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Article Type: Criminal Defences

Rebuttable Presumption

Rebuttable Presumptions in Victoria

What is a rebuttable presumption?

A rebuttable presumption is a presumption that will be assumed until such time as the evidence suggests otherwise. Within the criminal law there are a number of rebuttable presumptions, some where the onus falls upon the accused and some where the onus falls on the prosecution.

Presumption of Innocence

The most well-known rebuttable presumption in criminal law is the presumption of innocence. The cornerstone of our justice system is that an accused must be considered innocent until such time that the prosecution satisfy the court beyond a reasonable doubt that they are guilty. This is an important feature of the judicial system.

It is not the defendant’s role to prove their innocence, it is the prosecution’s role to prove the defendant’s guilt beyond a reasonable doubt. Failure to do so must always result in a not guilty verdict. Until this occurs, the accused must be presumed innocent. The problem with this principle is that it is slowly being eroded.

A perfect example is found when dealing with intervention orders. Here, police or self-represented applicants can apply to the court for an interim order which puts all the ramifications of a final order in play. This can be very difficult for someone who has not done what is being alleged and it can sometimes be months, even years, before they get their day in court.

Doli Incapax

Doli Incapax is a rebuttable presumption that applies to children between the ages of 10 and 14 years. This presumption works on the basis that children between the ages of 10 and 13 years do not possess the ability to form a criminal intent as prescribed by the criminal law. The reasoning for this presumption is that children of that age are not considered sufficiently intellectually and morally developed to understand the difference between right and wrong. It should be noted that children under the age of 10 cannot be charged in relation to committing a crime. 

In RP v The Queen [2016] HCA 53, High Court Justices Kiefel, Bell, Keane and Gordon noted that this presumption may be rebutted. To rebut this presumption, the prosecution must provide evidence that demonstrates that the child understood that it was morally wrong to engage in the criminal behaviour. It is a common error made by defence lawyers in seeking a report. This can sometimes work against the accused. If there is no evidence that the prosecution can point to in establishing criminal intent, then a report may not be necessary. 

Knowledge of the moral wrongness of this behaviour has to be distinguished from a child’s awareness that the behaviour was merely naughty or mischievous. This distinction may be found by demonstrating that the child knew the conduct was ‘seriously’ or ‘gravely’ wrong.

Any consideration of how to approach a doli incapax submission should always be done in consultation with an experienced criminal defence lawyer. 

Rebuttable Presumption in Relation to Bail

There are also rebuttable presumptions which apply in regard to whether a defendant should be granted bail.

Section 4 of the Bail Act 1977 (Vic) outlines the presumption that a person accused of an offence and being held in custody has an entitlement to bail except in the circumstances listed in this Act.

There are two exceptions to this presumption:

  • Firstly, if the accused is charged with an offence that requires the bail decision maker to refuse bail unless there are ‘exceptional circumstances’ justifying the grant of bail. Offences of this kind are listed in Schedule 1 of the Bail Act and include serious offences such as treason, murder or aggravated home invasions. More broadly, the ‘exceptional circumstances’ test also applies to persons accused of crimes with terrorism records or persons accused of crimes they have committed whilst on bail.
  • Secondly, if the accused is charged with an offence which requires the accused to show ‘compelling reasons’ that justify granting bail. Offences of this kind are listed in Schedule 2 of the Bail Act and are slightly less serious than that which require the ‘exceptional circumstances’ test.

If the bail decision maker is satisfied that ‘exceptional circumstances’ or ‘compelling reasons’ exist justifying the grant of bail for an accused, the bail decision maker must apply the ‘unacceptable risk’ test although it is incumbent on the prosecution to establish this and it is not a presumption against the accused person like it is in relation to ‘exceptional circumstances’ and show ‘compelling reasons’ thresholds.

A bail decision maker must refuse bail for a person accused of an offence if the bail decision maker is satisfied that –

  • There is a risk the accused would endanger the safety or welfare of any person;
  • Commit an offence;
  • Interfere with a witness; or
  • Fail to surrender in custody.

For more on bail in Victoria, follow the link.

Rebuttable Presumption regarding Sex Offences and Incest Charges

Section 50B of the Crimes Act 1958 (Vic) outlines that for an offence against a provision found in subdivision 8C, there is a rebuttable presumption that –

  • A person (A) knows that A is related to another person (B) in the way alleged; and
  • People who are reported to be related to each other in a particular way are in fact related in that way.

Offences found in subdivision 8C include

Possession Offences & Trafficking

Section 73(2) of the Drugs Act contains a rebuttable presumption. That being where a person has in their possession a quantity of a drug that is not less than a ‘traffickable quantity’ of that drug, the person will be found to be trafficking the drug unless they can prove otherwise. Subsequently, if the magistrate or judge is concerned in relation to s73(2) of the Drugs Act, the accused can be required to give evidence during their plea to rebut this presumption.

Section 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the Drugs Act) outlines that where a court is satisfied on the balance of probabilities that a possession offence was not committed for any purpose relating to trafficking in that drug of dependence, the accused is subject to a penalty of not more than 30 penalty units, 1-year maximum imprisonment or both.

The traffickable quantity of various drugs can be found in Schedule 11 of the Drugs Act. However, some common drugs and the respective traffickable quantities include –

  • Cannabis – 250.0 grams or 10 plants
  • Amphetamine, Cocaine, Heroin, and Methylamphetamine – 3.0 grams.

It should also be noted, aside from rebuttable presumptions, that when clients are found with a prima facie traffickable quantity of drugs, police will often charge them with drug trafficking, notwithstanding there is no other evidence. It is always an error for police to proceed in this way as it is easy for a skilled criminal lawyer to make out the inherent flaws in this type of prosecution.

Consent | Sex Offences

It is a sexual offence to sexually penetrate or engage in any sexual activity with a person in the absence of consent or with a person or child under the age of consent.

If you have been charged with a sexual offence, contact our sex offence lawyers for advice and support.

This article focuses on the law relevant to consent and reasonable belief in consent as applied to sexual offences, including rape.

The meaning of consent

Consent is defined in the Crimes Act 1958 to mean “free agreement” (until 30 July 2023) or “free and voluntary agreement” (from 30 July 2023) and describes (non-exhaustively) the circumstances in which a person does not freely agree to an act.

Words, non-verbal conduct, a course of non-verbal conduct, or any combination thereof can constitute valid consent to sexual activity. Consent must be particular to the intended behaviour, and the activity’s nature and circumstances must be clearly understood. Importantly, consent to sexual behaviour given previously can be withdrawn at any time before or during sexual activity. Consent obtained by way of force, threats or intimidation does not constitute free agreement, and to show the absence of consent, the victim is not required to have resisted the act. On the contrary, consent must be clearly and mutually communicated.

The relevant provisions defining consent are found in section 34C from 1 July 2015 to 30 June 2017, section 36 from 1 July 2017 to 29 July 2023 and section 36AA from 30 July 2023. Importantly, these provisions apply to proceedings for sexual offences and do not apply to non-sexual offences where consent may be an issue, such as common assault and intentionally causing injury.

meaning of consent

Non-consent and sexual offences

Non-consensual sexual activity is a criminal offence with severe penalties under the Victorian Crimes Act 1958. Sexual consent is generally valid if given freely, voluntarily and knowingly. A person may give valid consent during sexual activity or as prior consent within a reasonable time of the sexual act. A person may also withdraw consent to sexual activity at any time, before or during sexual activity.

If a person engages in non-consensual sex, they may be guilty of a sex offence under the Victorian Crimes Act 1958. For an accused person to be found guilty of a sex offence, such as rape or sexual assault, there are several elements that the prosecution must prove beyond a reasonable doubt.

The following two consent-related elements are common for several sex offences:

  • The complainant did not consent to the sexual act (the physical element of the offence)
  • The accused did not reasonably believe that the complainant consented to the sexual act (the fault element of the offence).

These two elements are common to the following offences:

Legal definition of consent

Consent from 30 July 2023

Section 36 of the Crimes Act 1958 (Vic) contains the definition of consent, which is changed from “free agreement” to “free and voluntary agreement” to sexual activity.

The objectives and guiding principles of consent law are to:

Promote the principle that consent to an act is not to be assumed—that consent involves ongoing and mutual communication and decision-making between each person involved (that is, each person should seek the consent of each other person in a way and at a time that makes it clear whether they consent).

The new definition of consent is qualified by a list of circumstances in which a person does not consent or is rendered incapable of consenting to sexual activity (see ss 36 and 36AA).

When a person does not consent

Sections 36 and 36AA extend the consent law framework by identifying where there is no consent to a sexual act. Section 36(2)-(3) states:

  • A person does not consent to an act just because they do not resist the act verbally or physically.
  • Just because a person has consented to previous sexual behaviour (whether the same or different) does not mean they consent to further sexual behaviour.

Non-consent circumstances

In the circumstances listed in s 36AA, there may be a form of consent to the physical act, but due to the operation of a subdivision, consent is vitiated. That is, there may be apparent consent but not valid consent. In other circumstances, such as if the victim is unconscious, there is no consent at all.

The provision also contemplates circumstances in which there will be vitiated consent due to mistake on the part of the consenting party. However, as the listed circumstances are expressly non-exhaustive, other circumstances not listed may be relevant to whether there was free and voluntary agreement.

Where the prosecution proves that one or more of the circumstances listed in section 36AA exist, the absence of consent is established. In those circumstances, it is not necessary for the jury to assess whether or not there was an absence of free and voluntary agreement (DPP v Yeong [45]).

Non-consent due to force, coercion, abuse or incapacity etc

Section 36AA(1) sets out a non-exhaustive list of additional circumstances in which a person does not consent to sexual activity, including that:

  • The person does not say or do anything to indicate consent to the act
  • The person submits to the act because of force, fear of force, or harm of any type
  • The person submits to the act because of coercion or intimidation
  • The person submits to the act because the person is unlawfully detained
  • The person submits to the act because the person is overborne by the abuse of a relationship of authority or trust
  • The person is asleep or unconscious
  • The person is so intoxicated as to be incapable of consenting to the act
  • The person is so intoxicated as to be incapable of withdrawing consent to the act.

