be located and brought to justice, your solicitor will need to persuade the government solicitor that there is sufficient proof that the offence was committed.

For this, your solicitor may need to take witness statements from people the police overlooked taking statements from, or who they were unaware existed. Scammell & Co. have a number of experienced solicitors who conduct these claims. If you believe you are eligible for compensation contact Scammell & Co. – we may be able to conduct a claim on your behalf.

If I am charged with an offence can I make an application for no conviction?

Every day people can be charged with offences and sometimes serious offences … it may not seem likely, however, it happens. If it’s not possible to have the matter withdrawn, an application for no conviction should be made if the person pleads guilty / is found guilty of the offence.

In the absence of such an application, the court will automatically record a conviction for the offence. This can have a bad effect on future employment and activities. Some points to consider:

•  Is your employment dependent upon you receiving a police clearance?

•  Will you, sometime in the future, want to apply for a position of employment that requires a police clearance?

•  Are you applying for a visa to travel to another country?

•  Do you want to undertake volunteer work such as coaching your child’s soccer team or work in the school canteen?

•  Are you applying for citizenship, permanent residence or for a visa to stay in Australia?

This is not an all-inclusive list.

A conviction imposed by a court may prevent you from gaining some jobs or participating in some activities. If you represent yourself and the court records a conviction, the cost of appealing will cost more in legal fees than if you had instructed a lawyer. It is therefore vital that you obtain an

experienced lawyer to handle the application on your behalf.

The court will take into account your lawyer’s submissions about how a conviction will impact on you. The court will also listen to your lawyer’s submissions about your good character, lack of prior convictions and steps taken to ensure you never re-offend. To this end, your lawyer will hand up to the court any supporting evidence.

Do I need to prove that I wasn’t speeding if I am wrongly accused of exceeding the speed limit?

If you elect to be prosecuted and defend a speeding allegation, there is always a presumption of innocence and prosecution must prove, beyond reasonable doubt, that the offence was committed. One of the things that prosecution need to prove for speeding charges is that the device used to detect the vehicle is accurate. Prosecution are allowed by the law to rely on a certificate, signed by a senior police officer, that certifies that the speed gun used was reliable and the speed alleged is accurate.

Speed guns are required to be calibrated every 12 months and a report be issued which states that the gun is accurate to within a specific margin of error. In addition, police are required to perform tests on the day that the device is used. The results of these tests are then used when producing the certificate.

In Supreme Court judgments published in July 2018 Justice Peek held that prosecution could not rely on the certificate because the daily testing by police doesn’t show that the devices are accurate to within +2/-3kph and found that the defendant did not need to prove that the device was inaccurate, but only that the daily testing done by police didn’t prove that the device was accurate to the extent claimed in the certificate.

A statement has been issued by SAPOL confirming that they are assessing the judgments “to fully comprehend if changes need to occur”. In the meantime, it is likely that defendants will continue to successfully defend speeding charges.

Ursula Matson
Senior Solicitor
November 2018

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