Even if you haven’t committed a criminal offence, being investigated for one can be a stressful time for you. The law says you are presumed innocent until proven guilty, but how much evidence do police need to charge someone with a crime?
HOW MUCH EVIDENCE IS NEEDED TO CHARGE SOMEONE WITH A CRIME?
The Queensland Police Service Operational Procedures Manual (“OPMS”) says the decision to prosecute someone for a criminal offence is based on a 2 tiered test:
- is there sufficient evidence? and
- does the public interest require a prosecution?
The OPMS says the decision to charge someone for a criminal offence generally rests with the arresting officer. It also says the arresting officer can start proceedings if they are satisfied on reasonable grounds:
- an offence has been committed;
- the person being charged has committed the offence;
- there is a statutory authority to prosecute for the offence;
- Any statutory of limitations has not expired; and
- The elements of the charge can be proven.
The OPMS says the sufficiency of evidence test will be satisfied if there is sufficient admissible evidence to prove the charge against the defendant. Admissible evidence means there must be evidence and it must be capable of being admitted in a court. Not all evidence police gather may be capable of being admitted in a court. There may be a witness who observed a person commit an offence. If the witness is not willing to give testimony in court about what they saw, then there evidence is not admissible.
You don’t have to be caught by police mid-way through committing a criminal offence to be charged with it. In some circumstances you can be charged with a criminal offence if you had the intention to commit it. In many instances police charge persons with criminal offences because they believe the person committed it. You can be charged with a criminal offence before the investigation of it has been completed. It is not uncommon for persons to be charged with a criminal offence and for police to continue gathering evidence to support it. The rules relating to evidence in Queensland are primarily governed by the Evidence Act 1977.
WHAT ARE THE DIFFERENT TYPES OF EVIDENCE?
The type of evidence collected by police varies from case to case. The type of criminal offence allegedly committed will determine the evidence gathered by police. There are 3 main categories of evidence:
1. Testimony;
2. Documentary; and
3. Real.
Testimony Evidence
Testimony evidence comprises of witnesses who will attend court and give evidence. The evidence given by the witness will be offered as evidence as to the truth of what the witness is saying. In criminal cases police obtain written statements from persons who will give evidence.
Documentary Evidence
The Evidence Act defines a document as:
document includes, in addition to a document in writing—
(a) any part of a document in writing or of any other document as defined herein; and
(b) any book, map, plan, graph or drawing; and
(c) any photograph; and
(d) any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatever; and
(e) any disc, tape, soundtrack or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(f) any film, negative, tape or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(g) any other record of information whatever.
Real Evidence
Real evidence is a thing or item that proves the existence of a fact. For example, the weapon used during the commission of the offence would be real evidence. The weapon can be produced in court for the Court to see.
In addition to the 3 kinds of evidence, there is also what is called “direct evidence” and “circumstantial evidence”.
Direct evidence is evidence proving a fact directly. For example, when a witness says they saw or heard something, this is direct evidence of what they saw or heard.
Circumstantial evidence is a bit more complicated. Circumstantial evidence is not evidence of a fact, but evidence of circumstances to prove the existence of a fact. For example, in a murder trial a witness may see the accused carrying a blood-stained knife at the home where the deceased was located. The evidence of the witness is not evidence of the accused killing the deceased. It is circumstantial evidence that the accused was the person who killed the deceased.
In any criminal trial the Magistrate or Jury will hear and see the evidence produced by the prosecution. The Magistrate or Jury will use the evidence to decide if the accused is guilty or not guilty. You may wonder, if the prosecution produces the evidence in Court, how can a person be found not guilty. In Court the evidence is tested by the cross-examination of witnesses who either give evidence or produce evidence. The Magistrate and Jury will observe the witness as to how they deliver their evidence and decide if the witness is credible. In some situations, a Jury or Magistrate may not believe witnesses about what they say and therefore find the accused not guilty.
In addition to the prosecution producing evidence in a trial, the accused also has the right to produce evidence. The most common way an accused will produce evidence is by getting in the witness box and giving oral evidence. An accused may also produce an alibi to prove they were somewhere else at the time of the offence and therefore could not have committed it. The help of an expert criminal lawyer is essential to build the case for an accused and prepare them for court. Strategic decisions are made by criminal lawyers as to what evidence is best produced to the court to help achieve a not guilty verdict.
WHAT CAN I DO IF I HAVE BEEN CHARGED?
When a person is charged with a criminal offence, it means police allege they have committed it. There are 3 ways persons are charged with criminal offences in Queensland, notice-to-appear, arrest and summons. After you are charged with a criminal offence, it is important you comply with any court dates and any bail conditions imposed. A failure to comply with any of these could see you being charged with more criminal offences.
If you have been charged with a criminal offence, get legal advice now. Don’t sit back thinking the charge will go away- it won’t. Every criminal offence is serious and can have serious consequences for you.
You need the experience of the Criminal Lawyers Brisbane Group in your corner fighting for you. Our firm is headed by Mr. Justin Craven who has more than 15 years’ experience in criminal justice. He has appeared as an advocate in the Childrens Court of Queensland, Magistrates Court, District Court and Supreme Court of Queensland. Pick up the phone and dial (07) 3153 6215 or fill out the form below for a free no-obligation chat. Contacting us may be the best thing you do.
