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Statute: s23A
23A Unwilled acts and omissions [Can be used as a defence to offences
contained in all statute law within WA.]
(1) This section is subject to the provisions in Chapter XXVII and
section 444A relating to negligent acts and omissions. [Thus, if the charge is
grounded in negligence, this defence will not be available. R v Young[1969] : not
necessary for the words negligent, negligence or negligently to occur in
order to exclude the defences.]
(2) A person is not criminally responsible for an act or omission which
occurs independently of the exercise of the persons will.[R v Fitzgerald (1999)
proof of the requisite intention for an intentional form of murder would, in the
context of a shooting, be inconsistent with a defence of unwilled act applying.]
Hence any section which seems to cover negligent acts or omissions as well as
willed acts or omissions will exclude a 23A defence.
Onus of Proof: The evidentiary onus is nominally on the accused but the trial
judge must ensure that all relevant defences are considered by the jury.
The persuasive onus is then on the prosecution to disprove the defence beyond
reasonable doubt.
ELEMENT 1: Unwilled
Identify the act
Was this act willed or not?
There are two usual situations:
(1)For a short period of time, the person has no control over their body (e.g. they
have tripped).
(2)Everything the person is doing for a significant period of time is unwilled (e.g.
sleepwalking). This is called sane automatism when it leads to this defence.
Duffy v R: accused unaware of the glass in his hand therefore wounding could be
viewed as an unwilled act.
Cooper v McKenna: Dangerous driving, unwilled as concussed earlier in the day.
If true can be a defence. Court also said it is common knowledge that blackout
is one of the first refuges of a guilty mind and a popular excuse.
Jiminez v The Queen: HCA said in obiter that while it might be a defence that the
driver was asleep, there might have been a breach of duty to drive whilst so tired.
Sane Automatism
The definition of mental illness is the dividing line between the two defences of
insanity and sane automatism.
Mental illness is defined as an underlying pathological infirmity of the mind,
whether of short or long duration and whether permanent or temporary, but does
not include a condition that results from the reaction of a healthy mind to
extraordinary stimuli. (s1 Criminal Code and s8 CL(MIA) Act).
If the situation is the reaction of a healthy mind to extraordinary stimuli, then the
automatism will be sane rather than insane automatism.
The extraordinary stimulus need not be a physical blow and need not be
external so be careful of what is written in Falconer(1990) 171 CLR 30.
Onus of proof: Where sane automatism (s23A) has been raised by the accused,
they must generally do so by leading medical evidence of the automatism
(Falconer 1990).
Once that has occurred, the onus of proof for that defence means that the
prosecution must negate the defence beyond reasonable doubt.
Prosecution can either prove beyond reasonable doubt that the act was willed,
or prove beyond reasonable doubt that the automatism was insane (i.e. that the
defence of insanity applies).
Falconer(1990): Accused shot husband, killed him. Brought evidence from 2
psychiatrists stating she acted in a dissociative state when shooting, therefore
was not in control of her actions.
Held: This met the evidentiary onus for sane automatism under [s23A]. If the
prosecution could not negate this beyond reasonable doubt, the accused was
entitled to an acquittal under [s23A].
The Consequences of s23A: Unwilled acts of omissions"
If the defence is successfully raised, the person is not criminally responsible.
This means that it will act as a complete criminal defence to the charge.
Accident
2) Onus of Proof
The evidentiary onus is nominally on the accused but the trial judge must
ensure that all relevant defences are considered by the jury.
The persuasive onus is then on the prosecution to disprove the defence beyond
reasonable doubt.
3) The event
ALL of the consequences of the physical act are going to be viewed as part of the
event.
The relevant consequences to be considered are going to be those that relate to
an element of the offence charged.
4) occurs by accident
So, an event occurs by accident where it is:
(a)Not intended by the accused;
(b)Not foreseen by the accused; and
(c)Not reasonably foreseeable.
an event occurs by accident ...if it was a consequence which was not intended
or foreseen by the accused and would not reasonably have been foreseen by an
INSANITY DEFENCE
1) Availability of the Defence
The defence of insanity is contained in s27 of the Criminal Code. Being in
Chapter V of the Code, s36 states that the defence is available to any statute
offence in WA.
Hawkins (1994): Held:It is not permissible to lead evidence of insanity in order to
establish that the act was unwilled. However, the evidence is admissible to
negate a specific intention element.
2) Onus of proof generally: S26 creates the presumption of sanity until the
contrary is proved.
Whichever party asserts insanity retains the burden/onus of proof because
they need to negate the presumption of sanity in s26 of the code.
Onus of proof for the insanity defence:
1)The accused raises the insanity defense. The accused has to prove this
defense on the balance of probabilities to negate the presumption in s26.
2)The accused raises sane automatism: prosecution negates sane
automatism by proving insanity BRD.
3)The prosecution raises insanity alone and the defense does not raise
insanity or sane automatism. No clear statement from any authority to indicate
what the relevant standard of proof is (either byd or bop)
In most cases the defense raises the issue however it is in the publics
interest to raise the insanity defense and the prosecution are obliged to
raise the issue.
The defence can certainly be raised by the accused. It can also be raised by the
prosecution in response to a claim of sane automatism. There is some debate as
s27 says that the person is not criminally responsible for the act that the person
has committed
However, s146 of the Criminal Procedure Act 2004 (WA) requires that a verdict of
not guilty by reason of unsoundness of mind be returned.
s149(1) then requires the person to be dealt with under the Criminal Law
(Mentally Impaired Accused) Act 1996 (WA).
7) CL(MIA) ActConsequences
s20 empowers a summary court to make an order under s22.
s21 requires that a superior court make a custody order if it is a Schedule 1
offence. For other offences, any order under s22 may be made.
s22 permits the court to:
(a)Release the accused person;
(b)Impose a CRO, CBO or ISO; or
(c)Impose a custody order.
