Author Archive Kauthen Legal Staff

ByKauthen Legal Staff

Bail granted after two years on remand for “extraordinary delay”.

Kauthen Legal recently secured bail for a client who had spent two years on remand due to what a County Court judge described as the "extraordinary delay" caused by the caronavirus pandemic.

The pandemic has meant that jury trials have been suspended until 2021, and with the second infection outbreak in Victoria there is no certainty as to when the client will have his trial brought before the courts.

Click here to read the full story in The Age.



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ByKauthen Legal Staff

What offences show on a National Police Check?

A criminal record can be detrimental to your work prospects and ability to do volunteer work. Often organisations will ask you for a National Police Check to see that you are of good character or suitable for the role. But not all criminal offences show up on a police check. We detail what and what doesn't show on your criminal record.

Firstly there are two types of criminal records in most states.  One that shows driving convictions maintained by your state's road authority, and one that is maintained by the police. A police check will show both, nationwide.

What will show up on a National Police Check

  • Disclosable court outcomes including convictions, sentences, penalties;
  • All findings of guilt, good behaviour bonds, community-based orders, and suspended sentences;
  • Serious traffic convictions such as drink driving or dangerous driving.
  • Any pending charges before a court.

It Check will display the following information:

  • Description of the offence(s);
  • The court where you were sentenced;
  • The date that you were sentenced;
  • The sentence description.

What will not show up on a National Police Check

  • Where you're found innocent of charges;
  • Where police withdraw charges;
  • Traffic infringements and less serious traffic convictions;
  • Diversion programs once you've completed them;
  • Matters prosecuted by authorities other than the police, such as transport authorities;
  • Spent convictions - convictions more than ten years old for adults and five for juveniles. Except for sexual offence convictions, prison sentences greater than six months, and corporate offence convictions.

It is clear there is a lot at stake for a person's future.

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ByKauthen Legal Staff

Is an assault while playing sport fair game?

At some stage or another we've all played a sport, whether at school when we are younger or on weekends in our adult lives. Physical contact increases the chances of getting injured. Most of the time it is accidental but occasionally it is deliberate.

Here's some things that you should know when you play any sport:

  • you are agreeing to the rules of the game; and
  • you are consenting to any injury you might reasonably sustain that is inherent in playing the game; and
  • when you pay your competition fees, you are also taking out insurance.

Relevant cases supporting this position: R v Stanley (unreported, NSWCCA, 7 April 1995) and  Rootes v Shelton (1967) 116 CLR 383:

What is consent and what is an assault?

In Stanley, the court said as follows:

"in an organised game of rugby league the players consent to acts of violence and acts of substantial violence, and the risks of injury, from the minor to the serious, flowing therefrom, provided that those acts occurred during the course of play in accordance with the rules and usages of the game. Players are not to be taken as consenting to the malicious use of violence intended or recklessly to cause grievous bodily injury. The policy of the law will not permit the mere occasion of a rugby league match to render innocent or otherwise excuse conduct which can discretely be found, beyond reasonable doubt, to constitute a criminal offence."

Practically speaking what does that mean? If you tackle someone when when they have possession of the ball during a football game, that is not an assault.

However it is an assault if a player is standing free away from the ball and is intentionally tackled and sustains a serious injury. It would also be an assault if a rule prohibits high tackles and a player makes such a tackle that does not appear accidental in the circumstances.

The assaulting player is liable to be charged by police. The sporting body can also punish the player by banning them for life from playing the sport.

What's the insurance for?

The insurance cover that you get when you pay your competition fees is for acts that may arise out of negligence. For example if there is a pothole in in the sports ground, or if one of the goalposts falls onto a player and injures them.

The insurer will normally not cover injuries for assaults.

So how do you get compensated for your injuries from an assault?

If the assaulting player is charged and convicted of assaulting another player, you can apply to the court for compensation directly against the accused person. In Victoria you can apply under s85B of the Sentencing Act. Otherwise you can sue the assaulting player for personal injury damages as an intentional tort. When suing someone in the civil courts, an assault is called a "tresspass against a person".


