Thursday, 22nd of March, 2018

After Arrest

Interviews and talking with the police

But we were just talking!

There is no such thing as an ‘off the record’ conversation with a police officer, irrespective of the time or place of such a conversation. This includes overheard conversations. However due to alleged abuses in the past, it is now expected that any admissions of the accused will be recorded on video. 

Making an Admission

If a person verbally agrees with the statement of another person after reading it, then it is regarded by the law as being adopted and may be later tendered in evidence against that person. Words, silence or conduct may amount to an admission of what a police officer has put to the person. However, no adverse inference can be drawn from their refusal to answer questions which they have been expressly told that they are not bound to answer, or from their silence after they have been told they need not speak at all.

The police can and do use verbal statements.

The Right to Silence

In the majority of cases, it is their own admissions used as evidence that convicts people. This is why the right to silence is so important. It is the right to not incriminate oneself.

As a general rule, a person does not have to answer questions except to provide their name and residential address. Legally, no adverse inference can be drawn against them for refusing to answer questions especially if their refusal is a consequence of their known right to silence.

However a refusal to answer some questions but not others can give rise to an inference of a ‘consciousness of guilt’ about the subject matter of the unanswered questions. The inference is that the answer would not be helpful to their case but it is not an inference of guilt. As juries and magistrates are only human, failure to answer questions might be misconstrued in court.

In addition, the person’s answers could determine whether or not the police will proceed with the matter. However, any suggestion from a police officer that by making a statement the person will make things easier for themselves should be ignored. It is for the court alone to determine what will happen.


The police have the power to ask questions before charging a person. Questioning may be informal (for example, by way of conversation) or formal (for example, by way of a record of interview). After being charged, the person should only be questioned where necessary to prevent loss to some other person or body, to recover property, or if fresh charges are being laid against them.

Under the Criminal Law (Detention and Interrogation) Act 1995, a police officer can detain a person for a reasonable time for the purposes of questioning the person, or carrying out investigations in which the person participates, in order to determine his or her involvement, if any, in relation to an offence. A reasonable time also includes the time it takes to transport and bring a person before a magistrate or justice. What constitutes a reasonable time will depend on a number of factors, enumerated under section 4(4) of the Act.

What is a caution?

Before questioning a suspected person, the police should caution them that no questions need to be answered but that any answers given may be used in evidence. If the case goes to court, the police may use evidence of such caution to show that what the accused said afterwards was said freely and voluntarily. A statement taken in the police station will conclude with questions about whether or not a caution was given and understood and whether the statement was made voluntarily. If no caution was given, this does not mean that statements made cannot be used.

Whether or not the court will use statements given without a caution as evidence is at the discretion of the court.

Written Admissions

Written admissions are sometimes written by the arrested person and signed, or they are typed or written out by a police officer and signed by the arrested person. Written statements can be used as evidence in a court of law. As with verbal statements, it is at the discretion of the court to decide to use or not use evidence if a defendant challenges the admissibility of the evidence, alleging an abuse of police power.


Sometimes it will be in a person’s interests to make a statement, if possible, with the advice of a lawyer. It is important, therefore, to request to speak to a lawyer.

It may be desirable to talk to police if the person has a valid explanation for their behaviour: for example, in a case of theft, if they had the consent of the owner. A caution should be given by police to a person whether they wish to speak or not.

A person who, after legal advice, wants to plead ‘guilty’ may wish to talk to police to get on record the exact extent of their involvement or to explain the circumstances of the offence. Where a person wants to surrender to police, a lawyer can assist in preparing a statement of these matters.

If the person doesn’t want to say anything to police, that attitude should be made clear and never changed. They should state their name and address, and words such as "I do not want to answer any questions" and continue to make this answer to every question. There should be no change, even if they are asked about the reason for their attitude.

On completion of the interview the suspect may be taken to an independent police officer (not present at the interview) and will be asked if they have any complaints about the interview, for example, police behaviour, content, any violence or unfairness, and so on. The suspect may then adopt it as their record of interview. This procedure is referred to as the ‘Register of Persons Interviewed’. The suspect may also state any objections they have during the interview itself.

