General Information - Criminal Law

What are my rights if the police want to speak to me?
Scenario: you are walking along the street and a police officer approaches you and requests your details. Do I have to supply my details to the police officer?
A: In most circumstances you are not obliged to supply your details to the police officer or even answer their questions. Secondly, the police officer should inform you of his/her name, Police Station where attached and the reason for wanting to speak to you.

    A Police officer can request your details in certain circumstances.
  1. If the officer believes of reasonable grounds that you may have witnessed an indictable offence. It is an offence not to supply your details in those circumstances
  2. Pursuant to the road transport legislation as to the identity of the driver/passenger of a motor vehicle where an offence occurred

If in doubt, contact David Spencer of Spencer Lawyers servicing Central Coast, Sydney Metropolitan and Newcastle Courts.

Stop and Search
Scenario: I was driving my car or walking along the street when I was stopped by the police who proceeded to search me or my car. The police didn’t tell me why they were searching my car or didn’t have any reason to search my car. What are my rights?

A: The police have no power to search without reasonable cause prior to an arrest.

The police may stop and search a vehicle or person if they reasonably suspect that the vehicle or person are carrying something stolen, anything unlawfully obtained, a firearm or anything used in an indictable offence. There must be some factual basis for the police to hold the suspicion.

The police officer should inform you of his/her name, Police Station where attached and the reason for wanting to search you.

If the police have not complied with their statutory duty, then their search may be deemed illegal and any evidence the police find may not be admitted into evidence at Court.

What do I do if the police want to search my house, car or person?
If the police are seeking your consent to conduct the search they must have formed the view they do not have a valid reason for conducting the search. If that is the case you should ask the police officer whether they are giving you a choice and if so, you may decline the police request. If the police state they do have the power, ask the police officer on what grounds is he/she relying on to conduct the search. Remember, you do not have to answer any questions put by the police officer to you.

What are my rights if I am arrested
Arrest by the police should only occur as a last resort. The Police must not arrest a person for the purpose of taking proceedings against that person unless they suspect on reasonable grounds that it is necessary to arrest them to achieve one or more of the following purposes:

  • Ensuring the person appears at court in respect of the offence. (Normally only occurs if there have been previous times when you have failed to appear or if it is a serious charge where there is a likelihood of a custodial sentence)
  • Ensuring there is no repetition or continuation of the offence or the commission of another offence
  • Ensuring the person does not interfere with any evidence
  • To prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence
  • To prevent fabrication of evidence in respect of the offence
  • To preserve the safety or welfare of the arrested person
The alternatives to arrest are:
  • caution
  • warning
  • infringement notice
  • penalty notice
  • court attendance notice
  • youth justice conference
If you are arrested the police must ensure:
  • There are reasonable grounds to suspect you have committed an offence
  • They use only minimum force if any force is required
  • They inform you of the reasons of the arrest along with certain statutory safeguards
  • Any non compliance by the police may effect the lawfulness of their actions and any subsequent evidence that arises following the arrest
  • Evidence that the person who is arresting you is a police officer (unless in uniform)
  • Their name and place of duty
  • The reason for the arrest
  • A warning that failure or refusal to comply with the arrest may be an offence
  • You are taken to the nearest police station where there are charging facilities

Do I have to be interviewed before or after arrest?
NO you do not have to be interviewed before or after arrest.

The Police MUST caution you that you are not obliged to say or do anything as anything you say or do may be recorded and later used in evidence.

What are my rights regarding a forensic procedure?
The police have been given wide powers to obtain a forensic sample from a suspect.

This area of law is quite complex and we strongly advise you contact David Spencer of Spencer Lawyers servicing Central Coast, Sydney Metropolitan and Newcastle Courts prior to consenting to such a procedure.

I was charged with a matter while on holidays
If you were a visitor to the Central Coast, Newcastle or Sydney metropolitan area, charged by police to attend court but do not live nearby contact David Spencer of Spencer Lawyers servicing Central Coast, Sydney Metropolitan and Newcastle Courts to discuss your position.

If you were bailed by the police or court you must attend.

However, if you were given a Court Attendance Notice and there is no bail, you may want a solicitor such as David Spencer to prepare for your court matter and speak on your behalf.

If you are in such a position, contact David Spencer to discuss your situation.

I want to appeal the sentence or conviction of the magistrate
If you want to appeal the sentence or conviction of a Magistrate you have 28 days to lodge your appeal. If you fail to lodge your appeal within the 28 days but 3 months since the date of the sentence or conviction has not expired you may make an application to seek leave to appeal.

Contact David Spencer of Spencer Lawyers servicing Central Coast, Sydney Metropolitan and Newcastle Courts if you require assistance in lodging appeals.

I’ve been charged with assault but was only defending myself
Being charged with an assault like most criminal matters is particularly serious and a gaol sentence can follow.

    Self defence may arise if and only if you believe your conduct was necessary:
  1. to defend yourself or another person, or
  2. to prevent or terminate the unlawful deprivation of your liberty or the liberty of another person, or
  3. to protect your property from the unlawful taking, destruction, damage or interference, or
  4. to prevent criminal trespass to your land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as you
    Once you raise self defence it is up to the prosecution to establish either that:
  1. You did not genuinely believe that what you did was done in self-defence
    OR
  2. That what you did was not a reasonable response to the danger, as you perceived it to be

Do the police have the right to direct me or my friends to move on?
The police do have the power to request a person to move on if the police have reasonable grounds to believe that a person’s behaviour:

  • is obstructing people or traffic
  • constitutes harassment or intimidation
  • is likely to causing or likely to cause fear to other people, so long as the conduct would be such as to cause fear to a person of reasonable firmness
  • is for the purpose of drug supply or purchase
    1. reducing or eliminating the obstruction, harassment, intimidation or fear, or
    2. stopping the supply, or soliciting to supply, of the prohibited drug, or
    3. stopping the obtaining, procuring or purchasing of the prohibited drug
    The police officer must provide you with:
    1. His/her details
    2. Their place of duty; and
    3. The reason for directing you to move on

The police caught me with possession of a knife
It is an offence to possess a knife in a public place or school without a reasonable excuse.
A reasonable excuse is that you require the knife for work purposes and you were travelling to or from work at the time the police located the knife or you were going to or from fishing and you required the knife for that purpose.

Self defence is not a reasonable excuse.