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Defences
Guarding your future starts with getting the best legal representation
Defenses

Defences

Guarding your future starts with getting the best legal representation

legal defences

Protect Your Rights

The criminal justice system is incredibly complex. If you’ve been charged with a criminal or driving offence, getting the best outcome requires expert knowledge of the defences available to you at law. Criminal defences are highly technical and very specific. Each has rules determining when they can be raised, for what charges they are relevant, and under what circumstances they may be successful.

Below is listed various defences available. When planning your defence, your lawyer will work with you to discover if a defence applies to your case and if raising it will be a successful strategy for your case.

To learn more about criminal defences, click on the links below for more specific information.

It’s vital that before you consider your plea or what defences might apply to your case, you seek expert legal advice. If you have been charged with an offence or are under investigation, contact Garde Wilson Lawyers immediately for a free, no obligation consultation to discuss your options.
01

Automatism

Defences list

Interferences in normal functioning where a person’s actions can no longer be considered voluntary.
02

Charges are statue barred

Defences list

Legal defence argues it is unfair to defend a criminal charge after a certain time has passed.
03

Claim of right

Defences list

A claim of right exists when the accused believes they are entitled to the property.
04

Consent

Defences list

This defence is used mainly in cases requiring absence of consent, especially sexual crimes.
05

Duress

Defences list

To be guilty of a criminal charge, the accused must have acted voluntarily and with intent.
06

Factual Dispute

Defences list

Pleading guilty does not mean accepting the prosecution’s version of the facts.
07

Honest mistake or belief

Defences list

An honest mistake of belief is a reasonable but mistaken belief in the lawfulness of one’s actions.
08

Impossibility

Defences list

This defence protects those accused of a crime that was impossible to commit.
09

Intoxication

Defences list

Intoxication isn’t a defence but can impact a jury’s evaluation of the crime’s elements.
10

Lack of intent

Defences list

To be guilty, the prosecution must prove specific intent to commit the crime.
11

Mental Impairment

Defences list

Criminal intent requires that the accused’s judgment not be impaired by a ‘disease of the mind.
12

Self defence

Defences list

Self-defence can be used against criminal offences while protecting yourself, property, or others.
13

Sudden emergency

Defences list

This defence applies when an offence is committed under threat or sudden emergency.

Charged with a Criminal Offence
or Under Investigation?

Charged with a Criminal Offence or Under Investigation?

Getting the best legal representation is the best way to secure a positive outcome. If you’ve been charged with a criminal offence or are under investigation, Garde Wilson Lawyers are here to help.

Don’t delay. Contact us now for a free consultation to discuss your case, receive immediate advice and improve your chances of getting life back to normal, faster.

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Frequently asked question

Do you still have questions?

01What is a “mental impairment” defence in Victorian criminal law?

A mental impairment defence means you can argue you weren’t criminally responsible due to a mental condition that prevented you from understanding your actions or knowing they were wrong. This defence is based on whether you had the capacity to understand what you were doing at the time of the offence.

Intoxication is rarely a valid defence in Victoria. If intoxication were voluntary, it wouldn’t excuse criminal behaviour. However, if you were involuntarily intoxicated, it could be considered in limited cases, particularly where it affects your ability to form the necessary intent for an offence.

Duress means you committed an offence because you were threatened with harm and had no choice but to comply. The threat must be serious (e.g., death or injury), and you must have believed there was no other option to avoid harm.

Self-defence can be used if you genuinely believe you were at risk of harm and your response was reasonable to protect yourself or others. The force used must be proportionate to the threat faced.

No. Investigation is part of preparing your case. Your lawyer gathers evidence to identify defences and protect your rights, and it doesn’t mean you’ve admitted guilt. You are still presumed innocent.

An early plea might limit your ability to use certain defences, like mental impairment or duress, since you’re admitting to the offence. However, it may lead to a more favourable outcome, such as a reduced sentence. Always consult with your lawyer before deciding.

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Melbourne VIC 3000

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0400 002 188

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Paradise QLD 4217

0448 426 444

[email protected]

Garde Wilson Lawyers © 2025.
All Rights Reserved, Australia

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Legal Defences

Automatism

The defence of automatism is used to protect the accused from being charged for offences committed while they are unable to control their behaviour due to a ‘disease of the mind’.

Automatism

For an accused to be found guilty and convicted of a crime, the prosecution must prove at the accused was in full control of their actions and was acting voluntarily.

