X
Criminal law deals with behaviors that are or can be construed as an offence against the public and society. Being charged with a criminal offence can be extremely stressful. However, our accredited criminal law specialist is here to protect your legal rights. We understand the importance of your matter and we aim to provide you with sound legal advice and effective representation in court to protect your rights.

Key Practices

Professionals

Yukio Hayashi

Yukio Hayashi

Senior Partner

John Kahn

John Kahn

Partner

Jay Zhang

Jay Zhang

Lawyer

Insights

MORE >


Criminal

Police Interview & Exercising the Right to Silence

The police can request to interview a suspect. The suspect must acknowledge in the police interview that it is voluntary and that they understand they have the right to silence. This is because everything said can be used as evidence, and later in court it may be used to the suspect’s detriment. The right to silence cannot be exercised if the police ask for the suspect’s name, address and birth date. If a suspect does not answer the questions for this information it could be grounds for prosecution. To maintain the validity of the evidence from a police investigation, the police must follow proper procedure and not violate the suspect’s rights. If proper protocol is not adhered to, the evidence from the interview may not be used later in court. A suspect has the constitutional right to not have their own words used against them. If a suspect does not want to answer a question, they should reply with “I would like to exercise my right to silence” or “No comment”. Even if the suspect’s case goes to trial, the judge or jury cannot consider the right to silence negatively in their verdict. Legally, it cannot be concluded that the right to silence signifies “the suspect must not want to answer the question to hide the truth” or “the suspect is lying”. The right to silence is a crucial constitutional right to the individual. The police must inform the suspect before conducting an interview that “You have the right to remain silent and anything you say may be used as evidence”. Any confession from a suspect prior to the police having formally given this caution may not be used in court. This is like the Miranda Rights often proclaimed in Hollywood movies, except in Australia, the police do not have to say “You have the right to a lawyer”. Any confession made in the interview must be made voluntarily, otherwise it may not be used in court. The police may not threaten, blackmail, torture or suggest that if the suspect confesses they will be given a lighter sentence or other benefits. There are also other rights to the suspect as a part of this process. The suspect has a right to an interpreter and may not be questioned if drunk, intoxicated by drugs or in pain. If the suspect is a minor[1] , their guardian must be present for a police interview to be done. All this is to protect the rights of the suspect. A suspect’s assumption that cooperating with police by answering all their questions will somehow benefit them is faulty. Consenting to a police interview without having a lawyer present will almost never be of benefit to the suspect. Even if the police say something along the lines of “I would just like to hear your opinion”, their intentions must be questioned since the police are almost definitely seeking to achieve a quick confession from the suspect. Therefore, it is best to contact a lawyer immediately and, in the meantime, to exercise the right to silence.


Criminal

Fixed Fee Agreement

Legal fees are normally calculated by time spent on the case, which is called the time charge rate. When a lawyer accepts a case, they have a duty to provide an estimate of the legal fees to their client. Failure to do so may lead to cases where legal fees cannot be claimed. However, if the client has already paid the legal fees in advance, the legal fees can be evaluated to determine if they are appropriate, with a portion being returned if required.  Normally, people  prefer to choose a fixed fee structure over a time charge rate. In a fixed fee structure, the client and lawyer agree upon a fixed fee for the whole legal process. Contrary to the time charge rate, the client has the assurance of not having to pay any further premiums. Furthermore, the lawyers do not have to calculate their time spend on a 6min basis when filing their invoice, and a fixed fee avoids any future conflict over the legal fees exceeding the initial estimate. For these reasons, within legal circles, there is a continued dispute over whether a time charge rate or fixed fee agreement is better.  However, a fixed fee agreement is not without its issues. If the client has not fully explained the details of the case from the start, the legal issues change as the case progresses or if the lawyer sets a fixed fee but then continues to add additional charges, the fixed fee agreement would become problematic.  For example, in one case study Person A was prosecuted and taken to court. Person A sought the services of a lawyer and agreed on a fixed fee under a contract of $100,000 for the whole legal process until the end of the jury trial. The lawyer, after accepting the case, prepares various kinds of evidence and comments and seeks the services of a barrister. However, due to a lack of evidence, the case does not progress to the jury, and the prosecution side withdraws their case. The lawyer billed Person A $100,000, and Person A reported the lawyer to the law society.  What happens in this case? Assuming no exceptional circumstances, the fixed fee agreement may become invalid. This is because the lawyer calculated the fixed fee assuming the case would go to a jury trial, but this did not occur. In such an instance, the fixed fee agreement is not reasonable. As such, the amount should be amended to reflect the actual hours worked on the case.   Let us consider a different example. A lawyer has accepted a traffic accident case and has divided the fixed fee agreement into parts for each stage of the process. This is shown below.  1. Preliminary procedure prior to the case - $2,500  2. Compulsory conference with the other side - $3,000  3. Filing a statement of claim - $4,000 4. Submitting documents - $1,000 5. Conciliation - $2,000 6. Hearing and trial - $6,000 Stages 1 and 2 have progressed, and following the conference, the opinion is leaning towards a settlement. The case was eventually settled out of the court. However, the lawyer invoiced the client for the total of the five stages ($12,500), claiming this was correct. The client argued this was extravagant and filed a complaint with the law society.  The fixed fee agreement’s partition into parts seems to not pose an issue. However, the lawyer only completed 1, 2 and 5, yet submitted 3 and 4 to be invoiced. Similar to the prior case, the initial invoice becomes invalid and only 1, 2 and 5 should be invoiced, totaling only $7,500. As can be seen, sometimes within a fixed fee agreement the lawyer’s legal fees may not be just or reasonable. The lawyer has a duty to explain the fees for their services to the client, and when things do not go as expected, the lawyer should not always receive the agreed initial payment.  People often have the  assumption that if they consult another lawyer, the lawyers will side together. Although other countries may differ, in Australia, this is not the case. A lawyer should not for their occupational benefit cover up another lawyer’s faults or even commit wrongdoings themselves since doing so would exacerbate the issues and eventually be uncovered. Only by acting conscientiously can lawyers maintain their professionalism, respect, integrity and trust with clients.  


