Melbourne University Law Students Society

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Melbourne University Law Students
Society Student Tutorial Service Criminal Law
and Procedure 730-368 Freya Dinshaw
Sponsoring Partners Clayton Utz Mallesons
Stephen Jaques Leo Cussen Institute
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DISCLAIMER These tutorials and the notes are
designed to assist students in their learning.
The tutorials and the notes are not a substitute
for the course material, nor should they be
relied upon as representative of the subject
matter of the course. Neither the Melbourne
University Law Students Society nor the student
tutor of these tutorials will take responsibility
for any consequences flowing from the use of the
material provided in the tutorials or in the
notes.
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Tutorials Schedule

• Email f.dinshaw_at_unimelb.edu.au

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Defences

• Plan for today
• Self-defence
• CL and ss 9AC, 9AD, 9AE and 9AF
• Sudden and extraordinary emergency (s 9AI)
• Duress / Family violence (s 9AG / 9AH)
• Intoxication
• Hypothetical
• Essay question

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Self defence

• Common law
• Used to interpret statutory provisions, and for
  crimes committed aside from homicide
• Once there are sufficient grounds to raise this
  defence, the prosecution must prove beyond
  reasonable doubt that
• Subjective test
• the defendant did not believe that the
  defendants conduct was necessary in self defence
• Objective test
• the defendant did not have reasonable grounds to
  believe that their conduct was necessary in
  self-defence
• Seen in light of circumstances, not from
  hypothetical reasonable person (Conlon)
• From Zecevic
• Not necessary that retaliation is proportionate
  to threat

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Self defence

• Under Crimes Act
• S 9AC Murder self defence
• Person is not guilty of murder if he/she carries
  out the conduct that would otherwise constitute
  murder while believing the conduct to be
  necessary to defend himself/herself or another
  person from the infliction of death or really
  serious injury
• S 9AD Defensive homicide
• If someone commits what would be murder but for
  9AC, they are guilty of defensive homicide (level
  3, 20 years) if they did not have reasonable
  grounds for the belief referred to in that
  section

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Self defence

• Under Crimes Act
• S 9AE Manslaughter self defence
• Not guilty if person believes conduct was
  necessary to defend himself/herself/another
  person OR to prevent or terminate the unlawful
  deprivation of his/her liberty or the liberty of
  another, and had reasonable grounds for that
  belief
• S 9AF Self defence exception does not apply to
  lawful conduct
• Person must be (a) responding to lawful conduct,
  and (b) be aware that the conduct is lawful at
  the time of the response

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Sudden and extraordinary emergency

• Similar to CL necessity defence
• Crimes Act S 9AI
• (1) Person not guilty of an offence is conduct
  was responding to circumstances of sudden or
  extraordinary emergency
• (2) This section applies ifthe person carrying
  out the conduct reasonable believes that
• (a) circumstances of sudden or extraordinary
  emergency exist AND
• (b) committing the offence is the only reasonable
  way to deal with the emergency AND
• (c) The conduct is a reasonable response to the
  emergency
• (3) Only applies to murder if the emergency
  involves a risk of death or really serious injury

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Duress

• Crimes Act s 9AG
• (1) A person is not guilty of conduct if made
  under duress
• (2) Conduct is carried out under duress if (and
  only if) the person reasonably believes that
• (a) subject to (3), a threat has been made that
  will be carried out unless an offence is
  committed AND
• (b) carrying out the conduct is the only
  reasonable way that the threatened harm can be
  avoided AND
• (c) The conduct is a reasonable response to the
  threat
• (3) However, a person does not carry out conduct
  under duress if the treat is made by or on behalf
  of a person with whom the person is voluntarily
  associating for the purpose of carrying out
  violent conduct
• (4) This section only applies to murder if the
  threat is to inflict death or really serious
  injury
• Example R v Runjanjic and Kontinnen

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Family violence

• Crimes Act s 9AH
• For circumstances of duress/self defence, but
  where related to family violence
• (1) For murder/defensive murder/manslaughter, in
  circumstances where family violence is alleged a
  person may believe, and may have reasonable
  grounds for believing, that his or her conduct is
  necessary
• (a)to defend himself or herself or another
  person or
• (b) to prevent or terminate the unlawful
  deprivation of his or her liberty or the liberty
  of another person
• even if
• (c) he or she is responding to a harm that is not
  immediate or
• (d) his or her response involves the use of force
  in excess of the force involved in the harm or
  threatened harm.
• (2) evidencemay be relevant in determining
  whether
• (a) a person has carried out conduct while
  believing it to be necessary... OR
• (b) a person had reasonable grounds for a belief
  held by him or her that conduct is necessary OR
• (c) a person has carried out conduct under duress

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Intoxication

• Affects actus reus requirment of voluntariness.
  To what extent should it affect consideration of
  mens rea?
• Crimes Act s 9AJ
• Can take into account intoxication in determining
  reasonable belief if the crime being considered
  is NOT murder, manslaughter or defensive homicide
  (as defined in s 9AB(1))
• (1) If any part of an element/defence to a
  relevant offence relies on reasonable belief,
  must be the standard of a reasonable person who
  is not intoxicated
• (2) Same as (1), except for reasonable grounds
• (3) Same as (1), except for reasonable response
• (4) If intoxication is not self-induced, the
  standard must be of a reasonable person
  intoxicated to the same extent as the person
  concerned.
• (5) intoxication is self-induced unless it came
  about
• (a) involuntarily
• (b) through fraud, sudden or extraordinary
  emergency, accident, reasonable mistake, duress
  or force
• (c) through the use of a drug for which a
  prescription is required and was used in
  accordance with its directions
• (d) from use of drug with no prescription
• (6) If person knew of the problems of the drug,
  held to be self-intoxicated
• This means for other offences, use CL R v
  OConnor
• Can also consider Cth approach taken in R v
  Collins

