Complete Guide to Criminal Defences in NSW | Invictus Legal

Understanding Criminal Defence Strategies in New South Wales

Being charged with a criminal offence in NSW can feel overwhelming, casting a shadow over your future and wellbeing. However, it's crucial to remember that being charged doesn't automatically mean you'll be found guilty. The NSW criminal justice system provides various defence strategies that, when properly applied, can lead to acquittal, reduced charges, or more lenient sentencing.

At Invictus Legal, our experienced criminal defence lawyers understand how to effectively utilise these defences to protect your rights and achieve the best possible outcome for your case. This comprehensive guide explores all available criminal defences in NSW, their legal foundations, and how they might apply to your situation.

Complete vs Partial Defences in NSW Criminal Law

Before examining specific defences, it's important to understand the distinction between complete and partial defences, as this classification significantly impacts case outcomes.

Definition of Complete and Partial Defences

Complete defences, when successfully argued and accepted by the court, result in a full acquittal. When established, the accused is found not guilty of the charged offence, and the matter concludes. Complete defences operate on the principle that the accused's actions were legally justified or excused, negating criminal liability.

Partial defences don't lead to acquittal but reduce the severity of the offence or potential sentence. These defences apply in situations where the accused committed an unlawful act but argues that mitigating circumstances should be considered. If accepted, partial defences may result in conviction for a lesser offence or a more lenient sentence.

Table of NSW Criminal Defences

Detailed Analysis of Criminal Defences in NSW

1. Self-Defence in NSW Criminal Law

Self-defence is a complete defence that applies when a person uses reasonable force to protect themselves, others, or property from unlawful harm or threats.

Legal Basis: In NSW, self-defence is codified in section 418 of the Crimes Act 1900, stating that a person is not criminally responsible for an offence if the conduct constituting the offence was carried out in self-defence.

Burden of Proof: When self-defence is raised, the prosecution must disprove the defence beyond reasonable doubt.

Elements Required:

• The accused believed their conduct was necessary to defend themselves, another person, or property

• The accused's actions were a reasonable response in the circumstances as they perceived them

When Self-Defence Can Be Used:

• Defending oneself or others from physical harm or threat

• Preventing unlawful detention

• Protecting property from being taken, destroyed, or damaged

• Preventing or terminating trespass

Example Scenario: Sarah is walking home when approached by an armed assailant demanding her purse. Fearing for her safety, Sarah uses a pepper spray to incapacitate the attacker and escape. If charged with assault, Sarah could raise self-defence as she reasonably believed her actions were necessary for her protection.

2. Duress in NSW Criminal Law

Duress is a complete defence available when a person commits an offence because they were compelled by threats of death or serious harm to themselves or others.

Legal Basis: Duress is a common law defence applying when an individual commits an offence due to threats sufficient to override their normal resistance.

Burden of Proof: The accused must establish on the balance of probabilities that they acted under duress.

Elements Required:

• A threat of death or serious harm to the accused or another person

• The threat was sufficient to override a person of ordinary firmness and strength of will

• The accused reasonably believed the threat would be carried out

• No reasonable means existed to escape or avoid the threat

• The offence was committed solely because of the threat

When Duress Cannot Be Used:

• Murder charges

• Treason

• Some terrorism offences

Example Scenario: Michael is forced by armed criminals to assist in a robbery after they threaten to harm his family. If charged, Michael could raise duress, showing he acted only under threat with no reasonable escape option.

3. Necessity in NSW Criminal Law

Necessity is a complete defence available when an individual commits an offence to avoid a greater harm or evil.

Legal Basis: A common law defence developed through case law, based on the principle that an individual should not be criminally liable when breaking the law was the only reasonable choice to prevent greater harm.

Burden of Proof: The accused must establish on the balance of probabilities that they acted out of necessity.

Elements Required:

• Clear and imminent danger or threat of harm

• Reasonable belief that the action was necessary to avoid harm

• The harm avoided exceeded the harm caused

• No reasonable alternative existed

• The unlawful conduct ceased once the danger passed

Example Scenario: A doctor performs emergency surgery without consent on an unconscious accident victim to save their life. If charged with assault, the doctor could raise necessity, as their actions were required to prevent the greater harm of death.

4. Automatism in NSW Criminal Law

Automatism is a complete defence applying when a person commits an offence while in a state of impaired consciousness where their actions were involuntary.

Legal Basis: This defence negates the mental element (mens rea) required for criminal responsibility, based on the principle that a person should not be held liable for involuntary actions.

Burden of Proof: The accused must establish an evidentiary foundation, after which the prosecution must disprove automatism beyond reasonable doubt.

Elements Required:

• State of impaired consciousness during the offence

• Involuntary actions performed without exercise of will

• State caused by an external factor (e.g., head injury, epilepsy)

• Not self-induced or foreseeable

Example Scenario: John experiences an epileptic seizure while driving and loses control of his vehicle, causing property damage. If charged with dangerous driving, John could raise automatism as his actions were involuntary due to his medical condition.

