THE DEFENCE

There are a number of defences that our Sydney based criminal defence lawyers may utilise during a murder trial. Some defences provide a full acquittal of the charge in which the defendant will be found not guilty. Other defence strategies only provide a partial defence, in which the charge will be downgraded, and therefore a less serious penalty will be imposed.

Self-Defence: Includes situations where the criminal act was undertaken in order to defend confrontations and harm by an unjust aggressor. Self-defence is seen as a justifiable in circumstances where the accused aims to protect property, themselves or another person from harm by the aggressor.

Duress: Encompasses the use of unlawful intimidation to coerce an individual to commit the offence, which is not something they would usually have done if the intimidation was not present. Such intimidation can take form of harmful threats such as death or grievous bodily harm in which the accused believes that if they do not participate in the activity, the threat will eventuate and they will be at serious risk.

Necessity: The defence of necessity is often difficult to prove, however can be argued in situations where the accused committed the criminal offence as a result of imminent danger by either human or natural forces. In fact, a famous case (R v Dudley and Stephens) demonstrated the necessity defence in which 2 men found themselves facing a murder conviction after being shipwrecked. During the course of the incident, the men had already eaten the last of their supplies along with a turtle they managed to catch. Another man named Parker had gone into a coma, and after believing there was no other way to survive, the remaining man killed Parker and resorted to cannibalism. After the men were rescued it was argued that the actions of killing Parker were done under necessity. Although in this instance they were found guilty of murder, the men were only sentenced to just 6 months in prison.

Automatism: Automatism is defined as an action performed unconsciously or involuntarily in which the defendant was not aware that they were committing a criminal offence. There are two types of automatism defined as insane automatism and non-insane automatism in which insane automatism is affected by disease or illness while non-insane automatism is the affect of a blow to the head or the response from drugs.

Mental Illness (Insanity Defence): As per the Mental Health (Forensic Provisions) Act 1990, a defence of mental illness can be raised if it can have proved that the accused was mentally ill at the time of the offence. If it can be proved that the individual suffered from severe mental illness such as psychoses, schizophrenia or bipolar disease, that would impact their ability to judge their actions, the jury will return a special verdict of “not guilty y reason of mental illness”. In these circumstances, the Court may order behavioural programs or detainment at treatment facilities.

Provocation: Relates to situations and events which causes a reasonable person to lose self-control, therefore committing a criminal act as a result. In this instance, the charge will then be reduced from murder to manslaughter.

Battered Person Syndrome: Classified as a subcategory of post traumatic stress disorder, battered person syndrome typically occurs in abusive relationships and domestic violence cases. Often, this ongoing abuse and trauma results causes the individual to fear leaving the abusive relationship and normal patterns of behaviour or thought may be impacted. It is also important to note that often if the accused suffers battered person syndrome and has committed a crime such as murder, the act does not always necessarily take place when the accused is under imminent threat of being harmed, therefore self-defence is not viable.