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Criminal Law: Other Criminal Law

Home >> Legal Information Centre >> Legal Topics >> Criminal Law >> Other Criminal Law

Frequently Asked Questions

You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.

What do I do if I cannot attend court?
- You must do everything you can to attend court as required for every hearing including mentions.
- If you do not attend court a warrant can be issued for your arrest. Police will then arrest you and bring you before the court.
- If there exceptional circumstances why you cannot attend court then you should:
  - discuss this with your lawyer and ensure that they can go to court on your behalf and explain to the court why you are absent.
  - If you are self–represented you should contact the court and tell them you are unable to come and fax through any supporting documentation. You should also let the police or the prosecutor know.
- If there is a medical reason you should obtain a doctor's letter or report. If you have a lawyer give it to your lawyer. If you are self-represented send the letter to the court and to the prosecutor.
- A normal doctor’s certificate for work purposes will not be enough. It is important that the doctor knows why you need the letter and that it will be submitted to the court.
- If you have a lawyer they will contact you to advise you what happened at court and when the next hearing is.
- If you are self-represented you should contact the court after the hearing to find out what happened with your case and when it is next listed.
- There is no guarantee that a warrant will not be issued for your arrest even if you take these steps.
- If a warrant has issued you should immediately call a lawyer to discuss your options about when and how to hand yourself in to the police.
>> Read more & related FAQ's
When do I find out what evidence the police have against me?
- When you are charged you will be given a copy of the police summary. This is a summary of the case against you and is usually 1-3 pages long depending on how many charges there are. It is a brief outline of the circumstances of the alleged offence or offences.
- The summary will generally describe:
  - the evidence against you;
  - when and where the offence occurred;
  - the names of witnesses and victims; and
  - whether or not anyone else was involved and if they have been charged.
- After the initial filing hearing you are entitled to receive a copy of the police brief of evidence. This is provided around 6 weeks after the filing hearing.
- The brief of evidence must include all the evidence the police are relying on to support their charges. It will include:
  - witness statements;
  - electronic recordings;
  - photographs;
  - a list of exhibits;
  - forensic evidence such as fingerprint evidence or DNA analysis;
  - a transcript of your police record of interview; and
  - a copy of your criminal history.
- It is important to give the brief of evidence to your lawyer as soon as possible after you receive it. If you do not have a lawyer our LegalPlan™ membership will allow you to ask lawyers to handle your matter for a Fixed Fee Quote.
>> Read more & related FAQ's
What if I can’t afford a lawyer?
- If you have been charged with a criminal offence and cannot afford legal representation you may be entitled to legal aid assistance.
- If you qualify for legal aid you may be allocated a legal aid lawyer or you may be able to choose you own lawyer. Their fees will then be paid by legal aid.
- In Victoria contact Victoria Legal Aid:
  - http://www.legalaid.vic.gov.au;
- In New South Wales contact Legal Aid NSW:
  - http://www.legalaid.nsw.gov.au;
- In Queensland contact Legal Aid Queensland:
  - http://www.legalaid.qld.gov.au;
- In South Australia contact the Legal Services Commission of South Australia:
  - http://www.lsc.sa.gov.au
- In Western Australia contact Legal Aid WA:
  - http://www.legalaid.wa.gov.au;
- In Tasmania contact the Legal Aid Commission of Tasmania:
  - http://www.legalaid.tas.gov.au;
- In the Northern Territory contact the Northern Territory Legal Aid Commission:
  - http://www.ntlac.nt.gov.au; and
- In the Australian Capital Territory contact Legal Aid ACT:
  - http://www.legalaidact.org.au.
>> Read more & related FAQ's
When do I get to tell my side of the story?
- You will give your lawyer ‘instructions’ or your side of the story throughout the case.
- At the beginning of your case your lawyer will get your basic instructions and give you some advice. This is your chance to mention any defence you think may be relevant.
- After you have received the brief of evidence you will be given another chance to tell your lawyer your side of the story and to comment on each piece of evidence in the brief. This is particularly relevant where you do not agree with what someone has said in their witness statement.
- If you plead guilty you or your lawyer can tell the court your side of the story at the plea hearing.
- If you plead not guilty you or your lawyer will be able to challenge the account of any witnesses the prosecution relies on when they give evidence.
>> Read more & related FAQ's
Do I get to speak to the magistrate or judge?
- If you are self-represented then you can speak on your own behalf throughout your case.
- If you have a lawyer representing you then it is their job to get your instructions and to speak on your behalf to the magistrate or judge.
- If there is something you want said in court you can instruct your lawyer about it. They will then give you advice as to when is the best time to raise the issue.
- If you are addressing a magistrate or judge directly you should always call them “Your Honour.”
>> Read more & related FAQ's
