Defences in Criminal Proceedings

Monday , 2, November 2015 Leave a comment


Any of your pleadings should start with :

Presumption of Innocence

1.At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP [1935] AC 462; Howe v R (1980) 32 ALR 478).

2.The presumption is not that the accused is not guilty. It is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).

3.The presumption of innocence has been enshrined in s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

4.The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (Howe v R (1980) 32 ALR 478).

You start with this to remind the Magistrate you are innocent, and it is up to the prosecution to prove guilt beyond doubt.

Unless the onus is placed on the accused by statute, the prosecution will also bear the onus of disproving any defences that arise as issues in a trial (R v Youssef (1990) 59 A Crim R 1; Zecevic v DPP (1987) 162 CLR 645).

Where relevant, the prosecution must therefore prove that the accused’s actions were not:

  1. Accidental : Authority : (Woolmington v DPP [1935] AC 462; Griffiths v R (1994) 125 ALR 545);
  2. Involuntary as a result of a state of sane automatism : Authority: (Bratty v AG for Northern Ireland [1963] AC 386; Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30);
  3. A result of duress : Authorities : (Crimes Act 1958 s322O; R v Bone (1968) 52 Cr App R 546; R v Gill [1963] 1 WLR 841; R v Lawrence [1980] 1 NSWLR 122; Van den Hoek v R (1986) 161 CLR 158);
  4. Formed without the required state of mind due to intoxication. Authorities (R v O’Connor (1980) 146 CLR 64; R v Coleman (1990) 19 NSWLR 467);
  5. Provoked.   Authorities :(Stingel v R (1990) 171 CLR 312; Moffa v R (1977) 138 CLR 601);[2]
  6. Committed in self-defence. Authorities (Crimes Act 1958 s322K; Viro v R (1978) 141 CLR 88; Zecevic v DPP (1987) 162 CLR 645);
  7. Done in an honest and reasonable belief in the existence of a state of affairs which, had it existed, would have made the acts innocent (He Kaw Teh v R (1985) 157 CLR 523).
  8. The prosecution only needs to disprove a defence if there is evidence, or other relevant material, which gives rise to that defence (R v Lobell [1957] 1 QB 547; Bullard v R [1957] AC 635; R v Howe (1958) 100 CLR 448; Bratty v AG for Northern Ireland [1963] AC 386; Spautz v Williams [1983] 2 NSWLR 506).
  9. The prosecution will need to disprove a defence if there is evidence on which a reasonable jury could decide the issue favourably to the accused, no matter how weak or tenuous the judge considers that evidence to be (R v Youssef (1990) 50 A Crim R 1; Zecevic v DPP (1987) 162 CLR 645; R v Kear [1997] 2 VR 555).
  10. The evidence that raises a defence need not have been given by the defence. It is possible for the prosecution evidence to disclose facts which might give rise to a defence (see, e.g., R v Bonnick (1977) 66 Cr App R 266; R v McDonald [1991] Crim LR 122).
  11. If the evidence discloses the possibility of a defence, the judge must instruct the jury that the prosecution needs to disprove that defence, whether or not the defence was raised by the accused (Zecevic v DPP (1987) 162 CLR 645).


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