DEFENDING AN allegation

A core principle of the criminal justice system is that you are presumed to be innocent unless proven guilty of the offence beyond reasonable doubt.

 

In all but a very limited number of instances the prosecution has the burden of proof. This means that you do not have to prove you are innocent of the crime – instead, the prosecution must prove you are guilty.

 

Just because the police have charged you with an offence does not mean that you will be found guilty. There are many occasions that a person will be found not guilty and acquitted. In Court, if the prosecution fails to come up with sufficient evidence or the defence’s evidence raises a reasonable doubt that you committed the offence, then you are entitled to an acquittal.

There are many reasons why you may be found not guilty – some of these are listed below:

  • The police have insufficient evidence to prove that you committed the offence
  • You have an alibi
  • Evidence the police want to use against you isn’t legally admissible in Court
  • The police have acted illegally or improperly
  • A witness is mistaken or lying
  • Forensic evidence is unreliable or insufficient
  • Expert evidence is flawed or inconclusive
  • A material witness fails to attend Court
  • The police have charged you with the wrong offence
  •  You are able to rely on a legal defence

 

In addressing the allegation, a legal defence (or combination of defences) may be available to you.

With most legal defences, once they have been raised in evidence it is up to the prosecution to disprove them.

 

If your defence is successful, it will either:

  • Be a complete defence to the charge; or
  • Reduce the offence charged to a less serious offence

Depending on the specific charge you face and the circumstances surrounding the event, the following defences may be relevant and applicable:

  • Self defence
  • Defence of another
  • Defence of moveable property
  • Defence of premises against a trespasser
  • Duress
  • Accident
  • Honest claim of right
  • Provocation

  • Emergency

  • Insanity

  • Automatism

  • Mistake of fact

  • Intoxication

  • Diminished responsibility

It is important to note that identifying appropriate and legally available defences can be a very complex area of criminal law. Determining whether a defence is available to you requires an in-depth understanding of the allegation, prosecution case, rebuttal evidence, rules of evidence, and tactical considerations – all of which make consulting with an experienced criminal lawyer strongly advisable.

OUR advice

YOU SHOULD START DEFENCE IMMEDIATELY

Each case is fact specific, but there are things you should generally do:

 

  1. Do not answer any questions from the police (other than your name and address) before speaking to an expert defence lawyer. Do not speak with anyone else about anything to do with the allegation – if the charge is serious there is a possibility that your phone, house, or car could be tapped. If you are taken into custody it is possible the police will use an undercover officer to seek admissions from you.
  2. While it’s fresh in your mind write down what happened – do this in detail and preferably in chronological order.

    There should typically be three main aspects to your statement:

    • The circumstances leading up to the incident;

    • What took place during the incident (in as much detail as possible); and

    • What has happened since the incident (including any interactions you have had with police and exactly what was said)

     

    Use maps and diagrams where they may be useful and make sure you put a date on the statement. Do not show this document to anyone until you have discussed it with us.

  3. Take pictures of anything relevant to the case, whether it’s pictures of the scene, specific things, screen shots of relevant messages, or yourself (for example, any injuries).

  4. Ask any witnesses who have relevant information to write down their version of events.

  5. Keep an ongoing journal of dates, times, and people involved with your case.

  6. Keep and organise all documents issued to you by the police, the Courts, or anyone else associated with your case.

  7. Start thinking about collecting information and documents that will assist in showing your positive attributes and achievements.

Although at first this list might seem overwhelming, remember that this is all meant to help you. Human memory is fallible, often unreliable, and can fade with time. Evidence is sometimes lost or can become unavailable (for example, a lot of CCTV is written over after a fortnight or a potential witness may change their phone number). With this in mind, it is imperative that you make detailed notes and collect all possible defence evidence as soon as possible. Trials are emotive and stressful events, but you can relieve much of that stress by doing the initial ground work to make sure we are able to present all the evidence that will help your defence.

 

Once you retain Rawlings Criminal Law and provide us with the initial information, we will send you a letter confirming that we are acting for you. We will then attend Court for you and deal with the Police, the Crown Prosecutor, and the Judge. We will begin work immediately by obtaining the police disclosure package that outlines the case against you, review the information and discuss the case with you in more detail than at our initial consultation. From there, we will determine and discuss your options, advise you of your best course of action, and take your instructions on how you wish to proceed.

If you are looking for a lawyer who will provide you with personal attention and formidable representation, then Rawlings Criminal Law is here for you.

 

Book your initial free consultation and let’s get your problem sorted.

 

If you are looking for a lawyer who will provide you with personal attention and formidable representation, then Rawlings Criminal Law is here for you.

 

Book your initial free consultation and let’s get your problem sorted.