Frequently Asked Questions
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What do I do if I am under arrest?
NB: You need legal representation as early as possible in criminal proceedings. Our after hours number operates 24 hours a day, 7 days a week. Call 03 9670 8771.
A person may be arrested (by a Police officer or a member of the community) under suspicion of committing a crime in a number of circumstances:
- A warrant has been issued for their arrest;
- When an arresting person is instructed by a Police officer to make the arrest;
- The arresting person believes on reasonable grounds that a suspect is escaping from lawful custody, helping another to escape from custody or avoiding apprehension; or
- Where they are found committing any offence and the arresting person believes on reasonable grounds that the apprehension of the person is necessary to:
- ensure the attendance of the person before a court; or
- to preserve public order; 0r
- to prevent the continuation or repetition of the offence or the commission of a further offence; or
- for the safety or welfare of members of the public.
An officer may use reasonable force to prevent a suspect from committing an indictable offence. However, if a person wrongly arrests a person and deprives them of their liberty this may be a criminal offence.
There is no ‘time limit’ as such, within which a person must be released following an arrest. The Crimes Act requires that a person taken into custody must be released (unconditionally or on police bail), or taken before a Bail Justice/Magistrate within a reasonable time of being taken into custody. The Bail Act requires that a person in custody is brought before the Court within 24 hours or else be released. Accordingly, it is commonly understood that 24 hours is the maximum amount of time that a person can be detained without being presented before a court.
Except in particular circumstances, the Police have no power to detain a person unless they are under arrest.
If you are arrested, remember:
- Don’t panic.
- Ask what you are under arrest for but make no further comment – do not engage in conversation with investigators as nothing is off record and anything you say may be used in further proceedings.
- Ask for the card of the officer in charge of the investigation, whom we refer to as the ‘Informant’ if charges arise.
- Tell police that you wish to contact a lawyer of your choosing. It is not uncommon for Police members to refer suspects to particular lawyers, who may not be properly suited to your situation.
- If the Police propose to seize your mobile phone, ask that you are able to write down important numbers of family, friends and your legal practitioner (if you have one) in order to advise them of your whereabouts. The Police will likely supervise this process if they are concerned that the phone is evidence relevant to their investigation.
- When you are given the opportunity to speak with a lawyer advise the lawyer (if you are still in the presence of the Police) whether the Police member hear what you are saying. Legal professional privilege does not apply to your instructions if you announce them in front of Police officers. Your lawyer should then ask to speak with the Police member to request a phone line in a private room so that you can discuss your matter further. Alternatively, your lawyer may choose to attend the Police station to speak with you.
What are my rights?
You have the following rights when under arrest:
- to remain silent;
- to communicate with a friend, relative or legal practitioner;
- to an interpreter if you do not have sufficient knowledge of the English language;
- if you are a foreign national, to communicate with the consular office of your home country;
- if you are under 18, the right for a parent or guardian to be present when you are questioned. If a parent or guardian is not available, you have a right to have an independent person (such as a legal practitioner) present;
- if you are a person of Aboriginal or Torres Strait Islander descent, the right to have a legal practitioner from the Victorian Aboriginal Legal Service notified within an hour of you being taken into custody; and
- if you are a person with a mental illness or disability, for an independent third person to be present.
What happens in a record of interview?
If you are arrested for an indictable offence and taken into custody, you will be read your rights (probably on a number of occasions) and you will also be interviewed. Most often, interviews are conducted in an interview room at the Police Station. The accused is taken into an interview room and interviewed by the investigators (referred to as record of interview). The interview must be recorded, either by audio recording or audio-visual recording. You must then be given a copy of your record of interview at the end of the interview.
At the start of the interview, you have to provide investigators with your details: name, address, whether you are of Aboriginal or Torres Strait Islander descent. However, when you are asked questions in relation to the alleged offending, you are not required to answer questions and you can say ‘no comment’ to all questions asked of you.
It is imperative that you obtain legal advice before you participate in a record of interview. Sometimes, answering questions and presenting your version of events can avoid the matter proceeding any further or, may set up a crucial defence. In other matters, however, it is essential that you say ‘no comment’ to all questions. It is not advisable to give a partially no comment record of interview, i.e. to say ‘no comment’ to some questions and not others. This can be used in a particular way by Prosecutors if the matter proceeds to Trial: “he answered the questions that he wanted to answer but when it came to the hard ones he didn’t want to make a comment”.
Do not allow yourself to be influenced by investigators into answering questions. Frequently, a well-intentioned investigator may implore you to share your side of the story, or a determined investigator may tell you something along the lines of, “it is more likely that you will be charged if you don’t answer questions”. If you have engaged an experienced criminal defence lawyer, trust in their advice and if you do not know what to do in the circumstances, say “no comment” to all questions asked of you.
Please contact us if the Police have contacted you in relation to participating in a record of interview or if someone you know is under arrest.
Do I have to give fingerprint and DNA samples?
In almost every case, if you are interviewed by Police, they will request a fingerprint sample from you.
If you are 15 years old or over, a Police officer can take your fingerprints, if:
- they believe on reasonable grounds that you have committed an indictable offence;
- you have been charged with an indictable offence; or
- you have been summonsed to answer a charge for an indictable offence.
If you refuse, reasonable force may be used to take your fingerprints. If you are not charged, the charges are not proceeded with, or you are acquitted of the charges within 6 months, the fingerprints will be destroyed.
A police officer may also request that a suspect undergo a forensic procedure (ie the taking of a DNA sample via a buccal swab in the mouth) if there are reasonable grounds to believe that the procedure would confirm or disprove that the suspect was involved in the commission of an indictable offence.
This can only occur if:
- the person is suspected on reasonable grounds of having committed an indictable offence; or
- the suspect has been charged with an indictable offence; or
- the suspect has been summonsed to a charge for an indictable offence.
