In a recent decision of the Full Court of the Supreme Court of South Australia, a juvenile appealed against the sentence he received in the Youth Court. The juvenile had been charged with three counts of aggravated driving without due care, contrary to section 45 of the Road Traffic Act 1961 (SA)[1].

Without receiving legal advice, the juvenile pleaded guilty to all three counts and received convictions for all three counts.

There was only one road accident which caused injury to three people.

The question to be determined was whether the circumstances of the accident gave rise to one offence of aggravated careless driving or three such offences as had been charged. In other words – were the charges laid by police duplicitous?

This scenario could occur in a number of ways – whether multiple offences are laid following an accident or following the commission of a criminal offence.

In this case, not only did the Full Court find that the charges were duplicitous but that the Youth Court Judge sentenced the juvenile on the basis of a material misunderstanding of the law that three separate offences had been committed.

Although the results of accidents and incidents can be tragic, it is also important that the offender charged with the offences is dealt with in accordance with the law.

If legal advice had been sought and the person had been represented in Court, a lawyer practising in this area of law would have questioned the issue relating to the duplicitous charges by bringing the matter immediately to the attention of the police prosecutor thereby preventing the potential injustice that occurred in this matter.

At Websters Lawyers we recommend that you always seek legal advice and discuss the charges or offences with a specialist lawyer. If you would like to speak to a specialist Criminal Lawyer or a specialist Traffic Lawyer contact Websters now to arrange a free initial interview. Websters have available lawyers in Adelaide and North East who specialise in criminal charges and traffic offences (including traffic fines).

1. G, JJ v Police [2012] SASCFC 139

We have all heard of cases where a surrogate mother has reneged on an agreement and refused to relinquish the child following birth, and the ability to have a legally recognised surrogacy agreement would ease the minds of the parents commissioning the birth of a child and the surrogate mother.

The commissioning parents and the surrogate mother, who agrees to become or seek to become pregnant and who will surrender the custody of and rights in relation to, a child born as a result of the pregnancy to the commissioning parents, will need to enter into a written agreement.

The parties to the agreement will not only include the commissioning parents and the surrogate mother, but if the surrogate mother is married, will also include her husband.

The commissioning parents must be domiciled in South Australia, be legally married or have cohabited continuously together as de facto husband and wife for at least 3 years immediately prior to entering into the agreement or for periods aggregating not less than 3 years during the period of 4 years immediately prior to the date of the agreement.

Also a medical practitioner would need to certify that the female commissioning parent must be or appear to be infertile or there is a risk that a serious genetic defect, serious disease or illness would be transmitted to a child she may bear.

The surrogate mother will need to be assessed and approved as a surrogate by the National Health and Medical Research Council.

The surrogate mother and the commissioning parents will be required obtain a certificate issued by a medical practitioner relating to the social and psychological implications of such an agreement. There are legislative requirements as to what they certificates must contain.

The commissioning parents and surrogate mother will need to obtain a lawyer’s certificate which must be endorsed on the agreement which states they received legal advice explaining the legal implications and consequences of the agreement and that the agreement was executed in the presence of a lawyer.

There are legislative requirements that certain clauses be inserted into the agreement about the financial arrangements which were entered into between the commissioning parents and the surrogate mother and as to the fertilisation procedure and human reproductive material used for creation of the embryo.

Importantly, a clause that all parties intend that after the child is born, the commissioning parents will apply to either the Family Court of Australia or the Federal Magistrates Court for an order as to who are the parents of the child born under a recognised surrogacy arrangement. The agreement will set out that any application is to include a birth sibling if there was a multiple birth. This application is required to be made to the Court in a certain timeframe after the birth of the child.

This can be a complicated area of law particularly if the commissioning parents of the child are not the genetic parents of that child and it is important that legal assistance is obtained before entering into any such arrangement.

If you would like to speak to a specialist Family Lawyer regarding the legislation applying to surrogacy agreements contact Websters Lawyers in Adelaide or the North East to arrange an appointment.

If you were married or in a domestic partnership that was a de facto relationship you may be able to assert they pay you an ‘Occupation Fee’. Your former partner or spouse should not remain living in the home rent free while you pay rent elsewhere. This claim is made by you for contributions made post separation. It is made because the Court recognises that the person occupying the house is receiving by way of a benefit from you the ability to live rent free! If the property is owned outright, then effectively the person still living in the home is using your hard earned capital without any return to you. If the person living rent free is also the primary caregiver of the children a Court may reduce the amount of the occupational rent. A Court may also find that some breathing space should be given for the parties to adjust to the separation and changes to dealing with finances. Although it would vary depending on individual circumstances, a Court may not order an occupation fee to be payable for the first two or three months. If successful, the ‘Occupation Fee’ could entitle you to an adjustment in your favour in any property settlement which could increase your share of the net asset pool.

