General Defences

General Defences

There are a number of defences which may be available to a person who has been charged with a criminal offence in Western Australia.  If a court is satisfied that a defence has been shown to exist a person will be found not guilty of the offence charged even though the person committed the elements of that offence.

Self-Defence

This defence is contained in section 248 of the Criminal Code 1913 (WA).  It is a legal justification for the use of force to protect a person from suffering a “harmful act” themselves or to prevent a “harmful act” being done to another person.  Self-defence is relevant to matters that involve assaults including murder and manslaughter.

Harmful Act

Self-defence concerns “harmful acts” which are defined as acts that are an element of an offence to which self-defence applies.  In the context of assault, any use of force that would be considered unlawful would be considered a “harmful act”.

A person who does a “harmful act” does that act in self-defence if:

  • The person believes the act is necessary to defend the person or another person from a “harmful act”, including a “harmful act” that is not imminent;
  • The person’s “harmful act” is a reasonable response by the person in the circumstances as the person believes them to be; and
  • There are “reasonable grounds” for those beliefs.

A “harmful act that is not imminent” can include cases of what is known as “battered-wife syndrome”.  Even though the threat faced might not be imminent, it is still possible that the person can have the necessary belief that they need to act to avoid suffering a “harmful act”.

Who Has the Burden of Raising the Defence?

The burden of raising this defence is on the person charged.  Once the person raises the defence in court, the prosecution must establish either that:

  • the person charged did not believe on “reasonable grounds” that it was necessary to use force in self-defence; or
  • There was no “reasonable grounds” for the person to hold a belief that it was necessary to use force in self-defence.

This means that not only must a person must actually believe that the use of force was necessary, that belief must also be “reasonable” in an objective sense.

Self-defence is a complete defence which means that where it is accepted that a person acted in self-defence they will be found not guilty of the offence for which they were charged.  In circumstances where a person asserts self-defence and their actions are held to be excessive it can still be a partial defence where the person is charged with murder, reducing the charge to manslaughter.

Self-defence is not a defence where a person does a “harmful act” to defend themselves or someone else from a lawful act.  For example, a person cannot rely on self-defence to prevent themselves or another from being lawfully arrested by police.

Use of Force to Prevent Home Invasion

Pursuant to section 244 of the Criminal Code 1913 (WA) a person can use force to prevent a “home invasion”.  This is a defence similar to that of the main self-defence defence.  A person who is the occupant of a dwelling or who is assisting the occupant of a dwelling can lawfully use “reasonable force” which is necessary to:

  • prevent an “home invader” from wrongfully entering the dwelling;
  • eject an “home invader”  who is wrongfully in a dwelling;
  • defend themselves against any violence which is used or threatened by an “home invader” who is attempting to wrongfully enter the dwelling or who is already wrongfully in the dwelling; or
  • To prevent or stop an “home invader” who is wrongfully in the dwelling from committing a further offence whilst in the dwelling.

As with “self-defence”, any force used must be the minimum amount of force which is necessary in the circumstances.  A person cannot use force which is intended to or likely to cause death unless the person believes, on “reasonable grounds”, that violence is likely to be used or is threatened in relation to a person by the “home invader”.

A “home invader” is a person whom the occupant of the dwelling believes on reasonable grounds intends to, or is, committing an offence other than the offence of “wrongful entry”.  This means that the provisions under this section do not apply to the offence of trespass on its own.

Provocation

Provocation can be a complete defence to an offence to which an “assault” is an element which the prosecution needs to prove.  The defence is no longer available to a person charged with murder.  Sections 245-247 of the Criminal Code 1913 (WA) set out the relevant provisions.

Provocation” is defined as being; ”any wrongful act or insult” which is done:

  • To an ordinary person; or
  • In the presence of an ordinary person;
  • To another person who is under their immediate control; or
  • To whom they are in a conjugal, parental, filial or fraternal relationship; and
  • Which deprives the person of the power of self-control and induces that person to assault the person who does the “wrongful act or insult”.

An act which is lawful cannot give rise to the defence of provocation.

A person who is incited by another to assault a person cannot rely on the defence of provocation.  The defence is only available where the person does the assault in response to the “wrongful act or insult” directly to or in the presence of the person.  This means, for example, that a person who is merely told of such a “wrongful act or insult” cannot assault the person responsible and rely on this defence.  A person is also unable to rely on the defence of provocation if they themselves induced the provocation.

Pursuant to section 247 of the Criminal Code 1913 (WA)  a person may also use “reasonable force” to prevent the repetition of an act or insult which has the potential to give rise to a provocation to assault; however, the force used cannot be intended to, or likely to, cause death or “grievous bodily harm”.

Who Has the Burden of Raising the Defence?

The burden of raising this defence is on the person charged.  Once the person raises the defence in court, the prosecution must rebut it “beyond reasonable doubt”.  When a court is considering whether a person was sufficiently provoked to give rise to the defence of “provocation”, it must be satisfied of two things:

  • The person must have been provoked to a degree whereby they were deprived of the power of self-control and then acted in the “…heat of the moment and before there is time for his passion to cool”; and
  • An “ordinary person” who was confronted with the same conduct would have been deprived of their power of self-control.

