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.
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 is a complete defence to violent offences, including assault and murder. To succeed, you must show that you believed your actions were necessary to defend yourself (or someone else), and that your response was a reasonable proportion to the threat you perceived.
Example: If someone attacks you with a bat and you strike them back to escape, you may argue self-defence.
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 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.
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.
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 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.
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).
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.
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.
A Section 10 dismissal is frequently misunderstood as a defence. It is NOT. A Section 10 is a sentencing outcome. You only receive a Section 10 after you have either pleaded guilty or been found guilty by a court. If you are seeking to avoid a conviction by pleading guilty, you are seeking a sentencing outcome, not raising a legal defence.
Read more about Section 10 Non-Conviction OrdersAt NS Criminal Lawyers and 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.
Common questions regarding legal defences in NSW.
Author: Muhammad Siddique, Criminal Defence Lawyer | Reviewed by: NS Criminal Lawyers and Associates | Last reviewed: June 2026 | Jurisdiction: New South Wales
The information on this website is general information only and is not legal advice. You should obtain legal advice about your specific circumstances.
