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Exam Prep - Criminal Law LAW1121...

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Defences Provocation s 268 Defence of Provocation s 269 Does not apply to domestic relationships s 304 (3)(a). Provocation is a complete offence to the following charges: 

Common Assault s 335

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Assault occasioning bodily harm s 339 (1) Any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime. (3) If the offender does bodily harm and is or pretends to be armed with any dangerous or offensive weapon or instrument or is in company of 1 or more other person or persons.

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Unlawful wounding s 323

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Manslaughter s 303 (1) A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter.

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Grievous bodily harm s 320

Provocation provides a partial defence to murder s 304. Stingel v R (1990) 

It was held that “insult” is not to be restricted by reference to common law doctrine; it can denote an insulting word or gesture neither accompanied by nor in the context of physical violence or the conveying of information.

Buttigieg [1993] 

S 304(2)

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Words lone do not constitute provocation except in circumstances of the most extreme and exceptional.

Masciantonio v R

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Things that the courts take into consideration: 1. Age; 2. Sex; 3. Race; 4. Ethnicity; 5. Physical features; 6. Personal attributes; 7. Personal relationships; and 8. Previous history of the parties.

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The wrongful act or insult must have been capable of provoking an ordinary person not merely to some retaliation but “to the degree and method and continuance of violence which produces the death”.

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The relevant test is whether the provocation, measured in gravity by reference to the personal circumstances of the accused, could have cause an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention.

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The associated question whether, in the sequence of events, an accused person, having lost self-control, had regained it so that the infliction of injury was in fact no longer provoked, is not a question to be answered by reference to the ordinary person, but by reference to the conduct of the accused himself and to common experience of human affairs.

R v Secretary (1996) 

Battered women syndrome

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The loss of control can develop over a lengthy period and without the necessity for a specific triggering event.

The accused, who had suffered many years of abuse from her de facto husband, shot him while he was sleeping. Before going to sleep he had assaulted the accused and said words that might have amounted to a threat to kill her. Held:

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(1)

The Criminal Code (NT), ss 28(f) and 187(b), comprehend people taking

action to defend themselves from a threatened assault, availing themselves of the excuse of “self-defence” even if their action is in the nature of a pre-emptive strike. 

(2)

Section 28(f) imports a temporal connection between the assault and the force

used to defend the assault. In the present case, it was open to the jury to find that the deceased's threat to the accused was an assault; that the deceased threatened the application of force to the accused without her consent and that he had, at the time of making the threat, the apparent present ability to carry out the threat. 

(3)

A serious threat of future injury to the accused may be able to be characterised

as an assault for the purposes of self-defence even though the threat was of future conduct, even though the threat was constituted by mere words, and the person making the threat had, since making it, fallen asleep. Pangilianan (2001) 

The provocation must originate from the accused.

Killing for the preservation in an abusive domestic relationship s 304B The defence acts to reduce murder to manslaughter if: 

The deceased has committed domestic violence during the relationship;

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The accused believed their actions were necessary for the preservation from death or grievous bodily harm; and

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This belief is reasonable.

Self-defence to unprovoked assault s 271 S 271 makes it legal for a person to use such force as is reasonably necessary to defend them against an unprovoked assault. The force used must not be intended to or likely to cause death or grievous bodily harm and must be proportionate. (1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as likely, to cause death or grievous bodily harm. (2) Marwley and the Queen (1977)

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Held: Where an accused person uses force which causes death or grievous bodily harm in defending him or herself against an unprovoked assault, for the use of the force to be lawful the jury must find that the accused actually believed that what he or she did was necessary for survival or the avoidance of grievous bodily harm and that such belief was based upon reasonable grounds. The jury does not have to find whether the force used was in fact necessary or reasonable. Consideration of the Criminal Code (Qld), ss 24 and 271.

Current law in Australia

If someone comes at you with a knife (unprovoked assault) then there is a real threat of GBH and you can use wat force you feel is necessary to prevent your death or GBH.

Self-defence against provoker assault s 272 (1) When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm. If the assailant (attacker) feels like his life is threatened by you, they must retreat. (person who provoked must try and retreat). It is a requirement that you must retreat to any extent possible before the other party can use lethal force. Beckford and the Queen (1988) The trial judge directed the jury: "A man who is attacked in circumstances where he reasonably believes his life to be in danger or that is in danger of serious bodily injury may use such force as on reasonable grounds he thinks necessary in order to resist the attack and if in using such force he kills his assailant he is not guilty of any crime even if the killing is intentional." The jury convicted him of murder (which carries the death penalty in Jamaica). He appealed contending the judge was wrong to direct that the mistake needed to be reasonably held.

