Frequently Asked Questions

What is meant by the presumption of innocence?

The presumption of innocence is arguably the most important and fundamental piece of architecture supporting the fairness of our criminal justice system. A person suspected or accused of a criminal offence is presumed innocent, unless and until, following a fair trial, they are convicted beyond a reasonable doubt of committing the offence.  If you are being investigated by police, you must always remember you are only a suspected offender.

What is meant by my right to silence?

Only in defined circumstances can police compel you to answer questions. In Petty v The Queen (1991) 172 CLR 95, the High Court of Australia had this to say:

“A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority..”

And further in Petty, the High court went on to say:

“ incident of that right to silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information.”

Am I required to answer Police questions?

The general answer is no.

There are exceptions.

*Practicably, if the Police are asking you about matters where you clearly could not have been involved or are innocent then you might consider answering their questions. However, it is always recommended that you speak with a lawyer first.

*Should they go on to decide that they want to record or tape the interview, you must speak with a lawyer first and if you are unable to, elect to exercise your right to silence and against self-incrimination.

*The Police can request a person to provide his or her name and address if those details are unknown to police and if the police suspects on reasonable grounds that you may be able to assist in the investigation of an alleged offence because you were at or near the place where an alleged indictable offence occurred around the time when it is said to have occurred.

It is an offence to refuse to supply a name and address. The penalty for not doing so is 2 penalty units ($220).

The Court has held that Police are allowed to demand this infromation from a suspect.

*If the police reasonably suspect a motor vehicle was or may have been used in the commission of an indictable offence, they can ask the owner, driver or passenger of that vehicle to supply details of the driver and passengers of the vehicle at the time of the offence.

It is an offence to refuse to provide an answer or to give a false name or address. Penalty $5500 or 12 months gaol.

*Police can demand proof of identification.

What if I am stopped and searched?

Under the common law there is no police power to stop and search an individual prior to that person’s arrest.

*However, statute law in NSW provides that police may stop and search a person whom they reasonably suspect has stolen something or otherwise unlawfully obtained or has anything used in an indictable offence.

*Being sniffed by a police drug dog does not constitute a ‘search’.

*’Reasonable suspicion’ involves less than a belief but is greater than  a mere possibility, and a factual basis for the suspicion is required.

Police hold  the power to stop and search a motor vehicle if:

*they believe  on reasonable grounds that that vehicle is being or may have been used in the commission of an indictable or firearms offence, or

*if they believe on reasonable grounds that the vehicle contains drugs or anything used or intended to be used in the commission of such an offence, or

*if they believe on reasonable grounds that there is a serious risk to public safety and the search might lessen that risk.

What is a committal?

It is a procedural hearing in the Local Court where the Magistrate will determine if an acused charged with an indictable offence should be committed for trial or sentence, in the Supreme Court or District Court of NSW.

What is the burden of proof?

The Crown must prove each element of an offence beyond reasonable doubt for the accused to be convicted.

For example, in the offence of sexual assault (s.61 I Crimes Act 1900 NSW), the Crown must prove beyond a reasonable doubt that the accused:

*Had sexual intercourse with the complainant; and

*Without the consent of the complainant; and

*Knowing the complainant did not consent.

If they are unable to meet the burden of proof in realtion to one of the elements, then the accused must be acquitted.

What is the significance of Time and Place?

These will not normally be  elements of an offence, instead they are particulars.

However when considering  the facts of a case, the time and place may become essential to the Crown case, where for an example the accused can call evidence that he or she could not have committed the offence when it was alleged.

What do ‘mens rea’ and ‘actus reus’ mean?

The prosecution will need to establish  ‘mens rea’ and ‘actus reus’ of an offence. These terms arise from Latin and simply mean that  a person does not become guilty of a crime by an act unless he has a guilty mind.

So, the ‘mens rea’, refers to the state of mind (intention or state of knowledge) to commit a crime.

‘Actus reus’  becomes everything else – being the physical acts of the accused required to show that the crime has been committed.

Mens rea and actus reus must exist at the same time. Put another way, there must be the intention to commit the crime at the time the crime is committed.

Actus reus will be considered as a whole. For example, when a final act was committed at a time when the accused believed the victim was dead, there will still be a conviction.

The actus needs to be voluntary, so an involuntary reflex or spasm will not be voluntary so will not constitute actus reus. This is contrasted with a circumstance where a person might accidentally pull a trigger or jab a knife. This will not be accepted as an excuse. In these cases the actus reus is the act of presenting the weapon.

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