Key Practices
-
Assault & Violence
-
Drug Offences
-
Domestic Violence & AVO’s
-
Sexual Offences
-
Fraud, Dishonesty Offences
-
Robbery
-
Murder, Manslaughter
-
Inquiry Commissions
-
Importation Offences
Professionals
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
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.
Criminal
Domestic Violence & AVO
As a criminal lawyer, I have been asked many times for a consultation in relation to domestic violence and AVO (Apprehended Violence Order). It may appear awkward in the eyes of Koreans that certain domestic issues are being treated seriously in Australia. Compared to 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 domestic violence is defined and how 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 includes married couples, families, partners and couples in love as well as relatives living in the same residential area. In addition, despite an absence of family relationship, a domestic relationship could be found if people reside in the 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's mouth with 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 them not to do so. During the interview at the police station, the husband stated that he did not use force. However, he was eventually prosecuted for common assault and applied for AVO. As seen in the above case, covering a person’s mouth can be defined as violent conduct. Hence, if the husband stated he did, the court would have decided the case against him. Furthermore, the wife may be called to provide evidence if the husband declines 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 the husband and the police, and the voice record of the wife. As usual with domestic violence cases, a request for withdrawal of a prosecution was not accepted. After several postponements 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 plead 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 plead guilty. In that case, the court is likely to apply Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which enables 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 pleaded guilty and was sentenced under Section 10. As a solicitor is capable of dealing with this kind of case 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 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 considered violent conduct. It is recommended that a police interview be denied without the assistance of a lawyer if you are brought into custody for an allegation. This is because the 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 the right to silence cannot impact a case negatively. Furthermore, although the husband declined to attend the court hearing in the above case, it is rare that the court issues an arrest warrant for a hearing except for aggravated cases. As such, the accused is less likely to be found guilty in cases in which the only available evidence is a statement of a victim in a domestic violence context. Accordingly, it is vital to seek 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 his legal representative. Had the husband had legal advice, he would not have lost six months and additional legal fees.
Criminal
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