Other People's Statements

Another person's statement may be shown to a suspected person. The suspected person is not, however, obliged to respond in any way and should be cautioned first. Responding to another person's statement or record of interview can be a very dangerous exercise for a person who does not want to plead guilty to any charge that might be laid.

Getting Help

There is no absolute legal right to have an independent witness or a lawyer present during questioning. However, the courts have decided that a lawyer should be allowed to be present if requested by the suspected person and the interrogation should be delayed a reasonable time for the suspect to try to get legal advice. In Tasmania, there is a right to communicate with a friend, relative or legal practitioner (s6, Criminal Law (Detention and Interrogation) Act 1995 (Tas)).

The denial of access to a lawyer, in some circumstances, may lead a judge to exercise their discretion in rendering a confession inadmissible if they think that this denial amounts to unfair treatment of the accused.

Further, the Tasmanian Police Standing Orders say that a person should be given access to a lawyer. These standing orders are a set of recommendations from the Commissioner of Police to police concerning proper procedures. Although these are not legally enforceable rules and are only a general guide of the appropriate standard of propriety a judge may exercise a discretion to exclude a confession if there has been a breach of these rules. Failure to warn a suspect of their right to remain silent is regarded as a serious breach and has warranted the exercise of this discretion on occasions. However, a breach of these rules will not in itself always result in exclusion of this evidence.

If a person has gone to a police station voluntarily and is not under arrest, they can refuse to supply information or even to remain at the police station until a lawyer or independent witness is present. If under arrest, a person can still refuse to answer questions but this will not necessarily prevent them being asked.

If a lawyer requests access to a person in custody and is refused, the fact that they made such a request and the names of all persons spoken to should be noted down. It can then be used as evidence casting doubt on the truth and voluntariness of any record of interview.

If access is denied, a written or verbal complaint can be made to the superior of the officer concerned or to the Commissioner of Police. In addition, the Register of Persons Interviewed procedure now provides a suspect with an opportunity to complain at an early stage, as does the video interview itself.

Children are in a special position. Police Standing Orders say that they should not be questioned without a parent or guardian present, or failing that, a child welfare officer. Police should attempt to contact an appropriate adult. If this procedure is not followed the admissibility of any statement, confession or admission may later be challenged in court.

The Police Standing Orders provide that after a person has been charged, facilities should be made available to allow that person to telephone a friend, relative, solicitor or doctor. A request should be made. It is advisable to be circumspect when telephoning from a police station where what is said may be overheard and can be used later in evidence.

Once again, it should be noted that the Police Standing Orders are not legal rules and do not confer rights. If they are not obeyed, however, a complaint should be made, and the conduct of the police could then cast doubt on the voluntariness of any admission or confession. It may also provide a basis for challenging the admissibility of any statement on grounds of unfairness to the accused (see below).

Illegal Police Action

Involuntary Confessions

A confession is not admissible as evidence in court unless it was made voluntarily. To be voluntary a confession must be:

  • of a suspect's own free choice; and
  • not be made as a result of oppressive conduct, for example, intimidation, violence, promise, threat, undue insistence, duress, pressure, coercion or causing a suspect to confess due to mental or physical exhaustion etc; and
  • not be made as a result of inducements, for example, by suggesting that confession will produce a beneficial result or failing to do so will have a detrimental result. Such an inducement must be made by some person in authority, such as a police (or prosecuting) officer or made by some person not in authority but who is in the presence of someone in a position of authority and the person in authority does not disassociate themselves from the person making the inducement. In such a case the inducement must cause the confession.

Where the confession is not voluntary it can be challenged in court and a ‘voir dire’ (a trial within a trial) is held to decide whether the confession or statement was made voluntarily. At the voir dire, the prosecution must establish voluntariness, but it seems not on the usual criminal standard of proof which is ‘beyond reasonable doubt’.

