Factual Dispute: a defence to a criminal charge – Criminal Law


Factual Dispute: a defence to a criminal charge

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If 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

Take for example the charge of Threat to Kill (s20 Crimes Act
 (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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