Legally reviewed by , admitted solicitor · Admitted 2006

Key points

  • The prosecution must prove the charge beyond reasonable doubt. An offence is made up of physical elements and fault (mental) elements.
  • Silence: in Victoria, the ACT and the NT a court must not draw an unfavourable inference from your silence when police question you. NSW has an exception, the "special caution", for some serious offences.
  • A lawyer: before questioning, police must tell you that you may contact a lawyer in Victoria, Queensland and the ACT. In NSW, police only have to wait two hours for your lawyer to arrive.
  • How long police can hold you before charge: Queensland 8 hours (extendable); SA 4 hours for a serious offence (up to 8 with a magistrate's approval); the ACT 4 hours (2 for under-18s and Aboriginal and Torres Strait Islander people), extendable once; Victoria and the NT a reasonable time.
  • Courts: Tasmania, the ACT and the NT have no District Court; cases go from the Magistrates Court (in the NT, the Local Court) to the Supreme Court.
  • Without a conviction: courts in Victoria, SA, the ACT and the NT can deal with a proved charge without recording a conviction; in WA a court can release an adult without sentence or make a spent conviction order.
  • If you have been charged or police want to interview you, call 1800 577 015 at any hour: free general legal information, and a 60-minute consultation with a lawyer who practises in your state for a fixed $295.

In Australian criminal cases the prosecution must prove the charge beyond reasonable doubt; in Victoria, the ACT and the Northern Territory a court must not draw an unfavourable inference from a person's silence when questioned by police, and Tasmania, the ACT and the Northern Territory have no District Court, so cases go from the lower court to the Supreme Court.

Checked on 23 October 2026 against the Commonwealth, state and territory criminal, evidence, police powers, bail and sentencing laws, the courts and the legal aid commissions.

What the prosecution must prove

  • The standard: a court must not find the prosecution's case proved unless it is satisfied beyond reasonable doubt.
  • The parts of an offence: under the Commonwealth Criminal Code, an offence consists of physical elements and fault elements; the law creating an offence can remove the fault element for a part of it.
  • Assault does not need an injury: in Queensland and WA, striking, touching or moving another person, or applying force of any kind to them, without consent is an assault; in WA so is attempting or threatening to apply force with an apparent present ability to do it.
  • Theft needs dishonesty: in Victoria a person steals if they dishonestly appropriate another's property intending to permanently deprive them of it; in SA, dealing with property dishonestly and without consent, intending to permanently deprive the owner or to seriously encroach on their rights.

If police want to question you

StateSilenceA lawyerHow long police can hold you before charge
NSWLegal Aid NSW: you have a right to silence at every stage, but for some serious offences police can give a "special caution", after which a court may draw an inference if you later rely on a fact you did not mentionPolice only have to wait two hours for your lawyer, or another person you called, to arriveAsk a lawyer
VictoriaNo unfavourable inference from silence (Evidence Act 2008, s 89)Police must tell you that you may contact a lawyer (Crimes Act 1958, s 464C)Release, bail or court within a reasonable time (s 464A)
QueenslandAsk a lawyerPolice must tell you that you may contact a friend, relative or lawyer (Police Powers and Responsibilities Act 2000, s 418)8 hours, extendable by a magistrate or justice of the peace; a magistrate if questioning would pass 12 hours (ss 403, 405)
SAYou may refrain from answering questions while in custody (Summary Offences Act 1953, s 79A)You may have a solicitor, relative or friend present (s 79A)For a serious offence, 4 hours, or up to 8 if a magistrate approves (s 78)
ACTNo unfavourable inference (Evidence Act 2011, s 89); Legal Aid ACT says you can say "No comment" to every question except your name, address and date of birthThe Commonwealth rules apply: police must tell you that you may contact a lawyer of your choice4 hours (2 for under-18s and Aboriginal and Torres Strait Islander people), extendable once by up to 8 hours
Northern TerritoryNo unfavourable inference (Evidence (National Uniform Legislation) Act 2011, s 89)Police must tell you that you may contact a friend or relative (Police Administration Act 1978, s 140)A reasonable period (s 137)

Our page on giving a police statement covers the rules in every state and territory, including when you must give your name and address.

Which court

  • Lower courts: the Local Court in NSW and the NT; the Magistrates Court elsewhere. Many cases start and finish there.
  • Three levels or two: NSW, Victoria (whose middle court is the County Court), Queensland, WA and SA have a District or County Court between the lower court and the Supreme Court. Tasmania, the ACT and the NT have only two levels.
  • Indictable offences in the lower court: many can be dealt with by a magistrate; in Victoria, for example, only if the court thinks it appropriate and the accused consents.
  • Federal cases: the Federal Court's criminal work is limited, including indictable offences for serious cartel conduct since late 2009.

