Media Release: Major win in the High Court

Marshall Jovanovska Ralph MJR Criminal Lawyers has secured a significant win in the High Court of Australia. A strategic appeal was issued earlier this year when the Director of Public Prosecutions, Kerri Judd QC, appealed to the High Court of Australia seeking to lower the standard of proof for the mental element of all crimes involving recklessness. MJR Criminal Lawyers was resisting the appeal. The appeal could have changed the rules on recklessness and impacted on tens of thousands of cases per year.

The mental element for recklessness in Victoria is “foresight as to the probability of harm” however the Director of Public Prosecutions wanted it changed to “foresight as to the possibility of harm”. This would have lowered the standard for the mental element of all crimes involving recklessness making it easier to secure a conviction. This was the “flow-on effect” behind the strategic litigation. This change would have disrupted a whole ecosystem of laws that were enacted specifically with the higher standard of proof to apply.  The case has been running for a number of years and has been previously reported in The Age. And also here when it was at the Court of Appeal.

In the High Court, Felix Ralph, instructing Dermot Dann QC and Christopher Carr SC, argued that this would be contrary to the rule of law and the intention of parliament. We argued that this was a revanchist approach to the criminal law that would alter a fundamental building block for a wide set of crimes. Some of these crimes involve mandatory minimum sentences. The legal team said it was a matter for the parliament and the people of Victoria to make such a change.  The High Court ultimately agreed.

In a majority of 4 – 3, the High Court ruled in favour of our argument and dismissed the appeal with the Crown to pay costs. The majority justices held at [59] that,  

“This Court is reluctant to depart from long‑standing decisions of State courts upon the construction of State statutes, particularly where those decisions have been acted on in such a way as to affect rights. That is especially so here, where unfairness would follow if the meaning of recklessness was changed retrospectively by this Court with the result that potentially criminal conduct which occurred before this Court’s decision – if that conduct has not yet been charged, or if it has been charged but not tried – would attract the lower standard of recklessness contended for by the DPP and where the DPP conceded that the decision of this Court on s 17 of the Crimes Act would have a “flow‑on effect” for other offence provisions in Victoria.” 

DPP Reference No 1 of 2019 [2021] HCA 26

Reflecting on the win is Felix Ralph states:

Criminal appeals don’t get much more significant than this. Tens of thousands of cases every year would have had a lower standard of proof for the mental element applied to them. This would have unfairly changed the rules for even the most minor of cases all the way up to the most serious.

This case involved analysis of every mention of the word “reckless” in parliaments and the courts for more than a quarter of a century. The pressure was on for this major case. We executed the case strategy and secured a significant win for many thousands of people. I want to congratulate appeal counsel for this historic win secured by their full-throated defence of the rule of law.” 

Heavy Vehicle National Law criminal charges

Since 2018 there has been a Heavy Vehicle National Law (‘HVNL’) and Chain of Responsibility rules, governing every party in the heavy vehicle supply chain. These “chain of responsibility” laws means that truck drivers, companies, business owners, consignors and consignees all have a responsibility in ensuring that safety regulations are complied with.

The HVNL regulates all vehicles with a gross tonnage of or over 4.5 tonnes. The law regulates people who drive the vehicles but also people throughout the whole supply chain can be held liable under the criminal law.

This means that there are criminal breaches for all people on the supply chain for breaches of fatigue management, mass, dimension and loading rules, vehicle standards, registration and general rules and regulations governing the safety of heavy vehicles. A dedicated prosecution unit has been created to enforce penalties across Australia.

Marshall Jovanovska Ralph MJR Criminal Lawyers can assist you if you or your company are facing HVNL criminal charges.

What are the penalties?

Offences are separated into three distinct categories of seriousness:

  1. Category 1: This is an offence where reckless breach of the rules that exposes someone to the risk of death or serious injury/illness. The penalties can be up to $300,000 and 5 years imprisonment for a person, or $3 million for a business;
  2. Category 2: Where a person is exposed to the risk of death or serious injury but it was not reckless. This can be a fine of up to $150,000 for a person or $1.5 million for a business;
  3. Category 3: These offences involve a breach of duty and can carry with it a maximum fine of $50,000 for a person or half a million for a business.

The HVNL prosecutions have really only just begun. A list of court outcomes and penalties are recorded and kept at the NHVR website and is available here. The most serious penalties in Victoria so far have occurred in the Western Suburbs of Melbourne, where Marshall Jovanovska Ralph MJR Criminal Lawyers have been operating since 2003.  

A case study involving an individual at Sunshine Magistrates’ Court involved a driver who was driving truck who was driving with a load that exceeded the permitted width of 2.5m by 200mm. He was driving without a licence and the vehicle was unregistered. The driver provided a false name and date of birth to police and had prior convictions for driving offences. The driver was placed on a 12 month Community Correction Order (‘CCO’) and convicted.

A case study involving a company, which was observed travelling with 2 containers. These were a 20-foot and 40-foot container. The vehicle was intercepted and the load was inspected and it was discovered that the company vehicle exceeded the mass requirements by 150%. The company was also not carrying the container weight declarations for the 2 containers. The company had no prior convictions. The magistrate at Werribee Magistrates’ Court convicted and fined the company $100,000.

