Unlawful Sexual Intercourse; Sex with an underage person in South Australia

By James Cobiac

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Unlawful Sexual Intercourse is an offence against South Australian Criminal Law. Sexual intercourse involves penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object (Criminal Law Consolidation Act 1935 (SA), s 5). This extends to the acts of fellatio and cunnilingus.

Allegations of unlawful sexual intercourse can be brought against an accused in a variety of circumstances. The first relates to the offence of having sexual intercourse with a person who is below the age of 14 years. The only defence available is to argue that the objective elements of the offence have not been made out by the prosecution. This includes arguing that the defendant was not the person with whom the alleged sexual intercourse took place, or that it has not been established that intercourse took place as defined above, or that the victim was above the age of 14. If the allegations against the defendant are proved the maximum sentence that can be imposed by the court is imprisonment for life.

A charge of having unlawful sexual intercourse can also be brought where it is alleged the defendant engaged in sexual intercourse with a person under the age of 17 years (but above the age of 14). There are two different statutory defences available to the defendant. Firstly, a defendant may successfully defend the charge if they demonstrate they were under the age of 17 at the time they engaged in the sexual intercourse and the person with whom they are alleged to have had sexual intercourse with was at least 16 years old.

The second defence available requires the defendant demonstrate they formed a belief on reasonable grounds that the person with whom they were engaging in sexual intercourse with was 17 years old, or older. Additionally, the victim must be at least of the age of 16. The key to this defence is to demonstrate that there were reasonable grounds available to the defendant to form the belief that they were engaging in sexual intercourse with a person who was of legal age. This will require an exploration of the events surrounding and leading up to the sexual acts to determine if any reasonable grounds exist that establish the defendant believed that what they were doing was lawful.

There are a number of additional aspects of charges of Unlawful Sexual Intercourse that are important to consider. The offence is primarily concerned with the age of the victim, consent to the sexual intercourse is of no consequence or relevance to this offence, although in circumstances where the victim was consenting, this will likely be relevant to sentence. Further, the defenses outlined above will not be available where the defendant was in a position of authority in relation to the victim. This includes a foster parent and a priest administering spiritual and/or vocational guidance to the victim. There are also a number of other positions of authority that are relevant considerations for a defendant facing this type of charge.

If you have been charged with criminal offending in Adelaide it is important that you seek advice from a lawyer. Culshaw Miller Criminal Lawyers are available to give advice or representation 24 hours a day on 0418 421 153. To make an appointment contact us on (08) 8464 0033.

Threats to Kill or Harm: South Australian Criminal Law

By James Cobiac

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Threatening to kill or harm another person, without legal justification, is an offence against South Australian Criminal Law. For a charge of making an unlawful threat against another to be proved the threat must be intended to give rise to fear of imminent attack in the recipient of the threat. If you have been charged with making unlawful threats against another person it is important to seek advice from a criminal lawyer about the circumstances of the alleged offending and any possible defences that may be available to you. The key aspect of these charges is the intent that was imparted to the words or conduct when they were directed to the recipient.

To prove a charge of unlawful threat the Crown must prove that the accused actually intended by their words and conduct to cause the recipient to fear that an attack was imminent, or was recklessly indifferent as to the form and effect that those words were to have on the recipient. In the criminal law jurisdiction, being recklessly indifferent means the suspect thinks about what the likely impact of their words, or conduct, will be on the victim and decides to engage the conduct or words against the recipient anyway. Proving that the defendant turned their mind to the words and conduct they were going to adopt and then proceeding with it having regard to the possible consequences can be very difficult to prove. Often people react to situations without thinking and there are unintended consequences upon others. Additionally, a defendant may talk or conduct themselves in a manner toward another that they did not even realise was threatening to the recipient, or indirectly threaten another (an unintended recipient) without realising the quality of their conduct. Such instances may, depending on the circumstances, undermine a charge of making an unlawful threat if the person making the threat was not aware that their words and conduct were not proper measured against the general standards of society. Intending to threaten another and engender fear in that person can be even more difficult to prove depending on the circumstances of the case. The context in which the words were spoken and the “trigger” in the circumstances are important matters that will need to be considered by the court before making a finding. The words may have been intended to threaten another, not threaten at all, be intended in the circumstances as a joke, or employed to deter a perceived threat or attacker. These are all matters upon which a lawyer should be consulted if you have been charged with this type of offending.

