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Christmas Holidays and the Criminal Law

Holidays, especially the Christmas and New Year period, are peak times for police activity and many criminal charges are laid at this time of year. It is no secret that the road toll generally increases at year’s end, and the New Year generally sees an upturn in family-violence matters before our criminal courts. This article outlines some issues commonly faced over the Christmas holidays with the criminal law.

The reasons people may come into contact with the criminal law over the Christmas holidays are many and varied but you need to know what to do if you are summonsed or arrested at this time of year.

The right to silence

If you are arrested and charged with a criminal offence, remember that you have the right to silence. You do not have to answer questions from police, beyond giving them your name and address. It is always up to the police and prosecution to prove every element of every offence alleged against a person – and they have to prove it to the high standard of beyond a reasonable doubt.

You do not have to prove anything.

The presumption of innocence and the burden and standard of proof are the three great pillars of our criminal-law system, known as the “golden thread” of justice as famously expounded in the House of Lords by Viscount Sankey in the 1935 UK decision of Woolmington v DPP:

“Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to… If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner… the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”

If you are arrested, you should contact a criminal lawyer immediately. The team at Armstrong Legal Canberra are well versed in the bail legislation for both ACT and NSW and can act to endeavour to have you returned to the community as soon as possible.

Christmas holidays and the criminal law: drink driving

The most visible police presence at this time of year is on the roads. Since the introduction of random breath testing in the early 1980s, the road toll has dropped markedly. It is not uncommon for magistrates to refer to the road toll when sentencing drink-drivers.

Drink driving remains the most prevalent charge before our criminal courts, and what many might say are relatively straightforward matters can be difficult to handle. Legal representation is vital in these matters, especially in a cross-border area like the Canberra-Queanbeyan region.

ACT vs NSW traffic law

The different penalties applying to a mid-range drink driving matter, depending on which side of the border you are on, are marked. So is the application of the Interlock, the device that can be imposed by courts to be fitted to vehicles to ensure that only drivers with zero blood alcohol get behind the wheel.

The interlock is mandatory in most cases in NSW, but not in so many the ACT, where it can, however, be obtained on a voluntary basis in certain matters.

Who is a repeat offender?

The law in the ACT says someone who has had a previous offence at any time in their life is a repeat offender. That is not the case in NSW.

What about drug-driving?

In NSW the penalty range for this offence is much less than the ACT, where a first time drug-driver faces the same disqualification as a repeat mid-range drink-driver.

Don’t risk court on a drink- or drug-drive matter over the holidays, thinking it is simple. If you do get charged with drink driving or drug driving, contact our traffic lawyers for advice as soon as possible. It might be possible to receive a non-conviction order and a good lawyer can flesh out the materials and submissions to work for that outcome.

Christmas Holidays and the Criminal Law: Family violence in the ACT and NSW

Family violence (FV) is treated increasingly seriously by the police, prosecutors and the courts. In the ACT, the police policy on all FV matters is pro-arrest and the public policy of the office of the Director of Public Prosecutions is pro-prosecution with very little exercise of the discretion not to proceed with a charge.

Handling these matters can be tricky. Many can be defended, but more end up being finalised on a plea of guilty.

Despite the above public policies, representations on behalf of defendants can often succeed in having serious charges replaced with less serious ones, the overall number of charges being reduced and/or having Statements of Facts mollified. Compiling a brace of solid reference material can make a big difference to what happens to a defendant at sentence.

The penalties for breaching a Domestic Violence Order in the ACT range from a Good Behaviour Order without supervision to the maximum penalty of five years imprisonment (Section 43, Family Violence Act 2016. Good legal representation and thorough preparation can make a big difference to the outcome a person receives.

Family Violence or Apprehended Domestic Violence Orders

Applications for Family Violence and Apprehended Domestic Violence Orders are prevalent at holiday time – and there are stark differences in the law and its application between NSW and the ACT.

In NSW, police generally seek an ADVO following the laying of a criminal charge and the two matters travel together. These matters are most often decided “on the papers”, by a magistrate considering an affidavit (written evidence) from both a Complainant and a Defendant. Compiling an affidavit of relevant and persuasive material requires skill and experience and it is advisable to have a solicitor prepare this for you.

In the ACT, FVOs are generally applied for directly by an Aggrieved Person, and rarely by the police. At the first mention, the Aggrieved Person gives evidence ex parte (in the absence of the Defendant) and that evidence is accepted if it fulfils the civil standard of proof (the balance of probabilities). With only one party giving their version of events, the overwhelming majority of orders are made and it is rare that an interim order is not made.

The matter then travels to a first-return date or mediation conference to see if it can be resolved, either by the Aggrieved Person withdrawing the application, the Defendant consenting to the order being made (importantly, without making any admissions) or via Undertakings, which are a solemn promise to the court to abide by the same conditions as the order but without the spectre of a criminal charge being laid for any breach. If that appearance does not resolve the matter, it is set down for a full, contested hearing, with oral evidence from both sides before a Magistrate, just like in a criminal trial. Such a proceeding can be a minefield for the unrepresented.

Christmas Holidays and the Criminal Law: Conclusion

We hope that this season will be a time of joy and goodwill toward all. However, the team at Armstrong Legal Canberra can be contacted if you get caught up in criminal law matter over the festive period.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Andrew Fraser - Managing Associate - Canberra

This article was written by Andrew Fraser - Managing Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

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