When an accused person has been charged and is waiting for their trial or sentencing, they may be released on bail. This means they are out in the community rather than in prison and usually this means there are certain conditions that they must abide by.

One of those conditions may be protective bail. This condition is generally imposed in circumstances where there is an alleged victim to the alleged offence, for example the accused may be charged with assaulting someone and the alleged victim of the alleged assault may be protected by a protective bail condition. 

Witnesses may also be covered by protective bail conditions. The person protected by the bail condition is called the “protected person”. 

In this article, we’ll go through everything you need to know about protective bail and what to expect if bail conditions are breached.

What is protective bail?

Having protective bail conditions usually means that you cannot talk to or go near the protected person. The condition is usually worded in a way that you cannot communicate or attempt to communicate directly or indirectly with the protected person or approach within a certain distance of the Protected Person or where they live, work or are educated.

Communication more commonly includes things like text messages or phone calls, but can also include “liking” a post or sending a friend request on social media. If an accused person is subject to protective bail conditions, they also cannot arrange for someone else to communicate with the protected person on their behalf.

The specific wording of protective bail conditions depends entirely on the case in question and may slightly differentiate in each circumstance so it is important to read through the condition carefully so that you can understand what you can and cannot do. If you are unsure, you should speak with a criminal defence lawyer. 

Why are protective bail conditions imposed?

Protective bail conditions are imposed primarily to protect alleged victims and witnesses. These conditions are imposed to stop an accused person from being threatening or intimidating or otherwise interfering with the criminal justice system running its course.

The condition also protects the administration of justice by prohibiting an accused person from discussing their version of events with potential witnesses. In criminal cases, it is extremely important that each witness be able to independently give their version of events freely and to the best of their own recollection, and without being influenced by others.  

What happens if a protective bail condition is breached?

A breach will result in a further criminal charge of breaching a protective bail condition.

if you are charged with breaching a protective bail condition, in order to be granted bail again, you must satisfy the Court that you have exceptional circumstances. It can be very difficult to show exceptional circumstances, and this may mean that you are remanded in custody, and have to spend time in jail until your matter is resolved.

Therefore, it is extremely important to abide by any protective bail conditions imposed.

The protected person cannot consent to an accused person breaching a protective bail condition. The condition is not imposed by the protected person, but by the court. This means only the court can vary that condition to allow communication and contact. You should speak to a criminal lawyer if you have questions or need advice around this.

What if the protected person wants to talk to me?

Sometimes protective bail conditions can cause significant issues to an accused person. This can happen where, for example, there is a domestic dispute between a husband and wife and one of them is charged with a criminal offence and placed on bail with protective bail conditions prohibiting them from returning to their own house and from speaking to their spouse. This can also indirectly prohibit them from seeing their children or being able to get their personal possessions from their house.

In some cases, the protected person may also not want the condition imposed as the relationship between them and the accused may be continuing and can cause difficulties for both parties. 

An accused person can apply to have a protective bail condition varied or removed entirely. This must be done in court and, until a court has made the change, the condition will be a part of the accused’s bail and must be followed.

In some cases, the condition can be varied to allow contact between the accused and protected person but specify that the accused cannot behave in a derogatory, intimidatory or offensive manner towards the protected person. 

Prior to protective bail conditions being removed or varied, the court will generally require the police or prosecution to speak with the protected person to get their views on whether the condition can or should be removed or varied. In domestic violence cases, there is a specialist family violence team within the court that will be involved in the process and will prepare a report for the court after speaking with the alleged victim. 

Talk to a Perth bail lawyer about your rights

If you are subject to protective bail conditions and you are unsure about what you can or cannot do, or you would like advice applying to the court to vary or remove a bail condition, or you have been charged with breaching a protective bail condition, please contact our experienced criminal lawyers at Chambers Legal on (08) 9500 8915 or at [email protected].

I have committed a criminal offence, but was suffering from a mental health issue at the time. What does this mean for my criminal charge?

