If a family member or friend has been charged with a criminal offence, a decision will be made about whether they should be released from police custody on bail, or whether they will be refused bail by police.
Both magistrates and judges are responsible for presiding over cases in court. Magistrates usually sit in the Children’s Court and the Local Court. Magistrates often hear shorter, less complex matters. Judges usually sit in the District Court, Supreme Court, Federal Courts and appeal courts. Judges deal with more complex matters, for example jury trials and appeals.
A form to complete a Written Notice of Pleading is usually issued by police when a person is charged with an offence and given a future court attendance notice. The form can be completed and sent to the court indicating a plea of guilty or not guilty. The court then determines the outcome based on the police documents and the contents of the form.
Generally, it is not advisable to simply complete a Written Notice of Pleading. It is preferable to appear in court in person, in order for your case to be properly presented and argued. A physical appearance also means that the Court can make orders which it cannot otherwise make in your absence.
If you plead guilty, you will then be sentenced by the court. This may or may not happen on the same day that you enter a plea of guilty. To prepare for sentencing, your lawyer will discuss with you what material should be prepared to be presented to the court. Your lawyer will make submissions on your behalf about the type of penalty to be imposed.
If you plead not guilty your matter will be listed for a defended hearing or depending on the charge in NSW, you will be committed to stand trial in the District or Supreme Court. A defended hearing date is when the court hears evidence and addresses and determines if the charge has been proved beyond a reasonable doubt.
In Australia, it is often state or federal police who lay charges. Making an allegation to police will cause decisions to be made internally as to whether charges are laid against a person/s a complaint is made about. If police decide not to lay charges, an individual can commence a private prosecution. To do this, a court attendance notice form must be completed and signed by a registrar. A court date will then be provided. It is important to consider the consequences of a private prosecution, particularly costs.
The police often hold crucial information about your case. At first, your lawyer may need to speak to police to obtain the paperwork about your charges. The police are also often involved in the investigation of a matter and are involved in collating a brief of evidence as well as making decisions about your bail. Communication between your lawyer and the police is important to the progress of your matter.
A prosecutor often has important paperwork for your case. Your lawyer may need to speak to them to obtain a copy of, for example, your criminal record. Prosecutors are also our opponents in court, so it is important that both parties discuss what will be happening that day to ensure the matter can run as smoothly as possible.
If you have been charged by police, and they have imposed bail conditions or AVO conditions which prohibit contact with your children you should seek urgent advice from a lawyer. In some circumstances, an application can be made to the court to vary the conditions imposed. Criminal lawyers often work closely with family lawyers to help in these circumstances. Working with reputable lawyers early on in both areas is usually critical to the final determination about contact with children.
If you have a lawyer acting for you, they should keep you informed about where your matter is up to and what to expect to happen next. You can also contact the court for details about the orders made on the last court date and the purpose of the next listing.
If you don’t know what is happening with your court matter, the best thing to do is speak to a lawyer. They will be able to explain where your matter is up to and what your options are.
Being charged is the process of being subject to an allegation which is to be determined by a court.
The process of being convicted comes after a plea of guilty or a finding of guilt. The court decides if a person should be convicted of an offence. In certain circumstances the court can find an offence proven and dismiss the charge or discharge an offender without recording a conviction.
In criminal proceedings you cannot be compelled to give evidence – this is commonly referred to as the ‘right to silence’. The burden of proof rests with the prosecution (and rarely shifts). This means it is up to the prosecution to try to prove the case. Exercising the right to silence cannot be used against a defendant. However there are circumstances when it is advisable for a defendant to give evidence, for example often when self-defence is being raised. The decision to give evidence or not is an important one and your lawyer can usually help you when making that decision by explaining the law to you and taking you through the advantages and disadvantages in your particular case.
Assuming you are represented by a lawyer, and you are being sentenced, a magistrate will not usually address you directly but will direct questions to your lawyer. On some occasions, a magistrate or judge may ask you a question directly. When responding to the magistrate or judge, you should stand up and try to just answer the question being asked. If your lawyer thinks there is an issue with the question an objection can be raised on your behalf.