If at separation, you owned the home outright or if the other person has not been contributing to the ongoing mortgage payments, rates, insurance or upkeep of the property or contributing very little, you may be entitled to claim that they pay an amount equivalent to one half, or more depending on the extent of your interest in the property, of the market rental value of the property from the date you separated.

That such a fee is payable is recognised by the Courts.

If you are in this sort of situation and want to know more, contact Websters Lawyers in Adelaide and arrange a free first consultation with a specialist Family Law Lawyer.

At your induction they tell you that if you injure yourself on shift you inform your supervisor, seek medical attention from the first aid room and ensure an entry is made about how, when and what injury you sustained and write down the names of any witnesses to the injury. Then you complete a Workers Compensation Claim Form and submit it to your employer for processing.

But what if you injure yourself while you are not on shift undertaking your duties – say, in your accommodation block – in the shower block – in a sporting activity your employer encouraged you to participate in to boost morale – or assisting the community in an event sponsored by your employer?

The law is that natural incidents connected with your class of work are compensable.

In a High Court of Australia decision, the Court held that if you sustain an injury during an interval in an overall period or episode of work (your overall period being the entire time spent on site) this would usually be seen as having occurred during the course of your employment if your employer has induced or engaged you to spend that interval on site or engaging in a particular activity.

In a 2011 South Australian Workers Compensation decision, it was held that a worker sustained a compensable injury when he suffered a heart attack and died while snorkelling with a group of workers. He was a supervisor and his employer had encouraged him to go snorkelling with a group of his workers to boost morale.

In a 2010 Queensland Workers Compensation decision, a worker was found to have a compensable claim when he sneezed and sustained a back injury while he was in employer-provided accommodation between shifts.

In a 2011 Northern Territory decision, a worker was found to have a compensable claim when he sustained a back injury while sleeping in employer provided onsite accommodation.

During your rostered time on duty, any injury sustained by you may be compensable regardless of where is was sustained.

Should you wish to speak to a specialist Workers Compensation lawyer about an injury sustained by you, contact Websters Lawyers in Adelaide as soon as possible as statutory time limits apply when making Workers Compensation claims. Websters Lawyers offer a free initial consultation to enable you to identify whether you have a Workers Compensation claim, to understand your entitlements and to explain how a specialist Workers Compensation lawyer would assist you.

In a current appeal before the Full Court of the Family Court of Australia, the appellant is seeking to have his pre-nuptial agreement set aside on the basis that the solicitor who prepared the document failed to give him proper legal advice on the advantages and disadvantages of entering into the agreement.

In 2004 and 2010 amendments were made to the Family Law Act 1975 requiring strict compliance by solicitors as to the legal advice to be given to their client at the time the client enters into a pre-nuptial agreement or a Binding Financial Agreement.

This resulted in a flurry of litigation by people who had entered into such agreements seeking to have them declared invalid, to enable them to avoid their obligations, by stating their solicitor had not meticulously followed the procedure set out when giving legal advice.

Many such agreements have now been overturned and law firms are questioning the protection offered to their clients if they enter into such agreements.

Websters Lawyers recommends that you consider an alternative to entering into Binding Financial Agreements by setting out the agreement reached between yourself and your partner/spouse in an Application for Consent Orders and filing the documents with the Family Court. The Court will then consider if the Orders sought are proper and, if so, will make Orders by consent.

Websters Lawyers recommends there is far more certainty that your agreement will by upheld should the other party attempt to have it set aside as it is an Order of the Court and not simply an agreement in writing made between the parties.

If you would like to speak with a specialist family lawyer regarding the best way to protect your assets (whether before, during or after the relationship) contact Websters Lawyers in Adelaide to arrange a free initial consultation.

The reasons for this ruling by the Court were:

1. Such an order was granted on application by the Police without any opportunity for a charged person to challenge the Order, thereby taking away the discretion of the Courts, and

2. That the charged person is effectively punished twice, firstly by the punishment for the offence and secondly, the by the effect of the forfeiture Order.

The person in this case had been convicted of drink driving in January 2011. Upon his arrest in December 2010, his car was impounded and shortly afterwards police filed an application for forfeiture of the car. The application was made because he had two prior convictions for drink driving in 2002 and 2005. An Order was made that the car was forfeited under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act on 31 October 2011.