Non-consent due to mistaken belief, stealthing or withdrawn consent etc

The following circumstances under section 36AA(1) may apply where a person gave consent when not so impaired (by alcohol or other drugs) to be rendered incapable of consenting:

  • The person is incapable of understanding the sexual nature of the act
  • The person is mistaken about the sexual nature of the act
  • The person is mistaken about the identity of any other person involved in the act
  • The person mistakenly believes that the act is for medical or hygienic purposes
  • The act occurs in the provision of commercial sexual services and the person engages in the act because of a false or misleading representation that the person will be paid
  • If the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes
  • The person engages in the act on the basis that a condom is used, and either before, or during the act, a person involved intentionally does not use, removes, or tampers with the condom (known as ‘stealthing‘)
  • Having given consent to the act, the person later withdraws consent to the act taking place or continuing.

Stealthing

‘Stealthing’ occurs when consent is given to sexual activity on the agreement that the other person uses a condom and that person intentionally removes, compromises, or does not use a condom.

An important part of consent law amendments commenced on 30 July 2023 criminalise stealthing by including it in the list of examples, specified in section s36AA(1), in which a person does not consent to sexual activity. The effect of this amendment makes it clear that a person who penetrates another while ‘stealthing’ is committing rape.

Reasonable belief in consent from 30 July 2023

The second consent-related element the prosecution must prove relates to the accused’s state of mind about a person’s consent. That is, the accused “did not hold a reasonable belief” that the complainant was consenting to secure a conviction for a sex offence.

Section 36A addresses the reasonableness of an accused’s belief, stating that their belief is unreasonable unless they actively do or say something to find out whether the complainant is consenting.

The ‘no reasonable belief in consent’ element will, therefore, be satisfied in circumstances such as if the accused:

  • The accused knew that the complainant was not consenting.
  • The accused did not turn their mind to whether the complainant was consenting.
  • Even though the accused believed the complainant was consenting, this was not a reasonable belief in the circumstances. 

If a Magistrate or jury finds that the accused held a reasonable belief that the complainant was consenting, such as if they said something to find out that the complainant consented, the accused must be found ‘not guilty’ in sex offence cases.

There are two parts to amendments to the reasonable belief in consent provision implemented on 30 July 2023 (s 36A).

  1. Previously, the question of whether the accused’s belief in consent was reasonable included consideration of the circumstances, including any steps taken by the accused to find out whether the complainant was consenting. However, the new s 36A specifically addresses whether the accused said or did anything to find to ascertain consent.
  2. The effect of the accused’s conduct is changed such that, following the reforms, a belief cannot be reasonable unless the accused said or did something to find out whether the other person consented (subject to exceptions in s 36A(3)).

Consent before 30 July 2023

Before recent amendments to consent law implemented on 30 July 2023, for sexual offences listed in subdivisions 8A to 8E, consent was defined as “free agreement” (Crimes Act 1958 s 36).

The old section 36(2) also provides a non-exhaustive list of circumstances in which a person does not consent to an act (s 36(2)).

S 36 Consent

Circumstances in which a person does not consent to an act include, but are not limited to, the following—

(a)     the person submits to the act because of force or the fear of force, whether to that person or someone else;

(b)     the person submits to the act because of the fear of harm of any type, whether to that person or someone else or an animal;

(c)     the person submits to the act because the person is unlawfully detained;

(d)     the person is asleep or unconscious;

(e)     the person is so affected by alcohol or another drug as to be incapable of consenting to the act;

(f)     the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;

Note     This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.

(g)     the person is incapable of understanding the sexual nature of the act;

(h)     the person is mistaken about the sexual nature of the act;

(i)     the person is mistaken about the identity of any other person involved in the act;

(j)     the person mistakenly believes that the act is for medical or hygienic purposes;

(k)    if the act involves an animal, the person mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;

(l)     the person does not say or do anything to indicate consent to the act;

(m)   having given consent to the act, the person later withdraws consent to the act taking place or continuing.

Reasonable belief in consent before 30 July 2023

In assessing evidence of the accused’s state of mind for offences occurring before 30 July 2023, consideration is given to whether the accused took steps to determine whether the complainant was consenting or not. See the old section 36A below:

S 36A Reasonable belief in consent

(1)     Whether or not a person reasonably believes that another person is consenting to an act depends on the circumstances.

(2)     Without limiting subsection (1), the circumstances include any steps that the person has taken to find out whether the other person consents or, in the case of an offence against section 42(1), would consent to the act.

Such an assessment is based on the evidence of the particular case. However, if a belief is based on a general assumption, it is not reasonable. In determining whether a belief in consent is reasonable or unreasonable, the jury must look at what the community would reasonably expect of the accused in the circumstances.

Meaning of consent

Consent & the relevance of intoxication

Under the Crimes Act 1958, intoxication may be considered in respect of a sexual offence in the following ways:

  • If an accused’s intoxication was self-induced, the standard of a reasonable person who was not intoxicated at the relevant time is applied to determine whether the accused’s belief in the complainant’s consent was reasonable (s36B).
  • If the accused’s intoxication was involuntary or not self-induced, such as due to fraud, sudden emergency or mistaken belief, the standard of a reasonable person who was intoxicated, and who was in the same circumstances as the accused is applied (s36B).
  • The complainant’s level of intoxication may render them incapable of consenting or withdrawing consent to a sexual act, such as if they are incapable of understanding the nature of the act (s36AA).

So long as a person above the age of consent can understand the nature of sexual activity and can actively communicate consent, they can generally consent if under the influence of drugs or alcohol. However, a person cannot give consent in a vulnerable position, such as if they are asleep, passed out, semi-conscious, mistaken or unable to understand the nature of the activity.

The defence of consent for sexual offences

Consent can be a defence, and the absence of consent can be an element of an offence to be proven. For an accused person to be guilty of certain sexual offences, the prosecution must prove beyond a reasonable doubt that there was an absence of consent.

A defence to sexual offences may be established if the complainant (or alleged victim) consented to the sexual act. Circumstances surrounding the issue of non-consent are addressed in sections 36A and 36AA of the Crimes Act 1958.

Reasonable belief in consent

A defence can be established if there is evidence that the accused held a reasonable belief that the complainant was consenting to the sexual act. For example, if the accused did or said something to determine whether the complainant consented within proximity to the sexual act, the accused is considered to have held a reasonable belief in consent and, therefore, has a valid defence.

Accused’s cognitive impairment or mental illness

An accused person with a cognitive impairment or mental illness (other than the effects of voluntary intoxication) that causes them not to say or do anything to determine whether the complainant consents may have a valid defence under section 36A(3). The presence of a cognitive impairment affecting an accused’s capacity to determine whether the complainant consents must be proved by the accused on the balance of probabilities per section 36A(4).

The accused did not consent to the sexual activity

A defence to a sex offence may be established under section 50H if the accused did not consent to engage in the sexual act. This situation may arise if the defendant engaged in the sexual act under threat and fear of harm or if it occurred while involuntarily intoxicated with drugs or alcohol (such as if their drink was spiked).

Consent in matters involving children

Consent may not be a defence in a sexual offence where the alleged victim is a child. The age of consent in Victoria is generally 16 years of age. However, this rule does not apply when a sexual act occurs between a 16 or 17 year old and a person in a position of authority or supervision over them, such as a school teacher or an employer (see Crimes Act 1958 s 49C). 

Ages of consent in Victoria

  • A child who is less than 12 years old cannot consent to any sexual activity (see Crimes Act 1958 s 49A).
  • A child aged between 12 and 16 can consent to sexual activity with a person who is not more than two years older.
  • A child aged under 16 years cannot consent to sexual activity unless the other person is not more than two years older than them. However, a defence can be established in cases where the accused believed the child was 16 years or older and the child was aged over 12 at the time of the offence (see Crimes Act 1958 s 49B).

See Age of Consent in Victoria for more.

Defence of consent for other offences

While the consent defence is most commonly raised in sexual offence cases, the defence can be raised to a range of criminal offences against the person, for example, theft (where it can be argued that they had consent from the owner to take/use the property), trespass (where it can be that they had permission to enter the building), criminal damage (consent to assume the rights of the owner) and in sport (where consent to contact may be implied by participating in contact sports).

A person who consents to the application of force has no right to complain about pain or injury suffered if it is within the bounds of what was consented to. In terms of assault, the term itself involves the notion of a lack of consent. ‘An assault with consent is not an assault at all’ (R v Schloss (1897)). This statement is subject to a qualification; the law does not allow people to consent to the infliction of actual or grievous bodily harm. However, this qualification has notable exceptions, such as sporting events, surgical procedures, and lawful discipline. The concept that consent vitiates an assault can extend to any criminal charge that relies on the absence of a lawful excuse.

In Pallante v Stadiums Pty Ltd, regarding a boxing tournament, it was held that a person cannot generally consent to the infliction of actual bodily harm but that in some sporting events, there is implied consent that injury may occur. The law recognises that in lawful sporting events that are not inherently dangerous to life or limb, infliction of actual bodily harm is to be expected under the rules. This is satisfactory, provided a participant does not intend to inflict very serious injury. However, sports like MMA or mixed martial arts may challenge this proposition.

Therefore, a person can lawfully consent to the infliction of actual bodily harm that is an expected and normal consequence of an activity, such as tattooing, male circumcision, body piercing, and branding, see R v Wilson [1996]. The presence of drugs and alcohol during the activities in question makes them inherently dangerous to life or limb, negating consent.

What does sexual consent look like?

Consent must be freely communicated, mutual and ongoing between participants. Consent must also be given voluntarily without fear, intimidation, coercion or mistaken belief about the nature of the activity. Verbal or nonverbal cues may indicate consent, but both parties must actively communicate consent with a mutual understanding of the sexual behaviour intended. Even if a person has previously consented, a person may withdraw consent at any time before or during a sexual act.

