Defences operate to justify the actions of the accused and therefore either remove or reduce (partial defence) their criminal culpability. Specific defences if proven, operate to “remove” one of the essential elements of a crime - thus preventing the prosecution from proving their case beyond a reasonable doubt. For example, the defence of self defence in effect “removes” the mens rea element. If it is proven that the intention of the accused was to defend themselves (or a third party) and NOT to commit the crime then clearly they did not have criminal intent. Strict liability offences can only be successfully defended if the accused can prove that the actual act did not occur as mens rea is irrelevant to this category of offence (e.g. speeding).
Crime is an act or omission that harms society and which is punishable by the state. It is just that if an accused has a reason that justifies their behaviour they should not be punished by the state. If a partial defence to murder is established then in the interests of justice they should receive a lesser sentence. Defences are of two broad types:
Complete - which if proven results in a not guilty verdict and acquittal
Partial - which in NSW ONLY APPLY TO THE CRIME OF MURDER, and do not result in acquittal but result in the accused being convicted of the lesser charge of manslaughter
It is important to note that partial defences do not apply to lesser charges such as assault. For example if it found that an assault was provoked, the provocation will be a MITIGATING FACTOR for the Judge/Magistrate to consider when sentencing, but would not entitle the accused to an acquittal. Examples of Complete Defences:
Mental Illness:
onus of proving defence on the defendant on the balance of probability
key case is a 19th century English case of McNaughten (1843) which established the test for proving insanity. The defence must prove that the defendant did not understand “the nature” quality of their act due to their diseased mind. Accordingly the defence must prove that the defendant did not know what he/she was doing and/or that the defendant knew what they were doing but didn’t understand that it was wrong (it could be difficult for a defendant to prove the level of mental illness to satisfy this test and that this led to legislative reform in NSW in 1974 and the creation of the partial defence of diminished responsibility)
if the defence of mental illness is proven - it results in the accused being acquitted (because the law does not hold people who suffer severe mental illness, responsible for their actions) however they are not free to go. Instead they are held in a mental institution. The length of a defendants’ stay in the mental institution is indefinite.
Self Defence:
onus of proving that the accused did not act in self defence (if the defence is raised) is on the prosecution (Crimes Act 1900 NSW Division 3)
the leading case is the decision of the High Court in Zecevic (1987). Defendant must prove that he/she believed (subjective) upon reasonable grounds (objective) that it was necessary in self defence to do what he/she did (either party) (now codified in the Crimes Act 1900 (NSW) Division 3
if proven, results in the accused being acquitted - because the law has been satisfied that the defendant’s actions were justified
Necessity:
onus of proving defence on the defendant
the defendant must prove that the crime was committed only to prevent the commission or act of a more serious crime. The defendant must genuinely believe that their actions were necessary and they must not be out of proportion to the harm that they were trying to avoid.
only operates when other defences do not apply.
Duress:
onus of proving defence on the defendant
the defendant must prove that they committed the crime against their own free will and did so because of a genuine threat or intimidation, for example, their own or someone else’s life was in peril
cannot apply to murder or manslaughter
Consent:
onus of proving defence on the defendant.
a victim cannot consent to murder or the infliction of grievous bodily harm therefore this defence cannot be raised in relation to some offences such as murder
is most commonly raised in sexual assault cases (the term assault implies an absence of consent).
Partial Defences to Murder:
These operate to MITIGATE (although not excuse or justify) the defendant’s behaviour and hence, if proven result in the defendant being convicted by the lesser offence of manslaughter.
Provocation:
onus of proving defence is on the defendant.
must prove that their actions were directly provoked by the victim on an objective test which is that the victim’s actions would have caused any reasonable person to act in a like manner.
Substantial Impairment of Responsibility:
onus of proving defence on the defendant
also known as diminished responsibility
is a statutory defence, the defendant must prove that they were suffering from an “abnormality of the mind” at the time of the offence which “substantially impaired their mental responsibility”.
cannot be relied upon to excuse the accused’s voluntary use of alcohol or mind altering drugs
Defences
Defences operate to justify the actions of the accused and therefore either remove or reduce (partial defence) their criminal culpability.Specific defences if proven, operate to “remove” one of the essential elements of a crime - thus preventing the prosecution from proving their case beyond a reasonable doubt. For example, the defence of self defence in effect “removes” the mens rea element. If it is proven that the intention of the accused was to defend themselves (or a third party) and NOT to commit the crime then clearly they did not have criminal intent.
Strict liability offences can only be successfully defended if the accused can prove that the actual act did not occur as mens rea is irrelevant to this category of offence (e.g. speeding).
Crime is an act or omission that harms society and which is punishable by the state. It is just that if an accused has a reason that justifies their behaviour they should not be punished by the state. If a partial defence to murder is established then in the interests of justice they should receive a lesser sentence.
Defences are of two broad types:
- Complete - which if proven results in a not guilty verdict and acquittal
- Partial - which in NSW ONLY APPLY TO THE CRIME OF MURDER, and do not result in acquittal but result in the accused being convicted of the lesser charge of manslaughter
It is important to note that partial defences do not apply to lesser charges such as assault. For example if it found that an assault was provoked, the provocation will be a MITIGATING FACTOR for the Judge/Magistrate to consider when sentencing, but would not entitle the accused to an acquittal.Examples of Complete Defences:
- Mental Illness:
- onus of proving defence on the defendant on the balance of probability
- key case is a 19th century English case of McNaughten (1843) which established the test for proving insanity. The defence must prove that the defendant did not understand “the nature” quality of their act due to their diseased mind. Accordingly the defence must prove that the defendant did not know what he/she was doing and/or that the defendant knew what they were doing but didn’t understand that it was wrong (it could be difficult for a defendant to prove the level of mental illness to satisfy this test and that this led to legislative reform in NSW in 1974 and the creation of the partial defence of diminished responsibility)
- if the defence of mental illness is proven - it results in the accused being acquitted (because the law does not hold people who suffer severe mental illness, responsible for their actions) however they are not free to go. Instead they are held in a mental institution. The length of a defendants’ stay in the mental institution is indefinite.
- Self Defence:
- onus of proving that the accused did not act in self defence (if the defence is raised) is on the prosecution (Crimes Act 1900 NSW Division 3)
- the leading case is the decision of the High Court in Zecevic (1987). Defendant must prove that he/she believed (subjective) upon reasonable grounds (objective) that it was necessary in self defence to do what he/she did (either party) (now codified in the Crimes Act 1900 (NSW) Division 3
- if proven, results in the accused being acquitted - because the law has been satisfied that the defendant’s actions were justified
- Necessity:
- onus of proving defence on the defendant
- the defendant must prove that the crime was committed only to prevent the commission or act of a more serious crime. The defendant must genuinely believe that their actions were necessary and they must not be out of proportion to the harm that they were trying to avoid.
- only operates when other defences do not apply.
- Duress:
- onus of proving defence on the defendant
- the defendant must prove that they committed the crime against their own free will and did so because of a genuine threat or intimidation, for example, their own or someone else’s life was in peril
- cannot apply to murder or manslaughter
- Consent:
- onus of proving defence on the defendant.
- a victim cannot consent to murder or the infliction of grievous bodily harm therefore this defence cannot be raised in relation to some offences such as murder
- is most commonly raised in sexual assault cases (the term assault implies an absence of consent).
Partial Defences to Murder:These operate to MITIGATE (although not excuse or justify) the defendant’s behaviour and hence, if proven result in the defendant being convicted by the lesser offence of manslaughter.