_

Criminal LawDEFENCES

If you are charged with an offence and you believe that you had a sufficient reason to justify your actions, you may have an available legal defence.

If you have been charged with larceny, you might have a belief that you had a legal claim of right to the property that you have allegedly stolen. If you have been charged with assault, you may feel like you were only protecting yourself, other persons or your property which may raise self-defence.

In these situations, it is imperative to raise your defence in court to prove that you had a justification for your actions or inactions. A defence can assistance in lowering your charges or dismissing your case completely. To see if you have a valid defence available to you, it is important to speak to a trustworthy criminal defence lawyer.

Here at S.A.S lawyers we can thoroughly examine the facts of your case and determine whether you can raise a strong defence for your situation. Our team will guide you through the requirements needed to provide a successful defence and advocate for you in court. It is our goal at S.A.S Lawyers to ensure you have the best possible case presented to the court and a good chance to be found not guilty or to have your culpability reduced.

Here are just some of the possible defences that you can raise.


AUTOMATISM

 

Almost all offences require proof by the prosecution that your act or omission was voluntary. To claim automatism, you must have completely lost voluntary control. This means that you acted involuntary or unintentionally because of other factors that caused you to act a certain way. This can be explained as a “transient malfunction” of an otherwise sound mind (R v Falconer (1990) 171 CLR 30). For example, where you have assaulted someone whilst sleepwalking or during an epileptic episode.

Automatism is a full defence where if it is accepted in court you will be found not guilty of the offence. To raise this defence, you have to prove to the court on the balance of probabilities that there was some external factor that caused your actions.

Your actions were involuntary

There is a general presumption that a person has the mental capacity to act in a way that could incur criminal responsibility and therefore the acts committed were voluntary. You must show that your actions were affected by an external factor that caused you to involuntarily act a certain way that you did not intend to act in. For example, where you experienced unwilled or uncontrollable reflexes or you were triggered by an external influence that caused a dissociative state, where you blacked out and have no recollection of what you did.

What is an external factor?

Automatism is a legal condition rather than a medical term. A range of conditions may give rise to a state of automatism which may prove involuntariness. These conditions include:

  • Concussion after below to the head
  • Sleepwalking
  • Hypoglycaemia
  • Disassociation due to external stress/ psychological blow or post-traumatic stress disorder
  • A sudden illness, for example a stroke or heart attack
  • Suffering an adverse reaction to prescription medication
  • Or other factors which may be classed as an “external factor”

It is important to note that if your condition was self-induced an automatism defence will not be available. For example, a person diagnosed with diabetes that suffers hyperglycaemia due to their own failure to take insulin for several days (Hennessy [1989] 2 All ER 9). This would be determined as an internal factor and not automatism.

Actions caused by a mental illness

To raise automatism, you must avoid characterising the factor that caused involuntariness was attributable to an underlying mental impairment. This will be interpreted as a mental illness and can lead to a special verdict and cause some time spent in detention at a psychiatric hospital.


CLAIM OF RIGHT

 

A claim of right defence is available for property offences that contain the element of larceny (stealing). This includes larceny itself, fraud, robbery, break and enter and other property offences.

To propose a claim of right, you genuinely believe that you had a legal right to the property that you have stolen (R v Fuge (2001) 123 A Crim R). This claim must be proven to be held honestly and must be a belief of a legal entitlement not simply a moral entitlement.

To raise this claim, you bear the evidentiary burden to prove that you honestly believed you had a legal claim of right. Where a claim of right is sufficiently raised on the evidence, the Prosecution must then negative this claim beyond a reasonable doubt.

A claim of right can extend to cases where the equivalent value of the property was taken. For example, where you have stolen the monetary value of the property you believe you are legally entitled to. It is important to note that a claim of right does not extend to a legal right to employ the conduct in question used to recover the property.


DURESS

 

If you were coerced into committed an offence due to serious threats or intimidation, the defence of duress may be available to you. This is where you believed that if you did not participate in the offence you were at risk of serious injury or death because of a threat directed at you.