Are you facing a criminal prosecution?

These charges can have drastic financial ramifications and some offences carry prison time of up to 5 years imprisonment. As these are criminal prosecutions it is important that you retain a criminal lawyer who has an understanding of these prosecutions and who appear in the courts on a daily basis for criminal matters.

Further, due to the wide net cast by the Chain of Responsibility laws it is important to have a criminal lawyer determine whether you can be found guilty under the prosecution.

At Marshall Jovanovska Ralph MJR Criminal Lawyers we appear exclusively in criminal law matters and have so since 2003.  If you are facing a criminal charges under the Heavy Vehicle National Law, we highly suggest that you contact one of our experienced lawyers on (03) 9311 8500.

MJR Criminal Lawyers welcomes lawyer Jason James to the team

We are very excited to announce the newest member of Marshall Jovanovska Ralph MJR Criminal Lawyers Jason James (@JJamesLawyer). Jason is a great addition to our team and works out of our team of criminal lawyers in Sunshine. Jason has hit the ground running and is appearing in court every day defending our clients.

Jason completed a Bachelor of Laws (Hons) at Victoria University and attended at Leo Cussen for his Graduate Diploma in Legal Practice. Jason was admitted as a lawyer in the Supreme Court of Victoria in 2020.

Jason is an avid cricketer, a jiujiteiro and a voracious reader. His pathway to the law was not your stereotypical one. Jason has made the extraordinary transition from young offender to criminal lawyer. Having been given a second chance when he was a young offender, Jason successfully completed his studies at law school and decided to give back to the community. Jason has deep roots in the Western Suburbs and is excited to advocate for his clients in the West.

Jason has a passion for advocacy and the criminal law. He truly understands the vital role solicitor advocates play at the cross-roads of people’s lives and is dedicated to protecting their rights and assisting in his client’s rehabilitation. His perspective is a welcome one in our firm.

Partner, Daniela Jovanovska comments that:

“Jason is a wonderful addition to our team of tenacious defence lawyers. He brings a dedication and discipline to his work that is extremely impressive. The partners and I are fortunate to have someone like Jason and we look forward to growing with him.”

At Marshall Jovanovska Ralph (‘MJR’) Criminal Lawyers we strive to assist clients through every stage of their criminal cases. Connecting people with the right services, including housing, alcohol and drug addiction services and social workers is vital to achieve long term success for our clients.

Should you wish to contact Jason James or any of our other criminal lawyers please do not hesitate to contact us.

Interim Intervention Orders (IVOs) and the limits of the system

Felix Ralph, The Age, 23 February 2021
“Lawyers call for funding fix as courts face massive backlogs”

If you are reading this article there is a fair chance that an interim intervention order (IVO) has been or is about to be made against you. But what does this mean? An interim intervention order is an order granted by a magistrate that prevents certain activities, freedoms and behaviour. It can exclude you from the family home, prevent you from seeing your children or contacting the applicant for the interim IVO. This can have devastating practical and criminal consequences on people’s lives. These interim IVOs can be granted against you without you being present and if a magistrate is satisfied that it is required.  

The interim IVO stays in full force until either a magistrate removes it by agreement between the parties or the IVO proceeding is heard in court at a contested hearing. The difficulty with this is that due to the delays caused by an increased demand for these interim IVOs and due to COVID-19, a person subject to an interim IVO could be waiting many months (or years) to have their matter finalised and heard.  

Interim IVOs are effectively the same as a final intervention order and the penalties for breaching these orders can be severe. Due to strict bail laws, people who ordinarily wouldn’t be facing time in gaol, can be remanded until their case is finalised.  

This is why it is vital to have a lawyer present when the hearing first comes to court at the start of the case. This is called a first mention. It may well be that the matter can be negotiated by one of our lawyers to a withdrawal or to a less restrictive form of an intervention order. As criminal lawyers our job is to limit the potential liability of our clients to the fullest extent. Many people who are subject to IVOs do not know the system and consequences of breaching an IVO and it is very important that you receive this initial advice.  

Recently, Felix Ralph provided a comment to the The Age detailing the difficulties the criminal justice system is having with IVOs. The delays existed before COVID-19 however the pandemic has made them much worse. Due to these delays, in certain cases, it may be a superior course of action to consent to a limited order (either in duration or in clauses) rather than fully contesting the matter. This is because you could be subject to an interim IVO and therefore criminal liability for longer had it not been settled in the first place. Many people elect to contest the IVO without realising that the next time their case could go to court could be 6 to 9 months away. That is a long time to be subject to criminal consequences if there is an allegation of a breach. And it may be that after careful negotiation with the opposing side that a compromise can be reached early on in the case or parties can withdraw their allegations without involvement from the court.  Some cases will always require a contested hearing however it is important to receive the best advice so there are no surprises in your case. 

Please remember that all cases are different and that this article is a general comment only. You should not rely on this article as legal advice as this can be a complicated area of law. If you or someone you know is subject to an interim IVO you should contact Marshall Jovanovska Ralph Criminal Lawyers on (03) 9311 8500.