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主要领域

  • 人身侵害以及暴力型犯罪
  • 毒品犯罪
  • 家暴及暴力禁止令
  • 性侵
  • 诈骗/欺诈型犯罪
  • 抢劫
  • 谋杀/误杀
  • 犯罪调查组
  • 进口/走私罪

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刑法

Changes Foreign Resident Capital Gains Withholding from 1 July 2017

Where a foreign resident sells Australian property over $750,000.00, the purchaser is now required to withhold 12.5% of the purchase price (or cost base) and pay that amount to the Australian Taxation Office (ATO) prior to completion, unless a clearance certificate has been obtained by the vendor from the ATO. On 22 June 2017, the Treasury Laws Amendments (Foreign Residents Capital Gains Withholding Payments) Bill 2017 came into effect which reduced the threshold and increased the rate of the foreign residents capital gains tax withholding.   The effect of the legislation is that for any contracts entered into after 1 July 2017: The threshold to withhold has been reduced from $2m to $750,000 The withholding rate has been increased from 10% to 12.5%   EXAMPLE: If you entered into a contract to buy a property from a foreign resident for $850,000 and you are not provided with a clearance certificate from the ATO by the vendor before settlement, you will now be required to withhold $106,250 from the purchase and remit that sum to the ATO.


刑法

Domestic Violence & AVO

As a criminal lawyer, I have been many times asked for a consultation in relation to domestic violence and AVO (Apprehended Violence Order). It may appear awkward in the eyes of Korean where certain domestic issues are being treated seriously in Australia. Compared with Korea, most domestic violence cases are dealt with in a more serious manner and end up with an alleged convicted being prosecuted. In this regard, it is necessary to consider how the domestic violence is defined and what a person alleged of domestic violence should prepare.    Most of all, domestic violence is defined as violence between persons in a domestic relationship. The domestic relationship generally include married couples, families, partners and couples in love as well as relatives living in a same residential area. In addition, despite an absence of family relationship, a domestic relationship could be found if people reside in a same property. In terms of the violence, it includes not only physical violence but also psychological violence such as stalking, threats and damage to property.    In general, the police intervene in a case if a victim reports to them. The victim is able to either call or attend the police for the report. Also, the police may attend a scene if reported by a victim’s neighbours. Once a case is reported to the police, it has to be investigated in detail, and may result in a prosecution or conviction.    An example below is an actual domestic violence case that I have dealt with. A husband and a wife were a newly married couple, and they frequently had arguments. One day, the wife shouted at the husband during an argument, and the husband covered his wife mouth by his hand. Due to a report by a neighbour, the police attended the scene, and the husband was arrested and sent to the police station although the wife asked not to do so. During the interview at the police station, the husband stated that he did not use his force, however, he was finally prosecuted for common assault and applied for AVO under the name of the protection of the wife.    As seen in the above case, covering a person’s mouth can be defined as a violent conduct. Hence, if the husband stated as he did, the court would have decided the case against him. Furthermore, the wife may be called to provide evidence if the husband denies to attend the court.    The husband in that case initially argued for his innocence before the court. Evidence presented before the court were the statements of husband and the police, and the voice record of the wife. As usual, a request for withdrawal of a prosecution was not accepted due to its nature of domestic violence. After several postponement of hearings caused by the husband’s absence, the court determined that their honour would decide its case only based on limited evidence, mainly the statement of the wife. As a lawyer representing the husband, I proposed two options to the client. The one was to plea not guilty before the court, however, this choice may require the wife to provide a statement in the court and to be exposed to a cross-examination. The other option was to plea guilty. In that case, the court is likely to apply section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which enable the accused to be treated as a criminal but without actual punishment. It was agreed with a prosecutor that a sentence in accordance with section 10 would be adequate for the husband’s case. Even though sentencing is a matter of the court’s discretion, it is less likely that an actual sentence deviates from an agreed sentence between parties. Ultimately, the husband plead guilty and was sentenced under section 10.  As a solicitor is capable of dealing with this kind of cases during the whole court process, a barrister is not recommended to be hired.    There are several considerations in relation to the above case.  The wife had never thought that merely because of her husband’s conduct covering her mouth, he would be prosecuted. For that reason, the wife made a statement as to what it happened. It is rather recommended that if the wife does not want the police to intervene, her statement to the police at the scene must be delivered cautiously. The police are not allowed to enter into a residential place without any writ unless there is a risk of danger or violence.  The husband also admitted his conduct during the initial investigation as he believed that that would not be a violent conduct. It is recommended that a police interview must be denied without any assistance with a lawyer if you are brought into custody for an allegation. This is because a purpose of the police interview is not to prove your innocence, but to collect evidence. Every convict has a right to remain silent. To exercise its right to silence cannot impact on a case negatively.  Furthermore, although the husband denied to attend the court hearing in the above case, it is rare that the court issues an arrest warrant for a hearing except aggravated cases. As such, the accused is less likely to be found guilty in case where only available evidence is a statement of a victim in a domestic violence context.   Accordingly, it is vital to seek a legal advice from a criminal lawyer as soon as practicable if a person is alleged of a criminal offence. The police are obliged to provide the accused with an opportunity to contact its legal representative. Had the husband have a legal advice, he would not have spent six months and additional legal fees.   


刑法

Do you need an interpreter when calling the police?

Any resident in Australia has the right to request an interpreter.  "If you are a victim of crime, know about a criminal, or know about a crime, there are a number of ways you can use the interpreter service to report it to the NSW Police, who can arrange a language interpreter or AUSLAN, If you speak a little English but are more comfortable with your first language, the police can arrange a free professional interpreter free of charge. Independent professional interpreters work under confidentiality provisions and interpreter code of ethics. You can rest assured that any information provided to the interpreter remains confidential. Police can use bilingual staff or telephone interpreter services or arrange interpreters to attend the interview. It is important that you tell the police the language in which you can communicate most confidently so that the police can arrange the appropriate interpreter. If you use a rare language, dialect, or additional language, please notify the police. You may also find alternative interpreters. You can also tell the police about special preferences, such as using a female interpreter. It may not always be possible, but the police will try to help you. "   https://www.youtube.com/watch?v=EPHjlIjV-Bc&feature=youtu.be