Defences to crimes against the personChapter 2.5

Self Defense

• This defense requires the defendant to have believed that the killing was necessary• For self defense of themselves or another person• To avoid death or serious injury• To prevent their freedom from being deprived

Defensive homicide

• Defense to murder when a person kills another person thinking it was necessary to protect themselves or others• In reality the belief was unreasonable • May be found not guilty of murder but guilty on defensive homicide

Infanticide

• Used as a defense to reduce the charge of murder which holds a maximum of life imprisonment to a maximum of 5 years for infanticide• Mental disturbance must be shown• Child must be under 2 years of age

Family Violence

• This defense to murder is used when;• There is a history of violence in the household• The person believes they need to defend themselves or other family

members• Believes their freedoms or the freedom of their family is at risk• Force may be excessive and there may not be an immediate risk in

reality• But the court takes into consideration the social, cultural, economic

and psychological effects of the violence on the accused

Automatism

• The offence was committed without conscious thought• Through muscle spasms or reflexes (e.g. during a fit)• Not conscious through sleepwalking

Sudden or extraordinary emergency

• The conduct carried out was due to an sudden extraordinary emergency• It must be shown that it was the only way to deal with the emergency• It must be a reasonable response to the emergency

Duress

• The accused believed that a threat will be carried out• The accused had no other way to avoid a threat• It was a reasonable response to a perceived threat• In murder cases it applies if the treat is fatal or very serious injury

Mental Impairment• Must prove that the accused was not able to understand the nature

of the act was wrong due to their mental state• They may be released without conditions• They may be under a supervision order for an indefinite term• This may be custodial or non custodial• It must be served at an appropriate place such as a psychiatric

hospital or institution• The custodial order will be reviewed at the end of a specified time

Intoxication

• The defendant was unaware of what they were doing because they were involuntarily affected by drugs or alcohol • They were unable to form the intention to commit the crime • Voluntary intoxication is not a defence• Examples of involuntary intoxication is by mistake, reaction to a

prescribed or non prescribed drug, force• Court will have to consider how much impact the intoxication had on

the intention to commit the crime and will compare it to the actions of a reasonable person in the same situation

‘Acquittal because too drunk’

A rugby league player, Noa Nadruku, was acquitted of assaulting three women including his wife, because he was too drunk to know what he was doing. Mr Nadruku was said to have drunk 28 schooners of beer, six stubbies and half a bottle of wine in an 11 hour drinking binge. Media reports at the time commented that it was unfair for a person to rely on a self-induced state of intoxication to escape criminal liability, even though such verdicts were rare.

• Following the Nadruku case (shown above), the use of self-induced intoxication as an excuse in criminal law was the subject of a Victorian parliamentary inquiry and the federal attorney-general asked the Australian Capital Territory, Victoria and South Australia to change their laws. After considerable debate and discussion in the community, and following the Victorian Law Reform Commission’s report Defences to Homicide, the law was clarified in this area in 2005.

Necessity

• Quite a common defence• Crime was necessary to prevent greater harm• Examples include;To protect others from severe harmBelieved that the situation was severely dangerousCriminal act was reasonable for the danger avoided

Consent

• This defense is used in rape cases• Defendant can argue consent was given or thought it was given• Consent can be used in assault cases where there is a belief the victim

had given consent to the act• E.g. where consent is given for a medical procedure or a sporting

event• Consent cannot be used as a defence for an illegal act, example

consent to murder

Lawful use of force

• When it is used in a sporting contest (tackle in football, punching in boxing)• Used by a police officer when required on the job (prevent a crime,

making an arrest)• Force must be reasonable force and appropriate to the situation

Accident

• An event which was unexpected• No mens rea or guilty mind existed• The act was not intentional, negligent or reckless

Your Turn

• Complete ‘Test your understanding’ questions 1-8 (page 56)• Complete ‘Apply your understanding’ question 9