Choosing a Barrister

By Alex Panousakis

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A criminal trial is an adversarial process: that is to say that, in the end, there are two adversaries (the barristers or advocates), each trying to either put their own case or discredit the case of their opponent, before a judge and often a jury, in order to succeed. Given that, the importance of choosing the right barrister for your case cannot be overstated.

It’s wrong to assume that barristers only become useful once a particular criminal matter, whether relatively minor or serious, is destined and heading for trial. Often, involving a barrister at an early stage, to assist with a matter’s strategic progression, can have an incalculable and positive effect on the outcome that we are able to achieve for a client. That said, different matters at different stages of the criminal process may suit some barristers over others. What is most important, above anything else, it to ensure that the barrister that you chose has a close and productive working relationship with your solicitor, to ensure that their time and expertise is being best used to your benefit. Our criminal lawyers maintain excellent relationships with a number of both junior and senior barristers at the Independent Bar, with whom we work regularly. We are able to draw on a pool of significant criminal law expertise to ensure that the barrister briefed on a particular matter is the most appropriate and expert for the job.

The other issue, of course, is cost. Just as in anything else, it cannot be said that the most expensive barrister will necessarily be superior, or do a superior job, in relation to a particular matter. It is true that a barrister’s fee is likely to increase as they become more senior, and that is to be expected. That said, there are other indicators of quality and professionalism  than the size of a barristers fee. We are well placed to select and consult with barrister who, while they may be less expensive than others, are able provide excellent, timely and forensic advice to an exceedingly high standard.

If you have a criminal law matter and you would like to brief a barrister, please contact Culshaw Miller Criminal Lawyers at our offices on (08) 8464 0033, or on 0418 421 153 after hours.

DNA Evidence: a silver bullet for convictions?

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It’s common to hear the media report that the Crown has DNA evidence that means that DNA found is “4 billion times more likely to have come from the accused than a random person” or similar. Often, people mental equate this position to one of clear inferred guilt. After all, four billion to one are long odds indeed. Jae Gerhard, principal at Independent Forensic Services, reminds us that such calculated statistics are not, in fact, the “odds that the person did it”- rather,like any evidence, it is capable of being interpreted in a variety of ways. The key aspect to DNA in terms of it’s potential in court is the effect that hyperbolic sounded calculated statistics and complex science can provide a veneer of irrefutable objectivity, when the reality is that like any evidence tendered by the Crown, it can and often ought be subject to testing by defence counsel for various subjective biases, misinterpretation, contamination and simple error. We will address two of the more significant issues identified by Independent Forensic Services in relation to the current situation with DNA evidence as utilized in criminal prosecutions.

The Type of DNA is Crucial:

The mere presence of the DNA purported to be that of the accused at a crime scene will often be incapable of giving rise to any inference of guilt; this is especially true where the DNA sample is irrelevant to the scene- while blood may be relevant where the crime is a violent struggle, or semen if the crime is sexual in nature, other forms of DNA may well be entirely irrelevant. Indeed it may not even be able to be taken as far as demonstrating that the accused was present. Transference of DNA can occur; this may be where two people hold the same glass at a party, and person (2) later opens the door to a house and leaves a sample of person (1)’s DNA on the door knob. It is essential, in that sort of instance, to get evidence with respect to transference before a jury as, on the basis of the common “four billion to one”, that the jury will otherwise here, it sounds tremendously likely that person (1) was, in fact, at that house.

The Number of Contributors:

DNA, particularly insofar as a violent, high-traffic, crime-scenes are concerned, will often result in what is called a “mixed profile”: that is a profile containing DNA from two or more contributing people. Significant difficulty can arise when this evidence is assessed and the number of contributors ought to be the subject of rigorous verification when such evidence is produced by the Crown. In the first instance, Independent Forensic Services have found that 76% of “4 person” mixtures, will appear to be 2-3 person mixtures in the context of the current police DNA assessment procedures. The importance of this cannot be understated.

Take the example that a murder had been committed. For arguments sake, assume the innocence of the accused, but the police having identified him as a key suspect very early due to known anger towards the victim. The combination of cognitive bias and weak forensic procedure may well result in evidence as follows:

  1. Mixed profile DNA with two contributors was found at the crime scene;
  2. There is a clear suspect, being the accused;
  3. It is 4 billion times more likely that the accused was a contributor than a random person;
  4. It is 7 billion times more likely that the victim was a contributor than a random person.

