Dealing with the law on drugs

Introduction to the AIVL Users’ Legal Guide

The AIVL Users’ Legal Guide is designed to provide a quick reference summary of the main laws about illicit drugs, sexual, public health, and discrimination law. Drug law in Australia is extremely complex and changes from state to state significantly.

Recently there has been more consistency between states with new laws aimed at preventing the use of synthetic or newly emerging ‘legal highs’. These legal responses have been developed after consultation between all Australian governments but the main laws still remain inconsistent and patchwork.

The difficulty with drug laws – why it is difficult to understand drug law

Drug laws can be changed quickly and without much notice or media attention. It is important not to act on or rely on advice from other people about drug laws – there are so many legal myths and out-dated information in circulation that it is easy to act on a false belief. The consequences of a mistake of fact can be life changing. The only way to be certain that you are not at risk of getting into trouble with drug laws is to avoid being involved with drugs.

If you do choose to use drugs remember that the law is not tipped in your favour. Many rights that you may think you possess have been altered or removed by governments who wish to be seen as ‘tough on drugs’.

Most of the principal Australian drug laws were introduced in the 1980s after the U.S. pressured other countries to join the ‘war on drugs’. Since then they have been updated and amended mostly in reaction to changing drug use trends or specific cases where people have died from overdoses.

Other social issues such as preventing organised crime have also resulted in the introduction of tougher new drug laws, which increase penalties for drug offences committed in connection with known criminals, and penalties for possessing pre-cursor chemicals and equipment used for manufacturing drugs.

The reactionary development of drug laws means that they are not necessarily logical or consistent from state to state. For example the physical, mental and social harm of a particular drug, compared with other drugs, is not clearly taken into consideration when governments set the severity of penalties.

Australia’s Drug Strategy

Drug laws in Australia are mostly focused on supply and demand reduction rather than on harm reduction. This means the law prioritises law enforcement efforts to prevent drugs from entering Australia and being distributed and sold in our community. Police have been given very wide powers to investigate possible drug offences, and penalties are very severe for offenders.

There is also effort to reduce demand for drugs by increasing penalties for drug offences and publicising the health risks of using drugs. There has been some movement towards adopting a harm reduction based approach to drug policy. This can be seen in establishment of diversion or cautioning schemes for simple cannabis offences or small quantity possession offences which give police the option (a discretion) to issue a caution or infringement notice to a person caught with a small amount of cannabis.

Important Legal Concepts

Many drug laws are absolute liability or strict liability offences. This means that fault or intentions are not relevant to establishing whether you committed an offence. It means that it doesn’t matter whether you knew what you were doing was illegal or that you intended to do it.

For example, you will be convicted of driving with a prescribed drug in your saliva or blood if you test positive to a roadside drug test, whether or not you were affected by the drug when driving.

As another example many states and territories have laws that mean that mistaken belief about whether you possess an illicit drug is not an excuse for possession. This means that although you might think that you have a legal party pill, if the chemical is actually illegal, you can be convicted anyway. In some states you can be charged with possession if a drug is found on your property, in your car or in your home even if you didn’t know it was there.

In other areas of regulating drug sale and supply, laws have been designed to create automatic assumptions called presumptions or deeming provisions that possession of certain amounts of drugs is proof that you were going to sell the drugs. The consequence is that you will face the much higher penalties set for offences of sale, supply or trafficking, just for having a large personal stash. It is then up to your legal defence team to prove beyond a reasonable doubt that you didn’t intend to sell the drugs, which will often be difficult on the evidence available.

These practices reverse the onus of proof, and this is one reason drug laws are sometimes considered severe or harsh. It is not only that the penalties are high, but also that the law gives the police and prosecution greater powers to investigate, search, arrest and convict people suspected of involvement with illicit drugs.

In many ways drug law changes the fundamental legal principle that a person is innocent until proven guilty. Instead, in many drug laws, it is often the accused person who has to provide proof that they didn’t commit or have the intention of committing a drug offence.

Laws in Australia set serious penalties for drug offences and punishments of imprisonment are imposed frequently. There are many different offences and widely differing penalties in each state and territory that will affect the daily lives of people who use illicit drugs. This guide is aimed at collecting all the laws for each state and territory that relate to drug use in one easy to read document.

