Criminal Law

Criminal lawyers can advise you on

Your Legal Rights

Chambers Legal specialises in criminal law, and can assist you if you are charged with a criminal offence, or if you are under investigation for a criminal offence.

If you are charged by the police, or you are under investigation by the police, it is important that you understand your rights and get the right legal advice about the options available to you.

We can provide advice and representation for all criminal law charges, including assault, sex offences, drug offences, stealing and fraud, burglary and robbery.

We are able to assist you with your criminal charges and:

  • Advise you of your rights
  • Represent you for a bail application
  • Represent you at sentencing if you are pleading guilty
  • Represent you at trial if you are pleading not guilty
  • Apply for a spent conviction on your behalf so that a conviction does not come up on your police clearance
  • Negotiate with the prosecution to withdraw or downgrade your charge
  • Assist you with an appeal.

We can appear in all Western Australian Courts, both metropolitan and country. If your matter is being heard outside of the Perth Metropolitan area, we can either travel to you to appear in person, or appear via an audio or video link (where allowed).

Your rights when speaking to the police

The police have contacted me about an allegation that someone has made about me. Do I have to speak to them?

It is important to know your rights when speaking with the police.

In some cases, the police may contact you and ask you to participate in an interview in relation to an investigation.

The police may ask you to come in voluntarily, without placing you under arrest first. Alternatively, they can arrest you and take you to the police station.

You are not required to speak to the police about the allegation and you can choose to exercise your right to silence.

Generally, the only details you must provide to the police are your personal identifying details, being:

  • Your full name
  • Your date of birth
  • Your address.

The police will give you the opportunity to speak with a lawyer before speaking with them. If you do not know the number for a specific lawyer, the police will call someone for you, usually from a “Google search”. You should store our number in your phone contacts. Our number is (08) 9500 8915, and we can be reached after hours if needed.

A criminal lawyer will generally advise you not to answer any police questions, other than to provide your personal identifying details.

The reason why we will generally advise you not to speak with police is for a number of reasons, including:

  • The police won’t always act in your best interest
  • You do not know what evidence the police may have against you
  • The police may not have enough evidence to charge you
  • You are under no obligation to answer any questions other than identify yourself
  • The police cannot pressure or coerce you into answering their questions;
  • You may explain yourself in a way that will hurt your defence
  • Not answering questions cannot be used as evidence to prove that you are guilty
  • Your interview can be used as evidence in court, but if you do not answer police questions, it is unlikely to be used

You can tell the police that you do not wish to participate in an interview and that you have spoken to a lawyer for advice.

You can tell the police you intend on exercising your right to silence and that you will not answer their questions. You can remain silent when the police as questions or you can answer their questions with “no comment”.

If you decide to exercise your right to silence, it is best to exercise that right for all questions, and not just some questions. That is, you should say “no comment” to everything (except for providing your personal details).

Will the police think I am guilty because I have called a lawyer and refused to answer their questions?

No. Someone who is suspected of having committed an offence and is under investigation by police is fully within their rights to contact a lawyer and seek advice. 

A lawyer will generally advise you not to answer any police questions (other than providing your personal identifying details) because you may say something that will damage your defence and a lawyer will be concerned about preserving your position and keeping all options open.

The police are fully aware of an accused person’s rights and they are obligated to give you a caution before speaking with you. The police will tell you, as part of the caution, that you do not need to answer any questions. They will also ask you to confirm that you understand the caution by asking you to explain it in your own words and will ask you a question like “if I ask you 10 questions, how many do you need to answer?”

It is not a sign of guilt to exercise your right to silence.

The police have asked me to provide a statement about an incident I was involved in. Do I have to provide a statement?

You should first consider whether the police are asking you to provide a statement because they think you did something illegal and are under investigation, or if you were simply a witness to an incident and you are not otherwise suspected of any wrongdoing.

If you are under investigation and suspected of having committed an offence, you do not need to provide a statement to police and you can exercise your right to silence. You should call a lawyer if the police have contacted you and have accused you of committing an offence.

