Criminal Defences and
Excuses
Chapter 8
What is Criminal
Responsibility?
• When the court determines that the accused
person is fully responsible for the criminal act
for which the person is charged.
• However, a person might argue that one of the
defences available in the Criminal Code can be
applied to justify (excuse) his/her actions or
reduce his/her responsibility for these actions.
Defences
• Defences are used in court to excuse or justify the actions of
the accused person. The accused person has to prove that
one or more of these defences exist on the “balance of
probabilities”. (This means it is more likely that the defence
applies than it does not apply). The standard of proof required
by the prosecution to prove an offence is “beyond all
reasonable doubt” and the jury must be unanimous.
• Defences are complete (which leads to acquittal on the charge)
or partial (which means the defendant may be convicted of a
lesser defence).
Independently of the
exercise of will (s23)
• A person is not criminally responsible
for their actions if it occurs
independently of the exercise of his/ her
will.
• An act here means a physical action
over which a person would normally
have bodily control, such as pulling a
trigger on a gun or assaulting another
person with a knife.
• Example: Reflexes, while sleep walking
or in great psychological shock.
Intoxication (s28)
• Onus on the accused to prove unintentional
intoxication.
• If the defence is successful, the accused must be
acquitted on the grounds of insanity
• Example: if a person kills someone while driving after
imbibing a spiked drink, they may be found guilty of
manslaughter and not murder.
Insanity (s26 and s27)
• A person is not criminally responsible for any act done while the
person is suffering from mental disease’ or ‘natural mental infirmity’
so that the person:
–Cannot understand what he or she is doing
–Cannot understand that what he or she is
doing is wrong
–Cannot control his or her actions
• Presumption: every person is of sound mind unless proven otherwise
• s27 Insanity must be proven on the balance of probabilities and is a
complete defence.
Provocation (s304)
• 4 things are necessary for provocation defence to apply
– A) a provocative incident
– B) the accused must actually have lost control in direct
response to the provocation
– C) an ordinary person would also have lost control if faced
with the same circumstances
– D) the accused must have acted suddenly, on the spur of
the moment, “in the heat of passion”
• s304 applies to murder and can only be a partial defence
reducing the crime to manslaughter, s269 applies to assault
and is a complete defence. The act must be sudden and the
force used must be reasonable or in proportion. Courts may
take into account the “battered spouse syndrome” where
provocation has been over a long period.)
Accident (s23)
• A person is not criminally responsible for an event that
occurs by accident.
• An event occurs by accident if it is a consequence that
was:
– Not intended
– Not foreseen
– Not reasonably foreseeable by an ordinary person
• Refer to case study on pg 162 of your textbook:
– Kaporonovski v R (1973) 133 CLR 209
Accident (s23)
• However, it does not matter that the
consequences are accidental
• For example, Lance decides to use violence
against Tim by punching him. Lance does not
know that Tim has heart problems and the
assault causes Tim to have heart attack and he
dies. Lance would not be able to claim that it
was an accident.
Mistake of fact (s24)
• A person who does 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 to any greater extent than
what he/she mistakenly believed them to be.
• To qualify as a mistake, the accused must have
a mistaken belief about a fact or a set of facts.
• Therefore, if Danny was selling a prohibited
substance but claims that he did not know that it
was a drug listed on the Drug Misuse Act (1986).
He is not making a mistake of fact but rather a
mistake of law.
Mistake of fact (s24)
• A reasonable mistake is one that a reasonable or
ordinary person could have made in those
circumstances.
Example:
Tommy breaks and enters a dwelling house before 6am
believing that it was after 6am at the time, he may be
found guilty of housebreaking only and not burglary
which is committed only between 9pm and 6am.
Exceptions
Drink Driving offences:
• A person cannot claim that he or she honestly
and reasonably believed they were drinking a
beverage with a low or no alcohol content.
Extraordinary
emergencies (s25)
• A person is not criminally responsible for an act done
under circumstances of sudden or extraordinary
emergency when an ordinary person would be
expected to act in the same way
• Currently no Queensland case pm s25 but this has
been used in some famous survival cases in other
juridistions.
