Criminal Defences Flashcards
What are some of the criminal defences?
- Statutory defences
- Insanity
- Automatism
- Intox
- Duress
- Necessity
- Self defence
- HRMF
- Claim of right
- Provocation
- Diminished Responsibility
What are two statutory defences?
- GIC 527
- Custody of offensive implement s11B
What is the test for Insanity?
- Was the defendant labouring under defect of reason or disease of mind?
- The defendant did not know the nature and quality of the act they were doing.
- If they did know, they did not know the act was wrong.
What case does the test for insanity come from?
McNaughten’s case
What matters does the insanity defence apply to and is it a full defence?
No, it is a qualified acquittal.
It applies to summary/indictable offences
What are the two types of Automatism?
Sane and insane
What is the test for Automatism?
Did they have control over their actions?
What is the outcome of a defence of automatism?
Insane = s39 qualified acquittal Sane = unqualified acquittal
What are examples of automatism?
Sneeze, fits, sleep walking
What is the test for intoxication?
Actus reus = involuntary
Men’s rea = incapable of forming.
What kind of matters can intoxication be raised as a defence?
Crimes of specific intent if self induced. It can reduce culpability from murder to manslaughter.
Can intoxication be used as a defence if it is self induced?
No.
Can intoxication be used as a defence if it was not self induced?
Yes.
What section of the Crimes Act covers intoxication?
428A-H
What is the test for duress defence?
- Subjective: was will overbourne by threats?
2. Objective: person in same position would have yielded to those threats.
What would be the outcome if you successfully raised duress?
Unqualified acquittal
What is the test for Duress outlines in R v Hurley & Murray?
- Under threat of GBH or death
- Person of ordinary firmness would yield to the threat as the defendant did
- The threat was present and continuing, imminent and impending
- The defendant had a reasonable apprehension the threat would be carried out
- He was thereby induced to commit the crime
- The crime was not murder nor any crime so heinous
- The defendant did not by fault of his own part when free from duress expose himself to its application
- He had no means with safety to himself, of preventing the execution of the threat.
For the objective test in Duress what does the person need to be?
Of ordinary firmness of mind or will, of the same sex and maturity as the accused was.
What are the 3 test for a defence of Necessity?
- Act only done to avoid irreparable evil being inflicted upon themselves or someone they had to protect.
- Defendant honestly believed on reasonable grounds that he was placed in a situation of imminent peril.
- Acts done must not be out of proportion.
What is the difference between duress and necessity?
Duress- threat can be of a continuing nature and a time interval s allowable
Necessity - can be no break in time from the threat and the commission of the offence.
What part of the crimes Act is self defence?
418
What is the test for self defence?
- The conduct was necessary to defend himself (subj)
2. It was a reasonable response to the circumstances as he or she perceived them. (Obj)
What is the test for Honest and reasonable mistake?
- Did the defendant hold an honest belief?
- Was the belief held a reasonable one?
The defence is only open to mistakes of fact.
What is the defence of claim of right?
It relates to property. And the test is outlined in R v Fuge.
What is the 9 step test for claim of right as outlined in R v Fuge?
- The claim must involve a belief as to the right to property or money of another
- The claim must be genuinely held (honestly)
- The belief doesn’t have to be reasonable, however does have to have some basis.
- The belief must be as to a legal not merely a moral entitlement
- Issue is whether the acc had a genuine belief in legal right rather than a belief in a legal right to employ the means in question to recover it.
- The claim does not have to related to specific property - must be of equivalent value.
- Clam of right will not apply when the property or money taken intentionally goes beyond that to which the bona fide claim attaches
- If charged as an accessory the principal offender must hold the bona fide claim.
- It is for the crown to negative a claim of right sufficiently
For claim of right, to what standard to the prosecution have to disprove the offence?
R v Fuge - Beyond Reasonable Doubt
What kinds of offences is Claim of Right available for?
Larceny, robbery, b & e, take and drive conveyance
What section of the crimes act covers provocation?
section 23 of the crimes act
When is provocation applicable?
Only in murder cases and it reduces the culpability to manslaughter.
When else is provocation use for other offences?
As a mitigating factor under section 21A(3)
What is doli incapax?
An irrebuttable presumption for a child under 10
Rebuttable presumption child 10-14
