Criminal Defences in NSW

Every criminal charge can be defended. The prosecution must prove every element of the offence beyond reasonable doubt, and if they fail to do so, you must be found not guilty. In addition to challenging the prosecution evidence, a number of specific legal defences are available under NSW law that, if established, result in a complete acquittal or a reduction in the charge.

Understanding which defences apply to your case is critical. The right defence strategy can mean the difference between a conviction and a complete dismissal.

Contact Blackridge Law on 02 9159 9010 for a free consultation to discuss the defences available in your matter.

Self-Defence

Self-defence is one of the most commonly raised defences to assault and violent offences. Under section 418 of the Crimes Act 1900 (NSW), a person is not criminally responsible for an offence if they carried out the conduct in self-defence. The conduct is carried out in self-defence if the person believed the conduct was necessary to defend themselves or another person, to prevent the unlawful deprivation of their liberty or another person’s liberty, or to protect property from unlawful taking, destruction, damage, or interference, and the conduct was a reasonable response in the circumstances as the person perceived them.

Self-defence is assessed subjectively (what did the accused believe?) and objectively (was the response reasonable?). The prosecution bears the burden of disproving self-defence beyond reasonable doubt once it is raised.

Duress

Duress is a defence where the accused committed the offence because they were subjected to threats of death or serious harm if they did not comply. To establish duress, the accused must show that a threat was made to kill or seriously harm the accused or another person, the threat was of such a nature that a person of ordinary firmness would have yielded to it, the accused acted because of the threat, and there was no reasonable opportunity to escape or seek protection.

Duress is available for most offences but is not available as a defence to murder or attempted murder.

Necessity

Necessity is a defence where the accused committed the offence to avoid a greater harm. It applies in genuine emergency situations where the accused had no reasonable alternative. For example, a person who drives while disqualified to transport an injured person to hospital may be able to raise necessity. The accused must show that they acted to avoid irreversible harm, that their actions were proportionate to the threat, and that there was no reasonable lawful alternative.

Mental Health Defence

Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a person may raise a defence of mental health impairment if, at the time of the offence, they were suffering from a mental health impairment or cognitive impairment that rendered them unable to know the nature and quality of their act, or unable to know that their act was wrong. If this defence is established, the person is found not guilty by reason of mental health impairment. The court may then make orders including unconditional release, conditional release, or detention in a mental health facility.

Separately, under section 14 of the Mental Health (Forensic Provisions) Act 1990 (for matters in the Local Court), a magistrate may divert a defendant with a mental health condition away from the criminal justice system and into treatment, without recording a conviction.

Intoxication

Intoxication is relevant to criminal charges where the prosecution must prove a specific intent. Under Part 11A of the Crimes Act 1900 (NSW), self-induced intoxication is not relevant to offences of basic intent (such as common assault or reckless GBH). However, it is relevant to offences that require specific intent (such as murder, where the prosecution must prove intention to kill or cause GBH, or larceny, where the prosecution must prove intention to permanently deprive).

Involuntary intoxication (where the person was drugged without their knowledge) is a full defence to any charge.

Claim of Right

A claim of right defence applies to property offences such as larceny, robbery, and fraud. If the accused honestly believed they were legally entitled to the property, they may raise this defence even if that belief was mistaken. The belief must be honest, though it does not need to be reasonable.

Identification / Alibi

The prosecution must prove beyond reasonable doubt that the accused was the person who committed the offence. Where identification is in issue, the defence can challenge the reliability of eyewitness identifications, police identification procedures (photo boards, line-ups), CCTV and forensic evidence, and circumstantial identification evidence. An alibi defence involves presenting evidence that the accused was at a different location at the time the offence was committed.

How Blackridge Law Can Help

• Defence strategy assessment — identifying every available defence at the earliest stage
• Self-defence cases — gathering evidence to support self-defence including CCTV, witness statements, and medical evidence
• Mental health applications — preparing section 14 diversions and mental health impairment defences with supporting psychiatric evidence
• Expert evidence — engaging forensic, medical, and psychiatric experts to support your defence
• Trial advocacy — experienced representation at defended hearings and jury trials
• Negotiation — using the strength of available defences to negotiate with the prosecution for reduced charges or withdrawal