The law remains uncertain as to what standard of proof is needed. There are conflicting decisions of the Tasmanian Supreme Court. The standard of proof for establishing voluntariness is either that of the balance of probabilities which is the usual civil standard of proof, or a ‘variable’ one lying somewhere between the criminal and civil standard of proof depending ‘on the circumstances’.

Malicious Prosecution

Malicious prosecution occurs where a person maliciously and without reasonable cause starts criminal proceedings against another. A person is liable for malicious prosecution if, on their complaint, the police prosecute the other person. The person must actively instigate the prosecution, for example, by laying a charge. Merely providing information is not enough. The person is not liable if the police make an independent decision to start proceedings.

Action for false imprisonment or malicious prosecution should be taken in the Supreme Court. Legal representation is advisable. It may be difficult to prove either that the police did not have reasonable cause to arrest or that the person had malicious motives in instigating the prosecution.

False Imprisonment

False imprisonment occurs if a person is unlawfully restrained against their will. It is also false imprisonment when a person submits to the control of another because of an unlawful threat of force or assertion of authority.

If a person voluntarily goes to the police station, there is no false imprisonment because there is no detention against that person's will. But if a person goes to a police station out of fear of the consequences (for example, public humiliation), the submission is not voluntary and may be regarded by a court as false imprisonment.

The defendant in a case of false imprisonment will be either the person who actually detained the plaintiff or the person who directed the police to arrest the plaintiff when they would not otherwise have done so.

There is no false imprisonment if the police arresting had reasonable cause or a warrant.

What to do

In the event of police mistreatment, the following steps should be taken if possible. An immediate complaint should be made to the officer concerned and their superior. The longer a complaint is delayed, the easier it is for the police to suggest in any later inquiry that the complaint is untrue. Such a complaint can now be made immediately following an interview (or even during the interview if it is an audio-visual one, so that the complaint is recorded). Verbal complaints should be confirmed in writing, if possible, by a solicitor.

An immediate medical examination should be arranged in a case where there is physical violence. Police Standing Orders provide that a telephone call by a person in custody may be made to a doctor. Failing this, a person should be examined at the earliest opportunity and if any external injuries are evident, photographs should be taken.

People should be contacted who saw the person concerned not long before the arrest. They should be asked to look at any injuries and to state (in writing) whether they observed them beforehand.

A full statement of what occurred should be made by the person alleging mistreatment while the incident is still fresh in their memory. Action may be taken for assault and/or false imprisonment. A complaint can be made to the Commissioner of Police and if this is not satisfactorily dealt with the matter can be further investigated by the Tasmanian Ombudsman.

Civil proceedings may be preferable to criminal action. Criminal proceedings against the police are especially difficult since complaints must be made to the police themselves (though a ‘private prosecution’ is possible).

Exclusion of Evidence in Court

There are two main reasons why judges can exercise their discretion to exclude evidence. The first is that a judge has a discretion to exclude evidence of statements if the manner in which they were obtained is considered to have been improper. This discretion is unique to confessions and may be exercised even if the confession is technically voluntary. Thus, a confession may be rejected if, in all the circumstances, it would be unfair to use it against the accused. The theory behind this discretion is to discourage police misconduct, to ensure reliability of evidence and to protect an accused's right to silence. The discretion is contained in section 138 of the Evidence Act 2001 (Tas).

Breaches of Police Standing Orders, though they are not legally binding, and denial of access to a lawyer frequently justify the exercise of this discretion.

The overall purpose of this discretion is to ensure fairness to an accused. However a judge has to be concerned with broader public considerations such as the public need to bring about the conviction of criminals. This has to be weighed against the public interest in the protection of an individual from unlawful and unfair treatment. If the latter outweighs the former, the discretion should be exercised.
Secondly, the judge has a discretion to reject other evidence sought to be tendered against an accused by reference to the fact of it having been obtained by unlawful or unfair means.

In particular, it is not legal in Tasmania to simply detain a person for questioning even if they are lawfully under arrest. The duty of the police is clearly to take such a person before a court ‘as soon as practicable’ (s4, Criminal Law (Detention and Interrogation) Act 1995). If this is not done, the court may in exercise of its discretion exclude any confession obtained from use as evidence.

