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8/11/2009
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14,361
Experience: I did my law degree at the University of Queensland
VerifiedYou need to start with the Charter of Victims Rights.
[QUOTE]Charter of Victims Rights
Courtesy, compassion and respect
A victim should be treated with courtesy, compassion, cultural sensitivity and respect for the victim’s rights and dignity.
Information about services and remedies
A victim should be informed at the earliest practical opportunity, by relevant agencies and officials, of the services and remedies available to the victim.
Access to services
A victim should have access where necessary to available welfare, health, counselling and legal assistance responsive to the victim’s needs.
Information about investigation of the crime
A victim should, on request, be informed of the progress of the investigation of the crime, unless the disclosure might jeopardise the investigation. In that case, the victim should be informed accordingly.
Information about prosecution of accused
(1) A victim should be informed in a timely manner of the following:
(a) the charges laid against the accused or the reasons for not laying charges,
(b) any decision of the prosecution to modify or not to proceed with charges laid against the accused, including any decision for the accused to accept a plea of guilty to a less serious charge in return for a full discharge with respect to the other charges,
(c) the date and place of hearing of any charge laid against the accused,
(d) the outcome of the criminal proceedings against the accused (including proceedings on appeal) and the sentence (if any) imposed.
(2) A victim should be consulted before a decision referred to in paragraph (1) (b) is taken if the accused has been charged with a serious crime that involves sexual violence or that results in actual bodily harm or psychological or psychiatric harm to the victim, unless:
(a) the victim has indicated that he or she does not wish to be so consulted, or
(b) the whereabouts of the victim cannot be ascertained after reasonable inquiry.
Information about trial process and role as witness
A victim who is a witness in the trial for the crime should be informed about the trial process and the role of the victim as a witness in the prosecution of the accused.
Protection from contact with accused
A victim should be protected from unnecessary contact with the accused and the defence witnesses during the course of court proceedings.
Protection of identity of victim
A victim’s residential address and telephone number should not be disclosed unless a court otherwise directs. 35
Attendance at preliminary hearings
A victim should be relieved from appearing at preliminary hearings or committal hearings unless the court otherwise directs.
Return of property of victim held by State
If any property of a victim is held by the State for the purpose of investigation or evidence, the inconvenience to the victim should be minimised and the property returned promptly.
Protection from accused
A victim’s need or perceived need for protection should be put before a bail authority by the prosecutor in any bail application by the accused.
Information about special bail conditions
A victim should be informed about any special bail conditions imposed on the accused that are designed to protect the victim or the victim’s family.
Information about outcome of bail application
A victim should be informed of the outcome of a bail application if the accused has been charged with sexual assault or other serious personal violence.
Victim impact statement
A relevant victim should have access to information and assistance for the preparation of any victim impact statement authorised by law to ensure that the full effect of the crime on the victim is placed before the court.
Information about impending release, escape or eligibility for absence from custody
A victim should, on request, be kept informed of the offender’s impending release, or escape from custody, or of any change in security classification that results in the offender being eligible for unescorted absence from custody.
Submissions on parole and eligibility for absence from custody of serious offenders
A victim should, on request, be provided with the opportunity to make submissions concerning the granting of parole to a serious offender or any change in security classification that would result in a serious offender being eligible for unescorted absence from custody.
Compensation for victims of personal violence
A victim of a crime involving sexual or other serious personal violence should be entitled to make a claim under a statutory scheme for victims compensation. [/QUOTE]
The rights of a perpetrator of crime are as follows:
[QUOTE] The right to remain silent and the presumption of innocence are cornerstones of our criminal justice system.
There are limitations to these rights and if you are interviewed, detained, arrested, charged or about to be charged with an offence, always obtain legal advice.
Providing your name and address
In certain circumstances, a person is required to give their name and address to police.
The police officer must believe, on reasonable grounds:
The person has committed an offence.
The person is about to commit an offence.
The person may be able to assist in the investigation of an indictable offence (serious offence).
If found guilty and convicted of failing to comply with a request for name and address, a fine up to $500.00 can be imposed.
The person asked to give their name may request the police officer provide:
Their name
Rank
Place of duty
Grounds for their belief
The police officer is obliged to respond to these inquiries.
If found guilty and convicted of failing to comply with a request for name and address, a fine up to $500.00 can be imposed.
Authorised officers
Other Acts require you to provide name and address when requested by an authorised officer.
Authorised officer: A person empowered by legislation with limited information, security and arrest powers.
Example: The Transport Act 1983 (Vic) - You are required to provide your name and address to an authorised officer (ticket inspector) when asked.