The law also carries with a defence or exception with respect to circumstances where the accused person makes threats with lawful justification. Making out this defence will be heavily informed by the circumstances in which the words were uttered and the intended effect of those words. If you felt threatened and were attempting to deter an attacker it may be that your words and conduct were lawful in the circumstances and cannot be subjected to an allegation.

If you have been charged with criminal offending in Adelaide it is important that you seek advice from a lawyer. Culshaw Miller Criminal Lawyers are available to give advice or representation 24 hours a day on 0418 421 153. To make an appointment contact us on (08) 8464 0033.

Subpoenas: What do I do if I receive a subpoena?

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It can be stressful if you, either personally or through your business, receive a subpoena to either produce documents or attend court to give oral evidence. Whether it’s in a criminal trial or other legal proceedings, many people are unaware of their right to object to a subpoena and have a lawyer argue against their requirement to give or provide evidence. If a subpoena or a summons is issued against you, it’s important to be aware of your options. Broadly, there are a few things to look at in assessing your requirement to give evidence, particularly it’s important to assess whether you are capable of being compelled to give evidence, whether the evidence sought is actually in your custody or control and whether the evidence sought pursuant to subpoena is admissible.

Do I have to comply with a subpoena?

A subpoena or summons is an order of the issuing court and there are various penalties should you fail to comply without reasonable excuse. On the other hand, it is often possible to successfully object to a subpoena on a variety of grounds. In some instances, matters will be inadmissible and privileged and incapable of production being ordered unless that privilege is waived. In other instances it may be the case that to call a particular person to give evidence may be subject to a qualified public interest immunity as it may damage a particular relationship or involve the waiver of a class of privilege held by another party that has not consented to this.

In other circumstances, a subpoena may be held to be oppressive in circumstances where the material is sought or too broad to be reasonably complied with. In other situations the subpoena may be dismissed by application of the recipient because it characterises an exercise in ‘fishing’; this is where a subpoena seeks information in the hope that something may exist that would assist the issuing parties case, rather than any founded belief that the material actually exists.

What about the cost of compliance?

Generally an issuing party will need to provide ‘conduct money’ before the return date of the subpoena; this is money to reasonably cover the costs of the party served with the subpoena or summons; either in the production of documents or the attendance of a witness at the court. Where insufficient conduct money has been provided, the court and issuing party may be notified and a greater allowance negotiated or ordered. The costs of conduct nominated by a party, however, need to be reasonable and not to the extent of profiting from compliance with the subpoena.

What about search warrants?

Sometimes material will be gathered by an investigative body pursuant to a search warrant. In such instances compliance with the warrant is important as to do otherwise may constitute hindering police in the lawful exercise of their duty. In some circumstances it may be appropriate to ask the Police to wait and seek to file an urgent application in the Supreme Court to ensure that either the warrant is disallowed or that the material remains sealed and is held by the Court. This can be particularly important where sensitive commercial documents that may be subject to a privilege are seized pursuant to a warrant.

How do I know if subpoena is valid?

Culshaw Miller Criminal Lawyers act for people and corporations served with summons to appear or produce and subpoenas in criminal, civil and family law proceedings. The team at Culshaw Miller Criminal Lawyers in Adelaide can advise you as to your rights, obligations and discuss possible strategies to ensure that commercially or personally sensitive material can be protected to the highest extent possible. If you’ve been served with a subpoena or summons or have had a search warrant produced to you by police, Culshaw Miller Criminal Lawyers are available 24 hours a day to provide urgent advice or representation. For after hours advice, call 0418 421 153; to make an appointment to see one of our criminal solicitors, call 08 8464 0033.

Can I Get My Demerit Points Reduced?