What is the difference between a summary and an indictable offence?
- Less serious offences are called summary offences. Summary offences are heard and determined by a magistrate in the Magistrates’ or Local Court.
- Serious criminal offences are called indictable offences. They are heard and determined by a judge and jury in the District, County or Supreme Courts.
>> Read more & related FAQ's
Can a serious offence be dealt with in a lower court?
- Some indictable offences are called ‘indictable triable summarily’. This means that the parties can choose or a magistrate can order that an indictable offence to be heard and determined in the Magistrates’ or Local Court.
- Sometimes this issue can form part of your plea negotiation. For example you may offer to plead guilty to a charge if the prosecution agree that it should be dealt with in a lower court.
>> Read more & related FAQ's
What do the police have to prove?
- The police or the prosecution bear the onus of proof which means they have to prove each element to the court beyond reasonable doubt. The accused person does not need to prove anything.
- In proving the offence the prosecution will call witnesses to give evidence in court about what the witness heard or saw. They can also call expert witness to give expert evidence about issues such as fingerprint or DNA analysis.
- The prosecution may also tender (submit) exhibits such as:
  - documents;
  - items used in the commission of the offence;
  - photographs;
  - CCTV footage;
  - forensic evidence such as a DNA analysis; and
  - recordings of police interviews with the accused person.
>> Read more & related FAQ's
I have a defence to this charge. When will we tell the court?
- If you wish to raise a legal defence you need to raise that defence on the balance of probabilities. This is a lesser standard than the prosecution standard.
- A lawyer is the best person to advise you about whether you have a legal defence and what you need to do to raise that defence.
- You can use our Phone a Lawyer service to request a preliminary legal consultation with a private lawyer who may agree to represent you.
>> Read more & related FAQ's
What will happen at my final hearing or trial?
- A hearing or trial is when the court puts aside time to listen to the evidence and decide whether you should be convicted of the charges.
- Most of the evidence is given orally in court. Police must provide you with written statements from each witness well before the hearing so that you know what each witness is going to say.
- You will be given a chance to read all the statements from the witnesses and then give your lawyer instructions or your side of the story.
- At the hearing your lawyer will be able to ask witnesses questions about what they have said and what they wrote in their statements. This is called cross-examination.
- Electronic evidence such as CCTV or a record of interview will be played in court.
- The court will listen and record all the evidence of the accused, all the witnesses in the case and the submissions that are made by the lawyers.
- After hearing all the evidence and submissions the magistrate or the jury will decide whether you are guilty or not guilty of the charge.
>> Read more & related FAQ's
What will happen at my sentence?
- If you are found ‘guilty’ your matter will be listed for a ‘sentence hearing.’ This is sometimes called a ‘plea hearing.’
- You should obtain any information you want the judge or magistrate to consider before the sentence hearing. This includes:
  - character references from people who know you well such as your employer or teacher;
  - letters from your doctor if you have been suffering from any medical condition;
  - letters from your employer explaining why you may need your vehicle for work purposes.
- If you ask someone to write a reference or letter to use in court it is important that you tell them why you need it and about the offence you have been charged with. The references and letters will carry more weight with the magistrate if you do.
- References for job applications and doctor’s certificates for sick leave will not help your case.
- For a repeat offender who may be facing imprisonment the court may order a pre-sentence report. This means someone from Community Corrections will interview you and advise the court whether you are suitable for a community based sentence.
- In deciding on sentence (penalty) the court will take into account:
  - the factual circumstances of the offence;
  - your personal circumstances including any references or letters;
  - your criminal history;
  - any Victim Impact Statements; and
  - any recommendations made in a pre-sentence report.
- Each state and territory has different penalties for criminal offences. The penalties available to the court are set out in the law applicable to the offence you are charged with.
- In most states and territories the sentences available for criminal offences include:
  - a fine;
  - a good behaviour bond;
  - a community corrections order including unpaid community work;
  - home detention;
  - periodic detention;
  - a suspended term of imprisonment; and
  - an immediate term of imprisonment.
>> Read more & related FAQ's
Can I appeal my conviction or my sentence?
- You can appeal the verdict and sentence to the District or County Court or the Court of Appeal. If you want to appeal you should be aware that:
  - there are strict timeframes for lodging an appeal; and
  - on appeal you could face a harsher penalty than the one you received at first instance.
- You can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
>> Read more & related FAQ's
What are the rights of a juvenile who has been arrested?
