Criminal Defences

Question 1

what can Intoxication defence challenge?

Answer 1

Either actus reus - level of intox meant actions were involuntary
Mens Rea - Due to level of intox, incapable of forming guilty mind.

Question 2

What did English Law say on Intoxication defence?

Answer 2

Defence only available for crime of specific intent.

Question 3

HCA Case of O’Connor on intox defence?

Answer 3

Moved away from specific intent and allowed defence for all offences.

Question 4

S428 A-I Crimes Act?

Answer 4

Over rode decision of O’Connor’s case. Reinforced ‘specific intent’ offences where intoxication is or is not available as a defence.

Question 5

428 B?

Answer 5

Intox defence only available for ‘specific intent’ offences.

Question 6

What is specific intent offence?

Answer 6

Offence where intention to cause specific result is an element.

Question 7

Example of a specific intent offence?

Answer 7

S33 - Wounding/GBH with intent.

Question 8

428 D?

Answer 8

Defence not available for other offences not listed in 428 B unless not self induced intox.

Question 9

428 H?

Answer 9

Abolishes common law defence of intoxication. Specifically, O’connor.

Question 10

Explain duress as a defence

Answer 10

Person commits crime in extreme fear or under threat. Excuses person from criminal liability.

Question 11

R v Hurley and Murray? ROPEDMC

Answer 11

Requirements to prove duress.

1. Under threat of death or GBH
2. Person of ordinary firmness would yield to the threat as the defendant did;
3. Threat was present and continuing; imminient and impending;
4. Defendant had a reasonable apprehension the threat would be carried out.
5. He was thereby induced to commit the offence.
6. Crime was not to murder nor any crime so heinous so as to be expected by the doctrine.
7. Didn’t escape from duress when given chance.
8. Had no means with safety to himself of preventing execution of threat.

Question 12

Test for duress?

Answer 12

Subjective - Whether defndants will was overborne

Objective - Would person of reasonable firmness do the same in circumstances.

Question 13

Self Defence section?

Answer 13

418 Crimes Act.

Question 14

Two elements for self defence?

Answer 14

SUbjective - DId accused believe behaviour was necessary to defend himself?
Objective - Were actions of accused reasonable/proportional in circumstances?

Question 15

Honest and Reasonable Mistake of Fact?

Answer 15

Proudman v Dayman.
If honest and reasonable belief of a set of facts were true, then no offence would be committed, not some other offence.

Question 16

Test for honest and reasonable?

Answer 16

SUbjective - Did they hold honest belief?

Objective - Was the belief reasonable?

Question 17

Claim of right case law?

Answer 17

R v Fuge

Question 18

What offences does claim of right relate to?

Answer 18

Property offences.

Question 19

What does claim of right go to?

Answer 19

absence of mens rea

Question 20

Legal or moral claim of right?

Answer 20

legal.

Question 21

9 elements of R v Fuge?

Answer 21

1. Claim must involve belief as to right to property or money of another.
2. CLaim must be genuinely held (honestly)
3. Belief doesnt have to be reasonable, must have some basis.
4. Belief must be legal not moral
5. Whether accused had genuine belief in legal right to property, not a legal right to recover it.
6. Claim doesn’t have to be the specific property, can extend to property of equivalent value.
7. Not apply to claim that intentionally beyond that to which bona fides claim attaches.
8. Can’t be an accessory, must be principal offender to hold claim.
9. For the crown to negative claim when sufficiently raised Beyond reasonable doubt.

Question 22

Name four defences available to defendant in local courts.

Answer 22

Self Defence
Honest and Reasonable excuse
CLaim of right
Duress

Question 23

Explain what is meant by automatism.

Answer 23

The defendant had no control over the actions of his body - challenges actus reus.

Question 24

Three examples of automatism?

Answer 24

Epileptic fit.
Sleepwalking
Concussion

Question 25

Three Elements in defence of necessity?

Answer 25

Three elements to make the defence of necessity.

1. Crim act must have been done to avoid certain consequences which would have caused irreprable evil on him or person charged to protect.
2. Must honestly believe on reasonable grounds he was placed in a situation of irreprable evil.
3. Acts done to avoid imminent peril must be proportional to peril avoided. No break in time from threat to act.

Question 26

What is meant by defence of necessity?

Answer 26

The criminal act was necessary in order to avoid something seriously bad happening to the defendant.

Question 27

Leading case on insanity?

Answer 27

McNaughtens.

Question 28

Case Law for duress considerations?

Answer 28

R v Hurley and Murray