Equal consent and enthusiastic consent plays a critical role in all sexual activity between people in many different relationships. Consent can never be assumed and non-consensual sexual activity can occur in many different situations, including:

  • within a sexual relationship
  • within a marriage
  • with people who provide commercial sexual services
  • with a person who is incapacitated; or
  • with a person in a position of power or authority.

People may react differently to a non-consensual sexual act. There is no standard or proper response to non-consensual sexual behaviour. Some people may protest or resist physically; others may freeze, be silent, or not do or say anything when experiencing a non-consensual act or sexual violence.

Even if a person has previously consented, they may withdraw consent at any time before or during a sexual act. Consent, therefore, requires ongoing and mutual communication.

Consent experts

When if comes to understanding how consent relates to a defence under the criminal law, Dribbin & Brown Criminal Defence Lawyers are experts in the field.

Necessity

Defence of Necessity

The defence of necessity was used when the accused accepted they committed the act constituting the offence, but argued that it was necessary to avoid irreparable harm or to protect another person.

In raising this defence, the onus was on the accused to call evidence to prove that they were acting out of necessity.

The jury looked at the facts surrounding the offence, and the proportionality of the offending – i.e. they must compare the degree to which the law was broken with the ‘harm’ that needed to be avoided.

In R v Loughnan [1981], the Full Court of the Supreme Court of Victoria held that the common law defence of necessity consisted of the following three elements:

  • the criminal act must have been done for the purpose of preventing certain and irreparable harm from being inflicted upon the accused or someone s/he was legally obliged to protect;
  • the accused must have honestly believed on reasonable grounds that s/ he (or someone s/ he was bound to protect) was placed in a position of imminent peril; and
  • the acts undertaken must have been no greater than was reasonably necessary to avert the harm.

An example of the defence of necessity would be a traffic offence (e.g. speeding or careless driving) committed in the context of a medical emergency.

* In Victoria, the defence of necessity has been abolished and replaced by the statutory defence of ‘sudden and extraordinary emergency’: Crimes Act 1958 (Vic) ss 322R, 322S.

Dribbin & Brown Criminal Lawyers are experts at defending criminal charges. See here if you are looking more generally how to avoid a criminal record.

Provocation

The Defence of Provocation

The defence of provocation in Victoria was a partial defence to murder until 23 November 2005 ( see s3B of the Crimes Act 1958). The defence could be raised in situations where the deceased had engaged in provocative conduct of a nature that might have caused an ordinary person to act as the accused did in resorting to deadly force.

Provocation can still be used in cases where the death could have occurred on or before 23 November 2005: (see defensive homicide and self-defence for the alternative defences to murder committed after 2005).

For provocation to be successful it must be shown that that:

  • the deceased did act provocatively;
  • the accused did kill the deceased while deprived of self-control because of the deceased’s provocative conduct (a subjective test); or
  • the deceased’s conduct could have caused an ordinary person to lose self-control and to act in the way in which the accused did (an objective test).

If the prosecution can prove that the accused committed all the elements of murder but cannot refute the reasonable possibility that the accused acted because they were “provoked” and lost control, the accused will still be convicted of manslaughter (Masciantonio v R (1994).

Factors that can be used as evidence include:

  • Mere words: words alone can amount to sufficiently provocative conduct, particularly when the words are considered “violently provocative”(Holmes v DPP [1946] AC 588; Moffa v R (1977) 138 CLR 601 ).
  • Historic conduct: previous provocative behaviour of the deceased is not reason alone for provocation but is relevant to the assessment of a “triggering event”. (Masciantonio v R (1994) 183 CLR 58;  R v Osland [1998] 2 VR 636)
  • Triggering event: the incident that caused the sudden and temporary loss of control. It may be a relatively minor but cannot be trivial.
  • Loss of self-control/heat of passion: the provocative conduct of the deceased created in the accused intense anger, panic or fear that in turn caused the murderous behaviour. (Johnson V R (1976) 136 CLR 619)
  • Delayed response: it must be shown that the act occurred because of loss of control not due to revenge or a ‘”slow-burning” desire for retribution. It does not stop an accused person (an abused partner) from using the defence because the accused’s reaction was delayed (R v Osland [1998] 2 VR 636; R v Thorton (No. 2) [1996] 1 WLR 1174).
  • The response of the “ordinary person”: in the circumstance could an ordinary person have suddenly lost control to such an extent as to react the same way the accused did (Masciantonio v R (1994) 183 CLR 58)
  • Proportionality: there must be a high degree of provocation.

The defence is not applicable unless all the elements of murder are established. The defence operates based on balancing the protection of life with compassion for human frailty. It was founded on a principle of ‘a sudden loss of control’.

Provocation and Sentencing

Provocation can be used as a consideration in sentencing. The accused’s moral culpability may be reduced if provocation was an element in the offending (e.g. if the accused was not the one who started the fight). This sentencing submission needs to be used with care, as the accused should not be seen to be ‘blaming’ the victim for the offending, especially if the accused is pleading guilty to the offence.

Nevertheless the submission has some validity when made by an experienced criminal solicitor, for more information contact our office today.

Self Defence

The Defence of Self-Defence 

To be successful in relation to the defence of self-defence in Victoria, the person relying upon the defence must have believed that the conduct was both necessary and that the conduct was a reasonable response to the circumstances, as the person perceived them.

The key provisions governing self-defence in Victoria are found in sections 322I –322N and 322T of the Crimes Act 1958 (Vic). Self-defence was first codified in Victoria in 2005. Up until then it had been a common law defence. The 2005 legislation was specific to murder and manslaughter whilst the common law defence remained available for all other offences. This was changed in 2014, Part IC of the Crimes Act 1958 was established that sets out a single statutory self-defence provision for all offences. This applies to all alleged offences that have been committed on or after 1 November 2014 (section 322K). These reforms abolished the common law defence of self-defence (section 322N) and included special provisions concerning victims of family violence (section 322J). For defences to homicide prior to 2005 see the defence of provocation; for those between 2005 and 2014 see defensive homicide.

The defence of self-defence is most commonly utilised in relation to allegations of violence. Section 322K of the Crimes Act states:

(1) A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if-

(a) the person believes that the conduct is necessary in self-defence; and

(b) the conduct is a reasonable response in the circumstances as the person perceives them.

(3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.

When is an Act in Self-Defence?

To rely upon self-defence there must be evidence of an unjustified threat or use of force against an accused. The violent act will be occurring or imminent, or if it is a threat, it must be viable. A person is not entitled to rely on self-defence just because an attack is in progress or immediately threatened, the issue is whether the accused’s perception of the danger led them to believe that the use of the force was required (Osland v R (1998) 197 CLR 316). In relation to the threat of family violence the self-defence may occur in advance as a means of protecting one’s self and family members from harm, for more on this see the section relating to family violence.

In Victoria self-defence is a justification for an accused person to respond with violence if the accused believed that his or her conduct was necessary to defend himself or herself or another person from harm, or to protect property or to prevent deprivation of liberty or a trespass (R v Portelli (2004) and R v McKay [1957]). And the conduct was a reasonable response in the circumstances as the accused perceived them. In the case of murder the bar is very hight, and self-defence will only be available if the person believes that the conduct is necessary to defend themselves or another person from the infliction of death or really serious injury.

The defence of self-defence is not available if the accused was responding to lawful conduct which was known by the accused at the time to be lawful (section 322L). Further, a person who instigates an attack cannot then claim that they acted to defend themselves against a counterattack unless their original aggression stopped prior to the retaliation.

There are two elements to self-defence, these are that the conduct was necessary, and the conduct was a reasonable response in all the circumstances as perceived by the accused.

Necessity & Self Defence

A person carries out conduct in self-defence when they believe it is necessary to do so in order to protect themselves or a personal interest.

  • This is a subjective test and focus’s on the accused’s belief. (Zecevic v DPP (1987); Viro v R (1978)).
  • The belief must have been genuinely held whether that belief was mistaken or not is not relevant, but it may go to whether the trier of fact determines whether the belief was genuinely held (R v McKay [1957])

Intoxication,  Self-Defence & Necessity

In relation to self-induced intoxication, in determining whether an accused person has a ‘reasonable response’, s322T of the Crimes Act 1958 operates to exclude the trier of fact from taking into account the intoxication of the accused. But that is not the end of the story, self induced intoxication will still be relevant when assessing whether the accused person believed their actions to be necessary based on the circumstances as they perceived them (R v Katarzynski [2002]). It is a fine distinction but an important one to understand. Consider the following two examples.

Examples of Self Defence

Example 1

Person A is intoxicated. Person B attacks person A with a small stick. Person A perceives due to their intoxication that person B is attacking them with a knife. Person A stabs person B. Person A’s intoxication would be relevant to their assessment of the perceived threat and the necessity of their conduct in response. Intoxication would not be relevant to an assessment of the reasonableness of that response, this would be assessed on the basis of a sober person responding to being set upon with a knife. 

Example 2

Person A is intoxicated. Person B attacks person A with a small stick. Person A realises that person B is attacking them with a small stick but due to their intoxication, person A overreacts by stabbing person B with a knife. Intoxication is not relevant to the overreaction or unreasonable response of person A.

In example 1, person A could avail themselves of the defence of self-defence as it may be considered a ‘reasonable response’ to stab someone that you thought was trying to stab you. In example 2, person A could not avail themselves of the defence of self-defence as it would be unlikely to be considered a ‘reasonable response’ to stab someone that was attacking you with a small stick.  

What is a Reasonable Response?

The conduct must be a ‘reasonable response’ to the circumstances as the accused perceived them. ‘Reasonable response’ is an objective test. ‘Circumstances as the accused perceived them’ is a subjective test. If the trier of fact is satisfied that there is a reasonable possibility that the accused’s exercised a ‘reasonable response’ when considered in the context of the circumstances as perceived by the accused, then the accused must be acquitted (Presidential Security Services of Australia Pty Ltd v Brilley (2008)).

