TOPIC1: Unwilled Act, including sane automatism.

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.

TOPIC 2: Accident, including eggshell skull.

23B

Accident

(1) This section is subject to the provisions in Chapter XXVII and section 444A relating to
negligent acts and omissions.
(2) A person is not criminally responsible for an event which occurs by accident.
(3) If death or grievous bodily harm:
(a) is directly caused to a victim by another persons act that involves a deliberate
use of force; but

(b) would not have occurred but for an abnormality, defect or weakness in the victim;
[eggshell skull]
the other person is not, for that reason alone, excused from criminal responsibility for the death
or grievous bodily harm.
(4) Subsection (3) applies:
(a)
harm; and
(b)

even if the other person did not intend or foresee the death or grievous bodily
even if the death or grievous bodily harm was not reasonably foreseeable.

1) Availability of the defence: As with unwilled act, 23B cannot be used as a defence for
offences grounded in negligence or offences with an intent element (R v Fitzgerald).

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 ordinary
person. Kaparanovski(1973) (Gibbs J).
Or, alternatively
The Crown is obliged to establish that the accused intended that the event in question should
occur or foresaw it as a possible outcome, or that an ordinary person in the position of the
accused would reasonably have foreseen the event as a possible outcome. R v Taiters[1997].
The reasonably foreseeable element does not exclude possibilities that are remote or
speculative (R v Taiters[1997] 1 Qd R 333).

Wording in the new s281offence (unlawful assault causing death: 10 yrs) excludes accident as a
defence:
s281(2) states a person is criminally responsible under (1) even if the person does not intend
or foresee the death of the other person and even if the death was not reasonably foreseeable.
Eggshell skull and the accident defence in WA
Historically in WA, authority has favoured the defence of accident not being available in
eggshell skull" situations see R v Hubert (1993).
s23B(3) and s23B(4) expressly exclude eggshell skull scenarios from the defence in
any case where it is likely to be useful.
The Consequences of s23B (Accident)
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.

TOPIC 3: Insanity, including Fitness to Stand Trial

27

Insanity [criminal code WA]

(1) A person is not criminally responsible for an act or omission on account of

unsoundness of mind if at the time of doing the act or making the omission he is in such a state
of mental impairment as to deprive him of capacity to understand what he is doing, or of
capacity to control his actions, or of capacity to know that he ought not to do the act or make the
omission.
(2) A person whose mind, at the time of his doing or omitting to do an act, is affected by
delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of
subsection (1), is criminally responsible for the act or omission to the same extent as if the real
state of things had been such as he was induced by the delusions to believe to exist.
CRIMINAL LAW (MENTALLY IMPAIRED ACCUSED) ACT 1996 - SECT 8
8.
Terms used
In this Part, unless the contrary intention appears
mental illness means 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;
mental impairment means intellectual disability, mental illness, brain damage or senility;

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 to whether it can be raised
by the prosecution where no defence of sane automatism is argued.
3) The Time of Assessment: The relevant time to assess the persons mental state is at the
time (s)he commits the criminal act.
The Criminal Law (Mentally Impaired Accused) Act 1996 (WA) outlines the appropriate test to
apply
In order for the accused to avail themselves of the s27 defense the accused must have been
suffering from a mental illness or impairment at the time of the offence.
4) Relevant Mental Impairment: This is a question of law to be decided by the judge
(Falconer(1990). While expert testimony is permitted (and necessary) it is up to the judge
whether or not the accused is in a state of mental impairment under law.
mental impairment means intellectual disability, mental illness, brain damage or senility; (s8

CLMIAA definition)
mental illness means 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;[sane automatism]
5) Failure of the capacities listed in s27
(1)Capacity to know what (s)hes doing
[This relates to the ability understand the effect of physical acts.]
(2) Capacity to control his/her actions
[This relates to conduct that is independent of the exercise of the will. Wray (1930) 33 WALR 67
suggests that irresistible impulse could fall into this category.]