Information included in Each State and Territory Guide

The areas of law that are covered in this guide include:

  • examples of which drugs are illegal in each state and territory;
  • possession;
  • supply;
  • sale;
  • manufacture and cultivation;
  • trafficking of prohibited drugs;
  • use, self-administration and administration to others;
  • possession and disposal of drug paraphernalia and equipment;
  • police searches and drug detection;
  • drug and drink driving;
  • sexual relationships and sexual health law;
  • the legality of sex work;
  • discrimination.

This guide does not address the physical and mental health or social consequences which may result from using or over-using illicit drugs in detail . However the brief sections on the law relating to Blood Borne Viruses (BBV) and Sexually Transmitted Infections (STI) and on discrimination may be relevant to injecting drug users who have contracted a disease or who feel as though they are discriminated against when trying to access medical services or by an employer.

Disclaimer

While every effort has been made to ensure that information contained in this guide is correct and accurate as at January 2014, please be aware that the law may change without notice.

The information provided is a guide in the nature of general comment only and does not constitute and should not be used as a substitute for, legal advice on any particular matter. Readers of this information should not act on any material or information contained in this guide without obtaining legal advice relevant to their particular issue. The writers involved in researching, drafting, editing and publishing this information expressly disclaim any liability to any person or entity in respect of any action taken or not taken in reliance on the information.

All rights reserved AIVL 2014

General Guidelines for Dealing With Police

This section contains general guidance for how to react if stopped, searched, arrested or detained by police.

This information is not specific to particular states and territories but contains sensible information and recommendations from the Legal Aid organisations in each state and territory.

To look at detailed, specific information for your home state or territory please visit your Legal Aid website at these links. These links are guides only and you should not rely on them. If you have problems with police, seek legal advice as soon as possible.

Legal Aid Criminal Guides

Australian Capital Territory

New South Wales

Victoria

Tasmania

South Australia

Western Australia

Northern Territory

Queensland

Being approached, stopped or detained by police

Whenever you have dealings with the police try to be calm, polite and non-aggressive.

Police are generally entitled to ask your name, address and date of birth and to ask to see your ID if you have any.

You are entitled to ask the police officer for their name, rank and place of duty and to explain the nature of the offence they suspect you of committing.

It is an offence to give a false name or address, but you do not have to say anything more.

If you are not sure why police have approached you or think you have done nothing wrong you can ask respectfully but firmly – “ Am I being arrested? Why?”

If the police tell you that you are not under arrest, but that they want to ask you some questions, you can ask – “Am I being detained or am I free to go?”

You don’t have to answer their questions without speaking to a lawyer. You can tell police – “ I do not want to answer questions without speaking to a lawyer” or “ I am choosing to remain silent” or even just “No comment”.

There may be some circumstances where you are required to provide answers to their questions but in these circumstances police should give you a warning that you will be committing an offence if you do not answer.

Remember, you generally do not have to say anything to police or answer their questions. You can ask questions but do not have to give police answers. If you choose to talk to police be aware that ‘nothing is off the record’ and that anything you say can be used as evidence in court.

On the other hand you may be able to clear things up quickly by answering police questions. But if you are at all unsure about whether to answer police questions, it is better to say nothing until you have had a chance to speak with a lawyer.

You don’t owe police an explanation of your conduct or possessions or reasons for being in a particular place or doing a particular thing.

Many people are convicted, especially for drug offences, on the basis of their own admissions or statements that they have made to police. Your chance to tell your side of the story is by making a statement or in formal questioning at the police station with the help of a lawyer or at court.

Searches Without A Warrant

Police might ask you if they can examine your belongings or search you. If you say yes or submit to the search this is called a search by consent. This means that you are allowing them to search you and police will say that you were voluntarily assisting them.

If you consent to a police search you may not be able to later challenge the legality of any evidence police gather or seize during the search.

You can refuse their request for permission to search you by saying – “I do not consent to being searched”.

The police can still search you but they will have to tell you why they want to search you and specify what reasons they have for suspecting you of an offence.