On the basis of the above, were the evidence allowed to be presented as such unchallenged, then logically, one would be defending only on the basis of alternate hypotheses as to how the defendant’s DNA ended up at the scene. The weakness, obviously, being the lack of other DNA from a potential “alternate killer”- it’s a case theory that will be difficult from the start. The logical assessment of that evidence, taken unchallenged as is often the case with DNA, appears to be a clear inference of guilt.

Imagine, however, that the number of contributors is re-checked by an independent analysis and determined to be four contributors rather than two. In the first instance, the innate scientific credibility attached to Crown DNA evidence is injured in the eyes of the jury. More importantly, however, you have two additional persons with DNA at the crime scene; as long as those remain ‘unknown persons’, then you indeed have a number of immediate and simply hypotheses consistent with innocence.

Verifying Crown Evidence: A Worthwhile Exercise. 

It is not uncommon that the Crown case appears insurmountable and incontrovertible at first blush. It is equally common, that the seemingly watertight declarations and identification begin to fall apart at the seams once a thread is pulled and scrutiny is applied; either being inconsistent or entirely consistent with a hypothesis consistent with innocence. DNA evidence can be treated similarly; the frightening complexity of some aspects of the science can be dispensed with by way of engaging the appropriate experts at an early stage. Items can be subject to independent testing, and reports can be prepared for the defence. As DNA becomes more commonly the linchpin of criminal prosecutions, then it becomes commensurately more important to subject that evidence to the same dispassionate cynicism with which any declaration is treated; feeling as though you need to plead guilty because the “police have DNA” ignores the fundamental unreliability and inbuilt biases within the reports as they are tendered to the court.

Culshaw Miller Criminal Lawyers are available to provide a case review at no cost. Contact us on 8464 0033 or book a review online for a response within 12 hours.

 

Rape Trials: Special Provisions in South Australia

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Socio-political movements over recent years have resulted in the introduction of various special evidentiary provisions that apply only in rape trials. The rationale for these provisions are ostensibly to prevent cross-examination attacking the moral rectitude or sexual promiscuity of a complainant in rape trial in order to secure an acquittal; in effect, to prevent “slut-shaming” and deny any inference being drawn by a jury that because a particular person is, or reputed to be, sexually promiscuous they are less likely to be raped. The legislative and common law positions both seek to balance the protection of complainants in sexual trials against the fundamental importance of an accused person being able to test the evidence against him.

Can counsel ask about former sexual partners?

A complainant purporting to be a rape victim may not be questioned about their sexual relationship (Section 34L Evidence Act 1929), however questions may be put in cross-examination that relate to the alleged victims recent sexual activities with the person accused.  The trial judge, in particular other circumstances, is reposed with a discretion to allow questions to be put to the witness with respect to sexual activities with persons other than the accused; the exercise of this discretion requires consideration of the principle of averting having complainants subject to humiliation or embarrassment against the interests of justice. This will inevitably require a decision as to the likely probative value of the questioning; whether the answers would go toward proving or disproving a relevant matter at issue.

Can I be convicted on the word of the complainant alone?

In many instances of an alleged rape, the only evidence is that of the victim. These are often called trials that are “oath on oath” as it will require the jury to determine whether to believe the victim or the accused without any corroborating evidence. Formerly, the trial judge would ‘warn’ the jury in directions that it was unsafe to convict an accused person on the uncorroborated evidence of the victim. Due to the nature of many rapes occurring ‘behind closed doors’ and complaints not being made for some time, the legislature determined to remove the direction in Kelleher v The Queen; Section 34L(5) of the Evidence Act still allows for the trial judge to issue the direction where appropriate but it is now no longer required.

Is hearsay evidence admissible in rape trials?

