Criminal Defences Flashcards
(19 cards)
Defences can be broadly classed into 2 major categories:
- Common law
2. Statutory
Common Law Defences (HAND C):
o Mistake of Fact. o Automatism. o Necessity. o Duress. o Claim of Right. o Mental Illness - Dealt with under Mental Health (Forensic Provisions) Act 1990.
Mistake of fact:
The defendant basically accepts the charge has been made out and that he would be
liable, however he relies upon a set of facts that if true would exculpate the defendant from the actus reus of the offence.
Automatism:
• Based on the premise that the defendant had no control of the mind over the actions of his body.
• Basic premise of the ‘defence’ is that it goes to the actus reus of the matter rather
than the mens rea.
• In order to commit an assault a defendant must know what he is doing and realise that he has no lawful justification for his actions.
Necessity:
Three Elements:
- “First, the criminal act or acts must have been done only in order to avoid certain
consequences which would have inflicted irreparable evil upon the accused or upon
others whom he was bound to protect.
- The two further elements of ‘imminent peril’ and ‘proportion’
- The element of imminent peril means that the accused must honestly believe on
reasonable grounds that he was placed in a situation of imminent peril.
The element of proportion means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.”
Duress:
• Person who commits a crime in extreme fear or under threat may, even though he has fulfilled all the elements of the crime, be morally excusable.
• It is a true defence, in that it excuses from liability an offence committed by the defendant and otherwise proven.
• Were the defendant’s actions in the circumstances justified? If the answer is yes,
then he can exculpate himself from criminal liability.
Two fold test applied for duress:
• Subjective – did the accused commit the act because of a threat of death or really
serious harm would be occasioned to him or a person known to him?
• Objective – would a reasonable person labouring under that threat yield to that threat in the way that the accused did?
Claim of right:
• Generally, applies to larceny type offences.
• The claim must involve a genuinely held belief to the right to property or money of
another.
• The belief does not have to be reasonable, however does have to have some basis.
Statutory defences: (COP)
Concept Defences:
- Relate to a concept of public policy settled upon over years of Common Law decisions, for example ‘Self Defence’ and ‘Intoxication’.
- These now codified defences also relate to an array of offences.
- Self Defence -all violence offences.
- Intoxication -specific intent type and non specific intent offences in limited circumstances.
Statutory defences: (COP)
Offence Specific Defences:
• Parliament formulates offence in the legislation and include in that particular offence a ‘built in’ defence.
Statutory defences: (COP)
Proof by Exceptions:
• Similar to ‘Offence Specific’ defences in that they are confined inside individual offence creating sections for application to that relevant section but are simply
described as an ‘exception’ or an ‘exemption’ rather than a ‘defence’.
Concept Defences – Self Defence:
A person is not criminally responsible for conduct that would otherwise constitute an
offence if the person believes the conduct is necessary AND then if the conduct is a
reasonable response in the circumstances as they perceive them to be.
Crimes Act 1900 s.418 Self-defence-when available:
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self defence.
(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, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty
of another person, 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 such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.
Intoxication as a defence:
• Intoxication is not a true defence; it does not excuse nor justify the defendant’s
criminal behaviour.
• It is a means of challenging the Prosecution’s case and to cast doubt on the actus reus or the mens rea.
• The defence will allege that due to the level of intoxication, the defendant’s actions
were involuntary i.e. automaton = no actus reus.
• The defence will usually concede actus reus and suggest that the degree of intoxication was such that the defendant was incapable of forming the guilty mind
(mens rea).
• Intoxication is taken into account for SPECIFIC INTENT offences, refer to Crimes
Act 1900 s.428B
• For all other offences intoxication will not be taken into account when it is self induced.
Intoxication definition:
• Means intoxication because of the influence of alcohol, a drug or any other
substance.
Self-induced intoxication:
• Means any intoxication except intoxication that:
(a) is involuntary, or
(b) results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or
(c) results from the administration of a drug for which a prescription is required in
accordance with the prescription of a medical practitioner or dentist, or of a drug for which no prescription is required administered for the purpose, and in accordance with the dosage level recommended, in the manufacturer’s instructions.
S. 11C SOA 1986 – Custody of knife (any blade) in public place or school:
• The accused
• Without reasonable excuse: (POKEROTE)
P – Preparation of food or drink (e.g. picnic)
O – Official uniform
K – Knife collection or exhibition
E – Exhibition of knives for retail, etc.
R – Genuine Religious reasons
O – Lawful Occupation
T – Travelling to and from any of these activities
E – Lawful Entertainment, recreation or sport (e.g. fencing practice)
• Has in their custody a knife.
• In a public place or school.
Offence Specific Defences:
Some offences have legislated defences within the section.
Proof of exceptions:
Example: A person must not use an unregistered registrable vehicle on a road however, May drive unregistered vehicle to nearest mechanic to get registered
