is your legal status when you are under police control and care and are not free to leave whenever you want. Normally being in custody means you have been arrested and are being held in a cell at a police station, but could also occur if you are in hospital under police guard, or a in a “booze tank” sobering up.
The prosecution are the police and government lawyers who are responsible for bringing people arrested and charged by police before a Court to try to prove that they have committed an offence in criminal cases. The prosecution is separate from the court staff and independent from Judges or Magistrates. The prosecution in each state and territory is usually a government office branch headed by a senior lawyer called the Director of Public Prosecution.
is the procedure of police taking you to court, where they present their evidence and case and try to prove that you committed an offence, and argue how you should be penalised for breaking the law if you are convicted. The prosecution are the Government lawyers who are try to prosecute you if you are charged by police with committing an offence.
a charge is the accusation that you have committed a specific offence. Being charged is the first time the police have to formally indicate what crime they allege that you have done. When you are initially arrested you can ask what crime you are suspected of committing and they might tell you that you are suspected of a number of different offences. When you are formally charged, police will state which particular offence they believe they have enough evidence to prove you guilty of in court. The details of the charge are usually listed on a charge sheet. You should be given a copy before your first court appearance so that you can show it to your lawyer and prepare your defence.
Conduct which is unlawful or illegal. Criminal offences are normally composed of two parts (elements): a physical part and a mental part. The prosecution normally have to prove both for you to be found guilty of an offence.
The physical part is either:
The physical part can also be proven by failures to act in a certain way or do a certain thing that you are required to do by law (omissions).
The mental part (also called the fault element) is the thinking (or lack of though) behind the physical part, which can be:
A reasonable suspicion is an honestly held suspicion or opinion which is based on more than a mere possibility or a hunch, but which can be less firm or less supported by evidence than reasonable belief.
A reasonable suspicion must be more than mere idle wondering or thinking by police; it must be a real sense of mistrust or apprehension that someone is breaking the law. It cannot be arbitrary but must supported by some fact.
For example if you are in a place known to be used for dealing drugs, you are known to police as a user and police see you meet another person for a few minutes in an alleyway this might be enough to establish a reasonable suspicion.
The fact that you are a user alone will not be enough to form a reasonable basis for a suspicion that you are in possession of drugs. Similarly, police can’t just rely on the fact that you look nervous when they are talking to you, because most people will be nervous if approached by police.
Police should consider circumstances such as your behaviour, the time of day and location, not just your past history (although this may be relevant as one factor).
If police ask you to roll up your sleeves and see track marks that would not be a sufficient reason to search you. You have a right to refuse police to show them your arms if they haven’t told you what offence they suspect you of committing. Police must have more evidence than the fact that you have used drugs in the past.
Examples of facts, which might be grounds for a reasonable suspicion, are:
Examples of facts, which might not be grounds for a reasonable suspicion, are:
Police must have a reasonable suspicion about whether you are in possession of drugs before they can search you, your car or your property.
The police must have some fact or evidence which could support a suspicion or opinion:
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.
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.
This is what the court will consider when determining whether the police suspicion to search you was reasonable.
If the suspicion was not reasonable 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
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:
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 to be used in the case.
a reasonable belief is a firm belief that is based on more than a suspicion or hunch or idle wondering. There must be a series of facts which when objectively considered and assessed would give rise to a reasonable belief in the person that a situation exists.
It is not relevant whether most people would have had the belief if they were in the shoes of the person weighing up the facts. It must be proved that the person (e.g. the police officer) who required the belief before he or she could lawfully act, actually held that belief. The reasonable grounds to believe requirement requires more proof than a reasonable suspicion requirement.
For example if police need to have a reasonable belief that someone is at risk of being seriously injured inside a private premises before they can enter, the police must only enter if there is evidence that would strongly suggest that someone is at risk at that time.
If police hear yelling and screaming and smashing glass from inside a house, and have already been called by neighbours, then they would be able to form a belief on reasonable grounds that someone was at risk of violence and therefore they would be lawfully entitled to enter the house using reasonable force as necessary.
