Do I have to unlock my phone for Police?

It’s a common story in an era where mobile telephones are prevalent; Police asking arrested or detained persons to either provide a pin code to unlock an iPhone or other mobile or ‘requesting’ that an arrested person does so.

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During the pressure of an arrest, or in the desire to assist or be seen to be co-operating with police, many accused persons form the view that they are lawfully required to provide a pin or unlocking code for their phone to police. Sometimes, the manner in which the police request a passcode to unlock a phone will resemble a lawful direction; essentially be a question that sounds as though the person must comply with it or risk prosecution. What must be remembered, however, is that save for certain matters relating to firearms and motor-vehicles, an accused person has a right to silence. An accused cannot be compelled or required to assist police in their attempts to gather evidence against them as a general rule and particularly so with respect to making any comment to them whatsoever.

Many phones are now set-up in a fashion that in the absence of a pass-code or password, they essentially function as expensive bricks. Some have features such as requiring a person to wait a period of time following the entry of an incorrect code, that increases with each wrong entry. Others will wipe the content of the telephone after a pre-determined number of incorrect entries. Police abilities to ‘break into’ locked telephones are constantly improving but are always slightly behind the curve set by major corporations such as Apple and Google who recognise the value people reasonably ascribed to privacy.

While many people worry that failing to provide an unlock code may make them ‘look guilty’, there is no general requirement for a private citizen to give up their personal data to police. Nor is it the case that private photos, conversations with loved ones and friends, work e-mails, banking information and the like should readily and freely be surrendered.  In short, wishing to maintain your privacy is not a matter that the police can allege is something that makes you look guilty; privacy is something that is rightfully valued by many members of society.

If you are detained by Police, remember that while they have the power to seize your phone if they suspect it contains information that will assist with their investigation into a crime, you have the right to seek legal representation and not answer questions, and that includes questions in relation to your telephone pin-code or password. Once you have provided your password or pin-code to police, any access to the data contained on that device will be considered as having been freely provided.

If you have been arrested, detained or questioned by Police 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 Tom Cuthbertson on 0423 534 621 or by e-mail at tom.cuthbertson@culshawmiller.com.au.

 

Revoking Intervention Orders: How to change a final order

Intervention Orders, under the 2009 Act, no longer carry an expiry date as a general rule. Consequently, if an intervention order is made against you in final terms then it will stay standing until such a time that the Magistrates Courts orders that it’s revoked or varied. This can cause serious difficulties if a relationship is rekindled or circumstances change which make the terms of an order unworkable or an undue impingement on the freedom of a defendant or protected person.

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An Application to Vary or Revoke can be made under Section 26 of the Intervention Orders (Prevention of Abuse) Act 2009; there is a waiting period of 12 months from the date of the final order unless some other date has been specified in the order. Once the time-limit against an application has expired, then an application can be made in the Magistrates Court in the ordinary course; there is a power under the act to allow a Magistrate to dismiss an application where they are satisfied there has been no change in the material circumstances of the parties to justify progressing the matter to a full hearing- should you wish to have an intervention order revoked or cancelled, then it is important that you discuss the matter with a lawyer to ensure that the circumstances are properly put to a Magistrate so that the application is not dismissed out of hand.

Where a Magistrate does not exercise the power to dismiss the application, then the matter will progress to a hearing in the ordinary course; the act requires that the same test and some considerations are examined in determining whether to make an order varying or revoking the intervention order. As in the case of an order at first instance the test is on the balance of probabilities rather than the traditional criminal standard of ‘beyond reasonable doubt’. The question that a Magistrate will ask themselves in determining what order should be made is ‘whether in the absence of the making of an order, it is reasonably likely that the defendant would commit an act of abuse against the protected person’. It is to be noted that ‘abuse’ under the Act is an incredibly broad provision and relates, among other things, to financial autonomy, physical and verbal altercations and even threats to commit suicide.

Culshaw Miller Criminal Lawyers have significant experience both making applications for Intervention Orders and defending persons who have had Police orders made against them. To speak with one of our expert solicitors, call us on 8464 0033, make an online inquiry or for 24 hour advice and representation, call Tom Cuthbertson on 0423 534 621.

On the spot disqualifications – Can I get my license back?

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Under section 47IAA of the Road Traffic Act 1961 (SA), police have the power to instantly disqualify from driving any person who submits to an alcotest and breath analysis  which returns a reading indicating that that person  has a blood alcohol concentration of 0.08% and above, or to instantly disqualify any person who refuses to submit to a breath analysis or drug test. For “Category 2” offences, that is blood alcohol concentrations of between 0.8% to 0.15%, the instant disqualifications expire after six months. For all other applicable offences, the instant disqualifications endure for twelve months.

Instant disqualification from driving pursuant to section 41IAA can have harsh, unexpected and untimely consequences, particularly regarding people who require their licence for the purposes of employment. That said, there are limited circumstances in which an application can be made to the Magistrates Court to have the instant disqualification lifted or reduced in duration to one month, under section 47IAB of the Road Traffic Act.

