Defence Lawyers Perth

· Fraud

· Extortion

· White Collar crime

· Spent Convictions

· Firearms Offences

· Traffic Offences

· Drink Driving or Driving while Under the Influence of Drugs

· Careless/Dangerous/Reckless Driving

· Corruption and bribery

We also practice in quasi–Criminal Law matters including:

- Family Violence Restraining Orders, Violence Restraining Orders and Misconduct Restraining Order applications

- Extraordinary Licence applications

- ASIC charges

- Department of Commerce charges

- Australian Tax Office charges

- Consulting to companies that are either charged with an offence, are under investigation for an offence or have an employee who is charged or under investigation.

- Fisheries Prosecutions

- Medical Board and AHPRA complaints and investigations

- Firearms licence applications and revocations

- State Administrative Tribunal applications

- Proceeds of Crime investigations

- Freezing orders

- Vehicle confiscations

- Occupational Health and Welfare charges

- Local Government and Council charges

- Coronial inquests

- Disciplinary proceedings

- Background checks

- Private investigations

If you are under investigation for a criminal offence, we strongly recommend that you obtain our advice before you speak with police. You are not obliged to tell the police anything other than your name, date of birth and address. Every person who is under investigation for a criminal offence is entitled to exercise the right to silence. Many people believe that by exercising their right to silence they will appear suspicious and prejudice their case, however the truth is that by speaking to police you may assist them in gathering evidence against you. A jury cannot draw any adverse conclusions against you from the fact that you have exercised your right to silence.

If you have been charged with a criminal offence, you will be bailed to appear in court, or you may be sent a summons or notice of court appearance. When you appear in court, you will be required to enter a plea of guilty or not guilty to the charges. If you are facing serious charges, you are entitled to see the evidence before you enter a plea.

· Advise you of the relevant law and specifically of the ramifications for your case. Inform you of the risks of taking your matter to trial and the discount you are likely to receive if you decide to plead guilty.

· Advise you about the advantages of engaging an expert to give expert opinion evidence at your trial or sentencing hearing. We work with experts who are pre-eminent in their respective fields.

· Advise you about case strategy such as which defences are available, the witnesses you should call, whether you should elect to give evidence or remain silent, how expert evidence may impact your case.

· Navigate the complexities and pitfalls of the court system with the assistance of experienced, knowledgeable counsel.
· Conduct your case efficiently and cost-effectively and strive to obtain the best possible outcome.

· We will rigorously cross-examine prosecution witnesses to test their credibility and elicit evidence which assists your case.

· Advise you whether you are likely to benefit by engaging a specialist barrister.

· Advise you about the different types of sentences that the court can impose and give you an indication of the likely sentence you would be facing in the event that you are found guilty or plead guilty.

· Advise you of the discount on sentence that you would receive for pleading guilty at an early stage.

· Advise you of any factors that would aggravate (increase the degree of criminal responsibility) and mitigate (reduce the degree of criminal responsibility) in the eyes of the Court.

· Advise you about the kinds of references you should obtain for sentencing purposes and identify the matters that need to be addressed in the references.

· Engage an expert forensic psychiatrist or forensic psychologist, where you have or may have a mental disorder. Depending on the nature and impairment caused by the mental disorder, this may provide a defence or may reduce your moral responsibility for the offending, it may also mean that you are not an appropriate vehicle for general deterrence.

· Advise you about strategies that will mitigate the sentence you receive if you are found guilty or plead guilty

· Advise you about whether you are likely to be eligible for the for a Court diversion program, such as the Drug Court, Start Court (Mental Health Court Diversion and Support Program), Pre-sentence Opportunity Program and the process involved.

- Regard to gender, size, fitness etc

- Use of weapon – was complainant armed?

- Degree of force – more than reasonably necessary?

- Death or grievous bodily harm require belief that the complainant would cause death or GBH to the accused.

Provocation

You may have a defence to an assault charge if the assault was the result of an unlawful act or statement by another person which induced you to commit an assault.

(i) Available where an assault is an element of charge

(ii) Wrongful act or insult (cannot be lawful act)

(iii) Objective test – would an ordinary person, subjected to the provocation, have lost their power of self-control?

(iv) Subject to proportionality test

Defence of Home

As a homeowner or tenant you have extensive rights to defend your property in the case of a home invasion.

(i) Force used must be reasonable and proportionate (objective) in the circumstances as you believed them to be (subjective).

(ii) Must have held subjective belief that the use of force was reasonably necessary

(iii) Must be objectively reasonable grounds for that belief.

Defence of Property

(i) Force used must be reasonable and proportionate (objective) in the circumstances as you believed them to be (subjective).

(ii) Must have held subjective belief that the use of force was reasonably necessary

(iii) Must be objectively reasonable grounds for that belief.

