Criminal Defences- for PQs PDF

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Summary

For problem questions, contains cases and legislations...

Description

Note for defences → Defence = D usually has the evidentiary burden to raise the defence, and P holds the legal burden to prove that claim is not present BRD.

1- Extreme Provocation CRIMES ACT 1900 - SECT 23 Trial for murder--partial defence of extreme provocation

Effect of Defence 23 Trial for murder--partial defence of extreme provocation (1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter.

Test for Defence (2) An act is done in response to extreme provocation if and only if-(a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and (b) the conduct of the deceased was a serious indictable offence, and (c) the conduct of the deceased caused the accused to lose self-control, and (d) 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.

The Defence does not apply if: (3) Conduct of the deceased does not constitute extreme provocation if-(a) the conduct was only a non-violent sexual advance to the accused, or (b) the accused incited the conduct in order to provide an excuse to use violence against the deceased.

Other aspects to note: (4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death. (5) For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of selfinduced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account. (6) For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm. (7) If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation. (8) This section does not exclude or limit any defence to a charge of murder. (9) The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act. (10) In this section-- "act" includes an omission to act.

Elements A-The provoking conduct of the victim - s23(2)(a),(b),(3),(4); B-The accused’s loss of self-control resulting from the provoking conduct – subjective test - s23(2)(c); and C-Whether the provocation could have caused the ordinary person to lose self-control – objective test - s23(2)(d). Procedure in raising defence

A-The provoking conduct of the victim - s23(2)(a),(b),(3),(4);

i) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and a) Conduct must be by Deceased. b) Conduct must be ‘towards or affecting’ the Accused. – COMPARE: Established common law principle: that the conduct must have occurred in the presence (sight/hearing) of the accused. There is no ‘hearsay provocation’: Quartly (1986) 11 NSWLR – But does the Crimes Act require presence? It does not explicitly require the conduct to be within the sight/hearing of the accused. – Davis (1998) NSWCCA (‘step’ daughter told A that deceased had sexual assaulted her). NSWCCA followed Quartly. • Compare the reasoning of Dunford and Simpson JJ. How would you identify the conduct in this case? • But note the High Court in Davis (1998) expressed its doubts that Quartly was correctly decided (though ultimately, the HC did not grant leave to appeal Davis) ‘hearsay’ provocation hearsay provocation- has been dealt with. The first is Fisher 8 Car & P 182; 173 ER 452 decided in 1837. In the last mentioned report the headnote reads: “If a father see a person in the act of committing an unnatural offence with his son, and instantly kill him, it seems that it will be only only manslaughter, and that of the lowest degree; but if he only hear of it, and go search of the person, and meeting him strike him with a stick, and afterwards stab with him with a knife, and kill him, in point of law, it will be murder. Davis v R (1998) 100 A Crim R 573 Facts

Davis lived with a woman and cared for her young child. He was told by the child, and then some other sources, that she and another child were sexually assaulted by the victim. Davis became very angry for the next couple of days and was drinking heavily. Eventually one night he killed the deceased. Davis claimed provocation. Prosecution argued that none of the alleged provoking conduct of the deceased actually occurred within Davis' sight or hearing, but was all told to him by others (thereby being 'hearsay provocation' which is not sufficient).

Discussion

Appeal was made to the High Court on the basis that legislation mentions nothing about conduct taking place in the presence of the accused. The High Court refused to hear the appeal because they argued that the time between when Davis was first 'provoked' to when he actually killed the deceased was too long for an ordinary person to have 'lost his self-control' (ie, an ordinary person does not lose his self-control to the degree of wanting kill someone and remain in that state for a couple of days). However, on the issue of whether conduct has to be performed in the presence of the accused, the High Court disagreed with the NSW Court of Appeal and determined that the line of authority is probably considered now as wrongly decided.

Principle

According to the words of the statute (NB: pre 2014 reforms), the presence of the accused when the provocative conduct is performed has no significance. This case cast doubt on Quartly (1986), which held that the words or conduct must be of the deceased in the presence of the accused.

Quartly v R (1986) 22 A Crim R 252 Discussion

Section 23(2)(a) of the Crimes Act 1900 (NSW) specifies that the provocative conduct must be "towards or affecting" the accused. The NSW Court of Criminal Appeal has held that the provocation need not be directed specifically at the accused, but may instead, for example, involve an act committed against a member of the accused's family.