An application can be made to have the instant disqualification lifted entirely where the Court is satisfied, on basis of oral evidence given by the applicant, that a person has a reasonable chance of being acquitted of the relevant charge, or where the prosecuting authorities have had reasonable time to lay a charge relating to the instant disqualification in the Magistrates Court and have not done so. In circumstances where the Court is satisfied that the  offence is a first offence and that the applicant has a reasonable prospect of establishing that the offence in question was trifling (that is to say, that there is some exceptional circumstance of or surrounding the offence that justified or explained its committal in some way), or that there is a reasonable prospect that a person charged with a Category 3 offence may in fact only be convicted of a Category 2 offence, the Court may reduce the instant disqualification to one month.

Applications to lift instant disqualifications aren’t suitable for everyone: it you intend to plead guilty to the relevant offence, it may well be that it’s best to serve as much of the instant disqualification as possible prior to coming to Court, as this will be taken into account by the Magistrate on sentence. Where that is not the case, we would be more than pleased to review your matter and advise on whether an application to lift an instant disqualification is appropriate, or likely to be successful, in the circumstances.

We are able to offer a range of fixed fees in respect of making the relevant application to the Court; call Culshaw Miller Criminal Lawyers today, or Tom Cuthbertson on 0423 524 621 for twenty four hour representation and advice.

Murder convictions: a timely review of minimum mandatory sentences

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The Advertiser today reported that South Australia’s Attorney General, John Rau, has determined to review the provision found at Section 32 of the Sentencing Act 1988, inserted in 2007 that provides:

5(ab)         if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years.

The ‘minimum mandatory’ non parole period of 20 years is tempered, at present, by an allowance for a lesser period where “good reason” is shown; the approach has generally been that a ‘garden variety’ murder that does not invoke an especially unusual feature in mitigation will warrant the 20 year minimum. The approach of the Supreme Court in invoking ‘good reason’ in sentencing convicted persons for murder has been cautious and it is fair to say that good reasons to institute a lesser penalty have been rarely found.

While it is perhaps trite to say that the crime of murder will often and generally warrant a non-parole period in the vicinity of 20 years, it is equally correct to say that the penalty is tariff that would be unlikely to be departed from by the Supreme Court even absent the proscribed minimum mandatory where there is not something either relevant to the offending or the offender that allows some degree of sympathy or leniency. The difficulty with the current approach is the rigid statutory test to qualify for a reduction on the basis of ‘good reason’ which is found at Section 32A of the Sentencing Act:

        (a)         the offence was committed in circumstances in which the victim’s conduct or condition substantially mitigated the offender’s conduct;

            (b)         if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;

            (c)         the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.

The test does not allow for any consideration that is external to either the conduct of the victim or the conduct of the accused while within the criminal justice system. In short, the provision does not allow for the “shades of grey” that are present in so many instances before the Court. While there is often community support for the concept of minimum mandatory sentencing, this is perhaps more explicable by the apocryphal tales of ‘ivory tower judges’  handing out obscenely light sentences for heinous crimes than it is with reference to the true nature of the sentencing regime in South Australia.

Indeed in instances where there has been a sentence that is ‘manifestly inadequate’ having regard to the circumstances of the offending, a cure already exists in a Crown appeal against sentence; the instrument that is used so commonly where a Judge sitting on the District Court or a Magistrate errs in the exercise of their sentencing discretion. Given that the avenue of a Crown appeal remains open as a check and balance against any excessive leniency or sympathy shown to a convicted murderer, and given that the ‘sentencing ranges’ for murder remain rightly severe, there is little to be gained by maintaining the minimum non-parole period; it operates solely to remove judicial discretion when considering the circumstances of an offence and an offender.

Convicted criminals, particularly murderers, are not generally the subject of much sympathy from either the courts or the community in general. This is understandable. Allowing the sentencing Judge to take into account the full circumstances of a person who stands before them convicted of murder is not, necessarily, a matter of ‘letting them off easily’; rather it allows the forensic process of the court to do it’s work in the hands of both defence and prosecution counsel, and arrive at a sentence that, as always, satisfies the necessities of both general and personal deterrence while also making allowances for the offending to be contextualized by circumstances and proportionality.

Minimum mandatory sentencing, in almost all of it’s forms, has proved to be unsuccessful and reduced the sentencing process from an, admittedly imprecise, science to a rubber stamping exercise that fails to take advantage of the wealth of experience of judicial officers, counsel and expert witnesses in determining an approach to a sentence that allows for the imposition of a sentence that truly fits the crime.

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, Tom Cuthbertson and Alex Panousakis, 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 give either Alex Panousakis or Tom Cuthbertson at our offices on (08) 8464 0033, or on (08) 8312 4520 after 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 Tom Cuthbertson on 040 021 9889 or by e-mail at tom.cuthbertson@culshawmiller.com.au

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 040 021 9889 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 040 021 9889 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 040 021 9889 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 040 021 9889 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.

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