(08) 9278 2575Factual Dispute
A factual dispute under Western Australia criminal law involves the defence denying key facts or elements of an alleged offence.
Unlike formal defences that admit to the act but argue for the absence of criminal responsibility (such as insanity or self-defence), a factual dispute directly challenges the prosecution’s version of events. The accused, in such cases, is asserting that the prosecution has failed to prove, beyond reasonable doubt, that they committed the crime.
The following outlines the nature of a factual dispute, when it applies and the evidentiary burden involved in resolving such disputes.
What is a Factual Dispute?
Under WA criminal law, the prosecution must prove each element of the offence to the standard of beyond reasonable doubt. An accused person is presumed innocent until proven guilty. A factual dispute involves challenging the prosecution’s evidence on one or more of these elements, such as whether the accused was present at the scene, whether they performed the alleged act, or whether the act constitutes each and every element of the offence.
For example, in an assault case, the accused may dispute that they were the person who committed the assault, or they may argue that the act did not meet the threshold of assault under the law. Such disputes can involve challenging the reliability of witnesses, the accuracy of forensic evidence, or the interpretation of circumstantial evidence.
Factual disputes are not considered defences in the technical sense, as they do not introduce legal justifications or excuses for the alleged conduct. Rather, they challenge the prosecution’s narrative. As a result, factual disputes must be supported by evidence or argument that casts a doubt on the prosecution’s ability to meet its burden of proof beyond a reasonable doubt.
Evidentiary Burden in Factual Disputes
In a criminal trial, the prosecution hold the burden of proof. This means that the accused is not required to prove any facts. However, when an accused wishes to raise a formal legal defence, such as self-defence, and the defence does not arise in the evidence without the defendant raising it himself, the defendant would need to give evidence in order to have the defence raised and placed before the court. Not doing so may result in the defence not being raised and therefore not being considered by the court in the fact-finding process.
Absent such circumstances, the main role of the defence is to raise enough doubt about the prosecution’s case that the jury or judge cannot be satisfied, beyond reasonable doubt that the offence occurred.
Common Defence Strategies
There are a number of defence strategies or arguments which may be used to challenge key facts of a prosecution case. These can include:
- Arguing that the prosecution case is one of mistaken identity and that the accused has been incorrectly identified as the offender.
- Arguing that there is insufficient evidence to establish either that the alleged offence occurred or that the accused committed the offence.
- Arguing that certain facts have been misconstrued or misinterpreted by police and prosecutors.
In some situations, it may be preferable for the defence to take on a more ‘passive’ role in relation to a factual dispute. This will often be the case when a prosecution’s case is so weak, there is no need to put forward a competing defence narrative to establish reasonable doubt.
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