Criminal Defences

Question 1

Name some of the most common defences that are available to a Defendant in the Local Court?

Answer 1

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

Question 2

What are Statutory Defences and give examples?

Answer 2

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”.

Question 3

In the Crimes Act there are ‘Proof of Exceptions’ - cite the Section and explain

Answer 3

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).

Question 4

What does McNaughten’s case allow the prosecution to rely on?

Answer 4

…the presumption that every person is sane…

Question 5

Who has the onus of proving insanity if it is a defence?

Answer 5

The Defendant. On the balance of probabilities.

Question 6

What is the lead case for the Defence of “Insanity”?

Answer 6

McNaughten’s case

Question 7

Insanity is not a medical concept. What is it?

Answer 7

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.

Question 8

If a Defendant is acquitted due to insanity is it an acquittal?

Answer 8

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.

Question 9

What is Automatism and what are some examples?

Answer 9

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

Question 10

Can the actions of a person be considered voluntary if they are NOT conscious? Cite the applicable authorities and what did they find?

Answer 10

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.

Question 11

What did Ryan v R find in relation to voluntary act?

Answer 11

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.

Question 12

What does the defence of Intoxication challenge?

Answer 12

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

Question 13

O’Connors case [1980] was previously the leading case in what?

Answer 13

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.

Question 14

Part 11A of the Crimes Act (428A-I) was introduced for Intoxication and specific intent offences. What is each subsection?

Answer 14

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

Question 15

Is the defence of Duress available for murder?

Answer 15

NO

Question 16

What is duress?

Answer 16

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.

Question 17

What was held in R v Abusafiah (re: duress)

Answer 17

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.

Question 18

R v Hurley and Murray is case law relating to Duress. What are the 8 elements that were held.

Answer 18

1. Under threat of death or GBH;
2. 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

6. The crime was not murder or any crime so heinous so as to be excepted by the doctrine
7. 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.

Question 19

The test for duress is two-fold. What are the two elements?

Answer 19

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.

Question 20

There are 3 elements of the defence of Necessity. What are they?

Answer 20

1. 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.
2. The defendant must honestly believe on reasonable grounds that he was placed in a situation of imminent peril.
3. The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.

Question 21

In relation to Necessity, can there be a break in time?

Answer 21

No. With necessity there an be NO break in time from the threat and the commission of the offence charged.

Question 22

With duress, is a time interval available?

Answer 22

Yes. With duress, a threat can be of a continuing nature however a time interval is allowed.

R v Rogers NSWCCA 1996

Question 23

With the Defence of Necessity are both subjective and objective tests involved?

Answer 23

Yes. Both.

Question 24

What are the two elements to the test for Self Defence?

Answer 24

Element 1:
Is there a reasonable possibility that the accused believed that his conduct was necessary in order to defend himself?

**Entirely SUBJECTIVE test - taking into account the personal characteristics of the accused at the time the self defence was used. Factors which affect the state of mind of the defendant must be taken into account (eg: if he was intoxicated / cultural beliefs etc).

Element 2: If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived the?

** Entirely OBJECTIVE test - Were the defendants actions proportionate (“a reasonable response”) to the situation they subjectively believed they faced.

How would a reasonable person have responded to the situation as the Defendant perceived it.

Question 25

What is the (now superceded) case law for Self defence?

Answer 25

Zecevic v DPP (now codified s418 of Crimes Act)

Question 26

The defence of Honest and Reasonable Mistake of Fact is only open to mistakes of fact, not mistakes of law. It is both a subjective and objective belief. Expand.

Answer 26

Subjective: Did the Defendant hold an honest belief?

Objective: Was the belief held a reasonable one?

Question 27

What is the applicable caselaw in relation to Honest and Reasonable Mistake of Fact?

Answer 27

Proudman v Dayman

“an honest and reasonable belief in a state of facts which, if they existed, would make the defendants act innocent, affords an excuse for doing what would otherwise be an offence”.

