Frequently Asked Legal Questions
What you say in a record of interview can significantly impact the course of your case. Therefore, before answering questions, you should always contact a criminal lawyer for advice, regardless of whether you are innocent or guilty.
Depending on the circumstances, a lawyer may advise you to answer questions from the police, provide a written statement or answer 'no comment'.
You will always be given the opportunity by the police to call a lawyer before an interview commences. We highly recommend doing so.
Once charged by the police, your matter will go to Court. Cases generally go through a number of hearings before reaching the final hearing.
You have a decision to make and should get legal advice. You can:
- Plead guilty - Your lawyer will prepare a plea and the Court will sentence you according to the sentencing options set out by the legislation.
- Plead not guilty - You fight the charges at a contested hearing / trial. If you 'win', no sentenced is imposed. If found guilty, the court imposes a sentence as above.
Victorian Courts have a three tier hierarchy. Most matters are heard in the lowest court, being the Magistrates' Court. There are 11 Metropolitan and 42 Regional Magistrates' Courts in Victoria. Matters will usually be heard at the Court closest to where the offending occurred.
Other cases will be heard in either the County Court or Supreme Court of Victoria depending on the seriousness of the offending. These Courts can impose longer sentences than the Magistrates' Court.
Relatively recent changes to Victoria Police Policy mean that if you are charged by the police, those charges will now appear on your criminal record, even before they have been determined by a Court.
This can have a significant impact particularly for job seekers, as it is common for employers to seek a criminal record check from prospective employees.
The next step in the process is that your lawyer writes to the Informant (police officer) requesting a copy of the brief of evidence.
As well as containing the charges and a summary of what the police are alleging has occurred, the brief will contain any evidence they are relying upon. This will usually include items such as witness statements, call records, CCTV footage etc.
We will assess the brief and advise you from there based upon the strength of the evidence and your instructions.
If you wish to contest charges, your case will proceed to either a Contested Hearing (Magistrates' Court) or a Trial (County / Supreme Court).
At these hearings the Prosecution must prove to a Magistrate / Judge or Jury that the accused person committed the alleged offences 'beyond a reasonable doubt'.
To do so, the parties will call witnesses, cross-examine (question) the other party's witnesses and provide evidence to the Court which proves why the accused is guilty or not guilty.
The Diversion program does provide the opportunity to avoid a record. To complete the program the Informant (police officer) must first recommend that the accused is suitable, and a Magistrate must also grant the Diversion. The accused must then comply with the conditions of the program, which might include a letter of apology, voluntary work or making a donation.
Diversion is granted usually where the accused is a first time offender and the charges are relatively minor in nature.
No. The Magistrate does not have any discretion to grant a 'work only' licence.
If your licence is suspended or cancelled by a Court, then you must serve time off the road. It is an offence to drive a vehicle whilst your licence has been suspended or cancelled. It is no excuse that you need your licence for work purposes. If this is the case, the Court expects that you find alternative arrangements such as car-pooling, public transport or hiring a driver / worker.
Unlike other states which have 'spent conviction' schemes and most charges drop off after 10 years, Victoria has no such scheme. Charges you are found guilty of therefore remain on your criminal record forever which can have a significant impact on your life. It is important to have a lawyer to represent you, even if pleading guilty, to negotiate the appropriate charges with the Prosecution and put a plea on your behalf in Court to achieve the best possible sentence.
The term 'win' comes from Civil law where parties sue each other and the Court finds in favour of one over the other.
Criminal law differs in that the Police are prosecuting an accused. It is a fact that the majority of accused plead guilty to charges, and so much of our work is obtaining the best sentence possible. When pleading guilty, a 'win' for us is obtaining the sentence we think most appropriate.
In contested matters, a win is where accused is found not guilty by the Court. Our 'win' rate in this regard is high.
Generally speaking, you do not have to answer a Police Officer’s questions.
If a Police Officer has formed the view that you have committed an offence (either summary or indictable), are about to commit an offence (either summary or indictable), or may be able to assist in the investigation of an indictable offence, you must state your name and address.
It is an offence to fail to state your name and address, or to provide a false name or address.If you are being interviewed by Police, you may answer ‘no comment’ to their questions. No inference of guilt can be made by answering ‘no comment’ to all of the Police’s questions. If you selectively answer ‘no comment’, the Prosecutor may later invite the Court to draw inferences about the manner in which the questions have been answered. Some specific pieces of legislation require persons to provide further information when requested by Police. For example, the registered owner of a vehicle must give information to a Police Officer when requested which may lead to the identification of a driver on an occasion, and further, make all reasonable enquiries within their power to obtain that information.