Police in all Australian states and territories generally have broad powers to search you without a warrant if they have reasonable suspicion to believe:

  • that you have committed an offence or are committing an offence; or
  • that you have possession of an illegal drug or paraphernalia; or
  • that you have possession of weapons like guns, knives, knuckledusters etc.; or
  • that you possess something connected to an offence such as housebreaking tools or spray cans used for graffiti as an example.

General or ‘random’ drug detection by a sniffer dog is not considered to be a search.

If police search you they can search all your clothes and belongings such as your backpack. Police can also search your car without a warrant, if they have a reasonable suspicion.

What is a Reasonable Suspicion?

Reasonable suspicion is a complicated legal concept and whether police were correct to believe they had a reasonable suspicion is a matter for the court to decide.

The issue is not whether the police officer was correct or right to hold a suspicion leading to a search, but whether the suspicion was reasonably supported by fact.

A reasonable suspicion is an honestly held suspicion or opinion that is based on more than a mere possibility or hunch, but which can be less firm or less supported by evidence than reasonable belief.

The police must have some fact or evidence that could support a suspicion or opinion:

  • that a person had committed an offence; or
  • that a person was committing an offence; or
  • that a person might commit an offence in the very near future; or
  • that a person possessed something illegal or connected to an offence.

What is important is the information in the mind of the police officer at the time of stopping you or your vehicle or arresting you.

This is what the court will consider when determining whether the police suspicion to search you was reasonable. For example if you are in a place known to be used for dealing drugs, and are known to police as a user, this might be enough to establish a reasonable suspicion. The fact that you are a user alone might not be enough to form a reasonable basis for a suspicion that you are in possession of drugs. Police will consider your behaviour, the time of day and location.

If police ask you to roll up your sleeves and see track marks that would not be a sufficient reason to search you. Police must have more evidence than the fact that you have used drugs in the past.

If the suspicion is proved to be unreasonable, by the court then the search might be considered to be illegal and any evidence of drug offences such as large amounts of cash, fits or paraphernalia might not be allowed to prove your guilt.

The court will examine what facts were the basis of the suspicion, and the source of those facts in the light of the whole of the surrounding circumstances.

It is important to remember that even if the search was illegal or the evidence illegally obtained, the court can still allow the evidence to be used, if it is in the public interest, or if the “desirability of admitting the evidence outweighs the undesirability of admitting such evidence”.

When considering the desirability of admitting illegally obtained evidence the court will weigh up several questions including:

  • whether the evidence is useful in proving something important or is key evidence in the proceedings;
  • the nature of the subject matter of the case and the relevant offence;
  • the seriousness of the offence and whether it was deliberate;
  • whether the evidence has been used before or is likely to be relied upon in a future case; and
  • the difficulty of obtaining the evidence legally or without contravention of an Australian law.

If the improperly obtained evidence is necessary for obtaining a conviction for a serious drugs offence the Court will be more likely than not to exercise its discretion to allow the improperly obtained evidence.

Searches With A Warrant

Police can also search you or your property or home if they have a warrant, which is a legal permission from the court to search you.

Courts will generally make a warrant to search you if there is already evidence that you have committed an offence or that you are likely to commit an offence in the near future.

Conduct of a Search

You DO NOT have a right to resist a search, even if you do not think that police suspicion of you is reasonable.

DO NOT resist a police search. Stay calm and co-operate with police directions. Police can use reasonable force to search you if you do try to resist or prevent them from carrying out the search.

Resisting police is an offence, and making physical contact with police might be found in court to be assault, which is a serious offence.

There are rules about how searches should be conducted – these rules are explained in more detail in each state and territory guide.

You can make a complaint if you feel that, during the search, police:

  • roughed you up;
  • used unreasonable force;
  • did not respect your privacy or humiliated you;
  • abused their powers in any way.

Police can take anything they find on you during a search if they have reasonable grounds to believe the item is stolen or is connected to an offence.

If police find drugs on you they will seize them and you will have to make an application to court to get them back (if possession of those drugs is not illegal).

Police should give you a written receipt for any goods they seize from you.