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It’s very common for people to appear before Adelaide and South Australian Magistrates Courts seeking to have their demerit points reduced for traffic offences. Many of these people will appear without a lawyer and generally admit to the offending but ask the presiding Magistrate to exercise their power to reduce the amount of demerit points that apply to a given offence or offences. This is problematic due to legislation in South Australia that severely limit the powers of a Magistrate to vary the applicable demerit points for a particular offence.

One very common reason given is that the application of the standard number of demerit points would result in a person losing their South Australian Driver’s License due to disqualification that would flow from incurring too many demerit points. This argument, so it generally goes, is that the person requires their license for work or to pick children up from school. This is known legally as a ‘hardship application’. Magistrates are barred by the Motor Vehicles Act 1959 from taking demerit points into consideration when determining a penalty. Further, the only power that a Magistrate has to alter or vary the amount of demerit points that apply to an offence is where there is a finding that the offence was ‘trifling’ or some other proper cause. This will require the person making the application to give evidence as their reasons, sworn from the witness box.

Trifling refers to an offence that, while technically committed, is so small, insignificant or otherwise subject to some special feature or circumstance that a magistrate could properly find it inappropriate to apply the requisite (or any) penalty. Importantly, the ‘circumstances’ of the offence must relate to the offending itself. The consequences of incurring demerit points have been determined by South Australian Courts not to be ‘proper cause’ to interfere with the imposition of demerit points alone.

You cannot get a demerit point reduction for the following reasons:

  • Speeding because you were late to an important job;
  • Because you need your license for work;
  • Because you need to pick your children up from school;
  • Where you were sick with a cold and needed to pick up aspirin;
  • Where you will lose your job if you lose your license; or
  • Any ground that relates to your personal convenience.

A driving offence may be trifling where:

  • It occurred for a very short period of time (i.e. Undoing and readjusting a seatbelt at traffic lights)
  • Circumstances where an offence may stem from a momentary indiscretion; AND
  • There was minimal risk or embarrassment to other road users; AND
  • The offending was so slight so as not to warrant any punishment.

Should I make an application?

Licenses can be hugely important; particularly for people who rely on their drivers license for work or to pick up their children or who live in areas that are not properly serviced by public transport. If you think you may have a defence to a traffic offense, or that it may be trifling, then you should discuss your situation with a criminal defence lawyer. It’s also important to discuss alternatives such as an application to enter into a good behaviour bond or a further appeal against disqualification. It’s also important to note that where you have received an instant disqualification as a result of drink driving or other more serious traffic offending, you can apply to the Magistrates Court to reinstate your license while your matter moves through court. In this instance you will generally need to show that you have a reasonable defence with some prospect of success.

If you require advice for any criminal law or traffic matter, give Culshaw Miller Criminal Lawyers a call today on 08 8464 0033. For urgent matters, you can call us on 0418 421 153.

Assault Police: Offences in South Australia

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By James Cobiac

Assault Police charges are becoming more common in South Australia, depending on the circumstances of the alleged offence, the consequences for the indictable form of offending can be very serious. There are specific laws that have been enacted to deter assaults on police officers whilst they are lawfully discharging their duty. The police may charge a defendant under the Criminal Law Consolidation Act 1935 (SA) (CLCA), or under the Summary Offences Act 1953 (SA) (SOA).  It is important, however, that the charges are properly made out; often it’s the case that a summary charge of Assault Police is actually the much less-serious disorderly conduct or resist arrest. Negotiations can often obtain the acceptance of a plea to a lesser offence.

A charge under of the more serious indictable variety will be made out under Section 20 of the Criminal Law Consolidation Act 1935 (SA). A Section 20 assault involves the intentional application of force, or physical contact, by a person, either directly or indirectly, against another person knowing that they might reasonably object to the application of that force in the circumstances. An assault can also exist if the defendant threatens to do any of the above to the victim and the victim believes on reasonable grounds the defendant will carry out the threat. If any of the above conduct is undertaken in relation to a police officer, and the defendant is aware that the individual is a police officer acting in the course of their lawful duties, the charge will be treated as an aggravated one. This means that the maximum penalty increases significantly.

The alternative lesser charge open to the police exists under the SOA. Under section 6 anyone who assaults a police officer whilst the officer is executing their duties commits an offence. Any conviction under this section can require the offender to compensate the officer who was assaulted in the course of executing their duties (s 6(3)).

