If you are charged with a Criminal Offence in Sydney, each charge will have elements that the prosecution must prove in order to find you guilty of the offence. These “elements” or “ingredients” must also be proven beyond reasonable doubt.

1. CRIMINAL LAW DEFENCES
If you are charged with a Criminal Offence in Sydney, each charge
will have elements that the prosecution must prove in order to
find you guilty of the offence. These “elements” or “ingredients”
must also be proven beyond reasonable doubt.
Our Sydney Criminal Lawyers can advise you pretty quickly if you
have a defence at law. You should still seek expert legal advice as
to whether you may have a valid defence-at-law from the best
Criminal Lawyers in Sydney.
At National Criminal Lawyers we are experts at explaining to you
the most commonly used legal defences in New South Wales
together with an assessment of the prospects of their success.
The purpose of this article as such is to discuss what defences are
available at law in NSW.
AUTOMATISM
For an accused to be convicted of a crime, his or her actions
(giving rise to the unlawful conduct) must be voluntary.
Automatism is a state where the muscles act without any control
by the mind, or with a lack of consciousness. One may suddenly
fall ill, into a dream-like state because of post-traumatic stress, or
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2. even be "attacked by a swarm of bees" and go into an automatic
spell. However, to be classed as an "automaton" there must have
been a total destruction of voluntary control, which does not
include a partial loss of consciousness as the result of say driving
for too long and being tired. Where the onset of loss of bodily
control was blameworthy, e.g., the result of voluntary drug use, it
may be a defence only to certain specific intent crimes.
Automatism is a rarely used criminal defence that relates to the
mental state of the defendant.
Where an act (otherwise criminal) is done in a state of
automatism, that is, without control or direction of the will of [the
accused] over what is being done, then no crime is committed and
[the accused] must be found “not guilty”.
Our Criminal Solicitors in Sydney have had proven track record of
establishing defences of automatism.
CLAIM OF RIGHT
Section 9.5 of the schedule of the Criminal Code Act 1995 (Cth)
sets out the requirements of this defence, stating that if at the
time of the offence a defendant was under a mistaken belief that a
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3. proprietary or possessory right existed over property, they
cannot be held criminally responsible.
Essentially the existence of any such proprietary or possessory
right negates the fault element for any physical element of the
offence. The section also states that a defendant is not criminally
responsible for any other offence necessarily arising out of the
exercise of the mistaken proprietary or possessory right.
It should be noted that this section does not negate criminal
responsibility for any offence involving the use of force against a
person. Also, the presence of fraud during the claiming of the legal
entitlement would also invalidate any claim of right, due to the
lack of the requisite element of good faith.
DURESS
A defendant may claim that they acted under duress if their
actions were motivated by a serious threat against them or their
family, and serious injury or death would have resulted if they did
not perform the criminal act.
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4. One who is "under duress" is forced into the unlawful act. The
duress must involve the threat of imminent peril of death or
serious injury, operating on the defendant's mind and
overbearing his will. Threats to third persons may qualify.
For duress to succeed the defendant must reasonably believe the
threat.
The accused must also not have foregone some safe avenue of
escape. The duress must have been an order to do something
specific, so that one cannot be threatened with harm to repay
money and then choose to rob say a post office or convenience
store to repay it.If one puts themselves in a position where they
could be threatened duress may also not be an available defence.
In order to be eligible for the duress defence, the circumstances
must have been so severe for the defendant that their will was in
effect constrained completely, forcing them to be a mere innocent
instrument of the crime.
Some of the requirements for establishing a defence of duress
were set out by Chief Justice Hunt at CL in Bassett (1994), an
unreported Supreme Court case, including:
•An actual threat being made;
•The threat being of death or serious injury to the defendant
or their family;
•The threat being of such gravity that a person of ordinary
firmness of mind and will, and of the same sex and maturity
as the defendant would have yielded to the threat in the
same way they did;
•That the defendant acted the way they did due to the threat
which was still acting on their mind at the time of the
criminal act; and/or
•For such a threat to be effective it must be continuing and
be perceived to be continuing. Such a threat will therefore
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5. not be continuing and effective if the accused had a
reasonable opportunity to render the threat ineffective.
The burden of proof for establishing duress rests on the
defendant, but once this burden is satisfied then the prosecution
must prove that the defendant acted voluntarily beyond any
reasonable doubt. However, it should be noted that duress is a
defence to all criminal offences except for murder and treason.