However, if police simply thought that a flat looks dodgy or run down or is in a bad area, that would not be enough for police to have reasonable grounds to believe that someone might be at risk of violence inside, or that they might find cannabis plants or drugs inside.
The reasonable grounds to believe requirement is used in a number of areas of criminal and public health laws. Examples include:
The issue is not whether the police officer or public health officer was correct or right to hold the belief but whether the belief was genuinely held and whether it was supported by fact which could reasonably create and support the belief.
If the belief was not reasonable then the power that the officer used 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.
It is important to remember that even if the entry or order was illegal and therefore the evidence illegally obtained, the court can still allow the evidence to be used, or can still uphold the officer’s orders if it is in the public interest.
is the standard mental element of an offence which makes you blame-worthy for an offence. You are taken to have intended an action if you meant to do the action. For example if you can be held criminally liable for manufacturing drugs for sale only if you intended to actually sell the drugs. The prosecution must normally prove that you intended to sell the drugs beyond a reasonable doubt (unless, for example, there is a deeming provision that means the law automatically believes that if you are found with a certain quantity of drugs you intended to sell drugs). You cannot be convicted if you had no control over your actions, for example, if you hit someone while having an epileptic seizure. You are taken to have intended to bring about a result if you plan for that result to occur. For example if you make a number of phone calls to a friend to organise selling them a couple of grams of amphetamine, the police might be able to use the records of the phone calls to prove that you intended to sell drugs to your friend.
is where you are aware about a fact. Knowledge can usually be inferred from the circumstances. For example if you have some pills in your pocket you will probably have knowledge about the pills. Knowledge is a key part of establishing possession of illegal drugs. This is because, normally, for you to be convicted of having a drug in your possession it must be proved that you knew about the drug. In some states there are deemed possession laws that mean that the court will automatically believe that you had possession of a drug if a drug is found in your house or garage, unless you can specifically prove that you didn’t know about the drug. For Australian drug laws, police do not have to prove that you had accurate knowledge about which particular drug you had in your possession, they just have to prove that you knew that you had a substance and that it was probably an illegal drug.
is the unjustifiable failure to take reasonable care or precautions to prevent breaking the law, where you knew there was a risk that you were breaking the law or should have known that your conduct was potentially unlawful. Recklessness is often used as an element (part) of an offence. If the prosecution can prove that your actions were reckless and you acted in an unjustifiable manner, which meant that you broke the law, you, can be found guilty. You might be convicted of recklessly inflicting grievous bodily harm if you fail to disclose your HIV positive status and do not use a condom when you have sex with the result that your sexual partner is infected with HIV. Police wouldn’t have to show that you purposely meant to infect your partner. If they can show that you should have known that if you had unprotected sex you risked infecting someone and that taking that risk was unjustifiable, you can be found guilty.
is where your actions fall short of a standard of care, which a reasonable person would exercise in all the circumstances. You might be charged with a negligent act if there was a high risk that by failing to be careful, you let something happen for which you should be criminally punished. An example of negligence might be if you left a used syringe in the rubbish bin in the kitchen in at your work and your workmate got a needle stick and became infected with HEP C. Although you might not have intended to harm your workmate, a reasonable person would have known that it would be likely that people might injure themselves on a needle if it was left in the rubbish rather than being safely disposed. If the court finds that you should have taken more care, and that you broke the law by failing to take care, then you can be criminally punished.
Normally, the prosecution have to prove that you are guilty of both the physical and mental parts of an offence. However, in some circumstances there are offences that do not require the prosecution to prove the mental part. These are called strict liability offences. A strict liability offence is any offence where your motive, fault or intention does not need to be proved in order for you to be convicted of the offence. This means that you can be found guilty of the offence even if you didn’t know what you were doing was illegal or didn’t intend to do the action, unless you can prove that you made an honest and reasonable mistake of fact.
Normally strict liability will only attach to one physical part of the offence such as whether a drug you used was in fact an illegal drug, or whether the amount of a drug in your possession was over a certain amount.