If you have been charged with either of these offences in relation to a police officer is important to know the defences to the charge that may be available to you. For a charge to be aggravated under the CLCA the person assaulting the officer must know that the person is a police officer acting in their capacity as a police officer. If it is not readily apparent to the defendant that the person attempting to arrest them, or engaging in the conduct that triggers the alleged assault, is a police officer then the charge cannot be treated as an aggravated one. This circumstance may arise when an undercover police officer, or off-duty officer, fails to identify themselves to the defendant before arresting them. If this is the case an argument of self-defence might become available to the defendant on the basis that they were defending themselves from a perceived attacker, not a police officer trying to undertake an arrest.

Additionally, if a police officer uses more force than is necessary to discharge their duty and the defendant defends against the force then the above charges will likely fail. Even though the Court views it as important that police officers are protected while carrying out their lawful duties, any failure to lawfully exercise those duties will undermine any charges that follow. It is a matter of balancing the need for public protection generally and any abuse of that power exercised in the course of protecting the public.

The tendency of Police to seek to charge the highest possible offence that is suggested by alleged conduct means that many acts that may be as slight as Disorderly Conduct, Resist Arrest or similar minor offending can sometimes see an indictable information laid in the Magistrates Court. It is important that every avenue is exhausted in ensuring that the charge ultimately proceeded with bears relevance to the alleged offending.

If you have been charged with criminal offending in South Australia it is important to seek advice from a criminal lawyer. If you’ve been charged with assaulting police it’s crucial to seek advice as to whether a defence exists or whether a lesser charge is likely to be accepted on a plea. Culshaw Miller Criminal lawyers in Adelaide are available 24/7 to advise you on any matters in relation to your assault police charges. If you would like advice please do not hesitate to contact us on 0418 421 153 (24 hours), or (08) 8464 0033 to speak with one of our lawyers.

Criminal Law Sentencing in South Australia: The Basics

By James Cobiac

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One of the inquiries frequently made of a criminal lawyer is that of sentence. In effect, clients are understandably concerned with the likely penalty or penalty ranges if they are convicted of a criminal offence in South Australia. This post has a broad look at some of the considerations in relation to sentence. For more information, call Culshaw Miller Criminal Lawyers today.

When a Court considers the sentence it should adopt in relation to a convicted offender under the criminal law of South Australia it will consider the provisions of the Criminal Law (Sentencing) Act 1988 (SA). Starting first with an offender who pleads guilty to an offence without being committed by the Court to trial there are a number of important provisions within the Act that the Court will have regard to. Because pleading guilty to an offence saves the Court considerable time and resources, and by extension saves society considerable expense, the entering of a guilty plea without trial can, and often will, result in a reduction of the sentence imposed by the Court. The exact amount of the reduction will be dependent on how early into the process of proceedings the guilty plea is entered. If a plea is entered within the first 4 weeks after the defendant first appears in Court to answer the charge, the Court may reduce the sentence by up to 40%. If the matter has been listed for trial and the defendant pleads guilty, and could not have plead guilty due to factors that were outside of their control, the Court may reduce the sentence by up to 30%. The amount reduced is largely dependant upon timing and the nature of the provisions to which the Court may have regard.

The nature of the offence and past criminal history will also be taken into account when the Court undertakes sentencing. The Court is guided by the Act to only impose a term of imprisonment in certain circumstances. For example, the defendant must have demonstrated themselves to be a risk of harm to others, or to have a proclivity to commit a serious offence against another person if they were excused of a term of imprisonment. Further, the Court will also consider any previous offences committed by the Defendant and any other circumstances it believes are relevant to the offending behaviour. There are a number of factors that will ordinarily tend toward the showing of mercy by the Court to an offender, and these include youth, good character, the societal imperative of rehabilitation and other factors including matters such as employment. It is important to note that sentencing is considered a balancing act; it is often said to a defendant in sentence that “…the sentencing process is not all about you.”. General deterrence is considered a particularly weighty consideration and often, factors in favour of the imposition of a sentence other than one of immediate imprisonment will be outweighed by the general need to deter others from criminal behavior.

