Defences Flashcards
What are the nine criminal defences?
- Intoxication - 428 Crimes Act 1900
- Self defence - 418 Crimes Act 1900
- Automatism - ‘But for test’
- Insanity ‘McNaughton Ruling’
- Substantial impairment by abnormality of the mind - 23A Crimes Act 1900
- Provocation - 23(2) Crimes Act 1900
- Claim of right - ‘Fuge Case’
- Duress
- Necessity
The Crimes Act outlines the type of offences in which intoxication can not be used as an defence. What are they?
428C - Specific Intent offences
Such evidence cannot be taken into account
(a) If the person had RESOLVED (decided) before becoming intoxicated to do the particular act,
(b) Became intoxicated to STRENGTHEN his/her RESOLVE to do the relevant conduct (dutch courage)
428D - Basic intent offences
-Only can be used as a defence if intoxication was NOT self induced (428E murder to manslaughter)
True or false - If the defence argue that the accused was intoxicated, the have to prove that despite being intoxicated the accused could have still formed the intent.
True - If a defence is raised by the accused on the balance of probabilities. The prosecution need to negate the defence beyond a reasonable doubt
What are the elements of the defence of self defence?
418 Crimes act
Subjective element
-The reasonable possibility the accused believed that there conduct was necessary to defend themselves
Objective element
- The reasonable possibility that what the accused did was a reasonable response to the circumstances as he/she perceived them
Automatism is concerned with involuntary behavior, acts done without control of the mind. How can the prosecution disprove the defence?
Show that the CONDUCT of the accused immediately prior to the involuntary act
- was voluntary
- and that this conduct then caused the involuntary act
Known as the ‘But for test’
Insanity is concerned with a lack of mens reas via a disease of the mind. What are the defence required to established for a defence of insanity?
Known as the ‘McNaughton Ruling’
The accused must clearly prove that
At the time of committing the act, he was laboring under such a defect of reason from a disease of the mind:
-As to not know the NATURE and QUALITY of the act he was doing, or
- As not to know WHAT HE WAS DOING WAS WRONG
The condition does not have to be incurable or permanent
What are the defence required to establish for the defence of ‘Substantial impairment by an abnormality of the mind’? (murder to manslaughterSubjective
Section 23A
The defence must show that at the time of the death
- The person capacity to understand events or
- To judge whether the persons actions were right or wrong or
- To control him/herself (impulsive)
- Was substantially impaired by an abnormality of the mind
- Arising from an underlying condition (medical condition must be permanent and substantial)
What are the defence required to establish for the defence of ‘Provocation’? (Murder to Manslaughter)
‘The killing of one person resulting from a loss of self control on the part of the killer, which is brought about by the actions of the deceased’
Section 23(2)(a) Subjective element
- Act or ommision is the result of a temporary loss of self control of the accused
- Induces by the conduct of the deceased
Section 23(2)(b) Objective element -Ordinary person put in the position of the accused would have lost self control to have formed the intent to kill or inflict GBH
What is required to be present for a defence of claim of right and what is the case law that relates?
A claim of right is present if there exists
- Belief of entitlement ( lawfully not morally, whether by mistake or wrong belief)
Honest claim (subjective test) Legal claim (objective test)
Case law: Fuge case - Unpaid wages of sister (can be executed through a third party)
What is the defence of duress?
The defence of duress may arise where a person
- Commits a crime out of extreme fear or threat or immediate death or serious injury
Objective test - The reasonable person test
(not a defence to murder)
What is the defence of Necessity?
The criminal acts must be done
- To avoid serious harmful consequences
- To the accused or others he was bound to protect
(not a defence to murder)
Subjective test: Honest belief on reasonable grounds he was placed in a situation of imminent peril