(3) Capacity to know (s)he ought not do the act

[The third capacity relates to a person who does not know that the conduct is morally wrong.
"Could this man be said to know in this sense whether his act was wrong if through a
disease or defect or disorder of the mind he could not think rationally of the reasons which to
ordinary people make that act right or wrong? R v Porter (1933).]
Impairment of capacity is not sufficient to discharge the burden of proof, there must be
deprivation.
Impairment if the capacity may still be relevant to negate a specific intention element thereby
lessening the charge.
6) Consequences of the Defence
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.

Fitness to Stand Trial

1) There is a presumption that a person is fit to stand trial (s10). This presumption can be
overcome if the magistrate/judge decides on the balance of probabilities that the person is not fit
to stand trial (s12).
2) If there are questions about a persons state of mind during the criminal proceedings, it is
dealt with as the persons fitness to stand trial.
3) A person is not fit to stand trial if, because of mental impairment, they are (s9):
(a) unable to understand the nature of the charge;
(b) unable to understand the requirement to plead to the charge or the effect of a plea;
(c) unable to understand the purpose of a trial;
(d) unable to understand or exercise the right to challenge jurors;
(e) unable to follow the course of the trial;
(f) unable to understand the substantial effect of evidence presented by the prosecution in the
trial; or
(g) unable to properly defend the charge.
If unfit to stand trial s15-19 of the miaa
Unable in this context means unable, after having the matter explained to them by counsel
(R v Dunne[2001]).
4) Consequences
If a person is not fit to stand trial, then they are dealt with under s16 (offences tried summarily)
or s19 (offences dealt with on indictment) of the CLMIAA

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) Section 27 applies to the case of a person whose mind is disordered by intoxication
or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any
other means.

(2) Section 27 does not apply to the case of a person who has intentionally caused
himself to become intoxicated or stupefied, whether in order to afford excuse for the
commission of an offence or not.
(3) When an intention to cause a specific result is an element of an offence, intoxication
whether complete or partial, and whether intentional or unintentional, may be regarded for the
purpose of ascertaining whether such an intention in fact existed.

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)
2) The defence in s28(3)
This is not a defence in the true sense of the word; it relates to an evidentiary point relating to
specific intention offences. Hence, there is no onus of proof attached to s28(3).
You should consider it whenever there is evidence of intoxication and the accused is charged
with a specific intention offence.
3) Accused carries evidentiary burden to bring intoxication as an issue and medical evidence
can also be given about the general effects of different amounts of the intoxicating substance
but a psychiatrist cannot give opinion evidence of the actual mental state of the accused at the
time of the alleged offence.

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 existed. Viro v R (1978) (Gibbs J).
See Battle v R (1992) 8 WAR 449 for a Code statement that is of similar effect.
Eg successful intoxication defence for murder may remove the intention element and therefore
downgrade the charge to manslaughter.
Cutter v R (1997): The accused was arrested and forced into the back of a police van (with him
resisting). Upon arrival at the police station, when police tried to remove the accused from the
van, he stabbed a police officer in the neck with a knife. At trial, the judge found that despite his
intoxication, he did so with intention to kill and convicted him of attempted murder.
Held (majority): While there was evidence that the accused struck out in anger, because of his
intoxication the evidence did not prove beyond reasonable doubt that he intended death as the
consequence. Consequently, he should have instead been convicted for unlawful wounding.
Availability of Other Defences
Where the intoxication has led to a recognised mental illness, insanity rather than intoxication is
the appropriate defence (Dearnley[1947] St R Qd 51; Re Bromage[1991] 1 Qd R 1).
If a state of automatism is produced through intoxication, it is not possible to use the defence of
unwilled act in s23A.
In my opinion there is much to be said for the view expressed by MacCrossan J (the dissenting
judge in R v Kusu[1981] Qd R 136), although I accept that the weight of authority clearly
supports the majority view that there is no room for the question of s23 in an intoxication
case. Cameron v The Queen (1990) (Malcolm CJ).
Intoxication: The true defence [contained in s28(1) and s28(2)]

1) This is the true defence of intoxication, as if successful it ends up negating criminal

responsibility.
As it is contained in Chapter V of the Code, s36 means that it applies to all criminal offences in
WA.
DEFINE intoxication as per the above definition.

