This not a "defence" as the law applies see it, but an approach the defence might take in preventing the prosecution from proving the 1st element above to the standard of beyond reasonable doubt.

Can the Prosecution prove it was you? In some cases, the identity of the person who did the assault causing the bodily harm might not be readily identified. An example would be if there the assault occurred in a dark part of town, the complainant was near sighted and drunk and only a poor description of the defendant was given.

In certain circumstances the law offers a defence if we are compelled to act to resist the violence of others. The Queensland Criminal Code calls this ‘compulsion’ and says, for present purposes, that a person is not criminally responsible for an act if that person does the act because it is reasonably necessary to resist a threat of actual and unlawful violence to themselves or property.

At the start of your case, you are provided the police version of the facts but not the evidence relied upon. Your lawyer will seek the disclosure of materials to clarify the facts further or determine the strength of the case against you.

Example: After an incident at the local pub, you have been charged with assault occasioning bodily harm. The police facts note the incident was recorded on CCTV and have sought the CCTV be disclosed to see if the footage supports the police version (or have left out important facts supporting your version) and medical records.

You might wish to plead guilty to the offences, but the police materials are different to your version of the events. Defence lawyers propose amendments, additions or removal of facts so the matters do not need to go to hearing. From a defence perspective, the purpose of conferencing on the facts is to remove irrelevant information or facts that may result in a higher sentence.

Example: CCTV records you striking a person several times. The police facts state it was "5 punches", but the footage is unclear. Through case conferencing the facts were amended to “struck the victim a number of times” or “the complainant was struck twice”.

If the charges are not supported by the evidence the prosecution has, the lawyers suggest the charge be withdrawn or reduced to a lesser offence. If the law provides a mitigation or defence to your charges, your lawyer will conference with the prosecution to seek the charge be withdrawn.

Example: You have been charged with assault occasioning bodily harm, however the medical evidence does not support the charge. As a result of conferencing, the charge was amended to the less serious charge of common assault.

Charges are not set in stone after the police issue with the notice to appear or release you on bail. Often the police will “over charge” and though the process of case conferencing more appropriate charges are agreed to.

Example: The police do a search of your property and locate your phone. After searching your phone a few text messages are found where you have offered to supply a few people (or even one person a number of times) the cannabis. The police charge you with trafficking in cannabis. After reviewing the evidence the defence lawyers and prosecution agree that 3 charges of supply is far more appropriate.