Duress is however a complete defence, meaning once it is
established by the defendant and not negated beyond reasonable
doubt by the prosecution then the Court must acquit them of all
charges.
HONEST AND REASONABLE MISTAKE
Sections 9.1 to 9.4 of the schedule of the Criminal Code Act 1995
(Cth) sets out the requirements of the Honest and Reasonable
Mistakedefence stating that a defendant will not be held
criminally responsible for an offence if they were under a
mistaken belief about the facts at the time of committing the act.
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6. This defence may be present where the defendant had an honest
belief in facts which if they had existed, would excuse their
innocent act in contravention of the law.
The defence of honest and reasonable mistake is more limited in
scope than other defences, because it is only applicable to strict
liability offences, which are those that do not require the
prosecution to prove that the defendant intended for the result to
occur.
Consequently, this defence is most frequently raised in relation to
traffic offences, such as Drive while disqualified or speeding
charges. It is also important to note that this ground of
exculpation is only available where there is a mistake of facts, and
not a mistake of law. An example of a mistake of fact is where
there is a mistaken belief by the defendant that one of the
elements of the offence was not present, when they were
committing the act.
Once the defence of honest and reasonable mistake is raised, the
defendant has the burden of proving there was an honest belief,
and if this is proven the prosecution then has the burden of
disproving it beyond all reasonable doubt.
Our traffic Lawyers in Sydney have had proven track record of
establishing defences of honest and reasonable mistake.
INTOXICATION
Strictly speaking, intoxication is not a defence, but a denial of
intent/mens rea; the main difference being that a defence accepts
the intent/mens rea and actus reus of an offence are present.
With intoxication, there is no acceptance of the mens rea or intent
to commit the offence.
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7. A defendant’s intoxicated state at the time of the alleged
committal of a criminal offence may be taken into account by the
courts, under certain circumstances. Under theCrimes Act 1900
(NSW), it is defined as meaning “intoxication because of the
influence of alcohol, a drug or any other substance.” However, the
criminal defence of intoxication is currently only available for the
specific intent category of offences, which require proof from the
prosecution that the defendant possessed a specific intent to
bring about a specific result. Thus, intoxication may be used as a
defence for a specific intent offence such as maliciously inflicting
grievous bodily harm with intent to inflict grievous bodily harm.
The intoxication defence is outlined in section 428C of the Crimes
Act 1900 (NSW), which states that evidence of a defendant being
intoxicated at the time of the offence may be taken into account in
determining whether they had the intention to cause the specific
result necessary for an offence of specific intent. However, such
evidence cannot be considered by the courts, if the defendant had
decided before becoming intoxicated to perform the relevant act
or they had become intoxicated to strengthen their resolve to
perform the relevant act.
LAWFUL CORRECTION
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8. See s61AAof the Crimes 1900(NSW) sets out what is lawful when
physically punishing a child. The level of force used must be
reasonable, must not be to the head or neck and must only last for
a short time.
In 2002 laws were introduced into NSW clarifying what
constituted acceptable physical punishment of children by their
parents. The requirements of the defence of lawful correction are
stated in section 61AA(1) of the Crimes Act 1900(NSW), where it
states that the defence is available only where:
•The force used on the child was for their punishment
•The force was applied by the parent or a person acting for a
parent of the child
•With regard to the physical and mental characteristics of
the child, or what the child did, the force that was used on
the child was reasonable.
However, the force will not be considered reasonable under
section 61AA(2) if:
•The force was 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 will last for
more than a brief period
MENTAL ILLNESS
When Mental illness has been raised the question to ask is
whether the accused person was, at the time of the commission of
the offence, mentally ill. This defence applies in indictable matters
only (that is matters in the District or Supreme Courts) and may
be engaged by the following two routes:
1. After a “special hearing” in the course of unfitness
proceeding where if successful a special verdict of not guilty
by reason of mental illness may be had Not Guilty by Means
of Mental Illness (NGMI): ss 21B, 22(1)(b); and
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9. 2. A special verdict of (NGMI) is returned at the trial of a
person pursuant to s 38 MHFP Act when the jury finds that
the person was mentally ill at the time the person committed
the offence.
Note if your mater is being dealt with in the local Court see [What
is a Section 32 and Section 33 of the Mental Health Forensic
Provisions Act 1990(MHFPA) (NSW).