There are several steps involved to prove the defence of duress:

    1. An actual threat was made against you

You may have to provide evidence of the threat that was made against you. For example, text messages or phone calls.

    1. The nature of the threats must be a threat of really serious injury or death

You genuinely believed threats of death or really serious injury to yourself or somebody else such as a family member.

    1. The threats would have forced a reasonable person to act as the accused did

The threats towards you were of such gravity that if an ordinary person of your gender and maturity was in the same position, they could have acted in the same way in the circumstances of your case.

    1. The threat was acting on your mind at the time of the offence

The threat was still pressuring you at the time of the offence. If you were no longer worried about the threat or some other factor influenced your actions at the time of the offence this defence may not be successful.

    1. The threat must be continuing

For the threat to be effective it must be an ongoing threat. A threat can be rendered not continuing if you had a reasonable opportunity to render the threat ineffective by other means. For example, reporting the threat to the police.

The Prosecution will have to negative this defence beyond a reasonable doubt. A person that acts under duress will not be held to be criminally responsible. Duress is a full defence where if it is accepted in court, you will be found not guilty of the offence.


HONEST AND REASONABLE MISTAKE OF FACT

 

An honest and reasonable mistake of fact occurs where you have committed an offence under an honest but mistaken belief that your actions were lawful. This defence can only be raised for Strict Liability offences. These are offences that do not require the Prosecution to prove your intention to commit an offence to be found guilty of the offence. For example, drink driving.

This is a full defence where if it is accepted in court you will be found not guilty of the offence. To raise this defence, you have to prove to the court on the balance of probabilities the following:

    1. Your mistake was honest

Your belief was honestly and genuinely held. For example, if you were charged with speeding, you can present the faulty speedometer in your car to show that it displayed your speed as under the required limit.

    1. Your belief was reasonable in the circumstances of your case

Whether an ordinary person of your gender and maturity placed in the same circumstances would have held that belief.

    1. The mistake must be a mistake of fact not a mistake of law

A mistake of the law is not a defence. If you commit an offence believing that it was not a criminal offence, this would be deemed a mistake of law and therefore not a defence. The belief must be about the facts relating to the offence. For example, if you were charged with drug possession, you may argue that you honestly believed the drug in your possession was legal. This is different to a belief that possession of an illegal drug was not an offence, which is not a defence.


INTOXICATION

 

In most circumstances intoxication is a partial defence where you have been charged with an offence of specific intent. Intoxication includes intoxication from any alcohol or drug either illict or prescription.

A partial defence means that if the defence is successful you will be found not guilty of the specific intent offence but you may be convicted of an offence that does not require specific intention and you will incur a lesser sentence.

An offence of specific intent refers to offences that require the Prosecution to prove that you have the specific intent to bring about a specific result. For example, if an individual has been charged with murder, the Prosecution must prove that the accused intended to kill the deceased. Common examples of offences of specific intent include: murder, acts done to the person with intent to murder, acts done to property with intent to murder, wounding or grievous bodily harm with intent, discharging firearm with intent, breaking into any house with intent to commit serious indictable offence, forgery—making false document, using false document, possession of false document and so on. To see a table that lists offences of specific intent, look at Section 428B(2) of the Crimes Act 1900 (NSW).

However, evidence of intoxication (by reason of self-induced intoxication or otherwise), cannot be taken into account as per section 428C of the Crimes Act 1900 (NSW):

  • if the person had resolved before becoming intoxicated to do the relevant conduct or
  • became intoxicated in order to strength his or her resolve to do the relevant conduct

To raise this defence, you have to prove to the court the following:

    1. You were intoxicated at the time of the offence
    2. Your intoxication affected your ability to form the specific intention for the offence

Not Self-Induced Intoxication

Intoxication might be a full defence where the intoxication was not voluntary. As per Section 428G(2) of the Crimes Act 1900 (NSW), a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. Not self-induced intoxication includes:

  • Being drugged or drink spiked
  • Intoxication resulting from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force
  • Intoxication resulting from an adverse reaction to taking the prescribed dosage of medication

MENTAL HEALTH AND COGINITVE IMPAIRMENT

 

New laws came into effect on 27 March 2021 to divert individuals with mental health and cognitive impairments away from the criminal justice system. These laws are contained in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The mental illness defence is now referred to as a defence of mental health impairment or cognitive impairment and is found under section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

This is a complete defence which means that if at the time of the offence you were effected by a mental health impairment or cognitive impairment or both, you will not be held criminally responsible for the offence.

