1、CRIMINAL LAW AND PROCEDURE A 072,DEFENCES LACK OF WILL/ACCIDENT/MISTAKE OF FACT IGNORANCE OF THE LAW,Housekeeping,T-Vals. 2 separate T-Vals for the lecture and usual one for the tutorial. First lot of T-Vals in Week 9. All Advocacy Exercises in Moot Court 2 in new Building. Except Friday one stream
2、in Moot Court 3 new building. Be Early! Thursday arvo session (be quiet!) the Kirby J moot will be running.,LAW WEEK,TODAY - PRESIDENTIAL DEBATE at 6pm in LT4TOMORROW - STAFF VS STUDENT DEBATE - 5pm in Cerum Theatre Foyer (Topic: “All criminals should go to law school“)WED/THURS - LSA ELECTIONS - 10
3、am-3pm outside the Law FacultyTHURSDAY - VISIT FROM THE HONORABLE JUSTICE MICHAEL KIRBY - 6pm in Cerum TheatreFRIDAY - LAW BALL - 7pm at the Marriott Hotel, Surfers Paradise.Law Ball sold out, but if you got a seat your tickets can now be collected Monday to Thursday, 10am-2pm outside the Law Facult
4、y.,The 2006-07 LSA presents High Court Justice Michael Kirby This Thursday at 6pm in the Cerum Theatre A FREE presentation followed by refreshments in the Cerum Foyer,Justice Kirby will be speaking as part of Law Week on the topic From law school to the High Court in five easy decades: a review of l
5、essons learned in practice of the law,Defence of Accident in the news,Look at the newspaper the Sergeant Hurly trial. Running accident as his defence. Article from Chief Justice de Jersey on the defence of accident after some recent criticism in the newspaper. It is on iLearn under “Resources” I enc
6、ourage you all to look at it.,Defence- Introduction,Today we are going to look at; Lack of Will (s23 (1)(a) and Involuntariness Accident (s23 (1)(b) Mistake of fact (s24(1) Ignorance of the Law/ Mistake of Law (s22 (1),Students common mistakes,There are two common mistakes students seem to make when
7、 dealing with defences Students second guess themselves and dont discuss a particular OFFENCE because they can see that the fact give rise to a valid DEFENCE against that OFFENCE.,Second common mistake,2. Students write only about a DEFENCEOR start writing down the OFFENCE but before finishing they
8、start writing about the DEFENCE. IT IS IMPORTANT TO ALWAYS READ AND UNDERSTAND WHAT YOU ARE BEING ASKED but if you are asked for what is the “criminal liability and any possible defences that might arise” make sure that you deal with them separately!,What is a defence?,The Butterworths Legal Diction
9、ary defines a defence as;“The evidence offered by the accused to defeat a criminal charge” Eric Colvin et al say; “those claims where, although it is accepted that the elements of the offence occurred, the accused seeks to assert some special justification or excuse for the conduct”,What is a defenc
10、e (cont)?,In this (and other Code states) it is a reference to those sections that will provide a justification or an excuse for what would otherwise be criminal conduct. These defences are sometimes called “exculpatory defences”,Exculpatory defences,Three categories of exculpatory defences: Defence
11、s where personal responsibility for what occurred is denied. Contextual defences, where despite the existence of the necessary fault the conduct has occurred within a broader context which justifies the conduct. Mental Impairment defences such as insanity and one form of intoxication.,What is the di
12、fference between Justification or Excuse?,“Justification tends to be used in the context of conduct which, although perhaps harmful in some respects, is not itself regarded as wrong” “Excuse” tends to be used to describe conduct “that is regarded as wrongful, even though there may be extenuating fac
13、tors which affect the legal responsibility of the conduct”.,The prosecution brings the charge and the prosecution must prove the charge “beyond a reasonable doubt”. The accused has only to point to some evidence supporting the defence then the onus is on the prosecution to disprove (or negative) the
14、 defence beyond a reasonable doubt.,LACK OF WILL,Lack of Will,s23 Intention-motiveSubject to the express provision of this Code relating to negligent acts and omissions, a person is not criminally responsible for- an act or omission that occurs independently of the exercise of the persons will; or a
15、n event that occurs by accident,Accident,Section 23(1)(b) the defence of accident has been interpreted in the case of Kaporonovski v The Queen (1973) 133 CLR 209 at 231-2 by Gibbs J (as he then was) who explained that: “It must be regarded as settled that an act occurs by accident within the meaning
16、 of the rule if it was a consequence which was not in fact intended or foreseen by the accused subjective and would not reasonably have been foreseen by an ordinary person objective”,Lack of Will (Cont),The defence of “lack of will” means “that the relevant physical actions were not under the mental
17、 control of the accused”. That does not mean that a person will escape liability for all unwilled conduct.,Unwilled or involuntary conduct,There are several ways that unwilled or voluntary conduct can occur. One is through external forces. So A pushes B into C. A is guilty of a common assault NOT B.
