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Criminal Responsibility Notes

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Notes


The

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CRIMINAL RESPONSIBILITY

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Defences, excuses and justifications Defence o Defences is fairly wide
SS? Any trial strategy that results in an acquittal including putting the prosecution prove it.

* eg. pleading not guilty
SS? Creating reasonable doubt about the element of the defence
SS? Taking advantage of some procedural irregularity o Any claim by the accused, the proof of which would result in an acquittal
SS? Self defence
SS? Provocation
SS? Duress
SS? Insanity o Concept of defence depends on context
SS? Distinguish excuse, justification

* Onus of proof: usually evidentiary onus on A, persuasive onus on D

* But, for a defence - persuasive onus is on A to probe elements on balance of probabilities o Distinguish excuse & justification
SS? TEXTBOOK: Colvin p284

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Prow's Case

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It is lawful for = justification Person not criminally responsible for = excuse o Conduct which is justified is not, in every instance, wrong o Justification is higher than excuse

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Provocation Provocation and self defence are quite regularly run as a co-defence

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Masciantonio (1994) CLR 58

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Involved an Italian man who came to Australia and worked as a concreter. Married an Italian woman and had three children Recorded an accident that caused him to develop a head injury Daughter had a troubled marriage - he was violent and in debt. She borrowed money from her father to pay the debt o Shared the debts 50/50 and she was also to care for the children
SS? They got back together He invested his assets in his own names and used hers as if they were his own Argued over going on a trip to Italy Husband didn't show up to a family function, instead going to a bar o When she got home, her TV was missing The day after, the father tried to contact the husband. Eventually he confronted him and said "can you do something better for my daughter." He said "piss off" and aimed a missed kick at him and pushed him over causing an elbow injury A fight followed. The father got a knife and stabbed the husband. Husband walked away but the father followed and stabbed him again HELD: Murder - no provocation allowed to be considered ON APPEAL: High Court said provocation should have been left for the jury o At common law, the excuse applies only to murder - NOT IN THE CODE
SS? Successful provocation defence reduces murder to a conviction for manslaughter ONLY

* Mainly used when avoiding the death sentence/life imprisonment
SS? Therefore not a complete defence, only transforming murder o Concession to human frailty
SS? An accused has committed murder and lost control but, under those circumstances, provocation states that any reasonable and ordinary person would have also lost control

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Two types of provocation: Criminal Code 1899: s268

Provocation

(1) The term provocation, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under the person's immediate care, or to whom the person stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered. (2) When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault. (3) A lawful act is not provocation to any person for an assault. (4) An act which a person does in consequence of incitement given by another person in order to induce the person to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault. (5) An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality. s269

Defence of provocation

(1) A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person's passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm. (2) Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.

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s268 is an expansion of the common law and is a complete defence under s269

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Kaporonovski v R

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Accuesd was convicted of GBH Question for the HC was whether a defence of provocation was applicable?
o Accused drinking at a pub and the victim said something provocative o Accused grabbed the hand of the person, who was holding a beer glass and shoved the glass into his eye
SS? HELD: defence only applies to offences where assault is a legal element, not GBH, regardless of whether an assault was committed

* Common assault - s335

* Serious assault - s320
SS? If assault is an element, it will be present in the provision in the Code

Criminal Code 1899: s304

Killing on provocation (1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person's passion to cool, the person is guilty of manslaughter only. (2) Subsection (1) does not apply if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character. (3) Also, subsection (1) does not apply, other than in circumstances of a most extreme and exceptional character, if---
(a) a domestic relationship exists between 2 persons; and (b) one person unlawfully kills the other person (the deceased); and (c) the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done---
(i) to end the relationship; or (ii) to change the nature of the relationship; or (ii) to indicate in any way that the relationship may, should or will end, or that there may, should or will be a change to the nature of the relationship.

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(4) For subsection (3)(a), despite the Domestic and Family Violence Protection Act 2012, section 18(6), a domestic relationship includes a relationship in which 2 persons date or dated each other on a number of occasions. (5) Subsection (3)(c)(i) applies even if the relationship has ended before the sudden provocation and killing happens. (6) For proof of circumstances of a most extreme and exceptional character mentioned in subsection (2) or (3) regard may be had to any history of violence that is relevant in all the circumstances. (7) On a charge of murder, it is for the defence to prove that the person charged is, under this section, liable to be convicted of manslaughter only. (8) When 2 or more persons unlawfully kill another, the fact that 1 of the persons is, under this section, guilty of manslaughter only does not affect the question whether the unlawful killing amounted to murder in the case of the other person or persons.

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The defence of provocation under s304 applies only to murder and restates the common law Successful provocation defence (excuse) and reduces murder to manslaughter Not even attempted murder o McGhee v R Definition in s268 does not apply to s304 o R v Johnson
SS? S304 draws the definition of provocation from the common law Defence must prove that the person charged is liable to be convicted of manslaughter only (7) About the loss of control

Three Elements of Provocation (same under s239 and s304) Provocative Act

Accused lost self control (subjective test based on the accused)

Provocation so grave that an ordinary person would have been provoked to that extent to lose self control and respond with the same amount of violence (two part objective test based on the notion of the ordinary person)

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Element 1: Provocative Act Are words sufficient to constitute a provocative act o Yes, per s268
SS? "any wrongful act or insult" o Traditionally, at common law, mere words would not be enough however in the Criminal Code it is
SS? this is a clear departure from the common law

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Stingel

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Means wrongful act or any insult Insult need not also be wrongful Unanimous decision

Bedelph (approved in Stingel)

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Insult can be words, signs, acts, gestures or a combination

Stevens

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Three classes of wrongful act o Unlawful (illegal) acts o Breach of someone's lawful civil rights
SS? Eg. pursuant to civil law, court order etc o Act of adultery committed in front of the accused
SS? Not merely an immoral act S268(3) - "lawful acts are not provocative" Lawful acts means "acts expressly declared to be lawful (eg, self-defence, lawful arrest)

Element 2: Actual loss of self control Criminal Code 1899: s269 "person is in fact deprived by the provocation of the power of self control and acts upon it on the sudden and before there is time for the persons passion to cool..." s304 "does the act which causes death in the heat of passion caused by sudden provocation and before there is time for the persons passion to cool

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