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Man’s surprising defence to drink-driving charge

Man’s surprising defence to drink-driving charge

Most drink-driving cases are essentially open and shut – police breathlyse a person, get a reading above the legal limit and take their licence.

But an exceptional case from Townsville where a Judge accepted that a man had drunk two cans of rum and coke between the time when he crashed his car and when the police arrived, well and truly breaks the mould.

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This story begins early on a summer morning, in 2005, when a man was involved in a car crash at an intersection.

When police arrived on the scene half-an-hour later and breath-tested him they got a reading of 0.181 per cent, more than three times the legal limit.

As a Magistrate who considered the case noted: “normally this would be sufficient to convict” but what the man told police added a fresh twist.

He said that in the time between the car crash and when police arrived he drank two cans of rum and coke.

Click the links below to read other stories on our blog:

>>Five things you should know before posting on social media

>> Your rights if police stop you for a random drug search

>>The 11 things you should know before getting a divorce

There was a witness to the crash who told police she hadn’t seen him drinking and police claimed they couldn’t see any cans lying about.

And when the case first went to court, the Magistrate refused to believe the man’s story.

“I am prepared to accept and find that on the evidence any window of opportunity for the defendant to have consumed any liquor, let alone two cans of alcohol as he has claimed, was in fact miniscule,” the Magistrate found.

The Magistrate also placed weight on the fact the man had not taken to the witness-box in his own defence.

In doing so he engaged with a controversial aspect of the law, which is that people accused of a crime do not have to testify in court.

This is because a person’s right not to incriminate themselves is always given priority.

So, instead of taking to the witness box, they can let their lawyers present their version of events and a judge, or a jury, can’t doubt that evidence, just because it wasn’t said by the person accused of the crime.

Thus, when the case was appealed to the District Court the Judge there noted the Magistrate was wrong to doubt the evidence just because it came from the man’s lawyers.

He also found that while police couldn’t see any empty rum-cans lying about they may have been concealed in the car’s glove-box.

As a consequence, the judge found that the police hadn’t proved, beyond a reasonable doubt, that the man didn’t drink two cans of rum and coke directly after the crash.

And the Magistrate’s finding was struck down and the case sent back to be heard by someone else.

However when that happened the courts tell us the man involved chose to plead guilty and copped an $1100 fine and had his licence suspended.

The court’s file in this case has been destroyed and it is unclear why the man changed his plea.

The 11 things you should know before getting a divorce

The 11 things you should know before getting a divorce

DIVORCE is a traumatic time for anyone but getting help and taking clear action will save you time, money and let you get on with your life more quickly.

The first thing you need to sort out are your finances and if there are children involved you need to get a parenting agreement.

A key family lawyer at Strategic Lawyers, Robert Ballais, explained the whole process of getting a divorce is best thought of as having two separate parts and three parts if you have children.

“Under Australian law couples actually have to be separated for one full year before they can get a divorce,” Mr Ballais said.

“However, before you get a formal divorce you can work out how you want to divide up all of your assets by getting a property settlement and work out what’s best for the kids through a parenting order.”

In Australia the divorce rate is falling however there are still lengthy waits to access the courts.

It’s also important to note that while de facto couples – people in a relationship who have been living together for two years or more – don’t need to get a divorce, there may still be a need to get a property settlement and a parenting order.

And with the majority of divorces being agreed to by both sides of the marriage Mr Ballais said couples that are able to reach an agreement without a lengthy dispute get quicker, less expensive outcomes.

“Obviously that’s not always possible but our first step is always to try and minimise the pain by sorting everything out and reaching consensus,” he said.

Below he runs through what you’ll need to have at hand to get through each part of the process and gives you the inside running on how you can do the prep-work to save your lawyer’s time and to save your money.

GETTING A PROPERTY SETTLEMENT

1. Work out what you own and what you owe
The best thing people can do before they come in to see a family lawyer is create a document with all the assets and liabilities they have.

This should include things like the mortgage, if you have one and any other loans and how much has been paid and how much is owing.

It should also include details of any other personal loans or assets and any valuations people have for those and one final thing a lot of people forget is to bring details of their superannuation.

2. Know your business
The second thing people will need to bring along if they want to reach a property settlement are any details of any businesses they own.

This really could include any financial document to do with that business but usually things like a valuation would be the most useful.

3. Did you already have an agreement?
In a lot of cases couples have already agreed on how they’re going to split their assets but as Mr Ballais explained this often doesn’t take the form people might expect.

For example, it might be something as simple as a text message or an email from years ago where these things were discussed.

So, having any details of any discussions is a great place to start – regardless of whether the ownership of any of the assets are in dispute.

GETTING A PARENTING ORDER

In the same way people can divide their assets as soon as they separate they are also able to make legal arrangements for the custody of their children.
Below Mr Ballais goes through what you will need to bring along to make sure you have everything you need on hand.

4. Have you already agreed on this?
If you’ve already worked out who is going to take care of the kids and on which days they will have them, then bringing along a copy of that agreement saves a lot of time.

This might have been agreed at an earlier point in time or after you decided to separate.

5. Check your roster
This is especially important for people who do fly in, fly out work – or work shifts.

Sometimes people will go to put an agreement in place only to realise their work arrangements make it impossible, so bringing along your roster from the outset is the best way to avoid any issues.

6. Write out what you want
Before you see a lawyer it’s worth thinking about the custody arrangement you want and writing it down.

If you are able to agree on this it won’t just save your lawyer time, it will save you money as the process for reaching a mutual agreement on custody is a lot less costly than if the matter goes to court because there’s a dispute.

