What is the Legal Defence of Incorrect Charges?
The incorrect charges defence applies when the accused:
Where incorrect charges have been laid, running this defence may result in the incorrect charge being withdrawn and/or alternative charges being pursued by the prosecution. The alternative charges may be less serious than the original charge.
If a person is charged with a crime, but the prosecution cannot prove all the elements of that particular offence, this may be an example of an incorrect charge. For instance, a person is charged with aggravated assault instead of common assault because it is alleged that the accused kicked the victim. If there is, in fact, no evidence that the accused kicked the victim, this may be an incorrect charge.
The incorrect charge defence may be particularly relevant when sex offences are alleged to have been committed years ago. Criminal legislation in regard to sexual offences has gone through numerous changes over the course of years. This means that the prosecution sometimes lay incorrect charges that were not applicable at the time of the alleged offence.
Proving an Incorrect Charge in Court
If incorrect charges are laid, the defence may be best served by waiting to inform the prosecution. The earlier that the prosecution becomes aware of incorrect charges, the longer they have to correct their mistake and lay alternative charges.
Should the prosecution proceed unknowingly to a hearing or trial with incorrect charges, they may not become aware of their mistake until the closing of evidence. In such circumstances, the prosecution must immediately withdraw the charge. However, this may result in the police prosecution laying and pursuing alternative charges instead.