Criminal Law
If you, or someone you know is suspected of committing an offence, arrested or charged with a criminal offence, it is essential that they seek the advice of an experienced criminal lawyer.
Criminal charges are not only frightening and stressful, but they can also have a significant impact on an individual’s employment, travel and future business considerations.
Regardless of how straight-forward or difficult you may perceive your matter to be, it is always worth consulting informed and independent legal advice.
Our office specialises in:
- Arson
- Assault / Affray
- Bail Applications
- Breach of Bail
- Breach of Suspended Sentence Bond
- Disorderly Behaviour
- Drug Importation / Drug Trafficking / Drug Manufacturing
- Domestic Violence
- Driving whilst disqualified
- Fraud / Money Laundering
- Hindering Police / Resisting Arrest
- Murder / Attempted Murder / Manslaughter
- Sexual Offences / Rape / Indecent Assault
- Theft / Robbery / Make off without payment
- Weapons / Firearms
- People Smuggling
- Prostitution / Sexual Slavery
- Acts to Endanger Life / Threatening Life
Consider all the consequences
It is also important that if you are suspected or charged with a criminal offence that you consider the broader implications which you may not realise at first.
Violent offences can result in you being liable to pay thousands of dollars in compensation to the victim, receiving orders barring you from licenced venues, being served with an intervention order (restraining order), losing the ability of holding or obtaining a firearms licence, and\or your visa status or citizenship application being affected.
Sexual offences can result in individuals being placed on the child sex offender register which has strict obligations a person needs to comply with. These are only some of the broader implications which you may face, and we encourage you to obtain legal advice as soon as possible.
Intervention Orders or Restraining Orders
While being served with an intervention order, commonly referred to as a ‘restraining order’, is a civil matter. However, breaching an intervention order is a criminal offence which carries a maximum penalty of up to $10,000 or imprisonment for 2 years. Therefore, it is imperative that as soon as you are served with an order, you obtain legal advice about your rights and obligations under the order.
A person can be served with an intervention order if it is reasonably suspected that they will, without intervention, commit an act of abuse against a person and issuing the order is deemed appropriate in the circumstances.
Under South Australian legislation, an ‘act of abuse’ against a person is defined as an act which results in (or intends to result in) physical injury; or emotional or psychological harm; or an unreasonable and non‑consensual denial of financial, social or personal autonomy; or damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.
Intervention Orders can result in you being prevented from being on premises (including residential premises), attending specific locations which you may have previously attended regularly, approaching and\or contacting certain people (including your own children in certain circumstances) and many other obligations.
Victims of Crime
If you have been injured, either physically or mentally, as a result of a criminal offence then you may be entitled to claim compensation. The scheme compensates people who are injured by a crime, for example, a person who is assaulted, raped or robbed.
This can include mental and physical injury. It can also include pregnancy resulting from a sexual offence. Close family members of a homicide victim can also be compensated. The scheme does not compensate for property loss or damage as a result of a crime.
Generally, in order to succeed in a claim for compensation, the offence must be proved beyond reasonable doubt. If the offender has been caught and prosecuted through the courts then this element will not generally be an issue. Claims can also be pursued in instances where offenders were not apprehended but we recommend you seek legal advice before pursing the application. Injury claims must normally be made within three years of the date of the offence.
Children, however, can claim at any time up to their 21st birthday under the Limitation of Actions Act 1936. Late claims can be made if the court allows them, but it is best to seek legal advice and representation well before the time limit runs out.
The Victims of Crime Act regulates the costs that solicitors can charge in relation to such matters and these costs are, in fact, paid separately by the Government. As such any offer of compensation made to you is in addition to payment of your solicitor’s costs.
Centrelink Offences
Under Commonwealth legislation, it is an offence for a person to obtain a financial advantage (for themselves or for another person), which they are not eligible to receive from a Commonwealth entity (such as Centrelink).
Common examples of this offence are known as Centrelink fraud, and involve people obtaining payments from Centrelink, even though they are not entitled to it. This can include situations where a young person obtains a Youth Allowance at the same time as being employed and failing to declare his or her income. This can result in substantial overpayments being obtained and the person facing criminal charges pursuant to the Commonwealth Criminal Code Act 1995.
Another example is where an individual has been made redundant or lost their job, applied for the Newstart Allowance and continued to receive the allowance, even after that person obtained new employment. Common orders made by the courts for such criminal offences include restitution orders being orders to pay back the Commonwealth, together with community service orders, and terms of imprisonment (whether suspended or not).
Children & the Juvenile Justice System
South Australian legislation makes it clear that children under the age of 10 years cannot commit a criminal offence; however, many minors under the age of 18 years, do find themselves in trouble with the law.
