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KOGARAH NSW 2217


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SYDNEY NSW 2000


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DEFENCES


Despite what the police might say, being charged by the police with an offence does not mean that you will be found guilty of that offence. It is also true to say that police are human and do make mistakes.

In some cases they may be bound to take action against someone even though they would prefer not to and in other cases they may be biased or act illegally.

The criminal law recognises that certain acts should not be followed by criminal proceedings or at least should not lead to a conviction because of the presence of some specific factor or circumstance.

A fundamental reason why the criminal law contains a number of defences is because criminal law is not a tool for vengeance but instead one of the means of attempting to ensure the peaceful existence of a community.

Where a defendant successfully raises a defence, he/she is found not guilty or is convicted of a lesser sentence.

Below you will find information with regard to most common criminal law defences that apply in New South Wales. They each highlight circumstances in which either no criminal liability should be attached (a complete defence) or criminal liability should be reduced (partial defence).

SELF-DEFENCE

In Australia you have the right to physically defend yourself with reasonable force, provided the force is authorised, justified or excused by law.

Self-defence may be a complete defence to criminal liability for causing injury or death in defence of the person or, to a limited extent, property. It may also be relied upon as a partial defence to murder if the degree of force used was excessive.

The principle of self-defence extends to:

  • Defence of other persons
  • Defence of property
  • Prevention of a serious crime
  • Effecting a lawful arrest

The use of force is limited to situations where:

  • The defendant is faced with a threat which makes the use of force necessary; and
  • The amount of force used is not excessive in the circumstances

How is self-defence pleaded?

Once the defendant has mentioned that he/she wants to raise self-defence, the responsibility will be on the prosecution (Crown) to disprove beyond all reasonable doubt the possibility of self-defence.
As seen below in more details, the prosecution will attempt to demonstrate that the response from the defendant was neither necessary nor reasonable.

Section 418 of the Crimes Act 1900 (NSW) governs the circumstances during which self-defence is available:

A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

  • A person carries out conduct in self-defence if and only if the person believes the conduct is necessary
    • To defend himself or another person; or
    • To prevent or terminate the unlawful deprivation of his/her liberty or liberty or another person; or
    • To protect property from unlawful taking, destruction, damage or interference; or
    • 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/she perceives it.

Please note that the law does not allow you to carry anything that can be described as an offensive weapon for the purpose of self-defence.

Existing link between the offence and the threat

If you choose to plead ‘self-defence’, you will often hear the term ‘nexus’ in Court. It means that there must be a link between your conduct and the threat you perceived from the other party. In other words, there needs to be a relationship of a perceived attack and a reasonable defence to in in order to raise self-defence.

There is a requirement of imminence in that nexus, i.e. the defence was proximate to the attack. If the harm is not imminent, the defendant is likely to have a reasonable opportunity to retreat and avoid the harm,

For more information, please refer to the NSW Judicial Commission’s self-defence section.

CLAIM OF RIGHT

A person is not criminally responsible as for an offence relating to property, for an act done or omitted to be done in the exercise of an honest claim of right and without intention to defraud.

You will be able to raise that defence is you obtained property and believe in good faith that you had a right to the specific property, or the specific amount of money, and openly took it.

You may hold a belief in good faith even if your belief was mistaken or unreasonable.
However if you were aware of certain facts that made your belief completely unreasonable, then you may conclude that the belief was not held in good faith.

Please note that ignorance of the law is not an excuse for any offence.

How is claim of right pleaded?

The defendant does not have the responsibility to prove that he made an honest claim of right without intention to defraud. Instead the prosecution (the Crown) bears the responsibility to prove to the Judge beyond reasonable doubt that he/she did not do so.

What amounts to stealing?

The prosecution will consider the following factors:

  • The property belongs to someone other than the accused
  • The property is taken and carried away;
  • The property is taken without the consent of the owner of the property
  • The property is taken with the intention of permanently depriving the owner of it
  • The property is taken without a claim of right made in good faith
  • The property is taken dishonestly

DURESS

The defence of duress applies when a person’s choice is constrained by threats to do an act that would otherwise to be a crime. The element of constrained choice, where the defendant faces a moral dilemma, forms the basis of that defence.

