(02) 8806 0866
If you have committed a criminal offence or if you are accused of having committed an offence then you will need to seek advice immediately on what criminal defences are available. It is important to know what your options are.
How are criminal matters determined?
When you are charged or accused of a criminal offence, your matter will be allocated to either the Magistrates court or Supreme Court depending on whether it is an indictable or summary offence. Criminal offences are subject to criminal law principles and must be proved beyond a reasonable doubt for a guilty conviction.
What Should I do first?
If you are charged, accused or arrested of an offence then your first step should be to seek legal advice immediately. Jameson Law can assist with all your criminal law related needs and should be your immediate call.
A criminal lawyer will be able to advise you the following;
- What jurisdiction and court will your matter be in?
- Whether your matter will be subject to a jury?
- Whether you should plead guilty or not guilty to your charge?
- Whether there are any criminal defences available to you?
Your criminal lawyer will be able to tell you whether the criminal defences available to you are likely to be considered reasonable grounds or a complete defence.
What Types of Criminal Defenses might be available to me?
There are some common types of criminal defences which people consider will create honest and reasonable belief in their guilt.
- Intoxication;
- Mental Illness;
- Impairment;
- Self defence;
- Honest and Reasonable Mistake;
- etc.
Defenses are supposed to explain why you should not be held criminally responsible for your actions or, in the event you are nonetheless found guilty regardless, why you should receive a lesser punishment.
What legislation should I consider?
The legislation you should consider is the Crimes Act specific to the state or territory you love in. The Crimes Act will set out the different types of criminal charges as well as the defences available, maximum and minimum penalties and elements which need to be proven for a guilty conviction. It will also detail the difference between strict liability offences and other offences.
It is challenging to interpret legislation without the correct training so it is essential that you contact a lawyer if you have been charged with an offence. Jameson Law is a good place to start, with a team of experts at your fingertips, eager and willing to assist you in any way that they can. It is important to seek advice from a criminal lawyer as opposed to a commercial litigation lawyer for example as the two areas are vastly different.
What is a specific intent offence?
Specific intent offences are offences which have an element of specific intent involved in the outcome. Plainly put, the defendant would have specifically intended the action which caused the offence. It is a pre-meditated type of offence as it is intentional rather than accidental or random.
Specific intent offences mean that the defendant intended the outcome and had a genuine belief that their action would cause the reaction. This type of offence carries stronger penalties at times due to the circumstances under which they are committed.
What is self defence?
Self defence is a type of defence whereby without the force used, injury or death could have resulted. Self defence is used as a result of violence inflicted against the individual.
What is a partial defence?
A partial defence is a situation whereby some of your criminal responsibility may be explained by the circumstances at the time. Alcohol and drugs for example are commonly arguments for a partial defence.
A partial defence will not remove criminal responsibility as usually, the individuals actions will not be that of a reasonable response given the circumstances. The partial defence will likely just help to explain the mental state and physical circumstances at the time of the offence.
What Is GRIEVOUS bodily harm?
Grievous bodily harm is a form of assault which leaves the victim physically or mentally impaired. This impairment will likely either be long lasting or permanent. It is essential that if you are charged with a grievous bodily harm offence you seek legal advice immediately, as it is the most serious form of assault.
A criminal defence against the charge is challenging as the force required to cause permanent impairment or in some cases disfigurement is excessive and not the type of force usually found with a defence of self defence. Intoxication by either drugs or alcohol could be used as a defence however it likely will come down to the level of force used, or if there are any weapons utilized.
The mere presence of weapons is more often than not an indication of a pre-meditated attack, particularly if they are weapons the person possessed upon arriving at their chosen environment.
Mental illness is a scenario which will be discussed further below.
HOW DOES MENTAL ILLNESS WORK AS A DEFENCE?
Mental illness is a difficult situation as there are different levels of illness and none present the same. Mental illness as a legal defence relate to illness that impairs the individual’s ability to function or have capacity to make decisions. It is a situation where there is diminished responsibility because the mental state is such where it would be unjust.
It is a rigorous process however to be assessed as not criminally responsible by way of mental state. Assessments are completed by psychologists and psychiatrists who must determine whether you are partially impaired, substantially impaired or totally impaired.
Using mental illness as a criminal defence is often viewed as a “get out of jail free card” however this is certainly not the case. The defence does not automatically result in a lack of imprisonment, rather it can result in a term of imprisonment within a psychiatric facility. The key consideration will always be safety to the public and wider community above all else.
Can I access legal advice if I am considered to be mentally impaired?
If you are considered to have diminished mental capacity then your ability to make decision, engage a lawyer and follow advice may also be impaired. This is a situation where you might be appointed a legal guardian to help you with your legal situation. The legal guardian or litigation guardian as they are known will engage a lawyer and seek their advice as to how to proceed and what action the court should take.
Realistically however, if you are considered to have diminished mental capacity then it is unlikely your matter would proceed to trial or hearing on that basis.
What is a defence of necessity?
A defence of necessity means that there was no other way to have prevented the outcome than to have used violence. This defence is used in extreme cases as there are rarely situations where violence or criminal acts are necessary.
One key example of such a circumstance however would be sexual assault cases. If an individual was to be involved in such a situation then their defence would be that of self defence however, if it relates to an individual coming to their assistance then it may be a defence of necessity. A level of violence or force may have been necessary in that situation to prevent further harm to the victim.
The same rationale can be applied to most circumstances whereby an individual steps in to assist a victim and is required to use an element of force or violence as a result. The force used must always be proportionate to the situation of course. i.e. in a bar fight involving punching, it would be disproportionate for a bystander to smack anyone over the head with a chair as a means of breaking it up.
CAN THE DEFENCE OF HONEST AND REASONABLE MISTAKE BE USED?
In short, yes it can be used in certain circumstances. The defence of honest and reasonable mistake relates to circumstances by which a criminal act was caused unintentionally and without malice. This may be the act of hitting an individual with a motor vehicle who steps out in the street, or committing assault against an individual by way of reflex or accident.
What does the term "beyond reasonable doubt mean"?
Beyond a reasonable doubt is the threshold used to determine criminal responsibility and guilt. In Australia you must be found guilty beyond a reasonable doubt in order to be considered guilty and record a conviction. The reason this terminology is used is because the full story of what happens is never really understood. The only individuals who can know how an offence came to be committed are those who were physically present at the time.
This is why judges and jurors have to consider whether there were reasonable grounds for the offence to occur, whether there was a reasonable mistake of fact or not and whether the offence was preventable. Traffic offences can be challenging in this regard as people will use the necessity defence to escape criminal charges relating to traffic violations (i.e. they were on their way to the hospital at the time they were caught speeding).
