The article is significant, not for the nature of the offences for which the Defendant was convicted, but notably in reporting the sentence, the author disclosed that the defendant had committed a number of offences, including “a charge of serious affront (unseemly words) in 1979”.

That report raises the issue of when is a criminal conviction no longer required to be disclosed — or, when is a conviction “spent”?

The Criminal Records Act, 1991 (NSW) (“the Act”) provides that all convictions are capable of becoming spent, except:

“(a)      convictions for which a prison sentence of more than 6 months has been imposed,

“(b)      convictions for sexual offences,

“(c)      convictions imposed against bodies corporate,

“(d)      convictions prescribed by the regulations.”

(section 7(1) of the Act.)

A conviction is spent in circumstances including:

(a)            on completion of the relevant “crime-free period”.

(b)            immediately upon a finding of guilt or that an offence has been proved but, without proceeding to conviction (see section 10 of the Crimes (Sentencing Procedure) Act, 1999 (NSW));

(c)            immediately after a caution is administered following an order of the Children’s Court dismissing a charge and administering a caution; and

(d)            upon satisfactory completion of a period of good behaviour or satisfactory compliance of an intervention program ordered or determined by the Court.

(section 8.)

If a conviction is spent

(a)               a person is not required to disclose it; and

(b)               a question concerning the person’s criminal history is taken to refer to only convictions that are not spent (section 12).

A “crime-free period” is prescribed by section 9 of the Act, being a period of 10 consecutive years during which the person:

(a)               has not been convicted of any offence punishable by imprisonment; and

(b)               has not been in prison or unlawfully at large;

A person who unlawfully discloses to any other person information concerning a spent conviction is guilty of an offence which attracts a maximum penalty of 50 penalty units (currently $110.00 per unit) or imprisonment for six months, or both (section 13).

A conviction that is spent, however, is still required to be disclosed in circumstances where:

(a)               an application by a person for appointment or employment as a judge, magistrate, Justice of the Peace, police officer, member of staff of Corrective Services (NSW), teacher, teacher’s aide or a provider of child care services;

(b)               for any person who applies for child-related employment;

(c)               to a person convicted of arson or attempted arson if that person seeks to be appointed or employed in firefighting or fire prevention; and

(d)               The Criminal Records Regulation 2004 (NSW) provides further exclusions to the disclosure of a spent conviction including applications for employment with the Department of Public Prosecutions, ICAC and the Police Integrity Commission and application for admission as a legal practitioner.

In addition, the prohibition on disclosure of spent convictions does not apply to proceedings before a Court or the making of a decision by a Court (section 16(1)).

Despite the above, the Act requires a Court “in appropriate circumstances” (which significantly, are not defined) to “take such steps as are reasonably available to it to prevent or minimise publication of that evidence” section 16(2)).

Relating back to article published by the Newcastle Herald, two questions arise:

1. In disclosing an offence for which the defendant was presumably convicted in 1979 and upon the assumption that the defendant completed the relevant “crime-free period”, did the author disclose the existence of a spent conviction in breach of section 13 of the Act?

2. What steps “reasonably available to it to prevent or minimise publication” of that spent conviction, did the Court take?

 If you require any further information please contact our Commercial Lawyer Nicholas Pidcock at the Newcastle Office of Burke Elphick & Mead Lawyers.

Burke Elphick & Mead™ Lawyers are located in Newcastle and are committed to servicing your Family Law, Criminal Law, Commercial Law, Motor Vehicle Law, Compensation and Workplace Law requirements. Should you have any further queries, please do not hesitate to contact our office

Coming home in a wheelchair or on crutches or not being able to look after yourself or your family is difficult. Being unable to return to work and earn an income only compounds the problem.

It is important that if you have been involved in a car accident and it is not your fault, that you lodge a Motor Accident Personal Injury Claim Form with the Compulsory Third Party insurer for the vehicle at fault as soon as possible.

Under the Motor Accidents Guidelines, every insurer has a rehabilitation team who will act quickly to ensure that seriously injured people receive the help they need.

We cannot stress enough the importance of lodging the Claim Form and being able to have the insurer put in place domestic assistance, care for children (if needed), as well as occupational and other therapies to help you to be rehabilitated and get your life back on track.

If you have been injured in a car accident you need a lawyer. You need an Accredited Specialist in personal injury law. No one wants to be injured in a car accident, but if it happens to you or someone in your family, you need to get sound legal advice and quickly.