- A juvenile who has been arrested and taken into police custody should immediately notify the arresting officer of their age and ask for their parents or lawyer
- A young person cannot be interviewed fingerprinted or photographed except in the presence of their parent, lawyer or other nominated person.
- Young people who have been arrested:
  - have the right to remain silent during the police interview apart from giving their name date of birth and address;
  - are not required to make a statement or sign any document; and
  - are entitled to free legal representation.
- If the young person is of Indigenous or Torres Strait Islander background police must notify the relevant Aboriginal Legal Service in the state or territory where the arrest took place.
- The police cannot detain any person including a juvenile for longer than 24 hours unless:
  - they have been to court and the judge or magistrate has refused bail; or
  - the person is being detained on suspicion of a terror-related activity.
- You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice
>> Read more & related FAQ's
I am a juvenile and following my arrest I was charged with an offence and issued a summons. Do I have to go to court?
- If you have been charged with an indictable (serious) offence you must attend the specified court at the date and time listed on the summons.
- If you do not attend the judge may issue a warrant for your arrest.
- If you have been charged with a summary (minor) offence you do not have to attend court but it is better if you do.
- If you do not attend the magistrate may determine your guilt or innocence in your absence.
- This means you may be found guilty and sentenced without having the opportunity to present your side of the story.
- You should always attend court as this will improve your chances of a more positive outcome. Dress neatly and be on your best behaviour.
- Our LegalPlan™ membership will allow you to ask lawyers to handle your matter for a Fixed Fee Quote.
>> Read more & related FAQ's
Will I get a criminal record for a juvenile offence?
- In most jurisdictions an offender under the age of 16 will not have a criminal record. For offenders older than 16 years whether a conviction is recorded will depend on the individual circumstances of the case.
- It is possible for a judge to find you guilty and award you a penalty but still decide not to record a conviction against you in which case the offence will not go on your criminal record. This is unlikely to happen unless you attend court and try to make a good impression on the judge or magistrate.
- In determining whether or not to record a conviction the judge will look at:
  - the seriousness of the offence;
  - whether you are a first time offender or have a history of offending;
  - your personal circumstances such as your socio-economic background or mental health issues; and
  - other relevant factors including details of how your life and future prospects will be affected if a conviction is recorded.
- If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
>> Read more & related FAQ's
Who can attend my court hearing?
- In all states except Victoria and the Northern Territory the Children’s Court is a ‘closed court’.
- This means that no one apart from persons directly involved in the matter and the child’s parents or guardian are allowed to attend.
- The rules differ in each state. In Queensland hearings for first-time offenders are closed to the public but hearings for repeat offenders are open to the public. Media can attend the hearings and publish the names of juvenile offenders. This is prohibited in other states and territories.
>> Read more & related FAQ's
What is the maximum penalty I can be issued in the Children’s Court?
- Most Children’s Courts can issue a maximum penalty of a control or youth detention order lasting 2 years.
- This is a custodial sentence served in a juvenile detention centre.
- Like adult prison sentences this sentence can be suspended.
- This sentence is generally only issued as a last resort and is usually reserved only for repeat offenders.
- Magistrates are required to consider other sentencing options such as community orders or fines before considering the appropriateness of a control order.
- Some states have mandatory sentencing laws that apply.
>> Read more & related FAQ's
What is the maximum penalty a juvenile offender will receive in a court other that the Children’s Court?
- A juvenile offender sentenced in a court other than the Children’s Court is subject to the same maximum penalties as adult offenders.
- These are harsher than the penalties available to offenders dealt with by the Children’s Court.
- Each state and territory prescribes the maximum penalty available for individual offences.
- For more serious offences mandatory sentencing rules can apply to juveniles no matter the individual circumstances of the case:
  - in Queensland, South Australia and the Northern Territory a person found guilty of murder faces a mandatory life sentence regardless of their age; and
  - Western Australia has ‘three strikes and you’re in’ legislation which makes it mandatory for a judge or magistrate to sentence repeat juvenile offenders who are convicted of home burglary to a minimum of 12 months detention.
- A juvenile offender sentenced in a court other than the Children’s Court will still have their age taken into account as a mitigating factor that may reduce the amount of the sentence.
>> Read more & related FAQ's
Is ‘joyriding’ still considered to be theft?
- Yes. Even where someone steals a motor vehicle and returns it they can still be charged with the offence of theft.
- Where a person steals a motor vehicle, proof that the accused took or used the motor vehicle without the consent of the owner is conclusive evidence that the accused intended to deprive the owner of it permanently even if the vehicle is returned.
