What to Do If You Are Charged with a Serious Criminal Offence
In Australia, a serious criminal charge can have serious consequences. Gaining an early understanding of how you should respond to a serious criminal accusation can help you minimise those consequences.
Do Not Resist Arrest
Not every criminal prosecution begins with an arrest. You may receive a court attendance notice or summons that directs you to appear in court. If you fail to appear on the stated date, you will likely be convicted in your absence then arrested.
Serious offences, however, often involve an arrest. The police can make an arrest if they have a warrant, but they don’t always need one. If the police see you committing a crime, or if they reasonably suspect that you committed a crime, they can arrest you. Arguing with the police about their lack of a warrant won’t help your situation.
Whether or not you believe the police are mistaken, and even if you believe they have no legal authority to arrest you, it is never smart to resist arrest. Apart from the fact that you might be charged with a new criminal offence for resisting, police officers do not look kindly upon people who disobey their commands. If you physically resist an officer, you might find yourself coping with injuries that are inflicted when the police forcibly take you into custody.
Do Not Argue with the Officer- Remain Silent but Co-operative
When the police decide to make an arrest, they can rarely be talked into changing their mind. Arguing too forcefully with an officer might be taken as resisting arrest and might therefore result in a new criminal charge.
Just as importantly, the things you say to the officer can be used against you. If you argue against an arrest, you might say something in the heat of the moment that will be taken as an admission of misconduct or guilt to a criminal offence. You might also say something that the officer misinterprets.
It is difficult to think clearly when you are being arrested. Rather than blurting out a lengthy explanation that you view as a protest of innocence, it is better to remain calm and keep your mouth closed. Be cooperative in the sense that you go with the officer peacefully. Being combative will just make you look guilty if your case goes to trial, and you might come to regret the things you say.
Remain Silent Until You Receive Legal Advice- Call you Lawyer Immediately!
After you are arrested, the police have the right to ask you to identify yourself. Give the police your real name and address. Lying about your identity will probably result in an additional criminal charge.
The police may invite you to participate in an interview. You cannot be forced to speak to the police. Whether your silence can be used as evidence against you, however, depends on the circumstances.
A federal law makes it an offence to refuse to answer questions posed by anti-terrorist investigators. Some state laws, including an “evidence of silence” law in New South Wales, permits an inference of guilt to be drawn from a refusal to answer questions after an arrest for certain serious crimes.
Of course, if you are guilty, answering questions truthfully will probably amount to a confession. An inference of guilt that might result from your silence is better than an admission of guilt. Remaining silent is also better than telling a lie, because lies are usually discovered and they always make the liar look guilty.
In most cases, however, your silence cannot be used against you. After an arrest, you will probably be advised that you have the right to remain silent. Exercising that right is one of the best safeguards against an unjust conviction.
In nearly all situations, it is best to refuse to answer questions until you have obtained legal advice. Politely but firmly stating “I will not answer any question until I get advice from a lawyer” is usually the best policy. In most cases, the police must wait to question the accused if that person requests the presence of a lawyer during questioning.
After you meet privately with a lawyer, you can make an informed decision about answering questions posed by police officers. You might choose to remain silent after you obtain legal advice, or your lawyer might help you understand how to tell your story to the police in a way that will help you avoid being misunderstood.
The police can detain you for a short time while they investigate their suspicion that you committed a crime. In NSW the maximum time you can be held under arrest without being charged is four hours. The four hours does not include “time out” for things like waiting for your lawyer to arrive or the time it takes for you to get over the effects of alcohol or drug consumption. The four hour detention can be extended under some circumstances. For example, an extension can be made by a detention warrant for a maximum of another four hours or more indefinitely if a person is suspected of terrorism. Eventually, however, the police must either release you or give you the opportunity to apply for bail.
During your detention, the police may ask for a DNA sample. They usually obtain the sample by swabbing the inside of your cheeks with cotton. If you are asked to consent to producing a DNA sample, it is best to speak to your lawyer before you answer.
If the police decide that you should be charged with an offence, they will prepare a formal charge and read it to you. The best response is to avoid reacting to the charge. If you comment upon it, your words can be used against you in court.
If you’ve been charged with an offence and the police arrest you, you should ask the police to release you on bail. If they refuse, ask for a bail hearing. The police must bring you before a magistrate within a reasonable time for the purpose of setting bail. You have the right to be represented by a lawyer during the bail hearing.
If bail was not set earlier, you will have a bail hearing at your first court appearance. For the court to decide whether to give you bail, you might have to “show cause.” To show cause means you have to show the courts why keeping you in jail is not justified. It is more difficult to show cause if you are already on bail or parole, or if you’ve been charged with a serious offence like one that involves sex, firearms or violence.
When deciding whether you have to “show cause” the courts will also consider the following “bail concerns:”
- attend court when you are supposed to
- commit a serious offence
- be a danger to anyone or the community
- interfere with witnesses or evidence
It is more difficult to obtain bail for a serious offence than for a minor offence. Courts take into account the risk that you might flee from prosecution and that you might pose a danger to witnesses. If you have strong ties to the community (family, a job, home ownership), you have a better chance of being released on bail.
If you can’t show cause you will be refused bail. If the court refuses bail you can still apply for bail by going to the Supreme Court.
If you are released, the court will probably set conditions on your freedom, which might include posting money to guarantee your return to court.
Follow Your Lawyer’s Advice
Engaging the services of a lawyer at your earliest opportunity is the best way to face the consequences that can arise from a serious criminal charge. A lawyer can evaluate the strength of the evidence and can search for evidence that will support a defence to the charge. A lawyer can also help you negotiate an outcome and evaluate whether a negotiated resolution would be preferable to a trial.
Every case is different, so legal advice will depend upon the facts, the evidence, and the applicable law. Regardless of the charge, however, a lawyer can give you valuable advice about how to conduct yourself, whether or not you were admitted to bail. Doing the wrong thing while a charge is pending often results in unfortunate outcomes that could have been avoided. Following a lawyer’s advice is essential when an accused has been charged with a serious crime.