When it comes to mental health and the law, you are not alone

The majority of clients that come into our office are people who have been charged with a criminal offence whilst suffering from a mental health issue.

These mental health issues can range from anxiety and depression, to autism spectrum disorder and schizophrenia. 

Some people are aware of their mental illness, whilst others are not. Similarly, some people are already treating their mental illness, whilst others are not.

Either way, criminal charges can be a very harsh reminder that your mental health is important and should be treated appropriately.

Broadly speaking, there are two ways that your mental health is relevant:

Insanity defence

Section 27 of the Criminal Code (WA) sets out what the insanity defence is:

1. A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he 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.
2. A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

To use the insanity defence, a person will need to have a diagnosed mental impairment (which can include a whole range of mental health conditions). A medical practitioner (usually a psychiatrist) will give evidence of this and need to determine whether or not you were able to have capacity to understand what you were doing, control of your actions and understand whether or not you were doing the wrong thing. 

For this reason, mental illnesses such as anxiety and depression are generally speaking, not the kind of condition that would lead to the use of the insanity defence. However, you should still raise this with a criminal lawyer, if you think it might be.

Relevance on sentence

If your mental illness doesn’t amount to a defence, it doesn’t mean that it is completely irrelevant to your criminal matters. 

If you have any kind of mental health condition that played a role in you committing an offence or is a part of your personal circumstances, then the Court will want to know about it when passing a sentence on you. 

If you were in a bad place at the time you committed the criminal offence, but have since then obtained some professional help to address your mental health issues, then the Court will also want to know about that. It is possible for these factors to mitigate any sentence that is imposed on you by the Court. 

Conversely, if you have a mental illness which played a role in you committing an offence and you have not sought treatment, then it is possible that the Court will consider you to be a further risk of re-offending, and you may not receive the benefit of any mitigation.

Overall, dealing with mental health issues can be difficult. It becomes all the more difficult if you have also been charged with a criminal offence. If you have been charged with a criminal offence, and have or believe that you have a mental illness, please contact our criminal lawyers for advice on what this means for your criminal charge.

We can be contacted on (08) 9500 8915 or at [email protected].

For more information on Therapeutic Community Rehabilitation, or for any other reason, get in touch with our friendly team of criminal defence lawyers in Perth today. We can help with representation or advice for any of your legal needs.

When you plead not guilty to a summary charge, the matter will be listed for a trial in the Magistrates Court.

Your trial will be heard by a Magistrate, rather than a jury at your magistrates court trial.

The Magistrate will have to make decisions on legal argument, on credibility of witnesses, and ultimately, whether or not the prosecution have proved the charge against you “beyond reasonable doubt”.

The prosecutor will be a police officer. Most prosecutors do not have a legal degree but will have courtroom experience.

What’s the criminal trial process?

Burden of proof

In all criminal trials, the burden of proof rests on the prosecution to prove the elements of the offence beyond reasonable doubt.

However, sometimes the burden of proof can be reversed. An example of this is for the charge of possession of a prohibited drug “with intent to sell or supply”. There is a presumed intent to sell or supply drugs based on the type of drug and amount of the drug. In this case, you would need to prove, on the “balance of probabilities” that you did not intent to sell or supply the drugs.

Opening address

The trial will commence with both parties having the opportunity to make an opening statement, with the prosecution going first.

The purpose of an opening statement is to briefly outline each party’s case, letting the Magistrate know what evidence you intend to provide, and what issues the Magistrate will need to make a decision on.

The defence can choose to make an opening statement now, or at the start of the defence case.

An opening address is not a requirement of a Magistrates Court trial.

Prosecution case

The prosecutor will call their first witness. If there is a “complainant” in a matter, then this will be the first witness. The complainant is often followed by any other civilian witnesses, and then any police and expert witnesses. 

The witness will be sworn in, and will be required to give an oath or affirmation promising to tell the truth.

In some cases, the complainant and other witnesses may give evidence by CCTV either from another room in the court building or from a different location.

