Criminal Defences Flashcards
Name some of the most common defences that are available to a Defendant in the Local Court?
There are 11.
- self defence
- statutory defence (eg: GIC and Custody of Offensive Implement)
- Insanity
- Intoxication
- Automatism
- Duress
- Necessity
- Honest and Reasonable Mistake of Fact
- Claim of Right
- Provocation
- Diminished Responsibility
What are Statutory Defences and give examples?
There are legislated defences contained within sections of individual acts.
2 x examples are:
- . Goods in custody (Section 527C of Crimes Act) - (no reasonable grounds for suspecting stolen or unlawfully obtained) AND
- . Custody of Offensive Implement (Section 11B of Summary Offences Act) - (reasonable excuse or lawful excuse)
In relation to these legislated defences for the defendant the requisite standard of proof is “the balance of probabilities”.
In the Crimes Act there are ‘Proof of Exceptions’ - cite the Section and explain
Section 417 - Proof of lawful authority or excuse (onus lies on the defence)
Section 417A - Proof of exceptions (the exception does not need to be identified in an indictment BUT if it is, the prosecution do not bear an onus to prove it).
What does McNaughten’s case allow the prosecution to rely on?
…the presumption that every person is sane…
Who has the onus of proving insanity if it is a defence?
The Defendant. On the balance of probabilities.
What is the lead case for the Defence of “Insanity”?
McNaughten’s case
Insanity is not a medical concept. What is it?
It is ruled by the courts and although not a medical concept, medical evidence is usually presented.
The onus is still on the prosecution to prove the offence beyond a reasonable doubt and the court then looks as to whether the Defendant has proven insanity defence on the balance of probabilities.
If a Defendant is acquitted due to insanity is it an acquittal?
Yes. If acquitted of a charge due to insanity, it is a qualified acquittal in that he/she is subject to the court’s order that he/she be committed to a mental institution.
What is Automatism and what are some examples?
When the Defendant has no control over the actions of his/her body (ie: not a voluntary act which challenges Actus reus).
Examples: epileptic fit / sneezing / sleepwalking / concussion
Can the actions of a person be considered voluntary if they are NOT conscious? Cite the applicable authorities and what did they find?
Tolson’s case states (sleepwalking) - not guilty of a crime ‘because he would not know what he was doing”.
Jiminez (HCA decision) - fell asleep at the wheel, for that period of time (whilst asleep) the acts are considered NOT voluntary but prosecution can look backwards in time.
What did Ryan v R find in relation to voluntary act?
Ryan v R was a Robbery. Ryan had a gun and was startled during the event and he shot and killed a service station employee. Claimed that the shooting was not voluntary and therefore no acts reus (sympathetic reaction on trigger)
It was held that the acts leading up to the shooting all be taken into account in relation to the Actus reus. eg: the loading and cocking of the rifle, the taking it into the service station, the pointing of it at the service station employee, having his finger on the trigger - all considered as voluntary actions and as such the shooting would not have occurred if those actions had not been done.
What does the defence of Intoxication challenge?
Can challenge either:
- . the actus reus (due to the level of Intoxication the defendant’s actions were involuntary) ; or
- . the mens rea - due to the level of intoxication the Defendant was incapable of forming the guilty mind
O’Connors case [1980] was previously the leading case in what?
Specific Intent / Intoxication as a defence
Previously, English law found that the defence of intoxication was only available for a crime of specific intent.
O’Connor’s case in 1980 moved away from the idea of “specific intent” and allowed the defence of Intoxication for all offences.
The introduction of 428A-I in the Crimes Act overrode the decision of O’Connor’s case and reintroduced ‘specific intent’ offences where intoxication is or is not available as a defence.
Part 11A of the Crimes Act (428A-I) was introduced for Intoxication and specific intent offences. What is each subsection?
A: Definitions
B: Offences of specific intent
C: Intox in relation to offences of specific intent
D: Intoxication in relation to other offences
E: Intoxication in relation to murder, manslaughter etc
F: Intox in relation to the reasonable person test
G: Intoxication and the actus reus of an offence
H: Abolition of common law relating to self-induced intoxication
I: Application of Part
Is the defence of Duress available for murder?
NO
What is duress?
It is where a person commits a crime in extreme fear or under the threat of death. Even though the Defendant has fulfilled all the elements of the crime they can be morally excusable because of duress.
Duress is a true defence in that it excuses a person from criminal liability even though they actually have committed the offence.
What was held in R v Abusafiah (re: duress)
R v Abusafiah was an approved decision of Hurley
- The Crown must prove the acts were done voluntarily and eliminate any reasonable possibility that the defendant acted under duress.
- The Crown must establish one or the other of 2 things:
1. No reasonable possibility that he did so by reason of a threat of dealt or really serious physical harm -OR
2. That any threat made was such that no person of ordinary firmness of mind or will, of the same sex and maturity as the accused would have yielded as the accused did.
R v Hurley and Murray is case law relating to Duress. What are the 8 elements that were held.
- Under threat of death or GBH;
- Person of ordinary firmness would yield to the threat as the Defendant did.
3 The threat was present and continuing / imminent and impending
4 Reasonable apprehension the threat would be carried out
5 Thereby induced to commit the crime
- The crime was not murder or any crime so heinous so as to be excepted by the doctrine
- The Defendant did not, by fault on his own part, when free from the duress, expose himself to it’s application; and
8 He had no means with safety to himself, of preventing the execution of the threat.
The test for duress is two-fold. What are the two elements?
Subjective and Objective
Subjective: Question of whether the Defendant’s will has been overborne; and
Objective: Are the circumstances such that a person of reasonable firmness would be likely to act as the Defendant did?
It is important that if a defendant’s will was overborne that at no stage did it reassert itself.
There are 3 elements of the defence of Necessity. What are they?
- The criminal act must have been done only to avoid certain consequences which would have inflicted irreparable evil upon the defendant or upon other whom he was bound to protect.
- The defendant must honestly believe on reasonable grounds that he was placed in a situation of imminent peril.
- The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.