Criminal Defences

Question 0

What does 428C of the Crimes Act allow?

Answer 0

Allows evidence of intoxication to be taken into account in SPECIFIC INTENT OFFENCES. Such evidence cannot be taken into account if :

a) If the person had resolved before becoming intoxicated to do the particular act, (plan prior to getting intoxicated)
or
b) Become intoxicated to strengthen their resolve to do the relevant offence. (courage to do act)

Question 1

What are the eight Criminal Defences?

PIISSDAC

Answer 1

Provocation
Intoxication
Insanity 
Self Defence
Substantial Impairment by Abnormality of Mind
Duress/necessity
Automatism
Claim of Right

Question 2

What are the two elements for Self Defence?

Explain both.

Answer 2

1) Subjective - possibility that the ACCUSED BELIEVED that their conduct was necessary in order to defend themselves. (Mind Set)
2) Objective - reasonable possibility that what the ACCUSED DID was REASONABLE RESPONSE TO THE CIRCUMSTANCES as they perceived them. (Reasonableness of the Accused response)

Question 3

Explain AUTOMATISM.

Answer 3

Concerned with involuntary behaviour. An act in which is done by the muscles without any control by the mind. Can include spasm, reflex or convulsion. It is a complete common law defence.

Question 4

Explain Insanity briefly

Answer 4

The court must be satisfied by the balance of probabilities that the accused is legally INSANE AT THE TIME OF THE OFFENCE.
Infers that there was NO MENS REA via a disease of the mind.

Question 5

What is Substantial Impairment of the mind (Diminished Responsibility)? Is it partial or complete defence?

Answer 5

State of mind that what would be deemed by an reasonable man as ‘abnormal’ ie diagnosis of a medical condition.

Question 6

Explain PROVOCATION.

Answer 6

The killing of one person resulting from a temporary loss of self control on the part of the killer which is brought about by the actions or words of the decesed.

Eg Violent provocative words, Adultery, Battered wife syndrome.

Question 7

Explain Claim of Right and related elements.

Answer 7

a) Honest claim - they honestly believe that they were entitled to the property (Subjective)
b) Believe of legal entitlement (Objective)

Question 8

Explain Duress.

Explain Necessity.

Answer 8

Duress - commits crime out of the extreme fear or threat of IMMEDIATE DEATH or IMMEDIATE SERIOUS PERSON VIOLENCE
Complete defence.

Necessity - commits crime to avoid SERIOUS HARMFUL CONSEQUENCES to accused or others he was bound to protect.