Other kinds of illegality or impropriety to which the discretion applies are illegal searches and seizure, illegal blood and skin tests and medical examinations, illegal phone tapping and interception of mail, and the use of tricks, lies, eavesdropping and entrapment. The police may deceive a suspect about their identity in order to obtain evidence or information of criminal activity.  This is permissible providing it is used merely to assist the police in their enquiries and does not cause a person to commit a crime which would otherwise not have been committed.

Finally, it is up to an accused person to persuade the judge to exercise their discretion.

Civil Compensation for Illegal Police Actions

Civil court action can be taken in some cases of police misconduct (for example, trespass to persons or property, assault, wrongful arrest, false imprisonment or malicious prosecution). There have been a number of recent well-publicised cases, most of which have failed but which have highlighted the need for police officers to be accountable for their actions.

Customs officers are protected from anything done under the Customs Act 1901 (Cth) if there was reasonable cause (s220). This protection seems to be exhaustive, although it has never been tested in any civil action. It would appear that no crime need be proved to establish reasonable cause.

Interviews, Examinations and Line-ups

Medical Examinations

The Forensic Procedures Act 2000 authorises medical examinations of persons suspected of, or charged with offences in the detailed circumstances which it specifies. No forensic procedure on a person under ten years of age is permitted (s4).

The procedures authorised under the Act are intimate procedures where a suspect or person charged is 15 years or older, where that person has given informed consent, or upon the order of a magistrate; non-intimate procedures on a charged person if any police officer so orders if the person is in custody; and if the person is not in custody on the order of an officer of or above the rank of Inspector; and where a suspect or person charged is under the age of 15 years if that person and his or her parent has given informed consent or on the order of a magistrate.

Non-intimate procedures may be carried out on a person serving a sentence, a parolee and a person subject to a restriction order under the Criminal Justice (Mental Impairment) Act 1999.

Persons may volunteer submission to forensic procedures if they give informed consent and if under the age of 15 years both they and their parent give such consent (s8).

Procedures have to be carried out in circumstances affording reasonable privacy and in a manner consistent with appropriate medical or other relevant professional standards. The procedures can be carried out with reasonable force to enable the procedure and to prevent loss, destruction or contamination of sample. The most intimate procedures should be carried out by a person of the same sex as the person undergoing the procedure.

Records of Interviews

Written interviews are rarely used when audio-visual equipment is now available. If written interviews are now used, it may be suggested in court that the police did not want the interview recorded for various reasons.

If a written record of the interview is required, this may be done in ‘question and answer’ form, handwritten or typed. In either case, the person will be asked to sign it but does not have to do so.

In law, when a person reads and signs a document or agrees that it is correct, they are adopting everything in the document. There is no objection to a person reading and signing a record of interview that contains no answers other than refusals to answer, unless of course the police need a specimen of handwriting to be used in court.

There can also be no objection to a person reading and signing a statement or a record of interview where the person knows and understands what the document contains and does not mind the words in the document being recorded as theirs.

In all cases, however, where words of a person are recorded by the police, a copy should be requested and supplied free of charge.  The person concerned needs a copy so that the extent of any admissions can be seen before going to court. A written signature is usually requested as a receipt. If the person does not want to sign for the document, it is better to do without the copy. It can in any case be obtained by the person or their lawyer later on by requesting it in writing.

Because it is expected that interviews of suspects by police will now take place on video, what is said to the police and what is contained on any written transcript can now be checked by the court. However in cases being prosecuted by other branches of government it is possible that video facilities may not be available.  In such cases the record of interview may be in dispute. A person should not sign a record of interview if they have not read it, if they do not understand part or all of it or if they disagree with all or any of it.

Unsigned records of interview can still be used as evidence in court. Section 81 of the Evidence Act 2001 can be used to admit direct oral evidence from a police officer that a suspect confessed to being guilty. The police officer may put this representation in a document (i.e. the record of interview) to establish the fact the suspect confessed to them, provided the police officer had personal knowledge of matters dealt with by the representation, namely the confession of guilt.

