Criminal Law

Being arrested or charged with an offence can be extremely stressful. You may have been incorrectly charged or have committed a once off mistake that you regret. This, coupled with the uncertainty as to what will happen to you, your livelihood and your life can cause great anxiety to you. It is important that you remain calm and remember that there is help available to you.

Can I be arrested?

A police officer can arrest you when they have a reasonable belief that you have broken a law, have a warrant for your arrest or know that you are a risk to a family member. A police officer must tell you that you are under arrest unless this is too difficult (for example, if you are running away).

If you have been arrested, you must go with the police officer that arrested you. If you try to stop the police from arresting you, they can charge you with resisting arrest. The police may also use reasonable force to arrest you. Reasonable force means enough physical force to arrest you, but no more. A police officer can only use physical force if they had a right to arrest you to begin with.

Under section 464I of the Crimes Act 1958, the police do not have the power to detain you against your will unless you are being arrested. 

What happens once I am arrested?

After you have been arrested, the police will usually take you to a police station. The police may also take you to a custody centre or to the police cells at court.

If you have been taken into custody for an indictable offence, before any questioning or investigation, the police must caution you and inform you of your right to communicate with a friend or relative and a lawyer.

When you are in custody, you have the right to make two phone calls: one to your lawyer and one to a friend or relative. The police must give you a private space to use the phone, where the police cannot hear you. You should take this opportunity to contact a lawyer before you speak to the police.

A police officer might not let you call anyone if:

  1. They brought you into custody for a drink driving or drug driving matter; or
  2. The police officer reasonably believes that you may help another person involved in the offence get away; change or destroy evidence, or put other people in danger.

If your lawyer is unavailable, all reasonable attempts must be made to allow you to communicate or attempt to communicate with another lawyer. You must be given a reasonable period of time to communicate with another lawyer before the interview is commenced.

Do I have to answer questions in my police interview?

In short – no. You have a right to silence and no adverse influence can be drawn from you exercising that right. In some cases, for example where you have a strong self-defence argument, it may be advantageous to give a record of interview. It is important that you do not make this decision by yourself. You should always speak with a criminal lawyer first before deciding whether or not to give a record of interview. 

Often, it is best not to give a record of interview. There are a number of reasons for this. For example: 

  1. You may admit to something that you later want to deny, or you may deny something you alter want to admit. This would be a prior inconsistent statement and can be used against you in Court. 
  2. The interview may prompt you to give evidence of other crimes that the police were not investigating. 
  3. The evidence that the police already have may not be enough to establish the charge beyond reasonable doubt the record of interview may serve the purpose of filling in the gaps. 

You do not have to participate in the record of interview and, even if you participate, you still have the right to silence and can cease the interview at any time. 

How long can the police keep me in custody?

Section 464A of the Crimes Act 1958 provides that every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be – 

  1. released unconditionally; or 
  2. released on bail; or 
  3. brought before a bail justice or the Magistrates’ Court – 

within a reasonable time. 

This means that police can only keep you in custody for a reasonable time before they charge you. What a reasonable time is, depends on the seriousness of the offence and how long it takes for the police to interview you. If you believe that the police have kept you in custody for too long, you should ask when they are going to charge you or release you or that you would like to phone a lawyer.

What is a summons? 

Police do not have to charge you immediately after an interview, rather they may let you go and issue you a summons later. A summons is paperwork informing you about the charges and when you need to appear in court. If you have received a summons, we recommend that you contact a criminal lawyer.

What is bail?

The police can bail you from the police station. After you receive a charge, you will have to sign an ‘undertaking of bail’ before you can leave. The undertaking is a promise that you will attend court on the date that your charges will be heard and on every other occasion. The undertaking may also impose certain conditions on you that you must comply with.

What happens if police bail is refused?

This is called remand. If the police remand you, they must bring you before a Magistrate, or if the remand is out of court hours, before a Bail Justice. A bail justice is a volunteer who hears the remand application and decides whether you should be granted bail or not. If the Bail Justice refuses you bail, the police still have to take you before the Magistrate on the next day that the court is open.

The timing of you bail application is a critical decision. If you have been refused bail by the police, it is natural to want to immediately make an application to the Court however, it may be useful to wait for a lawyer to be able to take proper instructions from you and to prepare a robust argument before making the bail application. 

What is a brief of evidence? 

A police brief of evidence is a group of documents, including statements and photographs, that the police may use as evidence against you at the hearing. Section 41 of the Criminal Procedure Act 2009 sets out what must be included in a full brief of evidence. It must include the documents or things the police intend to rely on at the hearing, including all witness statements and a list of witnesses and exhibits in possession of the police on which they intend to rely. 

What is the actus reus and mens rea? 

Most criminal offences have two basic elements, that is: 

  1. An actus reus, that is the physical act; and 
  2. A Mens rea, that is the requisite criminal intention or mental state. 

Both the elements of actus reus and mens rea will need to be proven with most criminal offences. For example, in a case of intentionally causing injury, the actus reus will be the striking the blows which caused the injury and the mens rea will be intending to strike the blow and intending to cause the injury. 

What is a strict liability offence? 

A strict liability is an offence where the prosecution does not have to prove that you had a guilty mind, that is the prosecution does not have to establish the mens rea. 

If you have committed a strict liability offence, you will have available to you the defence of an honest and reasonable mistake of fact. For example, if you were charged for driving whilst suspended, but you were never informed that your licence had been suspended and therefore did not know your licence was suspended, you may have available to you the defence of reasonable mistake of fact. 

What is an absolute liability offence? 

An absolute liability offence is one where the prosecution does not have to prove that you had a guilty mind and there is no defence of reasonable mistake of fact available to you. In this case, the prosecution would only need to prove that the act happened, that is the actus reus. 

What is diversion? 

If you are a first-time offender and the offence that you have been charged with is relatively minor, you may be eligible for diversion. 

Diversion is a means by which you may acknowledge your responsibility for the offence, but it will be dealt with outside of the formal criminal justice system. Diversion allows you to avoid any criminal record. 

Can I make a complaint against the police? 

You can make complaints about the conduct of police officers to the officer in charge at the police station, to the Ethical Standards Department of Victoria Police or to the Deputy Ombudsman (Police Complaints).

The information is intended to be a general guide only and is not intended to constitute professional or legal advice. Destra Law expressly disclaims any and all liability for any loss or damage arising from reliance upon any information on this webpage. To discuss concerns about Criminal Law, please do not hesitate to contact Destra Law on 9898 8282, at or by filling out our contact form.