Tendering exhibits in a Magistrates Court Trial

Both parties can tender exhibits, such as documents or photographs. In order to tender such evidence, the person who prepared the document or took the photograph must give evidence.

Evidence in chief

The prosecutor will ask each prosecution witness questions, known as the “evidence in chief”. The answers given by a witness in court under oath or affirmation becomes their evidence.

If you participated in a video record of interview, it may be played in court, and will form part of the prosecution case.

Cross examination

The defence will then have the opportunity to “cross-examine” each prosecution witness. The purpose of cross examination is to challenge the evidence of the witness.

If you have a different version of events of what happened, you will have to put forth your version of events to the witness (known as the “Browne v Dunn” rule) to give them the opportunity to respond to it.

Re-examination

The prosecutor will then have the opportunity to re-examine the witness. They can only re-examine to the extent of clarifying their evidence, and cannot raise new matters.

Defence case

After the prosecution close their case, the defence has the opportunity to call witnesses. In some cases, no witnesses are called. In some cases, you will give evidence, while in other cases, you won’t. If defence witnesses are called to give evidence, they can be cross-examined by the prosecutor and then re-examined by defence afterwards.

You are not required to give evidence at your trial, though depending on your defence, you may need to in order to raise your defence.

For example, if you are relying on the defence of “self-defence”, you will need to give evidence as to why you did what you did.

Closing address for the Magistrates Court Trial

Once all of the evidence has been given, both parties will have the opportunity to give a closing address, with the prosecution going first.

Each party will summarise their case, and point out the strengths and weaknesses of the case. No new evidence can be raised at this point.

The decision

The Magistrate will either:

1. Give a decision immediately;
2. Take a short break before coming back with a decision; or
3. Adjourn the matter to a later date to give a decision.

The possible outcomes will be:

1. Guilty of the offence as charged;
2. Guilty of a lesser offence (if applicable); o
3. Not guilty.

If you are found not guilty, you will be acquitted, and this will be the end of the matter. If you were on bail, your bail obligations will come to an end.

If you were legally represented, you may make an application for costs, to cover any legal fees you have paid.

If you are found guilty, you will be convicted and sentenced. The conviction will be recorded on your criminal record, and will appear on a police check unless you are granted a spent conviction.

Looking for a criminal defence lawyer in Perth to represent you?

Chambers Legal regularly represents accused people in the Magistrates Court for trial. For advice or legal representation, get in touch with our friendly team today.

There has been a recent case in the media in which it is alleged that a 17-year-old accused broke into someone’s house and assaulted the occupant. The occupant ultimately died from the injuries of the alleged assault, and at the time of death, the accused had already turned 18 years old. You can read more about this case here.

An interesting legal jurisdiction question is raised here, regarding whether the accused’s legal matter should be heard in the Children’s Court, as he was 17 years old when the alleged assault occurred, or whether he should be heard in the adult court, as he was 18 years old when the occupant died from injuries caused by the alleged assault. The legal question raised in this case is whether the “offence” occurred when the accused was a child or an adult.

So, what does that mean for my trial – Children’s Court or the Adult Court?

In Western Australia, the Children’s Court deals with accused people who were under the age of 18 years when the alleged crime was committed. That means that children who are charged with criminal offences will be dealt with in the Children’s Court, as well as adults who are charged with having committed offences when they were younger.

Children as young as 10 years old can currently be arrested and charged and held in custody. This is called the age of criminal responsibility. If an accused child is between 10 years old and 14 years old, the police must prove in court that the child understood that their behaviour was wrong. A child over 14 years old can be held responsible for breaking the law, even if the child did not necessarily understand that what they were doing is wrong. You may have seen some discussion recently about calls to change the law to increase the age of criminal responsibility to 14.

Proceedings in the Children’s Court run similarly to that in adult court, in that there is a prosecutor who represents the State and a Magistrate who hears the case. In more serious cases, the case may be heard before the President of the Children’s Court, who is able to impose more serious penalties.