In determining whether the accused’s response was a reasonable one, it is a matter for the trier of fact to determine what to take into account. What is being assessed is the ‘reasonable response’ of the accused, not that of a reasonable person, so the accused’s attributes must be plugged into the matrix. There is no exhaustive list but somethings that might be considered are, age, gender, state of health and other surrounding circumstances, proportionality, prior relationships with victim and other matters that might have been known to the accused.

Family violence & Self Defence

Evidence of family violence is expansively defined in section 322J of the Crimes Act, this is relevant to self-defence and the associated defences. Section 322J of the Crimes Act defines ‘violence’ means physical abuse, sexual abuse, psychological abuse, property damage, intimidation, harassment or threats and the exposure of children to such abuse. It is behaviour committed by a family member against a current or former parent, child or any other member of the household.

As per section 322J(1) evidence of family violence includes proof of any of the following:

(a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;

(b) the cumulative effect, including psychological effect, on the person or a family member of that violence;

(c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;

(d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;

(e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;

(f) social or economic factors that impact on people who are or have been in a relationship affected by family violence.

In cases involving allegations of family violence this information may be relevant in determining whether the accused believed his or her conduct was necessary, or whether the behaviour was a ‘reasonable response’ in the circumstances (section 322M(2))

The requirements of proportionality and imminence may be relaxed when the offence occurs in circumstances of family violence section 322M(1). Pre-emptive violence may be excused due to family violence (Osland v R (1998)), the accused is entitled to take steps to prevent the attack before it begins. Evidence of family violence can affect the formation of the accused’s belief in necessity in situations where the accused is responding to a harm that is not immediate; and/or the response used force in excess of the force of the perceived threat.

Onus of Proof

Once the question of self-defence is raised by the defence, and sufficient evidence is presented to support it, the legal onus is on the prosecution to prove beyond a reasonable doubt that the accused did not act in self-defence (section 322I).

Conclusion

Self-defence is an available defence for any offence that involves the use of force or the threat of force against a person or their property. It must be necessary and proportional given the circumstances, unless in the setting of family violence. As is always the case, the above information can not be taken as legal advice. If you have been charged in relation to assault related offending  and you feel self-defence might be relevant to your case, then you should call our office for advice. 

Suicide Pact

The Defence of Suicide Pact

A suicide pact is an agreement between two or more people with the goal of death for all involved, whether or not each is to take his/her own life or be assisted by another, it may be done together or separately and will likely be close in time. A suicide pact is a partial defence to murder. If used successfully, the survivor of a suicide pact will be guilty of manslaughter as defined under section 6B of the Crimes Act 1958 (Vic). Manslaughter as a result of suicide pact carries a maximum of 10 years vs s5 of the Crimes Act 1958 that stipulates a maximum of 25 years for manslaughter not relating to a suicide pact.

The circumstances and the facts will have a bearing on the penalty.

During a murder trial, if defence show that an accused did cause or was directly involved in causing the death of another person by a wilful act or omission in the setting of a suicide pact then the jury might return a verdict of manslaughter per s6B of the Crimes Act 1958. To do so it must be proven that:

  • There was an understanding between the accused and the deceased to seek the death of all parties to the agreement;
  • The accused’s acts that caused the death of the deceased were committed in accord with a suicide pact; and
  • At the time s/he caused the death, the accused had the intention of dying as per the agreement.

The maximum penalty for manslaughter by suicide pact in these circumstances is ten years’ imprisonment.

The Crimes Act also includes provisions for suicide pact in which a party to the pact is not directly involved in the killing but encourages suicidal behaviour. A person will be guilty of manslaughter by suicide pact under section 6B(2) of the Crimes Act where that person:

  • incites any other person to commit suicide and that other person commits or attempts to commit suicide in consequence thereof; or
  • aids or abets any other person in the commission of suicide or in an attempt to commit suicide; and
  • commits either of the above offences as part of a suicide pact (‘being a party to a suicide pact’). 

The maximum custodial sentence is five years in these circumstances.

The defence is not available to someone, who knowing another person is party to a suicide pact, kills them, but the accused was not a party to the agreement. There must be proof of the existence of an actual suicide pact, and the person who caused the other person’s death must have been a party to it. An honest and reasonable belief in the existence of a suicide pact is not a sufficient defence either (R v Iannazzone [1983]). Nor can this defence be used where one stands by passively when another person commits suicide (H Ltd v J (2010)).

Incorrect Charges

Incorrect Charges (Wrong Charges)

Occasionally incorrect charges are laid that do not reflect the circumstances of the alleged offending; or they are laid using provisions that no longer exist because they have been abolished or amended by Parliament, in these circumstances, police will have laid incorrect charges.

Example of incorrect charges being laid

If a person is charged with robbery, defined as theft by intimidation or force, instead of theft in a situation when there is no evidence that there was any intimidation or force, this would be an example of where the police have laid incorrect charges. Although in this instance, a finding of guilt in relation to theft would be permissible as theft is an alternative verdict to robbery.

If incorrect charges are laid, then it would be rare to inform the prosecution at an early stage as this would give them the opportunity to cure the defect.  If they then proceed to a hearing or trial with incorrect charges, it is usually at the time of the closing of evidence when a prosecutor might twig to the defect and at this time it is too late.

There are other circumstances this defence may be used, particularly in relation to alleged sex offences which occurred some time ago. Recent changes to the legislation mean that the prosecution will sometimes lay the more recent charge instead of the older one that applied at the time of the alleged offence. A perfect of example of when this can happen relates to indecent assault. This charge has changed multiple times over the last 70 years and sometimes the police will lay the charge based on the wrong legislation. At the bottom of the above article on indecent assault, you can see how many times that charge has changed.

Depending on the wording of the charge and depending on when the prosecution discovers the error, will determine whether the fact that incorrect charges have been laid, will lead to a withdrawal. Any forensic assessment of this type of defence should only be considered after careful consultation with an experienced criminal lawyer.

If you are looking to avoid a criminal record, then make sure you call our office as we are experts when it comes to establishing a criminal defence.

Emergency

Sudden or extraordinary emergency

The defence of sudden or extraordinary emergency is available where an accused who is compelled by threats or emergency has no other reasonable option but to commit an offence.

In Victoria, the defence of sudden or extraordinary emergency applies to all offences. For the offence of murder, the emergency must involve a risk of death or really serious injury.  The provision states that a person is not guilty of an offence for conduct done in circumstances of sudden or extraordinary emergency if the person reasonably believed that the conduct was the only reasonable way to deal with the emergency. The conduct must have been an appropriate response to the emergency.

There are two distinct rationales for the defence:

  1. The conduct of the accused is regarded as justifiable if it caused less harm than that which it avoided — this may be described as the ‘greater good’ principle.
  2. The conduct of the accused is regarded as excusable due to the grave predicament confronting him or her. The law would be unduly harsh if it demanded more from the accused than could be expected of ordinary people when faced with similar threats or dangers.

Section 322R of The Crimes Act 1958

Section 322R of the Crimes Act 1958 (Vic) describes the defence of sudden and extraordinary emergency; it states that:

(1)     A person is not guilty of an offence in respect of conduct that is carried out in circumstances of sudden or extraordinary emergency.

(2)     This section applies if—

(a)     the person reasonably believes that—

            (i)     circumstances of sudden or extraordinary emergency exist; and

            (ii)     the conduct is the only reasonable way to deal with the emergency; and

(b)     the conduct is a reasonable response to the emergency.

(3)     This section only applies in the case of murder if the person believes that the emergency involves a risk of death or really serious injury.

The Test in Relation to the Defence of Emergency

The test is whether, on the version of evidence most favourable to the accused, a jury or other trier of fact, acting reasonably, could fail to be satisfied beyond a reasonable doubt that the accused was not operating under necessity or emergency – s 322I Crimes Act 1958 (Vic).

The way a person reacts needs to be proportional to the level of harm or peril they are facing: R v Loughnan [1981]. The act committed by the person needs to be weighed up against the harm the person would have experienced had they not acted in that manner due to the emergency.

Case examples of sudden or extraordinary emergency

As you might imagine, there are limited circumstances where this defence can be successfully argued. The cases that discuss this defence describe the circumstances as needing to be extremely unusual and limited to a defendant being confronted by sudden and extreme circumstances where the danger is imminent.  In R v GV [2006] QCA 394 the Court found there were facts establishing the defence of extraordinary and sudden emergency. In that case the defendant was charged with dangerous driving causing grievous bodily harm in circumstances where he was being chased by another vehicle and he and the passengers of his vehicle had been attacked and threatened. 

However in R v Dimitropoulos [2020] QCA 75  a man charged with unlawfully producing the dangerous drug cannabis unsuccessfully ran the defence of emergency. He attempted to rely upon a honest and reasonable, but mistaken belief, that using cannabis was the only means available to him to alleviate his chronic pain resulting from a motor vehicle accident.

Likewise in the decision of Lynch v Commissioner of Police [2022] QCA 166 the appellant charged with producing and possessing cannabis unsuccessfully argued that she was faced with a sudden emergency, namely unbearable physical pain caused by a chronic illness, which could not be treated adequately with prescription medication without extreme side effects. 

The Evidentiary Burden

A person charged with a criminal offence is not guilty if they can show that they committed the acts because of a sudden or extraordinary emergency that would have caused any person with ordinary powers of self-control to act the same, see Luong & Anor v DPP (Cth) [2013]. The evidentiary burden is always on an accused to raise the issue of necessity. The prosecution must prove that the actions were unreasonable in the circumstances beyond a reasonable doubt.

Whether or not this defence is open depends entirely on the facts of the matter. It is a very difficult defence to prove and requires a great deal of work and preparation. Dribbin & Brown have successfully run this defence in Court. If you think it may be applicable to you please contact our office to make an appointment with one of our criminal defence lawyers. 

