Legal Defences - ACT

The test for self-defence is set out in section 42 of the Criminal Code 2002 (ACT). Strictly speaking, self-defence is not a “legal defence” that has to be established by a defendant at a hearing or trial. Rather, if evidence is adduced that makes self-defence a live issue, it is incumbent on the prosecutor to prove beyond reasonable doubt that self-defence does not apply to a charge. Section 42 applies to offences that were enacted in the ACT after 2002, or offences that were enacted before 2002 but have since been substantially changed. This can be a complex question and unfortunately can lead to unnecessary delays at a hearing or trial.

Under s42 a person carries out conduct in self-defence only if:

1. The person believes the conduct is necessary (subjective test); and
2. The conduct is a reasonable response in the circumstances as the person perceives them (objective test).

For the subjective test, a person can believe their conduct is necessary if it is to defend themselves or someone else, to prevent unlawful imprisonment, to protect against the destruction of property, to prevent trespassers on land or to remove someone who is trespassing on land.

The objective test can be understood as a question of whether the conduct was proportionate to the threat, taking account of what the defendant actually perceived at the time. As an obvious example, if someone threatens to slap another person in the face it is not a reasonable response to pull out a gun and shoot them.

Self-defence does not apply if the defendant uses force that involves the intentional inflection of death or serious harm to protect property or to prevent criminal trespass or to remove a person committing criminal trespass.

For certain offences that were enacted before 2002, the common law test for self-defence in the matter of Zecevic v Director of Public Prosecutions (1987) applies. This is similar to the test under section 42 of the Criminal Code but not identical. The principle in Zecevic asks the court to consider whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he [or she] did.

As with the test under section 42, the common law test has two limbs. The onus then rests on the prosecution to disprove one (or both) of those limbs:

1. The accused must have believed at the time that s/he committed the relevant act that what s/he was doing was necessary; and
2. That belief must have been based on reasonable grounds.

Where a prosecutor can otherwise prove all elements of an offence beyond reasonable doubt, in some cases, a defendant’s mental impairment can be significant enough to mean they are not criminally responsible at law.

Under section 28 of the Criminal Code 2002 (ACT) a defendant is not guilty of an offence if the defendant satisfies the court that, at the time of the alleged offence, they were suffering from a mental impairment that had the effect that:

1. The defendant did not know the nature and quality of the conduct;
2. The defendant did not know the conduct was wrong; or
3. The defendant could not control their conduct.

The first limb of the test is that the court must be satisfied the defendant had a mental impairment at the time of the alleged offence. ‘Mental impairment’ is defined under section 27 of the Criminal Code 2002 (ACT) as including senility, intellectual disability, mental illness, brain damage and severe personality disorder’. ‘Mental illness’ is defined as an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a reaction condition resulting from the reaction of a healthy mind to extraordinary external stimuli. This final aspect can be a complex issue where even reasonable forensic psychologists or psychiatrists might reach different conclusions.

The immediate effects of any voluntarily consumed alcohol or illicit drug must be disregarded in determining whether the accused was mentally impaired and whether the mental impairment had any of the effects under a), b) or c) above (see R v Pahl [2017] ACTSC 68). This does mean that a court must disregard a mental psychosis that applied at the time of the offence that was originally drug induced in the past.

It is a high bar to overcome for a court to be satisfied that a defendant did not know the nature and quality of the conduct, did not know the conduct was wrong or could not control their conduct.

Under section 42 of the Criminal Code a person is not criminally responsible for an offence if their conduct was a result of intoxication that was not self-induced. A classic example of involuntary intoxication could be through “drink spiking” or something of a similar nature. It is not sufficient to raise evidence that some form of involuntary intoxication (for example, from alcohol, an illicit drug or prescription drug) occurred. Rather, there must be a reasonable possibility that the intoxication “caused” the offending conduct.

It may be necessary in cases of this nature to obtain evidence from an expert witness, such as a pharmacologist, that can speak to how different drugs or alcohol would be expected to affect someone and whether the observed conduct was consistent with that. The defence is more likely to arise if there has been a breath or blood test of a defendant soon after an alleged offence.

