The first task is to understand what the case against X is. The charge should be critically examined to see if it is legally competent and that adequate details have been provided to enable a proper defence to be prepared.
The indictment, summons or charge must contain such details of the State case as are reasonably necessary to inform X of the nature of the charge. It must set out:
- the alleged time and place of the commission of the offence;
- the person, if any, against whom it was committed;
- the property, if any, in respect of which the offence was committed. - s 146 CPEA.
In theft cases it is permissible for the State to allege that the theft took place between certain dates: s 147 CPEA and, in cases of theft of money or property entrusted into the custody of X, it is permissible to allege a general deficiency: s 148 CPEA. Where the theft is of bank notes and coins it is not necessary for the State to specify the particular bank notes or coins alleged to have been stolen s 149 CPEA. In respect of crimes of dishonesty generally, the charge does not have to allege intention to defraud a specific person: s 157 CPEA.
There are special provisions relating to the type of detail required in respect of a number of particular crimes- perjury: s 150 CPEA); homicide: s 154 CPEA; forgery: s 155 CPEA; and an offence relating to insolvency: s 156 CPEA.
There are special provisions relating to charging companies: 152 CPEA, jointly charging several X for the same offence: s 158 CPEA, and joint trials of persons charged with different offences: s 159 CPEA).
Finally there are special provisions in s 151 CPEA relating to what may be alleged regarding ownership or possession of various types of property such as testamentary instruments, property hired to offender, State property and corporate property.
With all charges, other than those with which the defence lawyer is thoroughly familiar, the defence lawyer must do research in order to find out what are the essential ingredients of the criminal charge levelled against his client. If the criminal offence is a statutory offence, he should study the enactment in which the criminal offence is contained. He must carefully analyse the relevant section to ascertain the essential elements of the offence. In particular, he should find out whether the State is required to prove mens rea and, if it is, whether it must prove intention or merely negligence. Sometimes the statutory offence will be a strict liability offence, in which case proof of neither intention nor negligence will be required; all the State will have to prove is the actus reus. In order to determine what the essential ingredients are, the statutory criminal offence must be examined in the context of the entire enactment in question.
It is important to study the entire enactment for several other reasons. The penalty for the offence, provisions relating to methods of proof of the offence, and presumptions against X may sometimes be contained in sections other than that which creates the offence. Usually presumptions are placed at the end of the section dealing with the offence, whereas methods of proof come at the end of the statute as they may relate to various of the offences found in the statute