When many people hear that a matter is criminal, they assume that it will inevitably go to a higher court, leave them with a criminal record, or even affect their visa or status.

In fact, in NSW, the great majority of criminal cases are dealt with in the Local Court of New South Wales, not the higher courts that people commonly imagine.

In Australia, the final outcome of a case often depends not only on the facts themselves, but also on whether the correct procedures are followed and what choices the person makes at critical moments.

Most cases are “minor offences”

Australian criminal cases broadly fall into two categories: Summary offences and Indictable offences.

Most offences encountered by ordinary people are Summary offences, such as Common Assault, Drink Driving, Shoplifting, Possession of Prohibited Drugs involving a small quantity, and Unlicensed Driving.

These cases are generally heard by a Magistrate sitting alone, without a jury. The procedure is relatively straightforward, and in many cases negotiations may also secure a lighter penalty.

Two things you must know when police approach you

If police ask you to cooperate with an investigation, first remember two very important rights.

First, you have the right to remain silent.

If you do not wish to answer police questions at that time, you can simply say:

“I do not wish to answer any questions.”

Second, do not readily sign a Statement before receiving legal advice.

In practice, many cases are not lost in court. Instead, the person involved rushes to explain matters at the scene and voluntarily provides extensive information, which ultimately works against them.

Being taken away by police does not necessarily mean you have been arrested

Many people assume that being taken away by police means they have been placed under Arrest.

In fact, in NSW, Detain and Arrest are two entirely different legal concepts.

Detain usually occurs during the police investigation stage. Examples include requiring you to remain at the scene, cooperate with a police search or wait in a police vehicle while enquiries are made. Police need only have reasonable suspicion to detain you briefly for the purpose of continuing their investigation, rather than formally charging you. Although you theoretically retain a degree of personal freedom, many people mistakenly believe at this stage that they have already been formally arrested.

Arrest is entirely different. Once police decide to arrest you, they must clearly state the reason for the arrest and give a Caution. Your personal freedom is then formally restricted, you may be taken to a police station for an electronically recorded interview, and the police investigation detention period begins to run from that time.

In NSW, the general maximum investigation detention period is 6 hours. An extension may be sought in accordance with the law where the legal requirements are met.

Will you necessarily be held in custody after arrest?

Not necessarily.

If police decide to lay charges, they will generally first decide whether to grant Police Bail.

If police grant bail, the person can leave the police station subject to the bail conditions and wait to appear in court at a later date.

If police refuse bail, the person will generally be taken to the Local Court, where the court will usually decide on the next business day whether to grant Court Bail.

Under the Bail Act 2013 (NSW), the court will usually first determine whether the case falls within the Show Cause category. For some more serious offences, the accused must first explain why bail should be granted.

The court will then assess whether there is an Unacceptable Risk, including:

• a risk of failing to appear in court;
• a risk of committing a further offence;
• a risk of interfering with witnesses;
• a risk to community safety.

If the court considers that bail conditions can control these risks, bail may still be granted.

Common bail conditions include:

• reporting regularly to a police station;
• surrendering a passport;
• not contacting specified people;
• residing at a specified address.

Will you necessarily receive a criminal record?

Not necessarily.

Whether you receive a Criminal Record depends on whether the court ultimately records a Conviction.

In some cases, where the requirements are met, a Section 10 outcome may be sought. This means the court finds that the unlawful conduct occurred but does not record a conviction.

Whether a Section 10 outcome is available depends on a combination of factors, including the nature and circumstances of the offence and the person’s background. It does not apply to every case.

What requires particular attention for visa holders?

For Australian visa holders, some criminal matters may affect their visas as well as exposing them to criminal penalties.

In particular, matters involving Drink Driving, Domestic Violence or Drug Offences may prompt a Character Assessment by migration authorities. In some circumstances, they may even affect a visa application or visa renewal, or lead to visa cancellation.

Many people believe that the most important time to explain a criminal matter is once they reach court.

In fact, under Australian criminal procedure, the choices made immediately after an incident often shape the direction of the case. Understanding your rights, responding lawfully during a police investigation and seeking professional legal advice as early as possible are often more important than trying to repair the position afterwards.