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Melbourne University Law Students Society

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Title: Melbourne University Law Students Society


1
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
2
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.
3
Tutorials Schedule
  • Email f.dinshaw_at_unimelb.edu.au

4
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

5
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

6
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

7
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

8
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

9
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

10
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

11
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

12
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

13
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?

14
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)

15
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)

16
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)

17
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

18
Essay Question
  • 2005 Sem 1 exam
  • - Discuss with relation to s 9AJ and the
    criminal law generally.
  • 2004 Sem 2 exam
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