drink driving lawyers in Adelaide

Drink Driving Cases In Adelaide

DRINK DRIVING CASES – PROSECUTION ERROR IN PROVING CASE 19 AUG 2011 

Friday, August 19, 2011

DRINK DRIVING CASES – FAILURE TO PROVE THE BREATH ANALYSIS OPERATER WAS AUTHORISED TO OPERATE THE BREATH ANALYSIS INSTRUMENT.

On 16 August 2011 the Supreme Court handed down a decision of Police v Short [2011] SASC 131. The accused pleaded not guilty to exceeding the Prescribed Concentration of Alcohol. Therefore, the prosecution were put to proof. In order to prove the case against the accused the prosecution had to establish that the breath analysing instrument was operated by a person authorised to operate the instrument by the Commissioner of Police. The case was run by a colleague of mine, Mr Ken Gluche from Websters. The media have since created a maelstrom in respect of whether this case may have wider implications.

In Short’s case, the prosecution set about proving the breathalyser operator’s approval by relying on a Government Gazette. The Supreme Court found that the method of proof was deficient and the Gazette did not actually prove what the prosecution had hoped it had. In particular, the Road Traffic Act allowed for approval of a BA operator by the tendering of a certificate signed by the Commissioner of Police. The Government Gazette was not a certificate and was certainly not signed. Secondly, the Gazette ‘approved ‘ an operator to ‘conduct a breath analysis’, whereas the Road Traffic Act required approval that the operator was approved to ‘operate the BA instrument’. The Supreme Court held there was a difference. Lastly, the Supreme Court held the Gazette only purported to prove a person was approved on 7 July 2009 and it did not approve them ‘ as from’ that date. In other words, the approval was not ongoing.

Drink Driving cases are very complex and few lawyers understand the complexity of the legislation. We at Woods & Co undertake these cases daily. We congratulate Ken on the success, but it is likely that it will have little effect for future cases as promoted in the media.

Firstly, if you have already pleaded guilty, then you admit by your guilty plea the elements of the offence and the prosecution do not have to prove the breathalyser operators approval to operate the instrument. Secondly, in this case, the prosecution simply failed to prove that fact. They won’t make the same mistake. It is likely the issue can be fixed up by calling oral evidence of the approval of the operator, or by retrospectively issuing a complying certificate and relying upon that at trial.

We have been inundated with calls about this error and as leaders in our field have tried diligently to respond to all calls about this aspect. We at Woods & Co enjoy drink driving cases and the complex legislation that accompanies it. We look forward to the next move by the prosecution to see how they address this error, which as it presently stands leaves them with a difficulty of proving their case. We will continue to protect your rights and keep you updated as to trends and developments in drink driving law.

Michael Woods LLB (Hons)

Principal

Supreme Court Class Action

DTEI Glitch – Class Action Update

DTEI GLITCH – CLASS ACTION UPDATE 12 DEC 2011 

Monday, December 12, 2011

DTEI Computer Glitch

Since August of this year, we have been working on a recent discovery by the Courts Administration Authority of a computer glitch that resulted in a significant delay in the Department for Transport becoming aware of thousands of traffic offences being expiated through the Courts Administration Authority Fines Payment Unit. The result has been that the Department for Transport has now become aware of this error and many drivers have been notified that they are liable to disqualification because of these very old offences. In some cases, the offences have occurred up to two and a half years ago. It is our experience that these disqualifications have had a profound effect on many drivers.

Initially, we sought to write to the Department for Transport asking that they review their decision to disqualify. The basis for this request was that we felt there had been a decision by the department to issue the disqualification notice. Unfortunately, the Department for Transport indicated that there was no decision made as there was no discretion to make any decision. They are relying on the provisions contained within the Motor Vehicles Act. While we accept the provisions of the Motor Vehicle Act, we do not and have never accepted that this delay in disqualification is fair.

In fact, it is patently unfair. This is for many reasons, not the least of which is that many people have experienced significant change in their lives over the last two years.