It means that the law will automatically find you that you have met one of the criteria for being convicted of an offence. Using strict liability offences makes the job of police and the prosecution easier, because they don’t have to prove basic facts in each case.
Criminal offences are categorised as either summary or indictable:
Is the degree of certainty which the prosecution must provide through evidence to convince the trial jury or judge that you have committed an offence. There are two standards of proof:
Reversing the onus or burden of proof is where the law requires you to prove your own innocence. This means that you or your lawyer has to provide evidence that you didn’t break the law. Normally, it is the prosecution that has to prove your guilt.
It is a fundamental legal principle is that a person is innocent until proven guilty. However under 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 an offence. The onus or burden of proof is reversed when governments create strict liability offences or presumptions in their laws.
a presumption is created by law to allow the court to automatically believe that you committed an offence, without the police prosecution having to provide evidence to prove the mental part of intention, or knowledge or recklessness. Presumptions operate to make the job of police and the prosecution easier, because they don’t have to prove certain facts – like whether you intended to sell drugs or just use them yourself – in each case. A presumption in the law will simply state that if you are found in possession of a larger quantity of drugs then the court will believe that you intended to sell them. Presumptions can be disproven, but normally it will be the accused who is facing the charges who has to prove the opposite (see deeming provision).
A deeming provision is a rule that allows the Court to automatically believe (‘deem’) or presume a fact without evidence from the prosecution. For example, deemed supply provisions in drug laws around the country mean that if you are caught with a certain amount of drugs you are deemed to be in possession with the intent of selling or supplying. This means that the prosecution doesn’t have to prove that you were going commit the more serious crime of supply rather than just possessing the drugs for your own use. If you have a deemed supply quantity the Court must find that you intended to sell them, unless you can prove that in fact they were only for your personal use. This reverses the burden of proof putting the burden on you to prove your innocence, which may be very hard to do.
a warrant is an order from a magistrate or judge which gives police lawful authorisation to exercise a power over people. Search warrants allow police to search you or your house or car. Arrest warrants give police power to arrest you anywhere they find you. Warrants normally give police extended powers to seize things which they suspect are connected to an offence or to collect evidence from your house or car. Warrants are a formal method of ensuring that police have a proper reason to search or arrest you. However police also have very broad powers to search and arrest you without first getting a warrant. Drug laws across Australia give police power to search you if they have reasonable grounds to suspect you have an illegal drug in your possession
a direction is like an order, but can be made in less formal situations. Directions are often made by police officers. Directions can be given orally, such as when police tell you to do something. They do not need to be provided in writing to have legal force. For example, police can direct you to leave a pub or club if you are intoxicated or causing a disturbance. Failing to comply with a police direction may mean that you are breaking the law and you might be arrested and charged
an order is a decision or requirement made by a Court, which is legally binding. If you do not comply with a court order you can be charged with contempt of court, which is a serious offence. Orders can be made:
Normally a person or police or the prosecution has to apply to the court asking for the specific order they want, and then the court will make a decision about if the order should be made, and if conditions for the order should be imposed.
Orders can also be made by people with legal responsibility for authorising an action under a law. For public health laws in most states, the Chief Health Officer in charge of the health system, is authorised to make legally binding orders that you undergo medical testing or examination, if you are suspected of being infected with HEP C or HIV and putting people at risk of infection. Orders must be in writing and given to you so that you can clearly understand what you are legally required to do.
a conviction is the formal outcome if you are found guilty of committing an offence. If you are convicted, the offence will be recorded on police files as part of your criminal record. A conviction can mean that you are not able to work in certain jobs, may have difficulty getting a credit card or loan or be prevented from entering other countries if you are travelling overseas. In some instances, such as for minor drug offence in states that have diversion schemes, you can be found guilty without a conviction being noted on your criminal record, depending on the circumstances.
