Raising a defence in a criminal matter

by The FindLaw Team

One of the features of our criminal legal system is its adversarial nature – there’s a prosecutor and an accused with each party putting forward evidence and issues that rebut the evidence and issues of the other party. Sounds simple, right? Well, the practice of law is very technical and although an accused must raise a defence it must however be fairly supported by the use of evidence that is not fanciful. And despite what some people may have been led to believe, fanciful theories which there is no evidence to support a defence will not be allowed in court. So with that in mind: the manner in which a defence is raised; what evidence can be adduced; and the duties of both a prosecutor and the defence are all things that are relevant when an accused is involved in a criminal matter.

How is a defence raised?

The raising of a defence by an accused is undoubtedly one of the most important aspects in a criminal matter. However, a defence just can’t be raised out of a thin air and as we’ve noted earlier, cannot be fanciful. There are specific ways in which a defence can be raised in a criminal matter, and Moffitt J in R v Taylor articulated the appropriate manner in which a defence is to be raised:

“… the defence must be raised by the accused in the sense that he must be able to point to evidence in either the Crown case or his own case from which it is open to the jury, by inference and not speculation, at least to infer that in fact he honestly believed the woman consented, but that once there is material to so raise the matter, the ultimate onus rests on the Crown, so that the principles applicable as to when a direction should be given and the directions which should be given as to onus of proof are the same principles as are applicable in respect of other so-called “defences”, such as self-defence, the defence of automatism and provocation under the common law.”

Furthermore, in instances where it is provided by statute or otherwise, the burden is on an accused to disprove or to prove a particular issue. However as Dixon J in the High Court of Australia said in Sodeman v The King regarding proof on the balance of probabilities, is that although the burden is on the accused to disprove facts, the accused “… is not required to satisfy the tribunal beyond reasonable doubt. It is sufficient if he satisfies them in the same manner and to the same extent as is required in the proof of a civil issue.”

A defence must have support in evidence

One of the essential aspects of raising a defence is that it is supported by the use of evidence, and not merely fanciful. As Sholl J noted in R v Tikos (No 1), his Honour said that the “… trial judge is not bound to leave merely fanciful theories, which nothing in the evidence fairly supports, just in case counsel may later argue on an appeal that they ought to have been put. But anything which may conceivably be thought by a reasonable jury to be a serious possibility should be dealt with by a jury.”

Gibbs J in Viro v The Queen approved the approach of Sholl J, with his Honour nothing that if a judge has a doubt, “… as to whether there is sufficient material to raise such an issue should leave the issue to the jury.”

The role of the prosecution and the defence

Due to the nature of our adversarial system the roles of the prosecution and the defence is essentially to rebut evidence which is put forward by the other party. Therefore, it is the role of the defence counsel to produce evidence that there was a reasonable possibility that the actions of an accused was an accident, provoked, or done in self-defence for example – meanwhile, it is the duty of the prosecution to negative evidence which is raised in defence.

The contrasting positions of a criminal matter is better articulated by Hunt J in R v Youssef, where his Honour said – with the agreement of the other Justices –  the role of a defence lawyer is that it is the accused who “… bears an evidentiary onus to point to or to produce evidence… from which it could be inferred that – as I would prefer to put it – there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence…”

Meanwhile, the prosecution must negative a defence with Hunt J in R v Abusafiah – in the leading judgment – setting out the role of the Crown, which is in “… all cases in which a so-called “defence” is raised by an accused (such as duress, self-defence or provocation), the issue is whether the Crown has eliminated any reasonable possibility that the accused acted under duress or in self-defence or under provocation, as the case may be.”

Standard of proof in a criminal matter

Outside of criminal matters dealing with insanity or diminished responsibility, the onus of proof can be found in s 141 of the Uniform Evidence Acts via legislation which state:

“141. Criminal proceedings-standard of proof

(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.

(2) In a criminal proceeding, the court is to find the case of an accused proved if it is satisfied that the case has been proved on the balance of probabilities.”

Dealing with a criminal matter can be very stressful and if you are dealing with such an issue, always consult a criminal lawyer who will be able to assist.


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