defenses Flashcards
(28 cards)
what is cartesian dualism?
the division of the mind from the body
- crimes normally but not always have physical and fault elements, representing a division of the body and the mind
- rene des cartes (1596 - 1650)
- cogito ergo sum; i think, therefore i am
fault element - mens rea - mental element are all the same
- mental elements may indicate which elements of an offence the mental defences impact on
how does defences work?
defences will generally work in one or two ways:
- deny the existence of a physical or fault elements
e.g. non mentally impaired automatism or sane automatism seeks to deny the existence of the physical element of voluntariness
- excuse or justify the presence of physical or fault element
e.g. mental impairment (common law insanity) may seek to excuse the fault element for murder; and self-defence, killing another, may provide a lawful excuse
what are the 4 questions to ask about defences?
- what is the test?
- full or partial defence?
- outcome if successful?
- burden of proof (who or what)?
what is the test?
what has to be proven to establish the specific defence?
This varies between defences and is generally now found in Victoria in legislation
- criteria for mental impairment: in the crimes (mental impairment and unfitness to be tried) act 1997 (VIC)
- criteria for self-defence: s322k of the crimes act 1958
while the source of law for both provisions - and other defences - is now legislation, the legislation is often restatements of common law so common law cases may give guidance on their application
full or partial defence?
full defences: these are complete answers to criminal charges
- they exonerate accused of criminal responsibility
- may lead to discharge or release of accused as in successful use of non-mentally impaired automatism or self-defence
- an acquittal in the basis of mental impairment will generally lead to a supervision order under s26 of the crimes (mental impairment and unfitness to be Tried) Act 1997
partial defences: these reduce a murder conviction to a manslaughter conviction
- can only be raised on murder charges
- restricted in victoria to s6 - infanticide or s6b - survivor of suicide pact - of the crimes act 1958
- other jurisdiction recognise other defences such as sa and nsw which recognises excessive self-defence and diminished responsibility
outcome if successful?
acquittal and freedom
- e.g. non-mentally impaired automatism or self-defence
acquittal and detention
- e.g. an acquittal on basis of mental impairment will generally lead to a supervision order under s26
reduction of murder to manslaughter
- partial defences lead to convictions and penalties for manslaughter rather than murder
burden of proof (who and what)?
there are two types of burden of proof:
legal or persuasive burden of proof
tis usually falls on the prosecution
- e.g. once reasonable doubt about a lawful excuse is raised because of self-defence the prosecution has the legal burden to disprove it beyond reasonable doubt
- the only exception at common law was insanity, now mental impairment
the legal and persuasive burden was placed on the accused to prove on the balance of probabilities that they were mentally impaired
evidential burden
- this usually falls on the person who raises the issue which is generally the accused
what forms the test of that defence?
the test for a valid defense generally involves two key aspects: whether the accused had a genuine belief in the necessity of their actions and whether that belief, and the actions taken, were reasonable in the circumstances
this means the court will assess both the accused’s subjective state of mind and an objective standard of reasonableness
checkpoint
which of the following are true?
- a partial defence will convert a murder conviction to manslaughter
- a full defence will always result in freedom for the defendant
- **defences can be either full or partial
- a full defence will exonerate a defendant of any criminal responisbility**
checkpoint
which of the following are true?
- a successful defence would lead to murder becoming manslaughter
- a successful defence could lead to acquittal and detention
- a successful defence could lead to acquittal and freedom
- a successful defence is only possible if raised by the prosecution
checkpoint
which of the following are true?
