This page contains articles on the following topics:-
1. Using a carriage service to procure a person under the age of 16 years to engage in sexual activity
2. Posession of child pornography
3. “Theft by finding”
4. Expert Witnesses
5. Protection against self-incrimination
6. Adjournments
7. Appeals from Magistrates’ Court and Children’s Court
If you are facing any problems concerning any of these topics, or are just generally apprehensive about going to court, you should feel free to ring Brendan Wilkinson on 9670 1987.
I would be pleased to have a quick look at the situation without charging a fee to assess what can be done on your behalf.
———————————————————————————————————————
1. Using a carriage service to procure a person under the age of 16 years to engage in sexual activity
by Brendan Wilkinson, Barrister & Solicitor, Level 4 116 Hardware Street, Melbourne, Victoria
Phone: 03-9670 1987
Offence under: Section 474.26 of the Criminal Code Act 1995 (Commonwealth)
Maximum penalty: 15 years
Overview
A person may be charged with this offence if he or she has communications of a sexual nature with a child under the age of 16, knowing that the child is under the age of 16 and with the intent of having sexual contact with the child.
It does not matter that the recipient of the communication is a made-up or fictitious person.
For example, it is not a defence if the 14 year old victim turned out to be a 50 year old undercover male police officer.
Definitions and/or examples of key terms
Carriage service
Examples of what would constitute a “carriage service”:
- Mobile phones
- Phone calls, SMS, MMS
- The Internet
- Facebook including Facebook chat
- Chat programs such as mIRC, ICQ, Windows Live Messenger, Skype, AIM, Google chat, Yahoo! Messenger
Procure to engage in sexual activity
Procure: This means to “encourage, entice or recruit the person” to engage in sexual activity or to “induce the person whether by threats, promises or otherwise” to engage in sexual activity
Sexual activity
This means sexual intercourse or activity of a sexual or indecent nature.
A jury decides if the activity in question was of a sexual or indecent nature and they are to apply what they regard as the “ordinary standards of decency and propriety in the Australian community.”
Intention to procure
It is not enough to show that the communications were of a sexual nature.
The Prosecution must prove beyond reasonable doubt a number of other matters.
If you are charged with this offence or to be interviewed for this offence, you should contact Brendan Wilkinson, Barrister & Solicitor, of Level 4 116 Hardware Street, Melbourne, Victoria on 03-9670 1987.
I would be pleased to see you on the basis of a free first consultation.
Belief as to age
The Prosecution must also prove that the sender believed the recipient to be under the age of 16.
For example, Mr XY may say that he did not think that he was communicating to a person under the age of 16.
The Prosecution then has to disprove Mr XY’s belief that the person was over 16.
Ultimately it will be a question for a jury to decide.
The jury must take into account whether Mr XY’s belief was a reasonable belief in the circumstances.
If you are facing any problems regarding this issue, or are just generally apprehensive about going to court, you should feel free to ring Brendan Wilkinson on 9670 1987.
———————————————————————————————————————
2. Possession of child pornography
by Brendan Wilkinson, Barrister & Solicitor, Level 4 116 Hardware Street, Melbourne, Victoria
Phone: 03-9670 1987
These days it is common for clients to attend my office after being charged as follows:
1. Did knowingly possess movies and photographs on the hard-drive of a computer which depicts minors apparently under the age of 16 years engaging in sexual behaviour.
Another common charge is:-
2. Knowingly possess photographs stored on an iPhone depicting a minor apparently under the age of 16 years engaging in sexual activity.
For whatever reason, the police have raided the Accused’s premises and seized the computer and phone.
The police then remove the hard-drive from the computer and attach the hard-drive to a special computer of their own.
A program on this computer then analyses the entire contents of the hard-drive which contains any item that was ever viewed although it hasn’t been saved. This means that even photographs which have been looked at simply as a matter of curiosity will then be downloaded by the police into a separate file to be provided to the Court.
The charge involves knowingly possess and I have been successful with cases such as this on the basis that if it was not saved, how could the operator of the computer knowingly possess. After all, these images can only be viewed with the help of a special computer program which the police have and the client doesn’t.
If you are facing any problems regarding this issue, you should feel free to ring Brendan Wilkinson on 9670 1987.
———————————————————————————————————————–
3. “Theft by finding”
by Brendan Wilkinson, Barrister & Solicitor, Level 4 116 Hardware Street, Melbourne, Victoria
Phone: 03-9670 1987
Offence under: Section 74, Crimes Act 1958
Overview: A person can be charged with theft if he or she finds or accidentally comes across something belonging to another and then keeps it or deals with it as if he or she is the owner.
Example
For example, Ms XY sees a wallet lying outside her house and keeps the contents of it.
In addition to using the $50 found inside, she also attempts to sell a diamond ring she finds inside the wallet’s coin compartment.
She gets tracked down by the police after she puts the ring up for sale on eBay – turns out it was made to order by the owner and easily identifiable.
