Kazi Portolesi Lawyers Logo

(02) 9728 3366

1300 733 039

  • Home
  • About Us
    • Our Team
    • Career
  • Legal Services
    • Personal Injury
    • Family Law
    • Commercial Law & Litigation
    • Criminal Law
    • Property & Conveyancing
    • Commercial Property and Finance
    • Wills & Estate Planning
  • News
    • Civil Litigation
    • Contracts
    • Criminal Law
    • Family Law
    • Personal Injury
    • Property
    • Wills and Estates
    • General
  • For Clients
    • Your Secure Documents
  • Contact Us

When Can Police Suspend A Licence On The Spot?

September 27, 2017 By Kazi Portolesi Lawyers

When police allege you have committed a serious traffic offence, they have the power to suspend your driver’s licence immediately after you have been pulled over or within 48 hours afterwards.

Driving licence suspension notices take effect from the day you receive the notice in the mail, or, if suspended on the spot, from that moment. Under the Road Transport Act 2013, police have the power to suspend your licence immediately in situations where:

1. A serious offence causing death or grievous bodily harm has occurred;
2. You were high range speeding;
3. You were intoxicated whilst driving;
4. You were street racing;
5. You were partaking in aggravated burnouts; or
6. You are a learner licence holder driving without supervision.

If you are caught doing 45km or more over the limit, you can be suspended immediately for a period of six (6) months. For provisional licence holders, if you are doing more than 30km, you may also be immediately suspended.
In terms of alcohol related offences, you cannot get your licence suspended for a low range Prescribed Concentration of Alcohol (blood alcohol concentration from 0.05 to 0.079). However, it may be suspended for having a mid range PCA (blood alcohol concentration from 0.08 to 0.149) or high range PCA (over 0.150).

Anytime a suspension is immediately issued, you will be charged and will be provided with a court attendance notice. You may be able to challenge the suspension in court, however you must abide by the suspension until your hearing date.

If the court finds you guilty, they may take into account the time you have already been off the road and your period of disqualification may be shortened accordingly. The penalties may include a criminal conviction, a fine, or even jail time depending on the severity of the offence.

Filed Under: Criminal Law, Uncategorized

Standard of Proof in Contempt Proceedings

June 6, 2017 By Kazi Portolesi Lawyers

Construction, Foresty and Minining Union v Boral Resources (Vic) Pty Ltd

In this case the Court was asked to consider whether contempt proceedings initiated in the civil courts:

  1. Firstly, created a standard of proof for the party bringing the proceedings which was higher than the civil standard of proof (i.e. did the party bringing the proceedings have to prove the contempt on the balance of probabilities or beyond all reasonable doubt as in the Criminal law context);
  2. Secondly, if the answer to (1) was yes then did defendant in the contempt proceedings have a right to defend himself or itself from self-incrimination;

The matter concerned an order by a judge for production of discovery documents. The defendant to the contempt proceedings (CFM Union) refused to produce certain documents ordered to be produced in the contempt proceedings on grounds that given the contempt proceedings were criminal in nature, and given the documents ordered to be produced were incriminating, the CFM Union did not have to produce them by virtue of the companion rule, (a principle at common law that one does not have to give evidence in their case as it is to the prosecutor to prove the case without forcing the defendant to provide evidence)

It was held by the High Court that, even if a party to civil proceedings is required to produce evidence by oppressive conduct (give evidence against itself) the court has appropriate discretion to exclude certain evidence if there are issues of procedural fairness relating to the evidence given.

It was held that the criminal standard of proof applies in contempt proceedings.

Filed Under: Civil Litigation, Criminal Law

Drink Driving and Loss of Blood Tests

June 6, 2017 By Kazi Portolesi Lawyers

Police v Dunstall [2015] HCA 26 (5 August 2015)

In this matter a driver who was caught driving over the prescribed limit was taken by police to a hospital where his blood was drawn for police purposes. A breathalyser result was issued and a police certificate was created showing the prescribed limit was exceeded.

The blood test taken at hospital was lost.

At hearing the defendant pleaded not guilty. The blood sample was found to be not be useable due to an error at the hospital. It was submitted that the absence of this blood test denied the defendant procedural fairness as it denied the defendant the opportunity to challenge the police evidence (in the form of a breathalyser result certificate).

The magistrate gave a direction known as a “Lobban discretion” (a discretion had by judges to exclude evidence untainted by illegality or impropriety where admission of evidence would render the trial of the accused an unfair trial).

The police breathalyser certificate and the blood sample were excluded as evidence from trial. The police appealed this decision to the Supreme Court of South Australia and the Court of Appeal. In both instances the police appeal was dismissed.

The matter was appealed to the High Court by the police. The High court remitted the matter to the magistrate. The High Court noted the presence of the Lobban discretion.

Filed Under: Criminal Law

What is Show Cause?

June 6, 2017 By Kazi Portolesi Lawyers

M v R [2015] NSWSC 138

In the recent Supreme Court judgment of M v R Justice McCallum provided guidance on the subject of Show Cause events and what this means in the context of the recent amendments to the Bail Act 2013 (NSW).

In the amended act, the accused must now demonstrate, if charged with specific offences, why incarceration and being held in remand pending hearing should not be allowed; that is, “show cause why detention is not justified”. If cause is not shown then bail is refused.

Prior to judgment the legal view of the act was that the amendments create a two-step process:

  1. The “Show Cause” requirement – is there a reason the accused should be released?; and
  2. The “Unacceptable Risk” requirement – does the release of the accused pose an unacceptable risk which cannot be mitigated in the circumstances?;

In Her Honour’s reasoning, the two-steps are inextricably linked – that is, to show cause one must argue the risks associated with release.

New Approach

It would appear following Her Honour’s judgment that the new approach in Bail matters is that the accused must now demonstrate that there are no unacceptable risks for offences generally and in show cause offences the accused must demonstrate for the Court that any concern regarding bail on an offence does not result in an unacceptable risk.

Further, if there are no unacceptable risks then not granting bail would necessarily be unjustified.

Filed Under: Criminal Law

Online Enquiry

* indicates required field

Our Advantages

  • After hours appointments
  • Fixed fees
  • Free initial consultation
  • Multilingual
  • Reliable
  • Efficient
  • Use plain language

Legal Services

  • Personal Injury
  • Family Law
  • Commercial Law & Litigation
  • Criminal Law
  • Property & Conveyancing
  • Commercial Property and Finance
  • Wills & Estate Planning

Contact Us

  • Level 1, 113-115 The Crescent
    Fairfield NSW 2165
  • Suite 416/49 Queens Road
    Five Dock NSW 2046
  • (02) 9728 3366
  • (02) 9724 4178
  • 1300 733 039

Disclaimer | Terms and Conditions | Privacy Policy
Liability limited by a scheme approved under Professional Standards Legislation.
Copyright © 2019 · Created by Zaliet Law Firm Websites | Hosted by LEAP Legal Software · Login