Criminal defences in Queensland are reviewed in a court of law according to the Criminal Code Act 1899 (Qld).
The prosecution must prove with evidence, that ‘beyond reasonable doubt’, you have committed an offence. Your criminal defence lawyer will mount a criminal defence with an aim to either reduce the offence charge to a lesser offence (also known as a partial defence), or provide a complete defence to the charge, which results in an acquittal, and a complete exoneration for you.
The following is not intended as an exhaustive list of defences available to you, and multiple defences can be used in combination for a single case. Contact our office for a free initial consultation and we will determine the best criminal defence for your circumstances.
Alibi evidence that demonstrates you were not at the location in question at the time the offence occurred and can be submitted both by the defendant and by other witnesses. Importantly, for indictable offences, alibi evidence must be submitted to the Director of Public Prosecutions within 14 days of the date the person is committed for trial. This is so that the prosecution has reasonable time to investigate the alibi evidence before trial.
Defence of Premises Against Trespassers
You are allowed to use force that is reasonably necessary to prevent people from trespassing on your property, or to remove disorderly persons as long as you do not cause grievous bodily harm.
Duress or Compulsion
This kind of defence has multiple avenues on which a case can be built including if the defendant:
- Was carrying out the law, or obeying an authority (except in the case where the offence was quite clearly illegal).
- Is able to demonstrate that there was a significant risk of violence to themselves or others if they did not commit the offence.
- Committed the offence to save a person or property from harm or damage
If this defence is raised, it must be that the offence committed is done so with an honest and reasonable belief that there was no way to avoid the violence. The act must also be proportionate to the threat.
Honest Claim of Right
Not knowing or understanding a law cannot be used as a defence. However, with specific regard to property, you can build a defence on the basis that you were exercising an honest claim of right without an intention to defraud. So for example, if you take property from someone because you honestly believed it was your legal property, you may have an honest claim of right legal defence claim.
In Queensland, children under the age of 10 cannot be charged with a criminal offence. For children aged 10-13 years old there is a presumption that they cannot be charged, but this presumption can be overturned by prosecution.
If you can prove to the court that at the time of the offence you either; did not understand what you were doing, couldn’t control your actions, or did not know that you ought not to be doing it, you may be eligible for a defence claim based on insanity. The Mental Health Court will likely be responsible for making this determination.
This type of defence essentially acts as a temporary insanity defence. The important caveat is that this defence only applies if the defendant did not intentionally intoxicate themselves.
Mistake of Fact
You can argue against a prosecution on that basis that your offence was based upon an honest and reasonable but mistaken belief as to the actual state of facts. Examples include taking someone else’s property that you thought was yours, or being charged with rape when you thought the sex was consensual.
Provocation can act as a complete defence to offences of which an assault is an element. This means that this defence can be raised for a range of charges including; common assault, assault occasioning bodily harm, unlawful wounding and manslaughter. It cannot be used if the act is likely to cause death or grievous bodily harm. This means that provocation is not a defence that can be raised in the event that a defendant is charges with grievous bodily harm or murder.
If charged with an offence such as murder, provocation may be raised as a partial defence in order to have the charge reduced to manslaughter.
It is legal to use as much force as is required to defend yourself against an unprovoked attack. In similar circumstances, you may be able to mount a defence on the grounds of acting in aid of others.
Unwilled and Accidental Acts
The criminal code states that a person cannot be held criminally responsible for act or omission that is independent of that person’s will or that occurs by accident. The exceptions to this defence are in the case of occasioning death or grievous bodily harm as a result of a physical defect, weakness or abnormality.
To speak with Brisbane’s best criminal lawyers, contact Guest Lawyers for a free initial consultation now.