Question 28

What are some of the important elements of the Defence of Claim of Right?

Answer 28

• Goes to absence of Mens Rea
• Must be a legal right not a moral right
• Ignorance of civil law not criminal founds claim of right
• A claim of right relates to property
• Most offences the defence is available for have larceny as an element

Question 29

What offences is the defence of Claim of Right Available for?

Answer 29

Larceny
Robbery
Break and Enter
Take and Drive Conveyance / Steal MV
Fraud (some of the time)
Damage/Destroy property.

Question 30

Is Claim of Right available for someone asserting the right of another?

Answer 30

• Claim of right available for someone asserting the right of another.

Question 31

Is a Claim of right the same as Honest and Reasonable Mistake of Fact?

Answer 31

• Claim of Right is different to honest and reasonable mistake of fact.

Question 32

What are some of the elements of the defence of Extreme Provocation?

Answer 32

• the act of the Accused that causes death was in response to the conduct of the Deceased towards or affecting the Accused; AND
• the conduct of the Accused was a serious indictable offence; AND
• the conduct of the Deceased caused the Accused to lose self-control; AND
• the conduct of the Deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict GBH on the deceased.
• “act” includes omission to act.
• conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death.
• often used in mitigation at sentencing.
• The provocation relied upon must be the conduct of the deceased person that was seen and heard by the Accused (no hearsay or second hand information).

Question 33

Extreme Provocation is a criminal defence only available for Murder. Cite Legislation.

Answer 33

S23 - Trial for murder—partial defence of extreme provocation

• only available for murder
• if accepted it reduces murder to a lesser charge
• Provocation relied upon must have been seen and heard by the Defendant - there is no such thing as hearsay provocation.

Question 34

When is the Criminal Defence of Diminished Responsibility available?

Answer 34

Diminished Responsibility only available for murder and, if accepted, reduces the charge to manslaughter.

If the defence is raised it must be based on expert evidence.

S23A of the Crimes Act “Substantial impairment by abnormality of mind”

There is a similar defence under S22A for Infanticide

Question 35

What is the Criminal Defence in relation to child offenders?

Answer 35

Doli Incapax

Irrebuttable under 10
Rebuttable 10-14

(Sliding scale not applicable as per HCA case of RP v The Queen 2016)

Question 36

R v Fuge (2001) summarises the common law in relation to claim of right. What are the 9 important points to take from the decision?

Answer 36

1. The claim must involve a belief as to the right to property or money of another
2. The claim must be genuinely/honestly held
3. The belief does not have to be reasonable, however does have to have some basis.
4. The belief must be as to a legal not merely a moral entitlement
5. The relevant issue is whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it.
6. The claim does not have to relate to specific property once held by the claimant however can extend to property of equivalent value.
7. However, claim of right will not apply when the property or money taken intentionally goes beyond that to which the bona fide claim attaches.
8. If the defendant is charged as an accessory the principal offender must hold the bona fide claim.
9. It is for the Crown to negative a claim of right where it is sufficiently raised on the evidence.

BEYOND A REASONABLE DOUBT
(Also consider Langham v R 1984)

Question 37

What did Barker v The Queen find in relation to Claim of Right?

Answer 37

“a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

Question 38

Explain what is meant by the defence of “Automatism”

Answer 38

Automatism is when an Accused person has no control over the actions of his/her body. Eg: sneezing resulting in a car crash

Question 39

Explain what is meant by the defence of duress?

Answer 39

• Not available for murder
• It IS where a person commits a crime due to extreme fear or under threat.
• It is a true defence in so far as it excuses a person from criminal liability even though they HAVE committed the offence.

