After a guilty plea or finding of guilt, the Court...
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Section 418 Crimes Act 1900 states that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence or in defence of another. It provides a complete defence so that the defendant/accused is acquitted.
The accused has to show that there is sufficient evidence to raise the issue of self-defence (evidentiary burden). There needs to be a relationship of perceived attack and a reasonable defence to it, proximity is relevant. The prosecution then has to disprove self-defence beyond reasonable doubt.
Further to above, s 418(2) Crimes Act 1900 requires that the accused was under the belief that they were called upon to defend themselves and that the conduct used was reasonable. Therefore, the test is whether the act of self-defence was genuine rather than ‘reasonable belief of the accused’.
Necessity is a common law defence and unlike self defence which is statute based. It is a complete defence. The question in this defence is whether the accused honestly believed on reasonable grounds that their course of action was necessary to avoid the peril they were threatened with.
The seriousness of the harm which was being avoided, the imminence of that harm and the proportionality between the conduct of the accused and the harm which they were trying to avoid are factors considered when Necessity is raised as a defence. Another factor when considering the defence is whether there were any other reasonable alternatives to the course of accused.
Section 23 of the Crimes Act 1900 NSW deals with the defence of extreme provocation. This defence is available in a trial for murder where-in, if the act causing the death was a result of provocation, murder will be treated as manslaughter. There are certain requirements that need to be met for this defence to be available, they are:
This defence is available where the accused was induced to break the law at the behest of another because of threat of violence to the accused or their family members. The test applied by the Court is if a ‘person of ordinary firmness would have been likely to yield to the threat in the way the accused did’. It must be noted that the threat must have been present and considered is that there must be absence of a safe means of preventing the execution of the threat.
The defence of mental illness can be pleaded by both the Prosecution and Defence. This defence can be used where the accused was labouring under a defect of reason due to a disease of the mind which caused the accused to not know the nature and quality of their act OR not know what they were doing. The term ‘disease of the mind’ means any mental disorder that manifests itself in violence and is prone to recurrence. There needs to be a disorder and more than a mere emotional state of a normal person (which may also be caused by external influences like drugs, alcohol etc.).
This defence may be used where the act of the accused was not voluntary. Although the law presumes that all the acts of the accused are voluntary, under certain circumstances it can be shown that the act done was involuntary. Use of alcohol or drugs may be a factor to determine if the actions were voluntary, however, when they are self-induced this defence cannot be used.
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