DEFENCES TO CHARGES
Being charged with a criminal offence in Victoria is serious — but a charge is not a conviction. The law requires the prosecution to prove every element of the offence against you beyond reasonable doubt. If they cannot, you are entitled to a not guilty verdict.
Victorian criminal law recognises a number of defences that, if successfully raised, can result in an acquittal or the charges being withdrawn altogether. These defences cover a wide range of circumstances — from disputing the facts of what happened, to arguing your actions were justified, to challenging whether you had the required intent to commit the offence.
Identifying the right defence requires a careful analysis of the evidence against you, the specific charge you are facing and the circumstances surrounding the alleged offence. At Doogue + George, our criminal defence lawyers have defended over 47,000 prosecutions across all Victorian courts. We will examine every aspect of the prosecution's case to identify the strongest defence available to you.
Explore the defences below or contact us today for a confidential discussion about your matter.
How do we defend your criminal charges?
Following police investigation and a decision to charge a person, charges must be proven in Court by the prosecution. If the prosecution decide that they have sufficient evidence, and that there is a public interest in charging an individual with a criminal offence, they must adduce evidence that is relevant to each and every element of the offence.
The prosecution must prove each element of the criminal offence beyond reasonable doubt. At times, an accused admits that all of the elements of the charge can be proved and pleads guilty. In many cases though, there is a dispute about what happened, what the evidence proves or whether witnesses are telling the truth. In a circumstantial case there might be a dispute about what inferences can be properly drawn from the circumstantial evidence – there might be an innocent explanation for the circumstantial evidence
Beyond reasonable doubt
Where there is any disagreement between defence and prosecution about the ability of the prosecution to prove an alleged fact beyond reasonable doubt, the defendant has criminal defences to charges.
Beyond Reasonable Doubt is not further defined by the courts. Juries are told that these words mean exactly what they say – proof beyond reasonable doubt and that this is the highest standard of proof that our law demands.
Proof beyond reasonable doubt means the satisfaction of each and every juror of guilt beyond reasonable doubt. Anything less and the verdict is not guilty. If a jury thinks that an accused is possibly guilty or even probably guilty then they should return a verdict of not guilty.
Defending criminal charges
In general, the accused bears the evidentiary onus of raising a defence. A defence is raised by leading or pointing to evidence which justifies leaving a defence to the jury. Once a defence is raised, the prosecution must disprove it beyond reasonable doubt. The defence of mental impairment is the exception to the rule. An accused must establish mental impairment on the balance of probabilities.
Often the defence most likely to succeed is simply that the prosecution have not proven their case beyond reasonable doubt. It is necessary to carefully study the evidence in any case and determine whether there is sufficient evidence of each element of the alleged offences.
The duty of the prosecution to prove guilt has been described as the golden thread of criminal law:
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
Viscount Sankey, Woolmington v DPP [1935] AC 462
Important considerations
- i. What are the charges?
- ii. What are the elements of the charges
- iii. Is there evidence for every element of the charges?
- iv. Is that evidence admissible?
FAQs
Can I use self-defence as a defence to a criminal charge in Victoria?
Yes. Under section 322K of the Crimes Act 1958 (Vic), self-defence is available for any offence involving force. You must have genuinely believed your actions were necessary and that your response was reasonable in the circumstances. Once raised, the prosecution must disprove it beyond reasonable doubt.
Is being drunk or intoxicated a defence to criminal charges in Victoria?
Not on its own. Intoxication is not a standalone defence under Victorian law. However, it may be relevant to whether you had the required intent to commit the offence — but only for charges requiring specific intent, such as murder or theft. Voluntary intoxication carries significant limitations.
What is the defence of mental impairment in Victoria and how does it work?
Under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), if you did not know what you were doing or that it was wrong due to a mental disease or disorder, you may be found not guilty by reason of mental impairment. The accused must prove this defence on the balance of probabilities.
What does "beyond reasonable doubt" actually mean for my case?
It is the highest standard of proof in Australian law. The prosecution must make the court certain of your guilt — not probably convinced, but sure. If any genuine doubt remains, the verdict must be not guilty. You never have to prove your innocence.
Can I be charged with an offence that is too old to prosecute in Victoria?
Yes — and if so, you have a complete defence. Many summary offences in Victoria have a 12-month limitation period. If police charge you outside that window, the charges must be dismissed as statute barred. Indictable offences such as murder have no limitation period.
What is the defence of duress and when does it apply in Victoria?
Duress applies where you were threatened with serious harm and committing the offence was the only way to avoid it. The threat must have been imminent and continuous. It is not available if the threat came from someone you voluntarily associated with for violent purposes.
What is an honest and reasonable mistake of fact in Victorian criminal law?
This defence applies to strict liability offences where the prosecution only needs to prove the act occurred. If you genuinely and reasonably believed in a set of facts that would have made your conduct lawful, you may have a complete defence. It does not apply to mistakes about the law.
Can criminal charges be dropped before going to trial in Victoria?
Yes. The prosecution can withdraw charges at any stage if the evidence is insufficient. This most commonly occurs when a defence lawyer challenges the admissibility of evidence or exposes weaknesses in the prosecution's case early. Engaging a lawyer promptly gives you the best chance of this outcome.