Fingerprinting
In Victoria the police have the power to obtain your fingerprints:
If you are over 15 years of age.
Have been charged with an offence.
Have been summoned to appear at court for an offence.
If the police believe, on reasonable grounds, you have committed an offence.
The alleged offenders consent is not required.
If consent is not forthcoming the police can use reasonable force to obtain fingerprints.
The range of offences police can obtain fingerprints for is listed in Schedule 7 of the Crimes Act 1958. These are indictable offences and summary offences.
Fingerprint has a broad definition and can also include sole, toe and palm prints.
Conditions for fingerprinting
There are certain conditions that apply before fingerprints can be obtained. These need to be explained to the person to be fingerprinted.
Why the fingerprints are required.
The crime the police believe has been committed.
The fingerprints may be used as evidence in court.
If the person from whom fingerprints are requested refuses to consent, then reasonable force can be used to obtain them.
If the person fingerprinted is not charged with an offence within six months or is found not guilty by a court, then the fingerprints will be destroyed.
Police must obtain proof from the person to be fingerprinted that the conditions required were explained to them.
Children under 10
Fingerprints cannot be obtained.
Children aged 10 to 14
Fingerprints can be obtained from a child aged between 10 and 14 years of age.
The parent or Guardian must agree.
Failing this an order from the Children's Court is needed.
Children aged 15 or 16
A parent or guardian must be present when fingerprints are taken.
If a parent or guardian is not available, an independent person must be present.
If reasonable force is used to obtain fingerprints this should be video or tape-recorded where practical.
It is important to consult a solicitor because the law in this area is complex and it is vital the child's interests are protected.
Police powers to obtain body samples
In Victoria, police have the power to request a suspect to undergo a forensic procedure to take forensic samples.
This can be done where the forensic samples will prove or disprove the suspect's involvement in an indictable offence.
If a suspect agrees to the procedure the police must explain a number of maters to the suspect in order for consent to be valid.
The suspect must be a person charged with an indictable offence or a person who the police believe, on reasonable grounds, committed an indictable offence.
A person can refuse permission for such a sample to be taken.
Where a suspect does not consent, the police may make an application to the Magistrates' Court for a sample to be obtained.
The Court must be satisfied on the balance of probabilities that the suspect committed the offence in question before granting an order.
The samples taken can be intimate and non-intimate. This includes blood, hair, genital and anal swabs, saliva, mouth scrapings or dental impressions.
Information obtained from body samples can be retained on a DNA database.
Retention of samples can occur for specified periods for certain guilty offenders.
Children
Special provisions apply where body samples from children are being sought.
A body sample cannot be obtained from a child under ten years of age.
For children aged between ten years and under seventeen years of age, the Children's Court can order a forensic sample be taken in certain circumstances. .
It is important to consult a solicitor because the law in this area is complex and it is vital the child's interests are protected.
Arrest
Arrest powers set out in the Crimes Act and certain other Acts are:
The police can obtain a warrant to arrest a person.
The police can arrest a person without a warrant.
A private citizen can arrest a person – commonly known as citizen’s arrest.
Arrest without a warrant
You can be arrested without a warrant where a person is found committing an offence and it is believed, on reasonable grounds, that apprehension is necessary to ensure:
The appearance of the offender before a court.
The preservation of public order.
Prevention of the continuation or repetition of the offence.
Prevention of the commission of another crime.
The safety or welfare of the public or of the offender.
Or:
Where the police believe, on reasonable grounds, the person has committed an indictable offence.
Resisting arrest
If you threaten to injure or assault the police you can be charged with assault or resisting or hindering police in the exercise of their duty.
Unlawful detention
If a person is arrested unlawfully they may be able to sue for unlawful imprisonment and legal advice should be obtained.
A person who is unlawfully arrested can resist arrest but it should be noted the law requires reasonable grounds for the arrest.
This does not necessarily mean the person arrested committed the offence.
Detention
Victorian law requires police to bring the person before a bail justice or the Magistrates' Court within a reasonable time of being brought into police custody, or release the person.
Under Federal legislation a person who is arrested and/or held by the police in relation to a Federal offence, can generally be held for a period up to four hours.
For people under 18 years of age and Aboriginal or Torres Strait Islanders, this period of time is up to two hours.
Rights and obligations
A person arrested or detained by the police, must be informed by the police that:
They have the right to remain silent and that anything said or done may be used in evidence.
They may communicate (or attempt to communicate) with a friend or relative.
They may communicate (or attempt to communicate) with a legal practitioner.
This information should be audio or video recorded in the case of indictable offences if it is practicable for the police to do so.
