Criminal lawyer Samuel Joyce has produced an extensive guide including the investigation stage, bail and pre-trial procedure (indictable offence).
Part 1, What to do When You’re Being Investigated
If you receive a call from the police and they want to talk to you … what should you do?
Conduct when dealing with Police:
You should always be courteous and polite to police. Police are professionals and just like everyone else they have a job to do. But it is also in your interests not to antagonise the situation you are in. You do have a right to silence, but that right is not absolute. In most situations you must tell police
– your full name; and
– your date of birth; and
– the address of where you are living; and
– the address of where you usually live; and
– and your business address; and
If the police officer has reasonable cause to suspect that you have committed, are committing, or are about to commit a sexual offence involving a child or children, then you must also tell them the name and address of any place where you work (whether as an employee, an independent contractor, a volunteer or in any other capacity).
Not to provide this information is an offence which carries with it a fine of $1250 or imprisonment for 3 months.
Beyond providing this information, you do not need to answer any questions. You should politely tell police that you wish to seek legal advice prior to deciding whether to speak to them. If possible you should do this in writing. You have a right to silence, and a right to receive legal advice, which should be respected. Police should not ask you any questions about the allegations and if they do so you should politely decline to answer them. You should then see your lawyer.
Getting initial Legal Advice
Your first legal advice is likely to be “do not answer any questions from police at this stage”, but every case is different and your lawyer will be able to advise you regarding what is in your best interests.
Ideally, when you are ready to talk to police your lawyer will attend the interview with you. Your lawyer can’t answer questions on your behalf but they can make sure any interview is conducted fairly. Your lawyer can arrange with the police a time when you are both available for you to attend a police station and hear the allegations against you.
Your lawyer can also prepare you for being charged, if that is likely to happen. There are a number of common questions that you should consider in this situation and that your lawyer can help you with, including:
– Will you likely be bailed or is bail likely to be refused? If bail is likely to be refused then time is of the essence.
– Are there any bail conditions that might be imposed that will prevent you from doing essential things in your life? For example, if you are subject to a curfew, does a 7pm – 6am curfew allow you enough time to get to and from work?
– What are the immediate legal implications for you?
– Are there legal implications that impact your family?
– Do you need to inform your employer?
Your lawyer can talk to the police and try to get those things sorted out at the time you are bailed to prevent you having to make applications to a court in the future. Addressing these concerns early in the process will ultimately save both costs as well as peace of mind.
When charged with a criminal offence, it is crucial to seek legal advice.[/call-to-action]
Part 2, What is ‘bail’ and how does it work?
Bail can be complicated, but at the end of the day it is really all about whether you will turn up to court and your risk of committing other criminal offences.
When you are charged, the type of offence you’re charged with will determine whether you will be summonsed to appear before a court to answer a charge or whether the charging authority decides you should be remanded in custody or bailed to appear.
In most cases you will be summonsed. You must answer a summons by attending court. If you don’t you will be arrested. If you’re summonsed, you should take the summons to a lawyer. See Part 1 of this series regarding the importance of acting early. Taking action early in the process will make a significant difference to the outcome.
If the charge is serious enough to warrant some more compelling measures to make you attend, the police officer who charges you will decide whether to grant you bail or whether to remand you in custody.
Sometimes it’s the seriousness of the alleged offence that determines whether you need to enter into a bail agreement. The more serious the alleged offence the more it is thought you have likelihood of fleeing. Similarly, the stronger the evidence, the more it is thought you have a likelihood of not turning up to court to face the charge. Another factor will be any history relating to lack of compliance, for example, if you have previously breached bail or failed to comply with a suspended sentence. If any of those things are present, then the good thing about bail is that it gives you an opportunity to agree to do certain things that will, it is thought, mitigate your risks of the above. If you have a drug problem, for example, and that drug problem is directly related to your offending, sometimes the court will agree to let you take measures to control your drug problem (like going to rehab), and so decreasing the likelihood of you reoffending. If your risks can be dealt with by the imposition of bail conditions, then it is likely that you will be granted bail. So, it is important to see a lawyer early – as soon as you might be charged – so that you can get advice on the likely consequences and your lawyer can get started on making your case for bail. It is important to see a lawyer if you know police want to talk to you for this very reason.
If police refuse to grant you bail then they must bring you before a magistrate as soon as practicable so the court can consider your case for bail. At this early stage a magistrate can decide to grant you bail even if police have refused it to you. However, if you have not seen a lawyer and been charged and been refused bail, then it is unlikely that you will get to see a lawyer by the time you are brought before the court – things move quite quickly when you get charged. This is another reason to insist on your right to legal advice prior to speaking with police.
