Pre-Charge

We have been successful in quite a number of pre-charge submissions because our experience allows us to identify the cases which have a genuine chance of having the outcome effected. The purpose of a pre-charge is not to help investigators proceed to charge a person. If that is the likely outcome, then a pre-charge would not be engaged in.

Investigators will usually be given an allegation, compile a brief of evidence and then charge an accused person. There is nothing preventing an accused person from engaging lawyers to proactively gather evidence to provide a counter narrative. Pre-charge work plays a crucial role in shaping the outcomes of investigations and preventing potential prosecutions. It is, however, a process that needs to be approached with caution as not every case is well suited to this strategy.

What is pre-charge work?

Pre-charge work is legal work completed before charges are formally filed with the court. Once charges are filed, an accused individual will go through the court system. The ultimate goal of pre-charge work is to demonstrate to the prosecution that charges are destined to fail and should not be initiated.

Generally, upon receiving a report of a suspected crime, police officers will conduct preliminary investigations by gathering physical evidence, interviewing witnesses, and collecting any relevant information that supports the complaint or allegations of criminal conduct. The evidence gathered will be collated in a document called the brief of evidence. Police will commence an investigation with the intention of laying charges and will engage in various tactics and procedures to gather evidence in support of their case. Once the brief is collated, police will review it and decide whether to file charges. If charges are filed, the matter will then proceed through the court process.

Police Policy dictates that they should only proceed with charges if there is a reasonable prospect of conviction. This is where the opportunity lies to persuade the police that they have no reasonable prospect of conviction. Many people are charged because the brief lacks a counter narrative or relevant evidence which is consistent with innocence.

If a person suspects that they may be charged with a criminal offence, they can instruct lawyers to engage in pre-charge work. This can involve providing advice and attending a record of interview, engaging a private investigator to help gather information and statements, and obtaining information and evidence that is supportive of the counter narrative. It is preparing a defence at the initial state of the process, rather than waiting to defend the charges once a person is charged. The counter narrative is prepared in submission form and provided to the police.

What does pre-charge work involve?

What pre-charge work is required will vary from case to case. Generally, pre-charge work can include:

• Record of interview advice – One of the critical stages of pre-charge work involves police interviews. Police will often engage body worn camera devices or ask that you attend the police station to ‘have a chat’ about the case as part of the investigation, or to ‘hear your side of the story’. Obtaining legal advice before an interview is critical as you can be advised of your legal rights, will be advised on the best strategy for how to conduct yourself in the interview, and start setting up your defence strategy from that earliest opportunity. We regularly attend interviews with our clients to offer support and ongoing advice through that process. This guidance helps mitigate the risk of inadvertent admissions or statements that could be later used in court; once something is said on a formal recording, it becomes evidence in the case and can be very difficult to retract or amend.
• Undertaking investigation procedures – Using qualified private investigators, undertaking surveillance or investigating a potential co-accused efficiently and confidently can corroborate your version of events and discredit the prosecution’s case from the outset. It can also assist you with gaining legal advice as to the strengths and weaknesses of your or the prosecution’s case which can, in turn, allow you to prepare to defend your case as soon as possible.
• Obtaining statements from relevant witnesses – During the investigation stage, police will interview and take statements from individuals who are relevant to their case. Obtaining your own statements before the police do can allow you to support your counternarrative but also allow you to understand what the evidence against you might be. It will also ensure that your version of events can be corroborated and captured in an admissible form soon after the alleged conduct, thereby reducing reliability and credibility issues and ensuring favourable evidence forms part of the overall evidence. We take statements from witnesses located all around the world.
• Preserving evidence – While the prosecution has an ongoing obligation of disclosure once charges are filed, it does not always happen. There are also many instances where the prosecution did not make a request to obtain or preserve certain pieces of evidence as it was not relevant to the presentation of their case theory. Preserving favourable evidence to you, such as CCTV footage and documents which might not be known by police, or before it is destroyed or seized by police, can ensure that your version of events can be corroborated and not reliant on prosecution disclosure.
• Engaging Senior Counsel – In most pre-charge cases, we engage Senior Counsel to work collaboratively, ensuring all possible strategic avenues have been taken to make the pre-charge submission as persuasive as it can be.