A section 14 application (formerly section 32) is an application made under the Mental Health (Forensic Provisions) Act. It is an application to divert a defendant who has been charged with a criminal offence away from the criminal justice system if they have a cognitive impairment, mental condition or suffer from a mental illness but are not considered a mentally ill person.
Section 14’s are available for summary matters and indictable matters that are being finalised in the local court. The application requires that a magistrate apply a three-tier test, which in short requires consideration of your eligibility under the section, whether such an order would be more appropriate and if so, what orders should be made. A lawyer can explain the law around section 14 applications to you, and provide you with advice about whether you can and should make the application.
In court, if you are addressing a judge or magistrate, you should address them as “Your Honour.”
Your lawyer will let you know if you need to bring anything with you. For example, you may need to bring originals of documents.
The NSW local courts usually sit between 9.30am and 4.00pm. Local court matters are listed at 9.30am and you are expected to be at court by then. The NSW district courts usually sit between 10.00am and 4.00pm. On some occasions, your matter will be given a ‘marking’ to start at a different time of day. Your lawyer will tell you if this happens in your case.
Yes. You can lodge a licence appeal in the local court if it is a NSW matter. This application needs to be made within 28 days of receiving the on-the-spot suspension. When the application is made in court, the court will need to hear why the suspension should be lifted including your need for a licence. The test for this application is that the court needs to be satisfied that there are ‘exceptional’ circumstances.
Yes, however you must first be eligible to have your disqualification period removed. If eligible, you must then make an application to the Local Court. You should seek advice from a lawyer as to your eligibility to have your licence disqualification removed and to understand the court process.
Potentially. Some driving offences carry maximum penalties that include imprisonment. The type of penalty you receive will depend on a number of factors. The type of sentence you receive will depend on the facts of your case, your personal circumstances, criminal history and many other factors.
An offence of ‘possess prohibited drug’ carries a maximum penalty of 2 years’ imprisonment and/or a fine of $2,200 fine. The court can impose alternatives to imprisonment and fines such as Conditional Release Orders (CRO’s), Community Correction Orders (CCO’s) and Intensive Correction Orders (ICO’s).
Although the maximum penalty is one of imprisonment, imprisonment is a sentence of last resort and are not common for small possession charges. The type of sentence imposed will depend on a number of factors such as the quantity involved, the facts of your case, your criminal history and your personal circumstances.
It is possible that the court will record a conviction. The type of sentence imposed will depend on a number of factors such as the quantity involved, the facts of your case, your criminal history and your personal circumstances. However, there are options where the court can find the offence proven but not record a conviction. If you want to understand your chances of avoiding a conviction better speak to a lawyer as soon as possible so that your case can be properly prepared and argued.
Self-defence is a defence to certain offences and can be raised to provide that a person is not criminally responsible if what they did was done in self-defence. The test, in short, is whether it was necessary to do what a person did in order to defend themselves or someone else and whether the act was a reasonable response in the circumstances as they perceived them.
Police will take into account the views of the alleged victim when determining whether to withdraw charges. However, domestic violence is a subject with significant community interest. The police and the courts need to balance a number of factors when making decisions to discontinue, withdraw or dismiss charges.
An Apprehended Violence Order, or ‘AVO’, is an order prohibiting certain behaviour towards nominated protected persons. An AVO is not a criminal offence. An AVO in NSW always includes a mandatory condition to not assault, threaten, stalk, harass, intimidate, or damage or destroy property of the protected persons. There are other conditions that can apply to AVO’s.
Yes. The terms of an AVO can be varied on application by either the applicant or the defendant. If you wish to vary the terms of your AVO you will need to lodge an application form with the Court Registry. You will then receive a Court date for the variation. This form will need to be served on the other party before the listed Court date. Unless the variation is agreed between the parties, the court may need to hear evidence about why the variation should be granted. If the court is satisfied that in all the circumstances it is proper to do so, the AVO will be varied.
