LAWS1206 Lecture Notes - Lecture 11: William Gummow, Reasonable Person, Grievous Bodily Harm
Week 7 Defence
Overview of defences
Nature of ‘defences’
arguments in defence v ‘defences’/ complete v partial defences
Self-Help Defences
Self-defence: s 418 CA
Self-defence – excessive force that inflicts death - Partial Defence:
s421
Mental State Defences
Non-insane automatism
Insanity
Substantial Impairment of Mind - Partial Defence: s 23A CA
Extreme Provocation Partial Defence: s 23 CA– from 13 June 2014
The test of self-defence in NSW
is set out in the Crimes Act 1900
NOT in Zecevic
Wednesday, 29 March 2017
16:04
Thinking Like a Defence Lawyer
A new set of categories with their own elements.
Does the brief disclose an argument in defence or a defence?
Do your instructions disclose an argument in defence or a defence?
Do you need more instructions? Do you have to investigate?
What challenges might you face? Are there equality questions here?
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find more resources at oneclass.com
Distinction between argument in defence and ‘defences’
Examples:
raising evidence to weaken the case on AR or MR / automatism and AR
arguments
intoxication and MR arguments
Complete v Partial Defences
Complete (applies to all offences)
a successful defence leads to acquittal (or qualified acquittal)
complete defences are not confined to particular offences.
Partial
A successful defence reduces murder to manslaughter
Recognises reduced level of culpability or blameworthiness
Self-Defence under s 418 Crimes Act
Operation and Availability of the Defence
Burden and Standard of Proof
History of the Defence
Key Elements at Common Law
Understanding the subjective/objective distinction
The test of Self-Defence: s 418 Crimes Act
Subjective Belief in Necessity
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find more resources at oneclass.com
Reasonable response in the circumstances as perceived
Mistake; Mental Impairment; Intoxication
Self-defence – excessive force that inflicts death: s 421 Crimes Act
Battered Women Who Kill
The difficulty understanding the circumstances as she perceived them
to be.
Evidence, approaches and strategies to assist jurors to understand.
Self-Defence under s 418 Crimes Act
(2) A person carries out conduct in self-defence if and only if the person believes the
conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her
liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction,
damage or interference, or
(d) to prevent criminal trespass to any land or premises or to
remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she
perceives (subjectivity) them
s 420 Crimes Act 1900 (NSW)
Self-defence – not available if death inflicted to protect property or trespass to
property
This Division does not apply if the person uses force that involves the intentional or
reckless infliction of death only:
(a) to protect property, or
(b) to prevent criminal trespass or to remove a person committing criminal trespass.
The case of Benjamin Batterham:-
Response to lawful conduct
Common Law
‘Whilst in most cases in which self-defence is raised the attack said to give rise to the
need for the accused to defend himself will have been unlawful, as a matter of law there
is no requirement that it should have been so’.
Zecevic v DPP (Vic) (1987) 162 CLR 645, 657.
s 422 Crimes Act 1900 (NSW)
This Division is not excluded merely because:
the conduct to which the person responds is lawful, or
the other person carrying out the conduct to which the person responds is not
criminally responsible for it.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Nature of defences" arguments in defence v defences"/ complete v partial defences. Self-defence excessive force that inflicts death - partial defence: s421. Substantial impairment of mind - partial defence: s 23a ca. Extreme provocation partial defence: s 23 ca from 13 june 2014. The test of self-defence in nsw is set out in the crimes act 1900. A new set of categories with their own elements. Examples: raising evidence to weaken the case on ar or mr / automatism and ar arguments intoxication and mr arguments. Complete (applies to all offences) a successful defence leads to acquittal (or qualified acquittal) complete defences are not confined to particular offences. A successful defence reduces murder to manslaughter. The test of self-defence: s 418 crimes act. Self-defence excessive force that inflicts death: s 421 crimes act. The difficulty understanding the circumstances as she perceived them to be. Evidence, approaches and strategies to assist jurors to understand.