However, where the accused denies the truth of the document, the magistrate or judge will sometimes refuse to admit it to evidence. For example, evidence that a legal adviser was refused access to the accused may cast doubt on the truth of the record of interview so that it will not be admitted.

There are certain requirements regarding unsigned records of interview:

  • An accused must have acknowledged or adopted the document (by agreeing that it is correct;
  • A copy of the document must also be shown to the accused as soon as practicable (as failure to do so may give rise to a suspicion that it has been altered);
  • A judge still has a discretion to exclude it on grounds such as unfairness, prejudice, unlawfully obtained, undue weight, etc.
  • Further, unless the reliability of the unsigned and disputed record outweighs its prejudicial effect, a proper exercise of the discretion requires that it should not be admissible in evidence. This is so even if the accused has acknowledged it to be correct in front of an independent person.
  • As a matter of practice, a judge should warn a jury of the dangers of relying on disputed confessional evidence obtained by police where it is not independently corroborated. The audio-visual recording of interviews provides reliable corroboration of a confessional statement and therefore no such warning is necessary where this procedure has been adopted.

Fingerprints, Photographs and Line-ups

After a person has been properly arrested and charged, police have the power to photograph and fingerprint a person in the case of all but a few minor offences. Reasonable force may be used to do this. Such evidence can be used to identify a person at the time and later on in court. These records should be destroyed within seven days if the person has no previous relevant record and no conviction results from the charge. Persons under fifteen cannot be photographed and finger-printed unless they have consented (s8, Forensic Procedure Act 2000 (Tas)).

It is unclear whether a person can be forced to take part in an identification parade or ‘line-up. However, unwilling suspects can easily abort the proceedings by drawing attention to themselves. Police Standing Orders lay down the procedure for line-ups. A suspect's rights are to choose any position and to complain about any aspect of the procedure.

The sergeant in charge of a line-up is meant to be independent of the officers investigating the case. A complaint to that sergeant should be made, and recorded, where those on the line-up are not of similar age, height, general appearance or class as the suspected person. Participants in line-ups are advised to make written notes of all aspects of the process as soon as possible afterwards.

The failure of a witness to identify a suspect in a line-up can be relied upon in asserting innocence to a court. If a suspect is identified, a challenge to the conduct of the line-up can still be made. This will be easier to do if a complaint was made and recorded at the time.

The High Court has taken the view that an identification parade, rather than photographic identification, is a much fairer procedure for the accused. This is because the identification is in the presence of the suspect who can observe for themselves if any unfair procedures or techniques have been adopted.

Identification parades tend not to highlight the position of the accused as a ‘suspect’ if the people in the parade are of similar age, sex and height and so on. Whereas, a suspect is not present when an identification is made from photographs which are produced from police records and the existence of a photograph in police records may suggest a propensity to commit offences of the kind in question.

A warning is to be given by a trial judge to a jury in relation to identification evidence in every case where such evidence represents any significant part of the proof of guilt of an offence.

Criminal Charges and Bail


Criminal proceedings are started by a formal allegation (charge) by, say, a police officer, that a person did something which is forbidden by law. A suspect cannot be dealt with until they have been formally confronted with the allegation.

Police Bail

Police have the power to grant bail to a person who has been arrested with or without a warrant. The power to grant bail is at the discretion of the police. Police can release persons from custody provided that the person has not been arrested on a warrant, and if it is in the interests of justice to do so. There is a section dedicated to Bail.


‘Bail’ is an undertaking which secures the release from custody of a person charged. It is conditional upon that person appearing in court at a specified time and place. There may be several further conditions placed upon a person, depending on the seriousness of the offence alleged to have been committed and the history of the person arrested. The power to grant bail is given to police officers and also the courts.

Not everyone arrested for an offence is required to be granted bail. In the case of minor charges (e.g. traffic, shop lifting), a summons directing the person charged to appear in court may be issued. If the person charged fails to appear on the date on the summons, a warrant may be issued for their arrest if there is proof that the summons was served on them; or a further notice to appear can be issued. If the charge is of a very minor nature the matter may be dealt with ‘ex parte’ (in the person's absence).

