The plea of guilty in summary offences
Summary offences are minor offences that are heard in the Local court. The maximum penalty for a summary offence in the local court is two years imprisonment. If the prosecution and defence agree, then some indictable offences can also be dealt with summarily. Guilty plea A plea of guilty is a matter for mitigation in […]
Aggravating and mitigating factors in sentencing
When sentencing, the courts consider the aggravating and mitigating factors in the circumstances of the offence and the offender in order to reach an appropriate sentence. The prosecution bears the onus to prove aggravating factors beyond reasonable doubt and the defence bear the onus to prove mitigating factors on the balance of probabilities. Section 21A(2) […]
Can Police force the driver/owner of a vehicle to disclose the identity of any person/s that might have been in the vehicle?
In New South Wales, section 14 of Law Enforcement (Powers and Responsibilities) Act grants Police power to require disclosure of driver or passenger/s identity. The police can only exercise this power if they reasonably believe that the vehicle was used in the commission of indictable offences. Indictable offences are offences that carry a minimum sentence of two years […]
Spousal Maintenance
Separation from a partner can be difficult and challenging. It also comes with added financial stress and uncertainty. In some circumstances, a spouse might be entitled to a spousal maintenance order. What is a spousal maintenance order? The courts have the power to make an order requiring one spouse to maintain the other spouse in […]
Mobile Phone Use Offence
New mobile phone detection cameras On 15 October 2019 the New South Wales parliament passed the Road Transport Amendment (Mobile Phone Detection) Bill 2019. The Bill amends the Road Transport Act (NSW) 2013 with respect to mobile phone use offences. The bill inserts into the Road Transport Act (NSW) 2013 section 139B Which authorises the use of fixed and […]
Treatment of Lottery Wins in Family Law
In a marriage or de-facto relationship, lottery wins acquired during the marriage and after separation can be part of the matrimonial pool available for distribution during property settlement under the Family Law Act 1975. The most important question is by whom the contribution was made. Contribution of both parties If both parties receive a source of income and the marriage […]
When can a police officer search you?
If you are subjected to a search by a police officer, you may find it daunting and uncomfortable. However, it may be useful to understand your rights when this occurs and the circumstances when a police officer is allowed to conduct a search. In New South Wales the Law Enforcement (Powers and Responsibilities) Act 2002 (the Act) […]
Bail Applications
After the police have charged an individual, they then need to decide whether they will allow that individual to leave the police station or whether they will keep that individual detained until any such hearing date. Bail means being allowed to go free notwithstanding that you have been charged with an offence. Show Cause In […]
Setting Aside a Default Judgement
What is a default judgement? Default judgement occurs when the Court makes a judgement against the defendant without having a hearing in Court because the defendant did not file a defence to the statement of claim. On what basis can a default judgement be set aside? Rule 36.16(2) of the Uniform Civil Procedure Rules 2005 (NSW) provides […]
Breaching an Essential Term of a Contract
There are three discrete categories of breach of contract which gives rise to a right to terminate. One such category is a breach of an “essential term”. What is an essential term? A term is said to be “essential” when it is of such importance to the party receiving a contractual promise that that party would […]