Criminal & Disciplinary

I am under police investigation, but have not yet been arrested and charged: do I need a lawyer?

Engaging a criminal lawyer may seem unnecessary if you have not yet been arrested and charged, or summonsed to appear at Court.

However, if you do not understand your rights and obligations as a suspect or defendant, there is a real risk of creating trouble for yourself in the long run.

Here are three important reasons to consider engaging a criminal lawyer sooner rather than later, if you are the suspect of a police investigation in South Australia.

What the police can and cannot require you to do

It is important to understand that while police officers have a wide range of powers to investigate suspected criminal offences, those powers are not limitless.  In some situations, police officers may direct suspects to do certain things.  In other situations, it is a matter for the suspect to make an informed decision about whether to assist the police on a voluntary basis.

For example, a police officer cannot force a person suspected of a criminal offence to answer questions about the allegation. The right to silence is fundamental, and no adverse inference can be drawn against a suspect who chooses to exercise that right.  It is an important right to be aware of. Statements made by a suspect during an interview, however uncontroversial they may seem at the time, may lead to a new line of enquiry for the police to explore.

On the other hand, a police officer can direct a person to undergo a suspects procedure, if it is suspected on reasonable grounds that the person has committed a certain category of offence or offences.  This is the case regardless of whether the suspect has been formally charged with the suspected offence.

A suspects procedure generally consists of a forensic procedure where the prints of the hands or fingers of a person are taken, or the DNA profile of a person is taken by buccal swab or finger-prick.  However, depending on the case, authorisation can be sought for more comprehensive procedures to take place.

A police officer authorised to carry out a suspects procedure is empowered to use reasonable force in order to carry out the procedure. Further, a person who intentionally obstructs or resists the carrying out of an authorised suspects procedure can be found guilty of an offence punishable by up to 2 years’ imprisonment.

This means that a person may be charged with a criminal offence of obstructing the carrying out of a suspects procedure, regardless of whether they are ultimately charged with the suspected offence that originally gave rise to the direction.

Employment repercussions and mandatory notification requirements

While a person who is under police investigation or charged with a criminal offence is entitled to the presumption of innocence, the mere fact of being investigated or charged can carry significant consequences to their employment.

With strict time frames in place for mandatory notification in some professions, it is vital that legal advice is sought early to ensure compliance with these notification requirements.

In particular, a person employed in a professional environment may have to make a mandatory notification or notifications well before they are required to appear in Court.

For example, registered health practitioners must, within 7 days of becoming aware that a relevant event has occurred, give written notice to their respective professional board.  A relevant event includes a registered health practitioner or student being charged with an offence punishable by 12 months’ imprisonment or more.  To illustrate: a psychologist charged with aggravated theft (an offence punishable by up to 15 years imprisonment) will need to, within 7 days of being charged, provide written notice of that fact to the South Australian Psychological Board.  Likewise, a dentist charged with basic assault (an offence punishable by up to 2 years imprisonment) will need to provide written notice of that fact to the Dental Board of South Australia within the 7 day period.

Similar notification requirements exist for those who work and volunteer with children. If the holder of a working with children check is charged with a criminal offence, regardless of whether that offence relates to a child, the holder must notify the working with children check screening unit of that fact as soon as is reasonably practicable.

A failure to comply with professional notification requirements can result in disciplinary action being taken against the individual.  In some cases, a failure to notify may constitute an offence punishable by a fine of up to $50,000.00.

Procedure following being arrested and charged

Being arrested is a stressful process and carries with it a lot of information for an arrestee to absorb.  Many suspects feel better prepared having obtained advice prior to their arrest, particularly with respect to the following matters:

  1. The consequences of resisting arrest, including potential criminal charges;
  2. The right to apply for release on police bail within the hours following an arrest and, should that be refused, the right to apply for release on Court-ordered bail;
  3. The importance of complying with any bail conditions and/or intervention order conditions imposed following an arrest, and the repercussions of non-compliance, including potential criminal charges; and
  4. The in-Court procedure that follows an arrest, including the disclosure of evidence, the taking of evidence and the ability to apply to vary the conditions of a bail agreement.

TGB Lawyers are here for you

The examples outlined in this article are far from exhaustive.  You should always seek legal advice at an early stage of your criminal matter, to ensure you are armed with important information that is relevant to your own unique set of circumstances.

TGB’s team of criminal lawyers are able to provide you with advice and representation at all stages of your criminal matter. Contact the author, Hanna Rogers or any member of our team today on (08) 8212 1077 to discuss your matter and how we can work towards reaching the best outcome for you.