Criminal Law

3.1 WA criminal laws
In WA, all criminal offences are contained in legislation. Most criminal offences are contained in the Criminal Code 1913 (WA): which is available at
http://www.austlii.edu.au/au/legis/wa/consol_act/ccaca1913252/notes.html. However, some other Acts may also apply: such as the Misuse of Drugs Act 1981 (WA), the Weapons Act 1999 (WA), and the Crimes Act 1914 (Cth), which deals with federal crimes.
3.2 Indictable vs summary offences
Criminal offences are usually divided into indictable criminal offences (serious) and summary criminal offences (less serious).

Summary offences:

  • include disorderly behaviour and minor theft;
  • are typically tried by a Magistrate without a jury;
  • are dealt with in the Magistrates Court; and
  • lesser penalties apply (e.g. fines and shorter terms of imprisonment).

Indictable offences:

  • include sexual assault, burglary and murder;
  • are usually tried by a jury and a judge;
  • are usually dealt with in the District Court or Supreme Court;
  • have heavier penalties (e.g. larger fines and longer terms of imprisonment).

3.3 Criminal prosecution process
Where there is a reasonable belief that a criminal offence has been committed, it is the role of the investigating agency (usually the Police) to conduct inquiries into the incident. This may include the Police interviewing you, if you are considered a witness or suspect in a criminal investigation.

The decision to lay a charge on a suspect is usually made by the Police in WA. This will occur when they believe there is enough evidence to identify a person as having committed the particular offence.

Once a suspect has been charged with an offence, the Police will brief the prosecutor (usually the Office of the Director of Public Prosecutions in WA), and the prosecutor will decide whether or not to proceed with prosecuting the suspect. If they do, the suspect will be summoned to court to either seek a remand for legal advice (where they will be given more time to get legal advice on the issue), or enter a plea of guilty or not guilty. If the suspect pleads guilty, they will then plead facts which could minimise their sentence, before their penalty is handed down. If they plead not guilty, the matter is set for trial at a later date.

3.4 What to do if you are arrested
If you are arrested, the officer in charge of the investigation must tell you what your rights are.

If you are arrested as a suspect, you have the right to:

  • be told what offence you have been arrested for and any other offences police suspect you have committed;
  • be given a reasonable chance to communicate with or try to communicate with a lawyer;
  • if an interpreter is needed, wait for the interpreter to be available before police interview you; and
  • be cautioned before you are interviewed as a suspect.

The police can refuse to let you contact a person if they reasonably suspect the contact will mean an accomplice will get away from police, evidence will be destroyed or hidden or someone will be put in danger.

If you are a young person (less than 18 years old), before you are asked any questions about an offence, the police must make sure that a responsible adult has been told that you will be questioned.

If you wish to seek legal advice, then Legal Aid Western Australia offer free legal advice to clients who meet their requirements: call 1300 650 579 to speak to the Legal Aid WA InfoLine between 9:00am and 4:00pm on any weekday. The Law Society of WA can also refer you to lawyers who specialise in criminal law if you call them on (08) 9324 8600.

3.5 Your right to silence
Generally, the police have the right to ask you questions at any time, whether or not you have been arrested, although you cannot be questioned about any offence while you are being searched.

Although police are allowed to ask you questions, this does not mean you always have to answer them. In Western Australia you have a general right to silence, which means in many cases you do not have to answer questions from police and this silence cannot be used at trial to establish or prove your guilt.

There are some questions you must answer, for example, your name, address and date of birth. If police tell you that you must answer a question then you should do so – you may be charged with an offence if you do not.

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