Criminal Defences

Question 1

List the criminal defences

Answer 1

Statutory defence
Self defence
Insanity
Honest and reasonable mistake of fact 
Automatism 
Claim of right 
Intoxication 
Provocation 
Duress
Diminished responsibility 
Necessity 
Doli incapax

Question 2

What defences are not available in the local court and why?

Answer 2

Insanity - needs to referred to DPP fitness to plea
Diminished responsibility - only availavle murder
Provocation - only available for murder
Doli incapax - children’s court

Question 3

What is the defence of automatism?

Answer 3

When the Defendant has no control over the actions of his body.

Actions not voluntary and challenges the actus reus.

Question 4

What are examples of automatism?

Answer 4

Sneezing, sleep walking, concussion, epileptic fit.

Question 5

does intoxication challenge the mens rea or actus reus of the crime?

Answer 5

It can be either:
Due to the level of intoxication the defendants actions were involuntary or
Due to the level of intoxication the defendant was incapable of forming the guilty mind.

Question 6

What did the high court case of O’Connors seek to do?

Answer 6

It made intoxication a defence for all crimes not just those of specific intent

Question 7

When will the defence of intoxication be available to a defendant?

Answer 7

S428C Crimes Act - where the offence is one of specific intent, whether the accused was intoxicated at the time may be taken into account in determining whether the person had the intention to cause the specific result necessary for the relevant offence.

S428D crimes act for all crimes where intoxication was not self induced

Question 8

When will the defence of intoxication not be available?

Answer 8

428C intoxication will not be a defence to an offence of specific intent but the person:

(2) (a) had resolved before becoming intoxicated to do the relevant conduct or
(2) (b) bevame intoxicated in order to strengthen his or her resolve to do the relevant contact e.g. Dutch courage.

Section 428D Crimes Act- self induced intoxication and not an offence of specific intent

Question 9

How does the reasonable person test apply to intoxicated persons?

Answer 9

S428F Crimes Act the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated

Question 10

What is duress?

Answer 10

It is where a person commits a crime in extreme fear or under threat. It is a true defence and excuses someone from criminal liability.

Question 11

How do we rebut the defence of duress cite authority?

Answer 11

R v abusadiah NSWCCA

1. No reasonable possibility that he did so by reason of a threat of death 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.

The test is both subjective and objective.

Question 12

Is duress a common law or statutory defence. Cite authority

Answer 12

Common law R v Hurley & Murray

Question 13

Is intoxication a common law or statutory defence cite authority

Answer 13

Statutory s428 Crimes Act

Question 14

What are the elements of the defence for duress

Answer 14

R v Hurley & Murray:
Under threat of death or GBH
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 apprehensipn the threat would be carried out
He was thereby induced to commit the crime
The crime was not murder nor any crime so heinous so as to be excepted by the doctrine
The defendanf did not by fault on his own part when free from the duress expose himself to it’s application
And
He had no means with safety to himself of prevemtimg the execution of the threat

Question 15

What are three elements to the defence of necessity?

Answer 15

1. The criminal act musy have been done only know order to avoid certain comsequenxss which would have inflicted irreparavle evil upon the defendant or upon others whom he was placed kn the situation of
2. Rhe defendant must honestly believe on reasonable grounds that he was placed in a situation of imminent peril.
3. The act done to avoid imminent peril must not be out of proportion to the peril to be avoided.

Objective and subjective test

Question 16

What is the difference between duress and necessity ?

Answer 16

The time between the threat and commission of the offence. For the necessity there can be no break in time tje act needs to be done to avoid immediate peril whereas duress the threat can be of continuing nature and a time interval is allpwable.

Question 17

Is self defence common law or statutory defence. Cite authority

Answer 17

Statutory Defence section 418 Crimes Act

Question 18

What conduct is carried out in self defence?

Answer 18

Section 418 (2) a person carries out conduct in self defence if and only if the person believes the conduct is necessary
a) to defend himself or herself or another person
b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another perskn or
C) to protect property from unlawful taking destruction, damage or interference or
D) to prevent criminal trespass to any land or premises or to remove a person committing any criminal trespass
And the conduxt is a reasonable response in the circumstances as he or she perceives them.

Question 19

Is honest and reasonable mistake of fact a statutory or common law offenxe cite authority

Answer 19

Coomon law- Proudman v Dayman

Question 20

What is an honest and reasonable mistake defence

Answer 20

An honest and reasomable belief in a state of facts which if they existed would make the defendants act innocent affords an excuse for doing what would othereise be an offence

Question 21

Is claim of right a common law or statutory defence cite authority

Answer 21

Common law R v Fuge

Question 22

What are rhe 9 principles for claim of right

Answer 22

R v Fuge
1. The claim must involve a belief as to rhe right to property or money of another
2. The claim must be a genuinely held (honest belief)
3. The belief doesn’t have to be reasonable however does have to have some basis
4. The belief mist be as to a legal not merely a moral right
5 the releavant 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 proerty of equivalent value
7. Claim of right will not apply when the property or money taken intentially goes beyond that to which the bona fise claim attaches
8. If the defendant is charged as an acessory the princuple offender must hold the bona fide claim
9. It is foe the crown to negate a clakm of right where it is sufficiently raised beyond reasonable doubt

Question 23

What offences may a claim of right be raised as defence ?

Answer 23

Larceny, robbery, break and enter, take and drive conveyance, steal motor vehicle, fraud, damahe and destroy propery

Question 24

Is provocation a commonlaw or statutory defence cite authority

Answer 24

Statutory 23 crimes act

Question 25

Is diminished responaibility a common law or statutory defence

Answer 25

S23A Crimes Act.