Introduction to Defences

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This article is a topic within the subject Criminal Laws.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 512- 515.


[1] Defences in criminal law are actually a bit different that the common understanding of the word. A good way to look at a defence is as a 'negative fault element' of the offence (as opposed to 'positive fault elements' like actus reus or mens rea).

  • By this, it is meant that the absence of a defence must be proven.
  • However, this usually only needs to be done after the accused has actually raised the defence.
    • The defence would raise the defence, having to satisfy merely an evidentiary burden. The prosecution will then need to prove the absence of the defence beyond reasonable doubt.
    • The use of an evidentiary burden means that it is up to the judge to examine whether there is enough evidence before the matter is brought before the jury. This preserves the role of the judge as a 'gatekeeper'.

Distinction From 'Negativing Factors'

[2] Note that there is a big difference between the denial of a positive fault element (eg, 'I didn't intend to kill him', 'I wasn't there' etc) and a defence.

  • Such a denial is called a 'negativing' factor. From a theoretical perspective, the defendant doesn't have to prove what he is denying - he has no burden.
  • It is up to the prosecution to prove that he was there beyond reasonable doubt (he merely tries to instill doubt in the jury's minds)

Defences Which Deny the Elements

[3] There are some defences which, if argued successfully, actually operate to deny a positive fault element (eg, automatism and intoxication defence deny voluntariness).

  • This prompts people to argue that they are not real defences, but merely negativing factors.
  • However, because these defences require the accused to raise an evidentiary burden of proof, they are still viewed as a defence.

Bars to Conviction

[4] Bars to conviction are procedural rules of the criminal law which prevent conviction regardless of factual fault elements.

  • Examples include statutory limitation periods, double jeopardy, immunities etc.
  • They are justified by the notion that the importance of the social interest or public policy involved outweighs the bringing to justice of a particular person.

Justifications and Excuses

[5] There used to be a distinction between justifiable homicide and excusable homicide. It does not exist anymore with the abolition of forfeiture by statute.

A Single Category of Homicide

[6] As murder used to carry the severest punishment, several partial defences existed which would reduce the conviction to manslaughter. With the abolition of capital punishment, the use of these partial defences has been questioned.

  • Several commentators have called for murder and manslaughter to be merged into one offence of ‘unlawful homicide’.
  • This has been rejected by the NSW government. It cited the ‘stigma’ associated with the term ‘murder’, a positive aspect that should be kept as a deterrent.
  • Further, a single definition of ‘unlawful homicide’ is likely to further curb the role of the jury: the judge will play an increasingly prominent role.


This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.


Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 512-3.
  2. Textbook, p. 513.
  3. Textbook, pp. 513-4.
  4. Textbook, p. 514.
  5. Textbook, p. 514.
  6. Textbook, pp. 514-5.
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