Burke Elphick & Mead Lawyers have specialist lawyers who can help. Emma Mead is an Accredited Specialist in personal injury law and can offer you helpful advice in your car accident or compensation claim.

The culture at Burke Elphick & Mead™ is what sets us apart from other firms. We are a close-knit team of committed lawyers, who are passionate about people and their rights. Our clients have access to professionals with experience and expertise across most facets of the law, including. Business and Commercial Law, Family Law, Criminal Law, Civil Law, Wills & Estates, Conveyancing, Motor Vehicle Claims, Accident and Insurance Claims, Compensation Claims, Workers Compensation.  Should you have any further queries, please do not hesitate to contact our office

On 30 September 2005 the Road Transport (General) Act 2005 (NSW) (“the Act”) commenced.

The Act introduced “chain of responsibility” requirements in the transport industry. Its effect was to broaden the responsibility for safety compliance across the entire transport industry. Where once drivers and operators were pursued roadside, the Act extended the Roads and Traffic Authority’s investigative powers to investigate along the entire supply chain, including consignors, packers, loaders and consignees – as well as drivers and operators.

Categories of Breach

The Act introduced categories for breaches of mass requirements being:

(a)               minor risk – being less than the permissible mass plus an additional 5% – i.e.: 105%);

(b)               substantial risk – between 105% and less than 120% of the maximum permissible mass, rounded up to the nearest 0.1 tonne; and

(c)               severe risk – being 120% or more of the maximum permissible mass.

 Available Penalties

In respect of overloading offences the Act prescribes significant maximum penalties which are compounded if the offender is a body corporate or the offence is a ‘subsequent’ offence.

The seriousness of mass breaches is reflected in the maximum penalties available for overloading prescribed at the Table to Division 4 of the Act:

 Demerit Points

Despite the severity of those maximum Court-imposed penalties, none of the overloading offences currently attracts any demerit points.

 “Reasonable Steps” Defence

The Act provides the benefit of a “reasonable steps defence” to a prosecution for a breach of mass, dimension and load restraint requirements if the defendant establishes that:

“(a)      the defendant did not know, and could not reasonably be expected to have known, of the contravention concerned, and

(b)       either:

(i)     the defendant had taken all reasonable steps to prevent the contravention, or

(ii)      there were no steps that the defendant could reasonably be expected to have taken to prevent the contravention.” (section 88).

The availability of the reasonable steps defence places the onus squarely on all road freight users to ensure that they have undertaken all reasonable steps to prevent a breach occurring.

Regrettably, the Act does not define further what constitutes “all reasonable steps” and no exhaustive or prescriptive list has been provided to date by either the legislators or the Courts.

Notwithstanding, such reasonable steps may include:

(a)               developing an industry code of practice;

(b)               use of accreditation schemes;

(c)               reviewing your business practices;

(d)               changing your commercial arrangements; or

(e)               adopting a risk management approach.

In this respect, the National Transport Commission has published a users guide (“Protecting Yourself Under the Chain of Responsibility”) to assist road freight users: (http://www.ntc.gov.au/filemedia/bulletins/PROTYourselfunderCORJuly2006.pdf).

The RTA has also published a table of the effects of the chain of responsibility requirements on each sector of the industry: (http://www.rta.nsw.gov.au/heavyvehicles/downloads/ce_roles_table.pdf).

Again, that guide and table contain suggestions only and are not exhaustive.

Sentencing

In sentencing for breaches of mass, dimension or load restraint requirements and determining a sanction, the Court is required to take into consideration certain matters required by section 60 of the Act.

For “severe risk breaches” those matters that the Court is to take into consideration are:

(1)               an appreciable risk of harm to public safety or the environment;

(2)               a serious risk of accelerated road wear

(3)               a serious risk of harm to road infrastructure;

(4)               a serious risk of increased traffic congestion;

(5)               a serious risk of diminished public amenity; and

(6)               a serious risk of unfair commercial advantage.

Those matters that the Court is to take into consideration will be compounded by the number of journeys undertaken, the distance the vehicles travelled and the benefit or financial gain to the operator to transport the load.

In addition, when imposing penalty the Court would also have regard to the actual percentage overload of the vehicles and the range within which that offence fell (in the case of a “severe” offence for example, whether the offence is at the ‘lower end’ of that category (20%) or the ‘high end’ of that category).

In particular, the Court will have regard to whether or not there was any system in place to ensure that vehicles complied with mass requirements under the chain of responsibility legislation prior to the vehicle’s departure.

