LAWS1206 Lecture Notes - Lecture 12: Eof, Common Assault, Anatta
Week 8: Defence
Duress and necessity not examinable
Necessity:
Dougly v stephen: eating the cabin boy
Conjoint twin: there were no real choices, had to be separated to save one
Monday, 24 April 2017
09:16
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
Example for Mary: Defence
Extreme provocation
Automatism
Self-defence
find more resources at oneclass.com
find more resources at oneclass.com
Mary had to believe it was necessary in defence to do what she did : needs
this subjective test
Radford (1985) SASR
will divorced from the act
Whether will goes with the act?
Problem with arguing automatism: awareness of what he was doing…
The act doesn't go with the will: insanity??..... It appears he has PTSD
Automatism : unwilled or involuntary act
Voluntariness/Volition: relevant conduct must be “willed”
a “deed which was not the result of the accused's will to act cannot, in my opinion,
be made the source of criminal responsibility in him.”
Ryan v The Queen (1967) 121 CLR 205 [20] Barwick CJ
Presumption - apparently willed and conscious action is presumed to be
voluntary.
Bratty [1963] AC 386
Ryan (1967) 121 CLR 205
Falconer (1990) 171 CLR 30
Evidential Burden on accused : it is a burden on the accused to produce
evidence raising possibility the act was committed on automatism
Sane automatism- evidential burden
R v Falconer CLR
Result if successfully raised
“..if on the evidence an accused’s acts may have been involuntary as a result of the
operation of events upon a sound mind – as a result of sane automatism – then a
reasonable doubt about the voluntariness of those acts will be sufficient to entitle
him to acquittal.”
find more resources at oneclass.com
find more resources at oneclass.com
Automatism
A particular form of involuntary action/conduct (B & McS 254-255)
Where accused acts in a state of “impaired consciousness” such that their
actions were not an exercise of their will.
“…the critical point, as Barwick C.J. pointed out in Ryan’s case, is that the conduct was
not subject to the control and direction of the will, not the accused’s consciousness or
awareness of his conduct.”
R v Radford (1985) 42 SASR 266, 275 (King CJ)
What if aware of the conduct? : conduct not subject to the control of the will
Sane v Insane Automatism
Sound/unsound mind test (also internal/external)
“The significant distinction is between the reaction of an unsound mind to its
own delusions or to external stimuli on the one hand and the reaction of a
sound mind to external stimuli, including stress producing factors, on the other.”
R v Radford (1985) 42 SASR 266, 276 (key case)
In Mary' case, if Mary was of sound mind, could look at
external factors (such as extreme violence, finally snapped.
Looking at mary as a person in an extreme situation)…
snapped and acted as automatism
Radford: suffering PTSD, reaction of unsound mind
See also recurrence or continuing danger test (B & McS 262).
Non-insane automatism- other examples
blow to head/concussion: R v Wogandt (1983) 33 ACrimR 31;
The act of a sleepwalker: R v Tolson (1889) 23 QBD 168; R v Burgess [1991]
2 WLR 1206; R v Parkes [1992] DLR (4th) 27,
consumption of alcohol or other drugs; R v O’Connor (1980) 146 CLR 64;
BUT NOT if SELF-INDUCED: s 428G CA (can produce a state of non-automatism,
alcohol is an external stimuli on an unsound mind)( need a gross intoxication, need
expert evidence)
hypoglycemia – act arising out of use of insulin: R v Quick & Paddison [1973]
1 QB 910; but not hyperglycemia resulting from failure to take insulin R v Hennessy
[1989] 2 ALL ER 9;
an act done under the influence of an anaesthetic: R v Sullivan (1984) AC 156.
Epilepsy: R v Youssef (1990) 50 A Crim R 1.
Insane automatism
Insane automatism – Is relevant to defence of insanity or substantial impairment of
mind.
Mary case: external stimuli can be very broad, series continuing assaults….
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Conjoint twin: there were no real choices, had to be separated to save one. 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. Mary had to believe it was necessary in defence to do what she did : needs this subjective test. Radford (1985) sasr will divorced from the act. Problem with arguing automatism: awareness of what he was doing . The act doesn"t go with the will: insanity?? Voluntariness/volition: relevant conduct must be willed a deed which was not the result of the accused"s will to act cannot, in my opinion, be made the source of criminal responsibility in him. Ryan v the queen (1967) 121 clr 205 [20] barwick cj. Presumption - apparently willed and conscious action is presumed to be voluntary.