To raise this defence, you have to prove to the court on the balance of probabilities that:

    1. You did not know the nature and quality of the act or
    2. You did not know the act was wrong

If this defence is successfully raised and a special verdict of act proven but not criminally responsible is determine, the court may make one or more of the following orders:

  • an order that the defendant be remanded in custody until a further order is made under this section,
  • an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law,
  • an order for the unconditional or conditional release of the defendant from custody,
  • other orders that the court thinks appropriate.

If ordered by the court to be detained at a mental health facility as a forensic patient, an individual’s detention will be reviewed by the Mental Health Tribunal every 6 months. The Mental Health Tribunal can order a person’s release if satisfied that the individual is not a serious danger to anyone in the community.

What is a mental health impairment?

Section 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) defines mental health impairment.

A person has a mental health impairment if:

  • the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
  • the disturbance would be regarded as significant for clinical diagnostic purposes, and
  • the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

A mental health impairment may arise from any of the following disorders but may also arise for other reasons:

  • an anxiety disorder,
  • an affective disorder, including clinical depression and bipolar disorder,
  • a psychotic disorder,
  • a substance induced mental disorder that is not temporary.

A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by:

  • the temporary effect of ingesting a substance, or
  • a substance use disorder.

What is a cognitive impairment?

Section 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) defines cognitive impairment.

A person has a cognitive impairment if:

  • the person has an ongoing impairment in adaptive functioning, and
  • the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
  • the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

A cognitive impairment may arise from any of the following conditions but may also arise for other reasons:

  • intellectual disability,
  • borderline intellectual functioning,
  • dementia,
  • an acquired brain injury,
  • drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
  • autism spectrum disorder.

NECESSITY

 

Necessity refers to circumstances of imminent danger, including either by human or natural forces, that is so overbearing that it induces you to commit the offence as you are fearful of the consequences if you do not commit the offence. The defence of necessity is similar to that of duress but this defence does not need to involve a particular threat.

This is a full defence where if it is accepted in court you will be found not guilty of the offence. If you raise this defence you bear the evidentiary burden to prove the defence. The Prosecution must then negative this defence beyond a reasonable doubt. To raise this defence, you have to prove to the court on the balance of probabilities the following:

    1. You committed the offence only to avoid serious consequences upon you or others

The situation must be serious. This usually refers to situations where you were trying to avoid death or really serious injury to yourself or somebody else such as a family member.

    1. You honestly believed on reasonable grounds that you were placed in a situation of imminent peril

You genuinely and honestly believed that you were in circumstances of imminent danger or threat which required you to take urgent action. You believed you had no alternative to avoid the threat.

    1. The act(s) that were committed in order to avoid imminent peril were proportionate to peril to be avoided

You have not gone beyond what was reasonably necessary in the circumstances.


PROVOCATION

 

Provocation, now known as “Extreme Provocation”, is a partial defence that serves to reduce the charge of murder to manslaughter as per section 23(1) Crimes Act 1900 (NSW).

If you raise this defence you bear the evidentiary burden to prove the defence. The Prosecution must then negative this defence beyond a reasonable doubt. To raise this defence, you have to prove to the court on the balance of probabilities the following:

    1. The act causing death was done in response to extreme provocation
    2. The act was done in response to conduct towards the accused
    3. The conduct was a serious indictable offence
    4. The conduct caused the accused to lose self-control

The conduct towards you that caused a loss of self-control can be any act including words or physical actions by the deceased. It is not necessary for these acts to occur directly prior to the offence. The provocation may occur over an extended period of time. For example, if you have suffered domestic abuse by the deceased for a long time.