Investigative Powers/Direction to Proceed

Under the chain of responsibility legislation, authorised officers are given significant investigative powers including powers of inspection and search and more particularly, the power to:

“Direct any responsible person to produce:

(a)               any records required to be kept by or under any applicable road law; or

(b)               any records comprising transport documentation or journey documentation in the person’s possession or under the person’s control; or

(c)               any records, or any devices or other things that contain records, in the person’s possession or under the persons control relating to or indicating:

                      (i)      the use, performance or condition of a vehicle or combination; or

                     (ii)      ownership, insurance or registration of a vehicle or combination; or

                    (iii)      any load or equipment carried or intended to be carrier vehicle or combination (including insurance of any such load or equipment); or

(d)               any records, or any devices or other things that contain or may contain records, in the person’s possession or under the person’s control demonstrating that a vehicle’s garage address recorded in the relevant register is the vehicle’s actual garage address.”(section 150 of the Act)

A person subject to a direction who fails to produce without reasonable excuse is liable to a maximum penalty of $4,400.00 (in the case of an individual) or $22,000.00 (in the case of a corporation). The onus of proving “reasonable excuse” in such a circumstance lies on the defendant.

Significantly, section 167 of the Act provides self-incrimination is not a “reasonable excuse” for failure to comply with a direction on the ground that complying with the requirement might incriminate the person or make the person liable to a penalty however, there are certain circumstances in which a statement, information or answer is not admissible in evidence against a person in criminal proceedings if an objection is made (see section 167 of the Act).

The practical effect of those extensive investigative powers and in particular, the ability to provide a direction to produce records, devices or other things and the powers of search (section 148) enable the RTA’s authorised officers to identify any number of breaches.

Multiple Proceedings – ‘one offence’

Given the very concept of the chain of responsibility legislation, proceedings may be taken against multiple offenders arising from the ‘one offence’ (section 176) and extending to consigners, packers, loaders, operators and/or drivers whether or not proceedings have been brought against one or all of those other people involved in the offence.

Time for Commencing Proceedings

Significantly, the time limit for commencing any proceedings for certain mass, dimension and load offences under the Act by way of a Court Attendance Notice is “two years after the commission of the alleged offence, or a further period of one year commencing on the day on which the Authority or an authorised officer at first obtained evidence of the commission of the alleged offence…” (section 182) and not the period of 6 months as prescribed by section 179 of the Criminal Procedure Act 1986 which requires the proceedings for a summary offence “must be commenced not later than 6 months from when the offence was alleged to have been committed.” (See also: Roads and Traffic Authority of NSW -v- Sparkes [2007] New South Wales SC667.)

Additional Penalties/Sanctions

Road freight users should also be aware that in addition to the above substantial maximum penalties, additional sanctions for heavy vehicle offences exist and include:

section 107 –          commercial benefits penalty order– where the Court may order a person to pay as a fine an amount not exceeding 3 times the amount estimated by the Court to be the gross commercial benefit received or that would have been received as a result of the offence;

section 108 –          power to effect vehicle registration – in severe risk breaches of mass, dimension or load requirements the Court may order that the registration of the vehicle involved in the offence and of which the person is the registered operator be cancelled or suspended for a specified period of time. Such order can be immediate;

section 109 –          supervisory intervention orders – in the case of a systematic or persistent offender, the Court may order the person involved to do certain things (for no more than 1 year) that the Court considers will improve the person’s compliance with road laws; and

section 111 –          prohibition orders – following conviction and upon application of the prosecution, if the Court considers a person to be a systematic or persistent offender against Australian applicable road laws, it may make an order restricting the person from having a specified roll/responsibilities associated with road transport. It is an offence to contravene such an order.

Given the severity of the various penalties and sanctions available, road freight users must ensure that they are discharging their responsibilities under the chain of responsibility legislation to take all reasonable steps to prevent their conduct from causing or contributing to a breach.

 If you require any further information please contact our Commercial Lawyer Nicholas Pidcock at the Newcastle Office of Burke Elphick & Mead Lawyers.

Burke Elphick & Mead™ Lawyers are located in Newcastle and are committed to servicing your Family Law, Criminal Law, Commercial Law, Motor Vehicle Law, Compensation and Workplace Law requirements.

The above is a commentary only and is not to be construed or relied upon as legal advice.

If you are a Commonwealth Employee, then your workers compensation rights are governed by the Safety, Rehabilitation & Compensation Act 1988.

