General Defences to Crime (VCE SSCE Legal Studies): Revision Notes

General defences to crime

Introduction to criminal defences

In Australian criminal law, when someone is charged with a crime, they may be able to raise a defence – a legal justification or reason that explains why they should not be found guilty. A defence challenges the prosecution's case by providing lawful reasons for the accused's actions. If a defence is successfully argued, it can result in the accused being acquitted (found not guilty) or convicted of a lesser offence instead of the original charge.

Defences fall into two main categories. General defences can be used to challenge a wide range of criminal charges. For example, self-defence can be raised in response to charges of murder, manslaughter, or assault. In contrast, specific defences only apply to particular offences. For instance, the defence of 'right of claim' (honestly believing you own property) only applies to theft charges.

The seven general defences in Victoria

Victorian law recognises seven main general defences that can potentially be raised in criminal proceedings:

1. Self-defence
2. Mental impairment
3. Duress
4. Sudden or extraordinary emergency
5. Automatism
6. Intoxication
7. Accident

Each defence has specific legal requirements that must be met, and each operates differently regarding who must prove what in court (the burden of proof).

Self-defence

Self-defence allows an accused person to argue that their actions, although they caused harm or broke the law, were necessary to protect themselves from danger. This defence recognises that individuals have a right to take reasonable steps to defend themselves when threatened.

Requirements for self-defence:

To successfully raise self-defence, the accused must show that they:

• Believed their actions were necessary to protect or defend themselves from harm
• Perceived their response as reasonable given the circumstances they faced at the time

The belief and perception don't need to be objectively correct – what matters is whether they genuinely held these beliefs and whether an ordinary person in similar circumstances would consider them reasonable.

Application:

Self-defence can be used for violent offences such as murder, manslaughter, and assault. However, it cannot be applied to property crimes like theft, as these don't involve protecting oneself from physical harm.

Mental impairment

The defence of mental impairment recognises that people suffering from serious mental illness may lack the mental capacity to understand their actions or recognise that their conduct is wrong. This defence reflects the principle that criminal responsibility requires mental awareness.

Requirements for mental impairment:

An accused can raise mental impairment if, at the time they committed the offence, they were suffering from mental illness that meant they either:

• Did not understand what they were doing – they had little comprehension of the nature and quality of their actions, OR
• Did not know their conduct was wrong – they couldn't recognise the wrongness of their behaviour, OR
• Could not reason about their conduct – they couldn't think about their actions in the way an ordinary person would

Special verdict:

When mental impairment is successfully established, the outcome is unusual. The accused receives a special verdict of "not guilty by reason of mental impairment" rather than a standard "not guilty" verdict. This doesn't mean immediate release. Instead, the court can impose a secure treatment order, which requires the person to be detained and receive treatment at a mental health facility (such as a forensic psychiatric hospital).

Duress

Duress recognises that people may commit crimes because they've been forced to do so under threat of harm. When someone acts under duress, their actions are not truly voluntary – they're responding to coercion that overcomes their free will.

Requirements for duress:

To successfully raise duress, the accused must have held a reasonable belief that:

• A threat of harm existed against them or someone else
• The threat would be carried out unless they committed the offence
• Committing the offence was the only reasonable way to avoid the threatened harm
• Their conduct was a reasonable response to the threat they faced

All four elements must be present. The accused's beliefs must be both genuinely held and reasonable – meaning an ordinary person in similar circumstances would have formed the same beliefs.

Burden of proof:

Once the defence presents evidence suggesting duress, the prosecution must prove, beyond reasonable doubt, that the accused did NOT act under duress.

Sudden or extraordinary emergency

This defence covers situations where people commit crimes while responding to unexpected, urgent situations. It recognises that emergencies can require immediate action that might technically breach the law.

Requirements for sudden or extraordinary emergency:

The accused must have held a reasonable belief that:

• A sudden or extraordinary emergency existed requiring immediate action
• Their actions were the only reasonable way of dealing with the situation
• Their response was reasonable given the circumstances

The key distinction from duress is that this defence applies to emergencies generally, not just threats of harm from another person.

Burden of proof:

Once this defence is raised with supporting evidence, the prosecution must prove, beyond reasonable doubt, that the accused did NOT act in circumstances of sudden or extraordinary emergency.

Automatism

Automatism is one of the rarest and most difficult defences to establish successfully. It applies when someone's actions are completely involuntary because they have no conscious control over their body movements.

Requirements for automatism:

To raise automatism, the accused must show they committed the offence involuntarily due to having:

• Total loss of control over their bodily movements at the time of the offence
• No conscious awareness of what they were doing
• No ability to form intention (mens rea – the guilty mind required for criminal responsibility)

Burden of proof:

The burden of proof varies depending on what caused the automatism, but generally the prosecution must prove, beyond reasonable doubt, that the accused acted voluntarily and was aware of their actions.

Intoxication

The intoxication defence recognises that consuming alcohol, drugs, or other substances can impair someone's mental state to the point where they cannot form the intention (mens rea) required for criminal responsibility.

Requirements for intoxication:

An accused may use intoxication as a defence if, at the time of the offence, they:

• Acted involuntarily due to being intoxicated, OR
• Acted without intent because intoxication prevented them forming the required mental state

Accident

The defence of accident relates to a fundamental principle of criminal law: for most crimes, the prosecution must prove the accused acted with intention – they had a "guilty mind" (mens rea) when committing the offence.

Requirements for accident:

An accused can raise accident as a defence if their actions were:

• Involuntary – not within their control
• Unintentional – they didn't mean to commit the offence
• Reasonably unforeseeable – an ordinary person couldn't have predicted the outcome

Burden of proof:

When accident is raised, the prosecution must prove, beyond reasonable doubt, that the accused's actions were deliberate and intentional, not accidental.

Unfit to stand trial

Although not technically a defence to the crime itself, the concept of being unfit to stand trial is closely related to criminal defences and must be understood in this context.

What does 'unfit to stand trial' mean?

A person is considered unfit to stand trial if they cannot properly participate in their trial proceedings. Specifically, they must be unable to:

• Understand the nature of the charges against them
• Enter a plea (guilty or not guilty)
• Follow the course of the trial and understand what's happening
• Instruct their lawyer – communicate with their legal representative about their case

Determination process:

When questions arise about an accused person's fitness to stand trial in Victoria, a special investigation hearing takes place. A jury determines, on the balance of probabilities (more likely than not – a lower standard than beyond reasonable doubt), whether the accused is fit or unfit to stand trial.

If found unfit, the trial cannot proceed until the person's condition improves sufficiently for them to participate in the legal process.

Exam guidance

Understanding burden of proof:

A key concept across all defences is burden of proof – who must prove what in court. For most defences, once the accused raises the defence with supporting evidence, the burden shifts to the prosecution to disprove it beyond reasonable doubt. The main exceptions are:

• Mental impairment – accused typically must prove this
• Intoxication – accused must prove intoxication was not self-induced

Common command words:

• Describe – provide a detailed account of the defence requirements
• Explain – show how and why the defence operates in particular circumstances
• Analyse – break down the elements of the defence and examine how they apply to a situation
• Evaluate – make a judgment about whether the defence would succeed, supported by legal reasoning

Linking defences to offences:

Remember that not all defences apply to all crimes. Self-defence works for violent offences but not property crimes. Always consider whether the defence is logically compatible with the offence charged.