Do you have a question about criminal law offences?


Type of defences to criminal charges

Defenses operate to justify the accused’s actions and therefore either remove or reduce, as a partial defence, their criminal culpability.

Defence is of two broad types:

  • complete defence
  • and partial defence

Complete defence if proven results in acquittal

Partial defences only apply to the crime of murder, and do not result in acquittal; rather, the accused is convicted of the lesser charge of manslaughter. Partial defences do not apply to lesser charges such as assault. However, if an assault is provoked, the provocation will only be a mitigating factor. A mitigating factor, unlike a defence, does not result to an acquittal but only to lessen the penalty imposed.

Being charged of a criminal offence does not automatically mean you will be convicted. The accused may avail of any of the defences under the laws of New South Wales. Most common defences are: mental illness, self defence, necessity, duress and consent.

  • Mental Illness

The burden of proving defence is on the defendant. The defendant must prove that he did not understand ‘the nature and quality’ of their act due to their diseased mind. Accordingly, the defence must prove that the defendant did not know what they were doing and/or that the defendant knew what they were doing but didn’t understand that it was wrong.

In any case, it is often difficult for a defendant to prove the requisite level of mental illness to satisfy this test. This defence is ascertained by the court depending on the circumstances of each case.

If proven, this defence results in the accused being acquitted. This is because the law does not hold people who suffer severe mental illness responsible for their actions. However, the person will not be allowed to go free. Instead he or she is held in a mental institution. The length of the defendant’s stay in the mental institution is indefinite and could well be much longer than the sentence they might have received if they had been proven guilty of the crime.

  • Self Defence

Raising self defence as a defence, when accepted by the court, may result to an acquittal. It is as if the accused has no criminal responsibility in the eyes of the law.

The accused will only have to raise the defence and the burden in proving that the accused did not do the crime in self defence lies with the prosecution.

Section 418 of the Crimes Act 1900 provides that self defence is available when the person carries out an act which he believe is necessary to:

  • 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.
  • Necessity

The burden of proving the defence is on the defendant. The defendant must prove that the crime was committed only to prevent the commission of a more serious crime. The defendant must genuinely believe that his actions were necessary to prevent a more serious crime and the act committed must not be out of proportion to the harm that they were trying to avoid occurring.

Only operates when other defences do not apply.

  • Duress

The burden of proving the presence of duress is on the defendant. Meaning, the defendant must prove that he or she committed the crime against his or her free will and did so because of a genuine threat or intimidation. For example, you were threatened to commit the crime because your own or someone else’s life was in peril.

Note that this defence cannot apply to murder or manslaughter.

  • Consent

The burden of proving consent is on the defendant. This defence is most commonly raised in sexual assault cases as assault implies an absence of consent. In sexual assault, the defendant must prove that the victim consented to sexual intercourse so he could obtain an acquittal.

However, this defence cannot be raised in murder or the infliction of grievous bodily harm as the victim is presumed not to consent to being killed or being physically injured.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

Ask a Question - It Is Free