Intoxication

Intoxication cannot be referred to as a criminal defence, rather it can be used as a factor for offences that deal with the intent of the accused. Intoxication can be raised for offences that are classified as specific intent offences. A specific intent offence means that the Crown must not only prove that the accused committed the crime but that the accused also ‘intended’ to commit the crime. Intoxication may be used as a defence in offences that require specific intent to commit the crime, this means that you were intoxicated to the point that you did not have the capacity to form an intention of committing the crime although you may have committed the crime. An example of this is wounding or grievous bodily harm with intent. Although you may have inflicted the wounding or grievous bodily harm, you may have never intended to do so therefore intoxication can be used as a factor to rely on to prove that the intent never existed.

Section 428C of the Crimes Act 1900 covers intoxication in relation to offences of specific intent, this act states that evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent.

Mental Illness

Under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Section 14 orders are only available in summary criminal proceedings or indictable offences triable summarily before a magistrate.

An example of this is being charged with murder. In this instance if you were mentally impaired, you may rely on mental illness as a defence. To be found guilty of murder there is a presumption both of voluntariness and of sanity. A voluntary act is when you are conscious of the nature of the act and exercise your choice to carry out that act. If you choose to rely on mental illness as a defence then you will need to prove on the balance of probabilities that you committed the crime because you suffered from a ‘disease of the mind’ at the time of the offence. Mental illness cannot be raised as a defence if you acted under the influence of drugs or alcohol.

A Need to be Fit to be Tried

If you have a mental illness, then you are deemed unfit to be tried. If unfitness due to a mental illness is cited before you are summoned to the court, then the attorney general needs to decide whether it is appropriate to operate an investigation before the hearing.

Courts Determining Whether You Are Fit to be Tried

An individual’s mental capacity to be tried is put to the court, then the court is expected to perform an examination on the defendant’s fitness to be tried.

Before examination on the defendant’s fitness to be tried, the court may adjourn proceedings, grant bail or ask for the defendant to undertake a psychiatric test or incarcerate the defendant to custody for up to 28 days.

If the court believes that the crime is of trivial nature or that the defendant has a mental disability, it may choose to dismiss the charges.

If the defendant is unfit to be tried, the Magistrate will refer the defendant to the Mental Health Review Tribunal. The Mental Health Tribunal will determine whether the accused is fit or unfit to be tried within twelve months.

If the Mental Health Review Tribunal decides that the accused will become fit to be tried within 12 months, the tribunal will also have to determine whether the accused is suffering from any mental illness, what the mental illness is and the treatment available for the mental illness.

The Mental Health Review Tribunal conduct what is known as a ‘hearing’. These hearings take place informally and the members of this tribunal will ask and request various medical reports, and doctors’ opinions to gather all the information they need to come to a decision. The relatives of the defendant are allowed to attend the hearing.

Duress

Duress is used as a defence in cases of extreme seriousness, where there was a threat to the accused, and that threat is what compelled them to perform those acts.

If one chooses to rely on duress as a defence then their evidence must cover:

• An actual threat was made.
• Your actions were justified by the threat because it was a serious threat: example threats of death or serious injury to the accused or members of their family.
• The threat was so serious that any person that was placed in the position of the accused would have yielded.
• The threat was acting on the accused’ mind at the time of the offence.
• The threat was ‘continuing’ and there was no opportunity for the threat to be avoided.

The accused bears the onus of proving their evidence, once the accused has finished relying on their evidence the prosecution will then need to prove that the accused was not acting under duress beyond a reasonable doubt.

Necessity

The defence of necessity is used in matters where the accused held an honest belief on reasonable grounds that it was necessary for them to commit the act which constituted to the offence in order to avoid the threatened danger. However, that act must not be disproportionate to the threatened danger. Due to the difficulty of proving necessity it is rarely used as a defence because it applies to matters where people held and honest and reasonable belief that they were in a situation of immediate peril therefore carried out the act to avoid serious consequences such as death or injury to you or another person.

The two elements that need to be proved for necessity as a defence:

• 1. An urgent situation of imminent peril must exist in which the accused must honestly believe on reasonable grounds that it is necessary for him to do the acts which are alleged to constitute the offence in order to avoid the threatened danger.
• 2. Those acts must not be disproportionate to the threatened danger.

Provocation-Partial defence to murder only

The defence of provocation can only be raised as a defence if you have been charged with murder. If the defence of provocation is successful, then it will reduce a charge of murder to manslaughter. An example is if you lost control due to the victim doing or saying something to provoke you.