Bail in Tasmania is in the main governed by the Bail Act 1994 (Tas). However there are also provisions for the granting of bail under sections 304 and 305 of the Criminal Code Act 1924 (Tas), sections 34 and 35 of the the Justices Act 1959 (Tas), and section 12 of the Family Violence Act 2004 (Tas).

Police Bail

The granting of police bail is governed by section 34 of the Justices Act. This provides a discretion to the police to release persons from custody, provided that the person has not been arrested on a warrant, and if it is in the interests of justice to do so.

A person released on police bail is provided with a police bail document which provides information of the charge and the date and time that the person has to appear in court, and any other conditions of bail that the police require. The person released must undertake to appear on the date and time as set out in the bail document and to adhere to any other bail conditions. It is an offence to not attend court in accordance with the police bail document or to breach any other conditions set out in the document.

If a person is arrested on a warrant they must be brought before a court to determine if further bail should be granted or if the conditions of police bail should be varied.

Court Bail

Any person charged with an offence who is not released from custody may apply for bail. There is a presumption that anyone charged is innocent until proven guilty. Accordingly, there exists a presumption in favour of an accused person that they should be granted bail until their matter can be dealt with. The desire to not hold people in custody before their trial may however at times be overridden by a need to protect the public, if for instance the offence is of a very serious nature e.g. murder, or if the accused person has in the past shown a disregard for court orders and is unlikely to attend court if granted bail.

If bail is not granted at a person's first court appearance, applications can be made at any subsequent appearances, subject to the provisions in section 22 of the Bail Act.

If a person charged is not granted bail and is remanded in custody, they must be brought before the court every 28 days for a formal remand.

In granting bail the court takes into account the following important considerations:

  • will the person appear to answer the charge;
  • is it in the public interest to release them;
  • are they likely to re-offend if granted bail.

Other relevant matters for consideration are:

  • Occupation and how long the applicant has been at that particular job. Will the applicant lose their job if denied bail?
  • Marital status, dependants, financial circumstances (income and expense);
  • If unemployed, how long have they been unemployed; what efforts have been made to obtain work; what is the likelihood of obtaining work?
  • What is the applicant charged with; have they been charged with similar offences in the past; if so, how long ago?
  • Is there anyone who will go surety (see below) for the applicant? If yes, that person should be in court and available to sign the bail paper at every court appearance.


A surety is a person who accepts responsibility for the accused, answering their bail and reporting conditions stated on the bail paper. The surety might be a spouse, parent or friend of the defendant. If the defendant does not appear or breaches any bail conditions, the surety is likely to be ‘estreated’. This means that the surety, if an estreatment application is made, will be liable to pay the whole or part of the sum of money that was put forward to secure the release of the person charged. So if bail was set at $10,000, the surety will have to pay this sum.

Often there is no requirement for the surety to provide the actual cash amount set down by the court at the time of granting bail, but a surety may have to establish to the satisfaction of the court that they have the resources to pay if called upon. Thus if a surety has steady employment or has a car or house this would be evidence that the court would consider in deciding whether to accept the surety.

If a surety is not available at the time when an application is made, then the applicant can either ask that the matter be ‘stood down’ until the surety arrives at court or arrange for the surety to visit and sign the paper at the jail provided that they are accepted as a suitable surety by the court.

A surety should be satisfied that the person for whom they are going surety will adhere to the bail conditions sought. If the surety becomes aware, or should have become aware, that the person has broken one of their bail conditions (see below) or may not turn up in court, they should contact the police. Not to do so means that the sum of money set as surety becomes liable to be forfeited on an application brought by the prosecution section.

The Magistrates Court has the jurisdiction to grant bail on all offences except murder. Only the Supreme Court has jurisdiction to grant bail for murder.

Bail Conditions

The court has the power to make bail subject to a wide range of conditions. Examples of such conditions are as follows:

  • that the person reside at a particular address;
  • that the person report to the nearest police station on particular days between prescribed hours;
  • that the person not be absent from their residential address between certain hours (that is, a curfew);
  • that the person not approach another person directly or indirectly. (This is especially common in cases of offences involving violence such as assault, wounding or rape.)

