Legal Cases David H. Cohen and Co have Won
CASES THAT WE HAVE WON
We have a proven record in representing clients in a number of areas. This article serves as a sample of some of the cases we have won. As many cases are confidential we have summarised the facts without citing the Case Name.
Our BLOG Articles give details of how these and similar cases are prepared and presented to the Courts.
CRIMINAL LAW
In AVO proceedings, the Police use standardised terms for the victim and the alleged perpetrator.
AVO = Apprehended Violence Order
ADVO = Apprehended Domestic Violence Order
PINOP = Person in Need of Protection
AVO
i. FACTS: Client and the PINOP were in a de facto relationship. Police had to attend the home to keep the peace in the past. PINOP applied AVO alleging fears and intimidation by the client. AVO was subsequently issued. On one occasion, PINOP showed up at the client’s usual dining place, knowing that our client would be there so that she could report our client to the Police for a breach of the AVO.
RESULTS: The Magistrate stated that he was not satisfied that the breach of AVO had been proved beyond reasonable doubt. In relation to the AVO, the Magistrate accepted our submissions and dismissed the AVO.
The Magistrate when he dismissed the AVO stated that he did not want the client to be subject to further Court proceedings and that the Court and AVO should not be used for leverage in family law proceedings. He did not believe it was necessary for an AVO to be made in any event.
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ii. FACTS: Client and the PINOP were in a long term de facto relationship with two children. At separation, PINOP alleged physical and verbal abuse during the relationship and an AVO was issued by the Police listing the PINOP and the children as Protected Persons.
RESULTS: We made submissions that the PINOP’s evidence should be limited and that her only witness should be excluded. At the conclusion of the Hearing, the Magistrate found that the evidence was not sufficient to establish reasonable grounds on the balance of probabilities to warrant an AVO to be made against our client. The AVO was dismissed.
2. ILLEGAL DRUGS
i. FACTS: Client was of a foreign national and could not speak any English. Instructions were taken through multiple interpreters as he spoke the dialect of an isolated community and his interpreter translated into another dialect which another interpreter then translated into English. Client was charged with importation of large commercial quantity of illegal drugs with four co –accused.
RESULTS: Our barrister highlighted the inconsistencies in the prosecution case and the lack of evidence in relation to our client. No conviction was recorded and our client was released back to his country.
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ii. FACTS: Young client had a mental condition coupled with a long history of substance abuse. He was charged with 2 breaches of Section 10 (Good Behaviour Bond) and Possess Prohibited Drug. He had already been refused bail for Break and Enter and Steal and Goods in Custody.
RESULTS: We were able to obtain an Expert Report from an experienced clinical psychologist to assist the client on his sentence by giving evidence of his willingness to undertake treatment and rehabilitation and the prospects for him to commit to a positive future without illegal drugs. We successfully argued for our client’s bail to be continued and that he not serve gaol time. After completing the rehabilitation program, when he sought employment, the Expert Report assisted him so that he now has a long-term salaried job with a large corporation.
3. UNAUTHORIZED FIREARMS
FACTS: Our client was found to have illegal gel blasters, an antique gun without a licence and knuckle dusters he had bought as a decoration overseas. Our client was looking at up to 10 years in gaol.
RESULTS: As we could not appear in Court during COVID-19 we wrote detailed submissions concerning each charge, emphasising our client’s sentimental attachment to his father’s antique gun and that our client had no criminal intent in owning the gel blaster which he had purchased in Queensland where they are legal. Our written submissions were accepted and our client did not receive any gaol time and instead received fines for the charges.
4. BAIL APPLICATION
FACTS: Client had been released on parole and while on bail was arrested and charged by the Police for having drugs and cash in his car.
RESULTS: We lodged a Bail Application for our client. The Police opposed the client being granted bail due to the serious nature of the charges of having drugs and cash which they alleged was proceeds of crime. We had to show-cause why the client should be granted bail which we did successfully by taking detailed instructions from our client, analysing the Police charges and highlighting where they could not be sustained. We also worked out conditions for bail which would be achievable by our client and acceptable to the Police and the Court such as surrendering his passport and residing at his parents’ home.
5. SEXUAL ASSAULT
FACTS: Our client was facing deportation after being falsely accused of sexual assault by a relative who was using the allegation to extend her stay in Australia and attain residence.
RESULTS: We wrote S91 and S93 Submissions (admissibility and use of evidence according to the Evidence Act 1995) to successfully defend our client with all charges dismissed.