Honest and Reasonable Mistake

Honest and Reasonable Mistake Of Fact

The defence of “Honest and Reasonable Mistake” is only available for strict liability offences. A strict liability offence is an offence that does not require a fault element (intention, knowledge or recklessness on behalf of the accused). Further, the prosecution does not need to prove that the accused intended to commit the alleged offence.

Having an honest and reasonable mistake as to a set of facts can make a defendant’s act innocent, providing vindication for doing what would otherwise be a criminal offence. The defence has three elements:

  • The mistake must be honest (subjective);
  • The mistake must be reasonable (objective); and
  • The mistake must be as to fact and not law.

An honest and reasonable mistake can be used to argue that an accused did not realise or know that what they were doing was unlawful because of the mistaken fact. Many charges can be defended using this defence, most commonly it is used to defend driving whilst disqualified or driving whilst suspended charges. It is also often used to defend the charge of ‘Dealing with Property Suspected of Being the Proceeds of Crime’ (section 195 of the Crimes Act 1958 (Vic)).

For this defence to be successful, both components, ‘honest’ and ‘reasonable’ must be established. Commonly only the first element is met. Any consideration of reasonableness should be made in consultation with an experienced criminal lawyer prior to proceeding to Court. 

Strict Liability

Strict liability offences are those that do not require proof of fault or intent per se’. An example is driving whilst suspended. For police to prosecute this offence they only need to prove that the accused person was driving on a road during a period in which their driver’s licence was suspended. Not that they intended to drive whilst suspended. In this example the accused person might claim that they were not notified of their suspension by VicRoads and therefore are not at fault. This would form the accused’s honest belief. There however would then need to be an assessment of whether the belief held by the accused was reasonable. The accused would raise the evidentiary burden and it would then be incumbent upon the prosecution to establish beyond a reasonable doubt that the belief was either not honest or reasonable or both. If the accused did not raise the defence then it would not be incumbent on the prosecution to provide the element of intention. 

The burden of establishing honest and reasonable mistake

As explained in He Kaw Teh v The Queen [1985),the evidentiary burden is on the accused to establish the defence of Honest and Reasonable Mistake, but once raised the onus shifts to the Prosecution to show that no such belief existed. The prosecution must prove this beyond a reasonable doubt.

The case on point in relation to the defence of honest and reasonable mistake of fact is Proudman V Dayman [1941].

Is the belief honest?

The Proudman defence requires a positive belief to have been formed by the accused, not merely ignorance. 

In the case of Knight it was established that if the trier of fact finds that an inference or hypothesis consistent with innocence is open on the evidence, they must give the accused the benefit of the doubt in relation to that inference, this applies to the consideration of what might be an honest belief (Knight v R (1992) 175 CLR 495).

If the belief reasonable?

The accused must expressly turn his or her mind to a particular fact and make an honest mistake which was reasonable in the circumstances— as opposed to not considering the matter at all – He Kaw Teh v The Queen [1985].

The leading case on reasonableness is found in the case of Mei Ying Su and Others v Australian Fisheries Management Authority and Another (no2) (2008) at paragraph 106 where the court stated

a) It does not involve the hypothetical ordinary or reasonable person test.

b) It requires that the belief be that of the accused

c) It requires that the accused’s belief be objectively reasonable, that is, rational, based on reason, or capable of sustaining belief and

d) It requires the objective reasonableness of the accused’s belief to be assessed by reference to the subjective circumstances in which the accused was placed, including the accused personal attributes and the information available to him at the time.

When the accused successfully shows that s/he acted due to a mistaken belief the prosecutions must show beyond a reasonable doubt that no reasonable belief was held. If the prosecution cannot do this the accused will be acquitted.

Application of the Defence

As explained, the defence is only available in relation to strict liability offences. Circumstances in which an accused could utilise this defence include:

  • Driving whilst authorisation suspended
  • Indecent act, mistake as to age
  • Dealing with Property Suspected of Being the Proceeds of Crime
  • Failing to stop/render assistance/report to police (that is mistake as to an accident occurring)

Consider the following example; an accused did not know they were suspended from driving because they did not receive a letter notifying them of this from VicRoads. The notification was delivered to their former address despite having updated their address with VicRoads. This person in these circumstances may be able to establish the defence of honest and reasonable mistake. If on the other hand the person had not updated their address then this may be harder to defend, as the Court may find this not to be reasonable, i.e. how do you expect to receive a notice when you have not updated your address. 

If you have been charged with any criminal offending, do not try and represent yourself, you may have a defence open to you, the only way to determine this will be to make an appointment with one of our experienced criminal solicitors. 

Accident

What is the defence of Accident?

The word ‘accident’ is ambiguous. It can refer to an involuntary act or an unintentional act but also to an intentional act with an unintended consequence. When relevant to defending a criminal charge, it is an important concept to understand if you wish to avoid criminal liability.

To rely upon the defence of ‘accident’, an accused person must claim that the alleged offending occurred due to actions that were

  • Unintended,
  • Involuntary and
  • Unforeseeable

Where you are accused of a criminal act and you can demonstrate it came about due to an accident, then you will not be held directly liable for your actions, because you will be negating the element of intent.

Sometimes police find it hard to accept that accidents occur and insist on prosecuting. This is where good criminal lawyers come into the equation.

The Prosecution Must Prove Intent

It important to recognise that it is not up to the accused to prove that the offending is the result of an ‘accident’, but rather, it is up to the prosecution to prove, beyond a reasonable doubt, that the offending was committed voluntarily and intentionally.

If an act is committed independently of an accused’s will, the act is involuntary and will be considered an accident at law. Using property damage as an example, where it is alleged that an accused has damaged another persons property by kicking, in circumstances where the accused person has tripped over and as a result of falling, has accidentally kicked and broken the other person property. The accused person in this situation could rely upon the defence of accident in relation to this offence, by creating a reasonable doubt as to the element of intent.

In some cases, the defence of accident might be available in relation to a unintentional consequence of an intentional act, that is, it was unintentional that certain consequences would flow from the initial intended act. In some circumstances this may negate criminal liability in relation to a serious charge requiring intention, but leave an accused person susceptible in relation to a lesser charge, that might only require recklessness or negligence.

Example of the Defence of Accident

A person shooting an arrow at a target, where the accused person has missed the target and hit a nearby bystander. In these circumstances the accused person has accidentally hit the bystander but maybe guilty of an offence by way of recklessness or negligence.

The defence of accident is really an alternative explanation to the prosecutions theory of a case. That is, the accused did not act with intention, but accidentally has caused the damage or injury. It has long been established that there is no such defence in Victoria (R v Fowler [1999] VSCA 135), nevertheless the principle must be understood as it can be relevant to negating the prosecutions case.

Care must be taken not to reverse the onus of proof by suggesting that it is for the accused to establish the “defence” of accident. The onus always remains on the prosecution to prove voluntariness and intention beyond reasonable doubt. If it is is the case that an alternative explanation of ‘an accident’ is raised by the defence the Prosecution will need to prove beyond reasonable doubt that the accused’s actions were not accidental (Zecevic v DPP (1987) 162 CLR 645).

To expand on our first example, the defence of ‘accident’ is often used in cases where the offence contains an element involving intention. In circumstances where an accused person is charged with criminal damage, the prosecution must prove the following elements beyond reasonable doubt;

That the Accused-

  1. Intentionally
  2. Without lawful excuse
  3. Damages property
  4. Belonging to another or himself and another

(See Crimes Act 1958 s. 197 (1))

Section 197 (4) goes on to say:

“For the purposes of subsections (1) … a person who destroys or damages property shall be taken as doing so intentionally if, but only if—

(a)     his purpose or one of his purposes is to destroy or damage property; or
(b)     he knows or believes that his conduct is more likely than not to result in destruction of or damage to property.”

In the example where the accused has tripped, it is a defence to the charge for the Accused to establish that the damage resulted due to an accident, being the tripping over. In these circumstances the prosecution will not be able to establish the accused intentionally or recklessly damaged the property because it was an accident. 

Impossibility

The defence of Impossibility

The defence of impossibility is a complete defence. An accused person can reply upon the defence of impossibility when it can be established that it was impossible for the accused to have committed the offence. Impossibility may come about because it is physically impossible that the accused committed a crime or because it is factual impossibility for an accused to have committed a crime. 

An accused could raise impossibility as a defence circumstance where:

  • The accused could not have committed the offence due to his or her physical abilities or attributes. For example, if the accused has a medical condition or physical disability that renders them unable to commit the alleged act.
  • The accused was not committing an illegal act. For example, believing to be in possession of a drug of dependence that on testing is revealed not to be a drug at all.
  • The accused was unaware of a legal duty to act. For example, failing to stop and render assistance after a motor vehicle accident because s/he was not aware an accident had occurred. The point should be made here that although it is impossible to stop at an accident you did not know occurred, it would be novel to suggest impossibility, it would be more appropriate to utilise the defence of honest and reasonable mistake of fact in this circumstance.
  • The accused could not have committed the offence/s because he or she was not present at the time the offence has occurred. For example, the accused is charged with committing a burglary on a particular date, but they can produce travel documents proving that they were not in the city/state at that time.

In relation to this last point if an accused person seeks to use an alibi at trial, to show that an offence was impossible, they must notify the prosecution in writing well in advance and outline the circumstances of the alibi, so that the prosecution can make enquiries.

Impossibility and attempt

In Victoria, the law contains attempt provisions that consider impossibility irrelevant to criminal attempt in some circumstances. Section 321N(3) of the Crimes Act 1958 (Vic) states that a person may be guilty of attempting to commit an offence despite the existence of facts, of which he or she is unaware, that make the commission of the offence attempted impossible.  The words ‘may’ in subsection 3 leaves space for the defence of impossibility to apply where what the attempter ‘did’, amounted to a less serious ‘attempt’ crime.

