Both magistrates and judges are responsible for presiding over cases in court. In Western Australia, the main difference between a judge and a magistrate is the court level they preside over: judges work in higher courts like the Supreme Court, handling the most serious cases, while magistrates work in the lower Magistrates Court, dealing with less serious offenses.
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.
Depending on your situation, the case against you will often appear overwhelming. This does not mean you should accept the charges as soon as you go to court. The discretion to charge you and which offence/s to charge you with lies with the investigating officer.
When the facts are reviewed, it is often the case that the disclosure will reveal that the charges preferred are incorrect as to type and should be negotiated. A negotiation could result in the downgrade of a charge (for example: assault causing bodily harm to common assault) or a complete discontinuance.
An experienced criminal defence lawyer knows exactly what to look for in disclosure, to make these submissions on your behalf, and to negotiate the best outcome for you.
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 start a private prosecution in the Supreme Court, you must file and serve an originating summons or motion. 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 Violence Restraining Order (VRO) 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.
All charges, regardless of how serious they are, start in the Magistrates Court. The first appearance is usually administrative. The purpose of the first hearing is to confirm your details, outline the charges or issues before the court, and check whether you have legal representation. In almost every case, no evidence is heard at this stage and the matter will likely be adjourned for a period of 6 weeks to enable you to seek legal representation.
If you are on bail for the charges, your bail will likely be extended on the same terms that the bail was set. The prosecutor can, however, make an application to impose additional conditions depending on the charges. Similarly, a Magistrate could also impose stricter bail conditions if they believe it is necessary to do so.
If you appear whilst on remand, you will remain remanded in custody until such time that a bail application is made. A bail application can be made at your first appearance where you will appear from custody and will be brought before a Magistrate.
If you are required to attend court, there is no rule that requires you to have legal representation. However, having a lawyer to appear on your behalf is important for a number of reasons. It ensures that your rights are protected, that you are adequately prepared, and the court hears the strongest possible arguments having regard to the law.
The process of preparing for court can be stressful and overwhelming. It is often the case that a minor detail could be overlooked which could have considerable adverse impact on the outcome if not appropriately addressed.
An experienced criminal lawyer will ensure you receive the correct advice and thoroughly prepare your matter to overcome any obstacles you may face. It will also have an impact on the quality of the submissions made to the court which can have a considerable bearing on the outcome of your matter.
Missing a court date can have serious consequences. The court may issue a warrant for your arrest, impose penalties, or deal with the case in your absence.
Some matters can be dealt with in your absence, and it is important that you attend. A court that hears a matter in your absence can record a conviction which could be disastrous if you require a spent conviction.
If you are bailed to a certain date and part of your bail is surety bail, your failure to attend court will see that the surety is forfeited to the State.
The court can also issue a bench warrant for your arrest. If a warrant for your arrest is issued, the court will take that into consideration when considering any argument to support bail in the future. As bail is inherently an assessment of risk, and a failure to attend court when required impacts on the courts’ assessment of your capacity to adhere to bail and attend court when required.
If you cannot attend, you should speak to a lawyer immediately to see if alternative arrangements can be made.
For minor matters in the Magistrates Court, a lawyer may be able to appear on your behalf. This is particularly in circumstances where the accused is on a notice to appear and will be excused if legally represented.
If you are bailed to a date and required appear, you will generally have to appear at court. If you cannot attend (e.g., you are in hospital), your lawyer can appear on your behalf and request you be excused if there is a reasonable excuse. You will have to provide documents to the court to corroborate your reason, and it is likely that someone from the court will contact the person providing that documentation to verify or confirm its authenticity.
For more serious criminal charges, hearings involving witnesses, or matters in the District or Supreme Court, you will generally need to attend in person. Failure to do will likely result in the matter being adjourned to another date and/or a bench warrant issued for your arrest to be brought before the court.
It is important that you dress respectfully, however, this does not mean you need to go and buy a brand-new wardrobe. It is important that anything you wear is respectful (i.e., smart casual). It is also important to have your clothes are free from slogans or anything offensive.
It is also important that you arrive on time and make sure your phone is switched off before entering the courtroom.
Once you enter the court, there will be a court officer seated in a white shirt. If you are appearing by yourself, it is important you check your name with the officer to ensure that they know you are attending and to call your matter on. If you are appearing with a lawyer, they will do this for you.