If the police want you to provide a statement about an offence that you witnessed, then similarly there is no obligation on you to provide a statement, but there may also be no harm to you in doing so. If you are unsure, you should contact a lawyer as soon as possible and discuss the options.

A lawyer can also assist you in providing a statement to the police, by drafting the statement with your instructions, and providing it to the police.

Going to court

If you have been charged with a criminal offence, you will need to attend court, where you can either:

  • Seek an adjournment
  • Plead guilty to the charge(s)
  • Plead not guilty to the charge(s)

If you seek an adjournment, your matter will be listed on a later date, where you can then decide whether you want another adjournment, or whether you want to enter a plea.

All charges will have hearings in the Magistrates Court at first. Depending on what the charge is, it may need to be transferred to the District Court or Supreme Court later in the proceedings for a trial or for sentencing.

If you plead guilty, you will be sentenced, either on that same day, or on a later date if reports are required, or if the matter is required to be heard in a higher court.

If you plead not guilty, your matter will be listed for a trial to be heard at a later date, either in the same court, or in a higher court if required.

You will ultimately need to decide whether you are going to plead guilty or not guilty to the charge. Depending on what the charge is, you can choose to see all of the evidence against you before making a decision.

You should speak to your criminal lawyer about what will happen in court for your specific charge.

Bail

If you are charged with a criminal or traffic offence, the police must decide on whether to release you into the community until your court appearance. Their options are to:

  1. Release you with a Court Hearing Notice
  2. Release you with a Summons
  3. Release you on Police Bail
  4. Refuse Bail
What is a Court Hearing Notice?

A court hearing notice is a notice for you to attend court on a specific date. These are usually given for less serious charges, for which imprisonment is unlikely.

It is not a legal requirement for you to attend court, and you may fill in the form on the back of the court hearing notice indicating your plea to the charge. The charge can be dealt with in your absence.

Whilst you are not legally required to be at court, you should seek advice from a criminal lawyer, and may have them represent you in court, with or without you present.

If you are pleading guilty, attending court with a criminal lawyer for your sentencing will allow your lawyer to present your case to the Magistrate in order to convince them to give you a penalty towards the lower end of the scale. A lawyer will also be able to make an application for a spent conviction if appropriate. For information on what a spent conviction is, please click here.

If you are pleading not guilty, you will be required to attend court on your trial date.

What is a Summons?

A summons is a requirement for you to attend court on a specific date.

If you do not attend court, the prosecution can request a warrant for your arrest, meaning you can be arrested and brought to court by the police.

You are required to attend court, even if you are represented by a lawyer.

What is Police Bail?

The police can release you on bail from the police station. Bail is generally considered for more serious charges.

Bail can be with or without conditions. Common bail conditions can include:

  • A personal undertaking, requiring you to pay a sum of money if you fail to attend court
  • A surety, requiring another person to pay a sum of money if you fail to attend court
  • A residential condition, requiring you to reside at a particular address
  • A curfew to ensure that you are at home within a certain time
  • Protective bail conditions preventing you from contacting or approaching the complainant or potential witnesses
  • Handing in your passport
  • Not to leave Western Australia
  • Not to be within a certain distance of points of departure (eg the domestic and international airport)

Regardless of the conditions, you will be required to attend court on a specific date. If you do not attend, you can be arrested by the police.

Depending on your reasons for not attending court, the court can refuse your bail again and you may be held in prison until your matter is resolved.

What happens if the police refuse to release me on bail?

The police can refuse to release you on bail if they consider the charge(s) to be very serious, or if you have a significant criminal history, or if they have concerns that you may not attend your court hearing.

If you are refused police bail, the police are required to take you to the Magistrates Court as soon as practicable. There, you can ask the Magistrate to release you on bail. If it is late in the day, you may need to spend the night in custody, and be taken to court in the morning.

If you are given bail, there will be conditions that you must adhere to (see conditions under “What is Police Bail”) and you will be required to attend court at a later date. If you do not attend, you can be arrested by police.

Depending on your reasons for not attending court, the court can refuse your bail again and you may be held in prison until your matter is resolved.

