LLB180 Study Guide - Final Guide: Posttraumatic Stress Disorder, Hyperglycemia, Owen Dixon
Week 7 – Defences – Mental Illness and Automatism (CB 829)
• Defences must be distinguished from a mere denial by the defendant of a core
element of the offence
• However, some defences do deny an element e.g. automatism or intoxication denies
the voluntariness
• Defendant has an evidential burden to discharge
Defences and Burden of Proof – General Rule
Generally evidentiary burden is on D:
• Applied by the judge – whether leave issue to the jury or withdraw issue from
consideration by the jury
• Whether D has discharged the evidentiary burden – a question of law
Generally legal burden is on P:
• Once D discharges evidentiary burden, burden shifts to P to prove BRD absence of
defence raised by D
• Persuasive burden
• Applied by the jury to reach a verdict – a question of fact
Mental Illness
• Complete defence to criminal responsibility and conviction BUT D acquitted and
subject to subsequent detention
• Applicable to all offences
Burden of Proof
• Defences that apply only to people with mental and cognitive impairments: defence
of etal illess, isae autoatis ad sustatial ipairet y aorality of
the mind
• D has legal (persuasive) burden to prove defence on BOP
• Requirements for medical/psychiatric evidence
• Exception to general rule: some statutory defences (eg defences to strict or absolute
liability offences)
Fitness to Stand Trial
• To be tried D must understand the general nature of the charge and the difference
between pleading guilty and not guilty
• Not a defence, instead it is a procedural requirement for a fair trial (Eastman CB 837)
• Minimum standard required before a person may be tried without unfairness or
prejudice – common law test: Presser (CB 837)
- understand what charged with
- plead to the charge
- exercise right of challenge
- understand generally the nature of the proceeding
- able to follow the course of the proceedings
- understand the substantial effect of any evidence against him
- make defence or answer to the charge
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Document Summary
Defences and burden of proof general rule. Generally evidentiary burden is on d: applied by the judge whether leave issue to the jury or withdraw issue from consideration by the jury, whether d has discharged the evidentiary burden a question of law. Mental illness: complete defence to criminal responsibility and conviction but d acquitted and subject to subsequent detention, applicable to all offences. Understand generally the nature of the proceeding. Able to follow the course of the proceedings. Understand the substantial effect of any evidence against him. Procedures for dealing with d when fitness raised. If the accused is found fit to be tried, the criminal trial will recommence (s 13) If unfit to be tried = court refers person to mental health review tribunal (s 14) If the person will not be fit within the next 12 months, the dpp must be notified (s. 16(4)) may not proceed with the prosecution.
