Legal Defences

Impossibility in Criminal Law

The Legal Defence of Impossibility in Victoria

Impossibility arises when it is physically, factually or legally impossible for the accused to have committed the alleged crime. It may be used as a legal defence to any criminal offence in Victoria.

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What is the Legal Defence of Impossibility?

The impossibility defence in criminal law applies if it is physically, factually or legally impossible for the accused to have committed the alleged crime. In Victoria, impossibility may be a valid legal defence to all criminal offences.

Physical impossibility arises in situations where it is physically impossible for the accused to have committed the offence. For example, this might include a situation where the accused has a medical condition that renders them unable to commit the alleged crime.

Factual impossibility arises when the facts presented by the prosecution are incorrect or don’t collectively make sense. This might include a situation where the accused was not present when the crime took place.

Legal impossibility arises when the accused is charged for an act that is not illegal. An example of this might include where a person is charged with handling stolen goods, when in actuality that property was not stolen.

The impossibility defence may also apply in situations where the defendant is under a legal duty to act in a certain way under certain circumstances. If the accused is unaware that they are subject to a legal duty in the circumstances, it is impossible for them to breach their duty and they cannot be held criminally liable for a related offence.

Impossibility in Victorian Criminal Law

In Victoria, section 321N(3) of the Crimes Act 1958 (Vic) states that the defence of ‘impossibility’ cannot be used in certain circumstances. A person may be guilty of attempting to commit an offence if:

  • The person attempts to commit an offence;
  • Certain facts exist that make the commission of the offence attempted impossible; and
  • The person is unaware that those facts exist.

It is important to note that under these circumstances, a person ‘may be guilty’ (as opposed to ‘is guilty’). This suggests that if the actions of the accused only amount to an ‘attempt’, the accused could potentially be liable for an ‘attempt charge’ instead.

The common law in Victoria also states that impossibility may be a mitigating factor in some cases. The court may take into account both the seriousness of the attempted offence and the likelihood of its achievement (R v Peckover [2002]; R v Taouk (1992)).

Proving the Impossibility Defence in Court

The impossibility defence is raised when the accused highlights that the prosecution is unable to prove an element of the offence. This may be because the accused presents evidence that disproves the allegations made by the prosecution; or, the prosecution might fail to prove a fact beyond a reasonable doubt and subsequently fail to prove an element of the offence.

In cases of factual impossibility, the accused may rely on an alibi to prove that they were at a different place at the time the offence occurred. Alibi is a form of evidence and the details of the alibi must be given in writing to the prosecution. This must occur well before the trial date so that the prosecution can make enquiries and verify the details.

If the prosecution fails to disprove the impossibility defence, the accused may still be liable for an attempt charge. Alternatively, the accused may be acquitted of the offence. The exact outcome of the case will depend on the circumstances and the relevance of the impossibility defence.

Obtaining Legal Advice

Impossibility in criminal law can be a difficult defence to prove and requires professional consideration. If you have been charged or are under investigation for allegedly committing a criminal offence, please contact our team at Sher Criminal Lawyers. We will help you achieve the best possible outcome by applying our extensive legal experience and expertise. One of our criminal law specialists will assess whether impossibility or any other defence is relevant to your case before planning a unique and calculated legal strategy. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.

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