We have been working closely with other law firms and we are now pleased to confirm that an action will soon be filed in the Supreme Court seeking judicial review of the Department for Transport’s decision to disqualify so many drivers after such a long period of time has elapsed. The action in the Supreme Court is essentially a ‘class action’. A class action is an action that represents a class of people. As a disqualified motorist or motorist liable to disqualification because of the computer glitch, you will automatically become one of the class of people.

As with all things involving lawyers and court actions, there is a significant cost attached. Members of the class action are going to be asked to contribute funds to pay for the argument in the Supreme Court. It is hoped that the members of the class will be able to pool their resources together to establish a fund of up to $20,000.00 for this purpose. Quite clearly the more contributors that can put funds into trust, the quicker it will be that this action can be filed.

An action in the Supreme Court, however, does not come without risk. The Supreme Court civil jurisdiction is a costs jurisdiction. This means that parties to an action are liable to pay the successful parties costs. These costs can be significant, particularly in an action such as this.

Unfortunately, we do not have the capacity to manage a class of representatives. We have been working closely with other law firms and have an agreement in place with a firm who will manage the class. We point out you will be dealing directly with that firm should you wish to proceed. It is for this reason that we ask only those that can contribute $500.00 to the pooling of funds to make contact with our office, and we will refer you on.

We advise that people should not be upset about not being able to contribute any funds. As noted earlier, anyone affected by this matter will automatically be picked up in the class. What is required though is for those that can assist with funds to come forward and notify us as a matter of urgency.

We very much look forward to hearing from anyone that can contribute and we will endeavour to keep all those people affected apprised of any new developments in this matter.

Supreme Court Class Action

DTEI Class Action Update

Wednesday, January 25, 2012

SUPREME COURT CLASS ACTION – UPDATE 25 January 2012

Thank you for your patience and ongoing interest in respect of the Department for Transport disqualification matters.

In our last update and last correspondence to those affected by this matter, we notified you that the firm, Johnson Withers, was embarking on launching a Class Action against the decision of the Department for Transport. To assist them in covering legal fees, we asked our clients and others interested in this matter to contribute $500.00 (plus GST) towards the cost of the Supreme Court Action.

Unfortunately, the response has been quite poor. We have had only six or seven calls to our office and recent contact with Johnston Withers suggests that only fifteen people have placed funds into trust. Basically, this means that the class action will not be launched.

Until such time as Johnston Withers can generate sufficient funds to cover the cost of such an action, the situation for those affected by this matter will remain unchanged. In short, your licence disqualifications will remain in force and after reflecting on the instructions provided by this office, the licence disqualification is more than just a mere inconvenience to you.

If you can generate funds in respect of this matter, we ask that you immediately contact Johnston Withers (Ph: 8231 1110) in relation to the class action, and they have requested that funds be immediately placed into trust. A representative from Johnston Withers has advised that given the limited numbers of people prepared to fund the matter, it is likely that they are going to have to ask for a higher contribution. In short, the fewer the number of contributors, the higher the contribution will need to be. Conversely, the more contributors, the smaller the contribution.

For those who are only affected by a three-month disqualification, it may be the case that your disqualification period has already expired. However, there are others suffering 6, 12 and even longer disqualification periods; you are no doubt feeling the full force of how the disqualification is affecting your everyday life.

We look forward to your response. We at Woods & Co will keep trying to protect your rights. Whether we are successful or not we believe in continually raising and fighting issues that appear to be unfair.

Thankyou

Michael Woods

Legal Rights and Procedures

Guilty Pleas – Reduction In Sentence

Tuesday, August 07, 2012

Traditionally, an accused person is given a discount for pleading guilty. It is said to be up to one-third of the sentence. In theory, the recognition of a person’s guilt demonstrates their remorse and contrition and saves the courts time. In the case of an offence where there is a victim, it also saves the victim the trauma of a court case.

Presently, there is a Bill before Parliament, which is said to stipulate certain levels of discount when a person pleads guilty. The earlier the guilty plea, the more the discount. In fact, it is proposed that if a person pleads guilty within 4 weeks of the first court appearance then a discount of up to 40% may apply. Lesser discounts occur at different stages of the proceedings. It is claimed that these new provisions encapsulate the existing law. We disagree.