Less commonly, the court may impose conditions that the person not be in particular localities or associate with particular persons. The person may also be required to hand in their passport and not be found within a certain distance of any air and sea terminal, if it is believed the person is likely to leave the state while on bail. A surety (see above) is also a condition of bail.

In the case of drink driving offences it will often be a condition of bail that the person charged must not drive with any alcohol in their body, or, in more serious cases, not be found behind the wheel of a motor vehicle.

Such conditions are imposed to try to control the behaviour of people on bail by keeping track of their movements and stopping them from re-offending while on bail. Conditions are usually sought through the prosecutor, though the court can impose bail conditions itself.

Breach of bail conditions is a serious matter, for which the person can be arrested and brought before the court. If the breach is proved, the person breaching the condition is liable to a fine or imprisonment. It may also mean that the court will be reluctant to grant bail in the future.

Review of Bail Decisions

Where a refusal of bail or the imposition of particular bail conditions is reviewed, this review is treated as a new application for bail. The following rules apply to the review of bail decisions:

  • a magistrate can review the decision of a justice of the peace;
  • a judge can review a decision of a magistrate;
  • the Full Court of the Criminal Court (that is three judges) can review the decision of a single judge.

If in prison, forms for an application to review a bail decision can be obtained from the prison authorities.

Bail Pending Appeal

If a person is convicted of a matter, they may wish to appeal either or both the sentence or the conviction. In these circumstances they may wish to apply for bail pending the outcome of the appeal, pursuant to section 415 of the Criminal Code.

Bail in these instances will only be granted if special circumstances exist. The most common situation where bail will be granted is if the applicant has been given a short sentence, and they are likely to have served their sentence prior to their appeal being heard.

Bail and Family Violence

There are special considerations that apply when a court, judge or police officer is considering bail for a person charged with a family violence offence. The primary consideration is whether the person’s release would be likely to adversely affect the safety, wellbeing and interests of an affected person or affected child (s12(1), Family Violence Act 2004). In other words – would the person continue to behave in a violent manner toward a family member or child?

Other considerations include, but are not limited to:

  • any available risk screening or rehabilitation program assessment;
  • the person's demeanour;
  • the result of any available safety audit;
  • the availability of suitable accommodation for the person and any affected person or affected child;
  • any other matter the judge, court or police officer considers relevant (s12(2)).

If a person is charged under the Family Violence Act with breaching a family violence order (FVO) or a Police Family Violence Order (PFVO), they are not to be admitted to bail (s12(3)).


'Extradition' is where a person is sent from one state (or country) to another to be tried for a criminal offence. A justice in one state issues a warrant for the arrest of a person (Service and Execution of Process Act (Cth) 1992).  The warrant is taken to the state where the person lives, say, NSW. The person is arrested (or taken from jail) and brought before a justice (usually a magistrate) in NSW.

The magistrate then can order the person returned to the state where the interstate warrant was issued in the custody of the police officer bringing the warrant; or allow the person bail on the condition that they appear in a particular court in the other state; or allow the person bail until the end of a period of time during which the person should be sent to the other state; or release the person; or make any other order they think fit.

An order to effect the return of the person must be made by the magistrate unless they are satisfied that the charge is trivial; or the application for the return of the person has not been made in good faith and in the interests of justice; or it would be unjust or oppressive to return the person either at all or until the expiration of a certain period; or  it appears on undisputed facts that the person would, if tried, be acquitted of the charge for which extradition is sought.

It is rare for an apprehended person to avoid extradition. Unlike overseas extradition, the absence in Tasmania of an offence comparable with the offence charged in the other State will not allow the person to avoid extradition.

The person apprehended should seek full particulars of the offence charged, before trying to persuade the magistrate not to extradite. Legal representation is strongly advised. Cross-examination of the interstate police may provide useful information as to the strength of the police case, thus enabling better preparation of the defence later on.


This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.