Custody Orders
s24 outlines that where a custody order is imposed, the accused will be detained
in an authorised hospital, a declared place, a detention centre or a prison, as
determined by the Board, until released by an order of the Governor.
Note that these are also the possible consequences where a person is ultimately
found to be not fit to stand trial where the maximum penalty for the alleged
offence is a term of imprisonment.
TOPIC 4: Intoxication
There are two defences in the Code: the true defence contained in s28(1) and
s28(2); and the separate defence in s28(3).
28
Intoxication
1) Definition of Intoxication
Drugs or alcohol must have been consumed in order for a person to fall within
the scope of s28.
The drugs or alcohol must have also had some effect on the persons mind.
[T]he words intoxicate and stupefy should not be construed narrowly. It is
significant that the dictionary definition of the word intoxicate is wide enough to
include stupefaction and it is also significant that the definition of stupefaction
includes to grow dull or insensible. The issue therefore becomes whether the
consumption of drugs by the respondent caused him to become intoxicated or
stupefied in the manner just referred to. Haggiev Meredith (1993)
4) Decisions about actual mental states are for juries to make without any
direct assistance from expert witnesses. (Cameron v R)
It is for the jury to be satisfied brd to whether the specific state of mind existed
and not whether the accused had the capacity to form that state of mind.
5) Element 1: The Intoxication
The way in which the intoxication came about is not relevant for s28(3).
The section also expressly declares that the intoxication can be can be complete
or partial.
If the intoxication is complete, of course, the intent cannot be formed. If
the intoxication is partial only, then it is for the jury to decide as a question of fact
whether the necessary intent
existed. Crozier[1965]
If they were either voluntarily or involuntarily intoxicated does this mean that the
accused lacked the relevant intent.
After accused has discharged the evidentiary onus, Onus of proof remains on the
prosecution to prove that the relevant intention was present.
The jury is instructed to ascertain whether all the elements of the offence have
been satisfied beyond reasonable doubt
However 28(3) is only put to the jury if the accused has discharged the evidential
onus of it in the first place.
After application of s28(3) you can go to the alternative offence which does not
have an intention element.
6) Consequences of s28(3)
Essentially, the defence is saying that the extent of the persons intoxication is to
be considered by the jury in deciding whether the prosecution have in fact proved
the required intention beyond reasonable doubt.
In a case where there is evidence fit to be considered by a jury that the accused
was intoxicated as a result of drink or drugs, it is not enough to tell the jury that
the Crown must prove beyond reasonable doubt that the accused had in fact
formed the requisite special intention. They should also be told that the fact that
the accused was intoxicated, whether by drink or drugs or by a combination of
both, may be regarded for ascertaining whether the special intention in fact
Accused) Act1996(WA).
i.e. see intoxication defence as outlined above.
s22 sets out the general prohibition against raising a defence of mistake of
law:
Ignorance of the law does not afford any excuse for an act or omission which
would otherwise constitute an offence, unless knowledge of the law by an
offender is expressly declared to be an element of the offence.
22
Ignorance of law, honest claim of right
Ignorance of the law does not afford any excuse for an act or omission
which would otherwise constitute an offence, unless knowledge of the law by an
offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to
property, for an act done or omitted to be done by him with respect to any
property in the exercise of an honest claim of right and without intention to
defraud.
1) In order to have any kind of defence under the criminal law, the mistake that
the person makes has to be operative.
A mistake is operative if it is relevant to one of the elements of the offence.
2) Mistake of Fact Applicability: The defence is in Chapter V of the Code, so
s36 would indicate that it should be applicable to all statutory offences in WA.
Under the Code, however, a clear intention to exclude s24 must be shown before
it would be excluded. (Geraldton Fishermens Co-op Ltd v Munro)
3) Onus of Proof
Ordinary onus of proof for defences: the evidentiary onus is on the defence and
then the persuasive onus is on the prosecution to disprove the defence beyond
reasonable doubt.
[Mistake] is not a matter which the defendant must prove on the BOP [T]he
onus then is on the prosecutor to satisfy the court BRD of the non-existence of
the operative mistake. Of course, the section does not operate unless there be
some evidence, looking at the case as a whole, of operative mistake. Loveday v
Ayre
Ignorance of the law does not afford any excuse for an act or omission
which would otherwise constitute an offence, unless knowledge of the law by an
offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to
property, for an act done or omitted to be done by him with respect to any
property in the exercise of an honest claim of right and without intention to
defraud.
1) This is the only exception to the rule that mistake of law will not operate
as a defence.
If a person bona fide believes that they are exercising rights that they have over
property, they will have a defence under s22.
2) Applicability: The defence only applies to offences that relate to property.
Pearce v Paskov: narrow interpretation was taken by the WA CCA, which would
limit the scope of the defence to property offences under the Criminal Code (that
is, offences that are in Part VI of the Code).
However, Walden v Hensler: the majority of the High Court felt that the defence
could apply to any property offence under a statute.
3) Onus of Proof: The evidentiary onus is on the defence and then the
persuasive onus is on the prosecution to disprove the defence beyond
reasonable doubt (Pollard).
he would have been permitted to borrow the car. He got into an accident and was
charged with stealing the car.
Held: The claim of right has to be an existing right. Pollard did not believe that he
had an existing right when he took the car and so he could not raise the defence.
5) Element 2: Honest
Subjective element, requiring the accused person honestly believes that (s)he is
entitled to the property and entitled to act in the manner that (s)he does to obtain
the property (Pollard).
There must be evidence that the claim of right was pursued honestly before the
onus for the defence would be satisfied (Lenard).