A police officer, without a warrant, can arrest a minor who is reasonably suspected of having committed an offence and does not need to obtain the permission of a parent or guardian.
Given the vulnerability and naivety of many minors, significant care and attention is required when they come into contact with the police and the juvenile justice system.
It is strongly recommended that a minor is adequately represented throughout the entire process. A child who is being questioned by the police has the same rights as an adult not to answer questions unless specifically required to by some other law (which can be the case in South Australia). This means that the child must tell the police his or her name and address but does not have to answer questions about the alleged offence.
It is strongly recommended that minors speak with a solicitor at the earliest opportunity before speaking with police. The legal process can be complex and daunting, and many children are unaware of their legal rights and the consequences of the way in which they may express themselves and/or act in the situation. In some cases, where a minor is charged, there may be possible alternative ways to resolve the matter outside of the court system. It is recommended that you speak with a solicitor as soon as possible.
Child Protection Orders
Under the Children’s Protection Act 1993, certain people/professionals must notify Families SA if they suspect on reasonable grounds that a child has been, or is being, abused or neglected.
Ultimately the decision about whether a child is in need of protection rests with Families SA. However, under the Children’s Protection Act 1993, police officers have the power to remove a child from their home if they believe they are at risk. Intervention can occur in situations of immediate or serious risk (with or without parental consent).
Where Families SA believes a child is at risk a Care and Protection Order can be applied for in the Youth Court. The burden of proof required at the hearing of an Order is on the balance of probabilities and not, as in the case of a criminal charge, beyond a reasonable doubt. Children must be represented by a lawyer unless they are old enough to make an informed decision that they do not wish to be represented.
Given that the Youth Court has the lawful power to make wide-ranging orders, which can include removing a child from a parent or guardian’s custody for up to 12 months (or even until the child turns 18 years), we strongly recommend that both the parent/guardian and the child obtain legal advice and representation to ensure their position is considered properly before any final order is made.
Illegal Fishing & Offences Against Animals
Illegal fishing
Fishing (both commercial and recreational) can have a major impact on the environment. This is one of the reasons why fishing is highly regulated under the Fisheries Management Act 2007.
It is an offence to take, injure, damage, and\or harm aquatic mammal or resources of a protected species. In some cases, maximum penalties of up to $100,000 or imprisonment for 2 years can be imposed. Similarly, people can also be charged with offences, where they are suspected of possessing or trafficking fish or other aquatic resource, exceeding the fixed quantity. The penalties associated with offences of this kind can be as severe as up to a fine of $100,000 or imprisonment for 4 years.
If you have been charged or are unsure about what you can and cannot do, we urge you to contact our office and seek the advice of a lawyer before proceeding further.
Offences Against Animals
If an animal is injured by a person intentionally, directly or indirectly (i.e. kicking, shooting, poisoning), that person can be prosecuted for committing a criminal offence under the Animal Welfare Act 1985.
Complaints are often made to the Police or the Royal Society for the Prevention of Cruelty to Animals (RSPCA). The Society sends inspectors to investigate a complaint and will, in many cases, initiate criminal proceedings.
It is a criminal offence to cause death or serious harm to an animal and the maximum penalties for this kind of offending can be a fine of up to $50,000 or imprisonment for 4 years. It is also a criminal offence to abandon, neglect and\or cause unnecessary pain and suffering to an animal. Organising, promoting and\or participating in an organised animal fight can also lead to criminal charges being laid against you.
Often people do not realise that they must also apply and be granted licences in relation to the possession and\or use of certain animals.
Security Licences & Disciplinary Action
Any person (including a company) who carries on business or is employed as a security and/or investigation agent must be licenced under the Security and Investigation Agents Act 1995. If a business operates as a partnership, then each partner must hold their own licence.
Importantly, if you are trading as a security agent or investigation agent without holding a licence and you are convicted by the courts you may be liable for a penalty of up to $20,000.
If you intend to work as an employee you are entitled to hold a licence if you:
- hold the approved qualifications;
- are not suspended or disqualified from practising or carrying on an occupation, trade or business;
- have not been convicted of any prescribed offences listed in the Regulations; and
- are a fit and proper person.
In addition, security and investigation agents can be disciplined under the Security and Investigation Agents Act 1995. Disciplinary action usually conducted in the Administrative and Disciplinary Division of the District Court of South Australia.
Any person, including the Commissioner for Consumer Affairs, may lodge a complaint to the court alleging grounds for disciplinary action to be commenced.
Contact Carter & Co Lawyers for expert and experienced advice to represent you at this important time. To discuss your matter, contact us on (08) 8440 2478 or 1300 707 053.