Criminal Defences in Queensland – Keep Yourself Out of Jail
The criminal justice system in Queensland is designed to protect the public from people who commit crimes. The criminal law aims to prevent crime, punish offenders and rehabilitate them. However, sometimes criminal defences are needed when a person has been charged with an offence. This article discusses criminal defences that may be available in Queensland if you have been accused of committing a crime.
Criminal defence litigation is a criminal law specialty. Criminal defences are available to defendants charged with criminal offences in Queensland, and criminal lawyers provide legal representation for those accused of crimes. The criminal justice system in Queensland aims to prevent crime by punishing criminals who commit crimes within the state’s borders, through rehabilitation or deterrence.
Criminal defences in Queensland are governed largely by the Criminal Code 1899 (Qld). Defences in criminal cases work a very particular way. In criminal cases, the prosecution has to prove all of the elements of a specific offence at an exceedingly high level known as ‘beyond reasonable doubt’. If they fail to present sufficient evidence for one element beyond that degree, then you will be relieved from charges against you.
Chapter 5 of the Criminal Code 1899 includes a number of general defenses which apply to most offences. Some offences are specifically excluded from these general Chapter 5 defences.
The Code also includes a number of defences that apply to certain offences. These are located within the offence provision itself, or in the same chapter/within the same division as other defences that will specifically state which offences/what circumstances this defence applies to.
General Criminal Defences (Complete Defences)
When a criminal defence lawyer in Queensland refers to ‘complete defences’, they are usually referring to cases where the accused is found innocent. This is in contrast with ‘partial defences’, which may still result in the accusation of an offender being fined or imprisoned.
Self-defence may be an argument for defending oneself against attack when the use of force is necessary to defend themselves and they were not the one who initiated the attack.
In Queensland, there can be a defence of involuntariness where an accused is forced to commit the crime against his or her will and free choice.
One defence in the Queensland criminal law is that of “unforeseeable consequence” where an accused person could not have foreseen a consequence and should not have been able to foresee that result.
Mistake of fact
The mistake of fact defence is given when the accused acted under an honest and reasonable belief that a particular set of circumstances existed.
If a person fishes in an area where it is illegal but believes they’re fishing somewhere legal and can prove that, then the accused may be successful in claiming the defence of mistake of fact.
Honest claim of right
The honest claim of right defence applies to an accused who: acts or fails to act, in relation to property, because they believed that they had a right to the property, and the belief was honest which mean they had no intent to defraud.
The Code has a provision that may be available to those charged with criminal activity. Section 25 of the Code may excuse an accused if they had no choice but to commit the crime in a sudden or emergency situation.
To establish the insanity defence under section 27(1) of the code, it must be proved that at the time of committing the offence an accused was suffering from some kind of mental disease or infirmity.
Queensland law recognises the defence of intoxication as a “temporary insanity” in very specific cases. If an individual unintentionally took drugs or drink to such an extent that their actions were “disordered”, they will be treated as insane at the time of committing the act.
Children under the age of 10 cannot be held responsible for criminal offenses in Queensland.
Children who are 10 years or older but younger than 14 may be presumed not to be responsible, though this presumption can be refuted if prosecutors provide proof that at the time of severity, the child was capable of understanding they should have acted in a different way.
Duress or Compulsion
The Criminal Code Act 1899 (Qld) provides for a defence of duress, also called compulsion and applies if the accused:
- was carrying out what is asked of him or obeying some authority, unless the conduct was clearly illegal
- could have shown there was a threat of serious violence to the accused or someone else in their presence if the accused refused to commit the offence
- acted to save any person or property from serious harm
General Criminal Defences (Partial Defences)
A number of criminal defences exist in Queensland which can reduce the responsibility and/or liability of the accused, but won’t exonerate them completely.
Partial defences in Queensland are those that reduce the extent of liability for criminal actions while mitigating severity of punishment.
The diminished responsibility defense applies when a person kills another and has an abnormality of mind to the point where their capacity to control their actions is substantially impaired. This partial defence downgrades the charge from murder to manslaughter.
One of the most controversial criminal defences in Queensland is provocation. Above, it was noted that self-defence involves provocation. In cases where there were not unlawful assaults but there was some degree of provocation, this defence constitutes a partial defence to the crime committed.
Specific Criminal Defences
Specific criminal defences are those that apply to very specific offences and can be used by criminal defence lawyers strategically. The most common ones are the following:
Consent can be used in some cases by an accused or defendant to limit their liability. Instead of trying to prove their innocence, consent is used as a defence against certain crimes.
It is a defence that can be used if an accused has previously been acquitted or convicted for the same offence which arose from the similar conduct.
Honest and reasonable belief of age
The honest and reasonable belief of age defence acts to absolve responsibility for an offence where the element involves the age of the victim. To be deemed innocent, you must have a reason to believe that your victim was 16 years or older at the time of your misconduct.
This defence applies to the following offences:
- Indecent treatment of a child under the age of 16 years (section 210);
- Permitting the abuse of children on your premises (section 213);
- Carnal knowledge of or with a child under the age of 16 (section 215); and
- Procuring children through the internet (s 218A).
For any legal concerns or assistance you may need, please contact Bouchier Khan Lawyers right away.
This article is of a general nature and is intended for information only. It should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstance, please contact us at Bouchier Khan Lawyers.