Automatism refers to interferences in normal functioning where a person’s actions can no longer be considered voluntary; however are not the product of duress (being forced by another person) or necessity (a matter of survival). When an offence is committed in the state of automatism, it means the person engaged in the act is not in control of their actions or behaviours.

There are two categories of automatism: sane automatism and insane automatism.

Sane automatism exists when a person’s conduct is caused by a non-recurrent mental malfunction which causes them to lose control over their actions and ability to make decisions. For the defence of sane automatism to be raised, the accused must show that their actions were caused by some external factor, that their actions were unintentional or involuntary, and that their actions were not the result of a mental illness, but rather a non-recurrent mental malfunction.

Furthermore, for this defence to be raised, it must be shown that the non-recurrent mental malfunction was not the result of deliberate intoxication. Examples of sane automatism include offences committed during sleep walking, under the influence of anaesthetic, or actions resulting from the onset of a severe psychological trauma or shock.

The defence of insane automatism refers to actions performed while a ‘disease of the mind’ is present. This can mean a mental illness, disorder, or change in functioning caused by a disease which negatively impacts the ability of the accused to act voluntarily.

When this defence is raised, the defendant must show that they were suffering from a ‘disease of the mind’ at the time of the act, and that the due to this illness or disease, the accused did not comprehend the wrongful nature of what they were doing.

Legal Defences

Charges are

Statute Barred

The defence of automatism is used to protect the accused from being charged for offences committed while they are unable to control their behaviour due to a ‘disease of the mind’.

Charges are Statute Barred
You may have heard the term, statutes of limitations . What is actually referred by this is the legal defence of charges being barred by statute. This defence is grounded in the principle that it is disadvantageous or unfair for a person to defend a criminal charge after a certain time has passed. This is particularly important in cases where evidence, such as memories or recollections of witnesses, can erode over time and become less reliable.

For some criminal offences, there are strict time limits set by law on how long after an offence has been committed that police are permitted to wait before pressing charges. For those offences, it is unlawful for someone to be charge after the time limit set by law has passed.

These limits depend largely on how serious the offence is, however for many summary offences they can be as low as one year.

Legal Defences

Claim of Right

A claim of right exists when the accused honestly believes they were legally entitled to property which has become the focus of a criminal charge.

Claim of Right - Defences

A claim of right defence is raised for property offences where the accused honestly believed they were legally entitled to the property.

This defence asserts that the accused was under the honest belief, even though mistaken, that they had a legal right to an item they are accused of unlawfully owning or possessing and that they were simply exercising what they believed to be a legal possessory or proprietary right.

For this defence to be raised, the claim of right of legal entitlement must be honestly held, and it is the responsibility defendant to prove that the belief was an honest one. The defendant does not need to prove that the belief was reasonable; however the reasonableness of the belief does become relevant when the court determines how plausible the assertion of honesty of belief is.

Legal Defences

Consent

This defence is used primarily in cases where absence of consent is required; specifically for crimes of a sexual nature.

Consent - Defences
The law defines consent as free agreement . In cases where consent needs to be established, the prosecution must prove, beyond reasonable doubt, that the acts of the accused were nonconsensual and that the accused was aware of it being non-consensual.

The defence of consent is used where the absence of consent is an element to determining whether a criminal offence has occurred or not. This is most often the case in sexual offence cases, where the absence of consent contributes to allegations of rape or sexual assault.

In matters of crimes of a sexual nature, there are instances where the law will automatically consider a person unable to give consent. The provision and gaining of consent is a highly complex issue, and while the Crimes Act 1958 (Vic)
provides a list of these instances where legal consent cannot be given, it should not be considered exhaustive and is constantly evolving.

Circumstances in which a person does not consent to a sexual act include:

  • Where a person is incapable of understanding the sexual nature of the act;
  • Where a person is mistaken about the sexual nature of the act;
  • When a person is asleep or unconscious;
  • When having given consent, a person later withdraws their consent to the sexual act taking place or continuing;
  • When a person is so affected by alcohol or another drug as to render them unable of providing consent to the act;
  • When a person submits to the act because they fear harm of any kind to themselves, someone else, or to an animal.

Legal Defences

Duress

To be found guilty of a criminal charge, the accused must have acted voluntarily and with the specific intent of committing a crime.

Duress - Defences

The defence of duress exists to protect people who are charged with an offence committed under threat of harm, either to themselves or another person, and the act was performed to avoid the threatened harm.

