- SMITH REID ATTORNEYS have a particular interest in criminal law, and appear regularly in Sydney metropolitan courts. Our Newtown location enable easy access to Waverley, Downing Centre, Burwood and Newtown Local Courts. Smith Reid is also available for Court appearances in Katoomba and Lithgow courts.
- We've included some information which may be of wider interest below. However no web page or other information source replaces the benefit of immediate advice and assistance from experienced criminal law practitioners such as us.
Criminal Law "Emergency First Aid Ring a Solicitor"
It is critical to obtain legal advice at the first available opportunity.
This is so whether you have been asked to visit police in order to "assist" them in their enquiries, or in the event that you are arrested and conveyed to a police station, or otherwise come to the attention of the police.
What is a common feature of criminal law is that there are always exceptions, complications and unexpected developments which make its management the domain of experienced professionals.
The purpose of this article is for general interest, and the contents are not intended as a substitute for proper legal advice.
If you are arrested on a weekend, the Law Society of New South Wales has a list of practitioners who are available to consult.
Depending on availability, Smith Reid Attorneys may often be of assistance at short notice by use of our mobile service 0411 241 650 .
Click on the following hyperlinks for further info about particular topics:
What is Criminal Law?
Questioning by Police before Arrest
Providing Personal details
The Right to Silence & Police Interviews
Terrorism Offences & the Right To Silence
Police Searches
Arrest
Rights on Arrest
Bail
Summary & Indictable Offences
What is Criminal Law?
Criminal law encompasses a vast area of law whereby behavioural standards are imposed upon individuals and groups of individuals as well as incorporated and unincorporated associations (companies and organizations).
These standards have been developed over centuries by Court precedent (common law) and laws enacted by parliaments (legislation). The vast majority of criminal provisions are the creature of legislation, although they commonly draw upon long established principles enunciated by Courts in so far as the requirements of "proof" and other preconditions for their application.
Relevant legislation may be either state (New South Wales, or any other state) or Commonwealth.
Punitive provisions are imposed upon those found guilty "beyond reasonable doubt" of offending against the various obligations imposed by these standards. The onus of proving guilt rests on the prosecuting authority, be it police or other government instrumentalities responsible for the administration of the law or laws in question.
Most offences apply in a manner such that "actus reus" and "mens rea" is required to be proved by the prosecuting authority.
"Actus reus" means the actual objective conduct which constitutes the illegal behaviour.
The more difficult issue is often "mens rea" or the "mental element" of the offence, which has been described as:-
".. an evil intention, or a knowledge of the wrongfulness of the act, [which] is an essential ingredient of every offence" as described in Sherras v. De Rutzen [1895] 1 QB 918,921 but which may also consist of reckless or negligent conduct, depending upon the particular criminal provision being considered.
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Questioning by Police before Arrest
A citizen is not required to carry identification in Australia and is generally entitled to exercise their right to silence if approached by law enforcement officers. However, there are many exceptions to this and sometimes a refusal to provide particularly your identity may be unhelpful to a person or worse, unlawful.
For example, under the Law Enforcement (Powers and Responsibilities) Act 2002 (the Law Enforcement (P& R) Act), you are obliged to provide your name and address if the police reasonably suspect that you may be able to assist in the investigation of an alleged indictable (serious) offence because you were near the place where the alleged offence occurred, even if you are only a witness. There are other exceptions.
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Providing personal details
Driving a Car
If you are driving a car and the Police reasonably suspect you have committed traffic or other offence; or have been involved in an accident, you must provide your name and address and your driver's license or some other identification if requested. You must also provide the names and address of any other person the Police suspect of being involved in any offence and details of any motor vehicles involved under laws covering traffic offences.
Local Government Matters
Many other State Acts also require you to provide information to law enforcement officers if you are suspected of committing some offense, including Council officers or Police under the Local Government Act or park rangers under the National Parks and Wildlife Act.
Photos & Fingerprints
After being lawfully arrested by Police, it is necessary to provide the Police with basic personal details (name address etc). Police are entitled to record identifying particulars of a person who is under arrest, under section 133 of the Law Enforcement (P& R) Act which can include photos and fingerprints. Police cannot take DNA or other bodily samples without the person's "informed consent" or the order of a Magistrate under the Crimes (Forensic Procedures) Act 2000.
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The Right to Silence & Police Interviews
Apart from providing personal details (and in relation to "terrorism offences" - see below) an accused person is generally under no obligation to take part in any interview and may simply exercise his or her right to silence. However, in some cases this may not be entirely helpful to a person's defence.
You are entitled to receive legal advice before you answer questions, and should not consent to do so without this. The best evidence against most accused people is often their own words, spoken in a misguided attempt to explain or defend themselves.
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Terrorism Offences & the Right to Silence
The right to silence has been effectively been abolished in Australia in regard to "terrorism related offences" by anti-terrorism legislation under the State and federal anti-terrorism laws. If you do not fully cooperate with Police inquiries this will in it be a serious crime even if you are not charged with anything else.