Benefits

Undertaking pre-charge work can change the course of a matter and prevent an accused from having to defend the charges in Court. It can ensure that prosecutions doomed to fail do not make it past the first post.

Additional benefits include:

• Preserves licences and other qualifications – For some professionals, including teachers and doctors, the filing of certain charges triggers specific notification requirements to regulatory bodies such as AHPRA, Working with Children Checks, Legal Services Boards and Victorian Institute of Teaching. This can involve immediate suspension of licences and authorities, and therefore prevent you from working or engaging in your community. Not only does engaging a lawyer at the pre-charge stage allow you to adequately prepare for any regulatory notification requirements, it can also avoid notification entirely if charges are not filed.
• Avoids public scrutiny – Politicians, media personalities and other publicly known individuals could experience reputational damage and possibly ramifications to their career if charges were filed. The media frequently report on cases even if the person is not widely known, which can be incredibly distressing. If charges are never filed, an individual can avoid the media scrutiny that can flow from criminal proceedings.
• Protection of your rights and ensuring fair treatment – Every person has the right to a fair trial and presumed innocent until proven otherwise. Lawyers play a crucial role in safeguarding these and various other rights of individuals under investigation, ensuring that investigative procedures, such as interviews and searches, are conducted lawfully and in accordance with procedural fairness. Lawyers can challenge any infringements of rights, such as improper questioning or gathering of evidence, and thereby protecting you from potential abuses or procedural errors.
• Avoid the costly and stressful process – Contesting criminal charges can be a long and costly process. There are various hearings which need to take place and, depending on the seriousness of the matter, may require further legal counsel and assistance. Additionally, an individual may be waiting anywhere from one to two years before having a trial date. Avoiding charges entirely can circumvent this process.
• Early preparation negotiation with prosecutors – Even before charges are formally laid, our lawyers can begin preparing a defence strategy based on the evidence gathered during pre-charge investigations. This proactive approach allows for sufficient time to collect additional evidence, identify potential witnesses, and anticipate legal arguments that may arise during court proceedings. Early discussions with police officers can also assist with understanding what evidence there is against you and what the best strategy is to have the charges withdrawn or to pursue less severe charges.
• Access to resources and expertise – Our experienced criminal lawyers have access to resources such as forensic experts, private investigators, public relation firms and other professionals who can assist in building a robust defence, ensure you receive procedural fairness through and protect your credibility and reputation throughout. Receiving advice as to all the possible outcomes and their effect is invaluable in navigating the complexities of the legal system.

While there are several benefits to undertaking pre-charge work, it must be approached with significant care. In many cases, providing police with information and documents, particularly if it is done without legal advice, could possibly harm your case rather than help.

Should I get pre-charge advice?

Not every case is well suited to pre-charge submissions and investigation. What pre-charge work is required will vary from case to case. In some cases, advice before and possibly attendance at police interviews will be sufficient, while other cases might require more involved investigations.

Engaging a lawyer who can take full instructions about your version of events and provide a comprehensive strategy from the outset will allow you the opportunity to see if charges can be avoided, or alternatively, best prepare you to successfully defend your case.

Conclusion

Facing criminal charges can be stressful and daunting. It is a complex system which can be expensive and full of uncertainty and confusion, particularly at the investigation stage.

Engaging our experienced lawyers at the pre-charge stage can ensure that you:

• are guided through the investigation and legal process to safeguard your rights and advise you of your obligations,
• take full advantage of all opportunities that may exist in your case to avoid being charged;
• are aware of investigative tactics and procedures which could harm your defence before they occur,
• gain an insight into the prosecution’s case and potential outcomes based on the evidence gathered and discussions with police during the pre-charge process,
• are advised on the strengths and weaknesses of your case and how to combat these, and
• can be as prepared as possible if charges are filed against you.

Early intervention helps individuals understand the gravity of the situation and allows our lawyers to provide appropriate advice as to how you can best navigate the complexities of the legal system.