Please be aware that the following information may specifically relate to South Australian law and may be of no assistance to those in interstate jurisdictions. This information is supplied by the Riverland Community Legal Service however Riverland Community Legal Service takes no responsibility for its contents. Every attempt has been made to ensure the accuracy and currency of this information at time of publication however individuals must take care to ensure that this information has not become out of date. Persons with legal disputes are urged to seek qualified legal advice wherever available.
The police want to question me, what should I do?
If you are being questioned in relation to a criminal offence it is highly advised that you speak to a lawyer beforehand. Generally it is best not to answer any police questions, except those that you are legally required to answer. In most situations you will have to tell police:
- Your name
- Your address
- Your date of birth
- Your business address
Failing to provide the above information (or providing false information) is an offence.
Additionally, you are now required to truthfully answer questions to identify the driver or owner of a motor vehicle where that vehicle is suspected of having been used in an offence. Refusing to identify the owner or driver is an offence.
Sometimes police will ask you to go to a police station to take part in a formal interview. You are only required to comply with this request if the police place you under arrest, otherwise it is your choice. If you are not under arrest and police ask you to attend a formal interview it is best to speak to a lawyer beforehand.
What happens if I’m arrested?
Once arrested, police will generally be required to take you to the nearest police station. Sometimes if you are charged with a serious offence the police may detain you in a particular place for a number of hours while they conduct further investigations.
After you are arrested the police must inform you of your rights. You should be cautioned that:
- What you say may be recorded and used against you in court
- You are allowed to make one telephone call
- You are entitled to have someone accompany you during your interview
- You have a right to an interpreter
- You have a right to a lawyer
If you are under the age of 16 the police will generally be required to notify a parent or guardian of their right to be present during the interview.
After you are arrested the police have a right to search you and take fingerprint impressions, DNA samples and other forensic evidence if it may be relevant to the offence. If you refuse to cooperate the police may use reasonable force against you.
Defending on the offence you may be asked to participate in an identification parade. You should always speak to a lawyer before deciding whether or not to participate.
How does bail work?
Bail can either be granted by police or the courts. Arresting officers will generally not be able to make the decision as to whether you will be granted bail; this decision is reserved for officers above a certain rank or for the officer in charge of the police station. Sometimes if you are arrested for a serious offence, the police will not be allowed to give you bail because of the conditions attached to the warrant of arrest.
If you are granted bail you will need to sign a bail agreement. This agreement will:
- Prevent you from leaving South Australia
- Require you to show up for all your court dates until the matter is finalised
- Require you to comply with other specified conditions (eg. you must not communicate with the victim of the offence)
- Require you to pay a certain amount of money if you breach any of the above conditions
Failure to comply with the terms of a bail agreement is an offence, and may be grounds for your bail to be revoked and for you to be held in custody until your matter is finalised.
Where police bail is refused you will generally be entitled to appear before a court on the next day (or sometimes in the afternoon of the morning you were arrested) for a bail review. If you have a lawyer, he or she should be notified of this court appearance, otherwise you may speak to a duty solicitor if one is available.
If you are granted bail you should receive a piece of paper with the date, time and place of your next court appearance.
Can I be charged with a crime if I was never arrested?
Sometimes you will receive a summons in the mail or have an authorised person deliver it to you personally. The summons should state your name, address, date of birth and what you have been charged with. The summons should also clearly state the date, time and place of your first court appearance. If you don’t show up to court when required, a warrant may be issued for your arrest.
What happens if the victim doesn’t want to press charges?
If the victim of an offence decides they do not wish to give evidence in court, they should contact the police and inform them of this. Sometimes (such as where there is an issue of domestic violence) police will be reluctant to withdraw the charge unless the victim attends a counselling session. Just because the victim doesn’t want to press charges does not necessarily mean the police will always withdraw the charge; if you have made admissions of guilt or if there are independent witnesses, the matter may still proceed even without the victim’s evidence. If it is a condition of your bail that you not contact the victim you must not contact them, even if you have reason to believe they want to withdraw the charge. You should never speak to a victim or witness and ask them not to give evidence; doing so may constitute an offence.
I’ve been charged with a crime, should I see a lawyer?
It’s almost always in your best interests to speak to a lawyer prior to any court appearance. A lawyer can help you identify any problems with the police case, give you advice about how to behave in court or otherwise appear for you in court on the day.
What should I bring to my appointment?
A lawyer will always need to know the substance of the case against you before they can give you any advice. This means they will need to see the summons (or complaint or information, depending on the circumstances) as well as the apprehension report. Often you will not be given the apprehension report until your first court appearance. If you haven’t appeared in court your lawyer will be able to request a copy from prosecution when it becomes available, or will accept it from the prosecutor on the day.
It’s also a good idea to bring a copy of your bail agreement and any other documents relating to your charge.
How should I behave in the Magistrates Court?
When you arrive at the courthouse you should check the case list (usually pinned to a wall near the entrance) to see which courtroom you are in. Alternatively, visit Case Lists on the evening before your court date to find this information. In the Berri Magistrates Court your matter will usually be heard in the courtroom to the left of the courthouse entrance. Once you have arrived at the right courtroom you should speak to a sheriff’s officer to have your name ticked off. Make sure to tell the officer if you have a lawyer coming to represent you.
Depending on the matters being heard and the amount of people in court on the day you may be required to wait inside or outside the courtroom. If are outside you will need to wait until the sheriff’s officer calls your name to enter the courtroom. Be aware that yours will not be the only matter listed at a particular time, and so you may have to wait a while before your matter is heard.
When inside the court be as polite and respectful as possible. You should remove any hat or sunglasses that are on your head and remain quiet until your matter is heard. If you are inside the courtroom when the Magistrate enters or leaves you will be required to stand up as they do so. Likewise, when the Magistrate is hearing your matter you may be asked to stand up or sit down when appropriate.
Will the matter be finished on the day?
The first time you appear before the court in relation to a criminal matter is called the “mention”. It is possible, if you are pleading guilty, to finalise the matter on the mention date, however this usually doesn’t occur. Be aware that your first court appearance is not the date of trial, and you will not need to bring any witnesses you intend to rely on. Generally there will be at least two court appearances before a matter proceeds to trial, and the length of time between arrest and the trial date will be in excess of six months.
What happens if I intend to plead guilty, but I don’t agree with everything the police are alleging?
When you have been charged with multiple offences it’s possible to plead guilty to some charges while still maintaining your innocence of the rest. If this is the case you will need to tell the Magistrate which charges you are guilty of, and those that you intend to contest. It’s also possible that you might agree that you have committed an offence, but still dispute some of the facts that police are alleging. If this is the case you should see a lawyer and ask them to negotiate with prosecution to see if a set of facts can be agreed upon. If no agreement can be made the matter will need to be set down for a dispute of facts hearing.
What if I don’t have time to find a lawyer?
If it is your first time in court you can simply ask the Magistrate to adjourn your matter for a number of weeks so that you can seek legal advice. Be aware that if you show up to your next court date without a lawyer the Magistrate will likely require an explanation as to why this is the case.
See also: Criminal Law