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Defences And Excuses Notes

Law Notes > Principles of Criminal Law Notes

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Notes


The

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CODE DEFENCES AND EXCUSES

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s23 and Related Issues

1. 2.

3. 4.

5. 6.

7. Relation with negligence provisions "Not criminally responsible" Distinction between act and event Limb 1 - unwilled act Limb 2 - unforeseeable event (formerly accident) Overlap with insanity, s24, intoxication S23(2) and (3)

Criminal Code 1899: s23

Intention - motive (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for---
(a) an act or omission that occurs independently of the exercise of the person's will; or (b) an event that---
(i) the person does not intend or foresee as a possible consequence; and (ii) an ordinary person would not reasonably foresee as a possible consequence. (1A) However, under subsection (1)(b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.

Negligence Cases: Clear that s23 has no application where criminal negligence alleged. Crown often alleges criminal negligence in alternative where obvious s23 issue. "Not criminally responsible"

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Complete excuse (unlike murder provocation (s304), diminished responsibility (s304A) and excuse under s304B) Onus is on Crown to displace its application (unlike insanity, diminished responsibility, murder provocation).

Limb 1 - Unwilled Act

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Covers 2 broad areas o External force cases
SS? Eg. dog attack o Strange psychological conditions
SS? Sleepwalking
SS? Post concussion behavior SEMESTER ONE | 119

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S23 (1) and (1A) o Act that occurs independently from the exercise of will Distinction between causation and unwilled act o Contrast test of causation
SS? Royall's Case o Causation need only be substantial but s23 may make an individual liable hence tightening the broader liability presented by causation

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Kaporonowski: "Act is some physical action apart from its consequences - the firing of a rifle rather than the wounding, the wielding of a stick rather than the striking or killing of the baby"

Vallance - per rifle Timbu Kolian - per baby Kaprornowski - glass to the eye How broad do we cast our scope when looking at the act?
Most cases it is the three above - doing the act

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Faulkner:

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Firearms case - is it merely the muscular finger act on the trigger that is the act or is it the entirety of circumstances commencing with the contraction?
Refers to the scope of the act P 39, Mason CJ: Discharge of the firearm caused by the contraction of the finger is the act. Defining characters capture more appropriately what is happening - there is something different in character between moving your finger in the air and moving it on the trigger of the gun HELD: discharge of the firearm and NOT JUST the movement of the finger o Discharge of the gun was the act. It is not restricted to the contraction of the trigger finger or extended to the event itself o Expression of what 'act' means: Kitto J - "a bodily action which either alone or in conjunction with some quality of the action or consequence caused by it or an accompanying state of mind entails criminal responsibility

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Murray's Case

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5 member HC case 4 but Kirby identified an error in the onus of proof, requiring a retrial 3, except Kirby and Callinan, under s23 there was no need to direct to an unwilled act o Murray harbored some animosity towards the deceased but was out drinking with him on the day. They went back to Murray's house where the deceased was verbally abusive. Murray got a shotgun, apparently just to scare him. Murray lifted the shotgun to shoulder height and the deceased's arm reached towards the gun. The gun was fired "accidentally"
SS? Gummow & Hayne J: 207-210

* Expansion of what the act is the discharge of the gun rather than the flexation of the finger

* The more microscopically you analyse the act, the harder it will be to find something to fit the act and create further problems

* Acts can be subconscious but still willed

* Walking from one place to another willingly but cannot recall specific steps
SS? Gaudron J: 195-202

* Conclusion, drew upon common law case of Ryan (Common Law Case)

* Pointed a loaded cocked rifle at a service station attendant and tried to tie the attendant up at the same time. The attendant struggled and he pulled the trigger by accident

* HELD: it is impossible to isolate the trigger press as the act. Reflect/automatic reactions have no application where his finger was on the trigger pointed at another person

* "probable and forseeable consequence"

Ugle's Case (WA Code Case)

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Ugle and two other men went to the deceased's flat. There was a disturbance and evidence that the man chased Ugle and others away. Ugle went back later with a knife and the deceased had a baseball bat. The deceased attacked the men and Ugle pushed him and ran away. He didn't realise at the time that he had stabbed the man until he washed his hands and saw blood o Opposite result to Murray Gummow & Hayne J: "Did Ugle put the knife into the body of the deceased or did the deceased impale himself on the knife being held by Ugle?" If the latter, it is not a willed act HELD: If there is some suggestion in the evidence that the victim has impaled himself then there must be a direction on unwilled act SEMESTER ONE | 121

