WEEK FIVE TUTORIAL GUIDE
DEFENCES
This week we look at the range of defences available in criminal law. We will discuss
the following questions and work through the activities.
Required Reading: Chapters 9 and 10 of Prescribed Textbook: Howie, Roderick,
Paul Sattler and Marissa Hood, Hayes and Eburn Criminal Law and Procedure in
New South Wales (LexisNexis, 6th ed, 2019)
Discussion Questions:
Burden of Proof
1. Which party bears the evidential and legal burden in relation to the defences?
Self-Help Defences:
2. What is the relevant authority for self-defence?
3. What are the reasons someone might argue that their conduct was in selfdefence?
4. What is the test for self-defence?
5. Are there limitations to pleading this defence?
6. What are the elements of necessity? Where does the test for this defence
come from (relevant authority?
7. Can necessity be used as a defence against murder? What is the leading
authority here?
8. What are the elements of duress? Where does the legal test for duress come
from?
9. Can duress be used in relation to murder?
10. What is the result of a successful plea of any of these self-help defences? Is
the accused found not guilty?
Activity One:
Refer to pp. 545-546 of the textbook. We will discuss some of these scenarios in
class, to consider them in terms of self-defence, necessity and duress.
Mental State Defences:
11. What is the outcome where there is a successful plea of mental illness? Is the
accused found not guilty?
12. What is the leading case(s) in relation to mental illness? What are the
elements of this defence?
13. What is ‘disease of the mind’? Where can we look to understand what might
be classified as a mental illness?
14. What is automatism? How do we distinguish between insane automatism and
non-insane automatism?
15. What is the leading case in relation to automatism and how might we
understand ‘malfunction of the mind’?
16. What are some conditions that may give rise to automatism?
Intoxication:
17. When might intoxication be relevant?
18. In what type of offence might voluntary intoxication be a relevant
consideration?
Activity Two:
Refer to pp. 495-496 of the textbook. We will discuss some of these scenarios in
class, to consider whether mental illness, automatism or intoxication may be
relevant.
Activity Three – Problem Question:
A was a member of the Australian Armed Forces, who served two tours of duty in
Afghanistan. He has been diagnosed with Post Traumatic Stress Disorder (PTSD) and
is currently undergoing psychiatric treatment as an outpatient.
One day, A is at home and in a particularly bad state of mind. He takes a double dose
of his medication and also consumes a bottle of scotch. The medication A takes has
a warning that its effects are magnified by the intake of alcohol. On this day, a man
knocks on the door of A’s house. It is A’s new neighbour, V, who has come to introduce
himself to A. V’s wife, V2, is also with V. Both originally come from Afghanistan. V has
a long beard and is dressed in traditional Afghani clothing; V2 wears the traditional
head scarf of a Muslim woman.
On opening the door, A sees the couple and his mind immediately takes him back to
Afghanistan. He panics, thinking V and V2 are from the Taliban. A grabs the piece of
four-by-two timber he keeps at the door and beats V and V2 to death. A neighbour
calls the police upon hearing the screams of V and V2.
When the police arrive, they find A standing in his doorway, piece of timber in hand,
with no memory of what has just happened.
Discuss A’s liability in the above scenario.