When Can You Be Arrested?

Police can arrest you if they have reasonable grounds to believe that you have committed or are committing an offence.

A reasonable ground for belief must be based on stronger evidence than a suspicion.

The police must have some fact or evidence that would lead a reasonable person to think or have a probable cause to conclude:

  • that a person had committed an offence; or
  • that a person was committing an offence; or
  • that a person might commit an offence in the very near future; or
  • that a person possessed something illegal or connected to an offence.

What is important is:

  • the belief in the mind of the police officer at the time of stopping you or your vehicle or arresting you,and
  • whether a reasonable person (who was not a police officer) would also have held that belief in all the same circumstances.

Reasons Why You Might Be Arrested

The arrest must be for a lawful purpose, which is normally to ensure that you will be brought before a Court to answer police charges.

In most circumstances the police should only arrest you as a last resort.

If you are caught committing a minor offence the police should issue you with a summons or notice to appear in court. A notice can be given to you straight away. A summons is usually given to you at a later time or served on you by mail. Either way, the notice or summons requires you to attend court at a particular time to answer to the police charge. If you do not show up, the court will give police a warrant to find and arrest you.

Despite the fact that police should arrest you only as a last resort, ultimately the decision is made by the police officer who stops you. This is why it is a good idea to be polite and co-operative. If you are co-operative police might serve you with a notice or summons and let you go rather than arresting you and taking you to a police station. If you have committed only a very minor offence like swearing in public or trespassing on private property they might let you go with a caution.

Be aware that the police decision is final – if they decide to arrest you, you cannot lawfully argue or resist without going to court, if you resist the arrest you may be charged with other more serious offences such as hindering, obstructing or assaulting police.

You will probably be arrested if the police:

  • find you committing an arrestable offence and consider that arresting you is necessary to ensure that you appear in court;
  • think you pose a risk to public safety because you are violent, threatening people, drunk or high, or you are caught with weapons;
  • believe arresting you will stop you committing another offence; or
  • suspect you of committing a more serious offence and they want to question you

Normally police cannot arrest you just because they want you to help them or provide them with information.

If you have been improperly arrested, you may be able to challenge any other offences resulting from your reaction to being arrested. The court might take a ‘but for’ approach and try to determine whether or not you have obstructed or assaulted police but for the fact that you were arrested improperly. If you think that you have been improperly arrested by police get legal advice as soon as possible.

Being Arrested

If you are formally arrested, the police have to follow specific rules that protect the rights of a suspect.

It is a serious process to arrest a person, and to deprive the person of their right to liberty by detaining them. The police are entitled to do this but they have to do it properly – that is, by following the rules of the law.

If police ask you to go to the police station you can ask: “Am I under arrest? Why?

You do not have to go to the police station if you have not been formally arrested, but make sure to check that you are free to go by asking – “Am I free to go?” before walking away from police so that they cannot claim you tried to resist arrest or escape.

If police do not tell you that you are under arrest, or do not make it clear that you are free to go, be very cautious if you do decide to accompany them to a police station, let them search your belongings or car, or answer questions, because a court might believe that you were assisting the police voluntarily. You don’t want to do the polices’ job for them!

To reiterate, you have to give the police your name, date of birth and address if they ask you, but no more information than that. You can ask politely but firmly – “Am I being arrested? Why? What offence do you suspect me of?” Listen carefully and try to remember the details of what they say to you as these details may make a big difference in your case or if you want to make a complaint.

DO NOT become aggressive or confrontational with police if they do not give you these details. You can always make a complaint at a later stage when you have the help of a lawyer.

If the police do tell you that you are being arrested, or if they make this clear by handling you, cuffing your wrists or exercising some form of physical form of control over you, DO NOT resist. Resisting police is an offence, and making physical contact with police might be found in court to be assault, which is a serious offence.

Being taken to the police station or watch-house

If you are arrested or charged police should tell you that: “You are under arrest for…. “(Here they should tell you which offence that you are suspected of committing).

The police should also say that:

  • You have a right to remain silent”; or
  • “ You do not have to say anything.”

Then, the police should tell you:

  • Anything you do say may be used as evidence against you in a court of law. Do you understand?”

