Criminal Defences

Question 1

What are the 9 Criminal defences?

P.A.N.I.C. D.I.S.S.

Answer 1

P - Provocation
A - Automatism
N - Necessity
I- Insanity
C - Claim of right

D - Duress
I - Intoxication
S - Substantial impairment
S - Self Defence

Question 2

How are defences raised?

Answer 2

• All defences need to be raised by the defence during investigation or trial.
• The defence are obliged to disclose the defence, but not specifics under 139 of the Criminal Procedures act.
• This burden is lower than on the balance of probabilities, but higher than reasonable suspicion. - Once they are in issue we need to negate them beyond reasonable doubt.

Question 3

Can the defence of intoxication be considered as complete and/or partial?

Answer 3

• May provide a COMPLETE defence to all mens rea offences by eliminating mens rea.
• Or intoxication may be a PARTIAL defence, having the effect of reducing culpability/criminal responsibility.

We need to identify offences of ‘Specific Intent’ and ‘Basic Intent’ to detemine the apllicability of intoxication.

Question 4

In accordance with the Intoxication defence, Section 428C; allows evidence of intoxication to be taken into account in specific intent offences. Such evidence CANNOT be taken into account on what occasions?

Answer 4

a) If the person had resolved before becoming intoxicated to do the particular act, or
b) Became intoxicated to stregthen his or her resolve to do the relevant conduct.

Question 5

Regarding ‘Basic Intent’ offences when can evidence of intoxication be taken into account?

Answer 5

In accordance with section 428D - evidence of intoxication is allowed to be taken into account for offences of ‘Basic Intent’ only if the intoxication was NOT self induced.

Question 6

What is the defence of self defence in accordance with Section 418 of the Crimes Act 1900.

Answer 6

Section 418 Crimes Act;
‘A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence’ Self defence is a COMPLETE defence.

Question 7

What two elements form the test for self defence?

Answer 7

1) - Subjective (In the mind of the accused): Is there a reasonable possibility that the accused believed that their conduct was necessary in order to defend themselves?
(Typically dependant on admissions, evidence of preperation or circumstantial evidence, including excessive acts; to negate)

• Objective (Would a reasonable 3rd person thought similarly): Is there a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she percieved them?
  (Inquiries and evidence can be used to refute whether their acts could be considered reasonable in those circumstances)

Question 8

What is automatism?

Answer 8

Automatism provides a COMPLETE defence to all mens rea offences, in is concerned with;

• Involuntary behaviour.
• It is a COMPLETE common law defence to murder and other criminal offences.
• Automatism means an act which is done by the muscles without any control by the mind.
• It can include a spasm, a reflex action or a convulsion.

Question 9

How can we negate the defence of Automatism?

Answer 9

If we can show the conduct of the accused immediately prior to the involuntarty act was voluntary and that this conduct then caused the involuntary act which caused the consequent criminal act, the defence of automatism may fail.

Section 428G of the Crimes act explains; ‘In determining whether a person has committed an offence evidence of self-induced inoxication CANNOT be taken into account in detemining whether the relevant conduct was voluntary.

Question 10

What is defence of insanity?

Answer 10

Instanity is;

• A partial defence to murder.
• Institutionalising a person indefinitely for medical treatment.
• Ordinarily a defendant will be presumed sane; unless they raise the issue of ‘insanity’.
• Insanity is concerned with a lack of mens rea via a’ disease of the mind’.
• The court must be satisfied on the balance of probabilities that the defendant is legally INSANE AT THE TIME OF THE OFFENCE. Which will return a special verdict of ‘not guilty; on the grounds of mental illness or insanity.
• Insanitly is concerned with intellect and not emotion. It is not available where emotion causes an uncontrollable impulse.
• Disease of the mind is concerned with the mental faculties of reason, memor and understanding.
• The condition does not have to be incurable or permanent.

Question 11

How do you establish the defence of insanity?

Answer 11

McNaughten Rules (common law test for insanity);
The accused must clearly prove that at the time of committing the act, he was labouring under such a defect of reason, from the disease of the mind:
1) as to not know the nature and quality of the act he was doing, or
2) as not to know that what he was doing was wrong.

Question 12

What is the defence of Substantial impairment by an abnormality of the mind?

Answer 12

Section 23A Crimes Act - and- Previously known as Diminishing responsibility.

It is a PARTIAL DEFENCE to MURDER ONLY. And reduces murder to manslaughter.

The accused must show at the TIME OF DEATH;
a) The persons capacity to understand events, or
b) To judge whether the persons actions were right or wrong, or
c) To control themselves,
Was substantially impaired by an abnormality of the mind arising from an underlying condition.
The impairment must be substantial to justify reducing murder to manslaughter.

Question 13

How is substantial impairment (diminished responsibility) negated?

Answer 13

• Failure of the objective test.
• There need to be an underlying medical cause for the abnormaility. Impulsive behaviour is NOT enough by itself, you need to establish an underlying medical cause this will generally be established by the diagnosis of a medical condition.
• The medical condition must be of a ‘permanent quality’.
• It must be ‘substatial’.

Question 14

What is the defence of provocation?
S23 Crimes Act 1900

Answer 14

• The killing of one person resulting from a temporary loss of self control brought about by the words or acts of the deceased.
• PARTIAL defence to Murder only.
• Reduces Murder to Manslaughter.

This requires a TRIGGER ACT and the ACT OF PROVOCATION.

Question 15

What are the characteristics of a trigger act for provocation?

Answer 15

1) Words alone as a trigger must be sufficiently provocative in nature.
2) History/culmination of provocative conduct relevant (battered wife syndrome)
3) Acts of Adultery can justify provocation.
4) Trigger must take place in the presence of the accused.
5) The trigger must come the Deceased
6) The trigger generally must be Aimed at the defendant or the defendant must be present.
7) Trigger need not be unlawful.

Question 16

How does the prosecution negate provocation?

Answer 16

• Subjective element: 23(2)(a): -and- Objective element: 23(2)(b)
  How we can negate provocation when raised:
  1) If the actions of the accused amount to premeditation (examine accused conduct between events).
  2) The conduct of the deceased must be capable of provoking retaliation of a relevant degree (objective test).

Question 17

What is the defence of claim of right?

Answer 17

• Honest claim (subjective test) the defendant honestly believes they were entitled to the property. (based on facts not law), AND
• The belief must be one as to legal entitlement (objective test) Complete defence to mens rea offences. Usually property/fraud type matters.

(COMPLETE defence to Mens Rea offences (typically with a dishonesty element)

Question 18

What is the defence of duress?

Answer 18

The defence of duress may arise in circumstances where a person commits a crime out of extreme fear or threat of ‘immediate death’ or ‘immeidiate serious personal violence’.

• Duress is a COMPLETE defence.
• Duress has bot bee recieved in NSW as a defence to murder.

Question 19

What is the defence of necessity?

Answer 19

• The criminal acts must be done to avoide ‘serious harmful consequences’ to the accused or others they were bound to protect.
• The accused must honestly believe on reasonable ground that he was placed in a situation of imminent peril.
  (COMPLETE defence)

Question 20

What does the case of R v Katarzynski indicate regarding the legal defence of self defence?

Answer 20

It poses the question whether the self defence in question was a REASONABLE and PROPORTIONATE RESPONSE.

And uses the two elements of the test for self defence;

1) Is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and,
2) If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.

Question 21

What does the case of R v Fuge indicate regarding the legal defence of claim of right?

Answer 21

‘The existence of such a claim may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms. The relevant issue being 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.’