If you’ve been charged with a criminal offence in Adelaide it is important that you seek legal advice from a criminal defence lawyer in relation to your specific circumstances. Culshaw Miller Criminal lawyers are available 24/7 to provide criminal law advice or the attendance of one of our solicitors. You can arrange an appointment on 08 8464 0033 or telephone 0418 421 153 for urgent advice.

Sexting & Child Pornography: South Australian Law

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The explosion in recent years of the use of apps such as Facebook, Snapchat and others by young adults- including high school age children- raises a worrying question about the particular issue of ‘sexting’ and the serious legal risks associated with it. The New South Wales Government defined ‘sexting’ as something which “…involves sending suggestive or sexual images through mobile phones that could be posted on the internet or forwarded onto other people.” The question arises in the situation where a young adult, under the age of seventeen, may send their partner, who may well be be slightly above the age of seventeen or below the age of eighteen themselves, a sexually explicit image via one of these applications. Should the recipient’s possession of that material come to the attention of the authorities then it would likely be a breach of Section 63A(1) of the Criminal Law Consolidation Act 1935 (SA):

Any person who is in possession of child exploitation material (child pornography) knowing of its pornographic nature; who attempts to obtain, or makes a step towards obtaining, exploitation material is guilty of an offence.

The federal law would also catch such behaviour under Section 474.19(A) of the Criminal Code Act 1995 (Commonwealth) which creates an offence to use phone or internet services to access, send, publish or produce  material that is child pornography. It is also the case that the person who created and sent the image, even it that image was an image of themselves, may fall foul of the more serious allegation of production of child exploitation material (child pornography) pursuant to Section 63 of the Criminal Law Consolidation Act as follows;

Any person who knowingly produces, or takes part in any stage of the production of, child exploitation material (child pornography) is guilty of an offence. It is also an offence to distribute, or take part in any stage of the distribution of, child exploitation material whilst knowing of it pornographic nature.

A defence will exist to a charge of possession of child pornography in South Australia if a defendant can demonstrate that the offending material came into the possession of the accused person unsolicited; that is without the accused taking steps to access or encouraging  or consenting to its arrival, and that as soon as that person became aware of the material being in their possession and the pornographic nature of same takes reasonable steps to destroy or otherwise get rid out it (Section 63A(2) of the Criminal Law Consolidation Act) this can apply in a vary of situations; such as if an accused person were to receive a pornographic text message from an under age person without having asked, encouraged or consented to it, where the sender hoped to gain the affection of that person; or alternatively if a person had accidentally accessed child pornography on the internet and immediately deleted that material. It is important to note that it is a defence where in the onus of proof is reversed, that it is up to the defendant in such circumstances to prove on the balance of probabilities that the material was unsolicited and that steps were taken to remove or destroy it at the earliest opportunity.

This area is highly fraught in that it sees the criminialisation of a class of persons who, on a moral basis, such as the example of two consenting sixteen year olds, would not by any reasonable measure of community standards, be considered to be behaving in a criminal fashion or with anything more sinister that perhaps youthful exuberance. There are serious consequences that can flow from a conviction in relation to child exploitation material, much like any under age sex offence such as unlawful sexual intercourse or gross indecency, and the ramification of a conviction will follow a convicted person for life. In the latter examples a convicted person may be required to be subject to the conditions imposed by the Child Sex Offender Registration Act for life.

If you have concerns that you may or have already been charged or suspected of an unlawful sexual intercourse or child pornography offence, it is important that you consult with a criminal lawyer immediately. For 24 hour advice or attendance by one of our team, Culshaw Miller Criminal Lawyers is available on 0418 421 153. If you wish to make an appointment call 08 8464 0033.

Police Interrogation and Interviews – Recording Interviews

By James Cobiac

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If you have been accused of criminal conduct in South Australia, and the police or Crown seek to rely on evidence of either an admission or some other thing that they allege that you have said during an interview with Police, then it is important to consult a criminal lawyer to ensure that the Police properly complied with their statutory requirements. The police are given significant powers to enable them to investigate individuals suspected of committing crime. While it is important that they are afforded powers beyond that enjoyed by normal members of the community, it is just as important that individuals suspected of crime are protected from any abuse of those powers by the police. This includes the protection of a suspect when they are interviewed by a police officer.