The Clamping, Impounding and Forfeiture of Vehicles Act was passed in 2007. This Act gave the Police power to make an application to the Court to order a person convicted of certain offences to have their car forfeited to the State. The State could then impound, sell or even destroy the car. That law did not give the Court any real discretion about whether the Order could be made. Instead, the Court was obliged to make the Order. The Act set out some exemptions but the grounds for challenging the Order were incredibly limited.

In this recent case, the forfeiture order was appealed to the Supreme Court which held that section 12 of the Act, which deals with the forfeiture of vehicles upon conviction of certain prescribed offences, was unconstitutional.

The Supreme Court held that this section of the Act required Courts to exercise powers that were “incompatible with, and repugnant to, the exercise of judicial power under the Constitution”. The Court found that it was unconstitutional that the decision to impound vehicles was made by the Police, with the Court having no discretion as to whether to grant the Order for forfeiture. Simply put, the inability of the Court to exercise any discretion about whether to impose such an Order was completely inconsistent with the independence and impartiality of the Courts.

It is open to the Attorney General to appeal this decision, therefore widespread implications of the ruling won’t be known for a few weeks yet. However, effective immediately, Police have stopped making any applications for forfeiture of vehicles, and all applications currently before the Courts will be adjourned.

This decision only renders forfeiture orders made under the Forfeiture Act invalid. The impounding and clamping of vehicles following the commission of certain offences is still valid and Police have confirmed that this will continue.

If you have had your car forfeited and sold or destroyed, depending on the outcome of any appeal by the Attorney General, you may be entitled to compensation for the loss of your vehicle. Further, if the reasoning by the Court is applied to the section of the Act (section 9) relating to the fees imposed when Police have impounded a car, then it is arguable that this section is also invalid and that orders to pay such fees might be open to review. This is an issue that Websters Lawyers are actively investigating.

If you would like more information or any assistance regarding these issues or any traffic charge, contact a specialist traffic lawyer at Websters Lawyers.

Bell v Police [2012] SASC 188

Claims against the nominal defendant require that ‘due inquiry and search’ has been undertaken in order to ascertain the identity of the other vehicle and that written notice of the claim for compensation has been given to the nominal defendant as soon as reasonably practicable.

In a recent case heard by the Supreme Court it was argued on behalf of the nominal defendant that the person injured in a car accident should not be entitled to make a claim because he had not made ‘due inquiry and search.’ The claimant was driving a truck when a hit and run driver failed to give way to him at an intersection and then left the scene after the accident. The Court had to consider the extent of the obligation to make due inquiry and search and in particular whether any lead or clue to the identity of the other drive should have been followed up despite how long it had been since the car accident.

The police had gone to the scene of the car accident, however the Court said that the police investigation was “basic and most unsatisfactory,” and that investigation was ‘closed down’ within two months. The truck driver gave evidence that he stopped working for the transport company by which he had been employed about ten months after the accident, and shortly after that one of the other employees told him some information about the driver of the other car, including his description and the area in which he worked. The truck driver told the Court that he informed the police about this information but at the trial some years later there was no evidence or record to support that claim. The employee who was said to have given this information to the truck driver gave evidence that he did not recall doing so.

The lawyers for the nominal defendant argued that having received this information, the truck driver should have actively pursued the line of inquiry. They claimed that he should have followed up on those clues and that there was no limit to how long after an accident such investigations should be conducted. They also said that it was not enough to just relay the information to the police.

The Supreme Court confirmed some principles relating to these types of claims including the fact that the onus (or duty to prove) is on the claimant to establish that the stipulation has been complied with, that if due inquiry and search has been made it isn’t necessary that it should have been made by the claimant or persons acting on his behalf and that the claimant, “[D]oes not now have to engage in useless ritualistic inquiries. The only inquiries that are material are inquiries that might reasonably be expected to be possibly fruitful,” and that, “What is ‘due’ inquiry and search must be a question of fact in every case.”

The interesting outcome in this case was that although the Court was of the view that in mid-2005 when the truck driver says he had the conversation with his former co-worker there would have been an obligation to take the matter further, it also concluded that the truck driver never did receive the information from his former work colleague contrary to his own evidence, and that this might have been a ‘figment of his imagination’ during a time when he was traumatised by the accident. So in other words the Court didn’t believe that he had received that information despite his testimony contrary to his own interests. Accordingly, the truck driver was awarded damages for injuries received in the car accident of over $687,000.00.

