How do you go from an “unwinnable” criminal charge to winning, and having the Police pay your costs?
It seems so simple, but people often forget that the success of a criminal prosecution depends on the evidence presented by the prosecution, and the prosecution have to prove each element of the offence beyond a reasonable doubt. Most crimes have several elements. All of them must be proven, and all beyond a reasonable doubt. It is not enough for the prosecution just to prove most of them, or all of them on the balance of probabilities (think 51% as opposed to 100% for beyond reasonable doubt). If the prosecution fails to do that, then the Defendant has a complete defence.
We have had several cases this year where large costs orders were made in favour of our client. In all of these cases, the Police facts sheet looked damning and unbeatable. In some of these cases even, there was CCTV clearly depicting the perpetrator engaging in criminal or unlawful activity. However, in all cases, there was insufficient evidence to make out the charge, because evidence as to one element was lacking.
Let’s take “demanding property in company with menaces with intent to steal”, for example. There might be CCTV of an accused demanding money from someone, with an accomplice, and even audio and / or visual footage of them threatening that person. A lay person or the client themselves may think that’s the end of it, but there is another element: intent to steal. Assume the CCTV also showed the accused screaming ‘You owe Robbo his super!’, for example. In that case, the Police case itself is contrary to the charge, because it indicates that the accused was chasing the payment to a third party of a legal employment benefit. In this example, the Police must have known that was the case, given it was their evidence, and should have known the charge would fail. The legislation provides that costs may be awarded when the proceedings were initiated without reasonable cause, which there was the case. The client had incurred the costs of criminal lawyers to defend them, when there was never any chance that the prosecution would have succeeded (if those lawyers were acting). The Court would award costs… See what we mean?
It can pay to plead not guilty and see the brief of evidence for serious charges. The brief itself can be a complete defence to what may otherwise seem impossible. The 25% sentence discount for early guilty pleas can still be taken advantage of if facts are negotiated in an appropriate case. Speak to us before giving up.
Please note: this is not legal advice to be relied upon, as circumstances in each case will be different.