When a police officer undertakes to interview a suspect they must ensure that they comply with a number of statutory requirements. If they do not, any information they gather from the person interviewed may be deemed inadmissible evidence in a Court of law. The evidence will be inadmissible due to the failure to properly exercise their powers of interview, which constitutes an abuse of the extensive powers they have been granted by the community. Whenever, a police officer interviews a suspect they must endeavor to videotape the interview if it is reasonably practicable to do so. If they cannot do this they are obligated to make an audio recording of the conversation with the suspect.

If neither of these recording methods are reasonably practicable the police must make a written record of the interview either during or as soon as practicable after the interview. This written record must then be read back to the suspect on videotape and the suspect must be given the opportunity to interrupt the reading of this record and point out any errors in its content. Where there is disagreement the police officer must record the suspect’s objection to the material in an addendum to the written record of interview. The suspect must be informed by the police officer of the suspect’s right to interrupt the reading of the written record and point out the errors of its contents. This ensures that where the interview cannot be recorded by video or audiotape every effort is made to ensure the suspect is given a fair and transparent interview.

Sometimes the police will conduct an interview with an individual and only come to suspect the individual partway through the interview. If this occurs all the obligations listed above are enlivened and must be complied with as soon as they form the reasonable suspicion in relation to the interviewee. After any interview the suspect must be informed in writing of their right to obtain a copy of the recording and have it played to their legal advisor.

We grant the police significant powers to investigate crime. Because of this it is important to hold them to a high standard and guard against any abuse of that power. Any failure to observe the above obligations may see the contents of the interview ruled by a Court as inadmissible due to a failure to properly exercise the power to interview a suspect. This can mean that, particularly in cases where there is little other evidence forming the Crown brief, a prosecution may well collapse following the exclusion of material obtained pursuant to a Record of Interview.

If you have been charged with criminal offending in South Australia, it is always advisable to consult a criminal lawyer prior to speaking with Police. If you’ve already spoken with police and believe you may have been treated unfairly or they have failed to comply with their legislative requirements call Culshaw Miller Criminal Lawyers today on 08 8464 0033, or if you have been arrested or need twenty four hour criminal law advice, 0418 421 153.

“Pleading Insanity” in South Australia – Defences of Mental Impairment

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Hollywood has led to a popular belief that one may “plead insanity” when accused of a serious offence and easily be duly acquitted. The position in South Australia is far more nuanced and  mental impairment defences are often very complex and quite difficult. A defence of mental impairment is governed by Part 8A of the Criminal Law Consolidation Act. The standard to which an accused person will need to meet to be considered mentally incompetent to have committed an offence is set out at Section 269C of the Act.

269C – Mental Competence

A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, a person is suffering from a mental impairment and, in consequence of the mental impairment-

  • does not know the nature and quality of the conduct; or
  • does not know that the conduct is wrong; or
  • is unable to control the conduct.

This standard has evolved out of the venerable M’Naughten Rule – a reference to M’Naughten’s Case of 1843; the first truly complex “insanity” defence in history in which Daniel M’Naughten mistakenly shot public servant Edward Drummond believing him to be the British Prime Minister. The House of Lords in M’Naughten’s case developed a central test that essentially asked the question;-

Did the defendant know what they were doing and if so, did they know if was wrong?

The development of this rule into the current position that forms the basis of a mental impairment defence in South Australia, Section 269C, is evident. Happily, however, advances in psychiatric medicine and social attitudes have moved with the jurisprudence on the subject to recognising a wide variety of mental illnesses that may render an accused unable to be found guilty having regard to the requirements of the Act.

Difficulties can arise where the mental impairment giving rise to a defence is a temporary one; for example, where an accused has suffered a momentary psychosis, it can be a difficult forensic exercise to prove the impairment suffered by the defendant, as they may have very little recollection to report to a forensic psychiatrist. Further difficulties will arise given that the mental impairment may have completely passed by the time of arrest. This can be contrasted with the position where an accused has a clear and ongoing mental impairment that is plainly evident following his arrest, and indeed during the forensic evidence gathering procedures undertaken by both the defence and the prosecution in the months following an arrest. In such a case, the mental impairment of a defendant can be much more simply assessed by forensic psychiatrist.