Honest and Reasonable Mistake of Fact

This defence may be available to you if did or omitted to do an act under an honest and reasonable, but mistaken, belief about a fact or facts and had the fact or facts existed you would be innocent of the offence.

(i) Belief about state of things, which if existed, consistent with innocence of offence

(ii) Includes compound/mixed mistake of fact and law (eg. Status of licence, marriage)

(iii) Does not apply to pure errors of law.

(iv) Question of whether a thing properly characterised answers a statutory description is a question of law.

(v) Must have objective grounds for belief for it to be reasonable.

(vi) Honest – subjective test

(vii) Must be a positive belief

(viii) Available in relation to element of consent – sexual offences.

Intoxication

(i) Is not available as a defence where intoxication was self-induced, except where an intention to create a specific result is an element of the offence.

(ii) Where intention is an element of the offence, intoxication is relevant to the issue of whether an accused had formed the intention to create a particular result.

(iii) Also available where intoxication was unintended, for example where a person unwittingly ingests an intoxicating substance.

Honest Claim of Right – Property Offences

You may have a defence to a charge involving property, stealing or fraud if you had an honest claim to right to the property and had no intention to defraud.

(i) Honest belief of lawful right/entitlement to property

(ii) Must be no fraudulent/dishonest intention

Accident

You are not criminally responsible for an event which occurs by accident. An actis accidental where a person did not foresee a possible outcome and nor could an ‘ordinary person’ in their position foresee the ‘possible outcome’.

(i) Event was not intended or foreseen

(ii) Result was unforeseeable – was not a likely or foreseeable consequence of actions

Unwilled act

You are not criminally responsible for an act or omission occurring independently of the persons will. This means that the persons physical actions are not under their mental control.

(i) Alternative to Accident

(ii) Where Act/Omission occurs independently of an accused’s will.

Compulsion

You may have a defence if you acted in order to save yourself from an act threatened to be inflicted upon you.

Emergency

You are not responsible for an act done or omission made in a sudden emergency, provided that the act was reasonably necessary.

(i) Sudden or extraordinary

(ii) Objectively reasonable response to the circumstances as you believe them to be

Insanity

A person is not criminally responsible for an act or omission which is done on account of unsoundness of mind. The defence of insanity is available if at the time of doing the act or making the omission he or she is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

(i) The law presumes sanity, the presumption is rebuttable;

(ii) Requires proof of a recognised mental illness via medical expert diagnosis;

(iii) Mental illness must render the person incapable of one of the following:

a. Knowing what he or she is doing,

b. Controlling their action,

c. Incapable of knowing wrongfulness of their actions

Alibi defence

(i) Alibi evidence is evidence that an accused person was not present when an offence occurred and therefore could not physically have committed the offence.

(ii) Particulars of the alibi evidence must be disclosed to the Prosecution at least 14 days prior to trial including the names and addresses of any alibi witnesses

Right to Medical Assistance

If you are injured or unwell, you have the right to receive treatment from a doctor or nurse.

Right to speak to a friend or family member

If you are arrested by Police, you are entitled to speak to a friend or family member as soon as is practicable. Right to an interpreter If you do not speak and understand English well you are entitled to the assistance of an interpreter before speaking with the Police, you should exercise the right.

Right to have bail considered

If you are charged with an offence, you are entitled to have bail considered by Police. If Police refuse to grant you bail, they are required to bring you before a court to have bail considered as soon as practicable. If you are applying for bail you have the right to be assisted by a duty lawyer or a private lawyer and you should exercise this right. See the bail application page for more information.

Are you required to consent to Police entering or searching your home or vehicle?

You are not required to consent to Police entering or searching your vehicle or home. Police must have a valid warrant to execute a search if you do not consent to your home or vehicle being searched. Police can only obtain a warrant where they have a suspicion based upon reasonable grounds that they will locate evidence of the commission of an offence in a vehicle or premises. If Police do not have a valid warrant to enter and search your home, you are entitled to instruct Police to leave your property and Police must comply to avoid committing the offence of trespass.

Are you required to provide Police with your fingerprints and a DNA sample?

If you are arrested and charged with an offence, in many instances Police are empowered to take a sample of your DNA and fingerprints. Police are able to use force if necessary to exercise this power and it is an offence to resist. If you are later acquitted of the charge or the charge is discontinued, you can apply for samples of your DNA to be destroyed.

As the driver of a vehicle, are you required to provide a sample of breath or oral fluid for analysis?

Yes, Police are empowered to require the driver of a vehicle to provide a sample of breath or sample of oral fluid for analysis. It is an offence to refuse to provide a sample. The offence of failing to provide a sample of breath for analysis carries the same penalty as high range drink driving.