Under this system, you are entitled to payment of weekly earnings (at prescribed rates) for all periods you are unfit for work.

You are also entitled to payment of reasonable and necessary medical expenses including surgery, rehabilitation for the injuries suffered at work as well as travel expenses when attending treatment.

If you suffer a permanent impairment as a result of your work-related injury, you may be entitled to claim a lump sum permanent impairment benefit, which can only be made when the injury has stabilised.  

If the injury has been caused through the “fault” or “negligence” of an employer, you can choose between a Common Law claim for damages (being a claim in negligence) or a lump sum permanent impairment claim.

You cannot claim both and once a decision is made, it cannot be changed.

To be entitled to pursue a Common Law claim you must have a permanent impairment assessment of at least 10% and the claim must be made within 3 years from the date of injury.

Under the Commonwealth Workers Compensation Scheme, there is very little scope for lawyers to be involved. The process is administrative and managed by the employer or insurer. Injured workers can of course obtain legal advice, but these costs (unlike the NSW scheme) are not paid by the worker’s compensation insurer.

If any part of a claim is disputed and proceeds to the Administrative Appeals Tribunal (AAT), then a portion of legal fees are payable by the insurer.

If you require more information please contact Emma Mead (Accredited Specialist Personal Injury), Alice Davis or Ana Grguric at the Newcastle office of Burke, Elphick and Mead Lawyers.

The culture at Burke Elphick & Mead™ is what sets us apart from other firms. We are a close-knit team of committed lawyers, who are passionate about people and their rights. Our clients have access to professionals with experience and expertise across most facets of the law, including. Business and Commercial Law, Family Law, Criminal Law, Civil Law, Wills & Estates, Conveyancing, Motor Vehicle Claims, Accident and Insurance Claims, Compensation Claims, Workers Compensation.

Nick’s experience in the profession spans some twenty years and includes working in each facet of the law:  for the Bar (as a clerk to chambers), for the Bench (as a District Court Judge’s Associate) and as a solicitor.

He was admitted as a solicitor of the Supreme Court of New South Wales in 1999 and to the High Court of Australia in 2002.

Post-admission Nick has focused his skills in commercial litigation and advice, including building and construction disputes, transport law, insurance litigation (including public liability and aviation claims), Estates disputes, employment (industrial) disputes and alternate dispute resolution.

He has extensive advocacy experience in all jurisdictions including the Supreme, District and Local Courts, Consumer Trader & Tenancy Tribunal and Industrial Relations Commission (both Federal and State).

His non-litigious commercial experience includes all property transactions, acquisitions and disposals of businesses including hotels, commercial and retail lease agreements, the preparation of loan and other security documents, employee agreements and restraints and advice work in relation to indemnity, liability and quantum.

Nick’s emphasis is on providing timely, accurate advice and ensuring that his clients are fully informed.

He joins Burke Elphick & Mead from Sydney, via Orange.

What is a mobile speed camera?

A mobile speed camera is like a fixed speed camera, except that it can be moved from location to location throughout the state. The government will use independent contractors as technicians who will transport each camera to its scheduled location then set the camera up and check that it is operational. The camera will then be able to detect up to six cars per second, travelling in either direction. Any vehicle exceeding the speed limit will be photographed. The photograph, alone with information about speed, direction, location, time, date etc will then be uploaded, apparently in real time, and an infringement will be issued. 

How is it different to a fixed speeding camera?

First, a mobile speed camera will be moved from location to location around the state. The location of a camera at any particular time will be according to a pre-determined schedule. A list of mobile speed camera locations can be found on the RTA website at www.rta.nsw.gov.au

Secondly, unlike with fixed speed cameras, a mobile speed camera will not have any advance warning signs on the approach to it; however, there will be a sign after passing a camera to advise drivers that their speed has just been checked.

If you have received an infringement notice for a speeding offence detected by a mobile speed camera and you believe that you are not guilty of the offence, or if you have received a licence suspension as a result of a speeding offence, please contact Michael, Maria or Kara, our criminal and traffic law solicitors, to discuss your options.

Burke, Elphick and Mead Lawyers deliver a large range of legal services including business and commercial law, family law, criminal law, traffic law, employment, wills and estates, compensation, motor vehicle and insurance Should you have any further queries, please do not hesitate to contact our office.

What type of AVO may have implications for child-related employment?

Any final apprehended violence order for which a person under 16 years of age is named as a protected person.

What are the implications?

