LAWS1206 Lecture Notes - Lecture 9: William Gummow, Criminal Appeal Reports, Grievous Bodily Harm
WEEK 9 – DEFENCES
R v Falconer (1990) 171 CLR 30
Mary has lived in a violent relationship with her husband for over 30 years, having
been subjected to serious assaults including being kicked and struck in the head. After
a series of separations and reconciliations, Mary finally left her husband after her
daughters told her that he, their father, had sexually abused them. Mary obtained a
restraining order and purchased shotgun ammunition. In breach of the restraining
order, her husband had been to her place twice and assaulted her. On the final
occasion, Mary’s husband arrived at her home unexpectedly. He taunted her about
their daughters not being believed. He then sexually assaulted Mary. Mary remembers
nothing from this point until she found herself on the floor with the shotgun and her
dead husband beside her.
Additional Evidence: A psychiatrist is of the opinion that Mary went into a
dissociative state as a result of events and this history of abuse, such that she did not
have awareness of what she was doing?
Radford (1985) 42 SASR 266
Radford is a war veteran who had served in the army, in combat. After his return, his
wife left him for another woman. Radford was obsessed with his wife. He drove to
her house intent on making a final attempt to persuade her to return. He took a gun
with him in the car and had determined to kill himself if his wife would not come with
him. On arrival he got out of his car, had an argument with his wife and commenced
returning to the car. He was ‘sobbing’. At this point the deceased, his wife’s partner,
came out of the house screaming and wielding a cricket bat. Radford says that he
suddenly experienced mental detachment, as if in a ‘cocoon’. He observed himself as
a soldier, like a second person, get the gun and walk across the road and shoot seven
times.
Additional Evidence: A psychiatrist is of the opinion that he was in a state of
‘derealisation’ such that his mind did not go with the act, that is the physical act that
was performed.’
Overview
•Nature of ‘defences’
find more resources at oneclass.com
find more resources at oneclass.com
–arguments in defence v ‘defences’/ complete v partial defences
•Argument in Defence
–Non-insane automatism/absence of voluntariness
•Self-Help Defences
–Self-defence: s 418 CA
–Self-defence – excessive force that inflicts death - Partial Defence: s421
•Mental State Defences
–Insanity
–Substantial Impairment of Mind - Partial Defence: s 23A CA
–Extreme Provocation Partial Defence: s 23 CA– from 13 June 2014
Some important distinctions
Distinction between argument in defence and ‘defences’
oExamples:
raising evidence to weaken the case on AR or MR
involuntariness / automatism and AR arguments
intoxication and MR arguments
Complete v Partial Defences
oComplete
a successful defence leads to acquittal (or qualified acquittal)
complete defences are not confined to particular offences.
oPartial
A successful defence reduces murder to manslaughter
Recognises reduced level of culpability or blameworthiness
Automatism : unwilled or involuntary act – this is an argument in defence
Impaired consciousness
Voluntariness revision
Voluntariness/Volition: relevant conduct must be “willed”
oa “deed which was not the result of the accused's will to act cannot, in my
opinion, be made the source of criminal responsibility in him.”
Ryan v The Queen (1967) 121 CLR 205 [20] Barwick CJ
Presumption – apparently conscious action is presumed to be voluntary.
oBratty [1963] AC 386
oRyan (1967) 121 CLR 205
oFalconer (1990) 171 CLR 30
Evidential Burden on accused – if the accused establishes the possibility that act was
involuntary then prosecution must prove voluntariness beyond reasonable doubt: R v
Falconer (1990) 171 CLR 30, 63
No legal burden on defence – the accused does not have to prove the act was
involuntary on the balance of probabilities to be entitled to acquittal.
Automatism
A particular form of involuntary action/conduct p 267 B & McS
Where accused acts in a state of “impaired consciousness” such that a person’s
actions are not an exercise of their will.
find more resources at oneclass.com
find more resources at oneclass.com
“…the critical point, as Barwick C.J. pointed out in Ryan’s case, is that the conduct
was not subject to the control and direction of the will, not the accused’s
consciousness or awareness of his conduct.”
oR v Radford (1985) 42 SASR 266, 275 (King CJ)
Falconer (1990) 171 CLR 30 – See B & McS p 267
oImportant case because:
oEstablishes non-insane automatism as basis for complete acquittal
oSometimes known as ‘psychological blow automatism’
oExplains evidentiary burden on accused/presumption of voluntariness
oDistinguishes non-insane automatism from insane automatism
oAdopts sound/unsound mind test set out by King CJ in Radford
Automatism is basis for acquittal
“...if on the evidence an accused’s acts may have been involuntary as a result of
the operation of events upon a sound mind – as a result of sane automatism – then
a reasonable doubt about the voluntariness of those acts will be sufficient to
entitle him to acquittal.”
oR v Falconer (1990) 171 CLR 30, 63 1990) 171 CLR 30
o(Deane & Dawson JJ with Gaudron & Toohey JJ agreeing)
Automatism – evidential burden
R v Falconer (1990) 171 CLR 30, 61 (Deane and Dawson JJ, Gaudron and Toohey JJ
agreeing)
The evidence in
oFalconer (1990) 171 CLR 30
oR v Radford (1985) 42 SASR 266
Sane v Insane Automatism
Sound/unsound mind test (also internal/external see B & McS 275-278)
o“The significant distinction is between the reaction of an unsound mind to
its own delusions or to external stimuli on the one hand and the reaction
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Mary has lived in a violent relationship with her husband for over 30 years, having been subjected to serious assaults including being kicked and struck in the head. After a series of separations and reconciliations, mary finally left her husband after her daughters told her that he, their father, had sexually abused them. Mary obtained a restraining order and purchased shotgun ammunition. In breach of the restraining order, her husband had been to her place twice and assaulted her. On the final occasion, mary"s husband arrived at her home unexpectedly. He taunted her about their daughters not being believed. Mary remembers nothing from this point until she found herself on the floor with the shotgun and her dead husband beside her. Radford is a war veteran who had served in the army, in combat. After his return, his wife left him for another woman. He drove to her house intent on making a final attempt to persuade her to return.