18、 So the “application of force” by B was not done under the “will” of B. (OSullivan v Fisher) Ugle v The Queen 2002 HCA 25,Unwilled or involuntary conduct (cont.),A second is reflex action. This needs to be distinguished from spontaneous action. The third is when a mental disorder produces a state of
19、 automatism when the accused actions are directed by an unconscious mind. If the mental impairment is a “state of mental disease” or a “natural mental infirmity” then the accused my proceed under s27 Insanity defence rather than s23(1)(a) lack of will.,What is the act for which there is to be a lack
20、 of will?,Section 23(1)(a) say that a person is not criminally responsible for an “act or omission that occurs independently of the exercise of the persons will.” When the section refers to an act, it is referring to some physical movement (Kaporonovski (1973) 133 CLR 209, 231-232). Defining what th
21、e act is can be difficult in a case where (for example) there are a series of act as are involved in shootings. Murray v The Queen (2002) 211 CLR 193,Will and awareness,Will or voluntariness is a necessary but not always a sufficient condition for criminal responsibility. A person may act voluntaril
22、y without appreciating the nature or consequences of the conduct, without being at fault for this lack of awareness.,Mistake of Fact,Mistake of Fact,s24 Mistake of Fact 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
23、is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.,Mistake of Fact (cont),The defense of mistake of fact is not necessary for offence containing mental element of the offence. For such offence th
24、e accused would not need to raise the defense of “mistake of fact” because to prove such a state of mind means that the required mental element of these offence is not made out.,“not criminally responsible to any greater extent”,A successful claim under section 24 will not always result in a complet
25、e acquittal because s24 only provides that the person who makes an honest and reasonable mistake is to be treated as if the facts had been as they thought that they were. Thus you can be guilty of a lesser or different offence.,“reasonable belief”,Section 24 contains the words “reasonable belief”. T
26、his means that a defense under s24 is available only where the mistake was an objectively reasonable one. Also s24 uses the word “honest”. This means that it excludes “inadvertence or ignorance” no matter how “reasonable” the state of mind might be. GJ Coles & Coy Ltd v Goldsworthy 1985 WAR 183,“bel
27、ief in the existence of any state of things”,The phrase in s24 has sometimes been said to cover only matters of present fact and to exclude any belief about the consequences or potential consequence of acts. Gould and Barnes 1960 QdR 283 at 291-2,Section 24(2),Section 24(2)“The operation of this rul
28、e may be excluded by the express or implied provisions of the law relating to the subject”. Exclusions can me express or implied McPherson v Cairns 1977 WAR 28,Ignorance of the Law,Ignorance of the Law,s22 Ignorance of the law-bona fide claim of right Ignorance of the law does not afford any excuse
29、for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.,Why is ignorance of the law no excuse?,Mala in se- a person should know what they are doing is wrong without having to be told. Mala
30、prohibita (or legal regulations) persons should keep up-to-date with what the current law is. Ostrowski v Palmer (2004) 78 ALJR 957,Requirement for publication of the law,Section 22(3) (3) A person is not criminally responsible for an act or omission done or made in contravention of a statutory inst
31、rument if, at the time of doing or making it, the statutory instrument was not known to the person and had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it.,Difference between Ignorance of the facts and ignorance of the law
32、,As we have seen it is sometimes a difficult distinguishes between ignorance of the law and mistake of fact. Example the offence of bigamy. A mistaken belief that a person is not marriage might arise from both a mistake of law and a mistake of fact. If a person believes that their first spouse was d
33、ead and remarried that would be a mistake of fact (see Tolson (1889) 23 QBD 168). Where a person has a mistaken belief that an earlier marriage was invalid because it was with a first cousin, that is a mistake of law (see Kennedy 1923 SASR 183),Claim of Right,Section 22; (2) But a person is not crim
34、inally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.,Claim of Right (cont),A claim of right may be a claim to use property as well as
35、a claim of ownership (see Walden v Hensler (1987) 163 CLR 561). A claim of right need not be a reasonable one moreover it need not have any foundation in accepted legal doctrine (see Walden v Hensler (1987) 29 ACrimR 85 at114). The claim of right must be “honest” and that it must be “without intention to defraud”. However using deceitful or unlawful means to OBTAIN the property does not exclude this defense (Lenard (1992) 57 SASR 164 at 177-8 Walden v Hensler (1987) 163 CLR 561,