Defences

Criminal law defences


If you’ve been charged with a criminal offence it is essential to know whether there are any defences available to you. However, it is important to remember that is up to the prosecution to prove their case against you beyond reasonable doubt. Whether you have a recognised defence is just one of  many factors that may impact the prosecution’s ability to prove their case against you.

This section contains information about some of the recognised defences available in Victoria. However, it is important to remember that this is not an exhaustive list and that there are many ways that we can defend you. For example:

• The police may not have enough evidence to prove that you committed the offence beyond reasonable doubt;
• The police may have charged you incorrectly;
• The police have acted illegally or improperly; or
• An essential witness for the prosecution may fail to attend court.

In most cases the accused bears the evidentiary burden of raising a defence. Once the defence is raised the evidentiary burden then shifts to the prosecution, who must disprove that defence beyond reasonable doubt.

Asserting a criminal defence can be a complicated process and is best discussed with an experienced criminal lawyer. If you require help understanding how particular defence might apply to you please call on (03) 9550 0880 or click here to request an appointment and discuss your options with our lawyers.

 

POSSIBLE DEFENCES


Click on the defences below or scroll down to read about each.

Accident
Automatism
Consent
Duress
Factual Dispute
Honest and Reasonable Mistake
Impossibility
Intoxication
Necessity
Mental Impairment
Provocation
Self Defence

 

Accident


It is a defence to many charges that the accused did not intend to commit the offence and/or did not act voluntarily.

Where the defence of accident is available it is up to the prosecution to prove that the offence was, in fact, committed both intentionally and voluntarily.

However, the defence of accident is not available in the case of strict liability offences, for which the prosecution does not need to prove that the accused intended to commit the offence. Many traffic offences are strict liability offences. For example, it is not a defence to a charge of speeding that you did not intend to exceed the speed limit.

If you think you have been changed with an offence that you did not intentionally or voluntarily commit call our office now to speak to a lawyer about your options. You can reach us on 1300 616 183 or click here to request an appointment to discuss your matter with one of our lawyers.

 

Automatism


The defence of automatism is available where an accused had no control over his or her actions.
There are 2 types of automatism:
‘Insane Automatism’. Insane Automatism occurs if the accused’s actions are affected by a mental disorder such schizophrenia or dementia.

‘Sane Automatism’.Sane Automatism occurs if the accused’s actions are caused by something other than a mental illness, such as epilepsy.
Unlike the defence of accident, automatism is a defence to strict liability offences. (A strict liability offence is one for which the prosecution does not need to prove that the accused intended to commit the offence.)

To discuss whether the defence of automatism is relevant to your matter call on 1300 616 183 or click here to send us a message.

 

Consent


Consent is commonly invoked as a defence to charges of sexual assault, including rape. It can also be argued in relation to other criminal offences such as theft, trespass, unlawful assault etc.

Whether consent amounts to a defence depends on the type of charge and the particular circumstances of the matter. For example, consent is not a defence to charges of sexual penetration where the complainant is deemed too young to validly consent.

To discuss the defence of consent with one of our lawyers call on 1300 616 183 or click here to send us a message.

 

Duress


The defence of duress applies where the accused committed the offence whilst under an immediate physical threat to do so. Duress is available as a defence to most criminal offences.

If the defence of duress is raised it is up to the Prosecution to prove that the accused was not acting under duress.

If you believe the defence of duress is relevant to your matter call on 1300 616 183 or click here to send us a message.

 

Factual Dispute


Very often an accused will dispute some of the allegations surrounding the offending, or may deny having had any involvement in the crime whatsoever. This is referred to as a factual dispute.

A factual dispute may provide the basis of a full or partial defence.

For example, an accused charged with trafficking and possessing drugs might deny that he or she was trafficking the dug, but accept that they were found in possession. A factual dispute will exist in relation to whether the accused is guilty of trafficking.

If you think you have been changed with an offence that you did not commit call our office now discuss your matter with our lawyers. You can reach us on 1300 616 183 or click here to request an appointment.

 

Honest and Reasonable Mistake


The defence of honest and reasonable mistake is available where an accused had an honest and reasonable belief in a state of affairs which, if true, would mean that their actions did not constitute a criminal offence.

The defence of honest and reasonable mistake is generally available in response to strict liability offences. (A strict liability offence is one for which the prosecution does not need to prove that the accused intended to commit the offence.)

To discuss whether the defence of honest and reasonable mistake can be asserted in your matter call on 1300 616 183 or click here to send us a message.

 

Impossibility


The defence of impossibility applies where it is physically, factually, or legally impossible for the accused person to have committed the crime.

Examples of impossibility are:

Factual impossibility – The accused was physically incapable of committed the offence due to a medical condition or physical disability.

Physical impossibility – The accused can show that they were not present at the time of the offending.

Legal impossibility – The accused is charged with an offence a necessary element of which does not exist. For example, the accused is charged with importing counterfeit money but the money received was not counterfeit.

In some cases of impossibility the accused may still be liable for an attempt charge.

If you think this defence may apply to you call our office now to speak to a lawyer about your options. You can reach us on 1300 616 183 or click here to request an appointment.

 

Intoxication


Intoxication does not give rise to a specific defence or excuse. However, evidence that an accused was under the influence of drugs or alcohol at the time of offending may be used to negate an element of the offence, such as whether the accused acted voluntarily, or to support an element of a defence, such as self-defence.

 

Necessity


The defence of necessity arises where it was necessary to commit the offence so as to avoid some greater harm. For example, necessity may be raised as defence to a speeding charge in circumstances of medical emergency.

If you think this defence may apply to you call our office now to speak to a lawyer about your options. You can reach us on 1300 616 183 or click here to request an appointment.

 

Mental Impairment


The defence of mental impairment is available where an accused was suffering from a mental illness at the time of the offending and either:
• Did not understand what they were doing; or
• Understood what they were doing but did not understand that it was wrong.

Raising the defence of mental impairment can be a complicated process. If you think this defence may apply to you or someone you know call our office now to speak to a lawyer about your options. You can reach us on 1300 616 183 or click here to request an appointment.

 

Provocation


The defence of provocation is no longer available in Victoria.

It can, however, be submitted as a mitigating factor in sentencing. Any such submission should be made with care following discussion with an experienced criminal lawyer.

 

Self-Defence


Self-defence may be raised as a defence if the accused believed, on reasonable grounds, that their actions were necessary for their own or someone else’s protection. Whether an accused’s belief was reasonable will depend on the specific circumstances of the matter.

If you think self defence may apply to you call our office now to speak to us about your options. You can reach us on 1300 616 183 or click here to request an appointment.