If a family member or friend has been charged with a criminal offence, a decision will be made about whether they should be released from police custody on bail, or whether they will be refused bail by police.
For self-defence to apply when you are charged with a crime, the following must be the case:
How can it be established that I believed my conduct was necessary for self-defence to be applicable?
There must be a reasonable possibility that you believed your conducted was necessary to either:
Defend yourself or another person OR
Prevent or stop your false imprisonment of the false imprisonment of another person OR
Protect property from damage or unlawful taking OR
Prevent or remove a person from trespassing on your land or premises.
What is a reasonable response in the circumstances?
This will be assessed objectively on a case-by-case basis. Conduct will be found to be reasonable if it was proportionate to the threat and not excessive.
Q: Is self-defence a complete or partial defence?
A: Self-defence is a complete defence. If you successfully raise this defence, you will not be held criminally responsible for your conduct provided the Prosecution does not disprove this defence beyond reasonable doubt.
Q: Is self-defence available for all offences?
A: You can raise this defence for all offences except where death is occasioned while protecting property or preventing trespass.
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you were dealing with identification information.rnrnYou may accept that you were dealing with identification, but your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge such as possession of identification information.rnrnAlternatively, you may accept that you were dealing with identification information but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.
For necessity to apply as a legal defence to a crime,
The commission of the offence was proportionate and reasonable in the circumstances.
What does proportionate and reasonable mean?
The commission of an offence to avoid death or serious injury to yourself or another person may be proportionate and reasonable if it is conduct that a person of sound fortitude would have engaged in if they were in your circumstances.
Q: Is necessity a complete or partial defence?
A: Necessity is a complete defence. If you successfully raise this defence, you will not be held criminally responsible for your conduct provided the Prosecution does not disprove this defence beyond reasonable doubt.
Q: Is the defence of necessity available for all offences?
A: The defence of necessity is available for most offences. However, this defence is rarely raised successfully. Therefore, it is recommended that you have an experienced lawyer on your side.
For a defence of mental illness,
What is a disease of the mind?
A disease of the mind refers to a state of mind which lacks ordinary reasoning capabilities due to a ‘disease, disorder or disturbance’. The disease may be temporary or permanent, curable or incurable (for example, schizophrenia is considered to be a disease of the mind).
What does ‘no knowledge of the physical nature or quality of the act’ mean?
This means that you may have been aware of your actions, but you were not aware of the outcome or the actual consequences of that action.
Whether you should plead guilty or not guilty will depend on a number of factors, including whether you accept that you were in possession of equipment to make identification documents.rnrnYou may accept that you were in possession of equipment to make identification documents, but your lawyer may be able to persuade the prosecutor to accept a plea of guilty to a less serious charge.rnrnAlternatively, you may accept that you were in possession of equipment to make identification documents but disagree with part or all of what police say happened. In these circumstances, your lawyer may be able to negotiate with the prosecutor to change the police facts.
Q. Is the defence of mental illness a complete or partial defence?
A: Mental illness is a complete defence. If you successfully raise this defence, you will not be held criminally responsible for your conduct provided the Prosecution does not disprove this defence beyond reasonable doubt.
Q. Is the defence of mental illness available for all offences?
A: Yes, you can raise the defence of mental illness in all criminal proceedings.
Q: If I am severely under the influence of alcohol or drugs, can I use this defence?
A: No, mental malfunctioning due to the use of drugs or alcohol is not considered to be a disease of the mind.
Who is considered as a ‘person acting for a parent of the child’?
You will be considered as a person acting for a parent if:
You are a step-parent OR
You are a de-facto partner to the parent of the child OR
You are a relative to the parent (either by blood or marriage) OR
The child is under your care and management AND
You have been authorised by the parent to use physical force as a method of correction.
NOTE: In matters involving persons of Aboriginal and Torres Strait Islander background, a ‘person acting for a parent’ also includes persons recognised by the community (to which the child belongs) as an appropriate person with special responsibilities to that child.
When will force be considered unreasonable?
This will be determined on a case-by-case basis with regards given to the nature of the misbehaving, the magnitude of the force applied, the age, health, maturity and various other characteristics of the child.
Force will be always be considered unreasonable if:
The force is applied on the head or neck of the child (in a non-trivial manner) OR
The force is likely to harm the child for a period of time.
Q: Is lawful correction a complete or partial defence?
A: Lawful correction is a complete defence. If you prove the elements of this defence on the balance of probabilities, you will not be held criminally responsible for your conduct.
Q: Is the defence of lawful correction available for all offences?
A: No, it only applies to offences involving the physical assault of a child.
What is a strict liability offence?
Strict liability offences are offences where the Prosecutor is not required to prove that you had intended to commit the offence.
