Procedure and Your Rights

Criminal law Procedure And Your Rights
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Procedure And Your Rights

What if the police want to speak to me?


There are very few questions that you are obliged to answer by law. Normally, you are required to give your name and address and produce evidence of the same if requested by the police, as long as they have certain beliefs about you.

Commonly, any person has to truthfully state who the driver of a motor vehicle was at any time. It is an offence not to answer those questions truthfully. However, you do not commit an offence if you simply don't know.

There are of course other discreet occasions where you may be lawfully required to answer questions. You should always seek the advice of a solicitor.

There are many occasions where a lawyer will advise you not to answer any questions other than to give your name and address. This is often the best course for you unless you are compelled to answer questions. Despite beliefs to the contrary, this advice is not just given to protect the 'guilty'.

In our vast experience, we do not in this day and age have the faith that your answers will be treated impartially. We have had many cases where the investigators have not properly investigated the matter and only looked to discredit what you say. It is not always just because they don't believe you. Police are understaffed and under-resourced and the reality is that your answers do not receive the due attention they deserve.

Secondly, it is our experience that the police now lack authority in many cases to adjudicate upon matters and prefer to leave it to the court to decide.

Lastly, in cases where a victim exists, we have had occasions where your answers are put to the 'victim' only to find a change of story results.

What if the police want to search my house?


You can consent to a search at any time. Any police have the power to enter and search your house in limited circumstances such as when searching for firearms or if they are pursuing a fleeing offender.

Generally, the police need a warrant permitting entry. In South Australia, police can apply for various warrants and often do in drug-related matters. Some police are issued with a General Search Warrant and can enter at any time as long as they have the requisite beliefs.

If you do not wish to consent to a search it is best to ask the police what power they rely upon for entry. Bear in mind this can be seen as a challenge by some police. If the response is less than satisfactory, then it is always best to not hinder any search and simply note what is occurring. If the search is illegal, a solicitor can always assist you later.

What if I am arrested?


If arrested, you should seek legal advice immediately. The police are obliged to give you various rights as soon as practicable after your arrest. If arrested, you are normally taken to the nearest police station and charged. If you are suspected of committing a serious offence, then the charging process can be delayed for up to 4 hours and up to 8 hours with the consent of a Magistrate.

Unless you are specifically excluded from police bail, (some warrants of arrest prevent police bail) then you are entitled to apply for bail. There is still a presumption of bail and a presumption of innocence, but these concepts are rapidly eroding in the current political environment.

There are now a number of offences where there is no presumption of bail. You are best to have a solicitor represent you in these circumstances. Generally, if you breach your bail or an intervention order, then you have to establish that special circumstances exist before being granted bail. Some firearms and serious drug offences along with organised crime have the same reversal of the presumption of bail.

In our view, the granting of bail is a very important step. If you are remanded in custody and intend to plead not guilty, then the delay for a trial can be in the vicinity of a year. That is a long time in custody before your matter is heard. The granting of bail is an important step in the process and there are many considerations that need to be taken into account before the application is made. It is essential you gain advice from an experienced solicitor – a poorly constructed bail hearing in the first place can leave you with the expensive option of seeking a review in the Supreme Court.

What is a summary offence?


A summary offence is one that is heard and determined by a Magistrate in the Magistrates Court. It does not necessarily mean that the offence is not serious.

Many offences dealt with by a Magistrate are punishable by a term of imprisonment. When you attend the first court hearing date, you are normally given a copy of the allegations and an opportunity to consider them.

If you want further documentation in order to consider your position, then we as your solicitors can arrange that.

On your second court appearance, you are usually asked whether or not you intend to plead guilty or not guilty. If you choose to contest the charge your matter is then sent to a pretrial conference where the aim is to try and see if the matter can be resolved without the need for a trial. If the charges cannot be resolved without trial, then a trial date is set where the witnesses will be called.

It is best to seek a solicitor’s help in the early stages to advise you on the merits of your plea and what documents are important. In addition, a solicitor is far more likely to be able to successfully negotiate a satisfactory result for you at the pre-trial conference stage. If the matter proceeds to trial then, in our view, a solicitor is essential.

What is a minor indictable offence?


This is an offence that is laid on a form called an 'Information'. Summary matters are laid on a 'Complaint'. If the matter is minor indictable, then you can have it dealt with in the Magistrates Court as if it was a summary matter. However, you may wish to have your case dealt with before a Judge and Jury and can elect. It is important you are advised of the benefits and downsides before making such a decision.

What is a major indictable offence?


These are matters that can usually only be finalised before a Judge alone or a Judge and Jury. All matters commence in the Magistrates Court.

On the first appearance, the allegations are provided. Dates are then set when statements are provided. Once all of the relevant material has been provided a date is set to answer the charge. A Magistrate has to be satisfied that there is a case to answer based on the evidence provided. He or she will then commit you for trial or sentence in a superior court.

Generally, you cannot get to cross-examine a witness in the Magistrates Court unless there are special reasons for so doing. Once committed to a superior court you are asked again how you intend to plea. If you plead guilty, you are dealt with before a Judge. If you plead not guilty, your matter is listed for a directions hearing. The court will want to know at that stage that all efforts to resolve the matter have been exhausted. A trial date is then set.

The process is very lengthy and delays are occasioned at nearly every stage. It is not uncommon to take longer than one year to reach the trial stage. Whether or not you are pleading guilty or not guilty, it is important you get legal advice at an early stage.

In 2014, the Legislation changed and some matters that previously had to be dealt with in the Central District Criminal Court can now be finalised in the Magistrates court. Both the prosecution and defence need to consent. It is important that you are advised of the advantages and disadvantages of such a course.

To arrange a consultation with our criminal law experts today, call our friendly team on 08 8311 3111. 

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