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Criminal Law Defences in Victoria

If you are charged with a criminal offence, the police need to prove to the court beyond any reasonable doubt that you committed the offence. Some defences are straight forward – such as “I wasn’t there” or “I didn’t do it” – but there are other criminal law defences in Victoria that may be available to you.

For most offences under Commonwealth law these defences are now set out in the Criminal Code 1995 (Cth). For Victorian state offences, the defences may be set out in an act, or they may be part of the Common Law. Common law defences are those that they are described in decisions made by the courts in past cases.

There are also certain time limits for the police to lay many charges and if they are not laid within that specified time then they are statute barred. That is therefore a complete defence to the charge. The time limit can be as short as 1 year depending on the type of charge.

Criminal-Law-Defences-VIC

Defences under the Crimes Act 1958

The following defences are outlined in the Crimes Act 1958;

Self-defence

When you believed on reasonable grounds that it was necessary to do what you did to defend yourself, another person or your property. That belief has to be there at the time that you did it, and it must be based on reasonable grounds. It doesn’t matter if you are mistaken in your belief. Self-defence can’t be in response to lawful conduct, unless you didn’t know that the other person was acting lawfully.

Duress

Duress is the defence where there was a threat of harm to you or someone you are responsible for and the conduct was the only way that the harm could be avoided. It doesn’t apply if the threat is made by or on behalf of a person that you are voluntarily associating with to carry out some other violent conduct. It only applies in the case of murder if the threat is to kill or to cause a really serious injury.

Sudden or extraordinary emergency

If your conduct was the only reasonable way to deal with an emergency situation, even though it was illegal. It only applies in the case of murder if you believe that the emergency involves a risk of death or really serious injury.

Defence under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

There is a specific defence in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which may apply if you were suffering from a mental impairment at the time of the offence. It is a defence which must be proved on the balance of probabilities – that is, that it is more likely to be true than not. To be mentally impaired you must have been suffering from some real form of mental disease, disorder or disturbance that had the effect that you either did not know what you were doing or you did not know that it was wrong. Mental impairment may be transitory (passing) or permanent and may be capable of treatment or not.

Common law defences

Claim of Right

The defence of claim of right applies to offences regarding property. It can be used if you have an honestly held belief about the ownership or entitlement to the property. It must be a legal right to the property, not just a moral right. If you raise this defence it is up to you to prove it.

Honest and Reasonable Mistake

The defence of honest and reasonable mistake of fact can only be used for offences that rely on strict liability. These are cases where the prosecution does not have to prove that you intended something to happen, only that it did happen. It is a defence if, at the time of the offence, you were mistaken about or unaware of certain facts about something and, if the facts were as you thought they were, you would not have been guilty of the offence. It does not apply if you are mistaken about what the law says. If you raise this defence it is up to you to prove what you say.

Intoxication

Intoxication in Victoria is covered both by the Crimes Act 1958 and the common law. The Act describes the circumstances where the defence can’t be used. Effectively, intoxication by itself is not a defence but it can have an impact on whether the required mental element is there for some offences where that must be proved. It can affect whether you intended to commit the crime and/or its consequences.

Consent

Whereas consent might be seen to be a question of fact, the Crimes Act 1958 gives a definition of consent as a free agreement. It sets out 7 circumstances where a person does not freely agree to an act, but there are other circumstances where behaviour might still be seen as non-consensual.

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