This is called giving you a caution. The words do not have to be exact, but what they say should make it clear that you are under arrest and everything you tell police can be used as evidence against you.

Don’t make a fuss or resist if they don’t give you a proper caution – you can always complain later.

Use your right to silence. It is sensible to keep quiet, follow police directions and try to remember as much as you can in case you need to make a complaint.

When you are taken into the police station, the custody manager will ask for your name, address and date of birth. The custody manager will read you a caution about your right to silence and explain what will happen to you while in custody.

Police Powers and Responsibilities When You Are Taken Into Custody

When you are admitted into custody police will usually search you more thoroughly. Police can strip search you or can perform an intimate or forensic search (sometimes called an internal or cavity search). In most cases where police want to perform an intimate or forensic search they will have to get a medical practitioner (nurse or doctor) to perform the search.

The person searching you can ask police to assist them, and can use reasonable force to carry out the search. In some circumstances, police will record the search on camera. The search must be carried out quickly and must be as private as possible.

The police cannot humiliate you or abuse you during the search. If you feel that you have been humiliated or abused try to remember the names of police involved and what occurred or was said during the search so that you can complain later.

If police take your clothes from you they must give you, other suitable clothes for you to wear.

The police will also take all your possessions from you for safekeeping before you are put in a cell. They should give you a receipt for these items so that you can collect them when you are released.

Police have the power to take your fingerprints and/or palm prints if you are an adult or teenager. Police can also take your photograph. Sometimes they will ask you to provide a sample of your handwriting. If they ask for your handwriting DO NOT sign your name on any statements or documents that they give you. As a rule, do not sign any papers the police give you unless you are sure you understand what the document will be used for.

If you have been arrested in relation to a driving offence, police may test your breath, saliva, urine or blood (with the help of a nurse or medical practitioner) for the presence of alcohol or drugs (even if you have already been tested). It is an offence to refuse these tests. Police can also ask a Court for permission to take a DNA sample, sometimes called a buccal swab.

Police have a duty of care for you when you are in their custody. Police must take reasonable steps to ensure that you receive medical attention or appropriate medication as soon as possible, and before they question or interview you, if you are:

  • highly intoxicated;
  • injured;
  • ill and in physical or psychiatric distress; or
  • suffering from a medical condition (which will generally include any condition requiring a regular treatment regime, such as methadone dependency, asthma, diabetes).

For example if you are arrested while attempting to collect a script of methadone from a chemist, 24 hours after your last dose, and you are suffering effects of withdrawal police must provide you with appropriate medication or receive medical attention as quickly as possible.

If you have been arrested by police and will be held in the police station for a while, police may allow you to call family or a friend to tell them where you are. Adults do not have a legally enforceable right to make a call.

It is usual practice to allow vulnerable persons to call a support person (parent, guardian, youth worker or other responsible adult) and ask the person to come to the station to be present during any police questioning.

Vulnerable persons include:

  • children;
  • mentally or physically disabled people;
  • people who cannot speak English; and
  • Aboriginal and Torres Strait Islander people.

Police should postpone any questioning or interviews with a vulnerable person until a support person is present.

Police do not have to let you make a call if they have reasonable grounds to believe that you will try to contact someone to hide or destroy evidence, threaten or intimidate a witness or otherwise prevent or obstruct an investigation.

Police should also let you speak to a lawyer. You have a right to speak to a lawyer before you are questioned, interviewed or asked to make a statement.

Being Questioned

If you are arrested as a suspect police will probably want to interview you formally, using either a tape or video recorder. Normally they will take you to an interview room and sit down with you and ask you questions about the suspected offence.

Police should make notes of everything you say, and read these notes back to you at the end of the interview. Police might ask you to confirm that you made the answers voluntarily. Don’t confirm this if you feel pressured or like you are being tricked by police.

Many people are convicted by their own admissions in relation to offences involving illicit drugs. This is particularly the case with charges such as self-administration and possession. DO NOT admit to using or giving drugs to your friends without talking to a lawyer first.