In other words, if through no fault of your own, you have been placed in the difficult situation of having to choose between abiding by the law and becoming a victim of violence or breaking the law in order to protect yourself or someone else from the threat of a serious assault then you should consider duress as a defence.

It would be impossible for a civilized system of criminal law to hold a person fully responsible where the defendant was effectively forced by threats to commit a criminal act.

When the defence of duress arises, the defendant will escape criminal liability on the basis that he/she was coerced or compelled into committed a criminal act by threats from another.

Please not that duress is not a defence to all charges. It cannot be raised as a defence for murder, attempted murder and some forms of treason. The reason being is based on the view that the law must uphold the sanctity of life.

How is duress pleaded?

For duress to qualify as a defence, four requirements must be met:

  • The threat must be of serious bodily harm or death
  • The threatened harm must be greater than the harm caused by the crime
  • The threat must be immediate and inescapable
  • The defendant must have become involved in the situation through no fault of his/her own.

Once the defendant has shared all the evidence that raises the defence of duress, the prosecution (the Crown) must prove that the accused acted voluntarily and eliminate any reasonable possibility that he/she acted under duress.

The basis of the defence is that the duress overwhelmed the defendant’s will and would also have overwhelmed the will of a person with reasonable courage, thus rendering the entire behaviour involuntary.

For more information, please refer to the NSW Judicial Commission’s ‘Duress’ section.

NECESSITY

The necessity defence is a complete defence which protects an accused who was compelled to break the law in order to avoid an even worse consequence.

The judicial system recognizes that there are circumstances when the law has to be broken in order to avoid even more terrible consequences. For policy reasons, the application of this defence is extremely narrow and it is rarely ever argued successfully.

The defence of necessity is similar but distinct from the defence of duress, by which the accused is induced to reach the law under threats of violence. It is a complete defence.

How is necessity pleaded?

The principles governing the defence of necessity are as follows:

  • Whether the accused honestly believed on reasonable grounds that his/her course of action was necessary in order to avoid the peril he was threatened with
  • The seriousness of the harm which was being avoided
  • The imminence of that harm
  • The proportionality between the conduct of the accused and the harm which he was trying to avoid
  • Whether there were any other reasonable alternatives to the course of action taken by the defendant.

For more information, please refer to the NSW Judicial Commission’s ‘Necessity’ section.

INTOXICATION

In some circumstances, the fact that the defendant was intoxicated during the commission of an offence might play a role in determining whether he/she is guilty. A defendant can only claim intoxication as a defence if the court is convinced that because of being intoxicated, the defendant lacked the required intention to carry out the offence.

Intoxication can be voluntary or involuntary and can be induced by both drugs and alcohol.

Intoxication is considered as a partial defence only.

Where a person forms the intention to commit a crime and then drinks in order to enable them to carry out the crime they cannot claim that intoxication prevented them from forming the mental element of the crime (intention).

How is the defence of intoxication pleaded?

Intoxication can only be used as a defence for crimes of specific intent, that is crimes which require the defendant to intend some unlawful consequence specifically identified in the offence. E.g. murder, wounding or grievous bodily harm with intent, robbery, burglary with intent to steal, criminal damage etc.

Intoxication cannot be used a defence for crimes of basic intent, that is crimes which include some sort of ‘recklessness’ in them. E.g. manslaughter, assault occasioning actual bodily harm etc.

Voluntary intoxication

Where the defendant has voluntarily put themselves in the position of being intoxicated to the extent that they are not capable of forming the mental element of the crime, the law is less forgiving.

Involuntary intoxication

Courts have taken a far more lenient view of defendants who become intoxicated through no fault of their own.

Limitation to a claim of involuntary intoxication:

  • A defendant cannot claim they are involuntarily intoxicated because they were misinformed or wrong about the alcohol content of what they were drinking.
  • The defendant must have been exceptionally intoxicated in order to argue he had no intention to commit a crime.

It is not defence if one loses his inhibitions due to involuntary intoxication and goes on to commit a crime.

HONEST & REASONABLE MISTAKE

The defence of honest and reasonable mistake applies when a person was honestly mistaken as to certain facts existing but has a reasonable belief about those facts, and had those facts existed, the conduct would not have constituted an offence.