5. Claim of Right in NSW Criminal Law

Claim of right is a complete defence applicable when a person commits an offence believing they had a legal entitlement to the property or money involved.

Legal Basis: This defence operates on the principle that a person should not be criminally responsible when acting under a genuine belief in their legal entitlement.

Burden of Proof: Once raised, the prosecution must disprove the claim of right beyond reasonable doubt.

Elements Required:

• Honest belief in legal entitlement to specific property or money

• Genuinely held belief, even if mistaken

• Belief related to specific property, not general moral entitlement

• Actions consistent with the belief

When Applicable:

• Property offences (theft, larceny)

• Receiving stolen goods

• Some cases of force used to recover property

Example Scenario: Alex takes a bicycle he genuinely believes is his from outside a shop. If charged with theft, Alex could raise claim of right if he honestly thought the bicycle belonged to him due to its identical appearance to his recently stolen one.

6. Honest and Reasonable Mistake of Fact

This complete defence applies when a person commits an offence while under a mistaken but honest and reasonable belief about factual circumstances.

Legal Basis: Based on the principle that a person should not be criminally responsible when acting under a mistaken but honestly and reasonably held belief.

Burden of Proof: The prosecution must disprove beyond reasonable doubt that the mistake was honestly and reasonably held.

Elements Required:

• Mistaken belief about factual situation when committing the offence

• Belief genuinely held

• Belief reasonable in the circumstances

• If the belief were true, no offence would have been committed

When Applicable:

• Strict liability offences

• Offences requiring specific mental states

• Regulatory offences

Example Scenario: Maria purchases what she believes is a legal supplement but is actually a prohibited substance. If charged with possession, Maria could raise honest and reasonable mistake if her belief was genuine and reasonable based on packaging and vendor assurances.

7. Extreme Provocation in NSW Criminal Law

Extreme provocation is a partial defence that can reduce murder to manslaughter when the accused acted in response to provocative conduct.

Legal Basis: Section 23 of the Crimes Act 1900 (NSW) provides for the partial defence of extreme provocation, replacing the common law defence of provocation following the Crimes Amendment (Provocation) Act 2014.

Key Changes Under the 2014 Amendment:

• Provocative conduct must constitute a serious indictable offence

• Defence unavailable for non-violent sexual advances

• Defence unavailable when the accused incited the provocation

Burden of Proof: The prosecution must disprove extreme provocation beyond reasonable doubt once the defence is raised.

Elements Required:

• Provocative conduct constituting a serious indictable offence

• Conduct caused the accused to lose self-control

• Conduct could cause an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm

• The accused acted before their loss of self-control could abate

When Applicable:

• Murder charges only

• Cannot be used for any other offence, including manslaughter

Example Scenario: Robert discovers someone assaulting his child and, in the heat of the moment, strikes the assailant with fatal force. If charged with murder, Robert could potentially raise extreme provocation if his reaction occurred immediately after witnessing the assault on his child.

8. Mental Illness Defence in NSW

Mental illness is a complete defence applying when a person commits an offence while suffering from a condition severely impairing their understanding of their actions.

Legal Basis: Section 38 of the Mental Health (Forensic Provisions) Act 1990 provides for a special verdict of "not guilty by reason of mental illness."

Burden of Proof: The accused must establish the defence on the balance of probabilities.

Elements Required:

• Mental illness or condition present at the time of the offence

• Condition impaired ability to understand the nature/quality of actions or their wrongfulness

• Impairment so significant the accused could not reason about whether their actions were right or wrong

Consequences of Successful Defence:

• Special verdict of "not guilty by reason of mental illness"

• May result in detention in a mental health facility rather than prison

• Release subject to conditions based on mental state assessment

Example Scenario: James, diagnosed with schizophrenia, experiences a severe psychotic episode during which he believes his roommate is a threat to his life. He attacks his roommate while delusional. If charged with assault, James might raise mental illness defence if his condition prevented him from understanding the wrongfulness of his actions.

9. Intoxication Defence in NSW

Intoxication is not a complete defence but may be relevant to whether the accused formed the specific intent required for certain offences.

Legal Basis: The Crimes Act 1900 (NSW) places limitations on intoxication as a defence, particularly for voluntary intoxication.

Burden of Proof: The prosecution must prove beyond reasonable doubt that the accused had the requisite mental state despite intoxication.

Elements Considered:

• Intoxication at the time of the offence

• Impairment of ability to form specific intent

• Whether the offence charged requires specific intent

• Whether intoxication was voluntary or involuntary

When Applicable:

• Only for specific intent offences (e.g., murder, assault with intent to cause grievous bodily harm)

• Cannot be used for general intent crimes (e.g., manslaughter, sexual assault)

• Involuntary intoxication may provide a broader defence

Example Scenario: Lisa's drink is spiked at a party without her knowledge. While severely impaired, she damages property, unaware of her actions. If charged with malicious damage, she might argue her involuntary intoxication prevented her from forming the specific intent required.

10. Consent as a Defence in NSW

Consent is a complete defence for certain offences where the absence of consent is an element of the crime.

