Defences to Criminal Charges NSW

Being charged with a criminal offence in New South Wales can be a daunting experience. However, an arrest is not a conviction. The law provides several established legal defences that, if successfully argued, result in a verdict of not guilty.

A conviction can result in a criminal record and may affect employment, travel, professional licensing, visa applications and other aspects of your life. Understanding your available defences is the first step in protecting your rights. In practice, which defence genuinely fits your circumstances is rarely obvious from the charge alone, which is why an early, detailed account of what actually happened matters so much.

What is a defence?

A defence is a legal argument asserting that, despite the facts presented by the prosecution, you are not criminally responsible for the act. In NSW, you generally bear an "evidentiary burden" to raise the defence (show there is some evidence to support it). Once raised, the prosecution bears the "legal burden" to disprove the defence beyond a reasonable doubt.

Self-defence

Self-defence is a complete defence to violent offences, including assault and murder. It applies if you believed your actions were necessary to defend yourself (or someone else), and what you did was a reasonable response in the circumstances as you perceived them. You do not have to prove it: once self-defence is raised, the prosecution must prove beyond reasonable doubt that you were not acting in self-defence.

Example: If someone attacks you with a bat and you strike them back to escape, you may argue self-defence.

Duress

Duress occurs when you commit a crime only because someone threatened you with death or really serious injury if you refused. The threat must be so severe that a person of ordinary firmness would have yielded to it.

Example: Being forced to drive a getaway car because a passenger is holding a weapon to your head.

Necessity

Necessity is raised when a crime is committed to avoid a sudden, imminent, and overwhelming peril. The criminal act must be proportionate to the danger avoided.

Example: Breaking the speed limit to rush a passenger having a severe heart attack to the hospital.

Mental health and cognitive impairment defences

If an individual suffers from a mental health impairment or cognitive impairment at the time of the offence, they may not be legally responsible. This can result in a special verdict (Act proven but not criminally responsible) and often involves psychiatric diversion rather than penal punishment.

Honest and reasonable mistake

This defence applies to strict liability offences (like some driving charges). You must prove that you held an honest belief in a set of facts which, if true, would mean you were innocent, and that this belief was reasonable.

Example: Driving on a suspended licence because Transport for NSW incorrectly assured you in writing that your licence was valid.

Automatism

Automatism means the act was done involuntarily, without conscious control of the mind (e.g., while sleepwalking or suffering a severe concussion). It completely negates the element of intent.

Intoxication (limited defence)

Self-induced intoxication is rarely a defence. However, it can sometimes be used to argue that the accused was too intoxicated to form the "specific intent" required for complex crimes (like murder or fraud), potentially reducing the charge to a lesser "basic intent" offence (like manslaughter).

Consent

In cases involving physical contact or property damage, it is a defence if the alleged victim legally consented to the act. Note that consent cannot be used as a defence for inflicting grievous bodily harm or murder.

Claim of right

This defence applies to property offences (like larceny or robbery). It argues that the accused held a genuine, honest belief that they were legally entitled to the property they took.

Example: Taking a bicycle from a nature strip because you honestly believed it was the exact one stolen from you the week before.

How we can help

At NS Criminal Lawyers & Associates, we provide carefully prepared, strategic defence representation. We meticulously analyze the police brief of evidence to identify whether a legal defence applies to your case. We then work diligently to present that defence in court to protect your freedom.