A second misconception that often arises in relation to mental impairment defences is that an acquittal on the basis of Part 8A will mean that a defendant will “walk free”. Whilst it is the case that being found not guilty pursuant to a successful mental impairment defence will mean that the accused is, in effect acquitted, the Court, on the basis of having the objective elements of the defence in question being proved, will then set what is known as a limiting term. A limiting term will be a “sentence” but will be set by way of reference to either the accepted sentencing range for a particular offence or sentences for analogous fact situations. These factors will be assessed in tandem with submissions made by respective Counsel. The accused will then be subject to conditions that can be extremely wide in scope. In some instances, the accused will be virtually unrestricted whereas other defendants may conversely  be subject to a requirement of mental health detention for a lengthy period of time, in an approved facility (but not a gaol). The license conditions are reviewed regularly by law and the progression of persons subject to a limiting term will be monitored by psychiatrist. A person detained pursuant to a license or subject to other restrictions may make a application in the Supreme Court for less restrictive conditions on the basis of expert reports indicating their suitability.

If you are a loved one of a person accused of an offence, and you believe a defence may be available on the basis of mental impairment, contact Culshaw Miller Criminal Lawyers on 0418 421 153 or by e-mail at alex.scott@culshawmiller.com.au.

Right to Silence in South Australia: Police Interviews & ‘Answering Questions’

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Despite some recent indications that one fundamental aspect of criminal law, the right to silence, is at risk of being disturbed to a degree by the South Australia Labor Government, the right to silence when being interviewed or questioned by Police still holds an immensely important place in the South Australian criminal justice system. There are some important legislative exceptions, such as providing ones name and address or, in particular circumstances, naming the driver of a motor vehicle however in a general sense declining to answer questions is still a valuable tool in protecting one’s rights against criminal prosecution. ‘No comment’ interviews do not indicate any guilt and an accused that so protects their rights cannot be subject to the crown drawing an inference of a guilty mind from a person who does not wish to speak with Police.

It is important to consider each case on its individual merits but in a broad sense it is always risky to agree waive one’s right to silence without seeking the advice of a criminal lawyer first. Culshaw Miller Criminal Lawyers are available 24 hours a day to assist persons under arrest or being questioned by Police on 0423 534 621. It is important to remember that if you choose to answer questions then those answers can be presented to a Court and may form partial or entire admission of a material fact that may assist the prosecution in obtaining a conviction.

Sometimes, during the stress of being interviewed people can say things while trying to assist Police that may inadvertently link them to an offence or indirectly indicate some form of guilt from which a prosecution may flow. Regrettably some people mistakenly believe that nothing that they say can be used in Court unless Police have delivered a formal caution, sometimes referred to in other jurisdiction as “reading a suspect their rights” (although in South Australia a criminal caution is vastly different from the “Miranda Rights” that are seen on American television) the reality, however, is that a caution is only required once a person becomes a ‘suspect’ thus, should one say something that may implicate them, directly or indirectly in a commission of an offence during the course of Police inquiries, than that admission will likely be admissible as evidence in Court whether a caution was delivered or not. The question of precisely when a person ‘becomes a suspect’ and thus entitled to criminal caution is one that has been closely examined by the Criminal Court of Appeal.

It is important to fully consider your position and that of the Police prior to answering any questions. Sometimes an accused person will answer seemingly innocuous questions hoping to “clear things up”  which, the Police knowing the full circumstances of the alleged offending will allege goes toward proving a material fact against the defendant, this can prove to be severely prejudicial to any case for the defence.

If you have been asked by Police to attend an interview, even if you do not think you are a suspect, it is advisable to seek legal advice from a criminal lawyer before agreeing to do so. Call Culshaw Miller Criminal Lawyers on 08 8486 0033 or 0418 421 153 to arrange for one of Culshaw Miller Criminal Lawyers to attend your interview with South Australian Police today.