The law establishes that for the defence of duress to be raised, the threat of harm must be ‘present and continuing, imminent and impending’. For the defence of duress to be upheld, the accused must demonstrate through evidence that at the time of committing the act, they were responding to a physical threat of harm or reprisal if they did not perform the offending act.

While the defence of duress is an absolute defence for most criminal charges, in the case of murder, the accused must show that accused was threatened with being killed or seriously injured.

The evidentiary burden of proof for duress lies with the accused, meaning it is up to the person charged with an offence and claiming the presence of duress to prove they were, in fact, acting only because of the presence of a threat of harm.

Once raised, it is up to the prosecution to then disprove the presence of duress. They will be successful if they can prove:

  • There was no threat of harm to the accused or someone under their responsibility if they did not commit the crime they are charged with;

  • The threat of harm to the accused or someone they were responsible for was not ‘present, continuing, imminent and impending’;

  • The accused did not reasonably believe that the threat of harm would be carried out if they did not commit the crime they are charged with;

  • The accused voluntarily exposed themselves to duress through their actions;

  • The accused could safely have prevented the execution of the threat of harm;

  • The accused could have safely refused to yield to the threat of harm and the performance of the criminal act.

Legal Defences

Factual Dispute

Pleading guilty to a charge does not necessarily mean accepting the facts of the case as presented by the prosecution.

Factual Dispute - Defences

To be found guilty of an offence, the circumstances, facts and evidence used by the prosecution and police must be accurate and true. Where they are not, an opportunity arises to negotiate with the prosecutor, because by exposing this discrepancy before the court will seriously jeopardise both their reputation and the strength of their case.

If the prosecution refuses to negotiate, you may be able to raise the matter before a ‘disputed facts hearing’. In such a hearing, it is not the accused guilt or innocence of the accused which is contested, rather the accuracy and truthfulness of the evidence used by the prosecutor is assessed.

If it is found that the facts used by police are inaccurate, untrue, or incomplete, the court may refuse to allow them to be used and significantly reduce the strength of the prosecutor’s case, or result in charges being dropped altogether.

Legal Defences

Honest Mistake of Belief

An honest mistake of belief exists when the accused holds a reasonable but mistaken belief that their actions are lawful at the time of the offence.

Honest Mistake of Belief - Defences

To be found guilty of a criminal offence in Victoria, it must be found that the accused acted with ‘criminal intent’ when committing the act, or that they honestly believed they were entitled to act the way they did. This defence is raised then the accused in fact held an honest and reasonably held belief that their actions did not contravene the law.

This defence may also be used when a person is charged with ‘strict liability’ offences, where the prosecution does not need to prove the accused intended to commit the offence, such as driving charges or dealing with property suspected of being the proceeds of crime.

The defence of honest mistake of belief is raised when the accused holds a reasonable, but mistaken belief at the time of committing the offence. It is then up to the accused to prove that:

The mistaken belief was honestly held and the accused was not merely ignorant of the law or negligent in their conduct

The mistaken belief was reasonable and rational, and capable of sustained belief; given the circumstances the accused was in at the time of the offence.

If the prosecution is unable to show that they accused was not honestly mistaken, or that their mistake was not reasonable, the accused will be acquitted.

Legal Defences

Impossibility

An honest mistake of belief exists when the accused holds a reasonable but mistaken belief that their actions are lawful at the time of the offence.

Impossibility - Defences

The defence of impossibility may be raised when it is physically, factually, or legally impossible for the accused to have committed the crime they have been charged with.

Physical impossibility exists where it is physically impossible for the accused to have committed the offence. This can arise in circumstances where the accused is physically incapable, for instance due to physical incapacity such as an injury or medical condition, of committing the crime they are charged with.

Factual impossibility arises when the facts used by the prosecution rest on claims of fact that are inaccurate or false. This is relevant in cases where the accused can prove they were at a difference place at the time when the offence happened. This is commonly referred to as an ‘alibi’.

Legal impossibility refers to facts which make it impossible for a person to be charged for an offence under the law. For example, a defence of legal impossibility may be raised if a person is charged with handling stolen goods, and the goods are in fact not stolen.

Legal Defences

Intoxication

While not a defence against criminal charges, intoxication can be significant in a jury’s assessment of whether all the elements of a crime existed.