When an AVO is finalised, the court should specify the duration of the AVO. The specified period will be the period that, in the court’s opinion, is necessary to ensure the safety and protection of the protected person or people. If the court does not specify the duration of the AVO then the AVO is in force for the default period which is 2 years for an Apprehended Domestic Violence Order and 12 months for an Apprehended Personal Violence Order. It is open to the Court to specify that the duration of the AVO be for an indefinite period.
You can consent to the AVO being finalised without making admissions to the conduct alleged. If you do not wish to consent to the AVO being finalized, you can indicate to the court that you wish to defend the AVO. The court will then set a timetable for filing and service of the evidence of both parties and the matter will be listed for hearing. At the hearing, the Magistrate will hear all of the evidence from both parties and decide on the balance of probabilities whether to finalise the AVO.
If you do not have a lawyer, you will need to attend court to advise the court what your position is in relation to the AVO. If you have been served with the AVO but you do not attend court and you are not legally represented, the court can finalise the AVO in your absence. You may not need to attend court on the first mention date if you are legally represented and there are no related criminal charges. If you defend the AVO you will need to attend court on the day of hearing even if you are legally represented.
There are two types of AVOs. An Apprehended Domestic Violence Order is an order that is sought when the applicant and the defendant are or have been in a domestic relationship. Usually the Police apply for this type of AVO on behalf of the person who has complained of the defendant’s conduct. An Apprehended Personal Violence Order is an order that is sought when the applicant and the defendant are not and have not been in a domestic relationship. Usually the person who fears that someone will commit a personal violence offence against them is the person who applies for the AVO and Police are not involved.
If an AVO is finalised, the court will specify the amount of time the order is in force for. Assuming you comply with the conditions of the AVO, at the end of the order, the AVO will no longer be in force. However, if you breach any of the conditions of the AVO during the time it is in force, you may be charged with breaching the AVO. Breaching an AVO is a criminal offence that carries a maximum penalty of 2 years imprisonment or a $5,500 fine, or both.
A provisional AVO is the initial AVO that is taken out by Police or the protected person. It is provisional because the court has not yet made any orders. Once the AVO is heard by the court, the Magistrate may convert the AVO into an interim AVO. This means the conditions of the AVO are in place in the interim, until a final decision is made about the AVO. A final AVO is an AVO that has been ordered by the court for a set period of time.
If you have been granted bail by the police or the court, often there will be conditions attached to your bail. If you were granted police bail, the police should have provided you with a copy of your bail conditions before leaving the police station. You can request a copy of your bail conditions from the court registry.
An application can be made to the court that your matter is being heard in to have your bail conditions varied. To do so, the prosecutor needs to be out on notice of the application so that they can advise whether they will consent (agree) to or oppose the application. The application is then determined by the court.
For NSW matters an application needs to be made in writing. First, your lawyer will write to the prosecutor to find out if they will consent (agree) to or oppose the application. The application will then be filed with the court to be given a court date. If the prosecutor’s consent to the application, the court date is usually a very short appearance. If the prosecutors oppose the application, your lawyer and the prosecutors will make submissions to the court about why your bail conditions should or should not be varied.
What is a section 10?
In NSW a Conditional Release Order (“CRO”) is a sentencing option which can be imposed on someone with or without a conviction. This type of order is similar to what used to be called a good behaviour bond and is designed to be a community based order for the lowest level of offending. A CRO has two standard conditions (that a person not commit any offences and must appear before the court if required) as well as additional conditions which can be imposed if the court thinks fit.
In NSW, a Community Corrections Order (“CCO”) is an alternative sentence to imprisonment designed to assist offenders by receiving supervision in the community to address their offending behaviour and become more accountable. You must first be convicted of an offence before the court can impose a CCO and the maximum term for a CCO is 3 years. A CCO has two standard conditions (that a person not commit any offences and must appear before the court if required) as well as additional conditions which can be imposed if the court thinks fit.