2) Onus of Proof
The evidentiary onus is (nominally) with the accused.
Part of the defence of intoxication requires proving that the accused person lacks one or more
of the capacities that are in s27.
Therefore, the presumption of sanity in s26 means that the defence will bear the persuasive
onus for that element (Dearnley[1947]).
The status of the persuasive onus for the other elements is unclear.
3) Element 1: Intoxication Without Intention
In order to rely on the defence, the intoxication must not be intentional.
But if he intentionally caused himself to become intoxicated, that defence is not open to him. It
is, however, a defence if his mind was so disordered as to be unsound within the meaning of
s27 of the Criminal Code, and if this condition was caused by intoxication which arose without
any intention on his part. R v Corbett[1903] (Griffith CJ).
The circumstances much be such that it is not fair to hold the accused person responsible for
his/her own intoxication.
In Parker v R (1915) it was suggested that there should be a presumption that a person who
drinks to excess intended to become intoxicated.
Re Bromage[1991]: The accused had involuntarily inhaled organo-phosphates, but he had also
voluntarily consumed alcohol. The result was a state of intoxication. The question was whether
this intoxication was involuntary or not.
Held: Where at least part of the intoxicant is involuntarily consumed, the defence
contained in s28(1) is open to be considered by the jury.
In response to this case, Queensland amended their Code to exclude the operation of this
defence when any aspect of the intoxication was intentional. In WA, the position is undecided.
4) Element 2: Deprivation of Capacity
s28(1) states that Section 27 applies to the case of a person whose mind is disordered by
intoxication or stupefaction.
Smith v R [1949] St R Qd 126 interprets this as meaning that the intoxication or stupefaction
must lead to the deprivation of capacities outlined in s27.
(1)Capacity to know what (s)hes doing
[This relates to the ability understand the effect of physical acts.]
(2) Capacity to control his/her actions
[This relates to conduct that is independent of the exercise of the will. Wray (1930) 33 WALR 67
suggests that irresistible impulse could fall into this category.]

(3) Capacity to know (s)he ought not do the act

[The third capacity relates to a person who does not know that the conduct is morally wrong.
"Could this man be said to know in this sense whether his act was wrong if through a
disease or defect or disorder of the mind he could not think rationally of the reasons which to
ordinary people make that act right or wrong? R v Porter (1933).]
Impairment of capacity is not sufficient to discharge the burden of proof, there must be
deprivation.
5)The Consequences of s28(1)
If the defence is established, it amounts to the defence proving insane automatism.

Hence, the consequences are exactly the same as if the insanity defence in s27 had been
made out: not guilty by reason of unsoundness of mind, with the person then being dealt with
under the Criminal Law (Mentally Impaired Accused) Act1996(WA).
i.e. see intoxication defence as outlined above.

TOPIC 5: Mistake of Fact

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.

Mistake of fact: s24

s24 creates the general defence of mistake of fact.
Thus it is important to distinguish mistakes of fact from mistakes of law.
24
Mistake of fact
A person who does or omits to do an act under an honest and reasonable, but
mistaken, belief in the existence of any state of things is not criminally responsible for the act or
omission to any greater extent than if the real state of things had been such as he believed to
exist.
The operation of this rule may be excluded by the express or implied provisions of the
law relating to the subject.

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

4) Element 1: A state of things Is the mistake one of law(22) or fact (24)?

