A Discussion of Criminal Law Defences

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National Criminal Lawyers™ as top lawyers know if you are charged with a Criminal Offence and the police can prove what is known as the elements of the Crime you should still seek expert legal advice as to if you have a valid defence-at-law.

At National Criminal Lawyers™ we are experts at explaining to you the most commonly used legal defences-at-law in New South Wales together with an assessment of the prospects of their success. The purpose of this article as such is to discuss what defences are available-at-law in NSW so you can get an idea on how to obtain the best advice according to your case.

Basically, before you can be convicted of a crime, your actions (giving rise to the unlawful conduct) must be voluntary.

Automatism as such is a state where the muscles act without any control by the mind, or with a lack of consciousness. For example, one may suddenly fall ill, into a dream-like state because of post-traumatic stress, or even be “attacked by a swarm of bees” and go into an automatic spell.

However, to be classed as an “automaton” there must have be a destruction of voluntary control. This does not include a partial loss of consciousness (not say as the result of say driving for too long and being tired). Where the onset of loss of bodily control was blameworthy, e.g., the result of voluntary drug use, it may be a defence only to certain specific intent crimes.

Automatism is a rarely used criminal defence. It mostly relates to the mental state of the accused. Where an act (otherwise criminal) is done in a state of automatism, (that is, without control or direction of the will of [the accused] over what is being done), then no crime is committed and [the accused] must be found “not guilty”.

Section 9.5 of the schedule of the Criminal Code Act 1995 (Cth) sets out the requirements of this defence, stating that if at the time of the offence you were under a mistaken belief that a property or right to possess existed (over property), you cannot be held criminally responsible. Essentially the existence of any such proprietary or possessory right negates the fault element for any physical element of the offence. The section also states that a defendant is not criminally responsible for any other offence necessarily arising out of the exercise of the mistaken proprietary or possessory right.

It should be noted that this section does not negate criminal responsibility for any offence involving the use of force (violence) against a person. Also, the presence of fraud during the claiming of the legal entitlement would also invalidate any claim of right, due to the lack of the requisite element of good faith.

You may claim that you acted under duress if your actions were motivated by a serious threat against you or your family AND serious injury or death would have resulted if you did not perform the criminal act.

One who is “under duress” is forced into the unlawful act. The duress must involve the threat of imminent peril of death or serious injury, operating on the defendant’s mind and overbearing his will. Threats to third persons may qualify.

For duress as a defence to succeed the defendant must reasonably believe the threat.

The accused must also not have foregone some safe avenue of escape. The duress must have been an order to do something specific, so that one cannot be threatened with harm to repay money and then choose to rob say a post office or convenience store to repay it. If one puts themselves in a position where they could be threatened duress may also not be an available defence.

In order to be eligible for the duress defence, the circumstances must have been so severe for the defendant that their will was in effect constrained completely, forcing them to be a mere innocent instrument of the crime.

Some of the requirements for establishing a defence of duress were set out by Chief Justice Hunt at CL in Bassett (1994), an unreported Supreme Court case, including:

An actual threat being made;

  • The threat being of death or serious injury to the defendant or their family;
  • The threat being of such gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the defendant would have yielded to the threat in the same way they did;
  • That the defendant acted the way they did due to the threat which was still acting on their mind at the time of the criminal act;
  • For such a threat to be effective it must be continuing and be perceived to be continuing
  • Such a threat will therefore not be continuing and effective if the accused had a reasonable opportunity to render the threat ineffective;
  • The burden of proof for establishing duress rests on the defendant, but once this burden is satisfied then the prosecution must prove that the defendant acted voluntarily beyond any reasonable doubt. However, it should be noted that duress is a defence to all criminal offences except for murder and treason.

Duress is however a complete defence, meaning once it is established by the defendant and not negated beyond reasonable doubt by the prosecution then the Court must acquit them of all charges.

Sections 9.1 to 9.4 of the schedule of the Criminal Code Act 1995 (Cth) sets out the requirements of the Honest and Reasonable Mistake defence stating that you will not be held criminally responsible for an offence if you were under a mistaken belief about the facts at the time of committing the act.

This defence may be present where the defendant had an honest belief in facts which if they had existed, would excuse their innocent act in contravention of the law.

The defence of honest and reasonable mistake is more limited in scope than other defences, because it is only applicable to strict liability offences, which are those that do not require the prosecution to prove that the defendant intended for the result to occur.

Consequently, this defence is most frequently raised in relation to traffic offences, such as Drive while disqualified or speeding charges. It is also important to note that this ground of exculpation is only available where there is a mistake of facts, and not a mistake of law. An example of a mistake of fact is where there is a mistaken belief by the defendant that one of the elements of the offence was not present, when they were committing the act.

Once the defence of honest and reasonable mistake is raised, the defendant has the burden of proving there was an honest belief, and if this is proven the prosecution then has the burden of disproving it beyond all reasonable doubt.

