Guilty or Not (Part 2)

This article will discuss part two of deciding whether to plead guilty or not guilty. Just a quick side note, forget the word innocent. You are not known as being “innocent”, you are “not guilty”. There is a difference, and the word is hardly used in courtrooms any more.

Each offence has elements. They represent a checklist from which you can ascertain if your act constitutes the offence.

To use an example, we will look at the offence of Aggravated Sexual Assault. I’m sorry to burden the fictitious “you” with such a heinous crime, but the elements are interesting.

The elements are

  • The accused had sexual intercourse with the victim
  • Which occurred without consent of the victim
  • The accused knew or was reckless to the lack of consent
  • The intercourse occurred in a circumstance of aggravation.

This is a serious offence carrying a penalty of 20 years. The Crimes Act 1900 (NSW) provides the definitions for terms used in such an offence, and also provides case law for the interpretation of same.

Sexual intercourse extends beyond what you would consider being such, and extends to any body part with penetration to any extent.

Consent is not quite so obvious. Consent is vitiated in many circumstances. It is not enough to say “I didn’t ask her, but I didn’t worry about it”. It has been found that if an accused does not even think about consent, treating it as irrelevant, this could amount to lack of consent. As you can imagine, consent is an often argued issue.

A circumstance of aggravation can be the age of the victim, the malicious harm caused to the victim or person nearby, the offender is in company, or the victim suffers from a disability.

This is obviously a very brief overview of a topic which has had volumes written about it, but it will give you an indication of the “checklist” of elements to consider when deciding if you are guilty of the offence.

You are in a position where you satisfy all the elements of the offence, but you have an excuse, some sort of factor which reduces the criminal liability of the act. In our BRD | BOP article we will discuss defences, and what they do.

If you have any questions you would like answered either confidentially or via this medium, please email us at office@mjolegal.com.au

This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.

On February 16th, 2011, posted in: Know the Law by
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