Legal Defences

THINGS YOU NEED TO KNOW:

1. A number of legal defences against convictions of criminal offences are available in NSW.
2. Legal defences are used to justify the actions of an individual who has been accused or charged with a criminal offence.
3. Legal defences are sourced from common law, with some now incorporated into legislation.
4. Some legal defences apply to specific criminal offences, whilst other legal defences apply more broadly.
5. Criminal Lawyers Group are the leading criminal law firm in NSW for using legal defences to obtain not guilty verdicts and the withdrawal of charges for clients charged with criminal offences.

Criminal Lawyers Group specialise in strategic approaches through legal defences to successful defend you against your criminal charges.

Our Criminal Lawyers will always provide effective legal representation that evaluates case-specific circumstances, identifies applicable defences, and presents a compelling case in court. Through the exceptional knowledge of these defences, our award-winning criminal lawyers strive to secure the best outcomes for defendants, ensuring compelling defences against criminal charges under the NSW legal system.

WHAT IS A LEGAL DEFENCE?

Legal defences are defences available to defend against criminal accusations and charges by justifying the actions of an individual through defences sourced from common law and legislation.

This article explores different types of legal defences available.

If you have been accused or charged with a criminal offence, contact our expert criminal lawyers immediately so that we may analyse which defences apply to your situation.

AUTOMATISM

The defence of automatism is a complete defence that can be applied where the act or omission for which the accused is charged was involuntary due to factors beyond their control.

The case of R v Falconer (1990) establishes a general presumption that an accused’s actions are voluntary unless the defence raise the defence of automatism to a reasonable possibility. If a Judge or Magistrate determines that there is sufficient evidence for the defence to be raised, the Crown must prove beyond reasonable doubt that the relevant act was a willed and voluntary one, that is, was not the result of a condition of automatism.

Criminal Lawyers Group have successfully utilised the defence of automatism in cases where it was established the accused had been sleepwalking, had post-traumatic loss of control due to head injury, had done the act in a state of temporary or transient dissociation following severe emotional shock or psychological trauma, had done the act under the influence of an anaesthetic and done the act due to epilepsy.

The defence of automatism does not apply if the automatism was self-induced or from a mental illness, although in such circumstances other defences may apply.

CLAIM OF RIGHT

You will have a claim of right defence where you possessed a genuine belief that you, or someone you were acting on behalf of, had a bona fide (good faith) claim of right to certain money or property. The claim must be to a specific amount of money or piece of property, and not just a broad undefined moral entitlement. The actions undertaken by the accused must be consistent with their belief to their legal entitlement to the money or property.

The offences that a claim of right defence applies to include, but is not limited to, Larceny, Break, enter and steal and Fraud.

If you provide sufficient evidence to support the defence of claim of right, the burden of proof rests on the prosecution to prove beyond a reasonable doubt that the claim of right defence does not apply.

CONSENT

The defence of consent is commonly used in matters of sexual assault. Section 61HI of the Crimes Act 1900 (NSW) defines a person as having consented to sexual activity if, at the time of the sexual activity, the person freely and voluntarily agrees to the sexual activity.

The defence of consent may be relied upon as a defence to a sexual assault charge if the alleged victim either consented to the sexual act or the accused did not know that the alleged victim did not consent and any belief that the accused person had that the alleged victim consented to the sexual activity was reasonable in the circumstances and the accused was not reckless as to whether the alleged victim consented to the sexual activity.

The defence of consent can be used in an assault charge, but does not apply in cases where the alleged victim suffered serious injury, as a person cannot consent to serious harm.

DURESS

Duress is a complete defence and refers to the defence that you committed the criminal offence due to a threat of death or serious harm against you or your family, with the threat being so severe that a person of ordinary firmness would be unable to resist and you could not have rendered the threat ineffective.

Section 10 of the Criminal Code Act 1995 (Cth) establishes the defence of duress for all commonwealth offences, which includes but is not limited to drug importation and internet offences. This legislation defines the defence as applying if the person carrying out the conduct reasonably believes that:

• A threat has been made that will be carried out unless an offence is committed; and
• There is no reasonable way that the threat can be rendered ineffective; and
• The conduct is a reasonable response to the threat.