Criminal

No win No fee costs agreement

Many lawyers grasp the attention of clients with the phrase ‘No Win No Fee’ and succeed in entering into an engagement contract with their clients. This literally means that lawyers will only receive their fees if they win the assigned case or successfully negotiate a settlement agreement for the client. This is a risk-taking contract for a lawyer because they won’t bill in case of a loss.    These kinds of contracts are unavailable in criminal and family cases. Usually only cases in which it is possible for both sides to reach a settlement agreement go through the process of a No Win No Fee contract. Law firms which specialise in traffic accidents generally offer these forms of contracts. The No Win No Fee contract could be one way of hiring a lawyer for people who aren’t financially stable as they would not have to make a large payment at once.    But there is something we should keep in mind. Generally, expenses incurred for the cases are not covered by lawyers’ fees under the aforementioned contracts. Expenses refer to the amount of money the lawyer has spent in relation to the case. For example, court fees, barrister fees, expert fees, etc would be included in expenses. All No Win No Fee contracts are required to specify whether these kinds of expenses are included in the contract or not.    Furthermore, another thing to bear in mind is that No Win No Fee contracts do not cover fees for the other side’s lawyers. In other words, it is possible that losing parties would bear the other side’s lawyer fees if their case is not successful. Even if you have a No Win No Fee contract, this does not mean that you are fully exempted from being responsible for fees of the other side’s lawyer. Clients often mistakenly think that they are not required to pay any fee if their case is not successful.    In the case of a No Win No Fee contract, the following clauses must be mentioned:    1. What circumstances will be considered a ‘win’ of the case?  ● For example, consider the following outcomes: a party withdraws its claim, a court partially recognises a claim or a case is settled through arbitration or settlement.  2. Regardless of the win or loss of the case, what expenses are necessary?  3. Will there be an uplift fee? If there is, how much would it be? ● An uplift fee refers to the payment lawyers can receive in addition in case of a win. Since the lawyer had to bear risks during the case, they are able to bill payments in addition to the original fees. However, this uplift fee cannot exceed 25% of the original fees, and the contract must stipulate how much can be charged. 4. The contract must be written with full text, and the client has to personally sign.  5. Before signing the contract, clients should be able to get advice from other lawyers.  6. It has to be mentioned that the contract can be terminated in five days.    In cases such as a traffic accident, the 50/50 Rule applies. The 50/50 Rule states that lawyers cannot charge more than 50% of the monies remaining from any settlement amount after deduction of all expenses incurred. For example, if $50,000 has been received from settlement agreement fees, after deducting $1,000 in Medicare fees, $6,000 in Centrelink fees and $9,000 in other fees including an expert opinion, the maximum the lawyer can bill is $17,000. There are lawyers who apply the 50/50 Rule before expenses and ask for 50% of the settlement amount, but this kind of action is illegal.    Another point to consider while carrying out a No Win No Fee contract is that if the lawyer gets replaced during the process, the replaced lawyer can bill the amount that has been spent.    The following are the factors you must go over before signing a contract.    1. Read and understand the contract thoroughly. If there is anything you don’t understand, you should ask the lawyer about it.  2. Carefully review the terms and conditions for 5 days. If anything is unclear, get advice from a different lawyer.  3. If you do not completely understand the No Win No Fee contract and its conditions, this too requires advice from a different lawyer.  4. Know the specific incidental expenses and the expenditure, and whether the lawyer has an uplift fee and if they do, the amount of the uplift fee. Due to these incidental expenses and uplift fees, there might not be much money left in your hands even after winning the case.  5. Confirm the total estimated payment fees. Even if it is a No Win No Fee, the lawyer has a duty to rationally calculate the amount of time spent and inform the client.  6. Remember that the 50/50 Rule applies to a personal injury case.  7. Even if it is a No Win No Fee contract, remember that you might be in charge of fees of the other side’s lawyer after a loss, and if a lawyer is replaced during the process the previous lawyer might also bill you according to the time spent on the case until then.    In conclusion, do not hastily sign a No Win No Fee contract without consideration. If these forms of contracts or the terms and conditions confuse you, we recommend receiving advice from the Bar Association or a different lawyer.   