What does mistake of fact mean?
Mistake of fact does not include ignorance of the law. For example, if you are fishing in a protected area because you were informed that it was legal to fish there, that is a mistake of law and will not give rise to this defence. However, if you were fishing in area X which is a protected area but honestly and reasonably believed you were in area Y, then that is a mistake of fact that may give rise to this defence.
Q: Is honest and reasonable mistake of fact a complete or partial defence?
A: Honest and reasonable mistake of fact is a complete defence. If you successfully raise this defence, you will not be held criminally responsible for your conduct provided the Prosecution does not disprove this defence beyond reasonable doubt.
Q: Is the defence of honest and reasonable mistake of fact available for all offences?
A: This defence is usually raised in matters involving strict liability offences (i.e. where the Prosecution is not required to prove that you had intended to commit the alleged offence).
What would be a reasonable opportunity to escape the consequences of a threat?
If you had the opportunity to report the threat to Police, that will be considered as a reasonable opportunity to escape the consequences of not complying with the threat.
Q: Is duress a complete or partial defence?
A: Duress is a complete defence. If you successfully raise this defence, you will not be held criminally responsible for your conduct provided the Prosecution does not disprove this defence beyond reasonable doubt.
Q: Is the defence of duress available for all offences?
A: You can raise this defence for all offences.
At the time of offending, your capacity to:
What is abnormality of the mind?
Abnormality of the mind is an objective assessment. You may be considered to have an abnormal mind if your state of mind is not similar to that of an ordinary mind and is likely to be considered abnormal by a reasonable person. The abnormality of the mind need not be absolute but more than trivial.
What is an underlying medical issue?
An underlying medical issue refers to a pre-existing mental or physiological condition (for example, PTSD).
Q: Is substantial impairment by abnormality of the mind a complete or partial defence?
A: Substantial impairment by abnormality of the mind is a partial defence. If you successfully raise this defence, you will still be convicted, but you will be convicted of a lesser offence (i.e. manslaughter instead of murder).
Q: Is substantial impairment by abnormality of the mind available for all offences?
A: No, substantial impairment by abnormality of the mind is only available for a charge of murder.
How can I prove that I believed my conduct was necessary?
There must be a reasonable possibility that you believed your conducted was necessary to either:
Q: Is excessive self-defence a complete or partial defence?
A: Excessive self-defence is a partial defence. If you successfully raise this defence, you will still be convicted, but you will be convicted of a lesser offence (i.e. manslaughter instead of murder).
Q: Is excessive self-defence available for all offences?
A: No, excessive self-defence is only available for a charge of murder.
Q: How will I raise this defence in Court?
A: Generally, you will raise the defence of self-defence (that is, you believed your conduct to be necessary and it was reasonable in the circumstances). If the court accepts that your conduct was necessary but not reasonable in the circumstances, the court will then rely on this defence as an alternative.
What is provocative conduct?
The conduct of the deceased will be considered to be provocative if what they engaged in constitutes a serious indictable offence (i.e. an offence that is punishable by 5 years imprisonment or more).
What is meant by reasonable in the circumstances to lose self-control?
This is an objective assessment of whether the ‘ordinary person’ in your position would have lost self-control to such an extent that they would have intended to kill or cause grievous bodily harm.
Q: Is extreme provocation a complete or partial defence?
A: Extreme provocation is a partial defence. If you successfully raise this defence, you will still be convicted, but you will be convicted of a lesser offence (i.e. manslaughter instead of murder).
Q: Is extreme provocation available for all offences?
A: No, extreme provocation is only available for a charge of murder.
Hugo Law Group is a law firm that is focused on protecting and defending your rights. Drawing on decades of experience, our team of criminal lawyers will guide you through the legal process, providing comprehensive, honest and strategic advice – qualities that give us our renowned reputation.
Whether you want to plead not guilty, you are looking to secure the best possible sentence, or a loved one wants to apply for bail, it is essential to have an experienced team of criminal defence lawyers in your corner.
Seeking comprehensive and practical advice at an early stage will best ensure your rights and interests are protected. Our lawyers will properly prepare and present your case to assist you in getting the best possible outcome.
At Hugo Law Group, we will clearly explain what your rights and obligations are so that you can make informed decisions about how to deal with the police and the court process.
Even if you have not yet been charged with a criminal offence, you should seek advice from a lawyer at an early stage to ensure that your rights and interests are protected.
Hugo Law Group is the market leader in criminal defence law, providing exceptional representation to people facing serious criminal charges.
As leaders in criminal defence, we know that every story has two sides. We defend yours.
Get in contact with us today or feel free to call us at 02 9696 1361 (Sydney), 02 5104 9640 (Canberra), or 08 6255 6909 (Perth) and find out how we can help you.