You should speak to a criminal lawyer about applying for bail. It is important that the bail application is done properly the first time because if the Magistrate refuses to release you, it is very difficult to apply a second time.

What happens if the court refuses to release me on bail?

If you are refused bail by the court, bail will not be considered again unless you can show that:

  • New facts have been discovered
  • New circumstances have arisen
  • Circumstances have changed since the last occasion
  • You failed to adequately present your case for bail on the previous occasion

If you are not granted bail, you will be taken to prison until your charge has been dealt with. For some people, this could mean a matter of weeks, months or years.

If you are in the Perth Metropolitan area, for males, you will most likely go to Hakea Prison. For females, you will likely go to Melaleuca Prison. Both of these prisons are in Canning Vale. Depending on the length of time you are to spend in prison, and the volume of people in the prison, you may be moved to a different prison.

What is a surety?

A common way you can help the person is to be their surety. A surety is a signed undertaking, signed by a family member or friend,  agreeing to forfeit a sum of money if the person does not attend court. You need to show proof of assets if you are signing a surety undertaking for someone.

If the person attends court as required, you will not have to pay any money. If the person does not attend court, the State can make an application to the court for you to pay the surety amount.

The surety can be for the next court appearance only, or it can be an ongoing surety for the whole time that the person’s matter is in court. It is preferable to have an ongoing surety.

If bail conditions change, the surety will have to sign a new undertaking.

I am helping a friend or family member who has been charged, but I cannot pay any money towards their bail. What can I do?

In some circumstances, the court may impose a bail condition that the person has to pay a cash deposit. In this case, the cash deposit will have to be paid before the person can be released. This obligation often falls to a friend or family member.

However, a cash deposit is not very common, and in most circumstances, no money will need to be paid for bail.

I have been granted bail, but the conditions are preventing me from working or seeing my children. What can I do?

If your bail conditions are preventing you from working or seeing your children, you can apply to the court to vary your bail conditions.

You should obtain proof of your employment, and explain how it is impacting your employment.

You should seek advice from a criminal lawyer regarding an application to vary your bail conditions.

In some cases, it may not be appropriate to change your bail conditions. For example, if the alleged offending is against your child, or against your employer.

What happens if I miss a court appearance?

If you do not attend court, and you were required to attend as per a summons or bail, then there may be an arrest warrant issued.

Is there is an arrest warrant issued, you should attend your closest police station or courthouse as soon as possible with some identification. Otherwise the police can come to your house or place of work and arrest you.

Your matter will be listed in court, and you will have to ask the Magistrate to give you bail again.

You should seek advice from a criminal lawyer if you have missed a court appearance.

What happens if I breach my bail conditions?

The impact of breaching your bail conditions can depend on what you have done to constitute the breach.

You may be charged with breaching your bail, and the prosecution may ask for your bail to be revoked. If your bail is revoked, then you will be taken to prison and kept there until your charge has been dealt with.

You should seek advice from a criminal lawyer regarding any breach of bail.

What happens if I am on bail and I am charged with committing another offence while on bail?

It depends on what your original charges are, and what your new charges are.

If you are on bail for a “serious offence”, and you are charged with another “serious offence” whilst on bail, you become what is known as a “Schedule 2” offender.

“Serious offences” are listed in the Bail Act, and can include offences such as burglary, robbery, stealing a car, stalking, deprivation of liberty, indecent assault, assault occasioning bodily harm, grievous bodily harm, possession of a prohibited drug with intent to sell or supply and breach of restraining order. Please note that this is not an exhaustive list.

This means that in order to get bail again, you must show exceptional circumstances. It is extremely difficult to get bail if you fall into this category.

If you are not a “Schedule 2” offender, then police must decide whether to release you on a Court Hearing Notice, Summons, Police Bail or refuse you bail and take you to a court to consider bail.

You should speak to a criminal lawyer about your circumstances, and whether you may need to show have exceptional circumstances to apply for bail again.

Spent Convictions

Will a conviction go on my record?