Police should record any interview they conduct where a person is charged with an indictable offence and a confession or admission is made.
A copy of the recording should be given to the suspect within seven days of the interview.
At a later court hearing the recording may be played in court as evidence.
Children
Children under ten years of age cannot be arrested because they cannot be charged with any offence.
For children under 17 a parent or guardian should be present during questioning.
If a parent or guardian is not available, then an independent person should be present.
Before questioning an opportunity for private communication between the child and their parent, guardian or independent person should be made.
The requirement to have the parent, guardian or independent person present can be dispensed with by police if they believe, on reasonable grounds, that:
An accomplice would escape.
Evidence would be fabricated or destroyed.
The questioning was urgent in regard to the safety of other people.
Otherwise, provisions that apply to children in police custody are basically the same as those that apply to adults.
Non English speakers
Have the right to an interpreter.
Non Australian citizens
People who are not Australian citizens or permanent residents have a right to communicate with the relevant consular office.
Entering and searching premises
Police can enter and search premises without warrant if they have reasonable grounds for believing a person who is to be arrested may be found there.
Grounds for entering a premises:
A person who has committed a serious offence is to be arrested.
A person has escaped from custody.
A person is committing a serious offence.
Police can use reasonable force to enter and search premises.
A court can issue a warrant for police to enter and search premises.
Photos and ID parades
Photos
Police can photograph suspects for the purpose of identifying them.
The law is unclear on the power of Victorian police to photograph suspects for purposes other than identification where the person does not agree to this.
If you do not wish to be photographed advise the police you object.
If necessary complain to the senior officer present.
Federal legislation allows persons who are over 18 years of age and under arrest to be photographed.
Children between 10 and 18 years of age require parental consent or a court order to be photographed.
Identification parades
Identification (ID) parades, or 'line-ups' are conducted by police to assist witnesses in the identification of suspects.
A person cannot be forced to participate in an identification parade regardless of whether they have been arrested or not. Federal legislation has specific requirements on the manner in which the ID parades are to be conducted.
Bail
A person must be brought before a bail justice or the Magistrates' Court within a reasonable time of being brought into police custody, or released.
The Bail Act 1977 (Vic) outlines situations where bail should and should not be granted and the factors to be considered.
Obtain legal advice on your individual circumstances and ensure your interests are represented.[/QUOTE]
If my answer has been helpful or informative to you, please hit the Accept button.
[QUOTE]Charter of Victims Rights
Courtesy, compassion and respect
A victim should be treated with courtesy, compassion, cultural sensitivity and respect for the victim’s rights and dignity.
Information about services and remedies
A victim should be informed at the earliest practical opportunity, by relevant agencies and officials, of the services and remedies available to the victim.
Access to services
A victim should have access where necessary to available welfare, health, counselling and legal assistance responsive to the victim’s needs.
Information about investigation of the crime
A victim should, on request, be informed of the progress of the investigation of the crime, unless the disclosure might jeopardise the investigation. In that case, the victim should be informed accordingly.
Information about prosecution of accused
(1) A victim should be informed in a timely manner of the following:
(a) the charges laid against the accused or the reasons for not laying charges,
(b) any decision of the prosecution to modify or not to proceed with charges laid against the accused, including any decision for the accused to accept a plea of guilty to a less serious charge in return for a full discharge with respect to the other charges,
(c) the date and place of hearing of any charge laid against the accused,
(d) the outcome of the criminal proceedings against the accused (including proceedings on appeal) and the sentence (if any) imposed.
(2) A victim should be consulted before a decision referred to in paragraph (1) (b) is taken if the accused has been charged with a serious crime that involves sexual violence or that results in actual bodily harm or psychological or psychiatric harm to the victim, unless:
(a) the victim has indicated that he or she does not wish to be so consulted, or
(b) the whereabouts of the victim cannot be ascertained after reasonable inquiry.
Information about trial process and role as witness
A victim who is a witness in the trial for the crime should be informed about the trial process and the role of the victim as a witness in the prosecution of the accused.
Protection from contact with accused
A victim should be protected from unnecessary contact with the accused and the defence witnesses during the course of court proceedings.
Protection of identity of victim
A victim’s residential address and telephone number should not be disclosed unless a court otherwise directs. 35
Attendance at preliminary hearings
A victim should be relieved from appearing at preliminary hearings or committal hearings unless the court otherwise directs.
Return of property of victim held by State
If any property of a victim is held by the State for the purpose of investigation or evidence, the inconvenience to the victim should be minimised and the property returned promptly.
Protection from accused
A victim’s need or perceived need for protection should be put before a bail authority by the prosecutor in any bail application by the accused.