Trials in the Children’s Court are heard by a Magistrate or the President. There is no jury. There is an allowance, however, for an accused person to elect for their trial to be heard in the District Court with a jury. In some cases, there may be good reasons for preferring a jury to determine your case depending on the subject matter and the issues that need to be decided.

The other thing to bear in mind is that the sentencing options differ in the Children’s Court. There are more options for sentencing available in the Children’s Court, and a lot more sentences aim for rehabilitation rather than punishment.

We eagerly await the outcome of the legal argument as to whether the accused person’s criminal charge will be dealt with in the Children’s Court or the Adult Court. This could set an interesting precedent for future cases.

Find the best criminal lawyer in Perth for your case

If you require any legal advice or representation for your Children’s Court or Adult Court criminal charge, and are seeking a criminal defence lawyer, Chambers Legal is available for consultation and representation. Get in touch with our friendly team today.

When you plead guilty to an indictable offence that needs to be heard in the District Court, the matter will be listed in the Sentence Mention List first. Before this hearing, the prosecution will need to provide you with an Indictment, which sets out the charge or charges, and a sentencing brief containing all the material relevant for sentencing.

At the Sentence Mention hearing, your lawyer will need to be able to tell the court the following:

1. Whether you have received the Indictment and Sentencing Brief;
2. Whether you are ready to list the matter for sentencing;
3. How long the sentencing hearing is likely to take;
4. Whether you need leave to retain your Pre-Sentence Report/Psychological Report/Psychiatric Report;
5. Whether bail can be renewed on the same terms.

Sentencing can be anywhere between a few weeks away to a few months away, depending on court availability.

Then What Happens At Your District Court Sentencing?

Prior to sentencing, if the parties want to, or if the court requests it, both the Prosecution and Defence can file written sentencing submissions with the court.

Chambers Legal almost always file written sentencing submissions, as these can assist the court by informing them of the circumstances of the offending, the aggravating and mitigating factors, your personal circumstances, other similar cases, and the penalty that you will be trying to persuade the Judge to impose, or to dissuade the Judge from imposing.

Written sentencing submissions can also enclose additional documents, such as character references, letters from your employer, and private psychological or psychiatric reports. The submissions should be filed with the court at least 2 clear days prior to your sentencing.

At the sentencing hearing, the Judge will have read the sentencing brief which would have been filed by the Prosecution. The sentencing brief will include things like the Indictment, the Statement of Material Facts, your criminal record, written witness statements, photographs, and records of interview. This is so that the Judge will have a full understanding of your case so that you can be appropriately sentenced. The Judge will have also read any written sentencing submissions filed.

The Sentencing Hearing will start off with you being arraigned. This is where the charge is read to you, and you say that you are “guilty”.

The Prosecution will then read the Statement of Material Facts out loud, and formally tender the Sentencing Brief.

Both the Prosecution and Defence will have the opportunity to make oral submissions to the Judge at your sentencing hearing, emphasising the most important matters.

Chambers Legal will be aiming to persuade the Judge as to the best possible penalty outcome for you. For example, if your offence is one that ordinarily carries a term of imprisonment, then we will aim to persuade the Judge to suspend or conditionally suspend the imprisonment if that is open in the particular case. If the ordinary outcome is a term of immediate imprisonment, then we will aim to persuade the Judge to impose a sentence towards the lower end.

Ordinary sentencing outcomes can depend on the maximum penalty for your matter, previous cases that have been before the District Court and then upheld or overturned in the Court of Appeal, or whether there are tariffs for the particular type of offence.

If you pleaded guilty at an early stage, you can receive up to a 25% discount on sentence. This discount is reduced if you haven’t entered your plea of guilty at the earliest possible stage and/or if the Prosecution case against you is very strong.

After all submissions have been made, and the Judge has had all his or her questions answered, the Judge will then proceed to sentence you. In some cases, the sentencing can be adjourned, if the Judge requires more time to think about the submissions that have been made. Otherwise, you will be immediately sentenced. The Judge will give verbal sentencing remarks, addressing the submissions both parties have made, and of what they have taken into account when sentencing you. They must also give reasons for their sentence.