Intoxication - Defences

Intoxication can be relevant when dealing with offences which can only be proven if the court is satisfied that the accused intended to commit a crime. When a person is charged with an offence of intent, it is up to the prosecution to prove that the accused acted intentionally and intended a specific result.

Examples of specific intent offences are:

  • Homicide or Murder, where the accused must have intended to kill the victim
  • Theft, where the accused must have intended to permanently deprive someone of their property
  • Fraud, where the accused must have intended to deceive another party and gain through that deception
  • Intentionally causing serious injury, where the accused must have deliberately assaulted a victim with the intent of causing a serious injury.

When the defence of intoxication is raised, it is the responsibility of the accused to prove that due to their intoxication, they were not acting voluntarily and thus did not intend to commit an offence.

In such cases, the court will compare their actions to that of a ‘reasonable sober person’ to determine whether their intoxication impaired their judgement and ability to form intention.

Legal Defences

Lack of Intent

To be found guilty of a criminal offence, the prosecution must prove that the accused committed an offence with specific intent of committing a crime.

Lack of Intent - Defences

Intent is a vital element of many criminal offences. Lack of intent can be raised when a person charged with an offence can show their actions were involuntarily, unintentional, or caused by unforeseeable circumstances.

According to Victorian criminal law, for an act to be intentional, it must:

  • Be voluntary and one the accused means to be engaged in;
  • Be founded on circumstances which are foreseeable and which the accused believes exist or will exist;
  • Result in outcomes which are intended by accused and which will come about in the ordinary course of events.

Lack of intent is not a defence according to Victorian legislation or criminal law, however it is raised as an alternative explanation to the prosecutor’s argument. Examples where lack of intent may be relevant include charges of assault or murder, where the actions of the accused result in the serious injury or death of another person.

For instance, if a person tripped and fell, causing injury to another person, their conduct does not include the intent necessary to warrant a charge of assault.

Accordingly, if a person charged with murder was acting recklessly or negligently, and did not intend the death of another person, their charge may be downgraded to manslaughter.

Legal Defences

Mental Impairment

For criminal intent to be established, the ability of the judgement of the accused must not be impaired or diminished due to a ‘disease of the mind’.

Mental Impairment - Defences

The defence of mental impairment is a statutory defence, legislated under section 20 of the Crimes Act 1997 (Vic) and is used when an accused is afflicted by a mental disorder, disturbance or disease that causes them to not know what they are doing, or not know that what they are doing is wrong.

When deciding a criminal case, courts assume that all people have the ability to make rational decisions and are aware of the outcomes of their actions. When raised, the defence of mental impairment acts to show this assumption does not apply.

To successfully rebut the presumption of sanity and show mental impairment beyond reasonable doubt, the accused my show that at the time of offending, their mental impairment caused them to:

  • Not know the nature of what they were doing or appreciate the consequences of their behaviour;
  • Not know that their conduct was wrong or unlawful.

Furthermore, it must be proven that this state was caused by a ‘disease of the mind’, which in Victorian law includes, but is not limited to:

  • Brain injuries
  • Tumours
  • Schizophrenia
  • Psychomotor epilepsy
  • Hyperglycaemia
  • Cerebral arteriosclerosis

Legal Defences

Self Defence

The defence of self-defence may be used to defence a range of criminal offences when protecting yourself, your property, or another person.

Self Defence - Defences

In Victoria, self-defence is governed by statute under the Crimes Act 1958. While previously the statutory defence of self-defence was only available for murder and manslaughter, in 2014 the Act was amended to provide a single self-defence provision for all offences.

According to section 322K of the Crimes Act:

  1. A person is not guilty of 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:
  • They believe that the conduct is necessary in self-defence; and
  • Their conduct is a reasonable response in the circumstances as the person perceives them.

For the defence of self-defence to be raised, the accused must successfully prove that they held the genuine belief that their actions were necessary to prevent harm either to themselves or another person in their responsibility, or deprivation of their property. It does not matter what a ‘reasonable person’ might have believed in the circumstances, rather what matters is that the accused honestly believed their actions were necessary, even if that belief was mistaken.

If the court is satisfied that the accused honestly believed their actions were necessary, it must then consider whether their actions were reasonable and proportionate in the circumstances. While this is an objective test, it must take into account the subjective experience of the accused within the context of their circumstances. This includes their personal attributes and history, and how this may have informed their perceptions of the circumstances.

Legal Defences

Sudden Or Extraordinary Emergency

This defence can be raised where a person commits an offence only due to the fact they were compelled by a threat or sudden emergency.

