Criminal And Traffic Law

Criminal Law

What is a ADVO?

An ADVO, or Apprehended Domestic Violence Order, protects a person from someone with whom they are or were in a domestic relationship.

A domestic relationship covers a wide range of scenarios and includes the relationship between someone’s current partner and their former partner.

An ADVO can be instigated by the police or privately.

In domestic violence situations requiring an ADVO, police are authorised to take out an AVO even where the alleged victim does not consider it necessary and does not wish to proceed with the Order.

How long does an ADVO last?

The duration of an ADVO is on the Court Order (generally up to 2 years).

An ADVO is intended to protect the other party from physical or verbal abuse, harassment, or intimidation. It prevents a party in a domestic relationship from doing certain things.

A person who has had an ADVO made against them will be ordered to refrain from:

Assaulting or threatening the protected person(s)
Stalking and intimidating the protected person(s)
Destroying or damaging property belonging to the protected person(s)

More conditions, such as preventing an individual from living with or contacting the protected person(s), can be added depending on the circumstances.

A person found to have breached a condition of the ADVO can be prosecuted and potentially face jail time.

Applying for an ADVO

Steps:

Contact the police: attend at a station or have the police take your statement and start your application after responding to an incident
Give and sign a statement. Provide a comprehensive statement listing the name of the defendant, your relationship with them, and all other pertinent information.
The police will serve your statement on the defendant;
Attend court: attend at the court to have your application finalised.

Defending or removing an ADVO

If you’ve been named as a defendant of an ADVO, you’re not automatically banned from seeing or contacting the protected person.

If you have an ADVO on your record, it could affect you later, especially if you seek parenting orders in the Federal Circuit and Family Court of Australia (FCFCOA).

You can contest or defend an ADVO by responding to the application. If a final order is made, you can appeal this within 28 days with the District Court.

Defending an ADVO or responding to an ADVO application.

Make a cross application
Respond to the application
Ask for a property recovery order

To buy time to get legal advice, you can ask for an adjournment of the court date.

Filing a cross applications

You can file a cross-application against the protected person, which means in essence that you’re serving them with an ADVO. You will have to prove that you fear the other person and that you have reason to.

Responding to an ADVO application

The protected person need not prove that you have committed violence against them, only that their fear of you is reasonable.

In response you can:

Give the court an undertaking (i.e. a binding promise) that you will adhere to or refrain from a certain action; or
Contest the ADVO – that is, argue the facts of what happened to establish that the applicant’s allegations are false; or
Consent to the ADVO without admissions – that is, you agree to the terms of the ADVO but do not agree with the facts.

Property recovery orders

A property recovery order is a court order allowing you to retrieve personal items from a defendant or protected person(s) (usually accompanied by the police).

Appeal to the District Court

If you attend the court and a final order is made against you, you can appeal this with the District Court. Within 28 days, complete a Notice of Appeal to the District Court. Filing an appeal does not stop an existing ADVO – you have to apply separately to “stay” the ADVO.

The effect of ADVO on parenting orders

If parenting proceedings are commenced in the FCFCOA, the court is obligated by law to consider any allegations of family violence.

FCFCOA Orders override orders or restrictions in ADVOs. If an ADVO prevents you from spending time with your children and the FCFCOA subsequently makes Orders allowing you to spend time with your children, you should follow the FCFCOA orders.

The FCFCOA Orders can be attached to the ADVO so that the Local Court is aware the conditions have been overridden.

Inconsistency between Family Court and Local Court Orders

Orders of the FCFCOA override orders made in the Local Court.

What is an AVO? Is it different to an ADVO

An ADVO (Apprehended Domestic Violence Order) is a specific type of AVO.

In domestic violence situations requiring an ADVO, police have the authority to take out an AVO even where the alleged victim does not consider it necessary and does not wish to proceed with the Order.

Mental Health and Cognitive Impairment

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act) aims to divert people with mental health issues away from the criminal justice system and towards rehabilitation or other programs to assist their wellbeing.

What Is a Mental Health Impairment?

The Act says that a person has a mental health impairment if:

they have a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
the disturbance would be regarded as significant for clinical diagnostic purposes, and
the disturbance impairs their emotional wellbeing, judgment or behaviour.

What Is a Cognitive Impairment?

A person has a cognitive impairment if, due to damage to or dysfunction, developmental delay or deterioration of their brain, they have an ongoing impairment in:

adaptive functioning; and
comprehension, reason, judgment, learning or memory.

Fitness to Stand Trial

If someone would be incapable of understanding the nature or purpose of the proceedings or incapable of communicating with the court or counsel to conduct a defence, they would be considered unfit to stand trial.

Mental Health or Cognitive Impairment Defence

The defence of mental health impairment or cognitive impairment is a complete defence. If at the time of the offence you were affected by a mental health impairment and/or cognitive impairment, you will not be held criminally responsible for the offence.

To raise this defence, you have to prove to the court on the balance of probabilities that you did not know the nature and quality of the act or that it was wrong.