Impossibility can also provide a mitigating factor; the courts are sometimes willing to take into account both the seriousness of the attempted offence and the likelihood of its achievement when adjudicating matters: see Regina v Peckover [2002] and Regina v Taouk (1992).

Depending on the circumstances of an alleged offence, it may be possible to defend the charge based on impossibility. As is always the case, the above document cannot be considered legal advice. If you have been charged with a criminal offence, you should call our office to speak to one our specialist criminal lawyers today, to see if this, or any other defence applies to your case. 

Factual Dispute

This defence arises when an accused person denies any involvement in the crime and/or disputes the circumstances surrounding the alleged offending.

Some examples of a factual dispute are:

  • The identity of the accused is disputed;
  • The accused was not driving the alleged speed;
  • The accused denies the damage was caused by his actions; or
  • The accused admits guilt but disputes some of the allegations made.

These matters are often remedied by collecting evidence to disprove the claims made. 

If you, as the accused, are disputing the facts of your case you need to seek legal advice.

It is not uncommon for defendants to engage criminal lawyers that just want them to enter some form of plea deal. Now sometimes this is the most appropriate way to deal with a case. It might involve risk management and containment of a factual matrix that may be totally aggravating if considered in its entirety before a Magistrate or Judge. A factual argument requires an experienced lawyer who can take your instructions about what actually happened and negotiate with the prosecution to achieve the best possible outcome for you. 

That said, there are also plenty of times where an accused person should not plead guilty and therefore should not accept some form of plea deal.

Whether or not you should resolve your matter early, can only be determined by an experienced criminal lawyer. If there is a way to defend your case, we will find it and if there is not we will be upfront in telling you. At the end of the day it will always be up to you, the client, whether you choose to plead guilty or not guilty.

If you have been charged, please call our office today so that we can provide you with all of your options so that you can make an informed decision in how best to deal with your case. 

Claim of Right

Claim of Right: Defence to Theft and Similar Associated Offences

A claim of right applies when a person holds a genuine belief that they have a legal right over property that they have appropriated.

  • It can be used as a defence if you have an honestly assumed belief about the ownership or entitlement to the money or property.
  • It must be a legal right to the property, not just a moral right.
  • If you raise this defence, it is up to you to establish the evidentiary burden regarding your honest belief in your legal right to the property.

The defence is available to any person who takes money or property, either on their own behalf or on behalf of another, if they believe themselves or another person has a legitimate claim of right to the money or property in question. It does not matter that you did not believe you were entitled to take it in the manner that you did.

A claim of right can be used to defend any criminal offences relating to property, such as theft, robbery, fraud, obtaining property or financial advantage by deception, burglary, and destruction or damage to property.

Claim of right in the eyes of the law

Section 72(1) of the Crimes Act 1958 (Vic) states that a person steals if that person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. Dishonesty means that the accused acted without any claim of legal right see R v Salvo [1980]); R v Bonollo [1981] and R v Brow [1981].

Section 73(2)(a) of the Crimes Act 1958 goes on to confirm that a person’s appropriation of property belonging to another is not to be regarded as dishonest if:

  • the property was appropriated in the belief that s/he has “in law” the right to deprive the other of it, on behalf of himself or of a third person; or
  • if s/he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
  • the owner could not be discovered by taking reasonable steps (applicable where a person finds property or receives property by mistake and the finder or receiver genuinely believes that the owner cannot be identified or located as in R v MacDonald (1983).

Subjective Test

In s 73(2) of the Crimes Act 1958 each form of “honesty” relies upon the accused having held a particular belief. The belief to the claim does not have to be reasonable, but reasonableness may be a relevant factor of a jury in determining if it was in fact held and how plausible the assertion is as in R v Lawrence [1997]. This belief is determined by a subjective test. A subjective test is a test of the culpability of a person’s conduct based on what the person actually believed or knew at the time of alleged offending.

How far does claim of right extend?

The claim of right must extend to all of the property taken, not just to part of it. If it does not extend to the entirety of the item/s; that is the accused believes they have a partial right to ownership, claim of right cannot be applied. It does not matter if the accused’s belief was based on a mistake of fact or a mistake of law. If the accused genuinely believed s/he had a legal claim of right, s/he will not have acted dishonestly (R v Lopatta (1983)) therefore s/he lacks the guilty mind, a vital element to a theft related offence. Further, the accused only need have believed s/he had a legal right to the property. S/he does not need to have believed that s/he had the right to use the measures s/he used to take the property. Even if the accused used violent measures to take the property, s/he should not be convicted of theft if s/he genuinely believed s/he had a right to the property. However, s/he may be convicted of an offence relating to the violence used to obtain the property (R v Bedford (2007); R v Salvo [1980]).

In relation to the charge of Child Stealing, the defence is legislated to protect legitimate guardians.

Section 63 of the Crimes Act 1958 refers to child stealing offences. It also provides a defence to a child stealing charge in that the mother, the father of an illegitimate child, or a person who has claimed a right to the possession of a child cannot be found guilty of the offence of child stealing.

s.63 (1)

No person who has claimed any right to the possession of such child, or is the mother or has claimed to be the father of an illegitimate child, shall be liable to be prosecuted under this or the next succeeding subsection on account of the getting possession of such child or taking such child out of the possession of any person having the lawful care or charge thereof.

Defending Claim of Right

Once the claim is raised in evidence, the prosecution must refute the defence of claim of right beyond reasonable doubt. The accused must show that they held an honest belief at the time of the offence that they did not act dishonestly. The defence has an evidentiary burden to prove this belief. The prosecutions must disprove the claim, they must prove the accused did act deceitfully. Claim of right is a complete defence to theft because the accused lacks mens rea for a theft related offence.

Duress

Defence of Duress

Duress is a complete defence to all criminal offences. An act is committed under duress if it is committed due to an immediate threat of physical harm if the act is not done. This defence recognises that sometimes people commit offences to avoid threatened harm.

Duress operates to excuse a person that acts voluntarily and deliberately but under compulsion ( DPP v Parker [2016] VSCA 101).  A person must reasonably believe that a threat of harm has been made and will be carried out if an offence is not committed. The conduct must be a reasonable response to the threat and the only reasonable way the threatened harm can be avoided.

The defence is only available to the offence of murder if the accused ‘believes the threat is to inflict death or really serious injury.’ see Crimes Act 1958 s 322O(4)

In Victoria, s 3220 of the Crimes Act 1958 currently covers the defence of duress and applies to all offences committed on or after 1 November 2014. Prior to 2005, duress in Victoria was governed by the common law. The Crimes (Homicide) Act 2005 and the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 introduced the new duress provisions into the Crimes Act 1958. Initially s 9AG of the Crimes Act 1958 was introduced, which was later repealed by s 3220 of the act. 

Statutory duress has replaced the common law defence of duress for all offences committed on or after 1 November 2014 ( see Crimes Act s 322Q). Common law duress however applies to all offences committed prior to 23 November 2005 and non- homicide cases committed prior to 1 November 2014.

To run the defence of duress is not easy. If you think the defence might apply to you, then do yourself a favour and call experienced criminal defence lawyers that have run, and won criminal cases based on this defence. 

Meaning of Duress

Duress is threats, violence, constraint, or other action used to coerce someone into doing something against their will or better judgement. To have acted under duress, the circumstances must have been such that the accused’s will was really and absolutely controlled, that s/he became a mere innocent instrument of the crime.

In Victoria, the defence is provided for under section 322O of the Crimes Act 1958 (Vic):

  1. A person is not guilty of an offence in respect of conduct carried out by the person under duress.
  2. A person carries out conduct under duress if—
    1. the person reasonably believes that—
      1. subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and
      2. carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and
    2. the conduct is a reasonable response to the threat.
  3. A person does not carry out conduct under duress if the threat 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 in the case of murder if the person believes that the threat is to inflict death or really serious injury.

Evidence Required to Establish the Defence

There is an evidentiary burden on an accused to raise the defence. When duress is raised, it is up to the prosecution to prove that the act did not occur under duress. The prosecution must eliminate any reasonable possibility that the accused acted under duress – see s 322I(1) Crimes Act 1958.

To prove the accused did not act under duress, the prosecution must disprove one or more of the following elements:

  • The accused reasonably believes that a threat of harm has been made;
  • The accused reasonably believes that the threat will be carried out unless an offence is committed;
  • The accused reasonable believes that carrying out the conduct is the only reasonable way the threatened harm can be avoided;
  • The conduct is a reasonable response to the threat;
  • The threat was not made by or on behalf of a person with whom the accused is voluntary associating for the purpose of carrying out violent conduct.

The test is whether, on the version of evidence most favourable to the accused, a jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the accused was not acting under duress: Taiapa v The Queen [2009].

Duress and Family Violence

Evidence of family violence can be raised by the defence to establish that an offence was committed under duress – see 322P of the Crimes Act 1958.

Defensive Homicide – Defence

Defensive Homicide was introduced by the Crimes (Homicide) Act 2005 section 9AD and was repealed on 1 November 2014 by the Crimes Amendment (Abolition of Defensive Homicide) Bill 2014. It was a relevant defence in relation to the charge of murder.

The defence only applies to offences committed on or after 23 November 2005 and before 1 November 2014. 

The defence was originally created to cater for woman who were being domestically abused. It also provided offenders with mental illness leniency by the courts when they could not rely upon a mental impairment defence. 

Notwithstanding parliament’s original intention, the defence was abolished because the defence was predominantly being relied upon by men who have killed other men in violent confrontations, often with the use of a weapon and often involving the infliction of horrific injuries’, which had led to ‘justifiable community concern that the law, like provocation once did, is allowing offenders to “get away with murder”, see this research paper for more information.

Section 9AD Defensive Homicide stated: 

A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.

Defensive homicide was an alternative to the charge of murder in circumstances where self defence was not made out, that is, the jury could not be satisfied that the accused held a reasonable belief that it was necessary to kill another to protect themselves from the infliction of serious injury or death. In these circumstances it was open for the jury to find the accused was guilty of the lesser charge of defensive homicide.