You might from time to time see an advertisement in the paper for a “Witness Wanted” or similar asking for anyone who witnessed a car accident to contact a lawyer’s office. These types of advertisements are usually made as part of the activity undertaken by lawyers in order to satisfy the requirement for ‘due inquiry and search’ on the part of their clients who have been injured in a hit and run car accident. If you are in a similar situation and would like to find out whether you have a claim and how it would be handled you can contact a specialist car accident injury lawyer in Adelaide at Websters Lawyers to arrange an obligation free initial consultation. As the above information has shown, it is important to act without delay.

Nominal Defendant v Dighton [2012] SASCFC 93

It is in section 8 of the Wills Act that the requirements of a valid will are set out. That section states that to be a legal will it must:

a) be signed by the testator (or by some other person in the testator’s presence     and by their direction); and

b) appear that the testator intended by the signature to give effect to the will;     and

c) the signature must be made or acknowledged by the testator in the presence     of two or more witnesses present at the same time; and

d) the witnesses must attest and sign the will; and

e) the signatures of the witnesses must be made or acknowledged in the     presence of the testator.

The Courts have said that there are numerous reasons why these requirements are in place including the fact that:

1. the requirement to be in writing makes the words of the deceased available     with certainty not found in oral expression (which depends on the memory     and honesty of the witness to the will);

2. the signature links the deceased with the document and shows that it is not     a draft and helps to establish authenticity;

3. the presence of witnesses at the same time ensures that execution of the will     is free and voluntary;

4. the formal requirements impress on the person making the will the serious     nature of the transaction.

Nevertheless, despite these formal requirements, a will may be accepted even if it hasn’t been executed in accordance with these formalities if the Court is satisfied that the document expresses the deceased’s testamentary intentions and the deceased intended the document to constitute his or her will.

In a recent case the Supreme Court was asked to consider a ‘draft will’ of the deceased on which there had been made some handwritten corrections relating to an address, and the fact that the deceased’s name and that of his daughter had been misspelt. The draft will had been prepared by his lawyer following a meeting in July 2008. The lawyer had written by hand what the client wanted to put in his will and from that information a draft will was prepared which was sent to him by post to review along with one for his wife.

The deceased read through the draft will in September 2008 at which time he informed his wife that he was ‘happy with the will’ although noting that there were spelling errors in relation to the names. At the request of the deceased, his wife made handwritten amendments to the draft will. She then telephoned the lawyer’s office and made an appointment to execute the will and it was agreed that the corrections would be made when they went to the office. The appointment was rescheduled for 14 October 2008 and about six days prior the deceased telephoned his lawyer’s office and left a voice message to say, ‘thanks for the wills, they’re great.’ Sadly, three days prior to the rescheduled appointment he died.

The question that then arose was whether the deceased intended that this unsigned and unwitnessed draft document, with the spelling errors and handwritten corrections was to be his will. There were a number of fortunate occurrences that assisted the Court to conclude that this was the case including the fact that he had told his wife that he approved the will with the corrections he requested, that his daughter was present when he did so and the message left on his lawyer’s answering machine. The Supreme Court found that he had intended that this draft will with the corrections made to it was intended to be his will immediately on execution.

Nevertheless, this case highlights the importance of clearly stating your testamentary intentions in writing and acting promptly to have you legal will prepared. If you don’t have a will, or if your circumstances have changed so that your current will is no longer relevant and you are looking for a lawyer for a will be to prepared, an experienced Wills and Estates Lawyer at Websters Lawyers in Adelaide can assist you. In most cases a legal will can be drafted for a fixed price so that you can be certain as to the cost, and in addition, Websters Lawyers offer a cost-effective facility to store a will or other legal document. For more information on prices go to the Wills and Powers of Attorney page and then contact Websters Lawyers to arrange an appointment for more information.

In the Estate of John Leslie Xavier Monaghan (Deceased) [2012] SASC 130

Police had produced CCTV footage depicting the robber and despite the fact that the Judge who heard the trial was of the view that the facial appearance of the accused man was similar to that of the person in the video footage, the Court of Criminal Appeal held that it was impossible to say whether the facial features were similar.

The case demonstrates the dangers associated with circumstantial evidence and the need to properly assess such evidence.

The robbery occurred on 5 January 2010 when the victim and her friend were walking along an Adelaide street at 1.00 am and were confronted by a male accompanied by a dog that was not on a lead. The male demanded money which was handed over and then left quickly, threatening to kill the victim if she followed him. The police were called and at the scene the victim told them that the robber had black hair with grey streaks, although at the trial she said he had mid length brown hair. One of the police officers who attended recalled that an hour or so earlier he had seen a small brown dog tied up outside the Rosemont Hotel and so he obtained the CCTV footage from that location which showed what was concluded to be the robber in company with a small dog. The man in the CCTV footage was swinging a bag in his right hand.

