Criminal Law FAQ

Frequently Asked Questions – Criminal Law

Here are some of our most frequently asked questions pertaining to criminal Law. If you have a question that is not listed please call us or book a time so that we can give you peace of mind with an answer.

1. Is it true that everyone is innocent until they approve guilty?

Yes. Every person in charged with a criminal offence is entitled to have the case proved against them before they have to say anything. This does not necessarily mean that you have to go through a trial. But what it does entitle you to do is to ask for all of the Police Evidence to be provided to you (e.g. witness statements, forensic testing details, CCTV footage etc.) so that you know exactly what can be proved and cannot be proved against you.

2. What should I do if I am questioned by Police?

You are entitled by law to remain silent until you get legal advice. You can never be criticised by either Police or the Court if you exercise that right to silence-in fact, courts recommend you get legal advice before you do say anything. Police also recognised that right and will not interfere with your right to do so. If you are questioned by police, you should talk to them as would any person who is entirely innocent and uncertain what to do. It is a matter for you what to say as whatever you say will be recorded. For example, it is perfectly proper to say “Before I say anything, I would like the opportunity to 1st speak to a lawyer”. You could even say “I read on a website that the proper thing to do is to say that you would like to get legal advice before you say anything and that is what I would like to do”.

3. Will I be arrested if I did not say anything?

Whether you will be arrested is a matter for the Police. You will soon find out if you exercise your right to silence. If the police are going to arrest you, they will say “you are under arrest”. You should immediately ask what for. You should then say you would like to call a lawyer. Police will usually say that you will be able to do that at the police station. They are required to take you to the police station immediately and as soon as you get there, you should ask the Duty Sergeant
to be able to call a lawyer. Ring our office immediately on 8231 5755. Our phones answer 7 days a week. Remember, when you do ring, your telephone call will most likely be recorded.

4. What happens if I am arrested?

You will be fingerprinted and photographed. The only question you do have to answer is your full name and address. You do not have to answer anything else. You should immediately ask to speak to a lawyer and ring our office.

5. What if the police say to me that if I fail to answer any questions it may count against me at the future trial of my matter?

Police often do to say exactly this to people they arrest. There is nothing wrong in them doing so. It is true that you do get credit if you cooperate with police and their enquiries. However, you do not lose that credit if you ask to speak to a lawyer first. If there are things you would like to tell the police which you think would be to your benefit, you should discuss them with your lawyer first. Your lawyer will help you get the maximum benefit from that information whereas if you try and give it to police yourself, you may not get the credit you deserve. The police often called this getting a “discount” on your sentence. It is true that you will get a discount if you cooperate early but again, you will not lose that discount if you ask to speak to a lawyer first. It is most important that you call us immediately as soon as you can.

6. If I know I did something wrong, does that mean I am guilty?

Not necessarily. The law is very complex. For example, in relation to road traffic matters, there is a charge called “speeding” and another charge called “speed dangerous”. Both involve driving your car over the speed limit. However, the penalty is significantly different between the 2 charges, one usually just a monetary fine and the other one is a loss of license for up to 6 months. If you are not careful, you can get yourself into a lot of trouble by answering questions without getting legal advice first. Remember the ancient cliché “loose lips sink ships”. The best advice is to say nothing and keep your mouth shut. Ask to speak to a lawyer and then we will give you the advice you need. Also, with our many years of experience, we are often able to negotiate with the Prosecution and have charges downgraded or reduced to something less. You should always get legal advice as soon as possible. Ring now, we answer our phones 7 days a week.

7. Do those our code testing machines you bind the supermarkets and motors specialist shops really work?

Generally speaking, they are getting more accurate and are often a very good guide. The problem is knowing how alcohol levels fluctuate in a human body. In short, if you drink a standard drink at say 8 PM, you will not reach the maximum level of alcohol in your blood until 9 PM. Each standard drink contains approximately .02 mg of alcohol. It takes the body approximately one hour to absorb that amount of alcohol. It then takes the body approximately one hour to lose that amount of alcohol. Accordingly, by way of general advice only (and each person is different), if you drank a schooner of standard beer or a glass of white wine at 8 PM, your blood alcohol reading would be .02 at about 9 PM (obviously, it depends how long you take to drink the whole glass. But this example, we assume you skulled it say that the entire glass was within your body within say 1 minute. By 10 PM your blood alcohol reading should be down to 0. The difficulty with using the do-it-yourself breath analysis machine is that it depends what time you have your last drink and when you are stopped by police. Your blood alcohol level could still be rising or could be decreasing. It gets more complicated if you drink more than one drink as you then have the combined effect of one alcoholic drink increasing in the level of alcohol in your blood at the same time as another alcoholic drink is decreasing.

8. Can I get a permit to drive to work if I otherwise lose my license for drink-driving?

No. However, depending on your driving history, it is possible in some circumstances to apply for a alcohol testing device to be installed into your motorcar once you have served 50% of your sentence. Providing you register 0% when you blow into the machine, you are then able to drive your car. These are known as “interlock” devices. You need to purchase the device to have it installed in your car.

9. If I am stopped for a random breath test, is there anything I should do that might help?

You should always ask for a blood test. Police will give you a blood testing kit that you can then take to a local hospital. You need to go straight away. Unfortunately, the delay at the hospital can be lengthy depending on when you arrive but if you do not get a blood test done, you will not be permitted to challenge the evidence of the breath analysis machine which will otherwise then be deemed to be accurate no matter what. Getting a blood test can often show that the results of the breath analysis machine are not entirely accurate and a difference of simply a few milligrams can either put you above or below the legal limit and potentially, save you thousands of dollars and the loss of your license.

10. Will my name be in the paper?

As a general rule, only sensational cases are reported in the press. You need to be a newsworthy attraction before the press will be interested. Suppression orders are extremely difficult to obtain. There is no “one size fits all” and every case must be treated on its merits.

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