S&B Lawyers sign agreement with Diageo Australia

Sylvester & Browne Lawyers to provide liquor licensing advice to Diageo Australia 

The directors of Sylvester and Browne Lawyers are proud to announce that the firm has been selected to provide specialised liquor licensing advice to Diageo Australia. Diageo plc is a British multinational alcoholic beverages company headquartered in London. Diageo is also the world's largest producer of spirits and a major producer of beer and wine. Diageo's major brands include Smirnoff vodka, JohnnyWalker Scotch Whiskey, Baileys liqueur, Guinness stout and Jose' Cuervo tequila.

When commenting on the agreement, Sylvester and Browne Lawyers' Managing Director Mr David Sylvester said, "We are extremely pleased to have been selected to provide liquor licensing advice to Diageo Australia. Not only is Diageo a worldwide leader in their field, they are also at the forefront of industry efforts in relation to the promotion of responsible alcohol consumption. We look forward to providing specialist advice and legal representation to the Diageo Australia team for the foreseeable future."

PIC hypocrisy at its highest

See the link below for an article outlining that the hypocrisy of the Police Integrity Commission (PIC) appears to know no bounds.

http://www.theaustralian.com.au/news/former-police-integrity-commissione-john-pritchards-downfall-shrouded-in-secrets/story-e6frg6n6-1226534837469

Considering that this particular PIC inquiry was (among other issues) investigating the alleged improper release of information to the media by senior Police, it's quite ironic that the PIC Commissioner Mr John Pritchard himself was found to have illegally provided confidential material to the media.  Contrary to the treatment dished out to the veteran NSW Police Superintendent who was the subject of the inquiry, Mr Pritchard was simply allowed to resign from his next appointment as head of the Australian Crime Commission rather than face criminal charges for breaching the PIC's secrecy provisions. According to the report, the PIC Inspector found that Pritchard had apparently "paid a high personal and professional price for his actions". Please.

Even more disturbing is the journalist's reference to the fact that the PIC Inspector's report found that the PIC's current No.3, Michelle O'Brien had apparently joked with Pritchard about the leak of confidential information. The total disregard of the privacy of those individuals involved in this matter can only be described as appalling. And all of this to make the beleaguered PIC "look better"! If O'Brien was complicit in the release of confidential information, surely her senior position at the PIC is untenable. Time for action Mr Premier.

Xmas and New Years greetings

The Directors of Sylvester & Browne Lawyers wish a very merry Christmas and prosperous new year to all of our clients (& their families) and to those who have provided assistance to the firm throughout 2012. We are excited about what 2013 holds for our existing clients including the successful culmination of several large cases.

We hope that you enjoy the holiday break and return to work stress-free in 2013.

Warm wishes

David Sylvester & Stuart Browne.
Directors

    

AHA Golf Day photos

Below are a few photos from the AHA NSW Golf Day held at Strathfield GC last Tuesday the 10th of December 2012. More photos to follow over the next week.

 

Director - Stuart Browne in full swing

 

Peter McIntyre (NSW GC) lining up.

Sylvester & Browne Lawyers sponsor AHA (NSW) Golf Club Golf Day

Sylvester & Browne Lawyers sponsor AHA (NSW) GC Golf Day

Sylvester and Browne Lawyers are proud to announce that they will sponsor the NSW Australian Hotels Association GC (NSW Branch) Golf Day on Tuesday the 11th of December 2012 at Strathfield Golf Club. The event will be a shotgun start commencing at 12pm. The event will be followed by the annual Xmas dinner at 6pm.

"We are very proud to be associated with the NSW AHA Golf Club for this years final event before Xmas" said Mr Stuart Browne, Director of Sylvester & Browne Lawyers. "We are really looking forward to the day and hope to be involved for many years to come".

There are a few spots still available, so if you are interested in attending let us know. Hope to see you there.  

Legal quote of the month

An unjust law is itself a species of violence. Arrest for its breach is more so.
Mahatma Gandhi

Client charged with Drug Supply receives section 10 dismissal

Sylvester & Browne Lawyers obtain another Section 10 Dismissal

Greetings readers.

This week we are proud to report that we successfully achieved a section 10(1)(b) dismissal and conditional discharge (under the Crimes (Sentencing Procedure) Act 1999) for a client charged with Supply and Possession of Ecstacy. In our view, the sentence was entirely appropriate, especially considering the young age of the client, his future prospects and lack of antecedents. As acknowledged by the investigating Police, upon arrest the client admitted his wrongdoing, accepted full responsability for his actions and assisted Police with their inquiries. The client was certainly aware that his actions had been foolhardy and had the potential to land him in gaol for a considerable period of time. Thankfully, he is now free to continue his studies and hopefully someday secure his dream job.

