5.1 General Defences to Crime

indictable offence

a serious offence generally heard by a judge in the Supreme or County courts

summary offence

a minor offence generally heard in Magistrates’ Court

defence to a crime

justification or lawful ‘reason’ given by an accused person as to why they are not guilty to a criminal offence

murder

the unlawful and intentional killing of a human being by a person whoacted voluntarily and without lawful justification - most serious homicide offence

mental impariment

a condition of the mind that impacts a person’s ability to know the nature and quality of their conduct, or that the conduct was wrong

secure treatment order

a sanction that requires the offender to be compulsorily detained and recieve treatment at a mental health service

duress

strong mental pressure on someone to over come their independent will and force them to do something

reasonable belief

an honestly held opinion about the way things are, which would seem to another person with similar characterisitics (age/maturity) and in similar circumstances, to be sensible or correct

automatism

a state in which a person has a total loss of control over their bodily movements (i.e. not conscious or unware of actions) and cannot form an intention to commit a crime

mens rea

‘guilty mind’ mental component of a crime (inention)

general defences to a crime

• self defence

• mental impairment

• automatism

• sudden or extraordinary emergency

• duress

• intoxication

• accident

an accused can use self defence if

• believed their actions were necessary to protect or defend themselves

• percieved their actions to be a reasonable response to the circumstance

self defence trial

• when raised, accused must present evidence to suggest there was a reasonable possibility they acted in self defence when committing the alleged crime

• burden of proof falls onto prosecution to prove the accused did not act in self defence beyond reasonable doubt

an accused can raise mental impairment if

if at the time of the offence they were suffering a mental illness that caused them to

• not know what they were doing because they had little to no understanding of the nature and quality of their actions

• not know their conduct was wrong or could not reason, or think about, their conduct like an ordinary person

mental impairment trials

• accused presumed to be not suffering mental impairment until proven otherwise

• burden of proving mental impairment is on the party that raised it

• when proven successfully, accused is deemed ‘not guilty by reason of mental impairment’

an accused can use duress if

at the time of the offence they had a reasonable belief that:

• a threat of harm existed

• the threat would have would have been carried out unless the offence was committed

• committing the offence was the only reasonable way to avoid the threatened harm

• their conduct was a reasonable response to the threat

duress trial

once raised by the accused/ defence (with sufficent evidence)

burden of proof falls onto prosecution to prove beyond reasonable doubt that the accused did not act under duress

an accused can use sudden or extraordinary emergency if

at the time of the offence they had reasonable belief that:

• there was a sudden or extraordinary emergency

• their actions were the only reasonable way of dealing with the situation

• their actions were a reasonable response to the situation

sudden or extraordinary emergency trial

• when raised, defence/ accused must prove with sufficent evidence

• burden of proof falls on prosecution to prove beyond reasonable doubt that the accused did not act in the circumstances of a sudden or extraordinary emergency

an accused can raise automatism if

at the time of the offence the accused was:

• asleep/ sleepwalking

• suffering concussion

• actively suffering an epileptic seizure

• acting as a result of medical condition due to side effects of correct use of medication

automatism trial

• very rare and difficult to prove

• burden of proof varies according to the cause

  • generally, prosecution must prove beyond reasonable doubt that the accused acted voluntarily (i.e aware of their actions)

an accused can raise intoxication if

at the time of the offence they acted involuntarily or without intent due to being in an intoxicated state

intoxication trial

• accused must prove their state of intoxication was not self-induced

  • must prove their intoxication was involuntary or due to fraud/ reasonable mistake, etc.

an accused can raise accident if

actions of the accused were involuntary, unintentional or reasonable unforseeable

an accused can be deemed unfit to stand trial if

at the time of the trial they are unable to

• undertsand the nature of the charges laid against them

• enter a plea

• follow the course of their trial

• instruct their lawyer

when unfit to stand trial is used in Victoria

an investigation ins conducted before a jury who determine, on balance of probability, whether the accused is most likely unfit to stand trial