Three Criminal Defences Used By Lawyers

Sharebar

(Aus law/ generally) When criminal lawyers prepare for a case, they need to know what the charges are, the elements relevant to the charges, the evidence that the prosecution has to prove their case, and the admissibility of the evidence. The information gathered from these things will help a criminal lawyer determine legal options to fight the charges for a client and to recognise the credibility of a specific criminal defence.

Depending on the charge and the circumstances surrounding the case, a criminal lawyer will come up with a defence that should be supported by evidence — both testimonial (e.g., witness or victim statements) and physical (e.g., fingerprints, biological material, shoe prints, etc.). Other than self-defence and mental impairment, here are three possible criminal defences lawyers might use to win a case.

1. Sudden or Extraordinary Emergency

Some criminal lawyers may argue that the offence committed was the result of a response to sudden or extraordinary emergency. The Crimes Act of 1958 decrees that sudden or extraordinary emergency applies only when the person who carried out the offence acted so, reasonably believing that the emergency exists; that committing the offence was the only way to deal with the emergency, and that the conduct was a reasonable response to the emergency.

This particular defence puts the evidential burden on the defendant while the prosecution has the responsibility to prove that the defendant did not carry out the offence in response to a sudden or extraordinary emergency.

2. Necessity

The defence of necessity is plausible if the person who committed the crime did it only to avoid a situation where they would be put in harm’s way or in order to protect another person from being harmed. This defence can be tricky and perhaps not used as much as other defences. That is because the criminal action has to be proven proportionate to the degree of harm, that the defence has to prove that the accused was acting out of necessity, and nothing but necessity.

3. Charges are Statute Barred

Perhaps more of a strategy rather than an actual defence to a criminal offence, some lawyers find the charges are statute barred to be fairly favourable in some cases. This, however, only applies for charges that have gone beyond the period of prosecution. It means that a defendant cannot be prosecuted if a certain period of time — as decreed by particularly laws — has ended.

Summary offences (e.g., offensive behaviour, road traffic offences, or minor assaults) and some sex offences carry with them time limits that allow the State to prosecute for only a certain period.

About the author: Calvin John McPhee is an education and legal consultant. He is also a passionate writer who writes articles about educational services, legal rights, government rules and regulations and court law. He also visits www.criminal-lawyers.com.au to learn new rules and regulations.