Do I have a valid defence? Overview of Defences in New South Wales

Just because a person is charged with a criminal offence does not mean that they are guilty nor that they will be found guilty of that offence. 

How Offences Are Proven:

In order for a person to be found guilty of any offence, the Prosecution must prove every element of the offence to the standard of beyond a reasonable doubt. 

The ‘elements’ of an offence are the ingredients that make up the offence. All offences contain physical elements (such as driving a motor vehicle, hitting or slapping another person, or being in possession of a drug) and mental or ‘fault’ elements (such as intent, recklessness or knowledge). When the Prosecution is unable to prove each and every element of the offence to the standard of beyond a reasonable doubt, the person charged should be found not guilty.

Even if the Prosecution can satisfy all the elements of an offence to the standard of beyond reasonable doubt, the person charged may raise a defence (such as self-defence, necessity, duress) to the charge which, if accepted, would mean they are not guilty of the offence. 

Types of Defences:

Defences can be categorised depending on the circumstances of the matter and what the Defendant is relying on in defending the charges:

1 – Factual Defence – for example:

1. 1. The Defendant having an ‘alibi’ being that they were not present when the offence occurred and therefore could not have committed the offence. 
   2. That the Court cannot be satisfied with the identity of the offender. For example, the only evidence that suggests the Defendant was present at the scene of the offence is based on a grainy CCTV photograph. 
   3. That the Court cannot be satisfied with the version of events beyond a reasonable doubt due to inconsistent evidence from witnesses about what happened. 

2 – Elemental Defence – where an element of the offence is missing and cannot be established beyond reasonable doubt. For example:

1. 1. With an offence of ‘Use Carriage Service to Menace / Harass or Offend’ that the messages sent are not menacing, harassing or offensive.
   2. With an offence of ‘Intimidation’ that the Defendant did not intend to cause the victim fear of mental or physical harm. 
   3. With an offence of ‘Contravene Apprehended Domestic Violence Order’ that the Defendant did not “knowingly” breach the order due to not being served with a copy of the Apprehended Violence Order.
   4. With an offence of ‘Assault Causing Grievous Bodily Harm’ that the injury does not amount to a permanent or serious disfiguring of the person.

3 – Legal Defence – where the Defendant relies on a complete defence which means they are not guilty of the offence charged. Including:

1. 1. Self-Defence,
   2. Claim of Right,
   3. Mental Illness,
   4. Necessity, 
   5. Duress, 
   6. Lawful Chastisement, 
   7. Consent,
   8. Honest and Reasonable Mistake of Fact. 

If you have been charged with a criminal offence and are considering defending the matter, it is crucial that you get legal advice. We recommend speaking to one of our experienced lawyers about your matter.