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Intoxication

• R v OConnor
• 1. Where intoxication is present to such a degree
  that the accuseds acts are not voluntary then
  he/she is not criminally liable. This is so even
  when the intoxication is self-induced
• 2. This proposition does not apply where the
  requisite intent was formed prior to intoxication
  so that intoxication was deliberately induced for
  the performance of the act
• 3. It is not a defence where the intoxication
  renders a person more likely to commit a crime
  than they otherwise would have been it can just
  form evidence
• A person may be intoxicated in the sense that
  his personality is changed, his will is warpedso
  that whilst intoxicated to this degree he does
  acts voluntarily and intentionally which in a
  sober state he would or might not have done. His
  intoxication to this degree, though conducive to
  and perhaps explanatory of his actions, has not
  destroyed his will or precluded the formation of
  any relevant intent. Barwick CJ
• NB no distinction made between self-induced and
  involuntary intoxication

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Hypothetical

• Based on R v Osland
• Mrs O and her son lived with the tyrannical and
  violent Mr O for many years. Mr Os violent
  behaviour had mostly stopped a couple of years
  prior to his death, but in the days leading up to
  his murder he had ordered the son out of the
  house and said that he would kill him if he did
  not go. The son would have left, but he feared
  for his mothers life and so he stayed in the
  house. There was evidence given that Mrs O
  suffered from battered wife syndrome.
• The evidence is that Mr O came home from work on
  the day in question and started verbally abusing
  his wife. He held her against a wall and was
  standing over her. When the son intervened, Mr O
  said he was going to kill him, and then hit him
  on the side of the herd causing him to fall to
  the floor. A little later, Mrs O said that she
  would calm Mr O down. She put sedatives into
  Mr Os dinner.
• After Mr O went to bed, Mrs O and her son became
  worried about what would happen when Mr O woke up
  and realised that he had been drugged. They
  feared that they would be killed. They decided
  to hit him with a weapon the son got a piece of
  pipe, and having decided that Mrs O was not
  strong enough to do it, he struck the fatal blow
  in her presence. Mrs O held Mr O down to stop
  him twitching. The two of them then placed Mr O
  in a hole they had dug before (but allegedly at a
  time when they had not intended to kill Mr O).
• The medical evidence showed that Mr O died from
  gross fractures to his skull. His death was
  instantaneous.
• What defences are available to Mrs O and son?

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Hypothetical - Answer

• Self defence?
• s 9AC Murder self defence
• Mrs O/son conduct necessary to save herself/son
  from infliction of death or really serious
  injury?
• Conduct necessary? (Zecevic)
• Mrs O Threat to son, past behaviour, physical
  violence. This time different to other times?
  Could have sent son away/left?
• Son Murder necessary to protect mother?
• Reasonable grounds for belief? Only words to
  son.
• Consideration that drugging was what made harm
  imminent, but this was caused by Mrs O herself
• Cf to Conlon pre-emptive strike justified to
  prevent imminent harm
• Will be Defensive homicide under s 9AD if no
  reasonable grounds (20 years)

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Hypothetical - Answer

• Self defence?
• S 9AH Family violence
• Family violence present in facts
• (1)(a)Belief that conduct necessary to defend
  themselves/another as per before
• Difference justified even if harm is not
  immediate (1)(c) and even if force used in SD is
  in excess of force feared (1)(d)(here not
  necessarily case, Mrs Oson thought they would be
  killed, but in even that they feared a lesser
  harm)
• Reasonable grounds not required (s 2(a)), as long
  as Mrs O/sons belief actually held
• Substantiated if duress (2)(c)

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Hypothetical - Answer

• Duress?
• S 9AG
• (4) Only applies to murder if threat was to
  inflict death/serious injury here if threat
  found, yes
• Therefore killing Mr O was reasonable response to
  threat (2)(c)
• Threat? That Mr O would kill son
• Reasonable belief by son/Mrs O that threat would
  be carried out unless offence committed? (2)(a)
• Lapse in time between killing and threat relevant
  probably not reasonable
• Battered wife syndrome? (Runjajic and Kontinnen)
• Carrying out conduct only way harm can be avoided
  (2)(b)
• If Mrs O battered, then probable. For son,
  calling police an option since harm not
  immediate?
• No voluntary associating with Mr O (3)

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Hypothetical - Answer

• Sudden and extraordinary emergency?
• S 9AI
• Here emergency not sudden extraordinary?
  Difficult to assess as Mrs O chose to administer
  sedatives, so was within her control
• Depends on if such threats by Mr O were
  commonplace
• Same tests apply as for other defences
• If Mrs O/son were intoxicated?
• S 9AJ would apply no difference as murder is a
  relevant offence

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Essay Question

• 2005 Sem 1 exam
• - Discuss with relation to s 9AJ and the
  criminal law generally.

• 2004 Sem 2 exam