All initial court matters take place in the Magistrates Court of Western Australia. Magistrate Court locations across Western Australia include:
Metropolitan Magistrates Courts:
a. Perth (Central Law Court)
b. Armadale
c. Fremantle
d. Joondalup
e. Midland
f. Rockingham
g. Mandurah
Regional Magistrates Court (this is not an exhaustive list, but shows locations which also have a District Court registry:
a. Albany
b. Broome
c. Bunbury
d. Busselton
e. Carnarvon
f. Derby
g. Esperance
h. Geraldton
i. Kalgoorlie
j. Karratha
k. Kununurra
l. South Hedland
There are other regional locations, however they do not necessarily sit every day.
Court usually starts at 9:30am and finishes at 5:00pm. The court will adjourn for a lunch break between 1:00pm – 2:15pm.
Depending on your matter, you may be called on early or later in the list. It is necessary that all matters that are listed to be heard that day are completed. Because of this, longer matters, such as sentencings, could be recalled after the lunch break.
If the matter is too complex, such as bail applications or matters that require further consideration from the court, it may be adjourned to a different date at which time you will be required to attend again.
It is best that you plan to arrive at court early and in addition, plan to have your day cleared. This is important in situations where your matter is not called on early or in situations where your matter is stood down until the afternoon list.
Once a court date is fixed, it is generally fixed for that date. However, your lawyer can make an application to request that your court date be changed.
The court will not accept mere inconvenience as a reason to change a court date. There must be a valid reason. A valid reason could be that you have a medical appointment or are away for work (e.g., FIFO). If a situation similar to this arises that will impact your attendance, your lawyer can request that the date be brought forward. You will generally have to show evidence to support your application.
The courts are equipped with many support services to assist you and your support network in navigating the court system and providing any necessary support. Some of these support networks include:
Yes, you can challenge a driver’s license suspension in Western Australia by first addressing the reason for the suspension and then potentially applying for an extraordinary license if the suspension is due to demerit points or an infringement.
Yes, you may be able to have your disqualification lifted early in Western Australia by applying for an Extraordinary Licence (EL) or by applying to have your licence disqualification removed.
Potentially, though the most common penalties are fines and license disqualification. Prison time is a possible outcome for serious offenses, such as dangerous or reckless driving, and certain drink and drug driving offenses. Other consequences can include vehicle impoundment and confiscation.
In Western Australia, it is illegal to possess, use, manufacture, cultivate or supply an illicit drug. Penalties vary depending on the offence: possession offences: a maximum $2000 fine and/or 2 years in prison. supply offences: a maximum $100,000 fine and/or 25 years in prison.
Yes, you can receive a term of imprisonment of up to two years.
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.
Restraining Order is an umbrella term which refers to Family Violence Restraining Orders (FVRO), Violence Restraining Orders (VRO) and Misconduct Restraining Orders (MRO).
FVRO stands for Family Violence Restraining Order. This type of Restraining Order is applicable if the Person Seeking to be Protected is, or was, in a ‘family relationship’ with the Respondent.
VRO stands for Violence Restraining Order. This type of Restraining Order applies if the Applicant is seeking to restrain the Respondent from committing ‘personal violence’ which is not in the family context.
Common examples include neighbours, work colleagues or friends.
A Misconduct Restraining Order (MRO) in Western Australia is a court order that makes it illegal for a person to engage in disruptive or destructive behavior against another person, especially when they are not in a family relationship. It can be sought to prevent actions like intimidation, property damage, or a breach of the peace. This type of order is for situations where a Violence Restraining Order (VRO) does not apply, such as with a neighbor, work colleague, or friend.
If a restraining order has been applied for against you in Western Australia, you should seek legal advice immediately, as there are strict time limits to respond. You can attend a court hearing to contest the order or apply to have it set aside, vary, or cancelled, but you will need to be prepared to present your case. It is also important to note that you must not breach the order, even if you disagree with it, and should avoid any contact with the applicant until the matter is resolved.
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 Restraining Order. If you have been served with the Restraining Order but you do not attend court and you are not legally represented, the court can finalise the Restraining Order in your absence. You may not have to go to court if your lawyer can lodge the application online, but it is still possible that you will need to attend, especially for a final hearing or if you are applying in person. Lawyers can help you through the process, and in some cases, they may be able to get an interim order without you being present in court, but a final hearing may require your attendance.
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 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.
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.
To vary bail conditions in Western Australia, you can apply in court on your next court date or apply sooner by asking the court registry for an early listing. This is done by filing a formal request explaining why the changes are needed due to a change in circumstances, such as a change of address or the need to travel. It is highly recommended to have a lawyer help with the process.
