Defenses: Justifications
Overview
Justifications: Duress, necessity, and self-defense are legal defenses.
True Defenses: If a jury is convinced that any of these defenses is valid, the defendant is acquitted without any conditions.
They provide complete answers to the offense, leading to an unqualified acquittal.
Even if the prosecution proves every element of the offense, these defenses can still apply.
These defenses acknowledge that under extreme circumstances, individuals might be compelled to break the law.
Comparison with Other Defenses
Automatism and Intoxication: These defenses challenge the prosecution's ability to prove an element of the offense, rather than introducing new circumstances.
Partial Defenses for Murder and Insanity: Unlike justifications, a successful insanity plea may still result in loss of freedom, and insanity leads to a special verdict.
Burden of Proof
The prosecution always bears the burden of proving all elements of an offense.
The prosecution must also prove that these defenses are not applicable.
The defense initially raises the issue and presents supporting evidence to the jury.
Duress
The defendant commits an offense due to a threat or pressure.
The defendant must provide enough evidence to raise duress as a defense.
If the defense successfully raises duress, the prosecution must prove beyond a reasonable doubt that duress did not exist.
Key Quote from Abu Sofia
The prosecution must prove the accused acted voluntarily, eliminating any reasonable possibility of duress.
Duress is sometimes seen as a lack of voluntariness caused by an overbearing threat.
Definition of Duress (Lawrence Case)
Two-part test:
Was the person's will overborne by a threat?
Would a person of ordinary firmness have succumbed to the threat?
The test includes both subjective and objective components.
Subjectively, the defendant's will must be overborne.
The threat must involve death or serious harm to the defendant or others. Threats to property are insufficient.
There must be a temporal connection between the threat and the offense.
Objectively, a person of ordinary firmness would have succumbed to the threat.
The standard considers a person of similar age, sex, and circumstances; it does not consider a vulnerable or timid person.
Abu Sofia Quote
The prosecution must negate that the accused acted under duress and that a person of ordinary firmness would have acted similarly.
Additional Considerations
Relevant factors include mental illness or pregnancy.
Self-intoxication is not relevant.
The defense is unavailable if the person had a reasonable opportunity to escape the threat but did not take it.
Lawrence case - Opportunity to Escape
If the accused fails to use a reasonably available opportunity to regain their free will, the defense is not valid.
The decision depends on whether an average person of ordinary firmness would have used the opportunity.
Duress and Murder
Duress is generally not a defense for murder.
There is some debate on whether duress could apply to constructive murder cases.
Necessity
The accused willingly committed the offense to avoid a greater evil.
The accused must provide enough evidence to raise necessity as a defense.
Once raised, the prosecution must negate this defense beyond a reasonable doubt.
Like duress, necessity is a complete defense if proven.
Historical Perspective
Necessity was not always accepted as a valid defense.
Quotes
Southwark London Borough and Williams - Lord Denning argued against allowing hunger as an excuse for stealing, fearing widespread lawlessness.
Justice Dixon (Perker and others v the Queen) - The law cannot allow individuals to violate it based on personal views of higher social value.
The criminal act must have been done to avoid irreparable harm to the accused or those they are bound to protect.
The accused must honestly and reasonably believe they were in imminent peril and that their actions were proportionate to the danger avoided.
There must be no reasonable alternative to avoid breaking the law.
Key Requirements (Queen and Lunen)
The criminal act must avoid irreparable harm to the accused or those they protect.
The accused must honestly and reasonably believe in imminent peril.
Actions must be proportionate to the peril avoided.
Peril
Peril involves responding to danger with a degree of immediacy.
The accused must honestly believe on reasonable grounds that they are in imminent peril.
R v Cairns Example
A motorist drove over a drunk man; the perceived threat need not be real.
The motorist believed there was a threat, even if the man meant no harm.
The key is whether a reasonable person would have held the same belief.
Notable Limitations
Like duress, necessity is not a defense to murder.
R v Dudley and Stephens (Cannibalism Case)
Sailors killed and ate a cabin boy to survive, but the court did not allow necessity as a defense to murder.
"In the Matter of A" (Conjoined Twins Case)
Separating conjoined twins would save one but kill the other; leaving them conjoined would kill both.
Necessity allowed the separation surgery.
While the doctor performing the surgery could be charged with murder, the court permitted the operation.
The principle may not extend beyond this specific scenario.