Principle

The provocative conduct must generally be committed by the victim, in the presence of the accused.14 The provocation must affect the accused somehow, although it is not necessary that it be directed specifically against him or her.15

ii) The deceased’s conduct was a serious indictable offence s23(2)(b) – Act does not otherwise define ‘conduct’: 2nd Reading speech for the 2014 amendment (8 May 2014) – Under the new s23, what kinds of conduct of the deceased might thus enable the accused the defence of extreme provocation? – Stalking or intimidation: Crimes (Domestic and Personal Violence) Act 2007 s13 – Common assault? Reckless GBH? Wounding/GBH with intent to cause GBH? Damaging property? Larceny? – Might the deceased’s words amount to provocative conduct? Yes if those words constitute a serious indictable offence, eg blackmail, threatening to destroy property. – Some acts do not amount to extreme provocation: – a non-violent sexual advance to the accused s23(3)(a) (removes the possibility of provocation as the ‘homosexual panic defence’ (Green v R (1997) 191 CLR) – If the accused incited the violence in order to provide an excuse to use violence against the deceased, the defence is not available: s23(3)(b). – Confessions re infidelity or relationship termination, etc will not, by themselves, amount to extreme provocation – Critics: concern that DV in the form of psychological abuse unlikely to amount to extreme provocation, unless within legal definition of ‘intimidation’ Lindsay v The Queen [2015] HCA 16 Facts

The appellant was convicted of murdering Mr Negre who had made homosexual advances towards him, and was sentenced to life imprisonment. Lindsay’s primary line of defence was that it had not been proved beyond reasonable doubt that it was he, and not his coaccused, who had killed Negre. Although Lindsay had not argued the defence of provocation, the trial judge left it to the jury as an alternative verdict. A majority of the SASC held that the trial judge had erred in his directions to the jury on provocation, but still dismissed the appeal on the basis that provocation could not be made out because, given the attitudes towards homosexuality in contemporary Australia, no ordinary person would lose control and kill someone in the circumstances, and no reasonable jury could fail to find that.

Discussion

The High Court unanimously allowed the appeal, quashed the appellant’s conviction and ordered a new trial. French CJ, Kiefel, Bell and Keane JJ held that focus on contemporary attitudes to homosexuality did not preclude the jury from still considering that the ‘sting’ in the provocation suggestion lay in, for example, the offer of sex for money in the appellant’s own home: at [37] The capacity of the evidence to support a conclusion that the prosecution might fail to negative the objective limb of the partial defence did not turn upon the appellate court’s assessment of attitudes to homosexuality in 21st century Australia. It was open, as the appellant submits, for the jury to consider that the sting of the provocation lay in the suggestion that, despite his earlier firm rejection of the deceased’s advance, the appellant was so lacking in integrity that he would have sex with the deceased in the presence of his family in his own home in return for money. And as the appellant submitted on the hearing of the appeal in this Court, it was open to a reasonable jury to consider that an offer of money for sex made by a Caucasian man to an Aboriginal man in the Aboriginal man’s home and in the presence of his wife and family may have had a pungency that an uninvited invitation to have sex for money made by one man to another in other circumstances might not possess. Consequently, the question of the appellant’s reaction was a factual one to be left to the jury, and the trial judge did not err in leaving provocation open to the jury. Because the prosecution did not contend the directions on provocation were correct and because neither side urged an alternative verdict of manslaughter be entered, the

original verdict was unsound and a new trial ordered. Nettle J issued a separate judgment concurring with the joint judgment’s conclusions. Principle

It may be open to a jury to have a reasonable doubt as to whether or not the prosecution has excluded provocation even though on the facts it would be unreasonable to find affirmatively that provocation existed. It is possible (outside NSW jurisdiction) for homosexual advances to be grounds for provocation. However, in NSW, the conduct must be an indictable offence and not ONLY a non-violent sexual advance (s 23(3(a))). Note: the word only means the conduct might be a non-violent sexual advance as well as something else that amounts to an indictable offence).

s23 Trial for murder—partial defence of extreme provocation (3) Conduct of the deceased does not constitute extreme provocation if: (a) the conduct was only a non-violent sexual advance to the accused, or (Green) (b) the accused incited the conduct in order to provide an excuse to use violence against the deceased. (Edwards) Thus conduct of Deceased ≠ Extreme Provocation if conduct was only a non-violent sexual advance to A 2nd Reading: sexual advance in Green now excluded - BUT, sexual touching (61KC) punishable by 5 years, thus a serious indictable offence – and, if coupled with other conduct, eg sexually explicit insults, might 23(3)(a) apply? Excluded conduct – Section 23 states that some acts do not amount to extreme provocation: – If the provocation relied upon is a non-violent sexual advance to the accused – this is not enough for extreme provocation: s23(3)(a) – Removes the possibility of provocation as the ‘homosexual panic defence’ (Green v R (1997) 191 CLR) – If the accused incited the violence in order to provide an excuse to use violence against the deceased, the defence is not available: s23(3)(b) – Clarifies the tension between Edwards (provocation not available) and Gardner. Green (1997) 191 CLR 334 Facts

22 year old Green was convicted of the murder of a 36 year-old 'best' friend. On the night of the killing Green had had dinner at the deceased’s house and they had consumed a significant amount of alcohol. The deceased offered him a bedroom and when Green was fully unclothed, slipped into the bed and made persistent advances despite Green’s rejections on his version of the facts. A struggle ensued and Green killed the deceased. Green argued that he had a special sensitivity to sexual assault (arising from a history of sexual assault of his sisters by his father). The trial judge directed the jury that this was not relevant to the issue of provocation.