If you haven’t managed to see a lawyer by the time you are brought before a magistrate, you can (and should) see a duty lawyer so that you are represented when you appear before the magistrate. The speed with which things move means that they will unlikely be in the best position to put forward your case. For that reason, when you see a duty lawyer you usually get a bail assessment enabling you to contact your lawyer immediately.
Your first chance at bail is your best chance. If bail is refused, even though you can bring an application again, it will not be granted unless you can show a change in your circumstances. Having your own lawyer make the initial application is better because they have special knowledge of your circumstances and can put certain things in place so that make it more likely bail will be granted.
So, what is the court looking for?
Basically, they want you to turn up, they want you to have somewhere appropriate to live so they can find you, and they don’t want you to be out committing other offences.
a) Turning up
The following factors are relevant to the issue of fleeing/turning up to court:
– You agree to report to police on a certain basis. This can be anywhere from weekly to daily. The idea is that the police know you’re still in the State
– You agree to have a curfew – sometimes people think curfews are to stop offending at night. And that’s true, but its utility is in my view more about the Court knowing where to find you, and knowing you’re at home and not out getting in to trouble. If you agree to a curfew you’re agreeing to be at home at a certain time, and police can (and do) come and do checks on you. A curfew, provided you comply, is a good way to show you’re going to stay in the State, and remain contactable.
– You have clear ties to the region – If you have friends, family and other things that are likely to impact whether or not you flee (or turn up to court) then this may be taken into consideration.
b) Somewhere to live
Having somewhere to live is very important. It is certainly something that will be considered when assessing your application for bail.
– The place you’re going to live has to be safe. It has to be a place where you’re not going to be likely to do the wrong thing. So, for example, if you’re constantly getting into trouble in one area, you and your lawyer should explore whether you can live in a different area so you can show the court you’re not going to get into trouble while you’re on bail.
– Living with other family members is a good option here. If you need home detention bail, the address has to be suitable. There should be no drug use, no bad influences, and a working telephone line.
c) You won’t break the law again
If the magistrate thinks you might break the law, then you’re in trouble.
– You should try to avoid anything in your life that relates to the facts alleged against you i.e, if you’re charged with drug dealing, you should be able to show the court you’ll be able to avoid other drug users.
– You can agree to certain conditions that show you are serious about dealing with any issues you may have, i.e., you won’t drink alcohol, you won’t take drugs, you will go on a supervision program etc.
– Anything you can do to show you won’t commit any offences is good and will strengthen your application.
If you’re alleged to have committed an offence at a certain address, then it may be difficult to convince a court to let you go back to that address to live.
Your lawyer will be able to assist you in preparing you best possible application for bail.
What if my bail is refused?
If bail is refused, you then have two options.
1. Go back to the drawing board and reapply on the basis of changed circumstances.
2. Review to a higher court. This is expensive but it can be done. The Supreme Court will then review the previous decision that has been made and make their own.
What if you’re guilty?
You should discuss the allegations with your lawyer to make sure that you take the best possible course of action. In South Australia you may be eligible for a reduced sentence, at the Judge or Magistrates discretion, if you plead guilty to a criminal offence within four weeks of your first appearance at court. This reduction could be up to 40 per cent. Your lawyer might also be able to negotiate a plea to a lesser charge which could reduce the punishment you are exposed to. All these factors are important in considering bail.
Part 3, Pre-Trial Procedure (Indictable Offences)
What type of offence are you charged with?
The type of offence you are charge with will determine the court in which you are going to ultimately be tried. If you are charged with a summary offence, then you will appear in the Magistrates Court and be dealt with by that court. If you are charged with a minor indictable offence it is your decision whether you wish to be dealt with by the Magistrate’s Court by a Magistrate sitting alone, or by the District Court by a judge sitting alone or together with a jury. You must receive legal advice before you make a decision in that regard as any decision you make has important consequences for you.
Whether you are charged with a major indictable offence or elect to be tried upon the information by jury in the District Court on a minor indictable offence, you will still appear in the Magistrates Court. You will first appear in the Magistrates Court sitting in the area in which the offence is alleged to have occurred.
You will be either summonsed or remanded to appear for an initial hearing. For more information on this process refer back to part 2 of this guide.