>> Read more & related FAQ's
What does ‘claim of right’ mean?
- In order to establish shoplifting and theft it must be established that the accused person did not have a ‘claim of right’ at the time of the alleged offence.
- An example of a claim of right might be where a person took goods from a shop and genuinely believed they had already paid for the goods.
- The law has developed a series of principles about what a ‘claim of right’ means including:
  - the claim of right must be honestly held by the individual;
  - the claim of right must be based on legal entitlement not moral entitlement; and
  - the claim of right must extend to the entirety of the property or money that has been taken.
- You can use our free and anonymous Ask a Lawyer service if you have a particular issue you want to know more about.
>> Read more & related FAQ's
Which court will hear offences for shoplifting or theft in Victoria?
- Less serious theft offences will be heard and determined in the Magistrates Court by a magistrate. In Victoria the Magistrates Court has jurisdiction to hear theft cases to the value of $100,000.
- More serious theft offences will be heard and determined in the County Court by a judge and jury.
- Whether they are heard in the County Court or the Magistrates Court will depend on:
  - the seriousness of the theft alleged as determined by the value of the property;
  - whether there are any co-accused and in which court the co-accused are being dealt with; and
  - whether there are any other more serious charges to be heard at the same time.
>> Read more & related FAQ's
What is ‘aggravated’ burglary?
- An aggravated burglary is where an accused commits a burglary and at the time:
  - they had an offensive weapon in their possession such as a knife or firearm; or
  - a person was present in the building and at the time of entering the accused knew that a person would be present or was reckless as to whether a person was present.
>> Read more & related FAQ's
Can police issue an on-the-spot fine for shoplifting?
- No. From 1 July 2014 in Victoria police no longer have the power to issue an on-the-spot fines for shop theft offences.
- You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice
>> Read more & related FAQ's
What is the offence of robbery?
- Robbery is when a theft is committed and the accused uses or threatens to use force either:
  - during the act of the theft; or
  - in order to escape from the scene of the offence.
- The maximum penalty for robbery is imprisonment for 15 years.
- Where a weapon is used the offence is armed robbery and the maximum penalty is 25 years imprisonment.
>> Read more & related FAQ's
Is the prosecution required to prove who owned the stolen property to establish the crime of theft?
- No. The prosecution only needs to show that someone other than the accused owned the property.
- The identity of the owner is not required.
>> Read more & related FAQ's
What is meant by ‘a building’ for the purposes of the offence of burglary?
- Whether a structure is a ‘building’ will depend on characteristics such as:
  - size;
  - weight;
  - permanence of position;
  - the presence of doors and locks; and
  - the availability of electricity.
- Inhabited vehicles and vessels such as caravans and boats are buildings for the purposes of the offence of burglary.
>> Read more & related FAQ's
What is an ‘offensive weapon’?
- What constitutes an ‘offensive weapon’ includes:
  - an item that is made to cause injury or incapacitation;
  - an item that has been adapted to cause injury or incapacitation;
  - any item the accused threatens to use for the purposes of causing injury or incapacitation; or
  - any item the accused intends to use for the purposes of causing injury or incapacitation to a person.
- Examples include:
  - a knife;
  - a hammer;
  - a nail gun that has been adapted to shoot bullets;
  - a screwdriver;
  - a smashed glass bottle; or
  - a rock.
>> Read more & related FAQ's
Will I be penalised for not talking to police?
- You will not be penalised for not talking to the police or any other government authority such as Protective Service Officers.
- If you are interviewed you should:
  - ask to speak to a lawyer before the interview;
  - give them your name and address; and
  - give them your date of birth.
- You have the right to answer “no comment” to any further questions asked of you by the police. Answering “no comment” cannot be used against you at a later court hearing.
- Our LegalPlan™ membership will allow you to ask lawyers to handle your matter for a Fixed Fee Quote.
>> Read more & related FAQ's
What is ‘theft by finding’?
- Property that is merely lost still belongs to the owner and can be stolen. If a person innocently finds property such as money in a wallet and later keeps it or spends the money they will have stolen it.
- There is a difference between losing and abandoning property. Property no longer belongs to a person if they have intentionally abandoned it.
>> Read more & related FAQ's
What does handling stolen goods mean?
- Handling stolen goods is an offence under s88 of the Crimes Act 1958 (Vic).
- The offence has four elements (parts):
  - the accused handled goods;
  - the goods were stolen goods at the time that the accused handled them;
  - the accused knew or believed at the time that they handled the goods that they were stolen goods; and
  - the accused’s handling of the goods was dishonest.
>> Read more & related FAQ's

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Criminal Law: Other Criminal Law

Frequently Asked Questions

View more Information on Other Criminal Law

Connect with a Lawyer