Information about special bail conditions
A victim should be informed about any special bail conditions imposed on the accused that are designed to protect the victim or the victim’s family.
Information about outcome of bail application
A victim should be informed of the outcome of a bail application if the accused has been charged with sexual assault or other serious personal violence.
Victim impact statement
A relevant victim should have access to information and assistance for the preparation of any victim impact statement authorised by law to ensure that the full effect of the crime on the victim is placed before the court.
Information about impending release, escape or eligibility for absence from custody
A victim should, on request, be kept informed of the offender’s impending release, or escape from custody, or of any change in security classification that results in the offender being eligible for unescorted absence from custody.
Submissions on parole and eligibility for absence from custody of serious offenders
A victim should, on request, be provided with the opportunity to make submissions concerning the granting of parole to a serious offender or any change in security classification that would result in a serious offender being eligible for unescorted absence from custody.
Compensation for victims of personal violence
A victim of a crime involving sexual or other serious personal violence should be entitled to make a claim under a statutory scheme for victims compensation. [/QUOTE]
The rights of a perpetrator of crime are as follows:
[QUOTE] The right to remain silent and the presumption of innocence are cornerstones of our criminal justice system.
There are limitations to these rights and if you are interviewed, detained, arrested, charged or about to be charged with an offence, always obtain legal advice.
Providing your name and address
In certain circumstances, a person is required to give their name and address to police.
The police officer must believe, on reasonable grounds:
The person has committed an offence.
The person is about to commit an offence.
The person may be able to assist in the investigation of an indictable offence (serious offence).
If found guilty and convicted of failing to comply with a request for name and address, a fine up to $500.00 can be imposed.
The person asked to give their name may request the police officer provide:
Their name
Rank
Place of duty
Grounds for their belief
The police officer is obliged to respond to these inquiries.
If found guilty and convicted of failing to comply with a request for name and address, a fine up to $500.00 can be imposed.
Authorised officers
Other Acts require you to provide name and address when requested by an authorised officer.
Authorised officer: A person empowered by legislation with limited information, security and arrest powers.
Example: The Transport Act 1983 (Vic) - You are required to provide your name and address to an authorised officer (ticket inspector) when asked.
Fingerprinting
In Victoria the police have the power to obtain your fingerprints:
If you are over 15 years of age.
Have been charged with an offence.
Have been summoned to appear at court for an offence.
If the police believe, on reasonable grounds, you have committed an offence.
The alleged offenders consent is not required.
If consent is not forthcoming the police can use reasonable force to obtain fingerprints.
The range of offences police can obtain fingerprints for is listed in Schedule 7 of the Crimes Act 1958. These are indictable offences and summary offences.
Fingerprint has a broad definition and can also include sole, toe and palm prints.
Conditions for fingerprinting
There are certain conditions that apply before fingerprints can be obtained. These need to be explained to the person to be fingerprinted.
Why the fingerprints are required.
The crime the police believe has been committed.
The fingerprints may be used as evidence in court.
If the person from whom fingerprints are requested refuses to consent, then reasonable force can be used to obtain them.
If the person fingerprinted is not charged with an offence within six months or is found not guilty by a court, then the fingerprints will be destroyed.
Police must obtain proof from the person to be fingerprinted that the conditions required were explained to them.
Children under 10
Fingerprints cannot be obtained.
Children aged 10 to 14
Fingerprints can be obtained from a child aged between 10 and 14 years of age.
The parent or Guardian must agree.
Failing this an order from the Children's Court is needed.
Children aged 15 or 16
A parent or guardian must be present when fingerprints are taken.
If a parent or guardian is not available, an independent person must be present.
If reasonable force is used to obtain fingerprints this should be video or tape-recorded where practical.
It is important to consult a solicitor because the law in this area is complex and it is vital the child's interests are protected.
Police powers to obtain body samples
In Victoria, police have the power to request a suspect to undergo a forensic procedure to take forensic samples.
This can be done where the forensic samples will prove or disprove the suspect's involvement in an indictable offence.
If a suspect agrees to the procedure the police must explain a number of maters to the suspect in order for consent to be valid.
The suspect must be a person charged with an indictable offence or a person who the police believe, on reasonable grounds, committed an indictable offence.
A person can refuse permission for such a sample to be taken.
Where a suspect does not consent, the police may make an application to the Magistrates' Court for a sample to be obtained.
The Court must be satisfied on the balance of probabilities that the suspect committed the offence in question before granting an order.
The samples taken can be intimate and non-intimate. This includes blood, hair, genital and anal swabs, saliva, mouth scrapings or dental impressions.
Information obtained from body samples can be retained on a DNA database.
