SELF-DEFENCE, DURESS, NECESSITY & COMPLICITY SELF-DEFENCE CLCA s15(1): It is a {complete} defence to a charge of any offence if: (a)

a) the D genuinely elie!ed the conduct (to "hich the charge relates) to e necessary and reasona le for a defensi!e purpose# and ( ) the conduct "as$ in the circumstances as the D genuinely elie!ed them to e$ reasona ly proportionate to the threat the D genuinely elie!ed to e%ist& CLCA s15('): It is a partial defence to a charge of murder (reducing the offence to manslaughter) if: (a) {same as s15(1)(a)}# ut ( ) the conduct "as not {rest is same as s15(1)( )}& CLCA s15((): A person acts for a defensive purpose if the person acts: (a) in self defence or in defence of another# or ( ) to pre!ent or terminate the unla"ful imprisonment of himself$ herself or another& CLCA s15()): *o"e!er$ if a person: (a) resists another "ho is purporting to e%ercise a po"er of arrest$ or some other po"er of la" enforcement# or ( ) resists another "ho is acting in response to an unla"ful act against person or property committed y the person or to "hich the person is a party$ the person "ill not e ta+en to e acting for a defensi!e purpose$ unless the person genuinely elie!es$ on reasona le grounds$ that the other person is acting unla"fully& CLCA s15(5): If a D raises a defence under this section$ the defence is ta+en to ha!e een esta lished unless the , dispro!es the defence eyond reasona le dou t& -easona leness of elief Police v Lloyd: .he accused/s elief need not e reasona le& .ype of harm threatened Zecevic: Conduct falling short of the infliction of death or serious odily harm (eg& rape$ prolonged incarceration$ infliction of se!ere pain) could 0ustify the infliction of lethal force& ,re1empti!e stri+es Morgan v Coleman per 2ells 3: .he fact that D acted in self1defence efore an attac+ egan does not$ y itself$ ar the defence& 4elf1defence against la"ful conduct Zecevic: D can plead self1defence e!en if the attac+5threat is la"ful& 6ut see s15()): 4elf1defence is una!aila le to resistance to la"ful force$ unless the accused genuinely elie!es$ on reasona le grounds$ that the other person is acting unla"fully& DURESS Is duress a!aila le as a defence7 Duress as a defence to murder Brown & Morley 8 Darrington & McGauley: Duress is una!aila le to principals in the 1st degree to murder& Duress "ith respect to secondary participants is unclear in 4A& Brown & Morley (4C14A) 8 Howe (*L19:): Duress is no defence to anyone complicit in murder& DPP v Lynch (*L19:) 8 Darrington & McGauley (4C1;IC): Duress is a!aila le as a defence to a charge of murder as a principal in the 'nd degree& 4elf1induced duress Brown & Morley (6ray) + Palazo (<elling): Defence of duress is una!aila le to persons "ho ha!e deli erately placed themsel!es in a situation "here duress can e predicted& .ype of threat allo"ed Palazo : .hreats to the accused/s family are as rele!ant to the duress defence as threats to the accused himself& Palazo : .hreats of future !iolence "ill suffice$ pro!ided it "as continuing and still effecti!e in its operation on the accused/s mind at the time the offence "as committed& Brown: .he threat must ha!e compelled the accused to commit the offence& Is duress esta lished on the facts7 Palazo : .he (complete) defence of duress succeeds if: a person of ordinary firmness of mind "ith the same age$ se%$ ac+ground and other personal characteristics of the accused (e%cept perhaps strength of mind)$ "ould ha!e succum ed to the threats made and committed the offence charged& If a person of ordinary firmness of mind "ith the accused/s personal characteristics had reasona le means to pre!ent the e%ecution of the threat (eg& telling police)$ then duress is una!aila le as a defence& 6ut if telling the police is li+ely to e ineffecti!e$ duress may e a!aila le& !s"orne v Goddard =*us and forced D to commit social security offences& Contacting the police "ould ha!e led to the rea+1 up of her marriage > police "ould e reluctant to help not reasona le& ?arital coercion CLCA s('@A: An a charge against a "ife for any offence other than treason or murder$ it is a defence to pro!e that the offence "as committed in the presence$ and under the coercion$ of the hus and& Bisse: CCoercion/ is pressure sufficient to cause a "oman of ordinary character and firmness$ in the circumstances of the accused$ to commit the offence charged&