Criminal

New laws for drink driving offence - NSW

Due to the recent law reform, regulations in relation to drink driving offences were strengthened. Mandatory interlock for mid-range offenders Since 1 December 2018, all drivers convicted of mid-range (between 0.08 and 0.149) drink driving offences in NSW are required to have an interlock installed. In other words, it mandatorily requires an interlock installation unless a court order is given to nullify the application of the interlock program. The interlock program has been expanded so that it also applies to drivers who commit a lower or mid-range drink driving offence for the first time. An interlock is an electronic device connected to the ignition of a vehicle for breath testing. In accordance with the law reform, drivers convicted of mid-range offences are ordered to complete a licence disqualification period for 3 to 6 months and a period of participation in the interlock program for at least 12 months. It may appear that the regulations have been loosened compared to previous penalties which required 6 to 12 months licence disqualification. Notwithstanding, the interlock program would be a more effective deterrence for those who commit repeat or serious drink-driving offences. Drivers who are given the interlock program order may appeal to the court that an alternative order be imposed, and such appeal is accepted only to the cases of an applicant having special medical reasons - an applicant not having a car or financially incapable of installing the interlock. In fact, the interlock program has been applied to drivers convicted of high-range (over 0.150) offences or more than second-time offences. For all drivers that are ordered a mandatory interlock, an interlock device should be installed for a period that the court ordered at the offender’s cost (approximately $2,200 per year). Those who fail to install the interlock device might be ordered to complete five years of a licence disqualification.  Increased fines for drink driving offenders From 20 May 2019, a maximum court-imposed fine for those who are convicted of drug driving, lower-range or special range drink driving offences will increase from $1,100 to $2,200. For mid-range drink driving offences, the maximum court-imposed fine and prison term will be strengthened from $2,200 and nine months to $3,300 and nine months. In addition, drivers who commit a lower-range drink driving offence will have their licence immediately suspended for three months coupled with a $561 fine from 20 May 2019, which previously required a formal court proceeding. However, drivers whose licence are suspended may appeal to the court if unsatisfied with their penalties. Immediate suspension of licence Drivers charged with lower-range drink driving offences before 20 May 2019 may maintain their licences until they are found to be guilty before the court. If the court decides that drivers are found guilty but have no conviction recorded, their licences may not be suspended. Contrarily, those who are charged with mid-range drink driving offences will have their licences suspended by the police, and they are prohibited from driving until the court decision. The recent law reform in Parliament empowers the police to have licences for lower range, novice range or special range drink drivers suspended immediately from 20 May 2019. That reform prohibits those charged with drink driving offences from driving any car until a final decision is made, even though the court finds them not guilty of those offences. For instance, if driver A who has held his licence for 40 years without any criminal conviction commits a drink driving offence (testing result between 0.05 and 0.079) for the first time, he or she is restricted from driving until the court gives a final decision. An initial hearing, in practice, is assigned four to six weeks after the date the charge was imposed. It may take a further two weeks in case of appeal. An additional period may be required if a traffic offenders program is ordered. It might have a significant impact on those who are in need of using their car for work or family members. 


