Do I Have a Valid Defence?

Despite what the police might say, being charged by the Police with an offence does not mean that you will be found guilty of that offence. It is also true to say that Police are human and do make mistakes. In some domestic violence cases they may be bound to take action against someone even though they would prefer not to and in other cases they may be biased or act illegally.

There are many reasons why you may be found not guilty by the court, some of which include:

• The police don’t have enough evidence to prove that you committed the offence;
• The police have acted illegally or improperly;
• A witness may not attend court;
• The Police have charged you with the wrong offence;
• Where applicable the Police cannot prove that the injuries amount to actual or grievous bodily harm;
• You are able to rely on a recognised defence.

Common Defences to Assault Charges

Self Defence

The law (Section 418 of the Crimes Act 1900) outlines when self defence is available to a person accused of an assault offence. The law 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.

An accused only needs to raise self defence as an issue in their case. The police then have to prove that you were not acting in self defence beyond a reasonable doubt.

The prosecution must show either:

• That you did not genuinely believe that it was necessary to act as you did in your own defence or;
• That what you did was not a reasonable response to the danger, as you perceived it to be.

Lawful Chastisement (Correcting a child)

The NSW Crimes Act sets out when a person who has been charged with a criminal offence upon a child can raise a defence of lawful correction. To rely on the defence you have to prove:

• The force used on the child was for punishment of the child;
• The force was applied by the parent or a person acting for a parent of the child;
• The force was reasonable having regard to the physical and mental characteristics of the child, what the child did or other circumstances.

The force will not be reasonable if:

• It is applied to the neck or head of the child unless it was trivial or negligible.
• The force is likely to cause harm to a child that last for more than a short period.

Intoxication

The defence of Intoxication only applies to offences of specific intent. The offence of Maliciously inflict grievous bodily harm with intent is a specific intent offence. The other more common types of assault (common, causing actual bodily harm, assault police) are not and the defence does not therefore apply.

The court can take into account the degree of your intoxication when determining whether the police have proved that you had formed the intent to bring about a specific result.

Section 428C of the NSW Crimes Act states:

• (1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent.
• (2) However, such evidence 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.

Common Defences to Sexual Assault Charges

There are two common defences that almost all sexual assault charges are fought.  They are:

• I didn’t do it and there is normally some motive for the complainant to lie; or
• I admit having sex with the complainant but the complainant consented.

Lack of Consent (Sexual Assault Charges)

An offender charged with sexual assault must know that the complainant is not consenting or they are reckless as to that consent.  An offender is reckless where they have sexual intercourse not caring whether the complainant consents or not.  Therefore, it is a defence to sexual assault where the offender believes that the complainant consents.