Whenever a person applies for a position that may cause them to come into contact with children has to be subjected to a “Working With Children Check”. That check may reveal that the person is a “prohibited person” who cannot work with children, or otherwise will assess the risk that the person poses to any children.

There are three levels of risk estimate:

1. No greater risk than anyone else,
2. Some risk, or
3. Significant risk.

If a person has had a final AVO made against them for the protection of any child then that fact alone will increase their estimated level of risk in a Working With Children Check. Therefore, it is important that any person whose employment involves working with children obtains proper legal advice before consenting to a final AVO where there are children involved.

If you have had an application for an AVO made against you and want legal advice, please contact Michael Burke, Maria Walz or Kara Greiner of the Burke Elphick and Mead Criminal Law Team.

Our Lawyers Merridy Elphick, Emma Mead, Nick Pidcock, Ashley Bithrey, Ana Grguic, and Alice Davis also offer assistance in a number of areas, including: Family Law, Personal Injury, Insurance or Compensation, Commercial Transactions or Contracts, Wills, Estates, and Powers of Attorney, Buying and Selling a Home or Business.  Should you have any further queries, please do not hesitate to contact our office.

For the full article follow this link

http://www.abc.net.au/news/stories/2010/07/06/2945549.htm

If you have a Family Law enquiry contact Merridy Elphick and Ashley Bithrey at the Newcastle office of Burke Elphick and Mead Lawyers.

Burke, Elphick and Mead deliver a large range of legal services including business and commercial law, family law, criminal, traffic, employment, wills and estates, compensation, motor vehicle and insurance. Should you have any further queries, please do not hesitate to contact our office.

(1) A court that finds an offence to which this section applies to have been proven against a person may order the person to present himself or herself in accordance with the terms of the order and submit to the taking, by the officer in charge of the police station specified in the order, of all particulars as are necessary to identify the person.

(2) The particulars may include the person’s photograph, finger-prints and palm-prints.

(3) The order is to contain a warning to the person that a failure or refusal to comply may result in the person’s arrest.

(4) A person who does not present himself or herself in accordance with the terms of the order may, at the direction of the officer in charge of the police station, be arrested without a warrant and taken into custody for such time as is reasonably necessary for the taking of particulars in accordance with the order.

(5) This section applies to the following offences:

(a) any indictable offence,

(b) an offence under section 42 of the Road Transport (Safety and Traffic Management) Act 1999 of driving a motor vehicle on a road or road related area negligently occasioning death, negligently occasioning grievous bodily harm, furiously or recklessly or at a speed or in a manner that is dangerous to the public,

(c) an offence under any of the following provisions of the Road Transport (Safety and Traffic Management) Act 1999:

(i) section 9(1A), (1), (2)(a) or (b), (3)(a) or (b), (4)(a) or (b),

(ii) section 12(1)(a) or (b),

(iii) section 15(4),

(iv) section 16.

(v) section 22(2),

(vi) section 29(2),

(vii) section 43.

(viii) section 70. (c1) an offence under section 5 or 6 of the Prevention of Cruelty to Animals Act 1979,

(d) an offence prescribed, or of a kind or description prescribed, by the regulations. If your matter before the court falls into any of the above categories then the court has, and is likely to execute, the power to make such an order. As you can see from the section, failure to comply with the order will result in the police exercising their powers of arrest and detention for the purposes of obtaining the identification particulars.

Should you have any doubt about whether this applies to your matter then do not hesitate to contact Michael Burke, Maria Walz or Kara Greiner of the Burke Elphick and Mead Criminal Law Team.

The culture at Burke Elphick & Mead™ is what sets us apart from other firms. We are a close-knit team of committed lawyers, who are passionate about people and their rights. Our clients have access to professionals with experience and expertise across most facets of the law, including. Business and Commercial Law, Family Law, Criminal La, Civil Law, Wills & Estates, Conveyancing, Motor Vehicle Claims, Accident and Insurance Claims, Compensation Claims, Workers Compensation. Should you have any further queries, please do not hesitate to contact our office.

The full report follow this link to the abc.net website http://www.abc.net.au/news/stories/2010/05/20/2904358.htm

If you have a family law matter, Merridy Elphick and Ashley Bithrey are our family lawyers working at the Newcastle office of Burke Elphick and Mead Lawyers.

Burke, Elphick and Mead Lawyers deliver a large range of legal services including business and commercial law, family law, criminal and traffic law, employment, wills and estates, compensation, motor vehicle and insurance law.Should you have any further queries, please do not hesitate to contact our office.