Criminal

Drink Driving

The most common crime committed by Korean people in Australia will most likely be drink driving. If you go to Burwood Local Court, on average there are two to three Korean people that appear for drink driving charges. Even amongst the police, the first thing that comes to mind when the word ‘Korean’ is mentioned is ‘drink driving’ and hence why the police hide in areas such as Strathfield and charge Koreans who drive under the influence of alcohol. Drink driving cannot be thought of as a mere violation of traffic laws. It is a criminal offence that can remain on the charge list. It does not end with a mere fine but rather it is a serious offence which can be taken to court where you will stand trial in front of a judge. In most cases, licences will be revoked. Overall, it is not a pleasant experience if you are caught under the influence, as you will be arrested on the spot and taken to a police station where you will spend some time in the cells. As previous columns discussed in detail punishments and suspensions related to drink driving, this column will focus on cases of drink driving and the initial response associated with them. During consultations with clients, the most asked question is “Can I get a Section 10?” The reason for this is that in order to avoid licence suspension, you must obtain a Section 10. However, the question cannot be answered so easily. A judge can only give advice on such a question  after reviewing various avenues. The second most frequently asked question is “Do I need a lawyer?” This also depends on the situation.  Conditions such as the following need to be taken into consideration before deciding whether a lawyer is required: How important is it to reduce the licence suspension period; What are the chances of obtaining a Section 10; and How much will be fined. Looking at the two examples below, let us see what will happen if you’re caught under the influence. Example 1: 65 year old woman named “Y” “Y was invited to dinner one evening and was served with a course meal. With every course that was served, complimentary wine were also provided and at the recommendation of the chef, she drank little sips of the wine. After two hours, once the meal had concluded, she decided she was too drunk to drive. She spent approximately two hours to sober up and then began to drive. On the way home, she was caught by the police for using her mobile phone whilst driving. The police turned on the siren and chased her, but she did not see them      and continued to drive for approximately two to three km. The police stated that the car had been moving side to side and at times nearly hit the cars beside her. Eventually, the police stopped her and took a breath test and she was charged with Mid-Range PCA due to a blood alcohol reading of 0.089.” Mid-Range PCA (0.08-0.149) carries a fine of $2,200 or less for first time offenders or a prison sentence of up to nine months including licence suspension of at least 6-12 months. Firstly, obtaining a Section 10 for Mid-Range offences is very difficult. Section 10s are only given to ‘very special cases’ by the judge. Most people who request a Section 10 consider their case as special. However, for a judge who deals with 40-50 drink driving cases a day, a case must be considered really special to obtain a Section 10. Y appointed me as her lawyer and immediately pleaded guilty. On behalf of the client, I provided a detailed description of the situation and the client’s background to the judge. However, the judge did not want to hear anymore and was furious as to the fact that the client had been driving dangerously whilst under the influence and did not see the police chase her for two to three km. On the other hand, I continued to explain the client’s situation to the judge. I explained that this situation is an exceptional case, as Y who does not usually consume alcohol has contributed a lot to society as a community member and does not have any past criminal records. I persuaded the judge by stating that Y has learnt a lot from her mistakes through this case and has shown a lot of remorse for her actions. Not only this, but that Y would never commit such crime again and that losing her licence would not only have a great impact on her but also will have a great impact on her ability to volunteer to help the elderly who live alone. Y was able to obtain a Section 10 and avoid licence suspension. Example 2:  26-year-old male named “K” who came to Australia on a working holiday “K was drinking alcohol at Strathfield and at approximately 1 am he drove home. His place of residence is an apartment located in Strathfield which is approximately 2 km away from where he consumed alcohol. When making a right turn on the way to his house, he crashed his car into a wall. The police arrived at the scene and he was charged with High-Range PCA with a blood alcohol level of 0.165.” High-Range PCA (0.15 and over) offences are subject to a fine of $3,300 or less for first time offenders or a prison sentence of up to 18 months, a licence suspension of at least 6 - 9 months and an Interlocking period of at least 24 months. The licence suspension is shorter than a Mid-Range offence; however, the period for which the Interlock is to be installed is longer. An Interlock is a control device which conducts a breath test and only when the blood alcohol concentration level is 0 will the car start. The cost of an Interlock machine is approximately $2,200 per year. K appeared in court without a lawyer and pleaded guilty. The judge tried to impose a prison sentence and asked for him to obtain a Pre-Sentence Report in order to determine his background information, thereby postponing the sentence by six weeks. K’s Pre-Sentence Report was very negative. The report was obtained through an interview with K whereby the interviewer stated, ‘K does not take his crime seriously and thinks it is sufficient to only pay a fine’. The judge read the report and indicted K with 400 hours of community service, a nine-month licence suspension and 36 months of Interlock installation. Due to the accident, his car was destroyed. However, he failed to advise the judge of this and as a result was charged with the above. K came to me after this occurred and complained about the procedural unfairness he received, which led to an appeal of the decision. The case was appealed in the District Court and after taking into consideration several factors, the client additionally received an $800 fine and a minimum licence suspension period of 12 months due to being exempt from installing the Interlock machine. If K had consulted with a lawyer prior to the initial charge, he could have avoided the severe punishment he received and would not have had to pay such an extensive amount of money. Even though it was a High-Range PCA charge, 400 hours of community service for first-time offenders is a very severe punishment. If the judge had been persuaded that there was no car available to install an Interlock then the client could have avoided the Interlock installation period. As can be seen in the examples outlined above, depending on the situation that arises, different outcomes can occur. Although you can obtain information from these columns and articles on traffic offences and laws, due to your lack of expertise it will be hard to determine what type of punishment will be applied in your situation. Even if you do not appoint a lawyer, I recommend you seek professional advice from a criminal law specialist.


Criminal

Changes Foreign Resident Capital Gains Withholding from 1 July 2017

When 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.