If you are sentenced to a fine, court order, suspended imprisonment, or conditionally suspended imprisonment, then you will be free to leave the court, after receiving and signing any relevant paperwork from the court. If you are in custody appearing via video link, you will be able to be released from prison, so long as you are not in custody for other matters.

If you are sentenced to an immediate term of imprisonment, then you will be taken to the cells downstairs in the courthouse before being taken by truck to prison.

If you are not happy with the sentencing outcome, you have 21 days to lodge an appeal in the Court of Appeal.

Chambers Legal regularly appears in District Court Sentencing lists. We also have close connections with a number of highly experienced barristers, should you want one of our criminal defence lawyers to brief one on your behalf. Contact us today!

There has been significant media attention regarding the Cardinal Pell judgment of the High Court earlier this year. You can read a summary of the judgment here.

Cardinal Pell was found guilty by a jury after trial in Victoria. He appealed against his conviction to the Victorian Court of Appeal. His appeal was run on the basis that the verdicts of the jury could not be supported by the evidence.

The trial itself involved the complainant giving evidence, as well as several witnesses who testified about the usual practices and routines after Sunday Mass. The incidents alleged were said to have occurred shortly after Sunday Mass and the movements of people were relevant to determine whether there was an opportunity for the Cardinal to offend in the manner alleged.

The Victorian Court of Appeal dismissed the appeal.

Cardinal Pell went on to appeal to the High Court. The High Court determined that even if the complainant was found to be credible and reliable, the evidence of the other witnesses regarding movements after Sunday Mass still required the jury to have entertained a reasonable doubt as to whether the offending occurred.

The Cardinal also relied on the fact that to accept that the first offence occurred, required finding that:

1. Contrary to his usual practice, he did not stand on the steps of the Cathedral after Mass to greet congregants for ten minutes or longer;
2. Contrary to long-standing practice, he had returned unaccompanied to the sacristy in his vestments;
3. No other person entered the sacristy in the five or six minutes that the complainants were in the Cathedral and until the end of the alleged offending;
4. No one saw or took action to stop two robed choir boys leaving the procession and going back to the Cathedral.

The points above demonstrate that the evidence as a whole was not capable of excluding a reasonable doubt. The High Court said that there was “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the reasonable standard of proof” and, accordingly, the convictions were quashed and judgments of acquittal entered.

How Can I Appeal My Criminal Conviction In Western Australia?

Any person who is convicted or found guilty of an offence after trial has the right to lodge an appeal against that conviction.

Depending on which court your matter was heard in, there are different procedures for an appeal. For example, if you had a trial in the Magistrates Court and a Magistrate found you guilty after trial, you can lodge an appeal in the Supreme Court where a single Judge will hear your appeal. If, however, you stood trial before a Judge and jury in either the District Court or Supreme Court, you can file your appeal with the Court of Appeal, where three Judges will hear your appeal.

The High Court of Australia also hears appeals from State courts, including the Court of Appeal of Western Australia.

Can I Appeal My Conviction If I Think The Magistrate Or Jury Got It Wrong In My Case?

Technically, yes, you can appeal a conviction if you say the jury got it wrong. However, you must be able to demonstrate that the Magistrate or Judge made a wrong legal decision, or that jury was given the wrong directions of law by the Judge, or that the evidence as a whole did not support a guilty verdict. In some cases, there may be several grounds of appeal.

It is important to note that an appeal is not a second go, or an attempt to try to run your case again because you feel it didn’t go well the first time. The court determining your appeal is concerned with whether something went wrong in your trial as a matter of law. That means you must give proper consideration to the grounds of appeal in your case, and whether there is merit in running an appeal at all.

If you win your conviction appeal, your matter will usually be sent back to the first court before a different Magistrate or Judge for a retrial. In some rare circumstances, your appeal can result in an acquittal.

It is important to seek legal advice from a defence lawyer about your prospects of appealing because, if not done properly, the court can dismiss your appeal and you may need to pay legal costs of the prosecution.