No matter what you have or haven’t done, it is recommended that you think carefully before answering any questions asked by the police or arguing with them if you have not spoken with a lawyer. If you choose to remain silent just answer calmly – “no comment” or – “I am choosing to remain silent” to any questions. You can say – “I want to speak to a lawyer before I answer any questions.” Children should not be interviewed without a support person being present.

Generally free 24-hour legal advice is not available in most places and legal aid or duty solicitors are unavailable to call outside business hours. If you have a solicitor, it is probably best to contact them first.

If you can’t afford to call a lawyer outside business hours, the police must allow you the opportunity to talk to a lawyer during business hours before you answer any questions. This means that police should not interview you before you have spoken to a lawyer. Police can, however, charge you – if they have enough evidence – before you have talked to a lawyer.

You can try to phone your local Legal Aid office – however, in some states Legal Aid do not send lawyers to the police station, and you will have to apply for a grant of legal aid through a private lawyer.

If you cannot arrange a lawyer for your first appearance in court the police usually have information about the duty solicitor who is employed to provide basic legal advice at the court during business hours and who can assist you make a plea or apply for bail.

If you are suspected of and arrested for a drug offence it is strongly recommended that you do not talk or respond to police questions without a lawyer being present to make sure that police don’t threaten or trick you and that you don’t make any admissions without understanding the consequences.

If you are charged with a serious offence, it is strongly recommended that you have your lawyer present during questioning or while making a statement. DO NOT sign any statement or record of the interview without it being checked by a lawyer.

In many cases it is difficult for police to get enough evidence for a charge if the person being questioned makes no admissions. Be careful not to make any admissions before speaking to a lawyer.

How Long Can I Be Held At The Police Station?

There are limits to the length of time you may be held under arrest before being formally charged or brought before a magistrate.

The following list shows reasonable holding times before charges are laid in each Australian jurisdiction.

  • New South Wales – 4 hours
  • Victoria – ‘a reasonable amount of time’
  • Queensland – 8 hours, with no more than four hours spent on questioning
  • Western Australia – ‘a reasonable amount of time’or no more than 12 hours
  • South Australia – 4 hours for an indictable offence
  • Tasmania – ‘a reasonable time’
  • Australian Capital Territory – 4 hours
  • Northern Territory – ‘a reasonable amount of time’
  • Commonwealth/Federal – 4 hours, or 2 hours for suspects who are Aboriginal or Torres Strait Islander people or are less than 18 years old.

What is a Reasonable Time?

A reasonable time’ is tricky to measure and does not include ‘dead time’ such as:

  • time reasonably necessary to transport you to the police station;
  • time reasonably necessary to process you into police custody;
  • time where police have to wait for your lawyer or family to arrive and speak with you;
  • time waiting for an interpreter;
  • time where you are receiving medical treatment;
  • time when you are under the influence of drugs or alcohol or sobering up.

Police can usually apply to a court to have the time limit extended if they need more time to collect evidence or make investigations.

Police must release you as soon as they decide not to charge you or once the reasonable time period plus any time extensions have run out.

Generally if you are held for over eight hours without being charged you will probably have good reason to make a complaint.

Being Charged and the Bail Process

Once you have been formally charged with a specific offence, you can be held in police custody indefinitely until your matter is listed for a court hearing.

If the offence is minor police will normally release you on bail. Bail is an undertaking or guarantee that you will turn up to court when your case is listed to be heard.

You generally have a right to be released on bail if you are charged with an offence that does not carry a penalty of imprisonment.

In some cases (for drink driving offences, possession or use of illegal drugs etc.) all that is required for bail is that you sign a written undertaking saying that you agree to show up to court and that you understand that it is a separate offence not to show up at court.

In other cases, for more serious offences (such as assault, weapons charges, dangerous driving causing bodily harm, or drug trafficking charges), police might decide that it is too risky to let you go.

If police decide to continue to keep you in custody you can apply to a magistrate or judge to release you on bail. You have the right to seek bail and to be brought before a magistrate or judge to have your application heard as soon as possible.

A bail hearing simply determines whether or not you should be released to appear at court to answer the charges at a later date.