a declaration is a legal statement or decision that is made to give something a legal status. For example, the Government might declare a drug to be a Schedule 9 Prohibited Substance in the Poisons Standard (SUSMP), which means that drug, has a status as illegal. It will then be illegal to posses or use or supply or manufacture that substance without lawful authority until a declaration is made that the substance is no longer a Schedule 9 Substance. A Chief Health Officer might declare a disease to be a notifiable disease, in which case your doctor will be legally required to notify the Government if you test positive to the disease.
an incapable person is a legal concept that covers any person who is not able to give informed consent because of a mental disability or learning disability or because the person is unconscious. An incapable person is not able to understand police requirements and is not able to understand the nature or consequences of a search, and therefore cannot give voluntary, free and informed consent. An incapable person is given additional protection by the law. For example an incapable person cannot generally be strip searched without support from a parent or guardian.
a summons is a legal notice requiring you to attend court at a specific time to face court on a charge. Summons can be given by police for minor offences where they believe that you are likely to go to court as required. If you do not show up to court, the court is likely to issue an arrest warrant so that police can lawfully arrest you at any time.
Premises is a legal word which means any land or property that you might own, occupy use, or enter. Premises include buildings, sheds, flats, gardens, basements, cellars, offices, and factories. In some states a reference to premises includes vehicles or vessels such as cars and boats. See your state’s guide for more details.
Drug premises are premises that are dealt with differently by drugs laws because they have been declared to have been used in connection with the possession, sale, supply, use, manufacture or cultivation of drugs. Special laws apply to give police extra powers to search drug houses and arrest people who visit or live in drug premises. See the section on ‘drug premises’ in your state’s users’ legal guide for specific information about drug premises laws which might apply to you. If your house is declared a drug premises seek legal advice as soon as possible.
discrimination involves treating someone unfavourably or unfairly because that person has a specific characteristic or attribute. Only certain characteristics – such as your sex, race age, having a disability – are protected under discrimination laws and only in some areas of public life such as whether education, work, provision of goods and services, access to accommodation and membership of clubs.
Discrimination can also include imposing a certain requirement or condition on a person because of a characteristic or attribute where the different treatment is not reasonable.
Discretion: a discretion is the ability to make a judgement call or choice between two different options. In law, the term discretion usually is used to describe a situation where the law gives police the choice to use a police power or not. For example police generally have a discretion whether to charge you or give you a caution for minor offences like swearing in public. Technically swearing in public is an offence, but police can chose not to use their power to arrest you. For example, in NSW police can caution you if you are caught in possession of a small amount of cannabis, however they can also choose to prosecute you in Court.
Judges also have a wide discretion in the range of options open to them in the conduct of a court case, whether evidence can be admitted if it was illegally obtained by police, and in options for sentencing. In some areas such as drink driving laws or drug trafficking declarations, the Government sets laws which mean that the Judge has no choice but to impose a certain sentence or penalty. All States and Territories have minimum mandatory disqualification periods for drink and drug driving offences.
consent means agreement or approval. It is a legal concept where one person is happy for the another person to do something, which could have legal consequences, if the person objected. When two people have sex where both people are willing participants, each person is said to consent. Where one person decides that he or she doesn’t want to have sex, or decides while having sex that he or she wants to stop, there is no consent. Consent must be given freely and voluntarily. The law states that children under the age of consent cannot legally have sex, because they thought to be vulnerable and unable to make informed decisions about whether or not to have sex. Consent cannot be forced from someone by threat of violence or intimidation or coercion. Consent can be withdrawn at any time if one person says ‘stop’ or ‘no’.
Where the Government or Police want your consent and co-operation they have to make sure you understand the consequences of what you are agreeing to do. This is called informed consent. For example, if police ask if they can look inside your bag, you need to be in a position to understand the consequences of giving consent. The law usually requires that police obtain informed consent. This means that police may not be able to seek consent from children, people who have a mental disability or who are intoxicated so that they are unable to understand what the police want, or the consequences of giving consent.
It is legal for a male of any age to have sex with a female who is 16 years or older.
Homosexual sexual relationships between males are legal if both males are over 18 years of age.
(For sexual relationships between females there is no law regarding age of consent (that is, it is legal at any age).