An example would be where a victim is murdered while asleep and there is significant evidence of family violence which led the offender to commit the offence in such circumstances. 

Essentially the defence is relevant when the accused had a belief that their actions were necessary for self defence, but the grounds for that belief were not reasonable. 

Mental Impairment

The Defence of Mental impairment

The defence of mental impairment is a complete defence to any criminal offence in Victoria. The defence of mental impairment arises when an accused person has a mental illness which can include, senility, intellectual disability, brain damage or severe personality disorder, and as a result of that mental illness, the accused person does not know what they are doing, or if they know what they are doing, they do not understand that it is wrong.

In Victoria the defence of mental impairment is governed by the Crimes (Mental Impairment and Unfitness to the Tried) Act 1997 (CMIA). The current defence was created by s 20 of the act and applies to all criminal offences alleged to have been committed on or after 18 April 1998. Previously the defence was called the ‘insanity defence’ governed by the common law ( now repealed by s 25 of the act).  

Criminal responsibility relies on the assumption that all people have the cognitive capacity to make rational decisions and are aware of the consequences and significance of their actions. The defence of mental impairment exists so that individuals are not held criminally responsible for offending that occurs because of an impairment that has seriously affected their mental capacity. These principles of fairness have existed in the common law for centuries, giving rise to the defence of mental impairment.

What is mental impairment?

The term ‘mental impairment’ is not defined by legislation however the common law has held the term to have the same meaning as “disease of the mind” which formed the basis of the common law insanity defence (R v Sebalj [2003] VSC 181, DPP V Taleski [2007] VSC 183, R v Martin [2005] VSC 518.

The term’ disease of the mind’ is quite broad. It is a legal rather than a medical term and consequently extends beyond medically recognised psychiatric conditions. There is debate about which conditions constitute a disease of the mind for the purposes of the mental impairment defence, and it has been argued that legal definitions of what constitutes a mental condition at law are generally unclear and variable. In Falconer [1990] and R v Radford  (1985) a “disease” of the mind was determined as connoting an unhealthy or “inform” mind, as opposed to a healthy mind affected by a transient, non- recurrent mental malfunction caused by external forces.

The cases of R v Hughes (1989), R v Falconer (1990), and Nolan v R (1997) held that a disease of the mind could include the following:

  • Brain injuries
  • Tumours
  • Episodes of dissociation
  • Epilepsy

A temporary state of intoxication does not constitute a ‘disease of the mind’. Even if the effects of intoxication were so strong that the accused did not know what they were doing or that it was wrong. Nor will it be a defence if the accused became intoxicated knowing it would trigger a disease of the mind. Though in limited circumstances the requirements of the defence may be met if the consumption of drugs or alcohol caused, triggered or exacerbated a condition which is considered to be a ‘disease of the mind’ (for example schizophrenia) in an unsuspected person: see R v Stones (1955); R v Shields [1967]; R v Meddings [1966].

What is a mental impairment defence?

The defence of mental impairment can be raised at any time during the trial either by the defence or the prosecution – s 22(1), Hassan [2004] VSC 85). The accused person bears the burden of proof of and must provide evidence that supports the defence of mental impairment. The evidence provided to the court is usually medical reports prepared by experts who may also be required to give evidence on the issue of mental impairment.

The defence of mental impairment is used where a person charged with an offence, at the time of engaging in behaviour constituting the offence, was suffering from a mental impairment that had the effect that —

  • he or she did not know the nature and quality of the conduct; or 
  • he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people was wrong).

If the defence of mental impairment is established, the person must be found not guilty because of mental impairment – see s 20(2) of the Crimes Mental Impairment and Unfitness to be Tried) Act 1997.

The standard of proof is on the balance of probabilities which means that it is more probable than not that an accused person was suffering from a mental impairment at the time of the offending see R v Whelan [2006]. The balance of probabilities is a lower standard than beyond a reasonable doubt which is the threshold that needs to be established by Prosecution for most criminal offences.

Nature and quality of the conduct regarding mental impairment

The ‘nature and quality of the conduct’ is the limb that focuses on the accused’s capacity to comprehend cause and effect and to understand the characteristics and significance of objects that surround them. The accused must also have been unable to appreciate the physical nature of what s/he was doing. This component is satisfied where the accused’s cognitive capabilities are so lacking that s/he cannot distinguish between animate and inanimate objects (as by treating a doll as a live child) or understand the possible outcome of his or her actions (as giving an intoxicating substance to an infant as a means of soothing it): see Porter v The Queen (1933).

Wrongfulness 

While the accused may know the nature and quality of her/his act, s/he still may not know that the act is wrong. The question is whether or not the accused appreciated at the time of committing the act, that the act was wrong regarding the standards of reasonable people – see Stapleton v The Queen (1952). The focus is on what is morally wrong, and the test is to ascertain whether the accused appreciated that their act was wrong according to the ordinary standards of reasonable people; not whether they were capable of understanding the action was illegal. It means ‘wrong’ in the normative rather than the legal sense. The issue is, was the accused capable of reasoning about right and wrong in the same way ‘ordinary reasonable people’ do as opposed to his/her individual beliefs: see R v Porter (1933).

In contrast to the defence of mental impairment, which is relevant to a person’s conduct at the time of the offence, sometimes an investigation is required to determine if an accused person is mentally fit to stand trial ( see s 11)  In some cases there may be an investigation into both issues.

 What is the court process for mental impairment matters?

If prosecution and defence agree that the accused was suffering from a mental impairment at the time they committed a crime the matter will be heard by a judge without a jury. This is called a consent mental impairment hearing. This usually occurs when both defence and prosecution agree on the findings of specialist medical evidence that has been provided to the court.

Following a consent mental impairment hearing a judge can make the following orders:

  • Find the person not guilty because of their mental impairment
  • Direct that the accused person be tried in the usual way if they are not satisfied that the accused person has a mental impairment

If prosecution and defence do not agree that the accused was suffering from a mental impairment there will be a trial before a jury where expert evidence is called.

The jury will need to determine the following:

  • Whether the accused is guilty or not guilty of the crime
  • Whether the accused person committed the crime but is not guilty because of their mental impairment

If an accused person is found not guilty, they will be acquitted of the offence. If the accused person is found guilty, they will be sentenced by a judge in the ordinary way like any other criminal matter. If the accused person is found to have committed the crime but is not guilty because of their mental impairment, usually the judge will place the person on a supervision order. A supervision order enables a person to be held in appropriate care or in the community to receive treatment.  The length of a supervision order can carry the same maximum duration as the maximum term of imprisonment of the offending.

The court also has the power to unconditionally release the offender however this is rare and would only occur if the offender is not a danger to him or herself or the community.

In the Magistrates’ Court the process is different. If a magistrate finds a person not guilty because of mental impairment the court must discharge the person which means no penalty is imposed.

The defence of mental impairment is complicated and despite the prevalence of mental illness and cognitive impairment in those charged with criminal offences it is rarely utilised as a full defence for a number of reasons. Please be aware that the above document is not legal advice. If you have been charged with criminal offending and feel that mental illness has played a role please make an appointment with one of our specialist criminal lawyers to discuss your case. 

Intoxication

The Defence of Intoxication

In Victoria the defence of intoxication is governed by both statute and the common law. More specifically intoxication can operate to either negate an element of a crime under the common law or play a role in relation to defences as prescribed under section 322T of the Crimes Act. Being intoxicated itself will not provide a full defence to a criminal offence, but it can assist the trier of fact in deciding whether the charge is made out.

Evidence that the accused was intoxicated can be relevant:

  • To negate an element of an offence (e.g., voluntariness, under the common law)
  • To assist in a supporting a statutory defence (see self-defence and intoxication)

Common Law Intoxication Defence

The common law on intoxication remains relevant in respect to non-homicide offences committed before 1 November 2014 and to all offences committed before 23 November 2005. Section 322T of the Crimes Act 1958 (Vic) codifies the defence of intoxication with references to specific statutory defences but the common law in relation to intoxication also continues to apply to all offences, committed on or after 1 November 2014. So in a nutshell, the common law defence of intoxication and the statutory application of intoxication continue to work in unison in Victoria. 

Under the common law, intoxication can rebut either the voluntariness element or the mental element of an offence or both. Evidence of intoxication may demonstrate that the accused’s conduct was not voluntary at the time of the alleged offence, or that the accused did not act with the requisite mens rea; see R v O’Connor (1980). Concerning the actus reus component of an offence, evidence of intoxication is relevant only insofar as the accused may claim that his or her conduct was involuntary. The accused could also argue that s/ he may have been acting voluntarily, but the level of intoxication was so significant that s/he failed to consider the likely consequences of the conduct (s/he was reckless): see (R v Morrison (2007). More broadly, the accused will be refuting the existence of the mens rea required by the crime charged: intention, recklessness, knowledge, belief, or a combination of these factors.

Evidence of intoxication may also be relevant to the following defences:

  • Claim of right (e.g., if the accused believed, due to intoxication, that he or she had a right to possession or ownership of the property in question: see R v Williams [1988];
  • Duress (e.g., if the accused feared, due to intoxication of another, that a threat would be carried out);
  • Mistaken belief (e.g., if the accused believed, due to intoxication, that s/he had permission to enter a property: see Jaggard v Dickinson [1981]).

Crimes Act 1958 Intoxication Defence

Whilst the common law approach still applies in Victoria, since 2005 with the introduction of the Crimes (Homicide) Act and then in 2014 with the introduction of the Crimes Amendment (Abolition of Defensive Homicide) Act, it has been subject to statutory limitations in certain circumstances. The Victorian statutory provisions differentiate intoxication that is self- induced (or voluntary) from that which is not (involuntary). The Victorian legislation is very specific. The key provisions relate to defences and some sexual offences (see section 36B of the Crimes Act 1958 and consent). The current statutory provisions relating to intoxication are found in section 322T of the Crimes Act 1958. This section has not altered the common law position concerning intoxication, voluntariness, and the formation of mens rea. Here we will focus on section 322T of the Crimes Act 1958 which applies for offences committed on or after 1 November 2014.