Over three weeks later the police officer was on foot patrol when he saw a man with a small brown dog. The police officer gave evidence that, “[H]e was of the view that that dog was very similar to the one that he saw at the Rosemont Hotel on 5 January.” The victim was later shown a series of photographs including one of this male and she told police that she was ’80 per cent sure’ it was the robber. This man was arrested and charged with the offence.

At his trial, the man denied the charge and gave evidence that at the time of the offence he had a broken right hand which was in plaster and for which he underwent an operation the day after the offence. In the CCTV footage the man swinging the bag around with his right hand appeared to have no discomfort.

The Judge who heard the trial found the man guilty of robbery on the basis of various items of circumstantial evidence including the fact that the robber had a similar appearance to the man, the robber’s dog was similar to the man’s dog and were both well-behaved, and both the robber and the man carry a bag. While the Judge considered that the accused man had a similar appearance to the robber in the CCTV footage, the Court of Criminal Appeal took the view that there was a reasonable possibility that they were two different people, and that they were of a different build. Accordingly, the appeal Court observed that the prosecution case relied on the fact that the accused man was in the vicinity of the crime and walks around with a dog not on a leash and had a similar appearance to the robber. Further, the footage of the robber swinging his bag was not consistent with being a man who had suffered a serious fracture to his hand.

A person can be charged with a criminal offence by police simply by being at the wrong place at the wrong time. Many studies have been undertaken that demonstrate the unreliability of human memory and eye-witness testimony however that sort of evidence carries considerable weight in a criminal trial. While prosecution bear the onus of proving that the accused person is guilty, it is important to identify and undertake investigations to preserve evidence if a charge is to be properly defended. Websters Lawyers have experienced specialist criminal lawyers who can assist with any type of criminal charge so if you have been interviewed by police or are going to court contact a lawyer in Adelaide or the North-East to arrange a free initial consultation at no charge.

R v Harding [2012] SASCFC 91

Every Expiation Notice must be issued in a proper form and in some instances the Notices may be defective. If a Notice is defective there are ways that it can be amended by the issuing authority or defended by you and it is always in your best interest to seek legal advice before paying the fine.

A notice may take more than one form, and may be either handwritten or computer generated.

For offences relating to speed cameras or red light cameras, notices are issued to the registered owner. If the registered owner was not the driver, that person may complete and submit a Statutory Declaration nominating the person who was driving at the time of the offence. The notice will then generally be re-issued to the nominated person.

If you choose to pay that fine then you will incur the demerit points that apply for the offence concerned. If the fine is for two or more offences arising from the same incident then demerit points are incurred only in respect of the one that attracts the most points (except where both a red light and speeding offence are involved together).

It is possible to apply to the issuing authority to have the notice withdrawn on the grounds that the offence is trifling. That means that either there were compelling humanitarian or safety reasons for the conduct involved, you could not reasonably have averted committing the offence or it was merely a technical or petty instance of the offence. In our experience it is extremely rare for such an application to succeed and the decision of the issuing authority in that regard is final and not subject to review by a court.

To defend the offence for which you have received a notice, you will need to elect to be prosecuted and return that election form to the Expiation Notice Unit. You will then receive a summons to attend court at a nominated time and date.

If you ignore the fine or fail to pay within the specified time, not only will you attract overdue fees, but your licence may be suspended. If a Court orders the suspension of your licence due to the non-payment of fines, the suspension will commence 21 days from when the Registrar of Motor Vehicles receives the order from the Court. Your licence will remain suspended for 60 days and you will not be able to drive until the fine is paid or cleared by the Courts. If you do, you may be arrested for driving whilst under suspension which is a criminal offence and will result in a conviction and it is always advisable to obtain legal advice.

A Court may order ‘restricted transactions’ and you will not be able to renew your registration or driver’s licence until the penalty is paid or cleared by the Court.

In the past people have believed that any demerit points will not be incurred until their fine is paid off completely if they have sought some form of relief ie: time payment options, this is not the case and upon entering into an agreement for relief, you are accepting responsibility for the offence(s) and any offence which attracts demerit points, will see you incur those as soon as any relief is granted and you will forfeit any ability to elect to be prosecuted.

If you have received an Expiation Notice and would like to know your options contact a specialist Traffic Lawyer at Websters Lawyers for more information.