If the mistake relates to an observable fact, then it is a mistake of fact; if it relates to a legal
conclusion drawn from observable facts, then it is an error of law. Sancoff v Holford: (mistake of
law, s24 defence cannot apply)
... in the distinction between mistakes of fact and of law, a mistake as to the existence of a
compound event consisting of law and fact is in general one of fact and not a mistake of law.
Thomas v King
There is some seemingly conflicting authority on whether it has to be a present state of things.
(Gould and Barnes)
Positively Held Belief: The accused person must have a positively held belief; a person who is
ignorant of the state of things can not claim the benefits of the defence. (Larsen v G J Coles
and Co Ltd)
5) Element 2: Honest Belief
This is a subjective assessment. This means no more than the belief has to be actually held by
the accused person (G J Coles & Coy Ltd v Goldsworthy).
The intoxication of the person can be taken into account in deciding whether or not the person
honestly held the belief (Daniels).
6) Element 3: Reasonable Belief
This is the objective element. It must be reasonable for the person to have made the mistake.
Larsen v G J Coles and Co Ltd: mistake was not reasonable because they had not based their
belief on any solid information.
Ostrowski v Zaza: reasonable for a fishing boat captain to believe that lobsters were over legal
size as employee was supposed to check the fact, employee did not do their job.
The reasonable man is always sober, so intoxication by the accused will not be considered in
this element (Daniels).
7) Consequences of s24
s24 states that the person will not be criminally responsible to any greater extent than if their
mistake was actually the case.
Pretend that whatever the accused person thought was actually the case, and then base their
criminal responsibility on that.

TOPIC 6: Bona Fide Claim of Right (s22)

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) 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).

4) Element 1: Claim of Right

The person needs to be exercising some kind of right over the property, and that property must
be the subject of the charge.
The right does not have to exist at law, providing they honestly believe that they are exercising a
right that exists (Walden v Hensler).
R v Walsh: Walsh owned an avocado tree. His neighbours ox was eating his avocados, so he
shot the ox. He was charged with criminal damage of property.
Held:Walsh was not trying to exercise any property rights that he thought he might have over
the ox; he was simply protecting his avocados. Therefore, he could not raise the defence of
bona fide claim of right.
Pollard: Pollard borrowed his housemates car without permission. Never previously asked to
borrow the car. Claimed that he thought that if he had asked, 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).

6) Element 3: Without Intention To Defraud

This element doesnt really add much to the previous element.
It does not necessarily exclude a person from acquiring the property over which the claim
applies by dishonest means but it does leave room for a jury to decide that the property was
obtained with an intention to defraud.
Because he might have done a certain thing honestly it does not follow that he cannot be
convicted if he uses false documents; the jury may well find an intent to defraud That is not to
say they must, but there is evidence on which they can do so. Hopley.
7) Consequences of s22
If a person successfully raises bona fide claim of right, they are not criminally responsible for the
property offence for which they have been charged.

TOPIC 7: PROVOCATION
Used in reference to assault-based offences
Term used: provocation: defined in s245.
Defence found in s246.

1) What is the "wrongful act or insult (R v Stingel) that constitutes provocation?

Flows from the victim to the accused generally
Onus: Standard onus of proof ( R v Stingel)
But the judge must be alert to the possibility of leading the defence to jury
whenever there may have been loss of self-control. (Van den Hoek v R)
Provocation of close family can be sufficient: s245 (first two paragraphs) provides certain
circumstances where if the taunt or insult is about your family or spouse and they are in the
same room and the accused, as a result of this, retaliates and hits the victim you can use the
provocation defence.
A facial expression is insufficient to constitute provocation (Tough v Kay)
Why would something constitute an insult? consider the context of the insult. It is likely that
someone in (victims) position would consider (accuseds act or words) to be an insult.
2) Not a lawful act
lawful: expressly declared as lawful by the code. i.e. it is lawful for police to use reasonable
force when undertaking an arrest"
The third paragraph of s245 states that a lawful act cannot be a provocative act.
There are two possible interpretations of what might be a lawful act:
1.Any act that is not illegal (Stevens and Doglione[1989] 2 Qd R 386) a broad interpretation.
2.An act that is expressly declared by the Criminal Code as being lawful (Roche [1988] WAR
278) a narrow interpretation.

