Blog post by Tom Cuthbertson
If you’ve been arrested then you might have already been charged with a crime. If you have not yet been charged, you may still be charged at a later date. This could mean that you might be served with a summons to go to court on a particular date, required to enter into a bail agreement with the police or even arrested again and held in custody.
Seek Legal Advice!
It is recommended that you seek legal advice as soon as you have been arrested and it is a good idea to consider whether you need to speak with a solicitor prior to any interview being undertaken with the Police. These interviews are recorded with audio-visual equipment and the Police are entitled to present those interviews to the court as evidence against you if you are charged with an offence. During these interviews and all dealings with the Police you have a broad right to refuse to answer any questions; this refusal cannot be used as evidence of your potential guilt. There are some exceptions however, and these include providing your name, address and personal particulars, identifying the driver of a motor vehicle and registration information.
If you are charged with a more serious offence, the Police may decide to refuse you bail and hold you in custody until the next available opportunity for you to appear in court. The law requires that in such circumstances you appear before a court no later than 4pm on the next business day. At this hearing you will have the opportunity to seek bail from a magistrate, which if successful allows you back into the community while your matter proceeds through court. Usually there are some conditions on this release, including curfew times, not contacting any witnesses and, of course, not breaching any laws.
Categories Of Offences
There are a number of broad categories of criminal conduct that determine the seriousness of the charge you are facing.
Expiable offences are the least serious – these include parking and traffic fines or any other offence for which you receive either an ‘on-the-spot’ fine notice or receive one later through the post. You do not need to attend court in relation to these offences provided you pay the fine, which amounts to a technical admission of guilt. If you wish to plead not guilty, then you will have your matter heard before a magistrate. If you are subsequently found guilty in the magistrates court, the fines will often be higher and court-fees will be payable as well.
Summary and minor indictable offences are also generally heard in the Magistrates Court. These offences are defined by the Summary Procedure Act, and although the precise characterisation of these offences is quite technically complex, a good rule of thumb is that summary offences are those punishable by a maximum of 2 years in prison. Some common summary offences include hindering police, various drug and drink driving charges, driving while disqualified, basic assault and disorderly conduct.
Major indictable offences are those that are extremely serious and carry extremely heavy penalties, they include murder, rape, aggravated robbery and aggravated assaults and drug trafficking. If you are charged with a major indictable offence, then the matter will automatically be listed for hearing by a magistrate in a process known as committal. A committal will determine whether, on the crown or police case, there is sufficient evidence for the matter to be committed to trial in one of the higher courts. These courts are the District Court, which is the main court for dealing with serious criminal offending – rape, assaults and drug trafficking – and the Supreme Court which deals, generally, only with murder cases. In the higher jurisdictions a charged person is able to elect to stand trial by a jury or by a judge sitting alone.
If you committed the acts that have been alleged by Police, it might still be the case that you are only guilty of a lesser offence. For example, in drug-related matters, it might be that while the police have alleged that you have been trafficking or dealing commercially with drugs, they were in fact for personal consumption. This can have an enormous impact on the penalties that apply. It is extremely important to seek legal advice before entering a plea in relation to criminal matters. It might even be, in some instances, that even though you have done the acts alleged by Police, they are not technically illegal.
Being charged with a summary, minor or major indictable offence can be an enormous burden; criminal proceedings are often complex, lengthy and result in psychological strain. Culshaw Miller Criminal Lawyers has experience in all areas of criminal law – contact us today to discuss your options with our criminal defence team.