In NSW, an Intensive Corrections Order (“ICO”) is an alternative to full time imprisonment and allows for a person who has been sentence to a term of imprisonment to serve that sentence under intensive supervision in the community. These orders are designed to avoid short terms of imprisonment for people by allowing offenders to address their offending behaviour in the community. You must first be convicted before the court can impose an ICO and there are some offences which are excluded such as manslaughter and sexual offences.
A fine is a monetary sentence. Some offences carry maximum fines. If you are sentenced to a fine, you ordinarily have 28 days to pay it. You will receive a letter in the mail from the court about payment methods. If you require further time to pay, there are also options in that letter about applying for further time or entering a payment plan.
Yes. If you are unhappy with your sentence you received in a NSW Local Court, you can appeal this decision to the District Court. This type of appeal is called a ‘severity appeal’. If you have been found guilty and wish to appeal that finding, you can lodge a ‘conviction appeal’. You have 28 days from the final court date in the local court to lodge an appeal.
If you are sentenced in the NSW District Court, it may be possible to appeal to the NSW Court of Criminal Appeal (‘CCA’). It is not an automatic right to appeal to the CCA.
In criminal cases in NSW, the prosecution must prove their case beyond reasonable doubt for the defendant to be found guilty. The words ‘beyond reasonable doubt’ take their ordinary everyday meaning. There is no legal definition of the phrase. It often means the prosecution has to exclude any reasonable hypotheses consistent with innocence. Beyond reasonable doubt is a higher threshold than the civil test of ‘balance of probabilities’.
In criminal matters, the prosecution has the burden of proving the guilt of someone charged with an offence. They must prove a person’s guilt of each element of an offence beyond reasonable doubt – this is an extremely high standard. Generally there is no obligation on a person who has been charged with an offence to prove anything (although there are some exceptions to this).
An indictable offence is a serious offence where the maximum penalty imposed can exceed two years. Generally, these matters are dealt with in the District or Supreme Court however, depending on the nature of the offence, they can also be dealt with in the Local Court. If your matter is a strictly indictable offence it can only be dealt with in the District or Supreme Court.
A summary offence is one that must be dealt with in the Local Court. Generally, they carry a maximum of no more than two years imprisonment. They are considered less serious than indictable offences. Some examples include – drink driving, offensive conduct and minor traffic matters.
In some instances, the one lawyer can act for co-accused. However, it is often best that co-accused have separate legal representation. If co-accused give incompatible instructions, this will mean that the lawyer is conflicted out and would only be able to act for one accused in that instance. To avoid that issue arising, it is often best to start with separate lawyers.
You should ensure that you bring all paperwork in relation to your matter to your meeting. This can include the Court Attendance Notice, facts, documents relating to bail and AVO documents. If you have photos or documents that assist your case you should bring those along to your meeting. It is a good idea to write down any questions you have for your lawyer prior to meeting with them.
A costs agreement is a document that sets out the legal fees involved in your matter. A costs agreement may refer to fixed or not-fixed fees. If you receive a costs agreement, you should read the document carefully and speak with your lawyer or seek independent legal advice if you have any questions about its contents.
If you ask a lawyer to attend a police station following your arrest, a police officer can administer you a ‘special caution’ if investigating a serious offence. A ‘special caution’ means that if you refuse or fail to tell police something that you later rely on in court, this may be used against you. It can only be given if your lawyer is present with you at the police station. Because of this, it is usually in your best interests for a lawyer not to attend the police station while you are there.
Tendency evidence refers to evidence that is sought to be relied on to try to prove that a person has a tendency to act in a particular way or to have a particular state of mind. An application for tendency evidence to be relied on is more often made by the prosecution than a defendant. The prosecution may seek to rely on tendency evidence to try to show, for example, that a defendant behaves violent when in a particular scenario and the court can rely on that evidence to suggest that the defendant also acted in the same manner at the time of an alleged offence.
The law allows for the court to take into account evidence of a defendant’s good character when assessing whether a charge has been proven beyond reasonable doubt. Good character, in legal terms, usually means that the defendant does not have a criminal record but can include other evidence about their positive attributes. This fact, if raised in evidence, can be used in two ways to assist the defendant. First, to say that a person with good character is unlikely to have committed the offence alleged. Second, to support the defendant’s credibility in the sense that they are less likely to lie about their version of events. If you do not have a criminal record and are pleading not guilty to a charge, this can be a valuable tool in the defence of your case.
