Most criminal cases are decided before the hearing day. Before we advise you to plead guilty or to contest, we work through the prosecution case point by point. This is what that involves.
1. The charge itself
We start with the charge sheet. Is the right offence charged? Do the particulars, such as the date, place and conduct alleged, match the evidence? Is the charge within time? Is it duplicitous, or does it rely on a provision that does not fit the facts? Defects here can lead to a charge being amended, withdrawn or struck out.
2. Every element of the offence
Each offence has elements the prosecution must prove beyond reasonable doubt, including any mental element such as intent or recklessness. We list each element and the evidence said to prove it. Where an element rests on one witness, an assumption or an inference, that is where the case is weakest.
3. Disclosure: getting the whole brief
Under the Criminal Procedure Act 2009 (Vic), you are entitled to a preliminary brief and can request the full brief, and the prosecution has an ongoing duty to disclose relevant material, including material that may help you. We request what is missing: body-worn and CCTV footage, interview recordings, 000 calls, notes, calibration and certificate records in drink and drug driving matters, and phone extractions.
4. Admissibility under the Evidence Act 2008 (Vic)
- Admissions. Whether an admission was made in circumstances that make it unreliable (s 85), was influenced by violent, oppressive or threatening conduct (s 84), or should be excluded as unfair (s 90).
- Improperly or illegally obtained evidence (s 138). Searches, seizures, directions and interviews that did not follow the law, and whether the court should exclude the result.
- Hearsay and opinion. Statements that repeat what someone else said, and opinions offered by people who are not qualified to give them.
- Identification evidence. How a witness came to identify you, and whether proper procedures were followed.
- Tendency and coincidence evidence. Attempts to use other conduct to suggest guilt, which must meet strict notice and admissibility requirements.
- Unfair prejudice (ss 135, 137). Evidence whose probative value is outweighed by the danger of unfair prejudice to you.
5. Police powers and the interview
We check how police exercised their powers: the basis for any stop, search, arrest or direction, and the safeguards that apply when you are questioned in custody, including the caution and your right to communicate with a lawyer. A failure here can affect what evidence the court will hear.
6. Witnesses and the other side of the story
We look for inconsistencies between statements, between statements and footage, and between what is alleged and what is physically possible. Where it helps, we identify witnesses, records or expert evidence that support your account.
7. Negotiation
The result of this work is a clear view of the strengths and weaknesses of the case. That is what we take to the prosecution, often at a case conference, to seek withdrawal of charges, amendment of the summary of facts, a lesser charge, or diversion where you are eligible.
8. Your decision: plead or contest
Only then do we advise you whether to plead guilty or contest, and we quote a fixed fee for each option so you can weigh the cost against what is at stake. If you plead guilty, the same work shapes the plea: a fair summary of facts, persuasive material and a realistic sentencing submission.
This page describes our general approach. Every case is different, and nothing here is a promise about the outcome of your matter.