GETTING A DIVORCE

So, you’ve sorted out your property and worked out a parenting order. Now you are ready to finalise your divorce.

Below Mr Ballais explains the legal hoops and hurdles the law puts up for people looking to officially end their marriage.

7. Get counselling & make sure you’ve been separated for 12 months

If there is a chance of reconciliation, the first thing every couple should do is try to work out their problems.

This isn’t just a nicety the Family Law Act actually requires couples who have been together for less than two years to get marriage counselling.

Also under the Family Law Act people need to be separated for 12 months before they can start a divorce application.

Obviously, for people in abusive and extreme circumstances it wouldn’t be necessary or appropriate to force them into counselling and they can apply to the court to avoid the process however, they still need to have been separated for 12 months.

8. Find your marriage certificate
This is one of the first things any family lawyer will ask for at the first meeting

So, having it handy means we can get started straight away instead of having to wait on paperwork.

9. Sit down and write out all your personal details
For the divorce application itself you’ll need the addresses of both parties involved – or the address of their lawyer.

You’ll also need your places and dates of birth and your occupation.

Finally, if you moved to Australia from overseas you will need to state the date on which you moved into the country.

10. Write down all your children’s details
If there are kids involved then a lot of information is required before a divorce application can be finalised.

Mr Ballais explained the most essential items included any child support paid to date, any custody arrangements presently in place and any proposed changes to those custody arrangements.

It’s also useful to have a record of any of the children’s health issues and what schools they currently attend.

11. Find out how much it will cost
Strategic Lawyers was the first firm in North Queensland to offer something called fixed-pricing.

This means we will, wherever possible, tell you how much it will cost to work on your matter and give you a binding quote before we start.

A lot of firms will charge by the hour – creating an incentive for lawyers to waste time and charge you for it.

Here at Strategic we do things differently; we do everything we can to remove the stress created by the uncertainty of not knowing how much your divorce will cost.

Should police use resources chasing small-time drug users at music festivals?

Should police use resources chasing small-time drug users at music festivals?

The Queensland Police Service continues to expend valuable resources chasing small-time drug users at Townsville-based music festivals.

And it is worth knowing your rights if you are detained and searched by police as it can dramatically impact the outcome you get, if you face possession charges in court.

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In May this year, just six days after senior Townsville police detailed a crime spike which led to a 25 per cent increase in property offences more than 60 officers and four drug detection dogs were sent to the Groovin the Moo music festival.

They charged 34 people with 50 offences.

One of those people, a teenager, was represented by Strategic Lawyers with key criminal lawyer Anthony Sturgeon pointing out the tactic of using sniffer dogs at the entrance to music festivals will often catch people carrying drugs solely for personal use.

“I don’t think anyone is saying police should turn a blind-eye to serious drug dealing,” Mr Sturgeon said.

“But searching people at a music festival, en-masse, is likely to lead to the arrest of people with small amounts of drugs that they’re intending on taking at the festival.”

The Law when Police Stop and Search You for Drugs

It is worth knowing your rights if you are stopped searched by police.

And if there is one key takeaway it is not to say, or do, anything to indicate you are consenting to the search.

Queensland’s Police Powers and Responsibility Act gives police the power to search people they suspect of having hard drugs – without a warrant.

To use this power and make the search legal, police need to show they had a reasonable suspicion the person was in possession of one of the following drugs – which are known as Schedule One drugs:

• Amphetamines (Speed)
• Cocaine
• Heroin
• Lysergide (Acid)
• Methylamphetamine (Ice)
• Methylenedioxymethamphetamine (MDMA)
• Paramethoxyamphetamine (PMA)
• Paramethoxymethamphetamine (PMMA)
• Phencyclidine (Angel dust)
• Steroids

If police simply suspect you are in possession of a Schedule Two drug they can still stop and search you but, they must apply to a Magistrate afterwards and get something called a post search approval order.

Schedule Two drugs include what are generally thought of as soft drugs like: cannabis, coca leaf, psilocin (the psychedelic ingredient in magic mushrooms), temazepam, pure codeine and many other pharmaceuticals.

When police apply to the Magistrate they need to show they had a reasonable suspicion the person was in possession of drugs.

And importantly they must also show it is in the public interest for the search to be approved, after the fact, because the evidence they have found indicates a serious crime has been committed.

Regardless of what type of drugs a person is found with police need to show they had reasonable grounds to suspect they were in possession of illicit substances.

In a recent ruling from Queensland’s Supreme Court the Honourable Justice James Henry made comments which clearly cautioned police against overstepping the mark when making searches without a warrant.

“There is a real risk that police will pay lip service to the rules with which they must comply in detaining and searching vehicles and persons,” Justice Henry said after stating it was the court’s job to ensure police didn’t conduct unlawful searches.

He also noted the man facing charges fell “into the category of drug user, rather than drug dealer.”

In that case the Judge ruled that the drugs police found, could not be used in court, because there was insufficient evidence to warrant the search.

In a similar case a young man in his 20s was on his way to a music festival in Brisbane’s botanic gardens when he was stopped and searched by police.

Police searched the man because he looked excited and “hyperactive” and was carrying a bum-bag.

The Judge who was tasked with deciding whether, or not, the search was legal said: “there were no reasonable grounds for a suspicion.”

However, importantly the search was held to be valid and the young man was convicted because he consented to the search and let police go through a bum-bag which had pills in it.

“If there is one moral to that story it is that you are within your legal rights not to consent to a search and consenting to a search might have a negative impact on the final outcome of your case,” Strategic lawyer’s Anthony Sturgeon said.

*Image via Sniff Off on Facebook