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Common Defences in Criminal Law

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In New South Wales (NSW), criminal defence means getting legal help for someone who’s been accused of a crime. It’s the methods that you use to fight criminal charges that you believe that you do not deserve. Our criminal law system can be confusing, but it’s important to remember that the main goal of criminal defence is to protect the rights of the accused person and assign criminal responsibility to those who deserve it.

The legal defence for criminal charges might result in avoiding being convicted and going to jail, reducing the punishment, or proving that they didn’t do it. Criminal defense in NSW includes different things like giving legal advice, looking into the case, representing the person in court, talking to the other side about making a deal, and making sure the legal process is fair.

Defence lawyers are really important in making sure the justice system is fair and that accused people are treated right. They work hard to give legal help, question the evidence, and speak up for their clients to get a fair and just outcome within the law’s rules.

Claim of Right Defence

The claim of right defence in Australia is a legal concept that can be used as one of the criminal charges defences, especially those involving theft or property-related offences. Claim of right is based on the idea that a person genuinely believed they had a good reason to have possession of something, even if it turned out to be wrong or not very sensible.

In the very important legal case R v Fuge (2001) 123 A Crim R 310 at 314–315, it was explained what the criteria for using the claims of right defence are.

To use this defense you need to have these three things:

  1. Honest Belief: The person must show that they honestly believed they had a good, legal reason to do what they did, even if that belief was mistaken. Showing their honest claim here is important.

  2. No Intention to Steal: They should not have meant to steal or do something illegal. They thought they had a proper reason for their actions.

  3. Personal Belief: The defence looks at what the person believed, not whether that belief was right according to the law. It’s enough if they honestly thought it was okay, even if they were wrong.

This defence may not work in every case, and its success depends on the situation and how well the person can prove their honest belief. It’s important to talk to a lawyer to see if this defence might apply in a specific situation. Contact one of Jameson Law’s criminal lawyers today to discuss any legal issues you might have.

Self Defence

Self-defence is the legal defence that people most often think of because it’s one of the criminal defences used most in legal TV dramas! Self defence allows individuals to protect themselves when they are facing a real and immediate threat of harm. Such a nature of the defence means that the use of force here means self defence is like a legal safety net to prevent you from getting into trouble if you have to defend yourself or someone else.

It’s important to clarify a common misconception about self-defense. In the legal context, you don’t have to prove self-defense. Instead, when you claim self-defense, the prosecution must prove beyond a reasonable doubt that you were not acting in self-defense. Given that the prosecution must prove this, this is when the criminal law can get tricky! If they can’t do that, you’ll be declared “not guilty,” as outlined in Section 419 of the Crimes Act 1900 (NSW).

To use self-defence as a defence in NSW, three key things usually need to be true:

  1. Reasonable Belief: You must honestly believe that you or someone else is in danger, and your belief should be reasonable. In other words, it makes sense that you thought you needed to protect yourself or another person.

  2. Necessary Force: The force you use to defend yourself should be necessary and proportionate to the threat. It means you can’t go overboard. You should only use as much force as is needed to keep safe.

  3. No Revenge: Self-defence is about protecting yourself, not getting back at someone. It’s not a way to justify attacking someone without a real threat of imminent danger. Revenge is a wrongful act and you can be held criminally responsible.

If all these conditions are met, self-defence can be a valid defence in court. It’s there to ensure people have the right to protect themselves when they’re in danger. However, as the Attorney General’s office highlights, Self defence can’t be used in situations about trespassing or the defence of property. Self-defence may be used most often in cases of domestic violence, grievous bodily harm charges and those of serious injury.

Honest and Reasonable Mistake Defence

The Honest and Reasonable Mistake of Fact defence is a way for someone to argue that they made an honest and understandable mistake about the facts that led them to commit a crime.

It is important to note that this defence as a defence to a criminal charge can only be used in cases of ‘strict liability.’ A strict liability offence is a type of offence where the prosecution is not required to prove the mental state (mens rea) of the individual accused of the offence.

To use this defence, you must show three things:

You held a belief of fact

the defence can only be used when there is a ‘mistake of fact’ rather than a ‘mistake of law.’ If you are speeding, it is an obligation to know what the speed limit is. A mistake of fact would be not knowing how fast you were going at that moment.

You honestly believed in your mistake

This involves showing the court that you honestly believed that you were doing something legal. It’s not enough to say, “I didn’t know.” They have to truly think they were in the right.

That your mistake was reasonable

You must show that this belief is reasonable. In other words, if another ordinary person were in the same situation, they would have made the same mistake.


In NSW criminal law, the defense of Duress acknowledges that sometimes people may commit crimes because they were forced to do so under the threat of serious harm or death. This defence applies in an instance where a person must show that they genuinely believed this threat was real, immediate, and couldn’t be avoided. It’s like if someone threatened to hurt you or your family unless you committed a crime.

As the NSW Judicial Commission points out, it is up to the Judge to decide if the defence of Duress can be used. If they decide it can, then it is the prosecution that must prove beyond a reasonable doubt that another person did not influence your action. As such, the burden of proof shifts from the defence and the accused to the prosecution must prove that another person was not involved.

However, this defence has limits. It can’t be used for all crimes, especially serious ones. It mainly applies to less severe offences. If the court accepts the duress defence, the person might get a reduced charge or be found not guilty, understanding that they didn’t willingly commit the crime, but were compelled by fear. The success of this defence depends on the specific circumstances of each case, and it’s a complex legal concept that requires careful consideration by the court


Most people can have a few drinks without legal issues, but situations can get complex when someone accused of a crime is intoxicated during the alleged incident.

The defence of intoxication is not necessarily a complete defence itself, but it may affect whether a person is found guilty of an offence. In cases where the prosecution must prove specific intent – like in a murder case where the prosecution must show that the accused wanted to commit the crime – then the intoxication can be taken into account and serve as a defence then.

As the Attorney General’s office points out, however, if a crime was committed before the voluntary intoxication occurred, then it cannot be taken into account.

For involuntary intoxication, when someone is forced to consume substances, it might be considered a valid defense. The success of this defense depends on the specific circumstances of each case, and it’s important to consult with credible experts, like our lawyers here at Jameson Law, for specific guidance on your cases.


The principle of reasonable doubt means that when a person is on trial for a crime, they can only be found guilty if the evidence presented proves their guilt beyond a reasonable doubt.

This means there should be no significant doubts or uncertainties about their guilt. If the evidence doesn’t firmly establish their guilt, the person should be considered innocent. It’s a way to ensure that people are not convicted unless there is strong and convincing evidence against them.

The mental illness defence is when someone claims they had a mental illness when they committed a crime. If proven, they might be declared “not guilty because of mental illness.”

Instead of going to jail, they could be sent to a mental health court, where the focus is on getting them the help they need for their mental illness, rather than punishing them for the crime. This helps address both legal and mental health concerns.


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