How Long Do I Have To File An Appeal?

There are deadlines that apply to appealing your case. If you have been found guilty in the District Court or Supreme Court, you have 21 days to file an appeal from the date you are sentenced. If you are found guilty in the Magistrates Court, you have 28 days to file an appeal from the date you are sentenced.

It is possible to appeal outside of that timeframe, however, you will need to explain to the court why you have not appealed within the deadline.

If you would like some advice on a potential appeal, or if you have already lodged an appeal against either your conviction or sentence, one of our criminal defence lawyers can assist you. Call Chambers Legal on (08) 9500 8915 or get in touch here to discuss your appeal further.

When you meet your criminal lawyer for the first time, you should have a good first impression of them and ensure that they’re the best fit for you. After all, you need to feel comfortable telling them some very personal details about yourself and need to have trust in them to do their best work for you.

Here are some pointers on how to find the best criminal lawyer in Perth that suits your needs.

How to choose a criminal defence lawyer

To make the most of your initial consultation with your criminal lawyer, you should bring the paperwork you received from the police, which usually includes documents such as:

1. Statement of Material Facts;
2. Prosecution Notice;
3. Bail forms or Prosecution Summons or Court Hearing Notice; and
4. Criminal record.

If possible, you should send this to your criminal lawyer ahead of time, to make the most of the time in your initial consultation.

Your criminal lawyer should discuss the charge(s) with you, hear your side of the story, and provide you with advice on your available options. Your criminal lawyer should explain things to you in a simple and easy-to-understand way.

Questions you should ask a lawyer

To determine whether your criminal lawyer is the best one for you, you can ask them several questions, such as:

1. Does your criminal law firm practice solely in criminal law?
2. How long have you been practicing in criminal law?
3. What courts do you appear in?
4. Have you dealt with a matter like mine before?
5. Do you have any good barristers you can recommend for my case?
6. How much will my matter cost?
7. Are you easily contactable?

For your convenience, we’ve provided answers based on our criminal law firm, Chambers Legal:

1. Yes, Chambers Legal practices solely in criminal law. We are criminal defence lawyers, meaning we represent accused persons and do not work for any prosecuting agencies. Because we practice solely in criminal law, we have been able to hone our skills in this area.
2. The lawyers at Chambers Legal have been practicing criminal defence in Perth for more than 20 years combined, with previous experience as law clerks and practical legal trainees prior to becoming lawyers. We do not currently employ any junior or restricted practitioners.
3. We appear in all courts, such as the Magistrates Court, District Court, Supreme Court, and Court of Appeal. We can appear both in the Perth Metropolitan area, anywhere from Joondalup to Mandurah, as well as outside of the Perth Metropolitan area, such as Broome, South Hedland, Karratha, and Busselton. For these courts, we can appear via telephone link, or we can drive or fly out there, depending on what you prefer, what is most cost effective for you, and what the court appearance is for.
4. We deal with a variety of Western Australian and Commonwealth charges each week. There is a very strong chance that we have dealt with a matter like yours before, as we have dealt with thousands of matters over the years. We find that the most common charges we deal with are sex charges, drug charges, assault charges, and burglary, stealing and fraud charges. If you have an unusual or obscure charge, then we can still assist you.
5. Yes, we have many good and very experienced barristers, including Queens Counsel and Senior Counsel, who we can call on to assist on your case if necessary. We ordinarily brief a barrister and work closely with them for your trial or appeal matters. As we work with them on a regular basis, their fees are often very reasonable and within our estimate or fixed fee.
6. We will be able to provide you with either an estimate or fixed fee for your legal costs, which can cover your matter as a whole, or each part of your matter, depending on what is appropriate in your particular matter. There are no hidden fees, and we are open and transparent about our fees in our Retainer and Cost Agreement. We are happy to answer any questions or clarifications you may have.
7. Yes, we are easily contactable. As we are a small firm, it is easy to get in contact with us. The best way to reach us is by email, either directly to your lawyer, or by email to [email protected], which will reach all of our criminal lawyers.You will notice that we send a lot of emails after hours and on the weekend – this is because we are always working on your matters, as they are our priority.

