If you have been suspected of committing a criminal offence, the first 24 to 72 hours are crucial for obtaining legal advice. Yet many people delay contacting a lawyer until well after they have been interviewed, arrested, or bailed.
The following explains why obtaining legal advice as soon as possible is so important. It outlines the options available at the early stages of a criminal matter, the risks of waiting too long for legal advice, and why early legal advice can be a game changer.
What Happens in the Early Stages of a Criminal MatterTiming is particularly important at the early stages of a criminal matter, when key decisions at the investigation, interview, charging, and bail stages can completely reshape the outcome of a criminal case.
When police suspect an offence has been committed, they gather evidence. This may include:
- Witness statements
- CCTV footage
- Forensic evidence
- Digital material such as phone data or social media
- Search warrants executed at homes or workplaces
The goal for the police at this stage is to compile a brief of evidence that goes toward proving each element of a criminal offence, and that prosecutors can mount a case that is capable of proving beyond reasonable doubt that an offence was committed.
If you are arrested or asked to attend a police station, you may be formally interviewed. In Western Australia, police interviews are typically recorded. Recorded interviews often become central evidence in criminal proceedings, and once recorded, what is said cannot be undone.
The right to silence is a well-established common law principle. A suspect is not required to answer questions, subject to limited statutory exceptions, such as providing name, date of birth and address details.
Importantly, silence cannot be used as evidence of guilt in Western Australia, although there are notable exceptions. The High Court decision in Petty v The Queen (1991) 173 CLR 95 confirms that an accused’s silence cannot ordinarily be used to draw an inference of guilt. However, once a person speaks, what they say becomes part of the evidentiary record.
Police determine what charges to lay based on the evidence available at the time. For serious criminal matters, charges are governed by the elements of the offences set out in legislation (for example, the Criminal Code Compilation Act WA). These decisions can be influenced by (among other matters): What is said in the police recorded interview and any admissions that are made.
In some cases, police may have discretion about how to frame charges, such as whether to lay multiple charges that relate to one incident.
If a person is charged, the next issue to be considered is bail. Bail is governed by the Bail Act 1982 (WA). Section 5 of the Act establishes the general entitlement to have bail considered, subject to exceptions. In serious cases, the accused may need to show why bail should be granted.
Section 17 of the Bail Act of Western Australia allows conditions to be imposed to ensure: attendance at court, protection of witnesses, community safety, and non-interference with the administration of justice.
If bail is refused, a person may be remanded in custody until their next court date. Time spent in custody can have profound consequences for employment, housing, and family stability.
Risks of Waiting Too Long for Legal AdviceSeveral mistakes can occur early in a criminal matter if you wait too long to seek legal advice, including missteps during a police interview and missed opportunities to undermine the prosecution case.
The most common and damaging early mistake is speaking without receiving legal advice first.
Many people assume that if they are innocent, they should simply explain themselves during a police interview. However, this misunderstands the purpose of a police interview. If police suspect you of committing a crime, they are conducting an interview to assist their case – not to decide whether you are factually innocent.
Even ambiguous statements made by an accused during a recorded interview can be relied upon in court. As such, a single sentence can alter the strength of your defence. Early legal advice ensures that the decision whether to participate in an interview is strategic. Even if incriminating statements have already been made, early legal advice can help you understand whether those statements are likely to be admissible in court.
Under section 112 of the Evidence Act 1906 (WA), a confession may be excluded if it was obtained illegally or would operate unfairly against the accused. The High Court in R v Swaffield; Pavic v The Queen (1998) 192 CLR 159 confirmed that courts retain a discretion to exclude confessional evidence where its admission would be unfair to the accused.
That said, once a clear, voluntary admission is recorded, it is extremely difficult to undo. Early legal advice can help prevent unnecessary admissions from being made in the first place.
An admission includes any statement that indicates guilt for a criminal offence. This can include statements made to police, friends, family members, or on social media.
Messages sent in anger, frustration, or fear can later be extracted and used in court. Once made, statements cannot be retracted simply because a person later regrets them.
Early legal advice can prevent you from making incriminating statements that may be used against you later.
Once proceedings are formally underway, it becomes much more difficult to reshape the prosecution case.
How Early Legal Advice Can Make a Difference
Contemporaneous legal advice can support an effective defence strategy from the earliest opportunity, increasing the chances that charges do not proceed.
A Perth criminal lawyer can provide guidance before a police interview, including advice on whether to participate, whether to answer certain questions, and whether to provide a written statement.
A lawyer can also identify weaknesses in the prosecution case early on, including whether the alleged facts satisfy the legal elements of the offence, whether searches were lawfully conducted, or whether certain evidence is admissible.
Once charged, defence representations to prosecutors can influence the progress of the case, potentially leading to the withdrawal, amendment, or consolidation of charges or an indictable charge proceeding summarily. Once a case has progressed through court appearances, positions tend to harden, so the earlier representations are made, the better.
A reminder: the prosecution will only proceed with a particular charge if they believe the evidence suggests that all the necessary elements of an offence are provable. Early representations by a lawyer can make it clear where some offences are likely to fail and therefore should not proceed.
Evidence indicating your innocence can be quickly lost if it is not identified early. This can include CCTV (which may be overwritten), key witnesses, and digital data that may be lost. A defence lawyer is trained to identify and preserve crucial evidence that may be used in your case.
Finally, early engagement allows your lawyer to prepare to present your case properly in court, including gathering character references, medical or psychological reports, and other evidence to assist. The lawyer can also advise on whether an early plea of guilty is in your best interests in anticipation of future sentencing.
Long-Term Consequences of Early Mistakes
If you make mistakes early in your criminal matter, there can be downstream effects that may be significant.
The most obvious impact of early mistakes is their effect on sentencing if you are later found guilty. Under section 6 of the Sentencing Act 1995 (WA), the court must impose a sentence that is commensurate with the seriousness of the offence.
Courts in Western Australia consider a range of factors when determining an appropriate sentence, including remorse, insight, cooperation, and the likely success of rehabilitation. If you have not planned for this stage, proactively presenting a case for remorse and a goal of rehabilitation, you are likely to face a more serious penalty than you otherwise would.
A failure to adequately defend a charge and being found guilty also means you are likely to receive a criminal record. This record can have major implications for your life, including restrictions on employment, visa applications, and professional registrations. In appropriate cases, the court may order that a conviction be spent under Part 3 of the Spent Convictions Act 1988 (WA). However, this requires arguments to be made, and early preparation is key.
Key Lesson: Get Legal Advice as Soon as Possible
Waiting rarely improves a criminal matter, but acting quickly often does.
If you or someone close to you is under investigation or has been charged with an offence in Western Australia, seeking immediate legal advice is not an admission of guilt. It is a prudent step in protecting your rights, your record, and your future.
Early intervention can change the course of a case.
If you are facing a criminal matter in Western Australia, it is essential to seek guidance from an experienced criminal lawyer who can provide expert advice, protect your rights, and help achieve the best possible outcome for your case.