Held: The appeal was allowed and the conviction was quashed. The test to be applied for selfdefence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.

Honest Claim of Right s 22 Ignorance of the law is not a defence. For property offences, however, it is a defence to show that the person broke the law by acting in the exercise of an honest claim of right without any intention to defraud.

Mistake of Fact s 24 (1) A person who does or omits to do an act under an honest and reasonable but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent that if the real state of things had been such as the person believed to exist. Example: a person charged with rape may raise as their defence the fact the had an honest but mistake belief that the victim consented to sexual intercourse. S 24 doesn’t relate to a mistake of law. Sancoff and Holford (1973) 

Held: A belief, based on a knowledge of their contents, that books were not obscene was a mistake of law and the Criminal Code (Qld), s 24, did not provide a defence.

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Made a mistake about law not state of things.

Loveday and Ayre (1955) ‘untreated timber’. The onus is on the prosecution to prove beyond a reasonable doubt that there is no such mistake. Evidential onus rests on the defence. 

Held: There was sufficient in the evidence before the magistrate for him to entertain a reasonable doubt, depending on what evidence he accepted, whether the defendants had an honest and reasonable though mistaken belief that the treatment applied by

them had been approved by the board, and, accordingly the conviction should be quashed. Larsen v GJ Coles & Coy (1984) 

23 of the Criminal Code to the offence of the sale of meat labelled with a false date of packaging, the act of sale of the item was a willed act and so was the act of putting a particular label on it. It cannot be said that either act occurred independently of the will of the appellant. Further the sale of the falsely labelled meat could not be said to have occurred by accident. The fact that the person who labelled the meat inadvertently placed an incorrect label on it does not mean that the sale gave rise to an unintended and unforeseeable event.

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Held: that the had an honest and reasonable belief in nothing.

Queen and Barbler 4 components in an attempt: 1. Must have an intention to commit an offence; 2. Intention must be put into execution by appropriate means; 3. Must demonstrate the intention by some overtly act; 4. You must not have completed the offence; The prosecution must prove the first three beyond a reasonable doubt, number 4 is evidentiary. Hecarte and the Queen (1985) Intent is usually established by proof of desire or a wish to cause a result. 6 factors: 1. Intent; 2. Proximity (the conduct must be sufficiently proximate to the commission of the offence). 3. There must be an overt act observed by someone else. 4. Completion 5. Impossibility

6. Even if there is a withdrawal of an attempt the accused can still be charged. Queen and Williams (1965) Attempted rape Defence held that the proximity to the offence of rape was not sufficient. Queen and Hoare (1981) Evidence of a completed act was too significant. Minetti No such defence as withdrawal unless it effectively counter balances and undoes the effect of previous aiding.

Insanity s 27 (1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission. The defendant must show on the balance of probabilities that they were of unsound mind at the time of the offence. A person is insane and not criminally responsible if they are deprived of one or more of the following capacities: 

Understand what they are doing

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Control their actions

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Know that they ought not to be doing it.

Derived from common laws case ‘McNaughton Rules’. A few basic parts to the McNaughton Rule:   

There is a presumption, that the defendant is sane, and that they are responsible for their criminal acts. At the time of the crime, the defendant must have been suffering from a “disease of the mind.” If the defendant knows the nature of the crime, do they know what they did was wrong. (“United Kingdom House of Lords Decisions,” 1843).

Intoxication s 28 Voluntary intoxication Involuntary intoxication Voluntary intoxication is not a defence, and nor can it be taken into account as a mitigating factor in sentencing. The insanity defence provisions similarly apply to a person whose mind is disordered by involuntary intoxication or stupefaction. (2) When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed. Intoxication is no defence to a charge which does not involve a specific intent unless it amounts to unsoundness of mind within s 27. Any intoxication whether voluntary or involuntary is a defence under s 28 even if there is no unsoundness of mind. Where intent to cause a specific result is an element. If there is an intention mentioned in the provision that you can raise intoxication as a defence. Queen and Crump The burden of disproving intent does not lay on the accused but always the onus is on the crown to prove that the accused did have such intent. Offences with specific intent: Murder Robbery Attempted rape….. Daniels and the Queen (1989) 

Held: A reasonable man is a sober man. A drunken man may have a reasonable though mistaken belief qar (in the capacity of) a drunken man but such is not a defence.

