The Criminal Code provides a range of defences which if made will result in an acquittal. The defences here are the main defences and more than one defence may apply depending on the criminal charge/s and the underlying facts of the case. For further understanding, please talk directly with one of our Criminal Lawyers.
Defence of Accident
The legislation which deals with this is the Criminal Code Act 1913 at Section 23B. It provides as follows:
(1) This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2) A person is not criminally responsible for an event which occurs by accident.
(3) If death or grievous bodily harm —
(a) is directly caused to a victim by another person’s act that involves a deliberate use of force; but
(b) would not have occurred but for an abnormality, defect or weakness in the victim,
the other person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.
(4) Subsection (3) applies —
(a) even if the other person did not intend or foresee the death or grievous bodily harm; and
(b) even if the death or grievous bodily harm was not reasonably foreseeable.
Defence of Duress
The legislation which deals with Duress is the Criminal Code Act 1913 at Section 32. It provides as follows:
(1) A person is not criminally responsible for an act done, or an omission made, under duress under subsection (2).
(2) A person does an act or makes an omission under duress if —
(a) the person believes —
(i) a threat has been made; and
(ii) the threat will be carried out unless an offence is committed; and
(iii) doing the act or making the omission is necessary to prevent the threat from being carried out;
and
(b) the act or omission is a reasonable response to the threat in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
(3) Subsections (1) and (2) do not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of —
(a) doing an act or making an omission of the kind in fact done or made by the person under duress; or
(b) prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.
Defence of Emergency
The legislation which deals with this defence is the Criminal Code Act 1913 at Section 25. It provides as follows:
(1) This section does not apply if section 32, 246, 247 or 248 applies.
(2) A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
(3) A person does an act or makes an omission in an emergency if —
(a) the person believes —
(i) circumstances of sudden or extraordinary emergency exist; and
(ii) doing the act or making the omission is a necessary response to the emergency;
and
(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
Defence of Honest Claim of Rights
The legislation which deals with this is the Criminal Code Act 1913 at Section 22 (2). It provides as follows:
A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
Defence of Insanity
The legislation which deals with this is the Criminal Code Act 1913 at Section 27. It provides as follows:
(1) A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2) A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
Defence of Intoxication
The legislation which deals with Intoxication is the Criminal Code Act 1913 at Section 28. It provides as follows:
(1) Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.
(2) Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.
(3) When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed
Defence of Mistake of Fact
The legislation which deals with this is the Criminal Code Act 1913 at Section 24. It provides as follows:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
Defence of Provocation
The legislation which deals with Provocation is the Criminal Code Act 1913 at Section 246. It provides as follows:
A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he 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 his passion to cool; provided that 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.
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 him 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.
Defence of Self-defence
The legislation which deals with Self-defence is the Criminal Code Act 1913 at Section 248. It provides as follows:
(1) In this section —
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).
(3) If—
(a) a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and
(b) the person’s act that causes the other person’s death would be an act done in self-defence under
subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,
the person is guilty of manslaughter and not murder.
(4) A person’s harmful act is done in self-defence if —
(a) 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; and
(b) the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
(5) A person’s harmful act is not done in self-defence if it is done to defend the person or another person from a harmful act that is lawful.
(6) For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.
