What are Your Rights When Charged with a Criminal Offence in NSW?

Navigating the criminal law landscape can be daunting, especially when facing a criminal offence. Knowing your rights can be one of your greatest assets during a challenging time. Unfortunately, many individuals find themselves unsure of their rights or the procedures involved, often due to the complexities of the system.

This article provides an overview of the legal process involved in criminal charges to help you navigate the system with a bit more ease.

What are criminal charges?

Criminal charges arise when there is an allegation that someone has broken the law. In NSW, criminal offences are divided into four categories of different seriousness:

1. Summary offences
2. Table 2 offences
3. Table 1 offences
4. Strictly indictable offences

How can I be charged with a criminal offence?

Generally, there are two ways you can be charged with a criminal allegation:

1. By receiving a future Court Attendance Notice (CAN), or
2. Begin arrested, charged and taken directly before a Court

What are my rights when being charged with a criminal offence?

There are a number of different rights when being charged with a criminal offence, the most important of which is the right to silence. There is no obligation or requirement to discuss the investigation or allegation with investigating Police. This includes not completing an interview or providing a statement. Anything said could potentially be used in Court as evidence. There are some important exceptions to this right, which arise in certain situations (such as when you are the registered owner of a vehicle or were driving a vehicle involved in an accident).

Categories of Criminal Offences in NSW

1. Summary offences
   These are less serious crimes, often with a maximum penalty of two years or less imprisonment. Examples of these offences include offensive language, possession of liquor of minors, less serious drug offences (such as possession of small quantities) and shoplifting.

2. Table 2 offences
   Table offences are located in Tables 1 and 2 of Schedule 1 of the Criminal Procedure Act 1986. Table 2 offences are generally less serious than Table 1 offences.  Examples of Table 2 offences include common assault, stalking or intimidation, possessing housebreaking implements and participating in criminal groups. 

3. Table 1 offences
   Table 1 offences are more serious than the above categories. Examples include assaulting police causing actual bodily harm, aggravated sexual touching, recklessly wounding or causing grievous bodily harm and larceny over $5,000. 

4. Strictly Indictable offences
   Strictly indictable offences represent the most serious crimes in NSW. Examples include murder, manslaughter, commercial drug supply and sexual assault.   

Is Drink Driving a criminal offence?

Drink driving is a criminal offence in NSW. The laws have been designed to deter impaired driving and enhance public safety. Therefore, the penalties for drink driving are quite hefty and include significant fines, possible imprisonment and loss of licence. The severity of the penalty often depends on your blood alcohol level, prior offences and whether anyone was hurt. If you’re unsure how many standard drink can you have before driving, you might like to read this article which explains it in more detail.

Your rights:

• If you are pulled over, breath tested and return a positive reading, you have the right to request a second test to confirm the results. You do not have the right to refuse a breath test and doing so can lead to charges against you.
• If you are arrested for drink driving, you have the right to speak with a legal representative before you answer any police questions. They can talk to you about your rights when speaking with police and provide guidance on your situation.
• You have the right to remain silent when being questioned by the police. Other than providing your identification and submitting to a breath test you are not obligated to answer questions as this may be used as evidence against you, unless you meet one of the exceptions.

Is Speeding Considered a Criminal Offence?

While speeding is primarily treated as a traffic infringement, it can escalate to a driving criminal offence. This can happen if a driver exceeds the speed limit by a significant amount, especially in areas like school zones. Reckless driving can also lead to criminal charges, which could result in serious consequences, including a criminal record. You might also be wondering if you can get fined for driving too slow in NSW as well.

Your rights:

• If the police stop you for speeding, they might ask you some questions such as, “Where are you going tonight?” or “Do you know how fast you were going?” You are not legally required to answer these questions, only to provide your identification. However, it is recommended to always be polite and cooperative when interacting with police.
• Police officers do not always need specific devices to determine if you are exceeding the speed limit. Although they commonly use speed cameras and mobile radar units, it is within their authority to issue a speeding ticket based on their estimation of your speed alone. This means that their observation can lead to penalties even if no devices were used.
• If you are caught speeding by a fixed speed camera or a mobile speed unit you will receive a fine in the mail. You do have the right to contest this by electing to take the penalty to court.
• For minor speeding offences you may lodge an application requesting a review by revenue NSW. Revenue NSW may consider leniency if you are fined for exceed speed of under 20km/h and have had a clear driving record for ten years prior to the offence. If you do not agree with the outcome of the appeal, you still retain the right to elect to take the penalty to court (this must be done within 28 days of receiving the decision).

Is a DUI Considered a Criminal Offence in NSW?

Yes, DUI (driving under the influence) is a criminal offence in NSW. Unlike drink driving, the police don’t need to prove your blood alcohol level—only that you were impaired. They might base this on your driving behaviour or signs of intoxication, like slurred speech. Penalties for DUI can be more severe, with longer disqualification periods.

Your rights:

• If you are charged with a DUI, you have the right to remain silent. Other than providing your identification and submitting to sobriety tests, you do not need to answer any further questions, unless you meet one of the exceptions. Anything that you do say can potentially be used as evidence against you. Remaining silent at least until after you speak to a legal representative is recommended.
• If police pull you over for a DUI offence you have the right to legal representation. You are entitled to speak to a lawyer before you answer any police questions. A lawyer can help you understand the charges and guide you through potential weaknesses in the validity of the officer’s observations that led to the DUI charge.
• If you are charged with a DUI offence you are entitled to dispute the evidence used against you in court. This includes the officer’s assessment of your driving behaviour or signs of impairment.

Is Trespassing a Criminal Offence? 

Trespassing can be a criminal act in NSW, especially if you enter someone’s property without permission. If you refuse to leave when asked or go on the property intending to commit another crime, you could face serious charges.

Your rights:

• If police approach you and question or arrest you for a trespassing charge, you have the right to remain silent. As with the above offences you must provide identification if asked but you are not legally required to participate in an interview or answer any further questions. This is an important right as anything you do can later be used as evidence towards prosecution of the charges.
• If you believe you had permission to be on the property or wish to challenge the charge, you have the right to do so in court. Upon being charged with this offence you will likely receive a court attendance notice. When you appear in court you will have the opportunity to enter a plea of not guilty, allowing you to challenge the charge before the Court.

Can Verbal Abuse be classified as a Criminal Offence?

Verbal abuse can result in criminal charges in NSW. Situations involving threats, harassment, or behaviour that instills fear in another person are criminal offences. Verbal abuse that intimidates or controls a partner can lead to Apprehended Violence Orders (AVOs). Failure to comply with such orders can result in further criminal charges.

Your rights:

• Like with the above offences, if you are charged with verbal abuse, you have the right to remain silent and have legal representation. If you are questioned by police in regard to a verbal abuse charge you do not need to answer any questions. It is recommended that you inform the police officer that you wish to speak to a lawyer before answering any questions. This will protect you from making any admissions that can later be used against you.
• If you believe you are not guilty of the charges against you or that the facts of the charges are wrong, you have the right to defend the allegation in Court.

If you’re facing criminal charges, it’s crucial to understand your rights and you might like a few tips to help you choose a criminal defence lawyer. Getting legal advice can make a big difference in your situation. Criminal lawyers are there to help you navigate these tough times and can provide the support you need. If you find yourself in this situation, don’t hesitate to reach out to Morrisons and our team will be ready to help.