We at Woods & Co keep up to date with new changes, and are part of the Criminal Law Committee of the Law Society who are consulted on such changes.

At our firm, we take the view that such a system could lead to unfairness and inequity. The discounts appear to be linked to arbitrary times and not to stages and the appropriate and proper disclosure of information from the prosecution. At present, there are huge delays in electronic crime analysis. Many cases have internet, SMS messages, Facebook or other electronic data that is required. There are lengthy delays in the provision of Forensic material such as DNA and even drug analysis.

A solicitor will need to ensure that the client is properly informed at material stage as to the appropriate discounts. This applies even though the solicitor may not be able to advise you on the merits of any plea due to the non-disclosure of essential materials. If a solicitor advises you to take the discount without properly assessing the evidence, then that solicitor may be negligent. The drafters of the legislation would say that the accused can instruct the solicitor whether or not they are guilty. If it was that easy, lawyers would not need a law degree. Wait for the first person who takes the 40% discount only to find the ‘heroin” they had in their possession turned out to be caustic soda.

Hopefully, any changes will be linked to the proper disclosure of appropriate and proper information from the prosecution before an accused is called upon to respond.

delays in the justice system in adelaide

Delays in the Justice System 12 May 2015

There has been considerable focus in recent times about delays in the Criminal Justice System. All parties play an important role in delivering justice. Victims are entitled to efficient justice and an accused is also anxious to know his or her fate.

Many matters are dealt with by Police Prosecutors in the Magistrates Court. In my view, the delays are not significant in these types of matters. However, many serious matters have to be finalised in the Supreme or District Court of South Australia. Before a matter proceeds to the superior court, the Magistrates Court must hold a Committal process. At that stage, the court looks at the evidence and takes all reasonable inferences at the highest for the prosecution. Credit is not normally considered at this point and the test is really whether the elements of the offence have been made out or not.

There are significant pressures on an accused. Many recent changes to legislation continually make it harder for an accused to receive a sentence other than actual imprisonment. The system is supposed to encourage an early guilty plea where a person can receive up to 40 per cent discount for an early plea. However, if as defence lawyers we are simply advising a client that they will still likely go to gaol, then the incentive is not always there.

Many accused like to know what the case is against them. They can still receive 30% discount if they plead guilty before being sent to the District or Supreme Court. It is at this stage the delays are occurring. Many cases now rely upon CCTV footage, phone records, DNA evidence and other computer or phone evidence.  The delays in these matters are significant. They are not properly resourced and have not kept pace with technology. Police are under stress and the prosecution are under pressure. A forgotten participant is the accused who in my view is entitled to view the evidence against them before committing to a course. The state brings the prosecution with the resources of the state against the individual. Pressure for an early guilty plea to clear the backlog should not come at the cost of justice. At Woods and Co, we protect your rights.

demerit points

Demerit Points – Don’t Share

DEMERIT POINTS – YOUR FREEDOM IS WORTH MORE THAN YOUR LICENCE

I have said on many occasions that in this day and age it is very easy to collect a few points on your driver’s licence. Our politicians in South Australia are short of funds and will keep up the revenue raising under the guise of road safety. Yes, I know the comments from some people that say if you don’t do anything wrong you don’t pay. They are often the same ones who are doing 35km in front of everyone as the traffic in this state comes to a standstill.

At Woods & Co, we get calls from many families concerned that one of their children has committed a relatively minor traffic offence and will not be able to get to their job or carry it out. There is an easy temptation to assign the demerit points from that speed or traffic camera to another family member and hence share the pain. If caught it is a serious criminal offence. You may not think about the consequences but gaol is real.

Before making a decision call us. ‘P’ Plate licence holders can claim hardship provided they meet the lawful test. Full licence holders may be able to enter a good behaviour bond.

Importantly, any person may upon conviction apply to the court to have the demerit points reduced on the basis the offence is trifling or other proper cause.