Robert Walker Quote
Laws on necessity must develop case by case, especially when doctors face conflicting legal and moral duties.
The proportionality test is met in life-and-death situations, and the case of conjoined twins is unique.
Similar circumstances may justify unlawful abortions.
Self Defense
General Principles
Self-defense excuses the accused's conduct; the prosecution must prove the offense occurred.
The prosecution must prove beyond a reasonable doubt that the accused did not act in self-defense.
Self-defense, once a common law defense, is now codified in NSW.
Legislation reinstated the Vero case.
Common Law vs. Statute (NSW)
Common law limited self-defense to responses to unlawful conduct.
Excessive force resulting in death led to a manslaughter charge (Vero).
The Zesevich case reformulated the common law.
The court stated that if the accused reasonably believed their actions were necessary, they should be acquitted.
Unlike Zesevich, Vero held that excessive force in self-defense results in a manslaughter verdict.
New South Wales legislation brought back the Vero position.
If murder is committed in self-defense with excessive force, the charge is manslaughter, not murder.
Key Elements (Zesevich Case)
The accused reasonably believed their actions were necessary for self-defense, including subjective and objective components.
Self-defense applies to all offenses, not just homicide.
Self-defense can be a response to lawful acts.
NSW Crimes Act Provisions
Section Four Eighteen
A person is not criminally responsible if their conduct was in self-defense.
Self-defense includes protecting oneself or others, preventing unlawful deprivation of liberty, protecting property, preventing criminal trespass, or removing a trespasser.
Section 419 requires that the conduct be a reasonable response to the circumstances perceived by the person.
Katarzynski Case (Interpretation of the Act)
The jury considers the issues outlined in Katarzynski, 2002 NSW SC 613.
The first issue is determined subjectively, considering the accused's personal characteristics.
The second is an objective assessment of the proportionality of the accused’s response.
The Crown negates self-defense if the accused did not genuinely believe their actions were necessary or if their response was unreasonable.
Reasonableness is assessed objectively, without considering the accused’s personal beliefs or grounds for that belief.
The accused need not have reasonable grounds for their belief; it is sufficient if they genuinely hold that belief.
Crawford Case
It was sufficient if the appellant showed a reasonable possibility that they believed their conduct was necessary and that their response was reasonable.
The test relies on the accused’s perception of the circumstances.
The objective test considers what would be a reasonable response in the circumstances as the accused perceived them.
Self-Defense as a First Strike
Self-defense can be a preemptive strike if reasonable in the circumstances perceived by the striker.
Reasonableness is judged based on an imminent, direct, or specific threat (Burgess and Saunders).
Burgess and Saunders Case (Opera House Graffiti)
Two men defaced the Sydney Opera House with graffiti, claiming it was self-defense.
The lawfulness of the action to which the accused responds is a significant element of the reasonableness of their self-defense claim.
The imminence and seriousness of the threat are relevant.
Imminence relates to the injury sought to be prevented.
The lawfulness of the actions being responded to is a decisive element in assessing reasonableness.
Burgess and Saunders were unsuccessful in their defense.
Scenarios
Self-defense arguments differ between encounters with plainclothes officers and fully kitted police officers.
Manufactured Self-Defense
The accused provokes the other person but claims self-defense.
A person cannot create an emergency and provoke a lawful attack, then claim self-defense.
All surrounding circumstances are considered.
Self-defense is unavailable in cases involving reckless or intentional infliction of death to protect property or prevent criminal trespass.
Section Four Twenty One (Manslaughter)
Manslaughter is charged when excessive force leads to death, and the accused believed their conduct was necessary.
Section 421 applies when a person uses deadly force that was not a reasonable response but believed it was necessary to defend themselves or another, or to prevent unlawful deprivation of liberty.
Section Four Twenty Two
Self-defense is not excluded merely because it is a response to lawful conduct or that the other party is not criminally responsible.
Summary of Defenses
Partial Defences
Provocation, infanticide, excessive self-defense, substantial impairment.
These apply only to murder, reducing it to manslaughter.
Mental State Defences
Mental health impairment or cognitive impairment.
Automatism (sane and insane).
Intoxication (self-induced and not self-induced).
Successful defenses may result in detention in a mental health facility rather than acquittal.
True Defenses (Justifications)
Duress, necessity, self-defense.
These completely excuse otherwise criminal conduct.