This means that not only must the person actually have been deprived of the power of self-control, that loss of self-control must be considered as being consistent with whether an “ordinary person” would have reacted in the same way.  In examining how an “ordinary person” would respond the law “…considers man to be a rational being and requires that he should exercise a reasonable control over his passions”.

Duress

Section 32 of the Criminal Code 1913 (WA) provides a defence of “duress”.  The defence of “duress” results in a person being held as not criminally responsible for an act or omission done under “duress”.  Section 32 states that a person does an act or omission under “duress” if:

The person believes:

  • A threat has been made;
  • The threat will be carried out if the offence is not committed; and
  • Doing the act or making the omission is necessary to prevent the threat from being carried out;

and:

  • The act or omission is a reasonable response to the threat in the circumstances as that person believes them to be; and
  • There are reasonable grounds for those beliefs.

The defence of “duress” is not available if the person to whom the threat was made was voluntarily associating with the person who made the threat for the purpose of doing an act or making an omission that would be consistent with acting under “duress”.  This means that if two parties plan to create a situation which has the appearance of otherwise fitting the criteria of “duress”, the defence will fail.  “Duress” is also not available to a person who is engaged in an unlawful purpose in which it would be reasonably foreseeable that a threat could be made.

In assessing the reasonableness of the response it is likely that this defence would fail if there was an option available to the person to negate the threat prior to committing the offence.  Whether another option existed is a subjective question meaning that the person must “reasonably” believe there is no other option.

Emergency

Section 25 of the Criminal Code 1913 (WA) provides a defence of “emergency”.  A person is not held to be criminally responsible for an act or omission if it is done in an “emergency”.  Such an act or omission is done in an “emergency” if:

The person believes:

  • Circumstances of sudden or extraordinary emergency exist; and
  • Doing the act or making the omission is a necessary response to the emergency; 

and:

  • The act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
  • There are reasonable grounds for those beliefs.

The defence of “emergency” is not available in circumstances where the following apply:

  • The defence of “duress” is available;
  • The defence of “provocation” is available, including the related defence of “preventing the repetition of an insult”; or
  • The defence of “self-defence” is available.

If a person raises the defence of “emergency” the prosecution must negate the defence.  If the prosecution cannot do so, the person will not be held to be criminally responsible.

Whether or circumstances will be held to be a “sudden or extraordinary emergency” will depend upon the specific circumstances of each case according to the accepted definitions of “sudden”, “extraordinary” and “emergency”.

In a general sense, circumstances are “sudden” if they arise unexpectedly.  Circumstances are “extraordinary” if it is a situation of “extreme gravity and abnormal or unusual danger”.  A situation which is an “emergency” is generally considered to be a situation which requires immediate action.  To successfully raise this defence, a person needs to give evidence that the situation was an “emergency” which was either “sudden” or “extraordinary” but not both.

Mistake of Fact   

Section 24 of the Criminal Code 1913 (WA) provides a defence of “Mistake of Fact”.  A person is not criminally responsible for an act, or an omission, if the act or omission is done under an “honest and reasonable” mistake of “fact”.  This defence does is not available if the mistake is of the “law”.  This means a person cannot plead this defence if they had a mistaken belief that what they did was legal. 

A simple example of this might arise where a person mistakenly took the wrong bag from a luggage carousel at the airport believing it to be their own.  If the mistake was “honest and reasonable”, the court would hold the person was not criminally responsible for stealing the luggage.

The mistake must be both “honest” and “reasonable”.  This means that they must personally believe the fact/s to exist and that belief must be considered “reasonable” in the circumstances.  Whether it is “reasonable” is considered according to what a “reasonable person” would believe in the same circumstances.  This “reasonable person” has the same personal characteristics of the accused person.  This means that such things as intellectual capacity are taken into account.  Factors such as intoxication or being drug-affected are not considered; neither are cultural or religious beliefs that are contrary to the currently accepted values of the community.

If a person raises the defence of “Mistake of Fact” the prosecution must negate the defence “beyond reasonable doubt”.  If the prosecution cannot do so, the person will not be held to be criminally responsible.

In some cases, this defence may still result in a person being guilty of the offence.  For example, a person who is charged with selling a prohibited drug to a child who was under 18 years of age can still be found guilty of the offence; however, if a court is satisfied the defence is made out in relation to the age of the child, the person will not be subjected to the mandatory imprisonment which would otherwise be applicable.

Legislation May Exclude Availability of Defence

Legislation may make the defence of “Mistake of Fact” unavailable in specified circumstances.  For example, offences under chapter XXII of the Criminal Code 1913 (WA) committed against children under a specified age exclude this defence in relation to the age of the child.  A person cannot raise this defence if they “honestly and reasonably” believed the child was over the specified age.