Subsequent to an initial hearing for a major indictable offence, or to your election for a minor indictable offence, your charge will be adjourned to the Magistrates Court for a Preliminary Examination. On that date you are required to answer the charge, which means you tell the court whether you are guilty or not guilty. It is essential to seek legal advice before answering your charge, failing to do so may, and in all likelihood will, have significant repercussions. In South Australia preliminary examinations are governed by Part 5, Division 1 of the Summary Procedure Act.
When you appear at a Preliminary Examination and answer the charge by pleading not guilty, the Court must consider the evidence the prosecution has amassed for the purpose of determining whether it is sufficient to put you on trial for an offence: s105(2)(c)(ii) SPA. See also, R v Harry; ex parte Eastway (1985) 39 SASR 203, 208 – 209.
This means the prosecution becomes under an obligation to disclose its case to you and to the court and it does so by providing you with copies of declarations, or witness statements, and other physical or documentary evidence it says shows you are guilty of the charge.
If both parties agree, your charge will be set down for a case conference no sooner that 7 days after you have answered the charge. Before the date of this case conference the prosecutor, which is the Director of Public Prosecutions, will give you and the court a summary of its case against you identifying each of the elements of the offence it says it has to prove and the declarations it relies upon to prove them.
It is essential for you to have seen a lawyer by this point because your lawyer will check whether in his or her opinion, the elements the Department of Public Prosecution say they have to prove are correct and whether the evidence they intend to put before the jury at your trial is capable of proving each of those elements of the offence for which you have been charged. Essentially your lawyer will assess the situation and be able to tell you strength of the case against you.
If the elements are not correct or the evidence does not support them, then you have the option of asking the court to evaluate the evidence and find that there is insufficient evidence to put you on trial. If you are successful, this means the Magistrate will dismiss the charge and you will not be put on trial.
Apart from the option of asking the court to dismiss the charge, Preliminary Examinations are your opportunity to explore the evidence with your lawyer and find out exactly what it is the prosecutor alleges against you.
What does the court consider?
Evidence will be regarded as sufficient to put the defendant on trial for an offence if, in the opinion of the Court, “the evidence, if accepted, would prove every element of the offence.”
The court has the power to reject evidence if is plainly inadmissible. However, generally the Court will admit the evidence for the purpose of the preliminary examination, reserving any dispute as to its admissibility for later in the process.
Do I have a case to answer?
At this stage the Court is still not concerned about whether you are guilty or not. It is more concerned with the offence that you have been charged with and the available evidence.
The test the court applies when considering if you have a case to answer is whether, with respect to every element of the offence, there is some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred: R v Spilios  SASCFC 6; Zanetti v Hill  HCA 62; (1962) 108 CLR 433, 442; R v Bilick (1984) 36 SASR 321, 337.
The magistrate examining your case is only concerned as to whether there is any evidence at all that, if accepted would mean a jury could legally convict you. The State of Western Australia v Burke  WASCA 190  See also, Zanetti v Hill  HCA 62; (1962) 108 CLR 433; R v Bilick (1984) 36 SASR 321, 337; Questions of Law Reserved on Acquittal (No 2 of 1993)  SASC 4152; (1993) 61 SASR 1, 5; R v Brady & Smythe  SASC 277 – .
The examining magistrate will usually do all this by reading the declarations and considering submissions from you and from the DPP.
It is essential to seek legal advice before deciding whether to challenge the evidence at a preliminary examination. It is extremely difficult to convince a magistrate to throw out your charge at a preliminary hearing. Everything is taken in favour of the prosecutor and it is not just a matter of convincing the court that you’re not likely to be guilty or that you have a strong defence.
A ‘no case to answer’ submission
Your lawyer can potentially make a ‘no case submission’ at the preliminary hearing, which means that you would submit to the examining magistrate that due to a lack of evidence from the prosecution to support the charge against you there should be no charge at all.
Barristers and lawyers have different views about the utility in conducting a no case submission at a preliminary hearing and there are often tactical reasons not to do so. For example, you might tip off the prosecution as to your defence, or you might give them an opportunity to fix deficiencies in their case that they might otherwise not have seen.
Preliminary hearings are an essential part of the pre-trial process. They are important in helping you and your lawyer understand what it is the prosecution say you have done and how they intend to prove it. The evidence does not always match what the police or the prosecution say it does and a preliminary hearing is your opportunity to find that out before you are put on trial.
If the examining magistrate finds that you have a case to answer, then you will be committed to the District Court for an Arraignment.