Criminal Defences

Question 1

What are some of the criminal defences?

Answer 1

1. Statutory defences
2. Insanity
3. Automatism
4. Intox
5. Duress
6. Necessity
7. Self defence
8. HRMF
9. Claim of right
10. Provocation
11. Diminished Responsibility

Question 2

What are two statutory defences?

Answer 2

• GIC 527

- Custody of offensive implement s11B

Question 3

What is the test for Insanity?

Answer 3

1. Was the defendant labouring under defect of reason or disease of mind?
2. The defendant did not know the nature and quality of the act they were doing.
3. If they did know, they did not know the act was wrong.

Question 4

What case does the test for insanity come from?

Answer 4

McNaughten’s case

Question 5

What matters does the insanity defence apply to and is it a full defence?

Answer 5

No, it is a qualified acquittal.

It applies to summary/indictable offences

Question 6

What are the two types of Automatism?

Answer 6

Sane and insane

Question 7

What is the test for Automatism?

Answer 7

Did they have control over their actions?

Question 8

What is the outcome of a defence of automatism?

Answer 8

Insane = s39 qualified acquittal 
Sane = unqualified acquittal

Question 9

What are examples of automatism?

Answer 9

Sneeze, fits, sleep walking

Question 10

What is the test for intoxication?

Answer 10

Actus reus = involuntary

Men’s rea = incapable of forming.

Question 11

What kind of matters can intoxication be raised as a defence?

Answer 11

Crimes of specific intent if self induced. It can reduce culpability from murder to manslaughter.

Question 12

Can intoxication be used as a defence if it is self induced?

Answer 12

No.

Question 13

Can intoxication be used as a defence if it was not self induced?

Answer 13

Yes.

Question 14

What section of the Crimes Act covers intoxication?

Answer 14

428A-H

Question 15

What is the test for duress defence?

Answer 15

1. Subjective: was will overbourne by threats?

2. Objective: person in same position would have yielded to those threats.

Question 16

What would be the outcome if you successfully raised duress?

Answer 16

Unqualified acquittal

Question 17

What is the test for Duress outlines in R v Hurley & Murray?

Answer 17

1. Under threat of GBH or death
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. The defendant had a reasonable apprehension the threat would be carried out
5. He was thereby induced to commit the crime
6. The crime was not murder nor any crime so heinous
7. The defendant did not by fault of his own part when free from duress expose himself to its application
8. He had no means with safety to himself, of preventing the execution of the threat.

Question 18

For the objective test in Duress what does the person need to be?

Answer 18

Of ordinary firmness of mind or will, of the same sex and maturity as the accused was.

Question 19

What are the 3 test for a defence of Necessity?

Answer 19

1. Act only done to avoid irreparable evil being inflicted upon themselves or someone they had to protect.
2. Defendant honestly believed on reasonable grounds that he was placed in a situation of imminent peril.
3. Acts done must not be out of proportion.

Question 20

What is the difference between duress and necessity?

Answer 20

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.

Question 21

What part of the crimes Act is self defence?

Answer 21

418

Question 22

What is the test for self defence?

Answer 22

1. The conduct was necessary to defend himself (subj)

2. It was a reasonable response to the circumstances as he or she perceived them. (Obj)

Question 23

What is the test for Honest and reasonable mistake?

Answer 23

1. Did the defendant hold an honest belief?
2. Was the belief held a reasonable one?
   The defence is only open to mistakes of fact.

Question 24

What is the defence of claim of right?

Answer 24

It relates to property. And the test is outlined in R v Fuge.

Question 25

What is the 9 step test for claim of right as outlined in R v Fuge?

Answer 25

1. The claim must involve a belief as to the right to property or money of another
2. The claim must be genuinely held (honestly)
3. The belief doesn’t 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. 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.
6. The claim does not have to related to specific property - must be of equivalent value.
7. Clam of right will not apply when the property or money taken intentionally goes beyond that to which the bona fide claim attaches
8. If 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 sufficiently

Question 26

For claim of right, to what standard to the prosecution have to disprove the offence?

Answer 26

R v Fuge - Beyond Reasonable Doubt

Question 27

What kinds of offences is Claim of Right available for?

Answer 27

Larceny, robbery, b & e, take and drive conveyance

Question 28

What section of the crimes act covers provocation?

Answer 28

section 23 of the crimes act

Question 29

When is provocation applicable?

Answer 29

Only in murder cases and it reduces the culpability to manslaughter.

Question 30

When else is provocation use for other offences?

Answer 30

As a mitigating factor under section 21A(3)

Question 31

What is doli incapax?

Answer 31

An irrebuttable presumption for a child under 10

Rebuttable presumption child 10-14