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.
A Pre-Sentence Report (PSR) is a court ordered report which provides additional information to the court which will assist the sentencing Magistrate or Judge to have more information about you.
It is not intended to be part of your defence, however favorable reports will be relied upon to demonstrate to the court that a person may be suitable for a community-based disposition (that is, a sentence which sees you remain in the community). The PSR is intended to be a fair assessment of you.
A PSR can be requested by any party (defence lawyer, prosecutor or Magistrate). Usually, it will be your defence lawyer who orders a PSR. A PSR is usually requested in situations where a person could face a term of imprisonment. However, this does not mean that the person will actually receive a term of imprisonment.
Between the time a PSR has been requested, and your next appear in court, a member from Community Corrections will contact you and arrange a time to conduct an interview. The information you provide will be collated into a report and provided to the court for your sentencing.
If an offender pleads guilty to an offence, instead of contesting a matter at hearing or trial, the Court may reduce the sentence to recognise the benefits to the Court, prosecution and any witnesses/victims.
The earlier the plea, the greater the reduction. If the guilty plea was indicated or entered at the first reasonable opportunity, the fixed term may be reduced by 25%. The head term may not be reduced by more than 25% for a guilty plea although it can still be reduced based on other mitigating factors.
A “No Sentence Order” is only made by courts where no penalty is considered necessary. In practice, it is very rare for courts to impose no sentence.
A CRO is similar to a Good Behaviour Bond. This order requires the offender to avoid re-offending and comply with other conditions. It does not require supervision from Corrective Services. The Court may order that the offender sign a written undertaking to pay certain amounts.
Fines must be paid within twenty-eight days of a sentencing date. Failure to do so may result in fines enforcement action being taken against you. If you cannot pay this amount within twenty-eight days, please contact the Court Registry to arrange for time to pay.
Suspended fines
Where a court considers a fine of a certain amount is appropriate in all the circumstances at the time of sentence, the court may suspend it for up to 24 months. It does not have to be paid unless the offender commits an offence during the suspension period and the Court orders that the fine be paid.
A person who is aggrieved by a decision of the Magistrates Court of Western Australia (WA) may appeal to the Supreme Court, constituted by a single judge, against the decision – s7 Criminal Appeals Act 2004 (WA) (“Appeals Act”).
There is no guarantee the appeal will be successful. It is important that an experienced criminal lawyer assist in reviewing the matter before the appeal commences to ensure your grounds are adequately supported to give you best chance of success.
An appeal from the Magistrates Court must be commenced within 28 days after the date of the decision unless ordered otherwise. The time for an appeal of a conviction and/or sentence starts from the date of sentencing (s10 Appeals Act).
An accused person convicted of an offence by a superior court may appeal to the Court of Appeal against any or all of the following decisions:
a. A conviction (s30(3) Appeals Act):
i. The verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
ii. The conviction should be set aside because of a wrong decision on a question of law by the judge;
iii. There was a miscarriage of justice.
Despite this, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred (s30(4) Appeals Act).
b. The imposed or any order made or refused to be made as a result of the conviction.
The prosecution may also appeal to the Court of Appeal following a decision by a judge of a superior court (s24 Appeals Act).
A superior Court means the Supreme Court of Western Australia (WA) or the District Court of Western Australia (WA) (s4 Appeals Act).
An appeal from a Superior Court must be commenced within 21 days after the date of the decision unless ordered otherwise. The time for appeal of a conviction and/or sentence starts from the date of sentencing (s 28(3) Appeals Act).
In Western Australia, “beyond reasonable doubt” means the highest standard of proof in a criminal case, where the prosecution must prove the accused’s guilt to a point where there is no other logical or reasonable explanation for the crime. This is significantly higher than the “balance of probabilities” used in civil cases and requires the court or jury to be convinced with no remaining reasonable doubt. It does not mean proving guilt to a mathematical certainty, but rather that all elements of the charge have been proven beyond a doubt that is reasonable.
In Western Australia, the burden of proof is the legal duty to prove a case, while the standard of proof is the level of certainty required. For criminal cases, the burden is on the prosecution to prove guilt “beyond a reasonable doubt,” a high standard that requires the prosecution to eliminate any other reasonable explanation for the facts. In civil cases, the burden of proof is on the plaintiff to prove their case “on the balance of probabilities,” a lower standard than in criminal law.