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Police Searches
Most of the powers of the NSW Police to search or arrest a person now come from the Law Enforcement (P& R) Act. A Police Officer may stop, search and detain a person if they reasonably, suspect that the person possesses or controls anything stolen or unlawfully obtained or used or intended to be used in the commission of an offence or a prohibited drug or plant.
Vehicles may also be stopped and searched on similar grounds.
The indication of a police sniffer dog is relevant in forming a reasonable suspicion that a person may have an illegal substance in their possession, allowing a search after the decision in the case: Darby v Director of Public Prosecutions [2004] NSWCA 431.
Failure to submit to a legal search is an offence.
It is also an offence to unreasonably fail to produce anything seen or detected by Police in the course of a lawful search. Police may confiscate any dangerous implement they reasonably suspect to be in a person's custody.
Police also have the right to ask a person in a public place or school to submit to a "frisk search" under section 26(1) of the Law Enforcement (P& R) Act; or an "ordinary search" under section 30 if the officer on reasonable grounds suspects that the person has a dangerous implement in his or her custody.
The Police may only search in these circumstances if the Officer reasonably believes the dangerous article was being used in connection with the commission of an offence.
Strip searches are permitted under section 31 if the Police Officer suspects on reasonable grounds that the seriousness and urgency of the circumstances require it. Generally, such a search must be conducted in the least invasive way practical under the circumstances.
Police are entitled to search you if you have been placed under arrest or if you consent to them doing so.
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Arrest
Police may arrest a person without warrant under section 99 of the Law Enforcement (P& R) Act if they catch someone in the act of committing an offence or if they suspect on reasonable grounds that a person has committed an offence. They may arrest a person with a warrant pursuant to the order of a Court.
Police also retain the power granted by the "common law" to arrest someone for a "breach of the peace". A breach of the peace includes whenever harm is done or is likely to be done to a person or their property or a person is in fear of being harmed by assault, riot or affray etc. However, unless a breach of the peace has occurred, the Police may not detain a person for a prolonged period (as no offence has been committed). They may however do so for short periods of time without this being considered to be an arrest.
An invitation to attend the Police Station to "assist Police with their inquiries" may or may not amount to an arrest, depending upon the degree of compulsion. If a person is no longer free to decide not to attend the station at the request of Police, this would be an arrest. If they are allowed to decide if they wish to attend or not, then this would not be an arrest. A person can be detained for questioning about a matter in which they are suspected personally, but only for a reasonable time, (usually 4 hours) without the Police requiring a "detention warrant" to extend this period under the Law Enforcement (P& R) Act.
Our Advice? See us or any solicitor of your choice to seek advice before attending the Police station.
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Rights on Arrest
On arresting a person, police are required to provide certain details to the arrested person. These include; evidence that the officer is a police officer (unless they are in uniform) and the name and place of duty of the officer. The police officer must advise of the true reason for the arrest and that refusal to comply with their instructions may be an offence in itself; (i.e. resisting arrest). Police are not obliged to do this if the reason for the arrest is obvious or if the actions of the suspect (i.e. violent struggling) make this impractical.
If you are arrested without a warrant you should be taken before an "authorised officer" (usually a magistrate), to be dealt with as soon as is reasonably practicable under section 99 (4) of the Law Enforcement (P& R) Act.
Police should make an Electronically Recorded Interview of a Suspected Person (ERISP) when they interview a suspect after arrest, but you should not consent to this prior to receiving legal advice. Some special rules apply to "vulnerable people" including minors, people with a disability, people with English as a second language, foreign nationals and Aboriginal and Torres Strait Islanders, including the provisions of interpreters, access to consular officials and a "support person" during questioning under the Law Enforcement (P& R) Act.
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Legal Advice
You are entitled to contact a legal practitioner or other person once you are in lawful custody to advice them of your predicament and to organise advice or legal representation and legal advice.
The guilt or innocence of an accused person can only be determined on the basis of admissible evidence and adherence to procedural rules. The legal practitioner's chief aim is to ensure that a person is dealt with strictly in accordance with the law. An understanding of the excuses and mitigating factors relevant to an accused person is vital. Even people who are guilty of the conduct they are charged with may have legal excuses available to them or may be able to reduce the applicable penalty by making any "mitigating circumstances" known to the Court.
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Bail
Bail is the authorisation of the Court for an accused person to be at liberty instead of in custody prior to the hearing of a trial or appeal and at various other times. There is a right to bail for certain minor offences under section 8 of the Bail Act (NSW) 1978, including, for example, those not punishable by imprisonment, and cases where the person is called up for a breach of a good behaviour bond.
There is a general presumption in favour of bail under section 9 of the Bail Act. In section 9 cases the onus is on the prosecution to rebut this presumption in favour of bail. This only needs to be on the balance of probabilities.
However, this presumption is reversed for certain offences, including drug offences involving commercial quantities of prohibited drugs or plants murder or manslaughter, serious drug offences, serious property offences, domestic violence offences, or if a person is arrested while on parole for another offence (section 8A through F).