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ByKauthen Legal Staff

How to avoid a criminal conviction when you are guilty.

All states have systems to not punish people for minor or first time offences and to give them a second chance. Importantly this avoids a criminal conviction. Examples of this are diversion and no conviction orders.

A criminal conviction can affect a person's job prospects for a long time where the most law abiding citizen has committed minor criminal offences because of errors of judgment or circumstances where they acted outside their character.

The criminal justice system does not want to punish people for these oversights of behaviour. We explain the two approaches below taken by Victorian and NSW courts.

Diversion program (Vic)

Victoria has a Diversion Program. This program takes the police charges outside of the criminal justice system and is dealt with separately like a good behaviour bond. Diversion is a great outcome where the charges can be proven and a finding of guilt is assured.

To have your matter considered for diversion, we negotiate with the prosecutor and charging police officer to get their consent. If they consent, then a Diversion Hearing is scheduled.

Typical conditions for diversion include:

  • You accepting responsibility for your actions;
  • Not to reoffend within a given time frame e.g. 3, 6 or 12 months;
  • Write a letter of apology to the Victim (if there is one);
  • A small donation to the court fund.

At the end of the time period, all the charges are automatically dismissed and will not appear on your criminal record. You do not have to appear at court for this.

If you don't fulfil the terms of Diversion, then your case will progress through the court system. This still provides a chance for our lawyers to request the Magistrate to "prove and dismiss" the charges without conviction.

No conviction orders (NSW)

NSW enables Magistrates' to dismiss charges and order no conviction under sentencing legislation.

Our lawyers will craft a plea to the court on behalf our client that draws all the circumstances to the attention of the Magistrate to help secure a dismissal of charges or a no conviction order.

This is also done with negotiation with the police and prosecution to not oppose our submission.

Need help on your defence?

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ByKauthen Legal Staff

“No Comment”. Can it be used against you?

When you are  charged with an offence, the police will normally interview you. Sometimes it can happen without you knowing, such as being caught speeding - an officer will ask why you were speeding.

You may think this is just conversational, but in reality the officer is looking for an admission that makes for a stronger case in prosecuting you in court, if you choose to defend the charge.

At the same time people often think that by saying "no comment" to the police, it will make them look guilty. This is in fact not true. Accused persons have a right to silence, and providing a "no comment" interview is you asserting that right.

This is founded on the principle that police need to prove the charge against you and you are not obliged to help them do it. And courts are not allowed to draw an adverse inference from a no comment interview.

So once a police officer starts questioning you, you can make an assumption that it is for a good reason, and that reason may be to elicit a confession.

Summary offences

For summary offences, which are less serious offences such as minor driving offences, or being drunk in public, the police do not need to caution you. They can use anything you say as evidence later.

It is good practice to just say "no comment" to anything they ask you other than what you lawfully must tell them, such as your name and address.

Indictable offences

For indictable offences, which are more serious offences such as being caught with drugs, theft, or being in possession with weapons, police are obliged to inform you of your rights prior to questioning you.

In these instances, it is always advisable to say "no comment" and seek legal advice immediately after.

Our lawyers are often surprised at how many of our clients have made admissions without knowing that what they said was going to be used against them.

So if you are ever interacting with the police because they are charging you with an offence, to be safe, it always advisable to say "no comment".

Need help on your defence?

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ByKauthen Legal Staff

Technical defences for driving and traffic offences.

Driving and traffic offences are some of the most common offences we see from clients. The normal questions asked is whether a client can get off on a technicality. The short answer is yes but you have to be lucky.

These kinds of offences can be difficult to challenge as often there is photographic evidence or a laser detector used. However our lawyers have had success in finding technical defences or holes in the evidence.

One example is police not following correct procedures as outlined in the police manual. A high risk strategy is to contest the charges at a hearing  and have the charging police officer run through the operation of the laser detector from memory. If they slip up then it provides reasonable doubt to the Magistrate that the device was operated correctly.

Another example is where the police fail to file the police brief with the court correctly. Our lawyers are always on the lookout for these kinds of slip ups and we've had drink driving and suspended driving offences dismissed as a result.

Need help on your defence?

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