Hearsay evidence is, generally, inadmissible; a witness is not permitted to relay statements made by other persons in circumstances where the evidence is adduced to prove the truth of that statement; commonly this could be a witness saying that he heard his wife say that she saw the accused person commit the crime in question. While there are a number of exceptions to the rule against hearsay, rape offences include a further exception. The rule, pursuant to Section 34M(3) of the evidence act allows the Crown to adduce hearsay evidence of the complainant making a complaint or having said some material thing following a sexual assault- known as “recent complaint evidence”. The use of “recent complaint evidence” by a jury is quite limited; it cannot be used to directly prove the truth of the statement made by the witness but rather only as evidence that a complaint was made and relevant to the consistency of the complainant. It can be used to rebut suggestions of “recent invention” of a complaint by the defence.

The special evidentiary provisions for rape matters, while the subject of some contention and producing a significant amount of work in the Criminal Court of Appeal, have been relatively uncontroversial in their application. The significant discretion reposed in the trial judge operates to ensure that any chilling effect on probative material being adduced before a jury is moderated. It is important that the crown brief is assessed and accused persons properly advised on the basis of the special evidentiary provisions at an early stage in order to determine the strength of that case; particularly prior to the committal proceedings.

If you have been accused of rape, it is important to seek legal advice at the earliest opportunity. For a free, no-obligation review of your situation, make an appointment here. For 24 hour, urgent legal advice or representation you can contact Alex Scott on 0418 421 153.

Appealing a Sentence- Can I get my sentence suspended?

By Alex Panousakis

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Pursuant to section 38(1) of the Criminal Law Sentencing Act 1988 (“Sentencing Act”), where a court thinks that the offence for which an offender is being sentenced is serious enough to warrant imprisonment, or where the applicable offence is such that a term of imprisonment must be imposed in any event, a court may wholly or partially suspend any sentence of imprisonment to be imposed if it considers that there are good reasons to do so. The term “good reasons” is a necessarily vague one, both generally and in the criminal law context, and with good reason: it indicates the wide discretion that sentencing Judges and Magistrates have to take into account circumstances unique, peculiar and relevant to a particular offender when deciding whether or not to suspend a given sentence of imprisonment. Factors to be taken into account by judicial officers when deciding whether or not to suspend sentences are many and varied, and include the offender’s health and employment history, their past good character, their prospects of rehabilitation and their access to family and community support, any contrition and remorse shown by the offender and their antecedent criminal history.

Failure to suspend a sentence where good reasons exist to do so can constitute an appellable error by a judicial officer in the sentencing process. In those circumstances, it is said that (and the ground of appeal to be complained of is) that the discretion being exercised by the the relevant Judge or Magistrate in relation to suspension has miscarried. In South Australia, appeals against sentence (including appeals against sentences which have not been suspended) are heard: (i) by a single Judge from a decision of a Magistrate (except in respect of major indictable offences, in which case an appeal lies to the Full Court) or (ii) to the Court of Criminal Appeal with the permission of that Court against sentences handed down in the District and Supreme Courts.

In South Australia, sentencing standards are set by the Court of Criminal Appeal. To that end, there are and will always be offences considered to be too serious to warrant suspending a suspended except in truly exceptional circumstances (e.g. child pornography offences: see R v Padberg), even in the case of first time offenders and particularly where the offender has relied on or taken advantage of his good character and standing in the community to enable or procure the commission of the offence in question, which are the very factors that would otherwise have spoken strongly in favour of suspending any sentence (e.g. historical or non-historical child sexual offences, in which and where an offender has abused a position of trust or authority, and also certain offences of dishonesty or fraud).

There are also certain offences in respect of which the Parliament has enacted laws to severely limit or curtail entirely the discretion of judicial officers to  suspend sentences. For example, a court may not suspend more than four-fifths of a sentence of imprisonment if the person is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence (manslaughter or causing serious harm: Sentencing Act 1988 s 38(2)(b). Also, unless exceptional circumstances exist (in which case certain limitations apply), a court may not suspend the sentence if the person is being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence and, during the five year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence (see further the Sentencing Act sections 38(2)(c), 38(2)(d), 38(2)(ba) and 38(2c)).

Where a judge has declined to suspend a suspend a sentence of imprisonment imposed in one of the above instances, any appeal to the Supreme Court or Court of Criminal Appeal against the failure to suspend will necessarily be difficult. However, in respect of most other offending, where good reasons particular to the offender in question exist to justify doing so, it is not uncommon for wholly or partially suspended sentences to be imposed in respect of very serious offending and even, rarely, in respect of extremely serious crimes (e.g. manslaughter).