You may also be denied bail if you have a history of violence against a particular person or are charged with disobeying an apprehended violence order by violence or intimidation.
A court may also refuse to grant bail if a person has a history of unreliability specifically in regard to bail. If you have failed to comply with a bail undertaking in the past; or if you have failed to answer bail (except for an offence where there is a right to bail); bail may be denied.
Under recent amendments to the Bail Act a person can only apply to a Court for bail once (section 22A). A second application can only be made if a person was not legally represented or information relevant to the grant of bail was not presented to the court in the previous application, or circumstances relevant to the grant of bail have changed since the previous application was made. Hence it is crucial that persons in custody have proper advice and representation so that a bail application is competently presented.
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Who can grant bail
A police officer in charge of a station or above the rank of sergeant can grant bail unless there has been a decision by a court not to. If a police officer makes a decision about bail they are obliged to tell the accused person they are entitled to contact a lawyer and provide the facilities to do so.
If an accused person is refused bail by the police or cannot meet the conditions set then under section 20 the accused must be bought before a court as soon as practicable, usually the Local Court. A magistrate can usually grant bail to any accused.
If the accused is bought before the Local District or Supreme Court (or is appealing to those Courts) then those Courts may determine bail. If denied bail, the accused can request a review of that bail determination by the same Court or the Court of Criminal Appeal (if in the Supreme Court).
The Land and Environment Court and the Industrial Commission can also grant bail for offence pending in their respective jurisdictions.
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Criteria for Bail applications.
There are 4 main issues which will be considered in deciding whether or not to grant bail:
1.Probability that the accused will appear, which covers things like community ties, nature of the offence, strength of the Crown case and likely penalties.
2.Particular interest of the accused which covers things like time the accused would spend in custody if bail was refused, the needs to the accused to prepare the case, the physical welfare of the accused.
3.Protection and Welfare which covers things like the protection of the community and any victim, and the protection of the family friends and associates of the victim.
4.The likelihood of further offences.
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Conditions of Bail
Before being released on bail the accused must agree in writing to appear before a specified court on a nominated day. Bail can be unconditional or with conditions set by the court. Examples of common conditions include; making the accused deposit a sum of money with the Court and/or agreeing to forfeit that sum of money if they fail to appear, requiring the accused to report regularly to a police station, restricting the accused from associating with a specified person, place or district; or to obliging them to participate in a rehabilitation program.
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Sureties
A person known as a "surety" may only have to state that they know the person and that they will appear at Court. However, they may also have to agree to deposit acceptable security or sum of money with the Court and to forfeit a sum of money if the accused does fail to appear.
To be suitable as a "surety" a Court will consider the surety's financial resources, their character, their previous convictions and how closely they are related to the accused person. The Court has discretion in determining if a person is an acceptable person and they can refuse to accept a person.
A "surety" commits an offence if they dispose of the property or otherwise frustrates the security. It is also an offence if the surety is not the owner of the cash but is simply the representative of a group of people who have passed the hat around' to raise sufficient money to bail the accused; or if the surety deposits money which has been given to them by the accused for the specific purpose of baling the accused.
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Offences under the Bail Act
Failing to appear in accordance with a bail undertaking is a criminal offence itself, with a maximum penalty of $3,000.00 or three (3) years in gaol.
It is also an offence for a person to agree to pay a "surety" for any loss suffered as a result of failing to meet a bail undertaking.
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Summary & Indictable Offences
As a general rule, cases fall within the classification of summary offences, indictable offences, and indictable offences which may be dealt with summarily subject to certain exceptions.
"Summary offences" are offences which legislation (for example the Criminal Procedure Act (NSW)) requires be dealt with by magistrates in the Local Court system. There is no right to a jury. Generally summary offences carry lesser penalties and lesser potential periods of imprisonment (not exceeding two (2) years') than "indictable offences".
"Indictable offences" are those which are dealt with on "indictment" and carry the right, in the case of a person who denies guilt, to a trial by jury.
Other indictable cases may be dealt with summarily, because relevant legislation says that this may occur. Legislation deals with the conditions upon which indictable matters may be dealt with summarily, and the prerequisites for treatment in a summary manner. One advantage of matters which are indictable being dealt with summarily is that a lesser period of imprisonment will apply.
It is often most difficult to understand particular criminal laws, their applicability and the way in which they apply to the conduct of those accused of infringement without the theoretical background which a formal legal education provides. Application of the relevant principles to "real life" examples is of course a source of further complexity.
Whether your criminal case is "summary" or "indictable" Smith Reid have experience in managing your case appropriately to seek the best outcomes for you.
In the event that the matter is best dealt with by representation by us in Court personally or whether, as in the case of more serious offences by way of briefing barristers, we are in a good position to promptly assist you to handle your situation in the most effective manner.
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Contact our office on 9517 1988 to discuss how our Criminal Law services could help you or fill out and submit the following form.