Dudley and Stephens
(1994) 14 QBD 273
Dudley, Stephens, Brooks, and Parker were shipwrecked during a
storm. They had no supply of food and water. On the fourth day
they were able to catch a small turtle, which they completely
consumed by the twelfth day. After twenty days, Stephens and
Dudley decided, without the consent of Brooks that they would kill
and eat Parker, the youngest and weakest of them all. Parker did
not consent to his killing, but he was too weak to resist. Dudley,
Stephens, and Brooks all fed upon Parker's body for four days until
they were rescued. If the three remaining men had not fed upon
Parker's body, they probably would have died of famine before
they were eventually rescued. Parker would likely have died before
them, because he was in a much weaker state.
Upon returning to land, Dudley and Stephens were arrested and
brought to trial.
Q: What do you think the verdict at the trial was?
Verdict
• Issue:
• Are Dudley and Stephens guilty of murder for killing Richard
Parker?
• Holding:
• Yes. Where a private person, acting on his own judgment, takes the
life of another, he is guilty of murder, unless his act can be justified
by self-defense. The defendants were not protecting themselves
against any act of Parker.
• Sentenced to death but later commuted for a
prison term.
Immature age
• A person under the age of 10 years is not criminally
responsible for any act of omission
• This means that they are considered legally incapable of
committing any offence.
Immature age
• A person under 14 years of age is not criminally
responsible for an act unless it is proved that he/ she
had the capacity to know that he/she ought not to do
that act.
• Onus on the prosecution to prove that the child
understood and knew that what was done was
seriously wrong
• It must be more than being mischievous.
Compulsion (s31)
• A person is not criminally responsible for an act or
omission if it is done under the following circumstances
set out in s31:
– A) in execution of the law
– B) an obedience to the order of a competent authority which
he/she is bound by law to obey (unless the law is manifestly
unlawful).
– C) When the act is reasonably necessary to resist unlawful
violence threatened to either the person or another person who
is present
Compulsion (s31)
• D) when:
– i) the person does or omits to do the act in order to save
himself/herself or another person (this includes property) from serious
harm or detriment
– ii) the person doing the act of making the omission reasonably
believes he/she or the other person is unable to escape threatened
harm
– iii) doing the act or making the omission is reasonably proportionate to
the harm or detriment threatened.
• This protection does not extend to murder or piracy
or any offence which involves grievous bodily harm.
• Referred to under common law as ‘duress’
• Refer to hypothetical cases on pg 167 of your
textbook.
Self Defence S272
• Self-Defence: A person acting to defend him or herself, especially if
the person is responding to an argument involving assault from
another person
• (s272 Can only use reasonable force. If the assault makes the
person think they are going to be killed and there is no other form
of escape the person can use force even if it results in the attacker
being killed or seriously injured.)
Ignorance of the law- bona
fide claim of right (s22)
• ‘Ignorance of the law’ is not an acceptable defence to
avoid being convicted.
• However, a person is not criminally responsible for an
offence related to property if the act was done with a
bona fide (honest) claim of right and without intention to
defraud.
Example of bona fide
claim of right
Amy claims that Steve stole her laptop. Steve
says that they had a long standing
agreement for him to use her laptop when he
needed to. Amy claims that she had sent
Steve a note ending their arrangement
Example of bona fide
claim of right
1)
Steve is able to use the bona fide claim of right
excuse if he never received the note and he believed
that he was legally entitled to use the laptop
2)
However, if Steve had received the note but decided
to pretend that he hadn’t seen it, he would have
demonstrated his intention to defraud. This would
mean that he would not be able to use the bona fide
claim of right excuse
General Information
• If a defence succeeds, it may mean that the accused
person is found:
• Not guilty of the crime and walks free
• Not guilt of the crime and is sent to a mental institution
• Guilty of a lesser crime than the one original charged
• Guilty of a crime but has their sentence reduced to take
account of the defence.