It must be remembered at all times that a suspended sentence is nevertheless a sentence of imprisonment and not a “soft option” or “no penalty at all”, as some have chosen to describe it.

We would be pleased to advise as to the prospects and merits of an appeal against any immediate custodial sentence which has not been suspended. Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance. Call 0418 421 153 or to book an appointment you can contact our offices on (08) 8464 0033. For a free review of your matter, please make a booking here and one of our solicitors will be in touch within 24 hours.

Cause Death and Driving Offences in South Australia

By James Cobiac

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There are a variety of driving offences available under South Australian criminal law. The more serious of these offences involve causing death by way of culpably negligent or reckless driving, or driving at excessive speed in a manner dangerous to another person causing death. It is crucial to seek only legal advice if you have been charged with one of these offences. They carry heavy maximum sentences and are prosecuted vigorously.

There is a difference between culpable negligence, recklessness, and driving at speed in a manner dangerous to another person. Each entails a legal test that must be proved beyond reasonable doubt by the Crown. Culpable negligence requires the Crown to prove that the defendant’s driving demonstrated a gross departure from the standard of care expected of ordinary drivers. The concept of negligence is normally reserved for civil matters and as such the type of negligence required to constitute culpable negligence is significantly higher where the criminal law is concerned. A gross departure from the rules of the road, factoring in all the circumstances of the act or omission alleged, needs to be made out by the prosecution before culpable negligence can be established beyond reasonable doubt. Culpable negligence also differs from more common tests of criminal responsibility because it is concerns an objective test that asks: what would a reasonable person in the position of the defendant have done and did the defendant’s driving fall grossly short of that standard.

Reckless driving requires the prosecution establish the defendant was aware of the risks their driving gave rise to, but opted to continue driving regardless of those risks. It requires the prosecution establish the defendant actually contemplated the risks and chose to proceed with the conduct anyway. It is more difficult to prove because of the subjective nature of the test compared to culpable negligence.

The third type of charge is causing death with a vehicle due to driving at excessive speed in a manner dangerous to any other person. Like the test of culpable negligence, whether speed is excessive in a dangerous manner is an objective test. The prosecution must establish beyond reasonable doubt that with regard to all the circumstances the driver grossly departed from the rules of the road and created a severe and unwarranted risk to the lives of other people. Despite similarities to culpable negligence the law continues to differentiate between the two.

A failure of the prosecution to establish either culpable negligence, recklessness, or excessive speed means the charges will fail. The prosecution must also be able to prove, as one would expect, it was the defendant who was actually driving the vehicle at the time of the offence.

If the manner of the driving is proven, the prosecution must also establish beyond reasonable doubt that the culpably negligent, or reckless driving, or excessive speeding caused the victim’s death. It may be that despite the manner of driving the resulting death was the result of an entirely different cause, or would have occurred regardless of how the defendant drove. It is important to note the cause need only be a substantial cause, it does not need to proved to be the sole cause.

If you have been charged with driving offences it is important to consult a lawyer as soon as possible. Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance. Call 0418 421 153 or to book an appointment you can contact our offices on (08) 8464 0033.

Theft Offences

By James Cobiac

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If you have been charged with theft it is important that you seek advice from a lawyer. The experienced criminal law team at Culshaw Miller Criminal Lawyers can help you understand and properly defend the charges that have been laid against you. Theft occurs when a person deals with an owner’s property dishonestly and without the consent of the owner, with intent to permanently remove the property from the owner’s possession or encroach on their right to deal with the property. A basic offence of theft carries a maximum 10 year gaol tem and a maximum 15 year gaol term if the offence is aggravated. To secure a conviction the Crown must prove each element of the offence beyond a reasonable doubt.