Sudden Or Extraordinary Emergency - Defences
In Victoria, this defence is legislated under Section 322R of the Crimes Act 1958. The provision states that a person is not guilty for an offence committed in circumstances where to not do so would result in serious harm or injury to either themselves or someone under their responsibility.

For this defence to apply, the accused must prove the following:

  • they held an honest and reasonable belief that circumstances of sudden or extraordinary emergency existed;
  • they believed their conduct was the only reasonable way to deal with the circumstances of sudden or extraordinary emergency;
  • their conduct was reasonable given the circumstances of – sudden or extraordinary emergency they faced.

If the defence of sudden or extraordinary emergency is raised, it is then up to the prosecution to show that the actions were unreasonable in the circumstances beyond reasonable doubt.

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I had the privilege of working with Garde Wilson Criminal Lawyers during a very difficult time, and I cannot recommend them highly enough. From the moment I reached out, their team demonstrated professionalism, expertise, and a deep understanding of criminal law.

They took the time to thoroughly explain the legal process and ensured I felt informed and supported every step of the way.

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I have no words to express my gratitude 🙏 to Zara and Ryan they all are amazing criminal lawyers. After living 30 years of my life in Australia I dealt with many lawyers in my career but at last I found these who saved my life.

I was expecting jail sentence and I was innocent for the Domestic violence charges but at Zara they got me out clean without conviction which was unbelievable. I have never seen any lawyers like them in my life. If I say it I mean it.

I strongly say if Garde Wilson criminal Lawyers can’t save your Reputation, dignity and freedom to happy life by winning your case then no one can they are the best In Australia, unbelievable achievement and As we all know the Moorabbin court is a hard winning court where magistrates are very very strict but now I am highly convinced and thankful to Zara who saved my life and they have fought till end for me, I have to say this law firm don’t chase dollars they are more focused to support And give you the most possible and positive outcome , they have good Barrister, Zara is Amazing Conclusion of my Review if you don’t seek legal advise from the Garde Wilson then you are playing with your life I highly recommend Garde Wilson Criminal defence lawyers if they can’t give you good Result then don’t waste your time with other law firms
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I cannot express enough Grattitude to the team at Garde-Wilson Lawyers. Not only did they achieve a fantastic result (withdrawal of all charges), but as importantly and appreciated, the entire team; Zarah and Ray, treated me with such compassion and empathy, helped me not only in a legal sense but also on a personal level to assist me in dealing with the stress of the matter, and have been nothing short of extraordinary in every respect.

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Thanking you all.

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testimonials

ahmed adhil

29 December 2024
testmonials

Google Reviews

4.8

testmonials

Based on 168 reviews

Review for Ray raheem,Lachlan hocking/ Garde Wilson team

I am incredibly grateful for their professionalism, dedication, and compassion in handling my case. Thanks to their expertise, I was able to secure a diversion outcome, which has given me a second chance to move forward without a criminal record.

From the beginning, they explained the legal process clearly, addressed all my concerns, and guided me every step of the way. They not only understood the legal aspects of my case but also showed genuine care for my well-being and future.

Their ability to present my case effectively and advocate on my behalf was exceptional. I highly recommend [Lal Lachlan and team/Garde Wilson lawyers to anyone seeking legal representation—they are thorough, knowledgeable, and truly committed to achieving the best possible outcome for their clients.

Thank you again for your incredible support during such a challenging time.

What Our Clients Are Saying?

testimonials

Celeste Earle

11 December 2024
testmonials

Google Reviews

4.8

testmonials

Based on 168 reviews

The Team at Garde Wilson provided exceptional second to none service, they were extremely professional and comforting at a time of great stress. The level of experience, skills and knowledge was evident from our first appointment, the positive outcome we received would not have been possible without them.

What Our Clients Are Saying?

testimonials

Rel KC

17 November 2023
testmonials

Google Reviews

4.8

testmonials

Based on 168 reviews

Wow! This team are incredible!
With 48hrs notice the Garde Wilson team had my partner sorted and had barrister Hazel appear on his behalf today to finally put an end to completely unjust continuation of AVOs for 12yrs.

Not only were they completely dedicated and across all details, Hazel had the ability to get the applicant to finally withdraw their frivolous continued applications.
Money well spent.

If you want the best, We can not recommend this firm and it’s incredible team high enough.

Thankyou to all involved in getting the very best of results for my partner today.