In court, if you are addressing a judge or magistrate, you should address them as “Your Honour”.
Your lawyer will let you know if you need to bring anything with you. For example, you may need to bring originals of documents.
The NSW local courts usually sit between 9.30am and 4.00pm. Local court matters are listed at 9.30am and you are expected to be at court by then. The NSW district courts usually sit between 10.00am and 4.00pm. On some occasions, your matter will be given a ‘marking’ to start at a different time of day. Your lawyer will tell you if this happens in your case. Your lawyer will let you know if you need to bring anything with you. For example, you may need to bring originals of documents.
Your lawyer will let you know what time you should meet them at court. Most local court matters are listed at 9.30am so it is best to get to court before then.
For some court listings, you may be excused from attending if you are legally represented. Depending on what your matter is listed for, you may still be required to attend with your lawyer.
Dress presentably and neatly. Corporate attire such as a suit is usually advisable. If you do not own a suit, clean pants and a button up top is good.
This will depend on various factors such as what you have been charged with and where the allegation occurred. The location of the court will usually be closest to where an alleged offence occurred. You may be able to check on the NSW online Court and Tribunal registry if your court date is within the next two weeks.
If you are unwell, you should advise your lawyer as soon as possible so that arrangements can be made, and the court can be notified if necessary. You should not attend court if you have flu symptoms. You may be required to obtain a medical certificate or other evidence of illness.
How long you will be at court on a particular day will depend on a number of factors. In particular the type of listing will be the main factor. If your matter is listed for mention, your matter is likely to be finished for that day before 11.00am. If listing for sentencing it may take longer and not finish until before lunch at 1:00pm.
The main people who will be in the courtroom include: the bench (such as the magistrate or judge), a court officer, a sound recording person, a prosecutor, your lawyer and yourself.
Australia’s court system is based on ‘open justice’. All courtrooms are open to the public, except for those which are ‘closed courts.’ A closed court is usually saved for when a child is giving evidence or evidence is being given in relation to allegations of a sexual nature.
No. You should always ensure that your phone is turned off before entering the courtroom.
A maximum penalty of $22,000 and/or 12 months imprisonment applies where a person uses a recording device to record sound or images in court premises.
If the magistrate does not let your lawyer finish his or her submissions, it may be because they have read the written material provided or already heard enough from your lawyer to sentence you. Sometimes a magistrate does not require your lawyer to make oral submissions at all. This is usually because your written material alone has convinced the magistrate to deal with your matter in the way requested by your lawyer.
Yes. Courtrooms are open to the public and you can bring your family to court with you for support. You should speak to your lawyer about whether a family member will be permitted to enter the court building you are attending.
If you do not understand why something happened in court or what the magistrate or judge said, you should ask your lawyer to explain it to you. Your lawyer is there to help you and ensure you know what is happening at each stage of your court matter.
Your lawyer is in court with you to advocate on your behalf. Any substantive questions will be directed to your lawyer and your lawyer will respond. If a magistrate addresses you directly while you are being sentenced in the Local Court, it will likely be a simple question, for which a simple response is required. For example, the magistrate may ask you whether you understand the seriousness of your matter.
If a judge or magistrate asks you a question while you are giving evidence, it will usually be to clarify something you just said. You should answer any questions, as it will assist the court.
Whether you need to notify your work about being charged or convicted will depend on your specific work contract. You should carefully review the conditions of your employment contract and obtain legal advice about whether you have disclosure obligations with your employer.
Again, this will depend on the particular conditions of your employment.
In NSW, the term lawyer is a general term to describe members of the legal profession – simply, someone that can provide legal advice. A solicitor is a lawyer that is involved in the day-to-day management of your criminal matter. It is the person you will first meet with and who will take carriage of your matter. A barrister is a lawyer who is specifically trained in courtroom advocacy and can also be highly specialised to provide advice. If your matter is complex, or you would simply like a barrister to assist, your solicitor will be able to recommend you a list of barristers to choose from.
