Defences

About Statutory defences

Statutory defences are available to most criminal charges people face when they come before the District and Local Courts.

Below is an example of some of the defences available to the most common of matters before the Local Courts, being assault and driving offences. Please speak with your lawyer in relation to any defences that may be available to you.

Charged with assault?

If you are charged with assault, which includes assault occasioning actual bodily harm and assault occasioning grievous bodily harm, there may be a defence available to you depending upon the circumstances of the alleged offence.

For example, under section 418 of the Crimes Act (NSW) 1900, self-defence is a defence to the charge of assault. If the defence of self-defence is raised by your lawyer, the onus of proof then shifts to the prosecution (being the Crown, the DPP or Police Prosecutor) to show that your actions were unreasonable in the circumstances.

Driving Offences

Many driving offences carry an automatic disqualification period. However, these automatic periods may be reduced where a Magistrate is satisfied there are sound reasons to do so.

For most people, their driving licence is critical to their ability to work and for their daily living requirements. Engaging HCD Law may ultimately mean the difference between you keeping your job or being able to take your family on your annual holiday. In the most serious cases, it may mean you remain out of gaol.

Contact HCD Law today to ensure you have the best chance of achieving a favourable outcome.

There are also a number of defences available to driving offences.

These include the defence of “honest and reasonable mistake”, the requirement that someone is tested within two (2) hours of driving, the defence of automatism and putting the vehicle in motion.

These defences are discussed in more detail below.

Honest and Reasonable Mistake

The defence of “honest and reasonable mistake of fact” is available as a defence for drink driving offences. [ Director Public Prosecutions (NSW) v Bone (2005) 64 NSWLR 735.]

This defence has been successfully used in cases where the person had their drink spiked.

It has also been applied successfully in cases where a person had been consuming cough medicine in addition to alcoholic drinks but was unaware that the cough medicine also contained alcohol.

Tested within 2 Hours?

The breath test relied upon in any attempt to prosecute must be taken within two (2) hours of driving.

The Police are not allowed to conduct a breath test if you are at your residential premises.

It is up to the prosecution to prove beyond reasonable doubt that the test was not conducted at the person’s usual place of abode if raised by you or your lawyer.

There is a defence under section 11B(5) to the charge of section 11B93) of the Road Transport (Safety and Traffic Management) Act 1999, if the person can prove that the presence of morphine in the defendant’s blood or urine was caused by the consumption of the substance for medicinal purposes.

Defence of Automatism

There has been a reported case of a person “sleep-driving” following taking medication that had triggered the sleeping incident.

The court held that there was sufficient evidence that raised a reasonable possibility that the act of driving was involuntary and the prosecution case did not remove reasonable doubt: Conviction Appeal of Robert James Kingston [2008] NSWDC 86.

Putting Vehicle in Motion

It is an essential element of most drink driving offences that the prosecution proves that the person intended to “.. put the vehicle in motion”.

In determining intent, the court considers the acts immediately connected with the alleged offence are considered. In other words, if there is some suggestion that you did not intend on driving the vehicle, the prosecution must prove that you intended on driving the vehicle to satisfy the court that the elements of the driving offence have been met.

In reported cases where a person who was under the influence of intoxicating liquor got into the driving seat of a motor vehicle, touched the accelerator and started the engine, after letting people know of his intent to drive the vehicle – it was held that the evidence was sufficient to support the charge of attempting to put a motor vehicle into motion whilst under the effects of intoxicating liquor: McNeal v Croker (1939) 56 WN (NSW) 149.

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