A defendant has an evidential burden, not a legal burden, in establishing that the conduct was a result of intoxication that was involuntary (not self-induced).  An evidential burden (s58 Criminal Code) here means that the defendant, usually through their lawyers, has to present evidence through the defence case or point to evidence from the prosecution case, that suggests there is a “reasonable possibility” that the conduct was caused by involuntary intoxication. By contrast, the higher “legal burden” test, which applies for some other legal defences, such as the mental impairment defence, requires the defendant to prove the test is met on the balance of probabilities.

The defence of duress is a notoriously difficult defence for a defendant to prove. It arises (under section 40 of the Criminal Code) where the conduct by a defendant, that makes up an alleged offence, occurred when a defendant reasonably believes that:

1. A threat has been made that will be carried out unless an offence is committed; and
2. There is no reasonable way to make the threat ineffective; and
3. The conduct is a reasonable response to the threat.

Duress will not apply if the threat is made by or on behalf of a person with whom the person is voluntarily associating to carry out conduct of the kind required for the offence.

In the ACT Magistrates Court decision of Goodwin v Neiberding [2019] ACTMC 2, the court cited with approval the matter of Taiapa v R (2009) 240 CLR 95 which considered the very similar duress provisions in Queensland. The court said the following:

Duress was “not intended to permit those who engage in criminal acts to do so free of criminal responsibility because they are ‘unreasonably timorous’ or because they find it more convenient to comply with a threat than to seek the assistance of the police to remove it… [This] means that those who find themselves subjected to pressure to engage in criminal activities cannot avail themselves of the defence of compulsion under … the Criminal Code to excuse their part in criminal activities merely by reason of their subjective willingness to be used as pawns of more aggressive criminals. It is a feature of civilised society that one may render threats of personal violence ineffective by seeking the help of agencies of law enforcement.

A defence under s31(1)(d) can arise for the consideration of the jury only where there is an evidentiary basis for a reasonable belief on the part of the accused that he or she is ‘unable otherwise to escape the carrying out of the threat’. If it is to be asserted by an accused that he or she reasonably believed that there was no other means of avoiding a threat than complying with an unlawful demand then the reasonableness of that belief must be considered in the light of the other alternatives available to the accused. That necessarily means that the accused must have a reasonable basis for believing that the law and its enforcement agencies cannot afford protection from the threat.”

The High Court in R v Rogers (1996) 86 A Crim R 542 also noted that the test for a “reasonableness” [whether a defendant reasonably believed they were under duress] “is not designed to allow people to choose for themselves whether to obey the law..  a reluctance or … an unwillingness to go on protection may be understandable, but the principle of necessity is not intended to give prisoners who are threatened a choice between going on protection and removing themselves, permanently or indefinitely, from custody.”

There may be many situations where a threat is made if an offence is not carried out, but it will be relatively rare where one can establish that there was no reasonable alternative to neutralizing the threat (such as calling the police) or that committing the offence was a reasonable response to the nature of the threat.

The test for whether an honest or reasonable mistake of fact applies is set out in section 35 of the Criminal Code. This largely adopts the common law test. The question is whether a defendant, when carrying out the conduct, was under an honest and mistaken believe about an important fact that means they did not intentionally or recklessly commit the offence. The court must also be satisfied that, even if the mistake is honest, it was a “reasonable” mistake to hold in all of the circumstances. The defence can be relied on particularly for strict liability offences where the prosecution do not need to prove a fault element of intention or recklessness for a particular physical element of an offence.

The honest and reasonable mistake of fact defence does not apply to mere ignorance of the law. However, whether something is a fact or legal question can sometimes be a complex issue.

A common scenario in which a defence of honest and reasonable mistake may arise is for a charge of driving with a suspended licence – under s32(2) of the Road Transport (Driver Licensing) Act 1999 (ACT). For example, a defendant may have been issued an infringement notice for a parking offence but honestly did not know that as a consequence of that infringement their driver licence had been suspended.

For this offence, the most contentious part of the honest and reasonable mistake of fact defence will often be whether it was “reasonable” for a defendant not to know about their licence suspension. For example, if a defendant was issued a parking ticket, but the ticket blew off the car windscreen and they never saw any later suspension letter from the Road Transport Authority (RTA) it would be reasonable not to be aware of their suspension. On the other hand, if they paid an infringement knowing they had now incurred too many demerit points, and they subsequently received a letter from the RTA but chose not to open it, it would likely not be reasonable to maintain their honest mistake that they did not know their driver licence was suspended.