TAX LAW
6. CONSPIRACY TO DEFRAUD THE COMMONWEALTH, MONEY LAUNDERING & DEAL WITH PROCEEDS OF CRIME
i. FACTS: Agius v R [2019] NSWCCA 114, client was charged with conspiring to conceal money and defraud the Commonwealth; money laundering and dealing with property knowing that it was the proceeds of crime
RESULTS: Convictions were quashed and client was acquitted.
7. CONSPIRACY TO DISHONESTLY CAUSE A LOSS TO THE COMMONWEALTH
ii. FACTS: S91/S93 Submissions in a Committal to bring our client to trial for money laundering and knowingly using money that was proceeds of crime.
RESULTS: We successfully argued for the prosecution’s forensic expert to be cross-examined at committal which highlighted that the prosecution evidence could not establish the quantum of the tax loss which was one of the bases for the Magistrate dismissing the charges.
8. FRAUDULENTLY LODGING BAS WITH ATO
iii. FACTS: Client was charged with lodging Fraudulent Business Activity Statements with ATO with a tax infringement of under $1,000,000. Client was diagnosed with schizophrenia.
RESULTS: We successfully made submissions that client did not have capacity to either enter a plea or submit to a trial. Case was no-billed, client has no conviction.
FAMILY LAW
9. PROPERTY
i. FACTS: Client was in a de facto relationship of 5 years. Former partner made allegations of domestic violence and claimed incapacity to work.
RESULTS: We successfully argued to discharge an oppressive Spouse Maintenance Order where former partner had lied about employment and health as well as successfully removing Caveat on the Former Matrimonial Home.
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ii. FACTS: Client was a mother of three young children. She had been financially reliant on the husband since the date of the marriage.
RESULTS: We successfully settled property dispute without going to a Final Hearing where the client was able to purchase a new home for herself and the children as well as orders for Superannuation Splitting.
10. FAMILY COMPANY & TRUST in PROPERTY SETTLEMENT
FACTS: Our client had made no initial financial contribution to the couple’s property pool. Her husband’s income had increased exponentially during the course of the marriage while our client cared for the children full-time. The husband and wife were also directors of the family’s company.
RESULTS: Our client received over 50% of the property pool with Consent Orders that provided for her to receive cash payment, half the superannuation of the parties, half the amount in their joint bank account, as well as having no liability for any tax or other obligation of the parties with the husband agreeing to a Deed of Release so that the wife was no longer a director of the company. The Court accepted the Child Support Agreement and Spouse Maintenance Agreement which provided for the family’s needs until the children completed school.
We also successfully argued to the Court that the Orders should be made immediately as the wife needed to pay for a home urgently so that the children could be settled for the new school year.
11. PARENTING – RELOCATION
i. FACTS: Acting for the Mother, a victim of domestic violence who had an AVO in place in protection of the Mother and her a young child with health issues. Later during the proceedings, an AVO was made in protection of the child against the Father. Father remarried with a new born child.
RESULTS: We successfully argued for Orders that allowed the Mother sole parental responsibility and for the Mother to relocate to Europe.
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ii. FACTS: Acting for the Father, where the Mother was seeking to relocate with the young child of 2 years old as well as making an application for substantial spouse maintenance if her relocation application was not granted.
RESULTS: We successfully argued for the Mother’s relocation application to be dismissed and for orders to be made for the child to spend overnight time with the Father as well as having the spouse maintenance reduced. When the Mother appealed this decision we were successful in having the Mother’s appeal dismissed.
12. PARENTING – DOMESTIC VIOLENCE & RISK TO CHILD
FACTS: We appeared for a Mother of a young child with psychological issues. Although there had been a long history of severe domestic violence, no AVO had been made for the Mother’s protection.
RESULTS: We successfully argued for a no contact Order which was sustained when the non-residence parent appealed against the original decision which was dismissed by the Full Court of the Family Court. The Mother was protected and the Father how had so violently assaulted her that she had permanent hearing loss and a broken jaw, could not contact her any in way and could not no her whereabouts.
In a number of cases we have successfully argued for the offending parent to only spend supervised time with the children.
13. PARENTING – RISK TO CHILD of SEXUAL ASSAULT
FACTS: We appeared for the Father against whom the Mother had made false allegations of sexual abuse of the Father to the children.
RESULTS: We successfully had the children removed from the AVO so that the Father could spend time with the children.
We always work to prioritise the best interests of the children and the safety of all parties. We have appeared in a number of cases where a parent will make false allegations of sexual assault or some sort of violence that has not occurred.
It is important that the Family Courts and the Local and District Courts are not used to score points against the other parent. Children have a right to know both parents unless there is a danger of physical, emotional or sexual assault.