If this defence is successfully raised and a special verdict of act proven but not criminally responsible is determined, the court may make at least one of the following orders:

that the defendant be remanded in custody pending the making of a further order under the Act;
that the defendant be detained in the place and manner that the court thinks fit until released by due process of law;
the defendant’s unconditional or conditional release from custody; or
any other orders the court thinks appropriate.

If the court orders a person detained at a mental health facility as a forensic patient, their detention will be reviewed by the Mental Health Tribunal every 6 months. The Mental Health Tribunal can order a person’s release if satisfied that they are not a serious danger to the community.

Mental Health Applications in the Local Court

A Magistrate may dismiss a charge under section 14 of the Act. This allows a person suffering from a mental health or cognitive impairment to avoid a criminal record.

A Magistrate will discharge the defendant:

into the care of a “responsible person”, with or without conditions; or
on condition that they attend on a person or at a place specified by the Magistrate for assessment, treatment, or support for their mental health impairment or cognitive impairment.

Who is a Responsible Person?

A ‘responsible person’ includes health professionals such as a psychologist, psychiatrist, counsellor or general practitioner. They can also be a parent or family member.

What is a Mental Health Treatment or Support Plan?

A mental health treatment or support plan outlines programs, services or treatments or other support that may be required to address a defendant’s mental health impairment or cognitive impairment. It can last for up to 12 months.

What if I Breach a section 14 Order?

If you fail to comply with a condition in a section 14 order within 12 months of your discharge a Magistrate may deal with your charge as if you had not been discharged, placing you at risk of being convicted or incurring other penalties.

Breaching an AVO (NSW)

What is an AVO?

An Apprehended Violence Order (AVO) is a protection order that places conditions on the contact one person can have with another person. Breaching an AVO by failing to adhere to its conditions is a criminal offence in NSW.

Legislation

Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 sets out the penalties for breaching an AVO in NSW. The offence carries a maximum penalty of a fine of 50 penalty units or imprisonment for two years.

What happens if I breach an AVO?

If you breach an AVO, the police may arrest you and lay criminal charges. If the act that breached the order also amounts to another offence (such as assault), you may also be charged with that offence.

If you are a protected person and the defendant breaches the AVO, you should make notes about the breach and tell the police as soon as possible.

Do I have to go to court for breaching an AVO?

When an AVO is made, it is not a finding of guilt and the AVO does not appear on the person’s criminal record. However, breaching an AVO is a serious criminal offence and you will have to attend the local court to answer the charge.

Will I get a conviction?

Yes. If you are found guilty of breaching an AVO, a conviction will be recorded on your criminal record and the court will impose a sentence.

Defences to breach of AVO

Legal defences available to a person who is charged with breaching an AVO include:

Mistake of fact

If the accused person committed the physical acts alleged, but was relying on an honest and reasonable but mistaken belief about a matter of fact.

If the accused person mistakenly believed in a state of affairs which if true would have rendered their conduct innocent, they are not guilty of an offence.

Duress

The accused is not guilty of breaching an AVO if another person ‘forced’ them to do the act.

Accused unaware of AVO

If the accused person was not present in court when the AVO was made and had not been served with a copy or advised of its existence.

Accident

A person cannot be found guilty of breaching an AVO unless they knowingly breach the conditions.

If a defendant accidentally breaches an AVO by, for example, being in a shopping mall not knowing the protected person is there, they are not guilty of a breach.

If protected person initiates contact

If you are the defendant and the protected person contacts you, get legal advice before replying. If there is a ‘no contact’ condition, responding to a message from the protected person may amount to a breach of the AVO: the protected person cannot give the defendant permission to have contact with them.

Community Correction Orders in NSW

A community correction order (CCO) is a type of good behaviour bond with conditions imposed in lieu of a prison sentence which can last for up to three years.

What are the conditions of a community correction order?

A community correction order must contain the following ‘standard’ conditions:

The defendant must

not commit any further offences, and
attend court if called on to do so.

A person will normally be called to attend court only if he or she breaches a condition of the order.

A court may also order that the defendant:

Be subject to a curfew of up to 12 hours in a 24 hour period;
Be supervised by community correction or, if under 18, by a juvenile justice officer;
Undertake community service work of up to 500 hours;
Not enter or frequent a particular place or area;
Participate in a rehabilitation program or receive treatment;
Not associate with a particular person/s, and
Abstain from alcohol and/or drugs.

A court cannot order a CCO for a domestic violence offence unless it has considered the safety of the complainant.

A court can only order community service if it has obtained an assessment report regarding the imposition of a CCO.

The court can limit the period that any additional condition applies.

The following conditions cannot be included in a CCO:

Home detention;
Curfew of more than 12 hours in a 24 hour period;
Electronic monitoring.

Can the conditions be changed?

A community corrections officer or the defendant can apply to a court to revoke, amend or add conditions to a CCO at any time after it is ordered.

However, the standard conditions must remain in place.