There are a number of defences or potentially mitigating features to a charge of theft and a lawyer should always be consulted about your own personal circumstances. The police may have brought the charge against the wrong person, in which case it may be possible to have the charges dropped. In other cases, it may be that the Crown does not have enough evidence, or strong enough evidence, to prove that the Defendant dealt with the property dishonestly. Whether or not the defendant has dealt with property dishonestly is a question of fact for the jury to decide, because dishonesty under South Australian criminal law is measured against the standards of ordinary people. For example, taking your parent’s car for a drive even though they need it for work, may encroach on your parent’s proprietary rights to drive the car when they want to, but may not be considered dishonest by ordinary community standards. Further, the Crown must also prove that the defendant knew they were acting contrary to the standards of ordinary people. So if the defendant honestly but mistakenly believes that they had the right to deal with the property, their dealing with the property will not be dishonest. For example, if one were to mistakenly pick up a wallet thinking it were theirs, they have not dishonestly dealt with another person’s property. The defendant may also have laboured under the misapprehension that they had the consent of the owner to deal with the property. This extends to the instance where the defendant honestly believes that they had the consent of the owner even though consent was never given. Whether or not consent can be implied is determined with reference to the dealings between the owner and the defendant.

If you have been charged with theft it is important to consult a lawyer as soon as possible. Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance on 0418 421 153 or to book an appointment you can contact our offices on (08) 8464 0033. We have the expertise to ensure you are able to exercise any legal avenue reasonably available to you.

The Law of Rape

By James Cobiac

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Rape is one of the most serious offences an individual can be charged with. It carries a maximum penalty of life imprisonment in the case of a conviction and extensive social stigma can also attach to a defendant, regardless of whether a conviction is ultimately secured against them. It is important for anyone accused of this offence to seek legal advice in relation to the circumstances of their alleged offending, especially due to the serious consequences that can follow a conviction.

The law of rape is underpinned by a number of different elements each of which must be proved beyond a reasonable doubt by the Crown. If any element cannot be proved to this standard the charge of rape will fail. Culshaw Miller Criminal Lawyers have the expertise to help you understand the offence that has been laid against you and to enable you to exercise your legal rights and options before a court. Rape occurs when a person engages in sexual intercourse with a person who does not consent to the sexual intercourse, or withdraws consent during the sexual intercourse. Additionally, the accused must be aware, or recklessly indifferent to, the fact that the person is not consenting, or no longer consenting. Despite the concept of rape being quite simple, proving that a rape occurred before a court can require extensive and thorough evidence to prove each of the elements beyond reasonable doubt.

The person accused may not be the person who committed the offence, or the victim may have mistaken the identity of their attacker. Where identity is not in issue the Crown must also establish that sexual intercourse took place between the defendant and the accused. Sexual intercourse is defined by the Criminal Law Consolidation Act 1935 (SA), s 5 as any activity that includes penetration of a person’s vagina or anus (including oral sex). Often proof of any of these acts will be corroborated by reference to medical evidence collected by the Crown and any statement provided by witnesses including the victim. Further to this, the Crown must also prove that the victim did not consent to the sexual intercourse. Consent in this respect is consent that is given freely an voluntarily without the threat of force to the victim, or another, or in circumstances where the victim is asleep or unconscious. There are also a number of other circumstances wherein consent can be qualified in some way and it is important to consult a lawyer with regards to your individual circumstances. Consent within the context of the law of rape covers instances both prior to, and during sexual intercourse, so a victim may consent for some of the activity, but at some point withdraw their consent. If this occurs the onus is on the other party to cease the sexual activity.

Because of the immensely serious consequences that attach to a conviction of rape it is also necessary for the Crown to prove the accused knew that the victim was not consenting, or was recklessly different as to whether consent was given. Reckless indifference can occur in a number of ways under the Act. It can occur where the Crown can prove the Defendant became aware that the victim might not be consenting and proceeded anyway, or failed to ascertain whether or not the person was so consenting. Additionally, having no regard whatsoever to the consent of the other person can also amount to reckless indifference. Demonstrating reckless indifference on behalf of an accused beyond all reasonable doubt, particularly where the accused did not realise consent had been withdrawn can be difficult for the Crown.

If you have been charged with rape it is important to consult a lawyer as soon as possibleof. Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance on 0418 421 153 or to book an appointment you can contact our offices on (08) 8464 0033. We have the expertise to ensure you are able to exercise any legal avenue reasonably available to you.