Bail

  • Victoria: a person accused of an offence is entitled to bail unless the Bail Act 1977 requires refusal. Bail must be refused if there is an unacceptable risk, and for the most serious offences the accused must show exceptional circumstances.
  • ACT and NT: a person is entitled to bail unless refusal is justified; for listed serious offences there are stricter tests.
  • Every state and territory has its own Bail Act and tests, and they change often. If police refuse bail, a lawyer can apply to a court.

Avoiding a criminal conviction

  • Victoria: a court satisfied that a person is guilty can dismiss the charge without recording a conviction (Sentencing Act 1991, s 76).
  • SA: a court can discharge a defendant without recording a conviction (Sentencing Act 2017).
  • ACT: without convicting, a court can dismiss the charge or make a good behaviour order (Crimes (Sentencing) Act 2005, s 17).
  • NT: a court can, without recording a conviction, dismiss the charge (Sentencing Act 1995, s 7).
  • WA: a court can release an adult without sentence (Sentencing Act 1995, s 46) or make a spent conviction order (s 45).

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Frequently Asked Questions

Do I have to answer police questions?

Generally no. In Victoria, the ACT and the NT a court must not draw an unfavourable inference from your silence when police question you, and in SA you may refrain from answering questions while in custody. In NSW, police can give a special caution for some serious offences, after which silence can count against you. You may still have to give your name and address when lawfully asked. Ask for a lawyer before any interview.

How long can police hold me without charging me?

It depends on the state. In Queensland, 8 hours unless a magistrate or justice extends it; in SA, for a serious offence, 4 hours or up to 8 with a magistrate's approval; in the ACT, 4 hours (2 for under-18s and Aboriginal and Torres Strait Islander people), extendable once by up to 8 hours. In Victoria and the NT the law says a reasonable time.

What does the prosecution have to prove?

Every part of the charge, beyond reasonable doubt. An offence is made up of physical elements and fault (mental) elements, and the prosecution must prove each one.

Is touching someone without consent an assault?

It can be. In Queensland and WA, striking, touching or moving another person, or applying force to them, without consent is an assault; no injury is needed. In WA, attempting or threatening to apply force can also be an assault.

Can I avoid a criminal conviction?

Sometimes. Courts in Victoria, SA, the ACT and the NT can deal with a proved charge without recording a conviction, for example by dismissing it. In WA a court can release an adult without sentence or make a spent conviction order. Whether it is likely in your case depends on the offence and your history.

Which court will hear my case?

Most cases start in the Local Court (NSW and the NT) or the Magistrates Court (other states), and many finish there. More serious cases go to the District Court (the County Court in Victoria) or the Supreme Court. Tasmania, the ACT and the NT have no District Court.

Free help

StateLegal aid lineHours
NSWLawAccess NSW (Legal Aid NSW), 1300 888 5299am to 5pm, Monday to Friday, excluding public holidays
VictoriaVictoria Legal Aid, 1300 792 3878am to 6pm, Monday to Friday
QueenslandLegal Aid Queensland, 1300 65 11 888:30am to 4:30pm, Monday to Friday
South AustraliaLegal Services Commission, 1300 366 4249am to 4:30pm, Monday to Friday
Western AustraliaLegal Aid WA, 1300 650 5799am to 4pm, Monday to Friday (WA time)
TasmaniaTasmania Legal Aid, 1300 366 6118:45am to 5pm, Monday to Friday
ACTLegal Aid ACT, 1300 654 3148:30am to 7pm Monday to Thursday; 8:30am to 5pm Friday
Northern TerritoryLegal Aid NT, 1800 019 3438am to 4:30pm, Monday to Friday

How Go To Court Lawyers can help

Our free line, 1800 577 015, answers at any hour. Jen, our AI legal information assistant, gives general legal information and takes your details; Jen is not a lawyer and does not give advice about your case. A 60-minute consultation with a lawyer who practises in your state is a fixed $295, by phone, video or in person where the lawyer offers it. The lawyer can advise before a police interview, on bail, on whether to plead guilty or not guilty, and on your chances of avoiding a conviction. Requests are taken at any hour; how soon a lawyer can see you depends on who is available. Request a $295 consultation.

General information only, not legal advice. Updated 23 October 2026. Checked against the Crimes Act 1914 (Cth) and the Criminal Code (Cth); Victoria's Evidence Act 2008, Crimes Act 1958, Bail Act 1977, Sentencing Act 1991 and Criminal Procedure Act 2009; Queensland's Police Powers and Responsibilities Act 2000 and Criminal Code; WA's Criminal Code and Sentencing Act 1995; SA's Summary Offences Act 1953, Sentencing Act 2017 and Criminal Law Consolidation Act 1935; the ACT's Crimes Act 1900, Evidence Act 2011, Bail Act 1992 and Crimes (Sentencing) Act 2005; the NT's Police Administration Act 1978, Bail Act 1982, Sentencing Act 1995 and Evidence (National Uniform Legislation) Act 2011; the Federal Court of Australia; Legal Aid NSW and Legal Aid ACT; and the courts of Tasmania, the ACT and the NT, on 23 October 2026. The NSW and Tasmanian legislation websites could not be read that day.

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