Retention of samples can occur for specified periods for certain guilty offenders.
Children
Special provisions apply where body samples from children are being sought.
A body sample cannot be obtained from a child under ten years of age.
For children aged between ten years and under seventeen years of age, the Children's Court can order a forensic sample be taken in certain circumstances. .
It is important to consult a solicitor because the law in this area is complex and it is vital the child's interests are protected.
Arrest
Arrest powers set out in the Crimes Act and certain other Acts are:
The police can obtain a warrant to arrest a person.
The police can arrest a person without a warrant.
A private citizen can arrest a person – commonly known as citizen’s arrest.
Arrest without a warrant
You can be arrested without a warrant where a person is found committing an offence and it is believed, on reasonable grounds, that apprehension is necessary to ensure:
The appearance of the offender before a court.
The preservation of public order.
Prevention of the continuation or repetition of the offence.
Prevention of the commission of another crime.
The safety or welfare of the public or of the offender.
Or:
Where the police believe, on reasonable grounds, the person has committed an indictable offence.
Resisting arrest
If you threaten to injure or assault the police you can be charged with assault or resisting or hindering police in the exercise of their duty.
Unlawful detention
If a person is arrested unlawfully they may be able to sue for unlawful imprisonment and legal advice should be obtained.
A person who is unlawfully arrested can resist arrest but it should be noted the law requires reasonable grounds for the arrest.
This does not necessarily mean the person arrested committed the offence.
Detention
Victorian law requires police to bring the person before a bail justice or the Magistrates' Court within a reasonable time of being brought into police custody, or release the person.
Under Federal legislation a person who is arrested and/or held by the police in relation to a Federal offence, can generally be held for a period up to four hours.
For people under 18 years of age and Aboriginal or Torres Strait Islanders, this period of time is up to two hours.
Rights and obligations
A person arrested or detained by the police, must be informed by the police that:
They have the right to remain silent and that anything said or done may be used in evidence.
They may communicate (or attempt to communicate) with a friend or relative.
They may communicate (or attempt to communicate) with a legal practitioner.
This information should be audio or video recorded in the case of indictable offences if it is practicable for the police to do so.
Police should record any interview they conduct where a person is charged with an indictable offence and a confession or admission is made.
A copy of the recording should be given to the suspect within seven days of the interview.
At a later court hearing the recording may be played in court as evidence.
Children
Children under ten years of age cannot be arrested because they cannot be charged with any offence.
For children under 17 a parent or guardian should be present during questioning.
If a parent or guardian is not available, then an independent person should be present.
Before questioning an opportunity for private communication between the child and their parent, guardian or independent person should be made.
The requirement to have the parent, guardian or independent person present can be dispensed with by police if they believe, on reasonable grounds, that:
An accomplice would escape.
Evidence would be fabricated or destroyed.
The questioning was urgent in regard to the safety of other people.
Otherwise, provisions that apply to children in police custody are basically the same as those that apply to adults.
Non English speakers
Have the right to an interpreter.
Non Australian citizens
People who are not Australian citizens or permanent residents have a right to communicate with the relevant consular office.
Entering and searching premises
Police can enter and search premises without warrant if they have reasonable grounds for believing a person who is to be arrested may be found there.
Grounds for entering a premises:
A person who has committed a serious offence is to be arrested.
A person has escaped from custody.
A person is committing a serious offence.
Police can use reasonable force to enter and search premises.
A court can issue a warrant for police to enter and search premises.
Photos and ID parades
Photos
Police can photograph suspects for the purpose of identifying them.
The law is unclear on the power of Victorian police to photograph suspects for purposes other than identification where the person does not agree to this.
If you do not wish to be photographed advise the police you object.
If necessary complain to the senior officer present.
Federal legislation allows persons who are over 18 years of age and under arrest to be photographed.
Children between 10 and 18 years of age require parental consent or a court order to be photographed.
Identification parades
Identification (ID) parades, or 'line-ups' are conducted by police to assist witnesses in the identification of suspects.
A person cannot be forced to participate in an identification parade regardless of whether they have been arrested or not. Federal legislation has specific requirements on the manner in which the ID parades are to be conducted.
Bail
A person must be brought before a bail justice or the Magistrates' Court within a reasonable time of being brought into police custody, or released.
The Bail Act 1977 (Vic) outlines situations where bail should and should not be granted and the factors to be considered.
Obtain legal advice on your individual circumstances and ensure your interests are represented.[/QUOTE]
If my answer has been helpful or informative to you, please hit the Accept button.
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14,361
Experience: I did my law degree at the University of Queensland
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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).
