FREQUENTLY ASKED QUESTIONS (FAQ) & INFORMATION

Max Crispe has been a specialist Perth criminal lawyer, barrister and traffic lawyer for more than twenty five years practising initially in a large city practice in which he was a senior partner. Since 1997 he has practised under his own name. Please contact Max and his team if you have any questions or need assistance.
Scroll (or click) below for information on:
1. Your rights and obligations in Criminal & Traffic Law matters
2. Information on Drug Prosecutions
3. Calculation of Blood Alcohol in Road Traffic Offences under the Road Traffic Act
4. Search Warrants under Section 42 Criminal Investigation Act, Misuse of Drugs Act and the Crimes Act

Some advice from our experienced Perth Criminal Lawyers & Perth Traffic Lawyers


Know Your Rights and Obligations

Criminal Offences: by Perth criminal lawyer Max Crispe

Q: I am under investigation for a criminal offence do I need to answer questions? What is my obligation?

A: Your obligation is to give your name and address and your date of birth. It is well known among Perth criminal lawyers that Police will use techniques that are completely legal to obtain information from a suspect, that includes engaging you in social conversation to break the ice and to get you talking. You may have a view that a failure to provide an explanation indicates you are guilty or if you have done nothing wrong why not answer questions. Put that completely out of your mind. There is no adverse inference or suggestion that can be made against you if you do not answer any of the questions. In all matters there is a presumption of innocence. If the Police believe you are guilty it is not in your interest to try and convince them otherwise. They intend to charge you anyway. The only person you will need to convince is a Court or jury. If at a later time in an unusual case after you have had legal advice and it is appropriate to for example provide information or be interviewed by then you know what the allegation is against you, we can arrange with Police to speak to them at that stage.

 

My advice therefore is as follows. If Police attend at your house or place of work or you are at a Police Station or any other place where Police have effectively taken control of you and wish to ask you questions for an investigation on any matter for a criminal offence:

 

  1. You must give your name and address and date of birth.
  2. To all other questions simply reply “I do not wish to say anything and I wish to get legal advice” or if you are in a room where the interview is being recorded “I do not wish to say anything. I wish to get legal advice and I wish the camera to be switched off”. Those answers should be given to all questions even of a social nature, even if the question was “Is English your first language” it does not matter what the question is the answer you should give is the same. There is no magic in the words you can say “I’ve done nothing wrong I don’t wish to say anything. I wish to get legal advice and I wish the camera to be switched off”. Often Police will say to you “Would you like to hear what the allegation is”. Again at some later stage if you are charged you will be made aware of the allegation if they charge you but follow the advice of indicating “I do not wish to say anything and you wish the camera to be switched off”.

If possible ring for legal advice Max Crispe Perth criminal lawyer on 0407 440 078, Kate Crispe Perth criminal lawyer – 0415 058 950 or Catherine Crouch  criminal lawyer on 0448 855 193

 

Traffic Offences by Max Crispe Perth traffic lawyers

Q: I am under investigation for a traffic offence. They want to ask me questions as to what happened. What is my obligation?

A: In the case of a traffic offence e.g. dangerous driving or dangerous driving causing death or grievous bodily harm, hoon offences, reckless driving, even speeding offence allegations you are obliged to provide your name, address and date of birth as I have explained above but there is one important extra matter that you must answer and it is in this area that people can sometimes get confused. Where a matter involves a traffic matter the person in charge of a vehicle or the driver must indicate who was driving at the relevant time, in other words, ‘I was the driver’. That is all. No details, no further information is required and it is important that a person is not lulled into answering additional questions unless they wish to do so.

I recommend the required information regarding a traffic matter be provided to Police by your legal advisor, then there is no confusion. It is a fact that Police will seek to ask further questions about the manner of driving and other circumstances. You do not need to provide this. Your obligation is only to provide your name, address, date of birth and the fact that you were the driver at the relevant time, nothing further.

If possible ring for legal advice Max Crispe Perth criminal lawyers Max Crispe on 0407 440 078, Kate Crispe on 0415 058 950 or Catherine Crouch on 0448 855 193



Drug Prosecution Information – by our Perth criminal lawyer team

 

Whether a matter proceeds to the District Court or stays in the Magistrates Court is a question that we are often asked by our clients. The answer depends on the prohibited drug and the amount of the prohibited drug. Matters, as you will see, are viewed far more seriously if they end up in the District Court.

In matters dealing with prohibited drugs there is also an extra issue to be faced and that is that once you are found in possession of a prohibited drug above a quantity set in the Misuse of Drugs Act, you are deemed to be in possession with intent to sell or supply to another. That concept includes sell, swap, barter, look after or any form of dealing. Each of the prohibited drugs has a set weight in grams above which that presumption to sell or supply is activated.

