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CRIMINAL DEFENCES

CRIMINAL DEFENCES
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OVERVIEW

People can find themselves in a variety of difficult and complex situations that result in awful outcomes. For example, a person might kill another while protecting themselves and another from harm. The law contemplates a variety of scenarios a person may face to protect their rights, and includes a range of complete and partial defences for conduct that would otherwise be considered criminal.

For the Court to find you guilty of an offence, the prosecution must prove all elements of the offence beyond reasonable doubt. Even if all the elements are proven beyond reasonable doubt, you may raise evidence of a defence to the conduct which justifies your actions and otherwise excuses you from criminal responsibility. If the accused raises a defence, the prosecution must then negate the defence and demonstrate that the evidence should not be accepted.

Complete defences are defences which result in an acquttal of the criminal charge and a finding of not guilty. If the Court accepts your complete defence, this means that you are not criminally responsible for your conduct. Partial defences apply to criminal charges for murder, and operate to partially justify the accused’s conduct, but otherwise hold them accountable for similar but less serious offence. For example, if you are charged for murder but you raise the defence of extreme provocation, you could be found guilty and sentenced for manslaughter.

Complete defences include:

  • Claim of right.

  • Intoxication (section 428C, Crimes Act 1900).

  • Honest and reasonable mistake of fact.

  • Insane automatism (Insanity).

  • Sane automatism (Unconsciousness or Involuntariness).

  • Self-Defence (section 418, Crimes Act 1900).

  • Necessity (R v Loughnan [1981] VR 443).

  • Duress (R v Lawrence [1980] 1 NSWLR 122).

  • Consent.

 

Partial defences to murder include:

  • Extreme Provocation (section 23 Crimes Act 1900).

  • Substantial Impairment of the Mind (Section 23A Crimes Act 1900).

  • Excessive Self-Defence.

 

In addition to statutory and common law criminal defences, you may also be found not guilty in the following circumstances:

  • One of the prosecution witnesses did not turn up to Court.

  • The prosecution witness testimony was unreliable.

  • A jury finds the accused not guilty.

  • Police have improperly or illegally obtained evidence.

  • Police have charged you with the wrong offence

  • The prosecution evidence is insufficient to prove all elements of the offence beyond reasonable doubt.

Depending on the nature of your criminal charge, and your version of events, you may have more than once defence strategy available to you. It is recommended that you obtain legal advice and contact KF Lawyers to arrange a consultation.

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