The defence of honest and reasonable mistake of fact applies only to strict liability offences. Strict liability relates to offences where the prosecution does not have to prove any intention on behalf of the defendant.

In order to rely on honest and reasonable mistake, the action had to have been innocent if the state of affairs were indeed as the defendant thought they were.

In summary, the defence has 3 elements to it:

  • The mistake must be an honest one
  • The belief forming the basis of that mistake must have been a reasonable belief to have held in the circumstances
  • The mistake must be one relation to fact and not to law

How to plead the defence of honest and reasonable mistake?

The general test: Did the defendant have an honest and reasonable mistaken belief in a certain state of things which, if that state of things existed, the defendant’s actions would have been innocent?

Once the defendant has shared all the evidence that raises the defence of honest and reasonable mistake, the prosecution (the Crown) will attempt to prove that no such belief was held and/or that it was held unreasonably.

Since this defence only applies to strict liability offences, there is no need for the prosecution to prove that the defendant intended the result to occur.

COMPLETE DEFENCES TO MURDER

What amounts to murder?

  • The accused does an act (or omits to do an act) that caused the death of the deceased
  • Mental element is established where the act or the omission was done by the accused with:
    • Reckless indifference to human life or
    • Intention to kill or cause grievous bodily harm
    • Maximum penalty: imprisonment for life.

A- SELF DEFENCE

According to section 418 of the Crimes Act, in NSW, a person is not held to be criminally responsible for an act resulting in a person’s death if the act was committed in self-defence.

In order to successfully rely on self-defence as a complete defence to murder, two key tests must be satisfied.

Part 1: Subjective test

The person committing the act must believe the conduct to be necessary to:

  • Defend him/herself or another person; or
  • Prevent or terminate the unlawful deprivation of liberty (of themselves or of another person)

Part 2: Objective test

The conduct must be reasonable in the circumstances as the person perceives them.

During the proceedings, the Crown bears the responsibility of establishing that the defendant did not act in self-defence by proving beyond reasonable doubt that either the defendant did not at the time of the act believe that it was necessary to do what they did do to defend him/herself or the act of the defendant was not a reasonable response to the circumstances as they perceived them.

It is important to note that if the Court considers that the defendant used excessive self-defence, the defendant will only be able to use self-defence as a partial defence and not as a complete defence to murder.

B- NECESSITY

The necessity defence is a complete defence which protects an accused who was compelled to break the law in order to avoid an even worse consequence.

The judicial system recognizes that there are circumstances when the law has to be broken in order to avoid even more terrible consequences. For policy reasons, the application of this defence is extremely narrow and it is rarely ever argued successfully.

Principles that the Court look act:

  • The conduct of the defendant is justifiable in so far as it caused less harm than that which it thereby avoided
  • The conduct of the defendant is excusable due to the grave predicament confronting him or her
  • Impossibility of compliance with the law through no fault of the accused.

C- AUTOMATISM

Automatism is the state of acting without being aware/ without control over one’s muscles. In other words, it is the denial that the act was performed voluntarily.

There must be a total rather a partial absence of control and direction by the will of the accused.
Automatism does not apply in cases of uncontrollable impulse.

What is automatism? What is insanity?

A person with sound mind who enters a dissociative state following some kind of trauma or an external psychological blow will be considered as in a state of automatism, and thus acting involuntarily.

However, if the state was brought about because of a disease of the mind or because the person had an unsound mind, then the act is still considered voluntarily, but will be governed by the rules of the insanity defence.

How is automatism pleaded?

  • There is a presumption against automatism, therefore the defendant must put forward evidence showing that the action was performed in a state of automatism
  • The prosecution must then disprove automatism and prove voluntariness on behalf of the defendant
  • If automatism is not disproved by the prosecution then the defendant will be acquitted.
    For more information, please refer to the NSW Parliament’s ‘Defences and Partial Defences to Homicide’ publication.

PARTIAL DEFENCES TO MURDER

IN NSW, murder can be reduced to manslaughter if the existence of a partial defence is established.