The defence of provocation is covered in Section 23 of the NSW Crimes Act 1900.

The claim of partial defence of extreme provocation is defined as follows:

“(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.

(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.”

This means that the victims conduct or actions provoked you to lose control and that the victims conduct or actions would have caused an ordinary person to lose self control.

Self-Defence

Section 418 of the NSW Crimes Act 1900 states that a person is not criminally responsible for conduct which they believe is necessary to defend themselves, another person or property, provided that their actions are a reasonable response to the circumstances as they perceive them.

If you rely on self-defence you will need to prove that you carried out acts to protect either yourself or someone else. If you rely on self-defence, then the prosecution must prove beyond a reasonable doubt that you were not acting in self-defence.

A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

• to defend himself or herself or another person, or
• to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
• to protect property from unlawful taking, destruction, damage or interference, or
• to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.

Self-defence cannot be used as a defence if you were under the influence of drugs or alcohol which caused you to believe that someone or something was a threat when in fact it wasn’t. In these instances, self-defence cannot be used as a defence. An example of this is, if you were drunk and went and punched a victim for no reason. In this instance you cannot rely on self-defence as a defence.

However, if you intervene during a physical fight to protect a victim from the aggressor and this led to you assaulting the aggressor, then you can rely on self-defence because you acted to protect a victim from the aggressor.

Automatism

If an act is committed in the state of automatism, then the person committed the act or offence without the ability to control their actions. This means that the actions carried out were involuntary. A defence of automatism is rarely used.

Actions carried out in the state of automatism is not the same as actions carried out under duress. Duress is where one needs to take certain actions which are or were necessary to survive or coerced by the will of another. Automatism must rely on an external factor that is or was beyond your control. An example is actions during an epileptic fit, if for instance you had made contact with a person during an epileptic fit causing them injury, and you were charged with the matter then you could use automatism as a defence as your actions were involuntary during the epileptic fit episode.

If one chooses to use Automatism as a defence then they need to establish that mental illness was not an issue. You would need to prove that you did not suffer from a mental illness at the time the act or offence was committed. Medical evidence should be provided to the court to support your defence.

Claim of Right

Claim of right is a defence one can use for charges relating to larceny, robbery, and break and enter. In order to use claim of right as a defence one must hold a genuine belief that they had a claim of right to the property or money that were in the hands of another.

Claim of right defence extends to anybody who took property on behalf of another person with the honest and genuine belief that they were taking property or money to give it to its rightful owner. This belief must be of legal entitlement and not a moral entitlement. The authorities relating to a claim of right are discussed in R v Fuge (2001) 123 A Crim R 310 at 314–315 and it was decided that the claim of right would need to be tested.

Claim of Right in eyes of the Law:

– The claim of right must be one that involves a belief as to the right to the property or money in the hands of another.

– The claim must be genuinely, that is, honestly held — whether it was well founded in fact or law or not.

– While the belief does not have to be reasonable, a colourable pretence is insufficient.

– The belief must be one of a legal entitlement to the property and not simply a moral entitlement.

– The existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms — the relevant issue being whether the accused had a genuine belief in a legal right to the property rather than a belief in a legal right to employ the means in question to recover it.

– The claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them.

– The claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches.

– In the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders. There can be no accessorial liability unless there has in fact been a foundational knowing of the essential facts which made what was done a crime, and unless the person who is charged as an accessory intentionally aided, abetted, counselled or procured those acts.

– It is for the Crown to disprove a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury.

Honest and Reasonable Mistake of Fact

The defence of honest and reasonable mistake of fact may only be used as a defence in ‘strict liability’ offences.

Strict liability offences are offences which do not require the prosecution to prove that an accused intended to commit the crime. An example of this is where one is caught speeding exceeding the road speed limit.

The defence of honest and reasonable mistake of fact is used as a defence in instances where one would have not committed the offence if they had known that what they were doing was in fact against the law. An example of this is when the registration of a vehicle has expired and the owner did not receive any paperwork relating to the renewal, therefore drove an unregistered vehicle unknowingly. For if they knew the vehicle was not registered, then they would have not driven the vehicle.

The defence of honest and reasonable mistake of fact has three elements:

• The mistake must be an honest one
• The belief forming the basis of that mistake was reasonable
• The mistake must be one relating to fact and not law

Evidential burden relies on these three elements. If these three elements can’t be proved, then the court will find you not guilty of a strict liability offence. This means that the court believed that the accused would have not committed the offence if they had known that what they were doing was in fact against the law.