NECESSITY
An overarching theory of criminal defences is the doctrine of
necessity. Generally speaking, a criminal act can be justifiable if it
is necessary to prevent a foreseeable and greater harm than the
harm created by the act. For instance, trespassing is generally
justified if the defendant only trespassed in order to, for instance,
instantaneously attempt to put out a fire on the property, or to
rescue someone drowning in a pool on the property. The
destruction or death caused by following the law and not
trespassing would have been far greater than the harm caused by
trespassing. Defendants who have committed a criminal offence
may only raise the defence of necessity where they sincerely
believed that they or their family would otherwise suffer
immediate and irreparable harm.
In R v Loughnan (1981) the NSW Court of Criminal Appeal held
that the required elements of the defence were:
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10. •The criminal act must have been done in order to avoid
certain consequences which would have inflicted irreparable
evil upon the defendant or upon others who they were
bound to protect, and
•The accused must honestly have believed on reasonable
grounds that they were placed in a situation of imminent
peril, and
•The acts committed must not have been out of proportion
to the imminent peril.
The necessity defence is solely limited to situations which
overwhelmingly compel disobedience of the law, and thus it is
usually difficult to satisfy the courts that the elements were
present.
Defendants applying have the evidentiary burden of establishing
a defence of necessity, but once established the prosecutor must
disprove the defence beyond reasonable doubt. Also, like duress,
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11. the defence of necessity is not available to defendants who have
been charged with the crimes of murder or treason.
Our Drug Lawyers Sydney have established necessity as a defence
of law in a number of cases resulting in charges being withdrawn
and not guilty verdicts.
SELF DEFENCEOR DEFENCE OF ANOTHER
Self-defence is, in general, some reasonable action taken in
protection of self or another or ones property. An act taken in
self-defence often is not a crime at all; no punishment will be
imposed.
To qualify, any defensive force must be proportionate to the
threat. Use of a firearm in response to a non-lethal threat is a
typical example of disproportionate force; however, such
decisions are dependent on the situation and the applicable law,
and thus the example situation can in some circumstances be
defensible, generally because of a codified presumption intended
to prevent the unjust negation of this defence by the trier of fact.
Many people misunderstand what the limits of Self-defence can
be. Most think it is simply outlined in section 418 of the Crimes
Act 1900 (NSW), however, there is lawful authority to argue self-
defence even in situations where “Pre-Emptive Force” is used.
Moreover, at times there may exist “No duties or need to retreat”.
Once self-defence is raised properly (on the balance of
probabilities) and cannot be disproven to requisite standard by
the prosecution (beyond a reasonable doubt) you will be found
Not Guilty.
Our Criminal Solicitors Sydney have established proven track
records of establishing self defence in numerous cases.
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12. WHY NATIONAL CRIMINAL LAWYERS?
There are three reasons to choose National Criminal Lawyers:
1. We get the results
We are the experts in either beating or having criminal
charges withdrawn AND/OR obtaining the least restrictive
penalty available. This is because no matter which option
you choose within our tailored Options at Law you will be
dealing with experienced criminal lawyers who can make
sure the evidence is not only obtained properly but also that
your case is prepared and presented to the highest best
practice standards possible. This is also done without
breaking your pocket.
2. We give a Senior Defence Lawyer guarantee
No matter which option at law you choose, National Criminal
Lawyers can guarantee that a Senior Defence Lawyer will
represent you. This means that with our over 25 years of
Combined criminal law experience you will get the best
result possible.
3. National Criminal Lawyers are the best defenders of your
rights
At National Criminal Lawyers we know that Criminal Law is
a matter of Human Rights. For this reason, we take pride and
passion in representing our clients. This pride and passion
to assist those charged with an alleged or actual breach of
the criminal law is to us a matter of righteous necessity and
in that sense, you can always rest assured that National
Criminal Lawyers are the best defenders of your rights. This
true not only when the police have just simply got it wrong
OR if they have got it right then we can speak with you and
make sure you get you the best result available.
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13. If you have been charged with any Criminal offence our
Team at National Criminal Lawyers are well versed and
specialists in having charges either withdrawn or otherwise
achieving favourable outcomes. We are also experts in
assessing and explaining if you may have any Defence-At-
Law. Please contact our office on 02 9893 1889 or visit
www.nationalcriminallawyers.com.au for more information
about your options.
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