Although Ms XY has come to the property innocently, she appropriated it by keeping it and dealing with it as an owner.
The ‘finders keepers’ rule does not apply.
How the law works
There are 3 elements to a charge of theft that must be proved:-
1. Appropriation
2. An intention to permanently deprive
3. Acting with dishonesty
Appropriation: The accused must have appropriated property that belonged to another person.
In this regard, the courts consider lost property as still belonging to the owner. Abandoned property, however, no longer belongs to the owner.
Intention to permanently deprive: The accused must have intended to permanently deprive the owner of the property when he/she appropriated it.
Intention: The intention to permanently deprive must exist at the time of he/she took the item.
Permanent deprivation: It will not suffice if the accused had only intended a temporary deprivation.
However, say on 18 August 2011, Mr YZ finds 2 tickets to see ‘Phantom of the Opera’ on 25 August 2011 but only intends to return the tickets to the rightful owner on 27 August 2011, this amounts to an intention to permanently deprive.
Acting with Dishonesty: In respect to the charge of theft in Victoria, dishonesty means acting without any claim of legal right.
Dishonesty can often be a question of degree for a Magistrate or a Jury to make a decision about. It must be remembered that the onus is always on the Prosecution to prove dishonesty beyond a reasonable doubt. If the accused puts a case which could be true, then the Prosecution might have problems proving dishonesty.
Possible defence
The Act provides that a person is deemed to not have acted dishonestly if it can be shown that he or she took reasonable steps to identify or locate the owner before appropriating the property that was found.
For example, if the wallet that Ms XY found contained a driver’s licence or identity card of some description, it could be reasonably expected that she would be able to identify and locate the owner.
If you are facing any problems regarding this issue, or are just generally apprehensive about going to court, you should feel free to ring Brendan Wilkinson on 9670 1987.
———————————————————————————————————————
4. Expert Witnesses
by Brendan Wilkinson, Barrister & Solicitor, Level 4 116 Hardware Street, Melbourne, Victoria
Phone: 03-9670 1987
Often times a lawyer needs to be well-equipped when going to court. The lawyer needs to have people around to advise and assist.
Sometimes these people are required to give evidence to the court and their credentials will need to be acceptable to the court.
Section 76 of the Evidence Act 2008 (Victoria) provides that evidence of an opinion is not admissible to prove the existence of a fact.
However, Section 79 of the Evidence Act 2008 (Victoria) provides that if a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
In many cases, an expert witness is required. Often times in serious charges such as culpable driving, disputes arise as to the facts. The disputes may even centre on who was the driver of the vehicle. This kind of defence would require the expertise of an Accident Reconstruction Expert.
I have been involved in a case where the police relied on evidence that the accused was the driver as his severed leg was found in the footwell on the driver’s side of the vehicle. However, expert evidence was led to establish the leg was severed in the passenger’s side but transferred as a result of the momentum of the collision to the driver’ side.
In sexual cases, it is often necessary to obtain the expertise of psychiatrists who are skilled in this area. Most Magistrates and Judges tend to worry about re-offending when an accused is either found guilty or pleads guilty.
A psychiatrist can often help in this regard by providing evidence to the court as to the likelihood of re-offending.
Often times in bail applications, Magistrates are concerned that if they release an accused on bail, the accused may re-offend. They would like to be satisfied with evidence from a psychiatrist that this risk would be minimal.
Other expert witnesses that may be of assistance in a court case include:-
- Acoustic and Noise Experts
- Chemical Consultants
- Forensic Consultants
- Molecular Biologists
- Pathologists
- Pharmacologists
- Psychologists
- Drug Counselors
- Fingerprint Experts
- Gunsmith & Ballistic Experts
- Fire Expert
- Handwriting Experts & Document Examiners
- Meteorologists
- Engineers – Civil, Structural and Mechanical
A lawyer should never take it for granted that the evidence provided by the Prosecution is the only possible view of the evidence.
If you are facing any problems regarding this issue, or are just generally apprehensive about going to court, you should feel free to ring Brendan Wilkinson on 9670 1987.
————————————————————————————————————————
5. Protection against self-incrimination
by Brendan Wilkinson, Barrister & Solicitor, Level 4 116 Hardware Street, Melbourne, Victoria
Phone: 03-9670 1987
Relevant law: Section 128 of the Evidence Act 2008 (Victoria)
In a nutshell: A witness is entitled to refuse to answer such questions on the basis that it would be self-incriminating.
The use of this section arises when a witness who, whilst giving evidence, objects to answering a question or a series of questions on the basis that, if answered truthfully, “may tend to prove” that the witness has committed a criminal offence.
Example: Mary sees the getaway car in an armed robbery driving off. She was, at the time, dealing illegal drugs to an unknown person on the street and close to where the robbery took place.
Mary has provided a written statement to the police.