Question 40

Give 3 examples of Automatism

Answer 40

1. Sleeping whilst driving;
2. Smashing a window whilst sleepwalking;
3. Epileptic fit and punching someone.

Question 41

What are the 8 minimum Conditions to consider that have been set down in Hurley v Murray

Answer 41

1. Under threat of death or GBH;
2. Person of ordinary firmness would yield to the threat as the Defendant did;
3. The threat was present/continuing/imminent or impending
4. The Defendant had reasonable apprehension the threat would be carried out;
5. He/she was thereby induced to commit the crime;
6. The crime was not murder nor any crime so heinous so as to be excepted by the doctrine;
7. 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.

Question 42

Discuss the main principle in O’Connor’s case re: intoxication as a defence.

Answer 42

Found that the Defence was allowed/able to be used for ALL offences, not just offences of specific intent. Has since been codified with the introduction of Sections 428A-I which overrides O’Connor’s Case & reintroduced “Specific Intent” Offences.

Question 43

Worksheet: How did the introduction of 428A-I of the Crimes Act effect the common law position with respect to intoxication as a defence. Explain your answer

Answer 43

O’Connor’s case previously allowed for Intoxication to be used as a defence for all offences. The introduction of Sections 428 A-I only makes the defence available for offences of specific intent. Overriding the Common Law

Question 44

Is the test under Zecevics case objective or subjective/ explain your answer?

Answer 44

There are two parts - objective and subjective.

Subjective: The accused must have had reasonable belief that the act was necessary at the time it was committed (from the POV of the Deft).

Objective: The belief must have been based on reasonable grounds (in determining whether the Deft’s belief was based on reasonable grounds, the Magistrate can take into account the circumstances surrounding the offence / the relationship between the accused and the Victim; prior acts of behaviour; state of mind etc.

Question 45

Discuss the main principle in Majewski’s case re: intoxication

Answer 45

Majewski’s case found that voluntary intoxication was no defence to offences of “basic intent” such as assault.

Question 46

What is meant by the defence of necessity? And how many elements are there to the defence?

Answer 46

1. The criminal act must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the Defendant or upon other who he was bound to protect.
2. The Defendant must believe on reasonable grounds that he was placed in a situation of imminent peril.
3. The act done to avoid the imminent peril must not be out of proportion to the peril to be avoided.
   
   • both subjective and objective tests are involved
   • necessity can be no break in time from the threat and the commission of the offence.
   • Different to duress (in which a time break IS allowed).

Caselaw: R v Rogers

Question 47

In relation to Intoxication as a Defence, if the Defendant decides to commit a crime and then gets drunk and carries out the crime. Is there a Defence? Cite legislation.

Answer 47

No. There is no defence as per 428(C)(2).

Question 48

In relation to Intoxication as a Defence, if the Defendant decides to commit a crime (in this case Assault) and then gets drunk and carries out the crime. Is there a Defence? Cite legislation.

Answer 48

No. No defence as assault is not a “specific intent” offence.

Question 49

In relation to Intoxication as a Defence, if the Defendant goes out and is drinking what he thinks is Coca Cola but in actual fact it is spiked with Vodka and then he gets drunk and then assaults someone is Is the Defence of Intoxication available? Cite legislation.

Answer 49

Yes. S428D - the intoxication was self induced and therefore the evidence of intoxication may be taken into account.

Question 50

In relation to Duress - who bears the onus?

Answer 50

The prosecution must still prove the elements of the offence beyond a reasonable doubt. If the Defendant lays the grounds for the Defence of Duress, then the prosecution still need to negative duress beyond a reasonable doubt (simply put: were the Defendant’s actions in the circumstances justified? If so, can he be exculpated from criminal liability?).

Question 51

Section 418 of the Crimes Act legislates “Self Defence”. Explain

Answer 51

A person is not criminally responsible for conduct that would otherwise constitute an offence if the person believes the conduct is NECESSARY and then if the conduct is a REASONABLE RESPONSE IN THE CIRCUMSTANCES as they perceive them to be.

When looking at this element, the court has to consider the circumstances as viewed by the Defendant - regardless if the Defendant has mistaken the circumstances or perceived them to be something they are not.

Question 52

What is the test under Zecevic’s case

Answer 52

The reasonable test.