Title: Melbourne University Law Students Society
1Melbourne 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
2DISCLAIMER 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.
3Tutorials Schedule
- Email f.dinshaw_at_unimelb.edu.au
4Defences
- 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
5Self 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
6Self 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
7Self 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
8Sudden 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
9Duress
- 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
10Family 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
11Intoxication
- 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
12Intoxication
- 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
13Hypothetical
- 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?
14Hypothetical - 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)
15Hypothetical - 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)
16Hypothetical - 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)
17Hypothetical - 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
18Essay Question
- 2005 Sem 1 exam
- - Discuss with relation to s 9AJ and the
criminal law generally.