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Excuses Arising From Necessity Notes

Law Notes > Principles of Criminal Law Notes

This is an extract of our Excuses Arising From Necessity document, which we sell as part of our Principles of Criminal Law Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Principles of Criminal Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Exam


The

Principles

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Criminal

Law

Notes

EXCUSES ARISING FROM NECESSITY

SEMESTER ONE | 139

Notes


The

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Compulsion

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Also known as duress at common law

Criminal Code 1899: s31

Justification and excuse - compulsion (1) A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say---
(a) in execution of the law; (b) in obedience to the order of a competent authority which he or she is bound by law to obey, unless the order is manifestly unlawful; (c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person's presence; (d) when---
(i) the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and (ii) the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and (iii) doing the act or making the omission is reasonably proportionate to the harm or detriment threatened. (2) However, this protection does not extend to an act or omission which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself or herself liable to have such threats made to the person. (3) Whether an order is or is not manifestly unlawful is a question of law.

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140 |

Provides that the accused is not criminally responsible under the following circumstances 4 separate excuses in A-D A & B now mostly covered by PPRA C - self defence but rarely used because of more detailed provisions in s271,272

Exam


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Elements: Accused has acted illegally to save some person or property From a threat of serious harm or detriment Act was necessary o Person who made threat is in a position to carry it out o Accused reasonably believed they were otherwise unable to avoid the carrying out of the threat Doing the illegal act was reasonably proportionate to the harm or detriment threatened o Must be serious

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Elements 1 & 2: Harm or detriment must be serious o 'detriment' could be serious financial or career hardm Need not be a threat of physical harm Threat need not be of immediate harm but threat must be present in mind of A at the time they are committing the crime o R v Hudson

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R v Taylor

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Accused were two young women (17 & 19) who witnessed a fight ft a man they knew. man was charged with wounding someone else and the girls had given statements to the police and were set to be the main pros. witnesses at trial. Before trial they were approached by a man who had a violent reputation who told them if they identified the accused man at trial he would get them and cut them up. Other men also approached them saying they would be hurt if they testified. Girls believed it. On the day of the trial the man was in the gallery and the girls lied in the witness box saying they didn't know the man and hadn't seen him before. Man was acquitted and both girls were charged with purgery. At their trial, they tried to put forward a defence of duress but judge refused. o Agreed the threat must be of immediate harm at the time of committing the crime. o The fact that no threat could have been carried out while they were in the court room was fatal to their claim of acting under duress. Appealed: held the threat must be present in the mind of the accused when the crime was committed. Whether the person had the opportunity/time to make up their mind to commit that criminal act, the existence of a threat is sufficient even if the threat/injury would not follow instantly but even after an interval of time

SEMESTER ONE | 141

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CL defence is similar but not as broad. Does not apply to: o threats of detriment o threats to property o threats to persons (plural)
SS? Taiapa v The Queen

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Element 3: Necessity Person who made the threat must be in a position to carry it out Accused reasonably believes theat there is no other way to avoid threatened action o Subjective belief (s24 might assist) Belief must also be reasonable

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Taiapa v The Queen

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Accused arrested whilst driving a car and a large quantity of cash and meth was found and he was charged with drug offences. Claimed he owed drug dealers $60,000 and they threatened him with a gun saying that if he didn't pay he would shoot him and his pregnant partner. He only got half the money and the dealers agreed that if he collected a package in Sydney and drove it to Cairns they would be even. After the threat, he and his partner moved from Nth Qld to GC and the dealers found him - he collected the package. On his way north, he went to his mother's to collect $30,000 and he was arrested shortly after Appeal: trial judge was right in not allowing duress to go to the jury. Accused testified he didn't believe the police could help thinking the drug dealers were too high up to fall for police sting and didn't know their surnames or addresses. Accused's subjective belief was that police action would be ineffective HELD: no evidence produced to analyse the reasonableness of that belief - provision doesn't exist to protect those who are too timid or those who feel it is easier to comply with demands than seek police assistance No legal requirement to go to the police

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R v Hudson & Taylor

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142 |

Crown tried to submit that the accused should have gone to the police. Police would have protected them and neutraliased the threat Court disagreed, saying police protection is not necessarily effective If there was a legal requirement, the only way this defence could be raised is if the accused were watched for a long period of time

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