   We always return calls if we miss them and you leave us a voicemail. Our phone number is (08) 9500 8915 or get in touch here. We often take calls outside of normal office hours to assist clients with advice whilst they are at a police station, or if the police are at their house with a search warrant.

If your lawyer ticks all of the above boxes, then you will have found yourself the best criminal lawyer in Perth for you. If you would like to reach out to Chambers Legal for a criminal defence matter, you can get in touch here.

If you have been charged with an assault offence, you should consult with a criminal defence lawyer on whether you may have legal defence to the charge, and what your prospects of success are.

Perhaps you disagree that an assault happened, or you may agree an assault occurred but that you did it in self-defence. Alternatively, you may believe that the police do not have enough evidence for you to be found guilty.

Depending on how serious the assault is, whether there were any injuries, and whether or not you have a criminal record, an assault can range in penalty from a fine to immediate imprisonment. This is why it’s important to see whether you can defend the assault charge.

In this article, we go through some of the most common defences for assault charges and the typical circumstances in which they may apply.

Types of legal defences for an assault charge

Identification

Sometimes the victim, witness or police officers can identify the wrong person, leading to a case of mistaken identity. If you were not even present at the place the assault is alleged to have taken place, you may also wish to put forward an alibi, who can confirm your whereabouts at that particular time. Other times, the description of you given by the victim to police may not match your description, or the CCTV footage may not be able to clearly show the perpetrator.

Consent

The person who was allegedly assaulted may have given you consent or permission to assault them. This consent must be freely given, and cannot be forced or fraudulently obtained. Any example of consent can include contact sports, where there may be actual or implied consent that you can touch, strike or otherwise apply force to that person. The assault must also be proportionate to the contact sport being played, and reasonable in the circumstances. For example, in AFL, you could expect that you would be tackled if you had the ball, but you would not expect to be tackled if the ball was at the other end of the field.

That the conduct alleged was not an assault

An assault can be a strike, touch, or application of force to another person. This assault can be direct or indirect, and is done without the person’s consent. If the conduct alleged does not constitute an assault, then this can be a legal defence.

Self-Defence

An assault can have a legal defence if it was a necessary act to defend yourself or another person from a harmful act. The assault must be a reasonable response in the circumstances. This means that the assault must be proportionate to the danger that you perceived. Therefore, you cannot use excessive force in the circumstances, as this will not provide a defence.

Self-defence is, in our experience, the most commonly used legal defence to an assault.

Provocation

Provocation can be a legal defence if you have been deprived of the power of self-control and act upon it on the sudden and before there is time for your passion to cool. The force used must also be proportionate to the provocation, and cannot be intended to cause death or grievous bodily harm. Therefore, provocation is not an available defence for a charge of grievous bodily harm, or any assault that results in death. Provocation will be an available defence for common assault and assault occasioning bodily harm, including where circumstances of aggravation are alleged.

Accident

A person is not criminally responsible for an assault that happens by accident. Accidental touching can occur in crowded public places such as on public transport or in a crowded shopping mall, where people can often brush past each other unintentionally, without a second thought. In these circumstances, where a strike, touch or application of force has occurred genuinely by accident, this will provide you with a legal defence to assault.

What can a criminal defence lawyer do to defend your assault charge?

If one of these legal defences has been identified by your criminal defence lawyer as being appropriate in your assault case, you can enter a plea of not guilty to your charge of assault.

Your matter will proceed to a trial, where your criminal defence lawyer will put forth your defence.

If the Magistrate is satisfied that you have a valid legal defence, then you will be found not guilty of the assault. In some circumstances your lawyer can ask the court for some or all of your legal fees back. Ask your lawyer if this applies in your case.

In some circumstances, it may be appropriate to put forward a submission to the prosecution to discontinue the charge on the basis that you have a valid legal defence. Ask your lawyer if this is an appropriate pathway for your case.

