Legal Defences

Charged With The Wrong Offence

The Legal Defence of Incorrect Charges in Victoria

If a person is charged with a crime that doesn’t reflect the true circumstances of the alleged offending, this may be considered an incorrect charge. Similarly, if a person is charged under a provision that no longer exists, this may also be considered an incorrect charge.

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Wrong Charge On Indictment?

Have you been charged with the wrong offence or had the wrong charge on indictment? The incorrect charges defence applies when the accused:

Is charged with a crime that doesn’t reflect the true circumstances of the alleged offending; or
Is charged under a provision that no longer exists because it has been abolished or amended. 

Where incorrect charges have been laid, running this defence may result in the incorrect charge being withdrawn and/or alternative charges being pursued by the prosecution.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.

Obtaining Legal Advice

If you or a loved one has been charged or is 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 incorrect charges 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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Charged with a Criminal Offence or Under Investigation?

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