Criminal Defences in Australia
In Australia, individuals charged with a criminal offence may rely on a range of legal and factual defences. A criminal defence is an argument or justification that explains why an individual committed a particular offence. These defences are typically divided into two main categories: complete defences and partial defences. Complete Defences A complete defence, if accepted by the court, results in complete exoneration from any criminal liability. This means the accused will be found ‘not guilty’ of the charges. Some complete defences are specific to certain offences and are laid out in corresponding legislative instruments; however, most originate in common law. Mistake of Fact The defence of mistake of fact requires demonstrating that: You held a mistaken belief or were ignorant of the facts or circumstances surrounding an act or omission. Due to this mistaken belief, you did not possess the ‘mental element’ required to commit the offence. Had the facts been as you reasonably believed at the time, no criminal offence would have been committed. The belief you held was honest and reasonable in the given circumstances. It’s crucial to note that this defence applies only to mistakes of fact, not law; ignorance of relevant laws in your jurisdiction does not constitute a criminal defence. Example: Kylie arrives at Sydney Airport from New Zealand and waits at the corresponding baggage carousel for her checked baggage to emerge. When a pink Barbie bag identical to hers appears, she takes it, believing it to be hers. Once home, she discovers it’s not her bag. In this situation, Kylie’s honest and reasonable belief that she was collecting her own bag could support a defence of mistake of fact. Claim of Right A claim of right defence can be raised when an individual is recovering property or money they believe belongs to them or someone else. This defence isn’t limited to the specific item previously held by the person attempting recovery but can extend to property of equal value. Moreover, it’s available to a person acting on behalf of another whom they believe has an honest claim to that property. It should be noted, however, that although this defence may apply, a person cannot commit further criminal acts (e.g., assault or trespass) while attempting to recover property. Consent The latin maxim volenti non fit injuria — “no injury is done to one who consents” — underlies the common law defence of consent, defined as giving permission or agreement for an action to occur. While consent is a well-established legal principle, it applies to a limited range of offences. Certain crimes, such as incest, sexual offences with minors, slavery, female genital mutilation, and bestiality, do not permit consent as a defence. In situations where consent is available as a defence, the lack of consent can turn otherwise lawful acts into criminal offences. Examples include: Sexual intercourse becoming the offence of rape, Sparring or boxing becoming assault, Surgery becoming wounding, Taking property becoming stealing, Abortion or euthanasia becoming murder, Mural paintings becoming damaging property, Entering another’s property becoming trespass. Necessity Also referred to as ‘sudden or extraordinary emergency’, the defence of necessity applies when an unlawful act is committed to respond to an immediate, significant threat. For this defence to succeed, the court assesses whether the unlawful act was the only reasonable way to address the emergency and whether the response was proportionate given the circumstances. Duress and Coercion The defence of duress protects a person from criminal liability if the offence was committed to avoid serious, imminent harm to themselves or others. When invoking duress, the court considers whether: The accused faced genuine imminent threats of death or serious injury to themselves, a family member, or another person, A reasonable person would have acted similarly in response to the threat, The accused had no other lawful means to counter the threat. If these conditions are met, duress may be a valid defence. If any condition fails, the defence of duress is unavailable. Self-Defence Self-defence absolves an individual of criminal responsibility when force is used to protect oneself or others, as long as the force is necessary and reasonable in response to an imminent, perceived threat. The threat does not need to have materialised; one may act pre-emptively in anticipation of the imminent threat. This defence is applicable when the force used is minimal and proportionate to the perceived level of threat. In cases where self-defence leads to death, section 421 of the Crimes Act 1900 provides that excessive force may reduce a murder charge to manslaughter. Section 419 of the Crimes Act 1900 specifies that, once raised, the burden shifts to the prosecution to disprove the defence. Intoxication Historically, self-intoxication served as a common law defence until the late 1900s, but most Australian states and territories have since enacted legislative provisions addressing intoxication. In New South Wales, Part 11A of the Crimes Act 1900 provides that, for specific intent offences, intoxication may be considered if the intent was formed during and as a result of the intoxication. However, this defence will not succeed if the intent to commit the offence was established prior to becoming intoxicated. If this defence is successfully argued for a specific intent offence, the individual would instead be convicted of a less serious offence. Mental Illness The mental illness defence applies when a person has such a severe mental illness or cognitive impairment that they cannot be held fully responsible for their actions, making punishment inappropriate. This is due to the loss of deterrence and retribution as justifiable purposes of punishment. For most offences, mental illness acts as a complete defence. Section 23A of the Crimes Act 1900 states that in cases where mental impairment would otherwise result in a murder conviction, the charge is instead reduced to manslaughter. Proving this defence requires evidence of significant cognitive and emotional impairments, such as the inability to distinguish between right and wrong and impaired self-control. Automatism Automatism, or involuntary actions performed without conscious volition, can act as a defence if the
New Affirmative Sexual Consent Laws
