Arrests
When the police are investigating a criminal offence or a crime they go looking for suspects and when they find them the investigation process requires them to asks questions and to receive answers. Unfortunately for many suspects they do not have the presence of mind to refuse the police and therefore as a consequence they provide information which is pregnant with admissions allowing the police to charge either them or someone with whom they were acting in concert. Being arrested and charged with a criminal offence is extremely intimidating and before this occurs any suspect should exercise their right to silence and indicate they wish to seek legal advice.
The police have no general power to arrest a person for the purpose of questioning. Unless the police are exercising a specific power they must either charge the person or release them immediately. The police have no general power to arrest a person for questioning. Any person who is suspected of a criminal offence has a right to silence and this should be respected by the police at all times. No suspect can be forced to participate in an identification parade however where a suspect so refuses this may allow the police to conduct a photographic identification. In most cases it always better to err on the side of caution and to remain silent rather than to participate in a police record of interview and/or identification parade.
The police must have reasonable grounds to believe that the person has or is about to commit an offence. When police decide to arrest or charge someone they should inform them of this and the grounds for the arrest and caution the person that they do not have to answer any questions. A person in lawful custody may be searched. The police have wide powers to obtain forensic samples under which may include external and internal body searches. Internal searches can only be carried out by order of a magistrate or other authorised justice after a hearing at which the suspect must normally be present.
Where police do enter premises to arrest a person they can of course search the suspect but it does not include the whole premises. The police need a warrant to search premises, if they do not have one you may refuse them entry.
After all a person who has been arrested has lost a significant advantage and these admissions may operate to prejudice the accused being subject to heavy fines, community service orders, or even imprisonment. In all cases either before or after arrest you need the services of an experience criminal lawyer to mitigate the prospects of arrest, which may lead to a committal hearing and a trial. After being arrested and taken to the police station the police custody manager should inform you that you have a right to be represented. Where you are arrested at night the ability to obtain legal representation is greatly restricted. Do not expect any criminal lawyer to disturb themselves to assist you unless you can demonstrate that you have the ability to pay their fees when seeking advice.
Once you have secured a lawyer they will be able to advise you of your rights, explain the alternatives and what you can expect from the criminal justice system at this stage. Your lawyer will be able to ensure that your rights are not violated and are properly protected. Should the police charge with an offence then your lawyer will make a bail application for you. If the matter constitutes a summary offence then it will be dealt with by the Local Court and where it is more serious and amounts to an indictable offence their will be a committal hearing before a magistrate who will determine whether or not it should be referred to the District or Supreme Court.
In order to minimise any possible damage to yourself where you are suspected of having committed a crime the first question you should ask yourself is:
Q. Do I need to answer police questions?
A. No, if the police want to record an interview with you on tape or video always say that you want to speak to a lawyer first. A police officer can request a person to provide their name and address where those details are unknown to them. It is an offence to refuse to supply a name and address.
Stop and Search
The police may stop and search anyone whom they reasonably suspect has something stolen or otherwise unlawfully obtained or anything used in an indictable offence. A reasonable suspicion involves less than a belief but more than a possibility. The police can search a suspect immediately after they have been arrested and can seize any property which they find on them.
Where a person is the driver of a motor vehicle police can ask for that persons name and address and where they suspect that motor vehicle was or may have been used in the commission of an indictable offence they can ask the owner, the driver or the passenger to supply details of the driver and passengers present in the vehicle at the relevant time.
Investigation Period
A person under arrest can be detained by police for the investigation period i.e. for no more than a reasonable time and no more than 4 hours or such longer period as extended by investigation. The period can be extended by a further period of 8 hours by a Magistrate or Clerk of the Local Court.
The investigation period of 4 hours is subject to specific time out periods and can be extended by the police by means of a detention warrant. Time out is a period in which the clock does not run in determining the maximum investigation period.
Suspect's Rights
The custody manager at the police station is required to caution the suspect and summarise the provisions about detention. The custody manager is required to inform the suspect before any investigative procedure starts that the suspect can contact a friend, relative or lawyer to inform them of his/her whereabouts, consult them or in the case of a lawyer be present during the investigative procedures. The custody manager is required to provide facilities for the suspect to communicate with a friend, relative or lawyer.
Arrests Articles
Criminal Law - Sentencing in the Local Court
Date: October 08, 2010
Author(s): Jana Whitby B.A., LL.B. (Hons.)
Often I am asked by my clients who have been charged with common offences such as assault or drink driving what the likely result will be if they enter a plea of “Guilty”. This is not a question which can be answered with much certainty given that even when to individuals are charged with exactly the same charge, the possible outcome when it comes to that individual’s sentencing can vary according to factors such as in which Local Court the matter is dealt with, which Magistrate determines the sentence, the sentencing options available to the Magistrate and the individual’s subjective circumstances.
Criminal Law - Have you been charged with assaulting police?
Date: April 03, 2009
Author(s): LAC Lawyers
It has been a long week at work, you decide to unwind and have a couple of beers at your local pub. Unfortunately you don’t know when to stop as you’re having a great time but are annoying some of the patrons at the same time. The management ask you to leave and you refuse.
Criminal Law - Affray
Date: December 08, 2008
Author(s): LAC Lawyers
The legislation introducing the offence of Affray into the Crimes Act in 1988, was prompted, among other things, by the difficulties for the prosecuting of the persons involved in the lengthy trials arising out of the clash between outlaw motor cycle clubs at the Viking Tavern, Milperra in September 1984 (“the Milperra Massacre’) and the clash between spectators and Police at Mount Panorama, Bathurst in April 1985 (‘the Bathurst riots’), which had attempted a prosecutions under the then common law offence of affray.
Criminal Law - Self Defence
Date: December 01, 2008
Author(s): LAC Lawyers
Self defence is an issue that needs to be disproved by the Crown beyond reasonable doubt. Normally a defence will apply once the Crown has proved its case to excuse the actions of the accused. However, if the Crown cannot disprove self defence then the accused is entitled to an acquittal.
Criminal Law - Need info on Bail, read this!
Date: September 25, 2008
Author(s): LAC Lawyers
Some handy information on Bail.
Criminal Law - The Pro's And Con's Of taking Part In A Police Interview
Date: September 25, 2008
Author(s): LAC Lawyers
The decision as to whether to participate in a record of interview with police is often a difficult one to make. There are various advantages and disadvantages in doing so, therefore, it is important that competent legal advice is obtained. LAC Lawyers are able to assist and advise you whether you should participate in such an interview.
What to expect when you call LAC Lawyers
Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.
Criminal Law - What Do I Do When I Am Arrested?
Date: March 15, 2006
Author(s): LAC Lawyers
No-one who is arrested should be left to the mercy of the system as it can be a very unkind friend when you are in need. While it is important to co-operate with the police it is extremely important that you understand your rights and do nothing to prejudice yourself whilst in custody.
Criminal Law - Sentence and penalty options available to courts if convicted of a criminal offence
Date: September 26, 2005
Author(s): LAC Lawyers
Murder. Bigamy. Robbery. Bushfires. Terrorism. Domestic violence. Computer offences. Concealing the birth of a child. Fraud. Rape. The list of criminal offences for which a person may be convicted in any Australian jurisdiction is extensive.