The Police can only conduct the procedure if the suspect consents or, if they get an order from a Magistrate or senior Police Officer which authorises the Police to use reasonable force to obtain the sample.
A family member is in custody – how do I find out where they are and how to get clothing to them?
Finding out that a family member or close friend has been arrested, taken into custody and denied Police bail is very distressing, confusing and overwhelming. Most people have never been in this situation before, have no experience with the criminal justice system and have never had any interactions with the Department of Corrections. The easiest way to locate your loved one and obtain advice in relation to them is to engage an experienced criminal lawyer. However, we understand that often time is of the essence and you are keen to find out where your loved one is and how they are. So here are the key things to know.
- Once your loved one appears in Court, they are either kept in the custody center of that Court or they are transferred to another remand center. Where there is significant overcrowding, they may be sent to a Police station that has room in their cells.
- Where your loved one is sent is not up to the Magistrate who presided over their last hearing, nor the Police. It is solely a matter for the Department of Corrections.
- If you do not know where they are, you should contact the Sentence Calculation and Warrant Administration of the Department of Justice during business hours on 8684 6551 and ask them to disclose the location of your loved one. You will need to provide his or her full name and date of birth. You should also ask for their CRN (their corrections number, which they will have been assigned when taken into custody). Sometimes due to security concerns, they may not disclose this information immediately to you. If you hit a wall with your enquiries, it is best to engage an experienced criminal lawyer, who can locate your loved one for you.
- Once you have their location, go to the Corrections Victoria Website and contact the Prison at which they are remanded and ask for their visiting hours, their policy guidelines and how you may visit or contact your loved one.
- Every prison has different visiting hours, guidelines and policies in relation to visitation and inmate property. Accordingly, you have to seek advice from the center in which your loved one is housed. There are some commonalities when it comes to property: it must be deposited with the Prison, where it will be searched; do not include any clothing with hoods, draw strings or piping; do not provide too much property at one time. Many inmates are initially remanded into the Melbourne Assessment Prison (MAP), where they are classified and assigned to another Prison. You can visit inmates at the MAP and this the Information Sheet for Visitors regarding what you can bring and when you can visit: Melbourne Assessment Prison Visitors Information Sheet.
- Whenever you have contact with Corrections Staff be polite. They work in Prisons with difficult people; but, if you are pleasant they will try to help you contact your loved one.
A summary offence is a relatively minor offence, which is heard and determined by a Magistrate sitting alone and, which only attracts minor penalties. These include some offences under the Summary Offences Act, the Crimes Act and, the Drugs Poisons and Controlled Substances Act.
An indictable offence is a serious offence that is usually heard and determined by a Judge or Jury in the County or Supreme Courts and which attract significant sentences.
What is the process in the Summary Stream of the Magistrates' Court?
If your matter is in the Summary Stream, it can be confusing how the criminal process works and what you have to do. We have prepared the attached flow chart, which shows you the process. This is the usual process that matters proceed through, although there can be other steps that the matter proceeds through, if there are other issues with bail, breach proceedings or if there are a number of adjournments. For more detail in relation to each step in the process, please refer to our Blog Article on the Criminal Process.
Please note that, in order to appreciate exactly what is happening with your matter, you should seek advice from an experienced criminal lawyer and contact our office.
What is the process in the Indictable Stream of the Magistrates Court?
If your matter is listed in the Indictable Stream, then it is a serious matter that will start in the Magistrates’ Court but must be resolved, either by Trial or Plea, in the County or Supreme Courts (depending on what you are charged with).
Most offences are resolved in the County Court. However, if you are charged with offences such as murder, manslaughter or conspiracy to murder, your matter can only be dealt with in the Supreme Court of Victoria.
There are a number of stages that indictable matters must go through in order to resolve as a Trial or a Plea. You might also find that your matter is adjourned a few times at the one stage (most commonly, the Committal Mention stage) because it is not yet ready to move forward, for whatever reason. It is common to have a number of Committal Mentions in a matter before it proceeds. You may also find that there are more Court appearances in the higher jurisdictions than just the Initial and Final Directions Hearings, depending on the nature of your matter.
For more detail in relation to each step in the process, please refer to our Blog Article on the Criminal Process. If you are charged with a strictly indictable offence, that can only be dealt with in the Indictable Stream, then you must contact an experienced criminal lawyer.
How can I pay for your legal services and what kind of arrangements can I make?
Galbally Rolfe Criminal Lawyers is a private criminal defence firm and, accordingly, we do not accept legal aid matters. However, due to the cuts to Victoria Legal Aid and the tightening of the qualification criteria, we understand that many people who were previously eligible for legal aid are now ineligible. These people are often left to represent themselves or hire a private lawyer.
We understand that all clients and matters are different. Therefore, we try to charge fees that are reasonable in accordance with the nature of each matter and the client’s circumstances.
If you are looking to engage a private lawyer, please contact us to arrange a conference with one of our experienced criminal lawyers. We can have a preliminary look at your matter and give you an idea of what the fees may be and what your rights are in relation to how we charge. We hope that you will find our fees affordable and that by retaining a private lawyer, you will have the peace of mind knowing that you are being looked after by the best. Kindly note that we do not give legal advice over the phone, unless you are under arrest and are in the custody of law enforcement.
We accept payment by electronic funds transfer into our trust account, cash, cheque and also by credit card. Our bank and credit card details will be made available to you if you call our office and speak with a member of our office staff. We also have a PayWay option where credit card payments can be made to a member of our staff remotely (ie at Court) over a mobile phone and confirmed immediately! You will, of course, receive receipts for each payment.
We are soon to become a Bpay Biller and those details will be published in this section as soon as they are available.