Notwithstanding that our client pleaded guilty to the offences, the case also raised some interesting issues in relation to Police arrests and their associated powers under the Law Enforcement (Powers and Responsibilities)  Act 2002. (LEPRA)

Whilst many in government and society generally appear to be committed towards providing Police officers with the powers necessary to investigate, arrest and place offenders before the courts, we as citizens must strive to ensure that the powers given to Police to achieve these goals are not misused or 'bent' via noble-cause policing. This case in particular served to highlight the fact that Police sometimes use their powers to search (eg. under s. 21 of LEPRA) and arrest persons (under s.99 of LEPRA) in an improper manner. For example, a Police officer must not attempt to search a citizen (without warrant) unless the officer suspects "on reasonable grounds" that the person has something in his possession or under his control that has been stolen or otherwise unlawfully obtained OR anything used or intended to be used in connection with the commission of a relevant offence OR a dangerous article in a public place OR a prohibited plant or drug. The mere fact that it is 4am in the morning and the approaching Police are outnumbered is NOT sufficient to stop search and detain or arrest a group of male persons walking in the vicinity of a shopping centre. The Police must suspect on reasonable grounds that one of the above circumstances is applicable before they deprive people of their liberty. This is a cornerstone of what we as members of society expect from the law and those who enforce it. Stopping, searching and detaining youths simply because the Police are outnumbered is both illegal and unjustified. If we acquiesce to the erosion of our civil liberties in this fashion, it is a just a matter of time before this type of Police behaviour becomes commonplace and accepted. I'm not saying for a minute that Police should be put into situations that may be unsafe. However, Police officers must work within the constraints of their powers as outlined in the statutes, otherwise the freedoms that we enjoy as a society will disappear.                    

Pubs "taking burden of law enforcement"

Article published in The Shout online magazine on Fri, 21/09/2012.

Pubs "taking burden of law enforcement"

By Clyde Mooney
Industry concerns have surfaced following the NSW Premier Barry O'Farrell's announcement on Tuesday of a raft of measures to tackle problems in the Kings Cross precinct.
The suite of initiatives includes an increased police presence and powers and improvements in public transport, but most significantly includes a precinct-wide linked ID-scanning system.
Sylvester & Browne Lawyers principal David Sylvester told TheShout the onus is increasingly being put on the operators to take on the burden of law enforcement.
"The cost issue doesn't resonate well with critics, but venues have already put in a number of initiatives to address this problem – how much more will they be expected to do?
"Each machine needs an operator, as well as additional security to protect them. The costs are significant."
Sylvester's firm represents a number of hospitality clients in the Oxford Street and CBD precincts, and he says these clients are "far from happy about the ramifications of such proposals and their potential to affect other city venues".
TheShout's story on Wednesday quoted support by the AHA (NSW) for the new measures, with CEO Paul Nicolaou describing them as "practical measures that directly target those people doing the wrong thing, not the 99.9 per cent of people who come to the Cross for a good time".
An AHA spokesperson yesterday reaffirmed this position, telling TheShout that "discussions have been held regularly with the nine AHA members in the Cross over the last few weeks".
The spokesperson declined to speculate on the proposed ID-scanning system at this stage.

Legal Quote of the Month

Justice may be blind, but she has very sophisticated listening devices. ~Edgar Argo

Our client Andrew McGrath on Ch 10 News

Thursday 21 June 2012 - News story regarding our client Andrew McGrath.

Network 10 (Sydney) reporter John Hill investigates the failure of NSW Police management to adequately protect it's own Police officers from toxic chemicals contained in the main Sydney Police Centre - Drug Exhibit Vault. See the YouTube video clip below where John Hill reveals that a similar exposure to toxic chemicals occurred at the Gosford Police Station drug exhibit room in 2007. As a result of that incident, a large number of Police were classified as Hurt on Duty and at least two officers have been medically discharged from the Police as a direct result of that particular incident. Interestingly, shortly after the Gosford Police Station incident, NSW Police management made a number of changes to the Gosford Police Station drug exhibit area including the installation of a large exhaust fan (see video). The revelation of the Gosford toxic exposure makes a mockery of the claims by NSW Police Management that they are not liable for the injuries of our client Mr McGrath some two years after the first event. Mr McGrath and several other Police look forward to the determination of the workplace health and safety breach lodged by WorkCover against the NSW Police. If you are a Police officer who has been exposed to toxic chemicals or injured as a result of working in a NSW Police Drug Exhibit room, please feel free to contact the undersigned to discuss your legal options.          

http://www.youtube.com/watch?v=DueC_jKkAis

  

Legal Quote of the Month

 Laws are like sausages. It's better not to see them being made.

