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November 29, 2017



Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of criminal and/or human rights law before acting or relying on any of its content.


A question legal practitioners are asked often is: do I have a defence? While there is no substitute for proper legal advice in this area, the following are examples of common criminal law defences:




Self-defence is a defence to certain criminal acts created by section 418 of the Crimes Act 1900 (NSW). This provides that a person will only be found to have acted in self-defence in four defined circumstances:

  1. Defending himself or herself or another person.

  2. Preventing or terminating the unlawful taking of their own or another person’s liberty.

  3. Preventing the unlawful taking, destruction, damage or interference with property.

  4. Preventing criminal trespass to land or premises, or removing a person committing such trespass.

The key element is that the conduct in question must have been a reasonable response to the circumstances as the person perceived them. For example, it is unlikely to be considered as reasonable for someone to assault another because they have called them a name.


Although described as a “defence”, once successfully raised it is actually for the prosecution to prove beyond reasonable doubt that the defendant did not act in self-defence.




A person will be found to have acted under duress (involuntarily) if that person’s conduct was a direct result of express or implied threats of death or serious injury.  These threats must be of such a nature that a person of ordinary firmness and strength of will would have succumbed to the threat.  

Whilst only a common law defence in New South Wales (meaning that it is not defined in statute, but rather in cases), section 10.2 of the Commonwealth Criminal Code contains a statutory version. It reads:


(1)  A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.

(2)  A person carries out conduct under duress if and only if he or she reasonably believes that:


                (a)  a threat has been made that will be carried out unless an offence is                                  committed; and


                (b)  there is no reasonable way that the threat can be rendered ineffective;                            and


                (c)  the conduct is a reasonable response to the threat.


(3)  This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.

Once duress is properly raised by a defendant it is the responsibility of the prosecution to prove beyond reasonable doubt that the person acted voluntarily.




The defence of provocation is a partial defence to the charge of murder. If the defence is proven the accused will be acquitted of murder and instead found guilty of the lesser charge of manslaughter.


Section 23(2) of the Crimes Act 1900 provides that an act or omission that results in the death of another person is committed under provocation where:


a) The act or omission was a result of a loss of self-control on the part of the defendant, which was induced by conduct of the deceased towards/affecting the defendant (including grossly insulting words or gestures); and


b) The conduct of the deceased was of such a nature that it could have induced an ordinary person in the position of the defendant to lose self-control and form an intention to kill or inflict grevious bodily harm on the deceased.


Importantly, the provocative conduct of the deceased need not have been immediately prior to the act or omission causing death. Innocent words and conduct on the part of the deceased may, especially when considered in light of the historical relationship between the defendant and the deceased, amount to provocation. An example of this is “battered woman’s syndrome”.


Once sufficiently raised by an accused person, it is for the prosecution to show beyond reasonable doubt that the defence of provocation is not open.




Intoxication is contained in Part 11A of the Crimes Act 1900 (NSW). This defence goes to the mental (as opposed to physical) element of an offence. Its application will differ depending the type of offence (specific intent or not) and whether intoxication was self-induced.


Offences of specific intent


An offence of specific intent is one in which a key element is the intention to cause a specific result to occur. For example, wounding or grievous bodily harm with intent. Generally speaking, intoxication may be relevant in these circumstances to determining whether the accused had the necessary intention to cause that specific result (see s 428C of the NSW Crimes Act).  The intoxication in question may be self-induced or forced. Evidence of intoxication will not be available where a person decided to commit the act before becoming intoxicated or become intoxicated in order to strengthen their resolve or ‘pump themselves up’ to commit the offence.


Intoxication that was not-self-induced


Section 428G provides that a person will not be held criminally responsible for an offence if their conduct occurred as a result of intoxication that was not self-induced. For example if a person’s drink is spiked the fact of their intoxication may be taken into account if they commit any offence.


I was drunk or affected by drugs – can I raise this at my Sentence Hearing?


Intoxication can be relevant to show that someone acted spontaneously or out of character in an offence, by way of mitigation. Yet, if an offender put himself or herself in a situation where they become intoxicated, and then committed a crime(s), the court may take the view that this is worse. Simply put, the fact that someone gets very drunk or becomes intoxicated on drugs does not provide a defence at law for their behaviour unless – as mentioned above – an offence is one of specific intent (here the courts can take it into account) or the intoxication was not self-induced (e.g. a drink spiking situation).




The defence of honest and reasonable mistake of fact is available where an accused person:

  1. Makes an honest mistake

  2. The mistake is reasonable; and

  3. The mistake relates to an issue of fact rather than law.

Proving that a mistake was honest is a subjective consideration i.e. what did the accused person think at the time? This is often the ‘easier’ part of the defence to make out. The more difficult aspect of the defence for a defendant to show is whether their conduct was reasonable. If an accused person can demonstrate that their belief was both honest and reasonable, the prosecution will not be able to establish the essential elements of a criminal charge.


Posted by Sebastian De Brennan, Barrister,

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© 2017 Sebastian De Brennan. Barrister at Law