Defences available at Law

Not every act that would constitute a crime may result in a criminal conviction. There are certain defences that exist at law that can reduce or remove criminal culpability. At Rep-Revive Criminal Lawyers, we believe everyone should have at least a basic knowledge of their legal defences in order to minimize the likelihood of an injustice occurring at your expense. We’d wager you’ve heard of self-defence. See how many defences you know by the end of this blog and know that even more defences exist than the ones discussed below. This article examines the some of the defences available at law and when they arise.


Most crimes require that they be voluntary acts under your control. Automatism is a state where your muscles act without any control by your mind or lacking your consciousness. However, the destruction of your control cannot be voluntary, for example brought on by you choosing to become drunk or consuming drugs or driving tired at the wheel.

Claim of Right

Pursuant to Section 9.5 of the Criminal Code, if at the time of the offence you were under a mistaken belief that you had a right to possess property, you cannot be held criminally responsible. This defence however does not negate criminal liability for any offence involving the use of force (violence) against a person.


If your criminal actions were motivated by a serious threat against you, your family or others and serious injury or death would have resulted if you did not perform the criminal act, this defence may be available to you. Some of the requirements for this defence were set out in Bassett. The duress must involve the threat of imminent peril of death or serious injury, which operates in your mind to overbear your will. You must reasonably believe in the threat made against you, your family or other people. The duress must be an order to do something specific (for example you cannot be threatened with harm to repay money then go choose to rob someone to repay the debt). In order to be eligible for this defence, your circumstances must be so severe that your will is effectively constrained completely.

Honest and Reasonable Mistake

Under Section 9 of the Criminal Code, if you are under a mistaken belief about the facts at the time of committing the criminal act, you will not be held criminally responsible for the offence. However, this defence is only available to offences of strict liability.


This is not a defence, however, it can be raised as a defence to specific intent offences, such as maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm. Thus, pursuant to Section 428C of the Crimes Act, evidence of intoxication at the time the offence was committed may be considered in determining whether the accused had the intent required to commit that offence.

Mental Illness

In the Local Court, a magistrate can decide that a person should be dealt with under mental health legislation instead of being subjected to sanctions for criminal conduct. Of importance here is that in the Local Court, the mental illness does not have to have existed at the time the offence was committed, but at anytime during Local Court proceedings. However, Mental Illness operates differently in the District and Supreme Courts.


A criminal act can be justified if the act is necessary to prevent a foreseeable and greater harm than the harm created by your criminal act. For example, trespassing onto a property is acceptable if you are trying to save someone from drowning in a pool. The criminal act committed must not be out of proportion to the imminent peril.


Parliament’s recognition of a person’s right to life by enabling a person to use force to protect it is enshrined in Section 418 of the Crimes Act 1900 which states:

(1)  A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2)  A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

  • to defend himself or herself or another person, or
  • to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
  • to protect property from unlawful taking, destruction, damage or interference, or
  • to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

The final two lines of that section is of significant importance, because what if a person suffers from a mental illness that alters their ability to process their emotions, which are impacted by what they perceive through their senses?

During a trial for murder – the partial defence of extreme provocation

Even though some people have taken a life, they are not to blame completely. In cases where the accused was extremely provoked by the victim, Section 23 of the Crimes Act 1900 states:

(1)  If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.

(2)  An act is done in response to extreme provocation if and only if—

  • the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and
  • the conduct of the deceased was a serious indictable offence, and
  • the conduct of the deceased caused the accused to lose self-control, and
  • the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

It must be noted however that the partial defence of extreme provocation exists only during a trial for murder.

Defence of lawful correction

Given the limited capacity for infants to understand reason and logic (by virtue of their age alone), the law recognizes that parents may require the ability to physically discipline their children. This statutory recognition is enshrined in Section 61AA of the Crimes Act 1900 which states:

(1)  In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if—

  • the physical force was applied by the parent of the child or by a person acting for a parent of the child, and
  • the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.

(2)  The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied:

  • to any part of the head or neck of the child, or
  • to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.

Rep-Revive Criminal Lawyers during the initial free consultation can canvas the possibility of both putting the prosecution to proof and raise any potential defences applicable to your circumstances.


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