It is important to prove that it is the conduct of the deceased alone that caused you to lose control. You cannot raise this defence where you have committed the offence due to revenge or hatred.

  1. The conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

Whether the conduct of the deceased would have caused an ordinary person of your gender and maturity to have lost self-control in regard to the circumstances of your case.


SELF-DEFENCE

 

Self-defence refers to circumstances where you committed an offence as a result of acting to protect yourself, another person or your property.

Self-defence is a complete defence, meaning that if successfully proven, the defendant is entitled to a full acquittal and a non-guilty verdict as per section 418(1) of the Crimes Act 1900 (NSW). If you raise this defence you bear the evidentiary burden to prove the defence. The Prosecution must then negative this defence beyond a reasonable doubt.

To raise this defence, you have to prove to the court on the balance of probabilities the following:

    1. The conduct was necessary where you acting to protect yourself, another person or your property

You believed the conduct was necessary to defend yourself or another person. For example, a person is about to physically assault another person and you push them away to protect the person from the attacker.

You believed your conduct was necessary to protect the unlawful taking, damage or interference with your property or to prevent trespass into any land or premises.

    1. The conduct was reasonable in the circumstances as you perceived them to be (Section 418(2) of the Crimes Act 1900 (NSW))

The court will examine the circumstances from your perspective rather than from a general perspective, to determine whether you believed what you were doing was reasonable. In the determining whether the response was reasonable the court will consider:

    • The imminence of the threat
    • The proportionality of the response to the threat

SUBSTANTIAL IMPAIRMENT

 

Section 23A of the Crimes Act 1900 (NSW) outlines the partial defence of substantial impairment. A person who would otherwise be guilty of murder will not be convicted of murder if at the time of the offence the person was substantially impaired by a mental health impairment or a cognitive impairment.

Substantial impairment is a partial defence that serves to reduce the charge of murder to manslaughter as per section 23(1) Crimes Act 1900 (NSW).

If you raise this defence you bear the evidentiary burden to prove the defence. The Prosecution must then negative this defence beyond a reasonable doubt. To raise this defence, you have to prove to the court on the balance of probabilities the following:

    1. At the time of the acts or omissions causing the death concerned, your capacity to understand events, or to judge whether your actions were right or wrong, or to control yourself, was substantially impaired by a mental health impairment or a cognitive impairment

It is important to prove that the impairment must be operative at the time of the offence.

    1. The impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

What is a mental health impairment?

Section 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) defines mental health impairment.

A person has a mental health impairment if:

  • the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
  • the disturbance would be regarded as significant for clinical diagnostic purposes, and
  • the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

A mental health impairment may arise from any of the following disorders but may also arise for other reasons:

  • an anxiety disorder,
  • an affective disorder, including clinical depression and bipolar disorder,
  • a psychotic disorder,
  • a substance induced mental disorder that is not temporary.

A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by:

  • the temporary effect of ingesting a substance, or
  • a substance use disorder.

What is a cognitive impairment?

Section 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) defines cognitive impairment.

A person has a cognitive impairment if:

  • the person has an ongoing impairment in adaptive functioning, and
  • the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
  • the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

A cognitive impairment may arise from any of the following conditions but may also arise for other reasons:

  • intellectual disability,
  • borderline intellectual functioning,
  • dementia,
  • an acquired brain injury,
  • drug or alcohol related brain damage, including fetal alcohol spectrum disorder,
  • autism spectrum disorder.
https://saslawyers.com.au/wp-content/uploads/2021/10/SAS-Lawyers_New-Logo_v2.png

PRACTICE AREAS

DISCLAIMER

10.09 / 2-14 Kings Cross Road, Potts Point NSW 2011

Follow us:

Liability limited by a scheme approved under the Professional Standards Legislation.
Copyright © S.A.S Lawyers 2021 – all rights reserved

https://saslawyers.com.au/wp-content/uploads/2021/08/lsnsw-logo-white.png