At the bail hearing you can explain to the court any reasons why you should be released and challenge police reasons for keeping you in custody. If you don’t have your own solicitor/lawyer there should be a duty solicitor at the court to help you with the bail application.

A duty solicitor is employed by the government to work from the court to provide basic legal assistance to people with no legal representation during a first hearing. A duty solicitor will help you put a plea of guilty or not guilty to the court. If you plead not guilty the duty solicitor will help you apply for bail.

The duty solicitor is different from Legal Aid lawyers because they might have to help a large number of people at the court on that particular day. They do not provide detailed legal advice or represent you after the first hearing. In some states, the duty solicitor will not provide assistance with hearings for less serious offences such as basic drink or drug driving charges.

For serious charges, such as drug trafficking charges, the duty solicitor can help argue that you should be released on bail until your trial, or to postpone your first hearing until you can apply for a grant of legal aid to pay a private solicitor to represent you.

Factors to be weighed up when deciding whether to allow bail

Police, magistrates and judges have to consider the following factors when deciding if you should be granted bail and released from custody:

  • whether you will show up to court when your hearing is listed. (They will consider relevant information about your character, background, criminal record, living circumstances, the seriousness of the offence and, whether or not they think that you will try to leave the country – (‘flight risk’));
  • the safety of the community (whether you are likely to reoffend or commit another offence if released on bail);
  • the protection of the victim of your alleged crime (whether you are likely to threaten or attack the victim or their family);
  • your interests in preparing your case (whether you will be able to speak to lawyers, contact witnesses, collect evidence before the hearing if you are kept in custody).

There are some offences (weapons offences, violent offences, manslaughter, murder, and charges of trafficking, manufacture or cultivation of a large or commercial quantity of drugs) that have a presumption against bail.

This means that the court will not grant you bail unless you have very strong proof that you should be given bail, or there are exceptional circumstances which mean that you should be given bail.

If a court grants you bail it will usually impose conditions, which you have to follow, or you will be arrested and taken into custody again.

Conditions might include:

  • payment of an amount of money as a surety that you will turn up to court (if you do not turn up the money will be kept by the court);
  • requirements that you report to the police station at a certain time every day or week;
  • requirements that you do not use drugs or alcohol and that you show up to be tested;
  • requirements that you attend a drug treatment or rehabilitation centre.

To reiterate, if you are granted bail you must follow any conditions it imposes until the next court hearing. If you don’t turn up to that hearing, the court will issue a warrant for your arrest and you will be charged with a separate offence of failing to appear. If you don’t appear it is less likely that you would be granted bail a second time.

If the Court decides that you should not be granted bail you will be kept in custody. This is called being “on remand”. If you are remanded in custody you will normally be taken to a correctional facility or jail. This does not mean that you have been found guilty and convicted so you should be kept separate from convicted detainees.

You can reapply for bail if circumstances change or you have evidence that will prove to the court that you are not a risk of disappearing and will appear at court for your hearing.

Being remanded in custody / detained in prison

You have rights as a detainee. When you are admitted to a prison you should have your rights and responsibilities explained to you. The prison rules should be explained. You should be:

  • fed;
  • allowed access to medical treatment;
  • given a chance to exercise outside;
  • allowed to mix with and talk to other detainees; and
  • permitted visits by your lawyer, friends or family.

These rights might be limited in the interests of the good order and security of the jail, but if your rights are routinely being abused or limited unfairly you can complain to the Warden of the jail, the Official Visitor (who is an independent member of the community who visits jails and ensures standards of care are met) or Ombudsman (who investigates and resolves complaints against the Government).

If you are a vulnerable prisoner, the prison guards might decide to put you in a cell by yourself for your protection. Prison guards should check on you to make sure that you are safe and not likely to harm yourself.

Prison guards can use force to search you and your cell for prohibited items such as drugs or weapons. Possessing weapons, drugs and other prohibited items, and threatening or assaulting prison guards are all serious offences for which you can be charged while in prison. You will be monitored via security cameras and common areas will usually have microphones to record your conversations. Courts can use evidence obtained while you are in prison.

