Factual Dispute

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Josh HarrisThe article Factual Dispute is written by Josh Harris, Lawyer, Doogue + George Defence Lawyers.

Josh Harris was admitted to practice in February 2019 after completing a Juris Doctor and a Bachelor of Arts at the University of Melbourne. Before joining Doogue + George, he was an associate at the County Court of Victoria to HH Judge Lyon.

Josh is experienced in indictable crimes such as sexual offences, drug trafficking, and culpable driving. When he was a Senior Associate to the Criminal Reserve List, he was involved in the high level planning, administration, and finalising of all criminal matters listed in the County Court.


Factual DisputeIf you are charged with an offence, the police need to prove each element of that charge for you to be found guilty. A defence of ‘factual dispute’ arises where you dispute the facts that police are saying underpin the elements of the charge.

All elements of a charge must be proven beyond reasonable doubt

Take for example the charge of Threat to Kill (s20 Crimes Act 1958 (Vic)). The elements that the Prosecution need to prove are:

  1. The accused made a threat to the complainant to kill either the complainant or another person; and
  2. The accused either:
    1. intended the complainant to fear that the threat would be carried out; or
    2. was reckless as to whether or not the complainant would fear that the threat would be carried out; and
  3. The threat was made without lawful excuse.

The element in italics is where you might use a defence of ‘factual dispute’. Perhaps you agree that a verbal disagreement occurred but not that you made any threats.

Sometimes cases turn on specific legal arguments about whether your actions fit within a particular legal definition. The case may turn on whether you had intent or were reckless in your actions (such as in element 2 above). These are not factual disputes, they are legal disputes.

Each element of a charge must be proven beyond reasonable doubt which is a high standard. If you are not guilty of a particular element, such as making the actual threats alleged, then you must be found not guilty.

Some common examples of a factual dispute include:

  • On a charge of assault, you may argue that no assault took place as your conduct was not as described by the Prosecution;
  • On a charge of speeding, you may argue that you were not travelling at the alleged speed.

If you disagree with the facts contained in the police brief, then you are putting forward a defence of ‘factual dispute.’ This type of defence is different from other defences that focus on technical legal arguments. It is difficult as a non-lawyer to understand where you should be putting forward a defence of factual dispute versus legal dispute. You should therefore speak to a criminal defence lawyer about what other evidence could be used to demonstrate to the court that you could not have factually engaged in the conduct that is being alleged against you.

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