Otto von Bismarck (1815-1898)

NSW Liquor Licensing - Three Strikes Scheme now in place.

All licensees and owners should be aware that the NSW Government’s 'Three Strikes' scheme, which is aimed at rogue operators who place staff, community and patrons at risk by permitting intoxication, violence or illicit drug use on their premises, came into effect on 1 January 2012.

The OLGR recommend that venue operators visit the website of the Office of Liquor, Gaming & Racing (OLGR) which provides updated information about the 'Three Strikes' scheme including a new fact sheet listing the types of offences that might trigger a strike. The link is www.olgr.nsw.gov.au/liquor_3_strikes.asp. 

If you have any questions, don't hesitate to contact our office on (02) 8251 0096

More updates coming soon!

Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103

Hi readers,

This week we take a look at the recent amendment to s.198 of the Law Enforcement (Powers and Responsibilities) Amendment Bill 2011.  This short Act (it only has three sections) relates to 'move along directions' given by Police to intoxicated persons.  Previously, a person had to be in a group of at least 3 intoxicated persons for a move along direction to be given. The effect of the s.198 amendment is that the direction can now be given to an intoxicated person on his own.

Why the Police would request such a change to the legislation is bewildering to say the least. Section 197(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 already provides a multitude of circumstances where Police can issue a move along direction to a person if that person is obstructing traffic or other persons, intimidating or harassing other persons or likely to cause fear to another person. Similarly, s206 of the same act authorises Police to detain intoxicated persons if they are behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property. Are we to assume, as members of the public, that the Police were not in a position to effectively deal with a lone intoxicated person without changing the legislation?          

It will be interesting to see whether we start to see an increase in convictions (or penalty notices) for breaches of move along directions under s.198 in the next 6-12 months. As a lawyer, I am concerned with the increased potential for abuse of 'move along'  powers by some Police. There is no doubting that these laws provide a useful mechanism for Police when dealing with those in our society who are violent or who harass and intimidate others. However, previous failures by overzealous Police to use these powers objectively need to acknowledged and addressed by the Police heirarchy rather than simply sweeping the incidents under the carpet. In short, these laws should be monitored by the NSW Ombudsman to ensure that abuse is reduced through the implementation of appropriate checks and balances.

One can only feel sorry for the lonely or hapless drunk who fails to comply with the direction and ends up with a sizable fine.

David Sylvester

Solicitor Director

    

Denlay's Case - The use of illegally obtained material by the ATO.

The recent Federal Court case of Denlay v Commissioner of Taxation (see link below for full transcript) held that amended assessments by the Commissioner (ATO) based on illegally obtained information supplied by a third party, were valid assessments under the Income Tax Assessment Acts. The taxpayers (Kevin and Mirja Denlay) had argued that the amended assessments were tainted with jurisdictional error due to 'conscious maladministration' by the tax office.

In short, the case involved a situation whereby the Commissioner had issued an amended assessment to the taxpayers for the years 2002-2007. In preparing the amended assessment, the Commissioner utilised documents sourced from a third party who had illegally obtained the information from his employer. The taxpayers argued that the ATO had breached s400.9 of the Criminal Code 1995, and as a result, the amended assessments should be invalid pursuant to s175 of the ITAA 1936.

However, the full Federal Court found that the Commissioner had a duty to determine the taxpayer's taxable income from 'returns and from any other information in his posession or from any one or more of these sources'. As such, the Commissioner or any authorised officer was to have at all times full and free access to all buildings, places, books, documents and other papers for any of the purposes of the ITAA 1936 & ITAA 1997, pursuant to s166 & s263(1) of the ITAA. It was clear to the Federal Court that when the ATO officers obtained the documents, they were acting for the purposes of the ITAA 1936 & ITAA 1997 and for no other purpose. Similarly, their actions had not been in 'bad faith' and as such, did not amount to conscious maladministration.

This case clearly demonstrates the ATO's very broad powers under s.166 and s263(1) of the ITAA 1936 which effectively allows for the use of materials from various sources (both legal and illegal) to determine amended assessments.  

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2011/63.html?stem=0&synonyms=0&query=Denlay

David Sylvester
Solicitor Director

Precinct Safety Assessments

Greetings one and all.

Welcome on board to those organisations in the Liquor & Gaming industry who have taken up our offer to provide 'Precinct Safety Assessments' in line with the recent Precinct Liquor Accord requirements. If you haven't attended to your assessment as yet and would like our assistance in developing your Hotel/Club safety strategy, feel free to give us a call at the office or on the mobile telephone.

Don't forget those fateful words of Winston Churchill who said, "He who fails to plan, plans to fail".

Best regards

Dave Sylvester
Solicitor Director