Position still held today

S 24 is not a defence to intoxication The mistake must relate to a state of things, not consequences. Re Bromage (1991) 

The great weight of the medical evidence was that the combined effect of the organophosphates and the alcohol produced a state of mental disease which at the relevant time deprived the respondent of one or more of the capacities described in the Mental Health Services Act 1974 (Qld).

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The mere disordering of the respondent's mind resulting in this case from the ingestion of organo-phosphate material, whether or not considered in conjunction with the voluntary ingestion of alcohol, did not by virtue of the Criminal Code , s 28, (in conjunction with s 27) amount to “unsoundness of mind” within the Mental Health Services Act , s 33(1)(a), in the sense in which that expression is defined in s 28A of the Act.

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The acts and states of mind resulting from intoxication are to be considered in the context of s 28 and not under s 23 or s 29, confirmed by Kaporonovski.

Diminished Responsibility s 304A Diminished responsibility is a partial defence in that it reduces murder to manslaughter if at the time of the act or omission which caused death, the person is in such a state of abnormality of mind as to substantially impair their capacity to understand what they are doing, to control their actions and/or to know they ought not to be doing it. R v Byrne (1960) The appellant murdered a young girl staying in a YWCA hostel. He then mutilated her body. He did so as he was suffering from irresistible impulses which he was unable to control.

Held:

"abnormality of mind" was wide enough to cover the mind's activities in all its aspects, including the ability to exercise will power to control physical acts in accordance with rational judgment. But "abnormality of mind" means a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal. He was thus allowed the defence to reduce the murder conviction to manslaughter.

Act Independent of Will s 23(1) (a) (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for— (a) an act or omission that occurs independently of the exercise of the person’s will. Two sections to 23(1)(a): 1. Acts independent of will due to reflex action or muscular spasm 2. Sane automatisms (person acting is not conscious of what they are doing (eg sleepwalking, acting while concussed). Kaporonovski (1973) 

Definition of the word ‘act’ was given, ‘act’ is the physical action not the consequences of the action. The ‘act’ covers all circumstances over which the accused had control.

R v Falconer (1990) 

Conduct was consistent with non-insane automatism and that psychological stress and conflict had produced in her the state known as “dissociation”.

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Sane automatism

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Appellant blanked out (absence of physical injury)

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Psychological trauma producing a dissociated state.

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Falconer established the category of sane automatism from physical to psychological.

‘Accident’ known now as intentional and unforeseen event s 23(1) (b) (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for— (b) an event that— (i) the person does not intend or foresee as a possible consequence; and (ii) an ordinary person would not reasonably foresee as a possible consequence.

Successful defence = Complete acquittal

S 23 (1A) ‘Eggshell skull cases’ Mamote – Kulang of Tamagot v The Queen (1964) 

Under the 2nd limb, the person is not excused from criminal responsibility for death or GBH that results to a victim because of a defect, weakness or abnormality.

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Principle: ‘You must take your victim as you find him’.

Intervening act An intervening act or a novus actus interveniens is an event which breaks the chain of causation and entails that the original tortfeasor is no longer liable for the plaintiff's damages. It is usually hard to establish that an act is indeed an intervening act. An act will constitute an intervening act if: 

It is a voluntary human act (either the plaintiff's or third party) which is free, deliberate and informed.

o i.e. an act that is not a result of or influenced by the original tortfeasor's negligence. 

Extraordinary coincidental event.

These issues were discussed in a variety of cases, including Chapman v Hearse: 

If the subsequent act is a reasonably foreseeable consequence of the first act (such that would arise in the ordinary course of things), it would not be considered an intervening act.

And Haber v Walker[11]: 

Negligence of the defendant caused severe physical and mental injuries to plaintiff's husband. Later on, the plaintiff's husband killed himself.

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Plaintiff argued that the negligence of the defendant caused the subsequent suicide and thus her harm as a result.

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The court found that in this case, the suicide cannot be considered as a voluntary act since it was a result of the negligence.

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Thus, no intervening act and the defendant is liable.

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"the intervening occurrence, if it is to be sufficient to sever the connexion, must ordinarily be either-

(a) human action that is properly to be regarded as voluntary, or (b) a casually independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence" and Mahony v Kruschich Demolitions: 

This case concerned a plaintiff who was injured by the negligence of the defendant. He then sought medical assistance which was also negligent, and further aggravated his injuries.

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The defendant sought to limit his damages by saying that the negligence of the doctor constituted an intervening act.

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The court held that negligent medical treatment does not constitute an intervening act.

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Further harm through bad medical treatment is a reasonably foreseeable consequence of the original torfeasor's negligence and does not...