Self Defence in South Australian Criminal Law

By James Cobiac

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It is a defence to certain allegations if the defendant can prove, on the balance of probabilities that they were acting for a defensive purpose. The defendant must hold a genuine belief that at the time they exercised their defensive conduct for which they have been charged that the conduct was necessary and reasonable to defend either themselves or another. Additionally, the defendant must also demonstrate that their actions in the circumstances, as they perceived them, were reasonably proportionate to the threat they believed they were confronted with (Criminal Law Consolidation Act 1935 (SA), s 15(1)(a)-(b)).

There a number of important considerations concerning the formula of law stated above. Firstly, the requirements of self-defence envisage some degree of force enacted by an accused against a threat. This distinguishes a plea of self-defence from the less commonly pleaded defence of necessity (a different defence that may be available but is beyond the scope of this blog). Secondly, the law requires the defendant to hold a genuine belief that their conduct was necessary in the circumstances as they perceived them to be. This requires an exploration of the defendants subjective state of mind at the time that the threat arose. For example, confrontation by a large attacker whom the accused knows to be violent could be capable of giving rise to physical violence that could otherwise be characterised as an assault that is necessary and reasonable for a defensive purpose.

This also brings into play the further requirement that the conduct be proportionate to the threat that the accused genuinely believes to exist. Proportionality is measured objectively by reference to the threat that the defendant believes to exist, not the actual threat. Taking our current example, the defendant genuinely believes he is being confronted by a large aggressive attacker that is known to him. This is the threat that the defendant’s conduct will be measured against objectively, regardless of whether the defendant has mistaken the threat in an objective sense. It is also important to note that defensive actions need not perfectly equate to the force they respond to. For example, perceiving a larger attacker it may be that the accused is justified in using a weapon for a defensive purpose and exceed the force used against them. This is a matter of fact and degree in each individual circumstance of offending. If the defendant’s conduct is found to be disproportionate, it may still be taken into account when they are sentenced; and may be powerful in mitigation.

There are some other aspects informing the law surrounding self-defence. If the conduct is found to be out of proportion to the threat perceived by the defendant in the case of a murder charge, then the charge will be downgraded to the lesser charge of manslaughter because an intent to kill is undermined by the established intent to defend oneself. Further, self-defence can be argued where conduct is used to defend another, or property. However, it cannot be argued if the defendant was resisting a lawful arrest wherein the police officers are exercising force reasonably necessary to subdue the defendant. Finally, proportionality operates differently where the action is taken in defence to a home invasion in circumstances where the defendant is not engaged in criminal misconduct that could give rise to the invasion, or is being arrested by a police officer, or is intoxicated. In these circumstance proportionality need not be reasonable. This concept is complex and a lawyer should be consulted if you have been charged with criminal offending and think a plea of self-defence is open to you.

Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance on 0418 421 153 an appointment you can contact our offices on (08) 8464 0033.

Assault & Cause Harm Offences in South Australia

By James Cobiac

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The laws regarding assault in South Australia are partially defined by the degree of harm that the defendant intends to, or is reckless that their conduct may, cause. Allegations of assault that can be brought against an accused include assault intending to cause serious harm and assault causing harm intending to cause harm. Each carries different maximum penalties, but all underpinned by interrelated principles of criminal law and are amenable to similar types of defences.

Assault causing serious harm to another intending to cause serious harm is the most serious charge of assault that can be brought against the accused. It sits just below a charge of attempted murder. The charge may be brought as either a basic offence or an aggravated offence depending on the circumstances that surround the alleged offending. A basic offence carries a maximum sentence of 20 years and an aggravated offence 25 years. The two key elements that the Crown must establish beyond reasonable doubt is the defendant intended to cause serious harm to the victim and that serious harm was caused to the victim. The actual subjective intent of the defendant is critical to establishing a charge of causing serious harm intending to cause serious harm. If a defendant can retains reasonable doubt upon the Crown case as to the Defendant’s actual intent the charge cannot be proved. For example, the defendant may have only intended to defend themselves against another, which raises which raises a possible defence of self-defence. Establishing self-defence results in a complete acquittal, or can help mitigate the seriousness of the charge even when the defensive action was not proportionate to the threat perceived. Alternatively, if intent cannot be proven, either actually or with reference to the circumstances, then the charge may default to a charge of simple assault causing harm, intention of which is excluded as an element.

