Common criminal defence strategies

Every person accused of a criminal offence in New Zealand has the presumption of innocence until proven guilty. This fundamental principle underpins all criminal defence strategies. While every case requires a tailored approach, there are a number of common defence strategies that are frequently considered by our team of Criminal Defence Lawyers when we take on a new matter at Bloem Law. Sometimes these strategies might overlap, or a person might have multiple defences that apply, but our overall objective is always the same: to ensure we leave no stone unturned in the process.

 

Factual dispute

One of the most common reasons a defendant may wish to defend a charge is simply because they disagree with the allegations made against them. This can be characterised as a ‘factual dispute’. For example, the complainant may allege that the defendant has done something, while the defendant either completely denies that the events occurred or disputes that they happened in the manner described by the complainant.

In cases where the complainant says one thing and the defendant says another (often referred to as ‘he said/she said’ cases) the key issue usually comes down to credibility: whose version of events does the jury or judge believe? There may be additional evidence that supports one side or the other, but ultimately the outcome often hinges on which account appears more reliable and convincing. In these situations, our primary aim is to demonstrate why the defendant’s version of events is more credible and why the complainant’s account is inconsistent or unreliable. For example, if the complainant has lied, we will try highlight this and ‘catch them out’.

Where a defendant has an alibi, our emphasis is on identifying evidence that contradicts with the complainant’s account, and support’s the defendant’s account. This may include eye-witness testimony, phone polling data or CCTV footage.

 

Technical defence

In some cases, a ‘technical’ defence may be available. These arise in situations where the defendant’s behaviour would ordinarily amount to a crime, but their actions are considered acceptable because they have a lawful excuse. One of the most well-known examples is self-defence. While it is generally a criminal offence to assault another person, if the defendant did so to protect themselves or another, they may be able to argue they acted in self-defence. If the judge or jury accepts this defence, the defendant will be found not guilty.

 

Elements of the offence not met

Sometimes a defendant may agree with some or even all of the allegations made against them but still have a defence – even if no specific ‘technical’ defence applies. This typically arises when the prosecution has charged the defendant with an offence that does not accurately reflect what actually happened. In other words, the prosecution may have laid the wrong charge or may have been mistaken in bringing a charge at all.

For example, a defendant is charged with burglary after entering a neighbour’s garage without permission. The defendant might fully accept that they entered the garage but explain that they did so only to return a parcel that had been wrongly delivered to them. To be found guilty of a crime, the prosecution must prove every element of the offence beyond a reasonable doubt. In the case of burglary, this includes proving that the defendant entered the building (or ship) “with intent to commit an imprisonable offence.” Therefore, the prosecution would need to prove beyond a reasonable doubt that the defendant entered the garage with this intent.

Since our defendant entered the garage to return a wrongly delivered parcel and not to commit an imprisonable offence, they should not be found guilty of burglary. In such situations, the prosecution might choose to amend the charge to a different, more appropriate offence, or they may decide to withdraw the charge altogether.

 

Resolution Discussions

Another common aspect of criminal defence work is engaging in ‘resolution discussions’ with the prosecution, or negotiating a ‘plea deal’. While this is not a defence strategy in the traditional sense, some cases are resolved without the need for a trial, where common ground is instead able to be reached. Nonetheless, these situations still require a pragmatic approach, as the lawyer will need to understand the relevant law, the strength of the particular evidence of the case, and the possible options available in the circumstances. What this might look like in practice, is the prosecution agreeing to withdraw some charges, in return for guilty pleas to those that remain (in a case where a defendant is facing multiple charges).

 

Questioning the Police investigation

The final defence strategy that we frequently employ is to closely examine how the Police have conducted their investigation. If the Police failed to properly investigate the circumstances before deciding to lay a charge, that failure alone may give the jury or jury reason to doubt whether the defendant is guilty.

In some cases, the Police investigation may be so flawed that the way evidence was obtained can be considered ‘improper’. When this happens, the court may decide to exclude that evidence, meaning the prosecution cannot rely on it at trial. If the excluded evidence is crucial to the case, the prosecution may no longer have a case at all.

 

How Bloem Law can help

Although this is not an exhaustive list of all the approaches our team of Criminal Defence Lawyers may take in defending a charge, it highlights that many factors must be carefully considered in every case. This is why it is so important for anyone facing a criminal charge, to seek comprehensive legal advice straight away. Having proper guidance from the outset can make a crucial difference to the outcome. Organise a meeting with one of our Criminal Defence Lawyers online or at our Auckland office, so we can make a detailed plan about how we can deal with the situation together.

 

Author: Chris Holdsworth

Article publish date: 11 July 2025
Please note, the information in this article was correct as at the publishing date.