WHAT CONSTITUTES POSSESSION OF A FIREARM?

Posted on Aug 27, 2014

A number of criminal offences involve possession of an item or substance. Recently the District Court considered the circumstances in which it can be said that a person is in possession of a firearm and the way in which the law has created a broader meaning of that term. The case involved charges under the Firearms Act of possessing a firearm without a licence (section 11(1)) and possessing a firearm with identifying characters removed (section 24A(7)). The issue that had to be decided was that of ‘possession’. Had the...

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WHEN DOES ‘REASONABLE CHASTISEMENT’ BECOME ‘ASSAULT’?

Posted on Aug 26, 2014

A father has been found guilty of assault of his 13 year old son who was refusing to clean his bedroom and ‘testing the limits of his parents’ patience’ after he grabbed the boy by the ear to lead him into the room and gave him a ‘backhander’ to the shoulder when the boy called him a ‘feeler’ and a ‘raper’. The man was charged with an aggravated assault on the basis that the victim was his child, meaning that under the law, because he acted in this manner toward his own son he was liable to...

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WHAT DOES ‘WITHOUT CONVICTION’ MEAN FOR MY EMPLOYMENT?

Posted on Aug 21, 2014

When imposing penalty upon a guilty plea or finding of guilt after trial, a Court has the discretion under certain circumstances to refrain from recording a conviction under the Criminal Law Sentencing Act 1988.* In South Australia a ‘no conviction’ or ‘without conviction’ ruling automatically becomes a ‘Spent Conviction’ under section 4 of the Spent Convictions Act 2009. It is an offence to disclose a Spent Conviction and thus such an offence should not appear on a Criminal History Clearance Check through the South Australian...

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ARE STEP-CHILDREN “MY CHILDREN”? RECTIFYING A WILL.

Posted on Jul 31, 2014

Did you know that an application can be made to the Supreme Court to ‘rectify’ a will if it does not accurately reflect the ‘testamentary intentions’ of the deceased person? The purpose is to effectively amend the wording of the will so as to give proper expression to the intentions of the deceased. An application of this kind must be made within six months of the grant of probate or letters of administration (unless the Court consents to a longer period). Recently, such an application was made when the deceased person – who...

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COURT FINDS UNLAWFUL SEARCH BY POLICE

Posted on Jul 29, 2014

A recent judgment of the District Court concerned a successful application by the accused to exclude the evidence of a police search of a car in which she had been located on the basis that the Court concluded that it was an unlawful search. In August 2012 police searched a car that had apparently been driven by the accused in which they found under the driver’s seat a sunglasses case that allegedly contained methylamphetamine and other drug paraphernalia.  The accused applied to exclude the evidence obtained from the search on the basis...

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LICENCE DISQUALIFIED FOR UNPAID FINES

Posted on Jul 7, 2014

Did you know that you can have your licence disqualified because of a failure to pay fines – even parking fees – on time? Section 70M of the Criminal Law (Sentencing) Act, enables disqualification of a debtor’s driver’s licence if the driver has outstanding fines and has not made arrangements to pay for them. It is no longer the case that fines simply accrue like a debt. The consequences are potentially far more serious. If you have outstanding fines and have not paid them or entered into any payment arrangements, your...

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WHEN CAN POLICE TAKE A DNA SAMPLE IN SA?

Posted on Feb 27, 2014

In 1999 South Australia police began to compile a database of DNA profiles which has grown to over 100,000 assisted by the powers created by the Criminal Law (Forensic Procedures) Act 2007.  A DNA sample is taken by police by means of a simple procedure known as a ‘buccal swab’ which involves using an implement to essentially scrape skin cells from inside the cheek. Police powers to take DNA Under the Criminal Law (Forensic Procedures) Act 2007 the Police can obtain a DNA sample from a person without their consent under two circumstances,...

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WHAT IS AN AGGRAVATED OFFENCE?

Posted on Feb 27, 2014

In many cases when a person is charged with a criminal offence the wording of the charge states, “This is an aggravated offence.”  What does this mean and what is the significance of an offence being aggravated? Most “Aggravated Offences”, and the circumstances which constitute an “Aggravated Offence”, are outlined in section 5AA of the Criminal Law Consolidation Act 1935. There are many ways in which an offence is deemed to be an Aggravated Offence.  Below is a list of the most common ways in which an offence is deemed to be an...

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DO I NEED A LAWYER IF I’M PLEADING GUILTY?

Posted on Feb 26, 2014

A recent penalty handed down in the Adelaide Magistrates Court has highlighted the importance of getting legal advice even when pleading guilty to what seems like straight forward matters. In a recent well publicised matter, the defendant was charged with a category 2 drink driving offence (0.08% to 0.149%) as well as a charge of driving without due care. The defendant had recorded a blood alcohol concentration of 0.122% which is in the mid-range of a category 2 offence (ie 0.08% or more and less than 0.15%). The minimum penalties for a...

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WHAT IS THE DIVERSION COURT PROGRAM?

Posted on Feb 18, 2014

Treatment Intervention Program and Drug Court Program What is it? The Intervention Programs are run in a specialist court and are not heard with the general criminal listings. The term “intervention program” is defined by legislation[1] as a program that provides supervised treatment, supervised rehabilitation, supervised behaviour management and/or supervised access to support services. Why does it exist? The Program is based on research and aims to address the underlying causes of crime prior to sentencing in an effort to reduce the risk...

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