Misuse of Legislation Leads to Unfair Charges


Increasing numbers of criminal cases appear to be skewed by police wrongly applying the law to certain situations.

From inadmissible forms of evidence to misapplying criminal charges, incidents like these can lead to frustration, increased court costs and an unfair amount of stress on defendants.

Whether police are doing it deliberately or it is done in genuine error, the misuse of legislation seems to be becoming increasingly common, with some types of legislation more at risk of being misused than others, especially if the wording is ambiguous or the legislation is complicated.

Here are some examples of legislation that is often ignored by police, leading to unfair charges for defendants.

Consorting laws misused and 100 people wrongly warned

Earlier this year, at least 100 people were wrongly given official warnings by police under the government’s consorting laws.

These laws were introduced to target organised gangs and to make it a criminal offence to habitually consort with at least two convicted offenders on two occasions (separately or together).

This offence comes with a maximum penalty of three years in jail or a $1,500 fine. Official police data obtained by the NSW Ombudsman showed that out of 1,260 people who were given an official warning for consorting, 200 of them either had no criminal record or no indictable convictions on their record.

Affray not just limited to wide-scale disturbances

Another commonly misapplied law is the charge of affray.

Although it is often used for minor disturbances, affray is intended to be restricted to large-scale public disturbances.

For a disturbance of a smaller nature there are other charges which are more appropriate and come with a lesser penalty than that of affray.

Using the wrong charges can lead to the prosecution not being able to get a conviction and a lot of wasted money and time, which could be spent working on serious cases.

For the defendant, charges like affray, when misused, can lead to unfairly harsh penalties and a lifelong criminal conviction.

Convicting someone of affray when they could more appropriately be given a less serious charge is unfair and can lead to them being heavily penalised.

Inadmissible evidence used in a range of different cases

Inadmissible evidence is evidence which is not able to be used in court.

If the prosecution bases their charges on inadmissible evidence, which is then not allowed in court, the case can be decided in the defendant’s favour or the charges can be withdrawn.

In a recent case, police ignored a ruling which curbed their surveillance powers and didn’t allow them to use evidence-gathering methods such as wiretaps, which are intended for serious charges such as terrorism, to gather evidence in routine police enquiries.

The evidence in the sexual assault case was thrown out.

Why do police misapply laws?

Many of the laws we have in place in NSW are ambiguous or difficult to interpret.

In many cases, this can lead to police taking advantage of any confusion or lack of clarity and laying a more serious charge when a lesser charge or even a warning would be more appropriate.

More legal training and education for police officers could have a big impact on reducing the instances of misapplied charges and inadmissible evidence being presented in court.

This could in turn lessen the number of criminal cases which are withdrawn or thrown out due to lack of evidence, and save everyone time and money.

Giving police discretionary powers without much in the way of guidance can lead to those powers being misapplied and used against people other than those for whom the laws were intended.

Unfortunately, those most marginalised in this way are often already vulnerable, including Aboriginal people, young people and those from non-English speaking backgrounds.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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