Partial defences are different to complete defences as they bear all the ingredients of murder but, if successfully argued, reduced the offence to an act of ‘voluntary manslaughter’, not murder.

What amounts to manslaughter?

  • The accused does an act (omits to do an act) that caused the death of the deceased
  • Mental element is established where the offender had, at the time of the killing, a state of mind that would support a conviction for murder but the culpability of the offender’s conduct is reduced by reason of excessive self-defence, provocation, or substantial impairment by abnormality of the mind.
  • These circumstances (excessive self-defence, provocation or substantial impairment by abnormality of the mind) are partial defences to a charge of murder which, if established, mitigate the liability of the accused to conviction for manslaughter as opposed to murder.
  • Maximum penalty: 25 years imprisonment.

A- EXCESSIVE SELF DEFENCE

Excessive self-defence can apply in circumstances in which an accused has killed to defend him/herself or another person, but either the occasion did not require the use of force or more force was used than was reasonably necessary.

When does the defence of excessive self defence apply?

According to section 421 of the Crimes Act 1900 , the partial defence of excessive self-defence applies when:

  • A person uses force that involves the infliction of death; and
  • The conduct is not a reasonable response in the circumstances as he/she perceives them,
  • But the person believes the conduct is necessary:
    • To defend him/herself or another person; or
    • To prevent or terminate the unlawful deprivation of his/her liberty or the liberty of another person.

How is excessive self- defence pleaded?

Once the defendant has shared all the evidence that raises the defence of excessive self-defence, the prosecution must prove beyond reasonable doubt that the defendant did not believe they were acting in self-defence.

B- SUBSTANTIAL IMPAIRMENT BY ABNORMALITY OF THE MIND

Substantial impairment is a partial defence used by people suffering from a mental condition short of qualifying as a ‘disease of the mind’ under the insanity defence.

The defence is provided of in section 23A of the Crimes Act 1900 (NSW)

When imposing a sentence for a person who has successfully pleaded substantial impairment, the Court has to strike a balance between setting the appropriate punishment as well as the protection of the community.

What constitutes an abnormality of the mind?

An abnormality of the mind is a mental condition which affect the defendant’s

  • Understanding of events
  • Ability to judge whether his/her actions were right or wrong
  • Ability to control himself

How is the defence of substantial impairment pleaded?

The following must be proved by the defence on the balance of probabilities:

  • At the time of the act/omission the defendant was suffering from an abnormality of the mind
  • This abnormality is a result of an underlying condition (pre-existing condition)
  • The impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

C- PROVOCATION

The defence of provocation applies if there is a provocative conduct by the deceased which causes the defendant to lose self-control and form an intention to kill or to cause grievous bodily harm.

It does not matter whether the conduct of the deceased occurred immediately before the act or omission causing death on or at any previous time, however evidence of a ‘cooling off’ period between the provocative conduct and the killing will be a factor the Court can consider in determining whether there really was a loss of self-control or whether the killing was planned.

The defence of provocation is governed by section 23 of the Crimes Act 1900 (NSW).
What constitutes provocation?

Provocation is established where:

  • An act, or omission, is the result of a loss of self-control by the defendant that was induced by any conduct of the deceased toward or affecting the defendant; and
  • The conduct of the deceased was such that it could have induced an ordinary person to have so far lost self-control as to have formed intent to kill or inflict grievous bodily harm.

Who is the ‘ordinary person’?

The ordinary person tests has three components that the Court will consider:

  • The ordinary person’s perception of the gravity of the provocation: Here the ordinary person is regarded as having any relevant personal characteristics of the defendant.
  • The ordinary person’s power to exercise self-control in response to that provocation: Here the ordinary person is a person of the same age and maturity of the defendant.
  • The form of the ordinary person’s response after losing self-control in comparison to the defendant’s response

For more information about the partial defences to murder, please refer to the NSW

Parliament’s ‘Defences and Partial Defences to Homicide’ publication and to the NSW Judicial Commission’s ‘Partial Defences to Murder in NSW 1990-2004’ publication.

Call the experienced team at GMH Legal to assist you in your matter. A free consultation with GMH Legal is an opportunity to gain deep insights into your legal situation and all of your options.

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