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3.8 defences


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3.8 defences

  2. 2. What is the point of a legal defence?    Legal defences allow the accused to argue that they had reduced liability (i.e. they were not responsible for their actions). Most legal defences argue that the accused did not have the necessary mens rea to be found guilty of the crime. Legal defences help to achieve justice for the accused; they allow the judge or jury to be lenient in certain circumstances.
  3. 3. Complete Defences  Will result in the accused being acquitted of all charges Partial Defences  May result in the charge or sentence being reduced
  4. 4. Complete Defences Mental illness or insanity • Difficult to prove • Means the accused was unable to form the mens rea at the time of the offence due to mental incapacitation Involuntary behaviour (automatism) • Means that the accused could not control his behaviour at the time of the crime Mistake • Not usually an appropriate defence • Means that the accused made a genuine and reasonable mistake in committing the crime Self-defence (necessity) • Means that the accused carried out the crime to protect themselves, another or property, to prevent a crime • Force used must be “reasonable” Duress • Means that the accused committed the crime against their free will, because their life was under threat • Not acceptable for murder Consent • Generally used in sexual assault cases • Means the “victim” gave permission for the act • Not acceptable for murder
  5. 5. Partial Defences Provocation • The accused claims that their actions were a direct result of the other person’s actions – i.e. the victim is partially responsible because they caused the accused’s behaviour • No longer a defence in Vic, WA or Tas. In NSW, can only be used to reduce a murder charge to manslaughter. Diminished responsibility • AKA “substantial impairment of responsibility” • The accused claims that they suffer from a mental impairment or abnormality that caused them to act a certain way and commit the crime
  6. 6. Relevant Cases Research these cases. Explain the defence used in each of them.       M’Naghten Test R v Zecevic (1987) R v Williamson (1972) DPP v Morgan and others (1976) R v Camplin (1978) Osland v R (1998)