If your matter has been adjourned this means it has been listed on another date in the future. There are many reasons as to why your matter may be adjourned.
Instructions can mean a variety of things. Broadly, instructions are how you would like your case to proceed. Depending on the case, your instructions can also include your version of events about an allegation.
Your lawyer can only talk to your family about your matter if you give them permission to do so and if there is no conflict of interest.
If you are found guilty, the court is required to sentence you. Sentencing can occur on the same date that you are found guilty, or the matter may be adjourned to a later date for sentencing. The sentencing exercise requires the court to balance objective factors about the offence(s) with subjective factors about the defendant. Each offence has a maximum penalty that the court may impose.
If you are penalised with a fine, you have 28 days to pay. Following being sentenced, you will receive a letter in the mail from the court outlining the fine you have been ordered to pay. If you cannot pay the fine upfront, you can apply to the court for a ‘Time to Pay’ Order. If granted, this order allows you to pay your fine in instalments. If you receive Centrelink assistance, the instalments will be deducted from your Centrelink payments using the Centrepay program.
If you are going to be sentenced for a driving offence in NSW, it can often be beneficial to complete a traffic offenders’ program for a number of reasons. An obvious benefit of completing the program is creating safe road use habits. Potential benefits of completing a program can be that it allows your lawyer to make a submission about rehabilitation and unlikelihood of reoffending. Depending on the particular circumstances of your case, this may give more weight to considering a non-conviction outcome or otherwise a lesser penalty.
MERIT stands for Magistrates Early Referral Into Treatment. The program is aimed at defendants with substance abuse problems in order to address those issues as your court matter progresses. Your lawyer and the court will receive progress reports about your involvement in the program and a final report once you have completed it.
There are some eligibility criteria that should be looked at first to confirm whether you are eligible to participate in the MERIT program. If you are eligible, it may be advisable to complete the program if drugs are an issue in your matter.
The SMART (Self Management and Recovery Training) Recovery is an evidence-led program designed to assist with problematic behaviours such as addiction to drugs and alcohol. The program is a free group program consisting of weekly meetings led by trained peers and professionals. The program focuses on the addictive behaviour of participants and works to identify goals by setting achievable plans.
Going to court can be a stressful experience. Seeing a psychologist can be beneficial not only to assisting you in managing your court matter but also to help identify any underlying issues which may be connected to your criminal matter. For example – if your matter proceeds to sentence, we could ask a psychologist to prepare a report for the court. This report can be used by the court in deciding what type of penalty be imposed.
Being on bail means you are at liberty in the community while waiting for your matter to be finalised by the court. Being on bail often includes conditions which you must comply with. Bail conditions can include conditions such as where you must live, places you cannot go to, curfew restrictions, reporting to a police station, and many others. How strict bail conditions are will often depend on the seriousness of the charges.
If you fail to comply with your bail conditions, the police may arrest you for being in breach of bail. There is a possibility that your bail may be revoked, and you are sent into custody as a consequence of this. In some instances, where there is a breach of bail established but the prosecution do not make an application for your bail to be revoked, the court may record the breach of bail on the court file, which can be taken into account if you are ultimately sentenced for the matter that you are on bail for.
Surety is a condition that may be imposed on a person’s bail. Surety involves either an actual deposit or a promise to forfeit a set amount of cash if the defendant’s fails to appear at court. A surety condition is sometimes imposed on bail where the court determines that the defendant is a ‘flight risk’ to ensure that there is a consequence of not appearing at court when required to do so. The person who is the surety can be a nominated acceptable person or can be the defendant themselves.
The most important thing to remember if you are arrested by police is to not resist or get into a dispute with them. This applies even if you think you have been wrongly arrested. When a police officer arrests you they should tell you their name and place of duty, that you are under arrest and the reason why. You can also ask them for this information.
After you have been arrested, you will be taken to a police station where you will be given a document that sets out your rights. You should take your time to read this document. Importantly, it is your right to contact a lawyer and/or a family member or friend to let them know you have been arrested and police will facilitate this.
