Defences Flashcards
What must be proven for self defence acquittal
the accused must prove he or she:
• had a belief that it was necessary to act to defend themselves or another person from serious harm or injury
• had reasonable grounds for this belief.
Family violence self defence
Special provisions in family violence cases allow a court to determine that the accused reasonably believed his or her conduct was necessary, even when the threat of harm was not immediate or the force used in response to the threat of harm was excessive. In deciding such cases, the court can examine the history of violence in a family relationship and its social, economic and psychological effects.
What is defensive homicide
If a person can prove that they acted in response to a perceived threat of serious harm, but the court finds this belief not to be reasonable, then the person will be guilty of defensive homicide. Defensive homicide is an offence in its own right as well as a lesser alternative offence in cases of murder. If the accused is found guilty of defensive homicide, he or she will be liable for up to 20 years in prison.
What is mental impairment
The Crimes Act states that this defence exists in cases where the person was suffering a mental illness at the time of the crime and as a result the person:
• did not know what he or she was doing because they had little understanding of the nature and
quality of their actions
• did not know the conduct was wrong or could not reason, or think about, their conduct like an
ordinary person.
If mental impairment defence is successful, what action is open to the jury
If the accused is successful, the verdict will be not guilty because of mental impairment. The court will either make a supervision order or release the accused unconditionally. A supervision order is for an indefinite term. It can be non-custodial or custodial, in which case the accused is released, but must comply to certain conditions. If the supervision order is custodial, it must be served in an appropriate place such as a psychiatric hospital or institution. A prison is seen as a place of last resort. A custodial or non-custodial order will be reviewed at the end of a specified period.
What is duress
This defence is rarely used. For the defence of duress to be successful, the accused must show that there was an extremely serious threat to themselves or their family involving the death or serious injury of the accused or their family. This defence could lead to an acquittal if it is successful.
Under the Crimes Act, a person acts under duress when they reasonably believe that:
• a threat of harm will be carried out unless the person commits a crime – the threat must be of such gravity that an ordinary person, of the same sex and maturity as the accused, would have given in
to the threat in a similar way to the accused
• committing a crime is the only reasonable way of avoiding the threatened harm
• their conduct is a reasonable response to the threat made.
In murder cases, duress would only be relevant in cases where the threat involved death or really serious injury; for example, a person with a gun to the head of the accused threatened to kill the accused unless the accused shot another person.
What is intoxication
Intoxication is not a separate defence but it may be relevant in proving if mens rea did or did not exist, or whether the accused acted voluntarily and with criminal intent. If the accused is so drunk or affected by drugs that he or she cannot form the intention to commit the crime (mens rea) then a court may decide that there is no crime and the accused has to be found not guilty. This will rarely happen, because it is very unlikely that a person could be so badly affected by alcohol or drugs and still commit a crime. If a person’s intoxication is self-induced, the court must compare the accused’s belief or actions to those of a reasonable person who is not intoxicated. If a person’s intoxication is not self-induced, the standard of a reasonable person intoxicated to the same extent as the accused must be considered. It isn’t as successful in murder cases as often it just decreases the charge to manslaughter.
Sudden or extraordinary emergency
A person will not be guilty of homicide if the person reasonably believes that:
• there is a sudden or emergency situation
• their actions are the only reasonable way of dealing with the emergency situation
• their conduct is a reasonable response to the emergency situation. In murder cases, the emergency
must involve a risk of death or extremely serious injury.
Necessity
The defence of necessity may allow a person to be acquitted of a crime. The common-law defence of necessity no longer applies in murder cases. Instead, the accused would use the statutory defence of sudden or extraordinary emergency, which is a similar defence to necessity.
3 elements of necessity
• The criminal act must be done to protect the accused or someone else from irreparable evil or
harm.
• The accused must honestly believe, on reasonable grounds, that there was a situation of imminent
peril.
• The criminal act must be reasonable and not out of proportion to the peril avoided.
Automatism
This defence is concerned with involuntary actions that are not caused by a disease of the mind. For a crime to be committed, the prosecution has to prove that there was some voluntary act (actus reus) and a guilty mind (mens rea). For the defence of automatism to exist, the accused must show that he or she was unable to form the intention to commit the crime (a guilty mind).
The accused must prove the defence of automatism ‘on the balance of probabilities’. For the defence of automatism to be accepted and the accused acquitted, it must be shown that the act was:
• involuntary – done by muscles without any control of the mind (such as a spasm or a reflex action);
or
• done by a person who was not conscious of what they were doing, such as suffering from concussion
or while sleepwalking.
Accident
In some cases the accused may claim the death was the result of an accident. There is no separate defence of accident in criminal law, but an accused who is claiming that the death was an accident is saying that they did not possess a guilty mind (mens rea). If mens rea did not exist, the accused cannot be found guilty of a crime. If the court accepts that the death occurred as the result of an accident, the accused would be acquitted.
Consent
In defence to a charge of rape, the accused might try to argue that consent was given or that he or she was unaware that the other person did not give their consent. The belief that the victim was consenting to the sexual act must be reasonable. A person does not have to protest or physically resist, or sustain physical injury, to show that he or she did not consent. It is also not a defence to say that he or she had agreed to a sexual act with that person on an earlier occasion.
What is self defence
Self defence is a defence that can be used when the accused believes that their actions were necessary to defend themselves. 2 factors need to be shown for an acquittal on the basis of self defence.
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