Defences to Criminal Charges

27 October 2021 in Criminal Law

Being charged with an offence does not guarantee a guilty conviction. Investigative errors or a skewed version of events may potentially lead to a wrongful charge. Successfully raising a defence in such an event can protect an innocent individual.

Necessity

Necessity is the legal defence that the individual broke the law to escape an immediate threat, natural or human. The proof is required that the genuine belief of the necessity of the defendant’s actions and that the actions were proportionate to the threat to the accused.

Duress

This is the defence that the crime committed by the defendant was only due to genuine threat or intimidation and was against the individuals will.

Automatism

Automatism is the concept that the accused individual’s actions were involuntary, as there is a general presumption that an accused individual’s actions are voluntary. It must be proved by the accused that there was a reasonable possibility that their actions were not voluntary. The prosecution will then attempt to prove beyond reasonable doubt that the individual’s actions were voluntary.

Provocation

This defence is only applicable for murder charges and if successful will cause the defendant to be found guilty of manslaughter instead. It requires the defendant to prove that their actions were directly provoked by the victim and that the victim’s actions would have caused any reasonable person to act as the defendant did.

Self Defence

Once the defendant raises self-defence, the onus falls upon the prosecution to prove beyond reasonable doubt that the defendant did not act in self-defence. Self-defence can apply to the defence of oneself, someone else or property.

Honest and reasonable mistake

This defence is only applicable to strict liability offences, such as traffic offences. It is that the individual believed their actions were not illegal, and if they had been aware that they were they would not have acted in that manner.

Claim of right

A claim of right applies to property offences, where the defendant honestly and genuinely believed that they had a legal entitlement to the property.

Mental Illness Defence

This defence requires the defendant to prove on the balance of probabilities that at the time of offending they did not understand the nature and quality of their actions due to their mental illness. This requires that they either did not know what they were doing or knew what they were doing but did not understand that it was wrong. If successful the individual is held in a mental health institution until the Mental Health Review Tribunal determined that it is safe for their release. There is no set maximum time for this process.

Consent

Consent is generally a defence for sexual assault offences and requires that the defendant held an honest and reasonable belief that consent existed and that sufficient steps were taken to determine that this consent existed. In certain circumstances, such as when the victim was substantially intoxicated, this defence can be deemed insufficient.

Intoxication

This defence applies to offences of specific intent, which require that the individual specifically intended to achieve a specific result. Intoxication may limit the ability of the defendant to form this specific intent. If the motive of becoming intoxicated was to aid the individual in completing the offence, it is not deemed a defence.

Substantial impairment of responsibility, or diminished responsibility

The defendant is required to prove that they were at the time of the offence suffering from an abnormality of the mind which was substantially impairing their mental responsibility. This impairment cannot be relied upon if the defendant was under the influence of alcohol or other mind-altering drugs.

If you are able to establish any of the above defences, then you may be found ‘not guilty’ to the offence you have been charged with.

However, it is important to bear in mind that not every defence above applies to every criminal charge. For this reason, it is crucial to get legal advice when it comes to criminal law and defences to criminal charges.

BSM Law Firm has offices in Sydney, Wollongong, Parramatta, and Sutherland. Contact our team for legal advice.