Section 322T of the Crimes Act 1958 does not define intoxication but does explain it as being under the influence of alcohol, drugs or any other substance. The section applies to defences that include self-defence, duress and sudden or extraordinary emergency.

Intoxication will be considered self-induced unless it came about –

  • involuntarily; or
  • because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or
  • from the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it; or
  • from the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer

Intoxication is considered to be self-induced in circumstances where the person using the intoxicating substance knew or had reason to believe, taking the intoxicant would significantly impair the person’s judgment or control. If intoxication came about involuntarily it can be used as a defence. If intoxication came about voluntarily, then section 322T prohibits an accused’s intoxicated state being taken into account in relation to the prescribed defences.

Where intoxication is not self-induced, in determining the test for ‘reasonable belief’ or ‘reasonable response’, consideration is given to the standard of a ‘reasonable person’, intoxicated to the same extent as the accused person (Crimes Act 1958 – s322T(3)).

In circumstances where intoxication is self-induced if any part of a defence relies on reasonable belief or reasonable response per s322T, consideration is given to the standard of a reasonable person who is not intoxicated. The court will consider what a reasonable sober person (with the other relevant characteristics of the accused) might have believed or done: see DPP v Parker [2016]. The ‘reasonable person’ is a person who possesses the faculty of reason and engages in conduct in line with the community’s standards, the comparison between the accused’s conduct and this ‘person’ is referred to as the ‘reasonable person test’. This is often relevant in relation  sex offences when considering consent (see at the bottom of the linked page, just above the title “Consent as a Defence to Other Offences”)

Evidentiary Burden in relation to Intoxication

The defence bears the evidentiary burden of establishing intoxication whether it be to negate an element or in terms of establishing it as being relevant to a defence. The prosecution still must prove all other elements beyond a reasonable doubt.

Conclusion

Intoxication is not a full defence to a criminal charge (see Viro v R (1978) 141 CLR 88; R v O’Connor (1979)) but may exclude certain elements of a crime or be relevant to establishing a defence depending on how it is being relied upon. As is always the case, this document is not legal advice. If you have been charged with an offence where you say intoxication maybe relevant, you should seek advice from one of our specialist criminal lawyers. Call our office to make an appointment today. 

Automatism

What is the defence of Automatism?

Automatism is a legal defence that refers to an act committed without conscious volition, that is action, occurring in the absence of an accused’s will. Automatism is a complete defence to a criminal prosecution. 

The critical issue is the absence of the accused’s will, not the absence of the accused’s consciousness or knowledge. A person accused of a crime can be conscious but still act involuntarily. In Victoria, the defence of automatism is available under the common law.

Automatism can be used as a defence where the accused committed the offence/s involuntarily; the accused must show they had no control over their actions, performing them without conscious thought or intention – refer to R v Falconer (1990). The term implies total rather than partial lack of control and direction by their will – refer to Milloy v R [1993].

There are two types of automatism:

  1. ‘Insane Automatism’ where the automatism is caused by a ‘disease of the mind’ or mental illness, e.g. schizophrenia, brain injury, tumour, physical diseases that affect the soundness of mental faculties and some cases of dissociation and epilepsy.
  2. ‘Sane Automatism’ where the automatism is caused by something other than a ‘disease of mind’, e.g. concussion, hypoglycaemia, drug induced psychosis, sleep walking and some cases of dissociation and epilepsy.
  3. There are some circumstances where both categories can apply. The preference for defence will always be to rely upon ‘Sane Automatism’ as a successful defence will result in the acquittal of the accused.

Insane Automatism

Insane automatism is a result of a ‘disease of the mind’ and is the reaction of an unsound mind to its delusions or external stimuli. A ‘disease of the mind’ is synonymous with mental illness.

There does not have to be physical deterioration of the cells of the brain, or an actual change in the structure of the brain, for a condition to be a ‘disease of the mind’. To meet the criteria, the accused must have been suffering from some kind of mental disease, disorder or disturbance, not simply excitability, passion, lack of self-control and impulsivity. It exists where a person’s ability to understand that their actions are wrong or harmful are thrown into derangement or disorder. It is essential to distinguish between healthy minds and those suffering from an underlying pathological infirmity. The ‘disease of the mind’ may be permanent or temporary, organic or functional, curable or incurable.

In circumstances where drugs or alcohol are involved, the classification of the resulting state will depend on the role played by those substances. For example, if the accused suffers from epilepsy triggered by drugs or alcohol, the resulting state of automatism will be classified as ‘insane’. But even then the defence is likely to be precluded unless self induced intoxication can be ruled out.

In cases where ‘insane automatism’ is raised, the onus of proving the defence lies with the party that raised the issue. It must be established on the balance of probabilities see the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 21. If successful, the accused will be found not guilty by reason of mental impairment.

Which Court will hear the matter?

All courts can hear the defence of insane automatism depending on the nature of the charge. See more on summary and indictable charges.

If the matter is listed in the County or Supreme Courts, a finding of not guilty in relation to insane automatism enlivens powers that can result in supervisory order being made by the Judge. These orders might involve incarceration at a psychiatric hospital or result in strict supervision in the community.

If dealt with in the Magistrates’ Court the Magistrate has the power to either discharge the accused or find the accused guilty. No supervisory orders can be made. For this reason from an accused’s perspective, it is always better to hear these matters in the Magistrates’ Court where possible. Police prosecutors do not like to run these matters in the Magistrates’ Court for this exact reason, so it is always important that your lawyer is ready to argue jurisdiction in these types of cases.

Sane Automatism

Sane automatism is caused solely by external stimuli and as such does not result from a ‘disease of the mind’. An underlying infirmity triggered by external stimuli, however, will still be considered a ‘disease of the mind’ and could thus give rise to a defence of insane automatism.

For example, if the Accused has diabetes, the type of automatism will depend on the internal or external stimuli. Hypoglycaemia (low blood sugar) is caused by excessive insulin intake and will be considered ‘sane automatism’ because it came about due to external stimuli being the administering of medication. Hyperglycaemia (high blood sugar) is caused by excessive levels of sugar in the blood and is considered ‘insane automatism’ because it is caused by the body’s internal processes or underlying infirmity and results in disease of the mind.

To use another example utilising the facts of a case run by our firm, the accused had made a threat to kill. In this case there were two avenues open to the accused,

  1. Sane automatism by way of sleep walking, Sleepwalking is usually considered to be a form of sane automatism (see, e.g., R v Parks [1992] 2 SCR 871; R v Carter [1959] VR 105; R v Youssef (1990) 50 A Crim R 1).
  2. Insane automatism by way of some dissociative state brought on by post traumatic stress disorder. There was a question mark here because the author of the report referred to some form of nightmare or night trauma that has triggered the event which also had the potential to lend itself to sane automatism.

The standard of proof

  1. Sane automatism requires that defence raise the evidentiary burden and then the prosecution disprove that sane automatism did not exist beyond a reasonable doubt.
  2. In our case, the psychiatrist suggested that “the likelihood of him having been in a state of somnambulism (sleep walking) at the material time, I would rate at the level of possibility”.
  3. Fortunately for us the prosecution had been served the report and had not picked up on the issue and did not challenge the findings in our report. It seemed the police prosecutor was under the misapprehension that it was incumbent upon the defence to establish on the balance of probabilities that automatism (without considering insane vs sane automatism) was the likely cause and considering the report referred to it as being only a possible cause, the prosecutor had neglected to challenge the findings of our psychiatrist, thinking we could not succeed.
  4. Considering the law and considering the findings of our psychiatrist, following the conclusion of evidence the Magistrate found in our client’s favour and made a finding of not guilty by way of sane automatism, as possibility was enough to raise a reasonable doubt.

In cases where ‘sane automatism’ is raised, the onus of proof lies with the prosecution to prove, beyond a reasonable doubt, that the accused acted voluntarily. If, as in our case, it is reasonably possible that the accused acted involuntarily due to a state of sane automatism, they will be acquitted.

The Sound/Unsound Mind Test

The distinction between sane and insane automatism is based on the sound/unsound mind test. This distinction has serious implications because if you, as the accused successfully meet the requirements of sane automatism, you will be wholly acquitted.

If you, as the accused, meet the requirements of insane automatism, the defence of mental impairment applies. You will then be found not guilty because of mental impairment and could be made liable to supervision and placed on a supervision order if in a superior court.

The ‘sound/unsound mind’ approach dictates that a ‘disease of the mind’ must result from an unhealthy mind reacting to extraordinary external stimuli rather than a healthy mind reacting to extraordinary external stimuli. It is not the ‘extraordinary external stimuli’ that determines whether a condition falls within the meaning of ‘disease of the mind’, but whether there is an ‘underlying pathological infirmity of the mind’. So in the above example, mere anxiety triggering a post traumatic response would be a disease of the mind and considered insane automatism, but night terrors or some form of significant shock precipitating the event would be enough to establish sane automatism. In the end, in our case, the distinction did not need to be decided as the Magistrate found that the prosecution did not rule out sleepwalking (sane automatism) beyond a reasonable doubt and subsequently found the defendant not guilty by way of sane automatism.

Conclusion

It is generally considered that it is neither fair nor useful to subject people to criminal punishment for unintended actions or the unforeseen consequences of an act unless these resulted from an inexcusable risk (recklessness). The criminal law has long made a distinction between intentional and unintentional conduct.

Offences for which the defence of automatism is available are those that require mens rea, a guilty mind, ‘an act does not make a person guilty of a crime unless that person’s mind be also guilty’. Criminal acts require a physical action plus a fault element such as intention, recklessness, knowledge or negligence. In other words, the accused must have been acting rationally and not under compulsion. Automatism can be difficult to prove and there has been inconsistency in how courts in different jurisdictions have dealt with cases. Therefore, it takes a skilled legal practitioner to succeed with such a defence.

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