Insanity

The defence of “insanity” is contained in section 27 of the Criminal Code 1913 (WA), (The Code).  A person is not criminally responsible for an act or omission if it is the result of a mental impairment which is severe enough to deprive the person of the:

  1. Capacity to understand what they are doing;
  2. Capacity to control their actions; or
  3. Capacity to know that they ought not to do the act or make the omission.

Elements of the Defence of Insanity

The mental impairment must exist at the time of the relevant act or omission.

Mental impairment” includes:

  1. Mental illness;
  2. Intellectual disability;
  3. Brain damage; and
  4. Senility. 

A “mental illness” is defined as an “…underlying pathological infirmity of the mind”.  It can be short or long term and does not need to be permanent.  “Mental illness” does not include a condition which results from “…the reaction of a healthy mind to extraordinary stimuli.”  This means that a reaction by a person who does not suffer from an existing condition which is considered normal to extraordinary stimuli cannot be sufficient to rely on the defence of “insanity”.

How is the Defence of Insanity Raised?

A person who is charged with an offence is presumed to be sane, pursuant to section 26 of The Code.  A person who wishes to rely on the defence of “insanity” has the burden of adducing evidence of the “unsoundness of mind”.  This evidence needs to be sufficient to prove the defence on the “balance of probabilities).  Once the defence has been raised, the prosecution have the burden of negating it “beyond reasonable doubt” for it to fail.

Further Information on the Defence of Insanity

Pursuant to section 27(2) of The Code, a person who cannot adduce sufficient evidence to establish the defence of “insanity” to the requisite level may be able to rely on the defence to a limited extent.  If a person can show that they were affected by “delusions on some specific matter or matters” they will only be held to be criminally responsible for an act or omission to the extent of that delusion. 

For example, a person who, as the result of a delusion, attacked another person who they thought was about to attack them, they may be held to be criminally responsible only to the extent that the other person was actually about to attack them.

What Happens if a Person is Found “Not Guilty” by Reason of the Defence of Insanity?

If a person is found “not guilty” of an offence after satisfying a court that the defence of “insanity” exists the effect is not the same as an acquittal.

If a person is found “not guilty” of an offence on the grounds of “insanity” by either the District Court or Supreme Court the outcome will depend on whether the person was tried for an offence contained in Schedule One of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).  Examples of offences contained in Schedule One are:

  • Murder;
  • Grievous Bodily Harm;
  • Sexual Penetration Without Consent;
  • Kidnapping;
  • Robbery; and
  • Criminal Damage.

A person who is found “not guilty” of a Schedule One offence on the grounds of “insanity” in the District Court or Supreme Court must be made subject to a Custody Order.  A Custody Order results in the person being detained in an authorised hospital, detention centre or prison until it is deemed appropriate to release them.  This means that the Court will not impose any length of time for which the person will be detained. The person is detained until it is deemed appropriate to release them.

If the person is found “not guilty” on the grounds of “insanity” of an offence other than a Schedule One offence, the Court hearing the matter may order that the person be:

  1. Released unconditionally if it is appropriate having regard to;
    1. The nature of the offence;
    1. The person’s age, health, mental condition and general character; and
    1. The public interest;
  2. Placed on a Conditional Release Order, Community Based Order or Intensive Supervision Order but only if that would have been a sentencing option had the person been found guilty of the offence; or
  3. Subjected to a Custody Oder.

Intoxication and Stupefaction

Intoxication caused by alcohol and stupefaction caused by drug use can affect criminal responsibility in two ways.  Such intoxication or stupefaction can be either a complete defence or a partial defence.

Intoxication/ Stupefaction and the Defence of Insanity

Pursuant to section 28 of the Criminal Code 1913 (WA) a person can be in such a state of intoxication or stupefaction that they meet the criteria for the defence of “insanity”.  The intoxication or stupefaction must be to the extent of rendering their mind sufficiently disordered that they deprive the person of the:

  1. Capacity to understand what they are doing;
  2. Capacity to control their actions; or
  3. Capacity to know that they ought not to do the act or make the omission.

However, this defence is only available where the intoxication or stupefaction was not intentional.  A person who intentionally consumes drugs or alcohol cannot rely on the defence of “insanity” based on that intentional consumption.

Intoxication/ Stupefaction and Criminal Responsibility Generally

Pursuant to section 28(3) of the Criminal Code 1913 (WA) intoxication or stupefaction may be regarded for the purpose of ascertaining if a person had an intention to cause a specific result when they committed an offence.  For example, if a person is charged with doing an “Act Intended to Cause Grievous Bodily Harm” the prosecution must prove they intended to cause the “grievous bodily harm”.

The fact that a person was intoxicated or stupefied to the extent that it rendered them incapable of being able to have that intent applies whether the intoxication or stupefaction was intentional or unintentional.  That person could still be found guilty of “Causing Grievous Bodily Harm” (where such an intention does not need to be proven) where the intoxication or stupefaction was intentional as the prosecution do not need to establish the specific intention to cause “grievous bodily harm”.

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