In Western Australia, an indictable offence is a serious criminal charge that is heard in a higher court like the District or Supreme Court, rather than the Magistrates Court which handles minor “simple” offences. These offences, which include crimes like murder, serious assault, robbery, and major drug offences, have more severe penalties, including the possibility of life imprisonment. All indictable matters begin in the Magistrates Court for committal proceedings before being transferred to the higher court.
In Western Australia, a summary offence is a less serious criminal offense, often called a “simple offence,” that is handled in the Magistrates Court and is generally resolved faster than an indictable offence. These offenses are prosecuted by police and can result in penalties such as fines, community-based orders, or up to three years in prison for a single offense. Examples include minor traffic violations, disorderly conduct, and minor drug possession.
In Western Australia, a lawyer is the broad term for any legal professional, which includes both solicitors and barristers. A solicitor typically handles client-facing work, like providing advice, preparing documents, and negotiating, while a barrister specializes in court advocacy and is often engaged by a solicitor for complex litigation in higher courts.
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.
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.
Court usually starts at 9:30am and finishes at 5:00pm. The court will adjourn for a lunch break between 1:00pm – 2:15pm.
Depending on your matter, you may be called on early or later in the list. It is necessary that all matters that are listed to be heard that day are completed. Because of this, longer matters, such as sentencings, could be recalled after the lunch break.
If the matter is too complex, such as bail applications or matters that require further consideration from the court, it may be adjourned to a different date at which time you will be required to attend again.
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 can check where your legal matter will be heard in Western Australia by searching the eCourts Portal of Western Australia or by looking at the court listings on screens in the relevant court foyer.
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.
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 Magistrate’s 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.
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.
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 residence in Western Australia with your consent, with a valid search warrant, or under specific legal circumstances without a warrant, such as to end a breach of the peace or arrest someone. You have the right to know the reason for the search and can politely refuse consent, which would then require the police to have another legal basis, such as a warrant.
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.
Yes, the police can search your vehicle in Western Australia with or without a warrant and with or without your consent. Police have the power to search a vehicle without a warrant if they suspect on reasonable grounds that it contains evidence of a crime, stolen goods, or illegal items. They can also search a vehicle if it is related to an offense you have been arrested for or is being used to evade law enforcement.
Yes, police can search you in Western Australia under specific circumstances, even without a warrant. They can search without a warrant if they believe you have something related to a serious and urgent offense, or if you are committing an offense, under arrest, or in police custody. In most cases, a warrant is required to search without a person’s consent.
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.
One of the most important steps you can take is to request legal advice. You have the right to contact a lawyer upon arrest, and it is advisable to do so before participating in any police interviews. Legal representation ensures that your rights are protected during questioning. If you are unable to contact a lawyer, the police must give you reasonable assistance in finding one.
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.
Yes, the court can cater to your needs in Western Australia, as the legal system is required to be accessible, and you can request accommodations through the court.
Yes, courts in Western Australia can cater to your needs, with accommodations and support available for people with an intellectual disability to help them navigate the legal system. The Supreme Court of Western Australia has information on accessing the court with a disability, and you can also seek support through legal aid services and by enlisting a support person.
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 in Western Australia is a group of 12 to 18 people randomly selected from the electoral roll to decide if an accused person is guilty or not guilty in a criminal trial. Their role is to determine the facts of the case and apply the law as explained by the judge to reach a verdict.
A jury will only hear your matter in Western Australia if it is a serious criminal case heard in a higher court, such as the District Court. Most minor criminal cases and civil cases are decided by a judge alone.
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.
To communicate with someone on remand in Western Australia, you can arrange phone calls, book visits, send mail, or visit in person. For phone calls, you’ll need to have the prisoner add your number to their approved call list, which you can initiate by submitting an online form on the Western Australian Government website. For visits, you must book in advance online and complete the necessary paperwork and ID checks.
You should contact the person you know in gaol and ask whether they have access to their medication. If they do not, contact the prison directly to provide them with a list of the prescribed medications, dosages, and the prisoner’s consent. The Department of Justice’s Corrective Services Division Health Services manages the health care of prisoners, and you can also work through them by contacting their health services division.
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.
Further advice:
This blog is intended to provide general information about matters that often come before the court and is not legal advice. For legal advice about this offence or any other criminal offence, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney), (02) 5104 9640 (Canberra) or (08) 6255 6909 (Perth) or by email at [email protected]
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