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Criminal Defences

Possible criminal defences for a Court case:

 

Following police investigation and a decision to charge a person, charges must be proven in Court by the prosecution. If the prosecution decide that they have sufficient evidence, and that there is a public interest in charging an individual with a criminal offence, they must adduce evidence that is relevant to each and every element of the offence.

The prosecution must prove each element of the criminal offence beyond reasonable doubt. At times, an accused admits that all of the elements of the charge can be proved and pleads guilty. In many cases though, there is a dispute about what happened, what the evidence proves or whether witnesses are telling the truth. In a circumstantial case there might be a dispute about what inferences can be properly drawn from the circumstantial evidence – there might be an innocent explanation for the circumstantial evidence.

Where there is any disagreement between defence and prosecution about the ability of the prosecution to prove an alleged fact beyond reasonable doubt, the defendant has criminal defences to charges.

Beyond Reasonable Doubt is not further defined by the courts. Juries are told that these words mean exactly what they say – proof beyond reasonable doubt and that this is the highest standard of proof that our law demands.

Proof beyond reasonable doubt means the satisfaction of each and every juror of guilt beyond reasonable doubt. Anything less and the verdict is not guilty. If a jury thinks that an accused is possibly guilty or even probably guilty then they should return a verdict of not guilty.

Defences

In general, the accused bears the evidentiary onus of raising a defence. A defence is raised by leading or pointing to evidence which justifies leaving a defence to the jury. Once a defence is raised, the prosecution must disprove it beyond reasonable doubt. The defence of mental impairment is the exception to the rule. An accused must establish mental impairment on the balance of probabilities.

Often the defence most likely to succeed is simply that the prosecution have not proven their case beyond reasonable doubt. It is necessary to carefully study the evidence in any case and determine whether there is sufficient evidence of each element of the alleged offences.

The duty of the prosecution to prove guilt has been described as the golden thread of criminal law:

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” Viscount Sankey, Woolmington v DPP [1935] AC 462

In preparing a case it is important to consider:

  • i. What are the charges?
  • ii. What are the elements of the charges
  • iii. Is there evidence for every element of the charges?
  • iv. Is that evidence admissible?