The High Court in R v Stingel(1990) 171 CLR 312 expressed a preference for the second
interpretation.
3) Deprive the ordinary person of self-control
This is the way of putting objective limits on the defence.
An ordinary person must be likely to lose self control based on the act or insult.
There is a difference between an ordinary person and a reasonable person, because the
reasonable person never loses self-control. Where a jury are directed about a reasonable
person rather than about an ordinary person, it leads to a miscarriage of justice (R
v Stingel(1990) 171 CLR 312).
Age is the only characteristic to be given to this hypothetical reasonable person. (R v Stingel)
4) And induce the ordinary person to assault with the same degree of force
This is a separate ordinary person test.
It asks whether, having lost self control, a [different] ordinary person would be induced to
assault with the same kind of violence as the accused person.
This ordinary person has almost all of the characteristics of the accused person:
[N]one of the attributes or characteristics of a particular accused will be necessarily irrelevant to
the assessment of the content and extent of the provocation involved in the relevant conduct.
For example, any one of the accuseds age, sex, race, physical features, personal attributes,
personal relationships and past history may be relevant to an objective assessment of the
gravity of a particular wrongful act or insult. R v Stingel.
Any of these that are relevant can be used in the test. i.e. does this person have a propensity
to violence?
An exception to the rule

In deciding on the second test from Stingel, if the accused person is particularly sensitive to
racial slurs, it is not a characteristic given to the ordinary person. The [hypothetical] reactions of
an ordinary Aboriginal woman to the particular insults is what should be considered by the test.
[An] undue emphasis upon the susceptibility and sensitivity of the person provoked has the
result that, to a great extent, the test becomes lost in a wilderness of detail, and there is little left
for the second limb of the Stingel test to do, once all of those details are taken into account it
does not require that the hypersensitivity, or idiosyncratic beliefs, or uncommunicated views and
experiences, of the accused be taken into account so as to have regard to the subjective view
of the accused concerning the gravity of the provocation (questions of mistake aside). The latter
are, to use the language of the traditional distinction, individual peculiarities bearing on selfcontrol rather than upon gravity. Verhoeven(1998) (Wheeler J).
Thus, any hypersensitivities of the accused should not be given as characteristics of the
accused person.

5) (actually) Deprived [him/her] the power of self control

This test is entirely subjective in nature; you ask whether in fact the accused person lost selfcontrol.
Thus factors like intoxication do not need to be accounted for, even if the intoxication was a

contributing factor in the accused person losing self-control.

6) Acts on the sudden

The person must act in response to the provocation immediately, before they regain self-control.
This is the primary element of the defence that is criticised by feminists as legitimising a
masculine response but not protecting a feminine response.
Dont be confused by killing on provocation cases (the old s281), as that provision
required the provocation to be sudden (in the sense that it had to be unexpected).

7) Force is not disproportionate

This is another objective element. As a matter of policy, certain attacks will not be permitted if
the degree of violence in the attack is too high when compared with the provocative act.

8) Not intended or likely to cause GBH

These are fairly simple to apply; you use the s1 definition of GBH.
GBH s1: any bodily injury of such a nature as to endanger, or be likely to endanger life, or to
cause, or be likely to cause, permanent injury to health.
Note that it does not prevent the defence being used for sections like the new s281 (unlawful
assault causing death), providing the consequence of death (or serious injury) was not a likely
one.

9) Consequence of the provocation defence in s246

s246 states that the person is not criminally responsible, so this will act as a complete defence
to the charge.

Defensive Force (print other notes)

Emergency, Medical Necessity and Duress (print other notes)
Drug Offences (print other notes)