CANNABIS
Magistrates Court District Court
Quantities less than 500g can be dealt with in the Magistrates Court Quantities in excess of 500g must go to the District Court

Intention to Sell or Supply

Any quantity above 100g automatically gives rise to that presumption of an intention to sell or supply. A person found in possession of less than 100g can in certain circumstances, depending on the evidence, also be charged with possession with intent to sell or supply.

Penalty

Magistrates Court District Court
$5000 and/ or 4 years’ imprisonment $20 000 and/or 10 years’ imprisonment


COCAINE
Magistrates Court District Court
Quantities less than 4g can be dealt with in the Magistrates Court Quantities in excess of 4g must go to the District Court

Intention to Sell or Supply

Any quantity above 2g automatically gives rise to that presumption of an intention to sell or supply. A person found in possession of less than 2g can in certain circumstances, depending on the evidence, also be charged with possession with intent to sell or supply.

Penalty

Magistrates Court District Court
$5000 and/or 4 years’ imprisonment $100 000 and/ or 25 years’ imprisonment


METHYLAMPHETAMINE
Magistrates Court District Court
Quantities less than 4g can be dealt with in the Magistrates Court Quantities in excess of 4g must go to the District Court

Intention to Sell or Supply

Any quantity above 2g automatically gives rise to that presumption of an intention to sell or supply. A person found in possession of less than 2g can in certain circumstances, depending on the evidence, also be charged with possession with intent to sell or supply.

Penalty

Magistrates Court District Court
$5000 and/ or 4 years’ imprisonment $100 000 and/ or 25 years’ imprisonment
MDMA
Magistrates Court District Court
Quantities less than 4g can be dealt with in the Magistrates Court Quantities in excess of 4g must go to the District Court

 Intention to Sell or Supply

Any quantity above 2g automatically gives rise to that presumption of an intention to sell or supply. A person found in possession of less than 2g can in certain circumstances, depending on the evidence, also be charged with possession with intent to sell or supply.

Penalty

Magistrates Court District Court
$5000 and/ or 4 years’ imprisonment $100 000 and/ or 25 years’ imprisonment


HEROIN
Magistrates Court District Court
Quantities less than 2g can be dealt with in the Magistrates Court Quantities above 2g must be dealt with in the District Court

Intention to Sell or Supply

In relation to Heroin, the way the presumption to sell or supply operates is different in that the law prescribes that all quantities of Heroin of 2g or above give rise to a presumption that the person intends to sell or supply and must be dealt with in the District Court.

Penalty

District Court
$100 000 and/or 25 years’ imprisonment


For further information contact Max Crispe Perth criminal lawyers Max Crispe on 0407 440 078, Kate Crispe on 0415 058 950 or Catherine Crouch on 0448 855 193



Calculation of Blood Alcohol in Road Traffic Offences under the Road Traffic Act

 

Written by our Traffic Law Perth Team

We talk about blood alcohol reading, however, it is really a reading taken from a breathalyser machine.  The legislation provides that an alcohol reading taken from a continuous breath deep from the lungs is deemed by law to be a blood alcohol reading.

The Road Traffic Act makes the following assumptions to calculate a driver’s blood alcohol:

 

  • TIME OF OCCURRENCE

 

This is intended to be the time you were stopped or the time of an accident if Police attend.  This time is critical because it is necessary to calculate a person’s reading back to the actual time of alleged driving using a special formula.

 

  • TIME OF TEST

 

Here we are talking about not the test on the side of the road which is called the preliminary test, we are talking about the proper breathalyser test which is usually performed at a Police Station or in a booze bus.

There is a small readout that is given to you, not unlike a shopping docket that has the actual time of the test.  It is important you keep this docket if you intend to contest the matter or want legal advice.

 

  • ALCOHOL ASSUMPTION

 

 The Road Traffic Act prescribes that alcohol will rise in your blood for two hours from the last drink at a rate of .016 per hour and then drop off at the same rate.

 

  • TIME OF LAST DRINK

 

 If a person does not know when they had their last drink, the Police assume the best possible calculation as being the time of occurrence, the time you were stopped. If you cannot remember, say so in which case you must be given the most beneficial calculation.

It is possible to calculate your own blood alcohol reading and it is important you do so because minutes can make a difference to the calculation as to whether it is a .05 offence, a .08 offence or a DUI.  A DUI is an offence where the reading commences at 0.15.

This can all hinge on the time you were stopped (the time of occurrence).  Sometimes Police do not make an immediate note of what that time is or in the case of an accident the time is sometimes estimated based on witnesses to the crash.  This may mean that errors are made by police as to the time of occurrence and have a dramatic effect on the results.  We have had many cases where, over the years, the adjustment to the real time of occurrence has meant a charge of DUI has dropped to a .08 offence or a .08 offence is dropped to a .05 offence.  In some cases, even to no offence at all.  The task of Police is to calculate your blood alcohol reading to the time of occurrence so it is critical there is no error in what actually was the time of occurrence.