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Stevens' Case

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Kirby & Callinan in this case also (with the same view as in Murray) Dissent from Gleeson & Mason Stevens murdered his business partner. He went into his office and saw the deceased with a gun to his head and hand on the trigger. Stevens lunged to grab the gun in an attempt to prevent him from committing suicide but the gun went off Not a willed act problem but a causation issue o "accident" problem - Limb 2 of s23 threshold of what is necessary to establish evidentiary burden - lowers the bar about whether an exculpatory issue has been raised by the defence

Taiter's Case (QLD case that pre-dates the above cases)

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Ellis' Case

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Driver meant to hit the brakes but accidentally hit the accelerator and caused harm by driving into someone Keane J: p39 - concept of an act embraces human movement... just as a person can be criminally responsible for the consequences of the discharge of a gun only if the discharge of he gun was a deliberate choice by that person, so the appellant could be criminally responsible for the consequences of driving his vehicle forward only if he made a choice to drive the ehicle forward byhitting the accelerator. Just as the discharge of a gun would not be a willed act if the person firing it believed that he was engaging the safety catch, so the hitting of the accelerator was not a willed act if the appellant meant to hit the brake Blurring s23 and mistake cases Overlooks Murray's Case

Limb 2 - Unforeseeable Event:

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"person does not intend or see as a possible consequence and an ordinary person would not see as a possible consequence" - s23 Kaporonowski is source of text in s23 (1(B)) o Overturned suggestion of "direct and immediate consequence test" BUT direct and immediate consequence test was the basis of the "eggshell skull rule"
SS? Martyr's Case

* Overturned by Van Der Bemd's Case o Overturned by s23 (1A) Steindl's Case at 546 sets out history of this and interprets eggshell skull rule in s23(1A) to include artificial lens and the like

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Steindl

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Steindl had just had eye surgery and was punched in the face, dislodging and damaging artificial lenses and causing GBH Abnormality might well be a consequence of surgery and should be considered within the eggshell skull rule o No say on cosmetic piercings etc

Does s23 arise in one punch GBH cases?
o Question of whether it was forseeable. It is not necessary to forsee exact facts which occurred, merely that some GBH may occur
SS? Often s23 does NOT arise in such instances

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Grimley's Case

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Man punched in the face and broke his jaw in 2 places. Debate over whether the break was caused by the direct blow or a subsequent fall McPherson J: s23(1B) does not require a direct analysis of the exact chain of events. It is likely that there is a risk of injury behind a punch but not that the jaw specifically would be broken Per Coomer's Case: wasn't necessary for the precise mechanism or nature of the injury incurred just that some type of injury was inflicted

Firearm cases - discharge of the gun is the act not something as microscopic as pulling the trigger

SEMESTER ONE | 123

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Overlaps with s23

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How do ss23, 24, 26, 27 and 28 all act together given the differing onuses and elements o The potentially broad scope of s23 (unwilled act) is read down by s26/27 (insanity), and s28 (intoxication). S24 is unclear

s23 v s24 o Ellis?
SS? Suggests s23 trumps cases where mistake goes to the quality of the act
SS? This removes one of the elements of s24
SS? Criminal negligence does trump s23 o Problems:
SS? Creates two classes of mistake without clear boundary
SS? Eliminates element of reasonableness from s24. o Not all mistakes overlap with s23 however some do
SS? Eg. thinking that a gun is unloaded and aiming and shooting it may not be reasonable and may overlap Intoxication v Insanity o Is drunkenness or drugged state a basis to claim insanity?
o Is it a basis to avoid the strictures of the reversal of onus of proof in insanity and other unhappy consequences
SS? Avoid charges of insanity o s28 - Intoxication
SS? Provisions of s27 apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his or her part by drugs or intoxicating liquor or by any other means

* If you are so drunk you are deprived of the capacity in s27 that could be a defence ONLY if you didn't know you were getting drunk - Cannot be self inflicted or intentional per s28 (2) which tightens the provisions (in these cases you can only rely on s28 (3) in relation to intention) o Eg. drink spiking
SS? INTOXICATION IS NOT, AS A GENERAL PROPOSITION, A DEFENCE but might have an impact on the question of intent o Bromage's Case o Pitt's Case
SS? Two cases where both intoxication and insanity were used in conjunction to create a defence, hence why subsection 2 is present in s28

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