I’ve never been in any trouble before, but I have just been charged with a criminal offence. What are 5 things I need to know?
It can be very daunting the first time you are charged with an offence.
We appreciate that when you have never been through the process before, there are probably a thousand and one questions going through your head, that you are stressed and need some guidance.
Our lawyers are here to help you. In the meantime, we have answered five of the most common questions below.
1. Should I give a police interview (also known as a record of interview)?
If a person has the opportunity to call a lawyer before they speak to Police or participate in a record of interview, they may be advised to:
- provide police with their full name, address and date of birth (as you are required to do so by law, in most cases);
- not to answer any other questions. Unless there are specific circumstances, for example, if you are required by law to provide your PIN code to your phone or if you are a youth offender and there could be significant disadvantages to not doing so.
The reason we give this advice is because police interviews are very stressful situations and are used as an investigation tool to gather evidence of an alleged crime. If a person gets confused or makes a mistake in their version of events, it could be held against them.
The advice must be specific to the needs of your case, and you should make sure you speak to a lawyer to find out whether there are rules that affect your right to silence.
Whilst it is often best for you to exercise your right to remain silent until after you have spoken to an experienced criminal lawyer, unfortunately, many people do not call a lawyer until after they have spoken to Police and/or been charged with an offence.
If you participated in an interview or answered any questions from the police, make sure you let your lawyer know. They can request a copy of the interview from the police and give careful consideration to future strategy, in light of what was said. There may be options to have the interview excluded from the evidence if proper procedures were not followed. It may be that your interview can be used to provide your version of events, without the need for you to give evidence at a trial. It could be that your lawyer can highlight your level of cooperation with police as a mitigating factor at your sentence hearing.
Even if you did speak to the police, it is important that you do not continue to discuss your matter with any other person (other than a lawyer). Anything you say to a friend, family member, counsellor or cellmate at the watchhouse, may be used against you in court. For more information, see our article outlining your rights with police & police interviews.
2. I have just been issued a Notice to Appear in Court. What should I do?
A “Notice to Appear” is a piece of paper that the Police give you when you have been charged with an offence. It creates a legal obligation on you to attend the Court at the date, time and location as detailed in the document.
Failure to do so can result in a warrant being issued for your arrest In some cases, the matter could be dealt with in your absence and you can be found guilty and punished for the offence, without having a say.
You may be surprised to learn that you have been charged with an offence when issued a Notice to Appear, as the Police can provide a Notice to Appear without arresting you or taking you to the police station.
It is important that you speak with a lawyer as soon as possible after you have been charged so that we can provide timely advice as to the next steps in your case. You may have been served with other related paperwork (often mistaken for duplicates) such as a Notice of Identifying Particulars, which requires you to undertake certain procedures with Police within a short timeframe.
Alternatively, depending on your employment or the licences and qualifications you hold, you may have obligations to disclose you have been charged with an offence.
3. I am about to meet with my lawyer for the first time. What can I expect?
Your first meeting with a lawyer will vary, depending on the nature of your charges and at which stage you have sought advice.
It will also depend on whether you have booked a short, free consultation or a more lengthy, paid conference.
However, generally, here are some things you can expect from meeting with a lawyer:
- an understanding of the nature of your charge or charges;
- important initial advice, such as your right to remain silent or urgent steps you need to take;
- an overview of the court process;
- an explanation of your options; and
- an indication of how your legal fees will be calculated.
Our goal is to ensure that after meeting with a lawyer at Potts Lawyers you have a better understanding of your options and how we can help. If you have specific questions, it may be useful to write them out in advance of your meeting.
It may or may not be appropriate for us to ask for your side of what occurred at the early stages of your matter, but if you do make any notes about what you wish to discuss with the lawyer, be sure to mark it “Confidential – For my lawyers only”.
4. Who decides my case? A judge or a jury?
If your matter is finalised in the Magistrates Court, whether you go to trial or plead guilty, your matter will be heard by a Magistrate. If your court appearance is a procedural court date only, it may be a Magistrate, Acting Magistrate or Registrar that deals with your case.
If your matter is proceeding to the higher courts (the District Court or Supreme Court), the case will be finalized before a judge and sometimes a jury. Most trials will involve a judge and a jury.
The jury consists of 12 people from the local community, picked at random. In a trial, the jury will be required to decide whether the defendant is guilty or not guilty. The Judge’s role at a trial will be to provide directions on the relevant law to be applied and to ensure the trial runs fairly.
However, in some particular cases, a defendant or the Prosecution can apply for a judge-only trial. This means that the judge will decide the facts as well as apply the law.
A judge will decide the appropriate penalty at a sentencing hearing in the District or Supreme Court. They also hear legal arguments or pre-trial hearings.
5. My lawyer just told me that my case will not finalise on the first court date. Do I have to go to Court for every step in my case?
Some simple cases may start and end on their first court date.
For example, a person who is charged with the traffic offence of ‘driving whilst demerit point suspended’ may wish to plead guilty at the first court appearance to start their mandatory driver’s licence disqualification as soon as possible (if they are in fact guilty of the offence).
However, for many cases, your matter will not be finalised on the first court appearance. For pleas of guilty in the Magistrates Court, your lawyer may recommend that you adjourn to undertake steps that will assist in reducing the penalty.
Alternatively, your case may be adjourned to allow disclosure of certain material from the Police and/or negotiations regarding amended charges or facts.
For more serious offences, there will be a number of steps in the Magistrates Court process before your charge or charges can proceed to the District or Supreme Court.
One of the benefits of having a lawyer engaged is that there may be a number of court appearances that you are not required to attend, provided your lawyer appears on your behalf and has your instructions. This is often the case for a person who has been granted bail and for the procedural court dates such as mentions.
Similarly, even if you are required to attend, having a lawyer will mean that your case is dealt with before those people who are waiting to see the duty lawyer or have elected to appear self-represented. In many cases, a defendant who is legally represented will only need to attend key court dates, such as the first mention and the hearing (trial or sentence).
It is critical that you have a very clear understanding of exactly when you do, and exactly when you don’t, have to appear in Court, even if you have a lawyer.
Don’t hesitate to reach out to our firm for expert legal representation and guidance tailored to your specific circumstances.