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How do the Police Prove a Charge?


In my previous blog titled ‘Guilty until proven Innocent?’, I highlighted one of the most important legal principles in criminal law: Guilt must be proven beyond a reasonable doubt. In this blog, I will explore how criminal responsibility is determined, and what exactly do the prosecution need to prove in order to convict an accused.

When someone is charged with a criminal offence, the offence will be comprised of a number of ‘elements’. Elements are what the prosecution need to prove in order to secure a conviction. If the prosecution fails to prove an element of the charge beyond a reasonable doubt, the accused must be acquitted.

In criminal matters, there will always be a ‘conduct’ element. This is an element which will relate to what the accused is said to have physically done (the act) or what the accused has not done (the omission). An example of this can be seen in a case where someone is accused of stealing a loaf of bread. The conduct element would be the act of taking the bread from the shop.

Another element which the prosecution may be required to prove beyond a reasonable doubt, is one commonly referred to as the ‘mental’ element. This element will relate to an accused’s intention at the time of the alleged offence. Whilst this element isn’t required for every charge under WA legislation, it is an important element in many cases. An example of this can be seen using the example referred to above involving the loaf of bread. In that case, it is likely that the prosecution will need to prove that not only did the accused take the bread (the act), but that the accused intended to permanently deprive the owner of the bread (the mental element).

The existence of an intention in an offence can often mean that a more serious charge is alleged, and that a higher maximum penalty is available. An example of this can be seen when considering homicide matters, where not all unlawful killings are categorised the same way. In cases which involve an allegation of an unlawful killing, a charge or either murder or manslaughter will often be preferred. If an accused is facing a murder charge the prosecution are often required to prove that the accused either intended to cause the death, or that the accused intended to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of another. This is not the case for manslaughter. Therefore, it is not uncommon in murder matters where the prosecution has satisfied the jury of all of the elements beyond reasonable doubt, except for the intention element, that the accused is acquitted of murder but convicted of manslaughter.

There are many other factors to consider when it comes to proving an act or omission. Even if proven, the accused can raise a positive defence which may result in:

  1. the charge being discontinued or downgraded before trial;
  2. the accused being found guilty of a lesser charge; or
  3. the accused being acquitted of the charge entirely.

These defences will be discussed in detail in another blog.

If you or someone you know needs assistance in this area or would like to know more, contact the Criminal Team at Butlers.


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Monday, 27 June 2022