For a charge of assault causing serious harm intending to cause serious harm to be successful the Crown must also establish that serious harm was caused by the accused. Serious harm encompasses acts that are intended to put a person’s life in danger by reference to any injuries they received, or any action that causes a person to suffer physical impairment or disfigurement. If the Crown cannot establish this beyond reasonable doubt the accused may only be guilty of a lesser charge of assault causing harm intending to cause harm, or assault. This is because the law of assault is tiered, whereby it is open to a jury to convict on a lesser charge if the more serious charge has not been proven by the Crown. For the purposes of causing harm intending to cause harm, harm includes actions that render the victim unconscious, inflict injury and pain, or disfigure the victim in some way.

The structure of these offences means that understanding the charges that have been laid against you can become very complicated. It is important to seek legal advice if you have been charged with criminal offending so that you can fully explore the legal avenues open to you once your lawyer has analysed the evidence in the Crown brief. Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance on 0418 421 153 or to book an appointment you can contact our offices on (08) 8464 0033.

Trafficking in a Controlled Substance: South Australian Offences

By James Cobiac

 

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Trafficking in a controlled substance is an offence against South Australian law. The quantity of the controlled substance determines the seriousness of the charge and the maximum sentence that can be imposed by the Court. In South Australia the concept of a controlled substance is divided into four broad headings: controlled drugs excluding drugs of dependence, drugs of dependence, controlled precursors and controlled plants. Each category contains a number of different controlled substances of which it is an offence to sell, have possession intending to sell, or participate in the sale of the controlled drug.

Controlled drugs that exclude drugs of dependence includes drugs such as Cannabis plant material (such as leaves) and Heroin (amongst a raft of other drugs). Drugs of dependence include cocaine, methamphetamine and opium. Controlled precursors are both substances used to create other controlled substances and drugs that can be the subject of an offence in their own right if trafficked in specified quantities. Controlled plants include particular types of fungi some of which are referred to colloquially as “magic mushrooms” and cannabis plants. These are but brief examples of more popularly recognised drugs that form a brief snapshot of the types of drugs covered under Controlled Substances Act 1984 (SA). There are also a number of lesser known controlled substances covered under the legislation.

The particular trafficking charge to which a particular individual may be subject to depends on the amount of the drug they are accused of trafficking. The amounts are divided into large commercial quantities, commercial quantities and quantities that are considered to be trafficable. For example, a charge of trafficking in a large commercial quantity of methamphetamine requires the amount be at least 0.75kgs in pure form, or 1kg in mixed form. Trafficking in a large commercial quantity of a controlled drug carries a maximum sentence of life imprisonment, or a fine of $500 000, or both. Trafficking in commercial or trafficable amounts carry similar, yet less harsh, sentencing options.

To successfully prove a charge against a defendant the prosecution must prove beyond reasonable doubt that the defendant trafficked a controlled drug in a specified quantity. This is accompanied by a number of sub-elements. In order to prove that the drug has been trafficked the Crown must prove the drug was sold by the defendant, or was in the possession of the defendant and that the defendant intended to sell the drug. Here possession means that the drug was within the control of the person and that the person could determine where the drug would be moved, or how it could be dealt with. Each element exists as a part of a factual matrix that must be proved by the Crown in order to secure a conviction. This matrix can quickly become very complex and having a lawyer can help ensure that you are able to fully understand the evidence against you and all of your right and options that you are able to exercise before a court of law.

Drug legislation in South Australia is complex and multi-faceted, so it is important to seek out specific advice from a lawyer in relation to your own circumstances. A lawyer can help you understand the charges that have been laid against you and advise you of any options for defending the charges, or negotiating alternative lesser charges with the Crown. For example, in some circumstance after having analysed all of the evidence that forms the Crown brief, it may be that a lawyer is able to argue that the evidence only supports a lesser alternative charge, or that no charge is supported by the evidence at all.

Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance on0418 421 153 or to book an appointment you can contact our offices on (08) 8464 0033. Make an appointment with our team for a free review of your matter today.