She is called to be the witness for the Prosecution in the criminal proceedings against the accused in the armed robbery to give evidence. She objects to answering questions that address the purpose of her movements on the day in question on the grounds that it might incriminate her for the offence of trafficking drugs.
How the law operates:
Step 1: The witness or the person who called the witness to give evidence in court (in the above example, the prosecution), generally makes an objection to the court.
Step 2: The court then determines if there are “reasonable grounds” for the objection.
Step 3: If the court determines that there are reasonable grounds for an objection then the Court informs the witness that they are not required to give evidence unless:-
a) they are required to give evidence because the court is satisfied that the evidence does not tend to prove that the witness has committed an offence, or;
b) they are required to give evidence on the basis that it is in the interests of justice that they give evidence
The court must inform the witness that the court will provide a certificate (essentially a document that affords the witness immunity) if the witness gives evidence after the court compels the witness to do so (either under Step 3 (a) or (b)).
If the court overrules the objection as there were no reasonable grounds for that objection and rules that the witness must give evidence, then after the evidence is given and the court then finds that it now transpires that there were, in fact, reasonable grounds for objection, the court will grant a certificate at that point.
Once the certificate is granted, the evidence given by a witness cannot be used against them.
How I can help:
If you find yourself facing a similar problem or are apprehensive about giving evidence in court, you should feel free to ring Brendan Wilkinson on 9670 1987.
———————————————————————————————————————–
6. Adjournments of Criminal Cases in Victoria
by Brendan Wilkinson, Barrister & Solicitor, Level 4 116 Hardware Street, Melbourne, Victoria
Phone: 03-9670 1987
As a general rule, the Accused has no say in the original Court hearing date.
Once the police decide to lay a charge, they ring the Court and are given available dates without consultation with the Accused.
In the Magistrates’ Court, the first hearing date is only a mention date and the case can only proceed if the Accused is going to plead guilty and the case is only going to take a few minutes.
Now, in many cases, the Accused is going to need to get a lawyer, Legal Aid or plead not guilty or maybe even arrange for witnesses to attend to give character evidence if pleading guilty. Accordingly, the normal procedure is for someone to attend at the Court and arrange the adjournment. It is possible for an Accused to get a first adjournment on his or her own but once a second adjournment is required, a lawyer should be arranged as Courts are not really keen on adjourning cases.
The case will certainly have to be adjourned at the first mention date if the Accused wishes to plea not guilty as the police generally don’t attend the first mention date.
However if the Accused is on bail, even if the case is to be adjourned, the Accused will have to be at Court to have his bail extended. If the Accused is on bail and fails to attend for an adjournment, as a general rule, a warrant of arrest will issue. Sometimes if the Accused is not on bail, the lawyer can arrange the adjournment in the absence of the Accused. However it is dangerous to arrange an adjournment over the phone and have no one in attendance. It’s often the case that a warrant issues because the phone arrangements have been misplaced or a different person is handling the file on the day of the case.
In the higher courts, such as the County Court or the Supreme Court, adjournments are very hard to arrange. Bear in mind that once the hearing date is set and witnesses have been issued subpoenas and a jury arranged, the Judge will not be really keen on last minute adjournments.
This is particularly the case if the Accused is requiring an adjournment because of problems with funding.
If you are facing any problems concerning an adjournment, or are just generally apprehensive about going to court, you should feel free to ring Brendan Wilkinson on 9670 1987.
————————————————————————————————————————
7. Appeals from Magistrates’ Court and Children’s Court
If a case is heard in the Magistrates’ Court or the Children’s Court, the case is heard before a Magistrate sitting alone.
The Magistrate wears a suit, Defence Counsel wears a suit and the Police Prosecutor is a Police Officer in uniform.
If the Accused is unhappy with the result, there is an automatic right to appeal.
The situation often arises that an Accused is jailed or convicted or loses a licence and wishes to appeal.
The appeal is heard at the County Court and can be against:-
1. The conviction and sentence, or;
2. The sentence alone
The appeal at the County Court will be heard by a Judge sitting alone.
The Judge wears a wig and gown and the Defence and Prosecution Counsel are also wearing a wig and gown.
It should be noted that nowadays some Judges do not wear a wig.
However, there is no jury and the decision is made by the Judge.
An appeal is a re-hearing and it is possible to change a plea of guilty which was entered in the Magistrates’ Court to a plea of not guilty at the County Court.
In other words, the Appellant is not bound by the plea in the Magistrates’ Court.
An appeal must be commenced by lodging papers at the Magistrates’ Court within 28 days after the day the sentence of the Magistrates’ Court was imposed.
It is usual for bail to be granted pending the hearing of an appeal.
This means that the Appellant does not usually wait in jail until the appeal is heard. It is also possible to request a Magistrate to allow an Appellant to drive pending an appeal if the licence has been suspended or disqualified.
Of course each case depends on its own merits.
If you are considering lodging an appeal, or are just generally apprehensive about going to court, you should feel free to ring Brendan Wilkinson on 9670 1987.