A community correction officer can suspend (unconditionally or conditionally) the supervision requirement; or a curfew, non-association or place restriction condition.

What if I breach a community correction order?

If it is suspected that a CCO condition has been breached, the defendant may be ordered to attend court to determine whether a breach has occurred.

If a breach is established, the court may:

take no action;
add, change or revoke additional conditions; or
revoke the CCO.

If the CCO is revoked, the defendant will be re-sentenced for the original offence.

Traffic

Speeding and Licence Appeals (NSW)

In New South Wales, some decisions regarding a licence suspension due to a speeding offence can be appealed while others cannot.

Which decisions can be appealed?

Where a person commits and then pays a penalty notice for a speeding offence of over 30km/h or 45km/h, Transport for NSW will issue a licence suspension under Section 59 of the Road Transport Act 2013 (the Act) suspending the licence due to the excessive speed offence.

You can appeal Transport for NSW’s decision to suspend your licence for these offences in the Local Court.

A P1 or P2 Provisional driver with demerit points for a speeding offence resulting in a suspension of their licence can also appeal to the Local Court.

Which decisions can’t be appealed?

The following licence and speeding decisions can’t be appealed:

a decision by the Transport for NSW to suspend an interlock driver licence;
a decision by Transport for NSW to suspend an unrestricted driver licence for accrual of demerit points; and
where a driver on a good behaviour licence incurs two or more demerit points in 12 months and breaches their good behaviour licence.

Licence Suspension Appeals

A person whose licence is suspended by Transport for NSW due to an offence for exceed speed by over 30km or 45km/h can appeal the suspension in the Local Court. The decision of the court is final and binding on the driver and on Transport for NSW.

When deciding an appeal, the court has the power to:

Allow the appeal (removing the suspension in full);
Dismiss the appeal but reduce the period of suspension; or
Dismiss the appeal with no change to the suspension period.

There is no test prescribed under the Act in determining the appeal, but in practice the court generally considers:

whether the driver is a fit and proper person to hold a licence;
their need for a licence;
their criminal and traffic history; and
the circumstances of the offence.

P1 and P2 provisional licence suspension appeal

Where a provisional P1 licence holder incurs four or more demerit points, Transport for NSW may suspend their licence. Where a provisional P2 licence holder incurs seven or more demerit points, Transport for NSW may suspend their licence. In each case, the Transport for NSW decision to suspend can be appealed to the Local Court.

The Local Court decision is final and binding on both Transport for NSW and the driver.

The court has the power to:

allow the appeal (i.e. remove the suspension in full);
dismiss the appeal but reduce the period of suspension; or
dismiss the appeal (i.e. no change to the suspension period).

There is no test prescribed in determining the appeal, but in practice the court generally considers whether the driver is a fit and proper person to hold a licence with further consideration to the circumstances of the offence, their criminal and traffic history and their need for a licence.

Will I receive a criminal conviction for appealing my suspension?

No risk of a criminal conviction accompanies a licence suspension appeal as it is an administrative appeal concerned only with the suspension of your licence but not the offence which led to the licence suspension. You do not risk receiving a criminal conviction or paying a fine by pursuing a licence suspension appeal.

If you wish to dispute the offence that led to your licence suspension, you should make a court election on the offence (as opposed to lodging a licence suspension appeal).

Licence appeals vs court elections

A licence appeal is a civil appeal to the Local Court, to review the decision of Transport for NSW to impose a licence suspension. It is limited to reviewing the decision to impose a suspension and does not involve a finding of liability (or a criminal conviction) in committing the offence.

The court’s powers in relation to a licence appeal are to essentially re-make the decision to impose a suspension, exercising only those powers that were available to the original decision-maker, Transport for NSW. In determining an appeal, the court can only:

Set aside the decision;
vary the decision;
dismiss the appeal; or
make such other order as the court determines as just in the circumstances.

A court election is an election to have the traffic offence decided by a court (in the criminal jurisdiction), and requires the person electing to enter a plea of guilty or not guilty. A conviction imposed by the court following a court election is recorded as a criminal conviction.

However, demerit points are not incurred against a licence where an infringement is court-elected and the matter is dealt with by a non-conviction order, as provided under the Crimes (Sentencing Procedure) Act 1999.

People wishing to avoid a licence suspension when a conviction would result in them exceeding their demerit point limit and/or breaching a good behaviour licence may make a court election. However, the court considers non-conviction orders granted solely to avoid the operation of other legislative provisions (such as the demerit point system) improper and impermissible.

How To Lodge Your Appeal

Once the fine for the offence has been paid, Transport for NSW will send you a Notice of Suspension setting out the date on which your licence will be suspended and the last date for filing the appeal. You have only 28 days after you receive the Notice of Suspension to file the appeal. Generally the last day to lodge the appeal is the day before the suspension is due to start and is specified in the Notice of Suspension.

If you do not lodge your application in time, the court has no jurisdiction to hear the appeal, and you must serve the suspension.