Strictly speaking, intoxication is not a defence, but a denial of intent/mens rea; the main difference being that a defence accepts the intent/mens rea and actus reus of an offence are present. With intoxication, there is no acceptance of the mens rea or intent to commit the offence.

A defendant’s intoxicated state at the time of the alleged committal of a criminal offence may be considered by the courts, under certain circumstances. Under the Crimes Act 1900 (NSW), it is defined as meaning “intoxication because of the influence of alcohol, a drug or any other substance.” However, the criminal defence of intoxication is currently only available for the specific intent category of offences, which require proof from the prosecution that the defendant possessed a specific intent to bring about a specific result. Thus, intoxication may be used as a defence for a specific intent offence such as maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm. The intoxication defence is outlined in section 428C of the Crimes Act 1900 (NSW), which states that evidence of a defendant being intoxicated at the time of the offence may be considered in determining whether they had the intention to cause the specific result necessary for an offence of specific intent. However, such evidence cannot be considered by the courts, if the defendant had decided before becoming intoxicated to perform the relevant act or they had become intoxicated to strengthen their resolve to perform the relevant act.

s61AA of the Crimes 1900(NSW) sets out what is lawful when physically punishing a child. The level of force used must be reasonable, must not be to the head or neck and must only last for a short time.

In 2002 laws were introduced into NSW clarifying what constituted acceptable physical punishment of children by their parents. The requirements of the defence of lawful correction are stated in section 61AA(1) of the Crimes Act 1900 (NSW), where it states that the defence is available only where:

  • The force used on the child was for their punishment;
  • The force was applied by the parent or a person acting for a parent of the child;
  • With regard to the physical and mental characteristics of the child, or what the child did, the force that was used on the child was reasonable.;
  • However, the force will not be considered reasonable under section 61AA(2) if;
  • The force was applied to the neck or head of the child, unless it was trivial or negligible;
  • The force is likely to cause harm to a child that will last for more than a brief period;

When Mental illness has been raised the question to ask is whether the accused person was, at the time of the commission of the offence, mentally ill. This defence applies in indictable matters only (that is matters in the District or Supreme Courts) and may be engaged by the following two routes:

After a “special hearing” during unfitness proceeding where if successful a special verdict of not guilty by reason of mental illness may be had Not Guilty by Means of Mental Illness (NGMI): ss 21B, 22(1)(b);

  • A special verdict of (NGMI) is returned at the trial of a person pursuant to s 38 MHFP Act when the jury finds that the person was mentally ill at the time the person committed the offence;
  • Note if your mater is being dealt with in the local Court see [What is a Section 32 and Section 33 of the Mental Health Forensic Provisions Act 1990(MHFPA) (NSW)]

An overarching theory of criminal defences is the doctrine of necessity. Generally speaking, a criminal act can be justifiable if it is necessary to prevent a foreseeable and greater harm than the harm created by the act. For instance, trespassing is generally justified if the defendant only trespassed in order to, for instance, instantaneously attempt to put out a fire on the property, or to rescue someone drowning in a pool on the property. The destruction or death caused by following the law and not trespassing would have been far greater than the harm caused by trespassing. Defendants who have committed a criminal offence may only raise the defence of necessity where they sincerely believed that they or their family would otherwise suffer immediate and irreparable harm.

In R v Loughnan (1981) the NSW Court of Criminal Appeal held that the required elements of the defence were:

The criminal act must have been done in order to avoid certain consequences which would have inflicted irreparable evil upon the defendant or upon others who they were bound to protect; and

  • The accused must honestly have believed on reasonable grounds that they were placed in a situation of imminent peril; and
  • The acts committed must not have been out of proportion to the imminent peril;
  • The necessity defence is solely limited to situations which overwhelmingly compel disobedience of the law, and thus it is usually difficult to satisfy the courts that the elements were present.

Defendants applying have the evidentiary burden of establishing a defence of necessity, but once established the prosecutor must disprove the defence beyond reasonable doubt. Also, like duress, the defence of necessity is not available to defendants who have been charged with the crimes of murder or treason.

Self-defence is, in general, some reasonable action taken in protection of self or another or one’s property. An act taken in self-defence often is not a crime at all; no punishment will be imposed.

To qualify, any defensive force or act must be proportionate to the threat. Use of a firearm in response to a non-lethal threat is a typical example of disproportionate force; however, such decisions are dependent on the situation and the applicable law, and thus the example situation can in some circumstances be defensible, generally because of a codified presumption intended to prevent the unjust negation of this defence by the trier of fact.

Many people misunderstand what the limits of Self-defence can be. Most think it is simply outlined in section 418 of the Crimes Act 1900 (NSW), however, there is lawful authority to argue self-defence even in situations where “Pre-Emptive Force” is used. Moreover, at times there are “No duties or need to retreat”.

Once self-defence is raised properly (on the balance of probabilities) and cannot be disproven to requisite standard by the prosecution (beyond a reasonable doubt) you will be found Not Guilty.

At common law, the leading case on self-defence is Zecevic v DPP (1987) 162 CLR 645 See http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1987/26.html

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