Complexity of Matters

Commonwealth criminal law matters involve a greater degree of complexity than State criminal law matters, due to a myriad of factors, some of which include a defence lawyer being required to: 

• consider whether the offence charged retains a sufficient constitutional nexus (if not, a prosecution is likely to be considered ultra vires (i.e., outside power);

• consider multiple fault and physical elements (State offences often only require demonstrating physical elements to secure a conviction unless the offending provision requires a specific mental component);  

• give greater consideration as to whether evidentiary material relied on by the prosecution was obtained on a lawful basis given the more extensive provisions related to evidential collection in the Commonwealth regulatory framework and the wider basis on which material could be obtained (e.g., a controlled operation, under Crimes Act 1914 warrants etc.); and 

• more frequently engage with the prosecution to ensure full disclosure, given that often multiple Commonwealth agencies are involved in an investigation which leads to difficulties in securing all material that is relevant to a prosecution. 

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Corruption and Crime Commission and National Anti-Corruption Commission investigations also involve a greater degree of complexity than State criminal law matters, due to: 

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• the secrecy provisions of the relevant regulatory frameworks creating difficulties (e.g., in obtaining material to be able to adequately represent a person or organisation); 

• the difficulty involved in ascertaining why a person is required to appear or produce documents as a Commission of Inquiry does not have any disclosure obligations to a witness appearing before it; and 

• the extensive information gathering and warrant powers available to such Commissions means that often significant material has been obtained to further an investigation, prior to a person being requested to appear or produce documents. 

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State criminal law matters are more complex than traffic matters due to the need for more evidentiary material to be considered by a defence lawyer, and if the matter is indictable, ordinarily involves a more lengthy Court process as the matter will need to be committed from the Magistrate's Court to a superior Court (i.e, the District or Supreme Courts). 

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Traffic law matters are generally the least complex criminal law matters.