SELF-DEFENCE, DURESS, NECESSITY & COMPLICITY NECESSITY Dile ! "#o i$ide% $!ses .he dri!ing "as not so gross as to create another danger& G.oday$ pro a ly follo" general test in (ogers D "hether the dri!er honestly elie!ed on reasona le grounds that his conduct "as necessary to a!oid serious in0ury or deathH GAnly genuinely dire emergencies should e%cuse dri!ing offencesH

Dudley & #te$hens =After eing ship"rec+ed$ Ds +illed and ate a ca in oy to sur!i!e& Ds "ere 0udges in their o"n cause$ of the !alue of their li!es o!er the life of another necessity failed as a defence to murder& %&Children' =3 > ? "ere 0oined together at irth& =If the operation "as performed$ ? "ould die ut 3 "ould ha!e a good chance of li!ing& =If the operation "as not performed$ oth "ould die in a matter of months& 2ard L3: Aperation "as la"ful y self1defence$ ecause ? "as slo"ly +illing 3 D e!en though innocently& 6roo+ L3: Defence of necessity succeeded ecause: .here "as no a solute di!orce from la" and morality here$ unli+e in Dudley & #te$hens& ? had chosen herself for death Eo1one "as a 0udge in their o"n cause$ since it "as the logical choice for her to die& Defence of necessity does not reFuire an emergency$ nor an aggressi!e or unla"ful threat& Es$!pe $!ses (ogers: If the defendant acted as he did$ honestly elie!ing$ on reasona le grounds$ that his conduct "as necessary to a!oid serious in0ury or death$ then his conduct is e%cused& =D spent many years in 0ail and had een attac+ed > threatened& =D attempted to escape ecause he feared a life1 threatening attac+ on him& =D declined protection ecause he thought it "ould place him in greater danger& D had a reasona"le alternative "hich did not in!ol!e a reach of the la" Eo case of necessity& Loughnan: According to (ogers$ the factual considerations rele!ant to "hether the accused/s elief "as o 0ecti!ely reasona le include: .he criminal act "as done only in order to a!oid irrepara le e!il upon the accused or others he "as ound to protect# .he accused honestly elie!ed on reasona le grounds that he "as placed in a situation of imminent peril# and .he acts done are proportional to the peril D A reasona le person in the accused)s $osition "ould ha!e considered that he had no alternatives that are more proportionate to the peril& Tr!ffi$ $!ses *hite =D "as speeding (not dri!ing dangerously) "hile dri!ing his son to a hospital& =D/s son had difficulty reathing and had egun to turn lue& Defence of necessity a!aila le ecause: .he situation in!ol!ed a real danger or possi ility of death# and

COMPLICITY& PRIM'RY LI'(ILITY DOCTRINE OF )INNOCENT* '+ENCY (D has not personally performed physical elements$ ut possessed the fault elements) ( v Cogan & Lea+: A person "ith the reFuisite intent only can e con!icted of an offence$ if an Cinnocent/ agent "as used to perform the physical elements of the offence& =D1 persuaded D' to ha!e se% "ith ;$ D/s "ife& =D' honestly elie!ed ; "as consenting& D' did not ha!e the fault element acFuitted of rape& GD' "as a non1responsi le agentH D1 had the necessary fault element for rape > had used D' as an instrument for the necessary physical act D1 "as a principal offender of rape& )'CTIN+ IN CONCERT*& ,OINT PRINCIP'LS (acting in concert pursuant to an agreement) !sland v (: 2here A is acting in concert "ith 6 pursuant to an agreement to commit a crime$ and is $resent "hen that crime is committed$ A "ill e lia le as a principal for all the actions of 6 done "ithin the scope of the agreement& =D1 and D' planned to +ill ;& =D1 "as present "hen D' +illed ;& D1 and D' "ere acting in concert pursuant to an agreement to +ill ; 8 D1 "as present "hen D' +illed ; D1 "as guilty as a principal in the 1st degree& Bact that D' "as acFuitted is irrele!ant$ as D1/s lia ility is primary$ not deri!ati!e&