If you are convicted of an offence, either by your own plea of guilty, or if you are found guilty after a trial, it will be recorded on your criminal record.

However, the conviction may be “spent”, which means that it will not appear on a National Police Check, and you will not have to declare the conviction to anyone, unless you fall under a special category.

The police and court will have access to all of your convictions, even if they are spent.

A National Police Check will show all convictions and pending charges, unless they are spent.

What is a spent conviction?

 A spent conviction is essentially a “hidden” conviction, that will not appear on a National Police Check. You will not have to declare a spent conviction to anyone, unless you fall under a special category.

For example, doctors, nurses, teachers, lawyers and security licence holders will have to declare all convictions, including spent convictions.

Why would I need a spent conviction?

Having a conviction recorded can cause difficulties in your life.

Many employers will require you to produce a police clearance as part of your employment, or when applying for a new job. Most people would apply for a spent conviction for employment purposes.

You may also need a spent conviction in order to obtain a visa for travel to certain countries.

Some volunteer work will also require a spent conviction.

When and how do I apply for a spent conviction?

You will need to apply for a spent conviction at the time of sentencing.

You will need to convince the court that you:

  • Are unlikely to commit such an offence again
  • That the offence is trivial or that you are of prior good character
  • That you should be relieved immediately of the adverse effect that the conviction may have on you.

You should bring supporting evidence, such as character references, a letter from your employer or your employment contract which shows that you require a police clearance.

If you do not apply for a spent conviction at the time of sentence, or if you are refused a spent conviction, then you will have to wait 10 years before you can apply for a spent conviction again.

You may be unable to get a spent conviction depending on what you are sentenced to. For example, you cannot apply for a spent conviction if you get sentenced to imprisonment.

You should speak to a criminal lawyer about making an application for a spent conviction. Your criminal lawyer may advise you about doing a program or course which may better your chances at getting a spent conviction. Your criminal lawyer can also tell you what should be included in a character reference, and can provide you with a template.

Negotiating with the Prosecution

In some circumstances, it may be appropriate to make a plea offer or submission to the prosecution in order to discontinue your charge, downgrade or amend your charge to a lesser or different offence, or amend the facts of the charge.

A plea offer or submission to the prosecution may be the difference between having a trial and having your matter dealt with at an early stage, saving you in legal fees in the long run. It can also take away the risk of you being found guilty at a trial.

Submission to Discontinue Your Charge

A prosecution should only continue if there are reasonable prospects of conviction, meaning there is enough evidence for you to be found guilty.

In some cases, it is obvious that there are flaws with the evidence that the police have which means that they will be unlikely to prove the case against you.

A lawyer can write to the police or prosecution and explain the weaknesses in their case. In some circumstances, the police or prosecution will agree that the case is weak and discontinue or withdraw the charge.

 

Submission to Downgrade or Amend Your Charge

Sometimes you may agree that you committed an offence, but that you have committed a lesser offence than what the police have charged you with.

In that case, a lawyer can write to the police or prosecution and make an offer on your behalf to plead guilty to a lesser charge. A lawyer can also explain to the police or prosecution why it is in their interest to accept the plea offer rather than go to trial.

 

Submission to Amend the Facts

You may agree that you committed the offence, but you disagree with how the police say you committed it.

You will receive a Statement of Material Facts from the police which outlines how they say you committed the offence. This will be read out to the Magistrate or Judge at a sentencing. If you disagree with what is says, you should get some advice from a criminal lawyer.

The Statement of Material Facts is the basis upon which you will be sentenced. Therefore, you need to ensure that you agree to what it says.

A lawyer can help you with putting your case forward to the police and prosecution and providing them with a Statement of Material Facts that you agree with, so you can be sentenced according to what you say happened.

It is important to make sure that the Statement of Material Facts reflects your version of events and not something more serious that what you say you did. It could be the difference between going to jail and staying out of jail. For example, you may agree to an assault, but only say you punched the victim, as opposed to punching and kicking the victim. Your sentence may be more serious if you are sentenced on the basis of having kicked the victim as well.

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(08) 9500 8915
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