Legal Basis: The law recognizes that consensual activities between adults should not generally be criminalized.

Burden of Proof: The prosecution must prove beyond reasonable doubt that consent was not given.

Elements Required:

• Capacity to consent (legal age, not impaired)

• Consent freely and voluntarily given

• Consent specific to the act in question

• Not obtained through deception or mistake

When Applicable:

• Sexual offences

• Assault (limited circumstances)

• Some property offences

Limitations:

• Cannot consent to serious bodily harm outside specific contexts (medical, sports)

• Minors cannot consent to sexual activity below age of consent

• Consent must be informed and voluntary

Example Scenario: Two adults engage in a boxing match with clear rules. If one participant is injured and presses charges, the other could raise consent as a defence since both voluntarily participated in a regulated sporting activity with known risks.

11. Substantial Impairment Due to Abnormality of Mind

This partial defence can reduce murder to manslaughter when the accused suffered from a substantial mental impairment.

Legal Basis: Section 23A of the Crimes Act 1900 (NSW) provides for this partial defence.

Burden of Proof: The accused must establish substantial impairment on the balance of probabilities.

Elements Required:

• Abnormality of mind at the time of the offence

• Abnormality arose from an underlying condition (e.g., intellectual disability, mental disorder)

• Condition substantially impaired capacity to understand events, judge right from wrong, or exercise self-control

• Impairment severe enough to justify reducing murder to manslaughter

• Not solely due to self-induced intoxication

When Applicable:

• Murder charges only

• Cannot be applied to other offences

Example Scenario: David, suffering from severe PTSD after military service, experiences a flashback during which he fatally injures someone he believes is attacking him. If charged with murder, David might raise substantial impairment if his condition significantly affected his judgment and self-control during the incident.

Categories of Criminal Offences in NSW

Understanding how offences are categorized in NSW is essential when considering applicable defences and potential penalties.

Summary Offences

Definition: Less serious offences dealt with in the Local Court.

Characteristics:

• Maximum imprisonment term of 2 years

• Lower maximum fines

• Faster court process

• No jury trial

Examples:

• Common assault

• Shoplifting (value under $5,000)

• Minor drug possession

• Most traffic offences

• Public order offences

Prosecution Requirements: Prosecution must prove beyond reasonable doubt that:

• The accused committed the physical act (actus reus)

• Any required mental element (mens rea) was present

• No valid defences apply

Indictable Offences

Definition: More serious offences that may be tried in the District or Supreme Court.

Characteristics:

• Higher maximum penalties

• May involve jury trials

• Some can be dealt with summarily (in Local Court)

• More complex proceedings

Examples:

• Break and enter

• Fraud

• Indecent assault

• Theft of valuable property

• Dangerous driving

Prosecution Requirements: Prosecution must prove beyond reasonable doubt:

• All physical elements of the offence

• Required mental state for the specific offence

• No complete defences apply

• For some offences, specific aggravating factors

Serious Indictable Offences

Definition: The most serious category of offences in NSW, punishable by imprisonment for 5 years or more.

Characteristics:

• Highest maximum penalties

• Almost always tried on indictment in higher courts

• Complex legal proceedings

• Usually involve jury trials

Examples:

• Murder and manslaughter

• Sexual assault

• Armed robbery

• Large-scale drug offences

• Aggravated break and enter

Prosecution Requirements: Prosecution must prove beyond reasonable doubt:

• All physical elements of the specific offence

• Required mental elements with high degree of specificity

• Any special circumstances or aggravating factors

• No complete defences apply

• For murder: intent to kill or cause grievous bodily harm, or reckless indifference to human life

How Invictus Legal Can Help With Your Defence

Facing criminal charges in NSW requires expert legal representation to navigate the complex legal system and implement appropriate defence strategies. At Invictus Legal, our experienced criminal defence lawyers provide:

• Comprehensive case assessment to identify potential defences specific to your situation

• Strategic defence planning tailored to the nature of your charges and circumstances

• Expert representation in all NSW courts, from Local to Supreme Court

• Thorough understanding of NSW criminal legislation and case law

• Proven track record in achieving favourable outcomes for our clients

Whether you're facing summary, indictable, or serious indictable charges, our dedicated team will work tirelessly to protect your rights and secure the best possible outcome.

Conclusion: Understanding Your Defence Options

Being charged with a criminal offence in NSW is not the end of the road. With a thorough understanding of available defences and expert legal representation, you can effectively navigate the criminal justice system and work toward a favourable resolution.

At Invictus Legal, we're committed to providing robust defence strategies tailored to your specific circumstances. Our experienced criminal defence lawyers will guide you through each step of the legal process, ensuring your rights are protected and all possible defences are explored.

If you're facing criminal charges in NSW, contact Invictus Legal immediately to discuss your case and begin building your defence strategy. Your future deserves nothing less than the strongest possible legal protection.

This guide provides general information about criminal defences in NSW and should not be considered legal advice for specific cases. For advice tailored to your individual circumstances, please contact Invictus Legal for a confidential consultation.