Police can search your premises (and any person on your premises) if they have a search warrant. If you are the occupier, police should give you an occupiers notice when they arrive. You should also make sure you ask to inspect the search warrant. It is important that you don’t obstruct or hinder police while they conduct the search. Remember, you do not have to answer investigatory questions asked by police (see below “Do I have to answer a police officer’s questions?” for some exceptions).
Police officer’s also have the power, in certain circumstances, to enter your premises if they believe a domestic violence office has or is being committed. In such circumstances, a police officer can ask to be invited into your residence and remain inside to investigate.
Police can (without a warrant) stop, search and detain a vehicle if they have reasonable grounds to suspect the vehicle:
If, on review of the evidence about the police search, it is clear that the search was unlawful your lawyer may be unable to have evidence of anything seized excluded from your case.
Police can also search you (without a warrant) if they have reasonable grounds to suspect that you might have on you:
You should ask the police the reason for the search and whether it is voluntary. You should make clear that you do not consent but it is important to follow a police officer’s direction and not resist if they declare they will be conducting the search regardless.
When conducting a search police can pat you down on the outside of your clothes, ask you to remove your jacket, shoes, socks, hat etc, run an electronic device over you or ask you to open your mouth. If police ask for permission to search your phone, do not consent and do not give your password (unless they have a specific court order requiring this). Police can only strip search you in public if they have reasonable grounds to suspect that it is necessary and the circumstances are serious and urgent. As far as practicable, they must tell you if they require you to remove clothing and why, conduct the search as quickly and privately as possible and be of the same gender. If you are between the ages of 10 – 17 or have an intellectual disability police must make sure a parent/guardian or another person is present as well.
When you are arrested and taken to a police station, your personal belongings (including your phone) will generally be taken and held by police while you are in custody. Before police start any investigation or questioning, you have the right to contact a friend, relative, guardian or lawyer to inform them of your whereabouts, and have them attend the police station if that is what you would like.
After you have been arrested, you have the right to speak to a lawyer to get advice about whether or not you answer police questions. In NSW, if you ask a lawyer to attend the police station, a police officer can administer you a ‘special caution’ if investigating a serious offence. The effect of a ‘special caution’ is that, if you refuse or fail to tell police something that you later rely on in court, this may be used against you. Because of this, it is usually in your best interests for a lawyer not to attend the police station while you are there. As soon as you are charged and either released, or if bail is refused kept in custody, you can make an appointment to speak to one of our lawyers about what has happened.
If you have been arrested by police you do not have to answer any questions a police officer may ask about the offence for which you have been arrested (or anything else). A police officer should inform you of this and also warn you that anything you say to them may be used in evidence against you. It is a decision for you about whether you answer a police officer’s questions. We always recommend seeking legal advice before speaking to police. You should advise police that you wish to speak to a lawyer before you answer any questions. Generally, we advise that you should exercise your right to silence however each case is different and it is important to get legal advice about this.
Generally you are not under any legal obligation to answer Police questions. However, there are some circumstances where you have to answer a police officer’s question. Some examples include:
It is important to remember that if a police officer stops you to ask for your name or address they must give their name and place of duty, explain why they are asking and give a warning that it can be an offence not to comply.
Beyond these specific and narrow circumstances it is generally best to exercise your right not to speak with police until you have spoken with your lawyer.
A police officer can ask you to disclose your identity if:
The court or DPP (depending on the jurisdiction) can arrange an interpreter for you free of charge. You will need to notify your lawyer or the court that you require a lawyer and what language.
NSW Courts endeavour to provide assistance for people with physical disabilities. If you do not have a lawyer, you can contact the court registry in advance of the date you need to attend and ask them to provide you with assistance such as hearing loops, wheelchair access, support people, interpreters and large print documents.
