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    Defences to Criminal Charges

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      Defences to Criminal Charges

      There are a number of defences to criminal charges available to an accused person. Just because Police decide to charge you with an offence, does not mean that you will necessarily be found guilty.

      Often there is a failure by police to investigate the offence properly or to only accept one person’s version of the incident. In such cases, you can be found ‘not guilty’ if one of the below defences are successfully raised.


      Defences to Criminal Charges in NSW

      The following are defences to criminal charges in NSW:

      1. Self-defence
      2. Duress
      3. Necessity
      4. Automatism
      5. Claim of right
      6. Honest and reasonable mistake
      7. Provocation
      8. Mental Illness Defence
      9. Consent

      If you are able 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. That is why it is important that you consult an accredited specialist in criminal law who can analyse the case against you and determine if any defences are available.

      The defences are summarised below.


      Self Defence

      Self-defence allows a person to be found ‘not guilty’ of an offence if their actions were committed to protect themselves or another person.

      Self-defence is most often used to defend domestic violence assault charges, common assault and grievous bodily harm assaults.

      Once an accused raises self-defence, the prosecution must prove beyond reasonable doubt that they were not acting in self-defence.



      Duress is a legal concept which refers to a person being forced into committing a crime against their will.

      Duress is a full defence to a number of offences. However, it is not a defence to a charge of murder or manslaughter.

      Duress is a difficult defence to raise as there will usually be an opportunity to contact Police.



      Necessity is a legal defence to a criminal charge.

      If you commit a crime to escape an immediate threat, then you can argue that your actions were necessary, and you may be found ‘not guilty’.

      This is different to duress which is where you were forced to commit a crime, although there can be some overlap.

      Once you have raised necessity, the prosecution must prove beyond reasonable doubt that one (or more) of the above points has not been established.



      Automatism is a legal defence based on an accused person’s actions being involuntary.

      There is a general presumption that an accused person’s actions are voluntary. In order to establish the defence of automatism, an accused must prove that there was a reasonable possibility that their actions were not voluntary.

      If a Judge or Magistrate determines that there is sufficient evidence for automatism to be raised, the prosecution must then prove beyond reasonable doubt that an accused person’s actions were voluntary. If the prosecution cannot do this, then the accused will be found ‘not guilty’.


      Claim of Right

      A claim of right defence applies if you took property (including money) because you held an honest belief that you were legally entitled to it.

      This defence is often used in stealing and fraud cases but can also be a defence to an assault charge if the assault was committed to obtain property.


      Honest and Reasonable Mistake

      This defence can be used if you honestly believed that you were acting lawfully, and if you knew your actions were a crime, you would not have acted in that way.

      You can only use an ‘honest and reasonable mistake’ defence if you a charged with a ‘strict liability’ offence.

      This defence is often used in traffic cases such as drive while disqualified and drive while suspended charges.



      Provocation is a legal defence to a murder charge.

      If the Court finds that you were provoked, you will be found ‘not guilty’ of murder and found guilty of ‘manslaughter’ instead.

      This defence is not available for any other criminal offence.


      Mental Illness Defence

      A mental illness defence requires an accused person to prove on the balance of probabilities (ie. greater than 50%) that at the time of the offending, you could not appreciate the moral wrongfulness of your actions.

      The test applied is the M’Naghten Rules or the M’Naughten Rules. This test has been codified in Section 38 of the Mental Health (Forensic Provisions) Act.

      If you are found ‘not guilty by reason of mental illness’, you can be held in a mental health institution until the Mental Health Review Tribunal find that it is safe to release you. This can be indefinite.



      Consent is a legal defence for sexual assault offences.

      Section 61HE of the Crimes Act 1900 defines consent as, “A person consents to sexual activity if they freely and voluntarily agree to the sexual activity.”

      There are a number of complex rules associated with consent in sexual assault cases. In order to establish you held an honest and reasonable belief that consent existed, you must give evidence that you took steps to ascertain that consent existed.

      There are also circumstances where even if the complainant gives consent, you can still be found guilty. The most common example of this is where the complainant was substantially intoxicated.

      You can view some recent cases where charges were dismissed after one of the above defences was successfully raised by clicking here.

      If you have been charged with an assault offence you should call Astor Legal immediately on (02) 7804 2823 or email us at Our team are experts in defending assault charges and accredited specialists in criminal law.

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