Discussion

Brennan CJ at 345-6 “The provocation was of a very grave kind. It must have been a terrifying experience for the appellant when the deceased persisted. ... Some ordinary men would feel great revulsion at the homosexual advances being persisted with in the circumstances and could be induced to so far lose their self-control as to form the intention to and inflict grievous bodily harm. They would regard it as a serious and gross violation of their body and person. Kirby J at 416 “Any unwanted sexual advance, heterosexual or homosexual, can be offensive. ... But this court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm.”

Kirby J at 415: “No jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the appellant’s reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control which must be attributed to the hypothetical ordinary 22 year-old Australian male in the position of the appellant.” Principle

The significance of the deceased's conduct is to be judged by its significance to the accused, including his personal history and experiences (including a peculiar sensitivity to homosexual advances). The question was not what an ordinary person would have done, but what the ordinary person could have been induced to intend

iii) Conduct of the deceased caused the accused to lose self control s23(2)(c) Rationale for this part of the provocation test – ‘…rendering him (or her) so subject of passion as to make him (or her) for the moment not a master of his (or her) mind” R v McGregor (1962) – Avoid opening provocation to ‘a premeditated plan to kill’ Brad Hazzard AG and Minister for Justice, 2nd Reading speech (8 May 2014) – There need not be one final provocative act. Provocation can develop over time. But a delay in time may be a relevant factor for the jury to determine whether there was a loss of self-control: Chhay (1992). Criterion: s23(2)(c): The deceased’s conduct caused A to lose control s23(4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death. Chhay v R (1992) 72 A Crim R 1 Facts

The defendant suffered years of serious abuse at the hands of the deceased, her husband (from a forced arranged marriage). She eventually killed him. There were two versions of events: (1) The defendant claimed she killed him after being threatened and attacked with a knife. (2) The prosecution claimed she killed him in his sleep. The prosecution unsuccessfully argued that the act must have immediate and sudden in order to indicate a loss of self-control, which means that provocation is only open on the defendant's version of the facts, and thus not open if the jury accepts the prosecution's version.

Discussion

It should still be emphasised that the law of provocation is not there to reduce a sentence to manslaughter just because there was abuse - the law is not meant to encourage people to resort to self-help through violence. People who take a sort of revenge which is not due to a state of complete loss of self-control are still murderers and will not be protected. 'What the law is concerned about it whether the killing was done whilst the accused was in an emotional state which the jury are prepared to accept as a loss of self-control'. In this case, the trial judge erred accepting the prosecution's argument that a sudden and immediate action is necessary, and therefore there is no provocation if the prosecution's version is accepted.

Principle

There is no requirement of 'sudden and immediate' response to provocation: s 23 (3)(b), but passage of time decreases the possibility that the accused acted while still under a 'loss of self control'.

iv) The ordinary person test s23(2)(d) In determining whether D lost self-control the totality of his or her conduct is relevant and all the relevant characteristics of the accused: Stingel v R (1990).

Stingel v R (1990) 171 CLR 312 Facts

Stingel found his former girlfriend, with whom he was still obsessed, engaging in sexual activities in a car with a man (Taylor). When Stingel interrupted them by opening the car door, Taylor said “piss off you cunt, piss off.” Stingel retrieved a butcher’s knife from his car and stabbed Taylor to death. Court considered to what extent should the personal characteristics of the accused, such as his infatuation with his former girlfriend, be taken into account in the ordinary person test.

Discussion

Totality of Conduct: Relying on Moffa - in applying the first limb of objective test, the 'totality of the conduct' is examined (past/background events as well). This is because acts or words when taken separately may not amount to sufficient provocation but when taken in combination or because of their accumulation, may be enough. Context: The objective test is framed in a contemporary concept (ie, take into account values and attitudes) because it affects the ordinary person. 'Ordinary' v 'Reasonable': The test is of an 'ordinary man', not a 'reasonable man' as in torts. Rationale of the Objective Test: Quoting Wilson J in Hill that the rationale of the test as 'to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self control against which accused persons are measured. The governing principles are equality and individual responsibility, so all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard'.

Principle

The application of the ordinary person test involves 2 steps, that assess: 1. The gravity of the provocation to the accused: – Any relevant characteristic of the accused may be attributed to the ordinary person (age, sex, race physical features, history, mental instability). 2. Whether that provocation “could have induced an ordinary person in the position of the accused…” to have lost control so far as to form an intent to kill. – No personal characteristic may be taken into account apart from age/maturity: Stingel (1990)

What is the test now? Turnbull (No 5) [2016] NSWSC; Turnbull (No 25) [2016] NSWSC 831 Johnson J [87] With respect to the fourth element of extreme provocation, the “ordinary person” test contained in s.23(2)(d) of the Act, I expressed certain obiter views in R v Turnbull (No. 5) at [89]-[93]. [88] It is clear that the removal of the words “in the position of the accused”, as part of the 2014 amendments to s.23, operate to narr...