You should not be held for an unreasonable time before your case is heard at the court and a verdict handed down by the court or jury. It is hard to measure what is an unreasonable delay. It will depend on the seriousness and complexity of the case. Reasonable delays can be from a couple of days to many months.

If you feel that your case has been unreasonably delayed you or your lawyer can apply to the court to ask for the case to be sped up or dismissed.

Trial

During the period before the actual trial you may have to appear before court on many occasions, depending on the arguments of the police prosecution and your defence.

The first hearing is called the committal, where police will put their case against you and all the supporting evidence to the magistrate or judge who then decides whether or not you have a case to answer in a full trial in court. If the police do not have enough evidence, or the evidence was illegally obtained, you or your lawyer can ask the court to dismiss the charges or permanently stay (stop) the proceedings against you. You can also formally enter a plea that you think you are guilty or not guilty of the charges. You should get advice from a lawyer before entering a plea of guilty.

You can represent yourself but for more serious offences you should make use of legal aid to ensure that you are not unfairly disadvantaged and that you receive a fair trial.

Depending on the offence there are different procedures for trial.

Offences are classed as either:

  • Summary – usually heard in the Magistrates or Local Court by a single magistrate or judge. Summary offences must normally be commenced within 6 months; or
  • Indictable – generally more serious offences that are heard in the District or Supreme Court where you face more than 2 years imprisonment if convicted. Indictable offences will usually be heard by a judge and jury. The jury deliver the verdict after assessing the evidence.

Depending on the state, some indictable offences can be heard by a judge alone if the defendant requests this. This may be desirable where the evidence in the case is extremely technical or where intense media coverage in a controversial case (such as sexual assault of a child) before the trial begins might prejudice a jury. Election for judge alone trials is increasingly being limited because of a perception that judge alone trial result in more lenient sentences. For example, you may not be able to elect for judge alone trial where the charge involves the death of a person (e.g., murder, manslaughter).

Similarly some indictable offences can be heard summarily if the prosecution or defendant request. This may be in the interests of the defendant if the facts of the case are clearly established, or if the defendant wishes to plead guilty. The advantages of a summary trial are that it is much quicker, cheaper for the prosecution and the maximum penalties that can be imposed are less severe.

A fundamental principle of criminal law is the right to be presumed innocent until proven guilty. This right means that normally the police prosecution have to prove that you are guilty of an offence, rather than you having to prove your innocence.

The prosecution normally have to prove the elements (parts) of the offence beyond reasonable doubt. This is called the criminal standard of proof and it is very high. It means that the magistrate or judge or jury members have no reasonable doubt, in all the circumstances and weighing up all the evidence, that you committed the offence.

In some situations the law might create a presumption against you as a defendant. A presumption occurs where the law provides for automatic conclusions about the existence of particular facts or circumstance.

For example, most drug laws in Australia create a presumption that if you are caught in possession of more than a certain amount of a drug (usually called the trafficable quantity) the court will automatically believe that you intended to sell the drug. This is called reversing the onus of proof or shifting the burden of proof, and limits your right to be presumed innocent until proven guilty. If there is a presumption against you it will be up to you or your lawyers to produce evidence that creates a reasonable doubt that the presumption should not apply. This may be very hard to do.

Sentencing

If you are found not guilty you will be released immediately. In some circumstances you can be found guilty of a lesser offence even if you were not originally charged by the police with that specific offence. For example, you might be convicted of possession of a small amount of ecstasy even if you were originally charged with trafficking.

If you are found guilty of a summary offence you would normally be sentenced in the same hearing.

If you are found guilty of an indictable offence you will be taken into custody to be sentenced at a later day. You can appeal the guilty verdict (the conviction) or the sentence given to you.

Making A Complaint About Police Conduct

If you believe you have been badly treated by police you can make a formal complaint. Take note of the police involved, exactly what occurred, and anything said or done that you might want to complain about later.

If you have been beaten or injured by police, make sure you go to a doctor or hospital to get inspected by a medical practitioner and have professional photos taken of any bruises, cuts or injuries. This evidence will be very useful. Write down your version of events and get legal advice as soon as possible.

You can complain to the Commander in charge of your local police station, the Police Commissioner or the Ombudsman in your state or territory.