Arrested by AFP (1 Viewer)

[~ari]

What happens if you get arrested and charged but never got cautioned?

 

[~ari]

Serious thread is serious.

 

[historykidd]

What happens if you get arrested and charged but never got cautioned?

lulz owned

what did you do?

the only time i've been arrested i was granted a warning rather than a caution

wouldn't have a fucking clue if that applies here but

 

[~ari]

lulz owned

what did you do?

the only time i've been arrested i was granted a warning rather than a caution

wouldn't have a fucking clue if that applies here but

I'm talking about a 'right to remain silent etc' caution not a 'don't do it again little man' caution

 

[historykidd]

I'm talking about a 'right to remain silent etc' caution not a 'don't do it again little man' caution

well that sounds a bit more serious :| sorry mate im utterly useless here.

 

[~ari]

Crimes against the Commonwealth aren't THAT serious

 

[= Jennifer =]

If an AFP check is done on you, it will appear on your record. At my work we request a lot of AFP checks on clients and even if you get arrested it appears.

 

[hfis]

I'm talking about a 'right to remain silent etc' caution not a 'don't do it again little man' caution

If your matter goes to trial, then anything you did or said after arrest may not be used as evidence against you. It's a pretty serious oversight.

See s 139 (1), Evidence Act 1995 (Cth).

Edit; I should probably point out that, under s 138 of the same act, if you're obviously guilty and it's in the interests of justice to disregard the lack of caution, the Court will do just that. However, this is a pretty difficult test to satisfy, and the odds are well in your favour.

 

[Timbo650]

What happens if you get arrested and charged but never got cautioned?

1. If you got arrested and charged then you (mostly) go to court.

2. What did you do that the Feds arrested you, rather than NSWP?
(I am assuming that you were arrested by FAs and not by ACT uniformed police)

3. If you were in law "arrested", then clearly you got bail, so what is your problem?

4. Chances are that you were not "arrested", thus were not cautioned.

5. If you gave the cops a dose of mouth, then be grateful that you still have all your teeth.

6. While there is a common law duty to caution an arrested person, "Mirandising" like you see on American cop shows generally does not happen.

 

[*1984*]

16. While there is a common law duty to caution an arrested person, "Mirandising" like you see on American cop shows generally does not happen.

23F Cautioning persons who are under arrest or protected suspects
(1) Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.

Crimes Act 1914 (Commonwealth)

 

[amaccas]

booyah

 

[jackmurray1989]

I plan to join the AFP when I finish my degree, so in 5 years I'll put in a good word for you.

 

[amaccas]

Hehehe.

 

[incentivation]

It seems unusual that the AFP would commit such a serious oversight.

 

[Timbo650]

23F Cautioning persons who are under arrest or protected suspects
(1) Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.

Crimes Act 1914 (Commonwealth)

Look at what said.
I did not say "the law does not require..."
I said that it generally didn't happen. By which I mean IRL and regardless of what the law requires.

And the OP hasn't exactly answered the original questions...

 

[hfis]

Look at what said.
I did not say "the law does not require..."
I said that it generally didn't happen. By which I mean IRL and regardless of what the law requires.

And the OP hasn't exactly answered the original questions...

I highly doubt this. As far as the courts are concerned, anything that's said without a caution was never said at all. If this was truly the case, then anyone who knew a friend-of-a-friend's second cousin who's a lawyer specializing in conveyancing would be able to get off.

It doesn't matter what 'common practice' for the police happens to be. The courts take the rights of the accused extremely seriously, and the case law and legislation reflects this. The police are not so stupid as to disregard it.

 

[Timbo650]

I highly doubt this. As far as the courts are concerned, anything that's said without a caution was never said at all. If this was truly the case, then anyone who knew a friend-of-a-friend's second cousin who's a lawyer specializing in conveyancing would be able to get off.

It doesn't matter what 'common practice' for the police happens to be. The courts take the rights of the accused extremely seriously, and the case law and legislation reflects this. The police are not so stupid as to disregard it.

< shrug >

I do not claim to be black-letter right.
Nor do I say that you are in any respect black-letter wrong.

But do, please, consider the possibility that I know stuff that you don't.

 

[incentivation]

4. Chances are that you were not "arrested", thus were not cautioned.

From my understanding and interpretation of the Evidence Act, the concept of arrest is not merely confined to the black letter idea of communicating 'you are are under arrest'..

The very fact that he was charged with an offence clearly shows that at some point, the officers were under the belief that there was sufficient evidence to establish that he committed the offence, and thus under arrest in accordance with the act..

 

[Timbo650]

The very fact that he was charged with an offence clearly shows that at some point, the officers were under the belief that there was sufficient evidence to establish that he committed the offence, and thus under arrest in accordance with the act..

I concur. Consider also that the AFP will often proceed via summons, and/or will often seek an arrest warrant, rather than exercise their "traditional" power to arrest on suspicion without a warrant.