- the defence annot raise a defence
- **the evidential burden seeks to enliven a defence. that is, the defence is arguable on the facts
- the defence can raise a defence
- the probative burden is the burden to prove the defence is successful**
partial defence
provocation was a common law partial defence to murder, that is, the accuse could be convicted of manslaughter rather than murder. why did the vlrc recommend it be abolished?
infanticide and survivor suicide pact
- **it is conceptually confused, complex and difficult to apply
- it privileges loss of self-control over other mitigating factors not recognised as partial defences
- loss of self-control should not be basis for separate excuse – it also excluded diminished responsibility for this reason
- it use was gendered based and generally claimed by men accused of murdering women
- it promotes a culture of victim blaming
- it and surrounding circumstances can be considered in sentencing**
partial defence
as a result of the high court’s decision in zecevic v dpp (1987) excessive self-defence, or using more violence than the reasonable person would have used, was no longer a partial defence to murder. The vlrc recommended legislation to make it a partial defence:
infanticide and survivor suicide pact
- as it could be used by women who kill violent partners to recognise their reduced culpability
- as it is similar to diminished responsibility
- as it is similar to survivor suicide pact
- as it is similar to excessive provocation
partial defence
diminished responsibility is a partial defence in some australian jurisdictions. it permits underlying health issues falling short of full mental impairment to be a partial defence to murder. why did the vlrc not recommend its introduction in Victoria?
infanticide and survivor suicide pact
- degrees of criminal responsibility are better assessed during the sentencing process by a judge rather than a jury
- people who kill others should expect to be treated as adults, adult crime, adult time
- juries are unlikely to be sympathetic to accused who rely on such defences where someone has died
defences
additional types of defences
- defences of mental impairment: a legal principle that excuses a person from criminal responsibility if their mental state at the time of the offence was so impaired that they lacked the capacity to know the nature and quality of their conduct or understand that it was wrong
- defences of automatism: argues that an accused person’s actions were involuntary, occurring without conscious volition or control of their will
- essentially, it’s a claim that the accused was not in control of their actions when the offense was committed, negating the required mental element of criminal responsibility
-
defences of intoxication:
evidence of intoxication can be relevant when determining whether a person had the required mental state (intent, knowledge, or recklessness) for a specific crime, particularly those requiring “specific intent” - the key factor is whether the intoxication was self-induced or not
checkpoint
where are the self-help defences found?
self defences
- in the crimes act 1958 (vic) ss322g to 322t
checkpoint
why was a new offence of defensive homicide which codified in legislation the defences of self-defence in the context of murder created in 2005?
slef defences
because of recommendations from the vlrc that women who killed in circumstances of family violence were unfairly being convicted of murder as they were unable to use the defence of self-defence
- the vlrc recommended in defences to homicide (2004) that a new offence was needed as women were not able to use self-defence which reflected male reactions to violence
checkpoint
why was the offence of defensive homicide abolished in 2014 and the self-help defences codified in legislation in all contexts?
self defences
because many men than women had used the defence
- men ‘were getting away with murder’
checkpoint
how do the legislative provisions codifying the self-help defence provisions reflect their connection with attempts to address issues of family violence?
by including provisions which permit the defences of self-defence and duress to be informed by knowledge of family violence
checkpoint
while the crimes amendment (abolition of defensive homicide) act 2014 (vic), which inserted the codified self-help defences in the crimes act 1958 (vic), abolishes the related common law why do common law cases remain relevant?
self defence
while no longer the source of law they illustrate how common law principles codified in the legislation are applied
checkpoint
drag the words into the correct boxes
self defence
1) a person is not guilty of 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—
(a) the person believes that the conduct is necessary in self-defence; and
(b) the conduct is a reasonable response in the circumstances as the person perceives them
3) this section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury
checkpoint
is there a restriction on the use of the defence of self-defence on a charge of murder?
yes. the accused must believe that their action was necessary to defend themselves or another from the risk of death or really serious injury
- self-defence is a full defence that leads to a full acquittal in all cases
- s322K (3) states that it only applies to murder if there was a belief that the action was required to prevent death or really serious injury
checkpoint
if a person successfully raises self-defence in a case where a death has occurred, what is the legal outcome?
The person is found not guilty (acquitted)
- self-defence is a full defence that leads to a full acquittal in all cases
- s322K (3) states that it only applies to murder if there was a belief that the action was required to prevent death or really serious injury
checkpoint
can self-defence be used as a defence where the act is to protect property?
yes
- note 2 to s322k states that the circumstances in which a person may carry out the defence of self-defence extends to the protection of property