To perform the calculation you need to have the reading and the time of the test.  You take the number of minutes from the time of the test back to the time of occurrence.  For example, let us say you were stopped at 10.00pm and the test was at 10.43pm.  The test result will need to be taken back 43 minutes.  The hourly rate at which alcohol rises is .016 per hour.  That is divided by 60 minutes which gives a reading of .0002666 per minute.  You simply multiply in the above example 43 minutes by that calculation.  That gives a result of .011463.  It is then a simple deduction of .011463 from the test result that is on that little slip of paper you are given and that gives you your calculated reading.

We should also be advised if anything unusual happens while the test is occurring either with the breathalyser machine or anything else that seems out of the ordinary or that the Police mention either to you or to other officers in your presence.

Finally, if a person has a drink of alcohol, however small, after being stopped and before police are involved and therefore before the test, the result in our view is invalid and the calculation under the Road Traffic Act cannot be made. Contact us and seek legal advice immediately.

For further information contact Max Crispe Perth criminal lawyers Max Crispe on 0407 440 078, Kate Crispe on 0415 058 950 or Catherine Crouch on 0448 855 193



Search Warrants under Section 42 Criminal Investigation Act, Misuse of Drugs Act and the Crimes Act

 

Written by our Perth Criminal Law Team

Police have the power to search you as a person or your property at any time with your consent. Search warrants give Police the power to search for a certain thing or a certain person in a place or vehicle without your consent.

There are several different types of warrants but there are some common issues between each type of warrant that you should be aware of:

 

  • SEARCHING WITH A WARRANT

 

OBTAIN A COPY OF THE WARRANT

Before Police enter a place to conduct a search or as soon as possible thereafter, they must give you a copy of a warrant if there is one. Police must also identify themselves by giving you their name, rank and Police number.

 CHECK THE WARRANT CONTAINS THE CORRECTION INFORMATION

The warrant must contain relevant information so that you can be sure what the search is for. This includes your full name and details, your address, the suspected offence to which the warrant relates, and the things that are liable to be seized. Police can only search a place or thing named in the warrant, which could include houses, vessels, vehicles or aircrafts. Police cannot search anything that is not named in it.

VIDEO RECORDING OF SEARCHES

It is now a requirement that search warrants are video recorded by Police. The Police must formally caution and advise a person of their right to remain silent throughout the search. This is an ongoing right, so even if the camera is switched on and off, a person is under no obligation to answer these questions.

Any footage of the search may be retained by the Police and could be used later in Court. If you are asked any questions, you should reply to all questions: “I do not wish to say anything, I wish to seek legal advice.”

OBTAIN A RECEIPT FOR SEIZED ITEMS

It is likely that Police will seize items during a search. If this is the case, a receipt must be provided to you. If documents are taken by Police, you should obtain the contact details of the Police Officer in charge of the Police section involved in the search and ask for copies of those.

 

  • POWERS TO SEARCH A PERSON

 

Police have the power to search you if you are in a place that Police are authorised to search by a warrant. You can also be searched if you come onto property or place whilst the search is being conducted.

Before doing a basic search or a strip search of you, the searcher must identify themselves and inform you of the reason for doing the search. If you do not consent to the search, you will be informed that it is an offence to obstruct the searcher doing the search.

A search must be done as quickly as reasonably practicable and must not be more intrusive than is reasonably necessary in the circumstances. The Police cannot question you whilst you are being searched about any offence that you are suspected of having committed.

 

  • SEARCHING WITHOUT A WARRANT

 

A PERSON

In certain circumstances, Police can search you without a warrant and without your consent. These circumstances include:

  • when you are committing an offence;
  • when you are under arrest;
  • when Police suspect that you have something in your possession that is relevant to an offence; and
  • to ensure security in a public place.

PLACES

Similarly, in certain circumstances, Police can search your place without a warrant and your consent and these include:

  • when looking for a suspect;
  • when you are under arrest for a serious offence;
  • when Police suspect domestic violence is taking or has taken place; and
  • when Police suspect prostitution is taking place.

It is important to note that all powers that can be exercised under a search warrant can be exercised with your informed consent. Your informed consent means that you have been advised:

  • of the powers that the officer wants to exercise in respect of the place; and
  • of the reason why the officer wants to exercise those powers; and
  • that you can refuse to the consent to the search.

VEHICLES

Police can stop and search a vehicle in certain circumstances, including where they suspect that:

  • an offence is being committed, or is about to be committed in the vehicle;
  • the vehicle is relevant to an offence, for example, it has been stolen;
  • the vehicle is carrying something relevant to an offence, for example, stolen property; and
  • the vehicle is carrying a person who has been subjected to a criminal offence.


For further information contact Max Crispe Perth criminal lawyers Max Crispe on 0407 440 078, Kate Crispe on 0415 058 950 or Catherine Crouch on 0448 855 193