The Justice Advocacy Service (JAS) is run by the Intellectual Disability Rights Service (IDRS). This service supports people with intellectual disabilities that come into contact with the justice system such as victims, witnesses, suspects or defendants. This service is available across NSW 24 hours a day, 7 days a week on 1300 665 908. It is recommended that you contact JAS well before your court date so that the appropriate assistance can be arranged.
It is very useful for your lawyer to know if you have a mental illness. The court can take into account your mental health issues in determining the best way to deal with your matter. This can sometimes mean diverting you away from the criminal justice system and into mental health treatment. Your mental health will also be relevant if the court is sentencing you for an offence and can reduce any sentence that you may receive. If your lawyer is aware of your mental illness, they can ensure that the court is properly aware of your mental health issues and can appropriately consider your mental health when finalising your matter.
A jury is a group of usually 12 people selected at random from the community who will hear all of the evidence in a trial and then as a group decide on a verdict of guilty or not guilty. Before hearing the evidence in a matter, jurors must either swear an oath or give an affirmation to deliver a true verdict in accordance with the evidence.
If you plead not guilty and your matter is listed for trial in the NSW District or Supreme Court, a jury will hear your matter unless you successfully elect for your matter to be heard by a Judge alone. If you plead not guilty and your matter is dealt with in the NSW Local Court it will proceed to a hearing before a Magistrate only and no jury will be involved.
If your matter is going to be heard by a jury, there will be a process called ‘empanelment’. Empanelment occurs with a pool of potential jurors being brought into the courtroom. The judge will then give a short summary of what type of matter it is, and the names of the lawyers and witnesses involved. At this point, there will be an opportunity given for you to speak up if you know anyone on the jury, or if the potential jurors know anyone in the room or names that have been mentioned.
You should not discuss the matter or your evidence with other witnesses either before or during the trial or the hearing of the matter.
If you are required to attend court as a witness you should be served with a subpoena that will provide you with the time and the date you will be required to attend court and the court location. If you are concerned about the evidence you will have to give in court, you may like to consider getting independent legal advice. There are support services available for prosecution witnesses including Victim’s Services (P: 1800 633 063) and the Witness Assistance Service (for matters that are being prosecuted by the Office of the Director of Public Prosecutions).
A prosecution witness is usually someone who has spoken to police in relation to a matter and provided a statement about what they witnessed. Prosecution witnesses generally include both police and civilians. If your matter is contested, the prosecution will, generally, ask these witnesses to come to court and give evidence. You can find out who these witnesses are by looking in the police brief and there is a section which lists the witnesses. If you are unable to locate the witnesses, the officer-in-charge of your matter will know who they are.
People in gaol can make telephone calls and have contact visits with family and friends during scheduled hours. You should contact the specific correctional facility to organise how best to book in a telephone call or face-to-face visit. You can also send mail to someone in gaol by addressing a letter to the recipient and including their MIN number (if in a NSW facility). You should contact the specific correctional facility to confirm the correct postal address.
You should contact the person you know in gaol and ask whether they have access to their medication. If they do not, they should speak to Justice Health to ensure they are prescribed necessary medication. You could also contact Justice Health directly, however they may be unable to disclose certain information unless you are authorised to speak with them.
Community Corrections is a government department that engages with offenders at the pre-sentence and post sentence phase of their matter. Community Corrections provides pre-sentence reports (sentencing assessment reports) to assist the court in sentencing an offender. Community Corrections also supervise offenders in the community while they complete their Community Corrections Order or Intensive Corrections Order to ensure compliance. They can also direct offenders to participate in community-based inventions or personal development which address offending behaviour.
The way in which supervision will impact your life will depend on the requirements of Community Corrections. Community Corrections may require that you engage in ongoing treatment, complete community service hours or be available for regular check-ins. After having been sentenced, you will be required to report to Community Corrections within a certain timeframe. You should seek to understand your obligations with Community Corrections during your first appointment.
Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.
Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.
Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.
At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.
Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.
Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.
As leaders in criminal defence, we know that every story has two sides. We defend yours.
Get in contact with us today or feel free to call us at 02 9696 1361 (Sydney), 02 5104 9640 (Canberra), or 08 6255 6909 (Perth) and find out how we can help you.