The legal defences that are available to you will depend on what type of assault you have been charged with. You should speak to your criminal defence lawyer to determine which legal defences may apply in your case, and your prospects of success.

Speak to an assault lawyer in Perth

Chambers Legal regularly advises on and represents clients in defending assault charges. To talk through your options and next best steps, get in touch with our friendly team today.

Centrelink fraud offences are some of the more frequently prosecuted matters by the Commonwealth prosecution (“CDPP”). Centrelink fraud offences are considered very serious and carry a range of penalties, after investigation, including imprisonment/jail time. It is important that you seek advice from an experienced Centrelink fraud lawyer if you receive any notifications that you are being investigated.

Types of conduct that may lead to Centrelink fraud charges

The types of conduct leading to Centrelink fraud charges, and may require you to get a fraud lawyer, include:

• Under-declaring your income or falsely reporting that you are earning no income;
• Applying for a benefit under a false name; and
• Failing to inform Centrelink of your personal circumstances that are relevant to any benefits you receive (for example saying you are single when in receipt of a Single Parent benefit when you are, in fact, in a relationship).

Centrelink may detect offending through thorough investigations and have the power to obtain and cross check information from a variety of sources, including the Australian Tax Office and other government departments such as immigration authorities, banks and your employer.

Most Centrelink fraud offences require the prosecution to prove, beyond reasonable doubt, that what you did was intentional and done knowing that the result would be Centrelink paying you more money than you are entitled to.

In some cases, you might receive a Notice of Overpayment from Centrelink that says you have been paid a benefit that you are not entitled to and you may be asked to repay the money within a certain timeframe. Whether or not you repay the money, Centrelink may still decide to investigate further and refer the matter to the CDPP for prosecution.

You may also be asked to participate in an interview regarding the overpayment for the purpose of Centrelink determining whether you have acted in a fraudulent manner. Prior to participating in an interview of any kind, you should seek advice from a Centrelink Fraud lawyer about the consequences of answering any questions. It is important to note that any information you provide to Centrelink can be used against you in a potential prosecution.

If you are served with paperwork requiring you to attend Court for Centrelink offences, you should contact a Centrelink fraud lawyer immediately to get advice about the charge, whether there are any defences open to you, what the consequences of pleading guilty might be and what you can do to mitigate any sentence.

Centrelink fraud cases in Perth

Whether you have received a Notice of Overpayment or are already facing charges in court, our Centrelink fraud lawyers can help you. Below are just some of the Centrelink fraud cases that our criminal law firm has helped clients with.

Under-declared income

M pleaded guilty to falsely declaring that she had not earned any income and under-declaring what she earned. She received 55 payments that she was not entitled to and 19 payments that she was only partially entitled to. At times, she declared her earnings were under 10 per cent of her actual income. The amount of benefits paid that she was not entitled to was about $40,000. She was sentenced to 5 months imprisonment, after which she would be eligible for release on a good behaviour bond.

Failing to declare income

R pleaded guilty to failing to declare an income while receiving a single parenting payment for about two years. She received just under $30,000 of payments she was not entitled to and had been prosecuted for similar offending previously. The offending was discovered through cross matching data between the ATO and Centrelink. R was sentenced to 4 months imprisonment, with a non-parole period of 2 months, after which she would serve a 12 month good behaviour bond.

Claiming benefits under a false name

J pleaded guilty to claiming benefits under a false name, failing to inform Centrelink of her true personal circumstances about her marital status and living situation. She received about $65,000 of payments over 8 years. She fully repaid the debt prior to sentencing but was sentenced to 9 months imprisonment.

Claiming benefits you are not entitled to

N pleaded guilty to claiming the Single Parent benefit for more than 9 years and receiving about $123,000 in benefits she was not entitled to, and not disclosing significant savings in hidden bank accounts. She was sentenced to 2 years’ imprisonment with a non-parole period of 9 months, to be followed by a good behaviour bond.

If you are looking for Centrelink fraud lawyers in Perth to advise or represent you on related charges, get in touch with our friendly team today.