What is sexual consent? Under the Crimes Act 1900, sexual consent is defined as a person freely and voluntarily agreeing to engage in sexual activity at the time of the act. Sexual activity, in this context, includes sexual intercourse, sexual touching, or other sexual acts as specified by the legislation. Legislative Reforms On 1 June 2022, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 introduced significant changes to New South Wales’ sexual consent laws. These reforms added Part 3, Division 10, subdivision 1A to the Crimes Act 1900. These reforms emphasise that affirmative consent requires active participation and ongoing communication between all parties involved in sexual activity. A key reform is the adoption of affirmative, communicative consent language. The new laws make it clear that consent must be expressed through words or actions, and individuals are responsible for taking active steps to ensure the other person is consenting. In explaining how consent may be freely and voluntarily conveyed, the Attorney General noted that this could include “reciprocating body language or affirming remarks throughout a sexual encounter” (Second Reading Speech, Legislative Assembly, Debates, 20 October 2021, p. 7507). As a result, consent can no longer be inferred from a lack of physical or verbal resistance to sexual activity. The case of R v Lazarus [2017] highlighted the need for this shift and was a key motivator for the Attorney General in passing the new affirmative consent laws. These legislative amendments place the responsibility on each person to obtain positive confirmation of consent from the other party or parties, through either words or actions, to ensure they are willing participants. If a defendant seeks to argue at trial that consent was given, the onus is on the defendant to demonstrate that the complainant gave affirmative consent through their words or actions. Key Takeaways from the Changes to Consent Legislation Consent is a free and voluntary agreement that should not be assumed based on a lack of verbal or physical resistance. Instead, both parties must say or do something to affirm their consent to sexual activity. Consent cannot be presumed based on prior encounters; consent for one occasion does not imply consent for future occasions. Consent is invalid if obtained through misleading identity or fraudulent inducement. Fraudulent inducement does not include misrepresentations about a person’s feelings, wealth, income, or the use of “pick-up lines” or minor deceptions. Consent is not present if participation is due to coercion, blackmail, or abuse. Consent is absent if a person is asleep, unconscious, or impaired by alcohol or other drugs. If you or a loved one has been charged with a sexual offence, please reach out to our team for a free consultation.
Possession of illicit objects located within a property or vehicle
The legal concept of possession involves having intentional control over an object at a given time, either individually or jointly with others. To establish possession, the individual and any co-possessors must also hold the right to exclude others from access to the object. When these criteria are met, an individual is considered to possess the object, whether solely or jointly with others. Vehicles There may be instances where you are driving, controlling, or merely a passenger in a vehicle you do not own or that is shared with others. In such situations, you might not be fully aware of all the vehicle’s contents. This lack of knowledge can lead to significant complications if police conduct a search and discover illicit items (such as drugs or firearms) in hidden compartments or areas not readily visible to the driver or passengers. Relevant case law can assist in determining whether a driver or passenger is legally deemed to possess these items. For instance, in R v Amanatidis [2001] NSWCCA 400, drugs were found in a vehicle driven by the appellant. Although it was established that as the driver and keyholder he had physical control over the drugs, his knowledge of their presence could not be proven. Police often infer a person’s knowledge or possession of an illicit object if certain conditions are present, including: Presence of the person’s DNA or fingerprints on the object, or The illicit object’s visibility or accessibility to the driver or passenger, or Mentions of the illicit object in text messages, phone calls, or recordings from surveillance devices, or The person’s behaviour before the discovery of the object, such as if they were caught supplying drugs and drugs were subsequently found in their vehicle. Property When residing in or visiting a property shared with others, you may not be fully aware of the contents in certain areas, especially if you do not have regular access to or use specific parts of the property. This lack of awareness can cause serious issues if police conduct a search and discover illicit items (such as drugs or firearms) in concealed or otherwise inaccessible areas of the property. Again, relevant case law can assist in determining whether a visitor or occupant is deemed to possess illicit items within a property. In R v Filipetti (1984) 13 A Crim R 335, drugs were discovered in the lounge room of a home occupied by six individuals, each of whom had access to the space. The court concluded that exclusive physical control of the drugs (by one of or all of the occupants) could not be established, and shared control could not be inferred, preventing police from identifying which of the six occupants possessed the drugs. Generally, police will infer a person’s knowledge or possession of an illicit object within a property in certain circumstances, such as: If the person’s personal belongings are near or in the room where the object is found, or Presence of the person’s DNA or fingerprints on or close to the object, or Visibility or accessibility of the object to the person, or References to the object by the person in text messages, phone calls, or recordings from surveillance devices, or The person’s actions preceding the object’s discovery, such as if they were caught supplying drugs and drugs were found in the property they were occupying or visiting immediately afterward. If you or a loved one have been present in a vehicle or property where police discovered illicit items, please reach out to our team for a free consultation.