The defence of duress under Section 10 of the Criminal Code Act 1995 (Cth) does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.

Duress is not a defence to the criminal offences of murder, attempted murder and some forms of treason.

EXTREME PROVOCATION

Extreme provocation is a partial defence for murder enshrined in Section 23 of the Crimes Act 1900 (NSW) and establishes that an accused’s culpability for murder is reduced if they were influenced by extreme provocation. The legislation states that if, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.

The defence of extreme provocation applies only if:

• The act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and
• The conduct of the deceased was a serious indictable offence, and
• The conduct of the deceased caused the accused to lose self-control, and
• The conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

Conduct of the deceased does not constitute extreme provocation if the conduct was only a non-violent sexual advance to the accused, or the accused incited the conduct in order to provide an excuse to use violence against the deceased.

HONEST AND REASONABLE MISTAKE OF FACT

An honest and reasonable mistake of fact occurs where you commit an offence under an honest but mistaken belief as to facts, which, if were true, would mean no criminal offence was committed. The belief must be honest and reasonable and does not apply if the mistake was a mistake of law.

The defence of honest and reasonable mistake is available only for strict liability offences, which are offences that do not require the prosecution to prove intention, knowledge or recklessness.

INTOXICATION

Intoxication is not a complete defence except in very limited circumstances. It is a defence that can be used to argue the absence of an intention by virtue of intoxication by drugs or alcohol and can therefore be successful in defending against criminal offences which require intent.

Intoxication can not be used as a defence for criminal offences which do not require a requisite mental state (mens rea) and only require proof of a voluntary act (actus reus).

Section 428C of the Crimes Act 1900 (NSW), in establishing the legal defence of intoxication in legislation, states that evidence of intoxication cannot be taken into account if the person had resolved before becoming intoxicated to do the relevant conduct, or became intoxicated in order to strengthen his or her resolve to do the relevant conduct.

In matters where evidence of intoxication has resulted in the accused being acquitted of murder, the defence of self-induced intoxication cannot be taken into account in determining whether the accused has the requisite mens rea for the criminal offence of manslaughter.

MENTAL ILLNESS

A mental illness defence, also referred to an insanity defence, is a full defence to all criminal offences and originates from the 1843 M’Naghten case.

The defence is enshrined in Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which enables that if a person is found to have been mentally ill so as to not be responsible for the act or omission of which they are charged, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

If this special verdict is successful, the Court may still order that the person be remanded in custody and detained in such place and in such manner as the Court thinks fit until released by due process of law.

NECESSITY

The defence of necessity may be used to defend against a charge of a criminal offence in circumstances where the criminal offence must have been done in order to avoid certain consequences which would have inflicted irreparable evil upon you or upon others whom you were bound to protect.

There must be a genuine belief of necessity and the act must not be disproportionate to the harm that you were seeking to prevent happening.

An example of the defence of necessity is speeding to get a seriously injured family member to hospital so that they do not die.

The burden of proof for the defence of necessity is on the accused to establish it on the balance of probabilities.

SELF-DEFENCE

The legal defence of self-defence is enshrined in Section 418 of the Crimes Act 1900 (NSW), which prescribes that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

The legislation states that a person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

• To defend himself or herself or another person, or
• To prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
• To protect property from unlawful taking, destruction, damage or interference, or
• To prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.

SUBSTANTIAL IMPAIRMENT BY ABNORMALITY OF MIND

The legal defence of substantial impairment by abnormality of mind is a partial defence to the criminal offence of murder and is enshrined in Section 23A of the Crimes Act 1900 (NSW), which states that:

A person who would otherwise be guilty of murder is not to be convicted of murder if—

• At the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by a mental health impairment or a cognitive impairment, and
• The impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

Self-induced intoxication does not give rise to the defence of substantial impairment by abnormality of mind.

CONTACT CRIMINAL LAWYERS GROUP NOW

This page contains general information and is not to be taken as legal advice.

For quality and award-winning legal advice, contact our expert criminal lawyers at Criminal Lawyers Group immediately for a free consultation so that we may analyse your case and secure the best possible outcome for you.