Criminal Offences & Defences: General Information

The information provided below is of a general nature and is not legal advice.

There are various WA and Federal statutes that contain offences. The primary Western Australian legislation is the Criminal Code Act 1913 (WA) (referred to hereafter as the Code).

In the Code offences are split into categories. Some of those categories include offences against persons, public order, those injurious to the public in general, or those relating to property and contracts.

Offences against other people are found in Part V of the Code. Common assault, grievous bodily harm, causing bodily harm to another, unlawful wounding, sexual offences, manslaughter and murder are all found in Part V.

Part IV contains offences for indecent acts in public. Some of the offences in this Part include obscene or indecent acts in public, showing offensive material to a child aged under 16 years, and using electronic communication to procure or expose indecent matter to a child under 16.

Part VI contains offences relating to property and contracts such as stealing and burglary.

Who has to prove what?

If you are charged with a criminal offence it is up to the State or the Commonwealth, who are sometimes referred to as the Crown, to prove their case.

The State prosecuting agencies are the WA Police (WAPOL) Prosecuting Branch and for more serious crimes the Office of the Director of Public Prosecutions (ODPP).

The Commonwealth Director of Public Prosecutions (CDPP) is the prosecuting agency for the Commonwealth.

There are also other prosecuting agencies under various acts of Parliament and our criminal lawyers are well versed in all of the relevant legislation.

In most cases you do not have to prove your innocence. You are presumed innocent unless you are later found guilty or if you decide to plead guilty to the charge. The presumption of innocence is complemented with a right to silence of the accused.

It is the prosecution who carry the burden of proof to prove an accused’s guilt. The standard of proof is beyond reasonable doubt.

What is a defence?

The defences contained in the Code excuse or justify conduct so that what occurred was not unlawful. Some of these defences include self-defence, provocation, accident, emergency, mistake of fact, insanity and unwilled acts. It is also important to understand that generally ignorance of the law does not excuse conduct.

However an acquittal may arise by other means too. For example, the prosecution may fail to discharge their onus of proof or evidential burden.

What are aggravating circumstances?

Offences that occur with aggravating circumstances, such as conduct occurring in the presence of a child, or circumstances of racial aggravation, increase the penalty. For example, section 313(1) of the Code provides that a person who unlawfully assaults another in circumstances of aggravation or racial aggravation is liable to imprisonment for 3 years and a fine of $36,000, or alternatively, 18 months imprisonment and a fine of $18,000 without aggravating factors.

What is a simple offence, and what is an indictable offence?

A different statute, the Interpretation Act 1984 (WA), provides that an offence is either simple or indictable. Where an offence is said to be a crime or misdemeanor it is indictable, while those not specified, or undesignated, are simple offences: see sections 67(1) – (2).

In the Magistrates Court decisions are made by magistrates, and therefore do not involve juries. Summary offences, which are typically simple offences, are resolved in the Magistrates Court. Indictable offences generally are determined by a higher court, the District or Supreme Court, and typically involve a jury.