SELF-DEFENCE, DURESS, NECESSITY & COMPLICITY COMPLICITY& DERI-'TI-E LI'(ILITY 'IDIN+, '(ETTIN+, COUNSELLIN+ OR PROCURIN+ CLCA 4'IJ: A person "ho aids$ a ets$ counsels or procures the commission of an offence is lia le to e prosecuted > punished as a principal offender& Aid: help$ assist A et: encourage Counsel: ad!ise$ persuade ,rocure: induce$ ring a out .he offence must e committed y someone efore D can e con!icted as an accessory& 1) D +ne" the truc+ "ould e driven with de ective "ra+es# and ') D intentionally $rocured the dri!er to dri!e the truc+$ +no"ing the ra+es "ere defecti!e&

2hat constitutes the Cessential facts/7 %ncuta: :no"ledge that the ,A intends to commit a crime of the ty$e actually committed "ill suffice it is sufficient if D +ne"$ in a general sense$ the offence to e committed& =D supplied ,A "ith false plates$ intending to assist ,A in disguising stolen cars& =D charged "ith aiding > a etting the unla"ful possession y ,A of a stolen car& =D did not +no" the precise car that ,A possessed& P#.si$!l ele en/ 4ufficient that D had +no"ledge of the ,A/s intention to possess a stolen car& D need not +no" the precise details& Any act of instigation$ encouragement or assistance of a ,A ( v Hynes & (ich: ,ro!ided D +ne" of ,A/s intention$ it did "ill satisfy the physical element for accessorial lia ility$ not matter that ,A "ould only possi ly commit the type of pro!ided the act did not occur a ter the ,A has committed the crime ,A intended& offence& =D +ne" that ,A "as possi ly defrauding a trust Con!eyance of support > assent account& Bisse: D must sho" his assent to > promotion of the =D countersigned cheFues$ +no"ing that this "ould principal/s actions {to anyone}& assist ,A in his purpose& (eady: It is unnecessary for the support to e actually 2hen D signed the cheFues (physical element)$ D +ne" con!eyed to ,A& of ,A/s intention to commit an offence of the type =D$ chemist$ referred ; to ,A for an a ortion& su seFuently charged had +no"ledge of essential =D did not communicate "ith ,A& facts& D supported the commission of the offence y It did not matter that the commission of the crime "as referring& only a possi ility$ pro!ided D +ne" of ,A/s intention& Causation Gho"e!er$ if ,A di!erged from the original intention !)#ullivan v ,ruth: A causal connection need not e%ist +no"n y D$ and committed a crime not of the type et"een the accessory/s assistance or encouragement$ originally intended$ then D not lia leH and the commission of the crime charged& Intention to assist or encourage ,A/s acts: Is specific or general %G)s (e erence &-o . o ./01': *o"e!er$ Cprocure/ intent reFuired7 implies a causal lin+ et"een the assistance gi!en and the commission of the offence& 6ronitt: 9nless the aider5a ettor had a specific intent that the crime "ill e committed$ there is no rele!ant intention& Inacti!ity *o"e!er$ as a matter of policy: an aider5a ettor "ho +nows ( v Coney: ?ere presence at the scene of the crime$ if or "elieves that ,A intends to commit a crime$ ut deli erate and not accidental$ may amount to e!idence of ne!ertheless aids (> +no"s he/s aiding) ,A$ is guilty of aiding and a etting& aiding5a etting the crime& =D "atched an illegal priKe fight& L%ample D deli erately > !oluntarily remained during the =6uyer informs seller that he intends to use the po"er1 fight D/s presence pro!ided e!idence of tool to rea+ into a house& encouragement& =4eller does not care "hether uyer does so$ as long as he sells the tool& F!ul/ ele en/ 4eller/s moti!e is to ma+e a profit# ho"e!er$ he +new the purpose of the supply > therefore must ha!e intended to Giorgianni v ( assist in the urglary& .o satisfy the fault element$ the accused must ha!e: *o"e!er$ if seller "as uncertain a out ,A/s intention$ :no"n all the essential facts "hich made ,A/s acts he "ould not ha!e intended to assist& (1st reFuirement not a crime# and met) Intentionally aided$ a etted$ counselled or procured the acts of the ,A& D need not recognise the criminal offence itself$ ut only Deriv!/ive Li!0ili/. of '$$essories the acts "hich constitute the offence& ( v Demerian: If ,A is not guilty$ the secondary parties 2ilful lindness is not an alternati!e to +no"ledge& cannot e guilty either& =D had a truc+ "ith defecti!e ra+es& =D conspired "ith L to lo" up uilding& =2hile eing dri!en y a dri!er$ the ra+es failed > =L accidentally detonated the om and +illed himself& people "ere +illed& L +illed himself unintentionally L did not commit =D "as charged "ith procuring the causing of death y murder D cannot e con!icted of murder& dangerous dri!ing& , must pro!e that:

SELF-DEFENCE, DURESS, NECESSITY & COMPLICITY 2ing v (: Accessory can still e con!icted "here ,A is acFuitted$ if the e!idence against the accessory "as stronger than that against ,A& =D "as charged as an accessory efore the fact (counselling > procuring) to the murder of his "ife& 3ury "asn/t satisfied that ,A +illed ; acFuitted ,A& 3ury "as satisfied that D procured someone to +ill ; con!icted D& ( v Howe: An accessory can e guilty of a greater crime than ,A$ if ,A is successful on a defence& =,A$ in response to pro!ocation$ attac+ed ; "ith intent to cause g h& =D encouraged ,A to continue the attac+$ "ith intent to cause g h& If ; died$ D "ould e guilty of murder despite ,A/s con!iction for manslaughter due to pro!ocation& 1i/#dr!2!l 0. !n !$$essor. 0efore $o prin$ip!l offen$e ission of /#e Accessorial lia ility can e implicitly e%cluded y statutory interpretation& ( v ,yrell: Accessorial lia ility does not apply to persons that the Act "as intended to protect& =D$ 1I yrs old$ aided > a etted unla"ful se%ual intercourse "ith her y ,A& .he Act creating the offence could not ha!e contemplated that those it protects are punisha le under it for aiding and a etting D not lia le& 2eane: 2here the Act creating the offence is intended to protect !ictims from themsel!es$ those !ictims are e%cluded from accessorial lia ility& =D too+ out a restraining order against ,A& =D then called ,A up$ and allo"ed ,A into her home +no"ing that he "as reaching the order& Domestic ;iolence Act is not aimed at protecting people from themsel!es$ ut at protecting people from un"anted conduct causing apprehension or fear Accessorial lia ility is not e%cluded for D& Also reasons of 0ustice > con!enience "hy ordinary principles should apply: It "ould e un0ust for a person to +no"ingly encourage a reach of the order$ ut escape any lia ility& ,olice resources should not e "asted in o taining and enforcing restraining orders for people "ho are "illing to condone it& 2eane is unduly restricti!e& 4eems to e decided more on policy grounds than on legal principle& DOCTRINE OF COMMON PURPOSE ("here D > ,A share a common purpose D if D is a party to an agreement to commit a crime$ rec+lessness "ill suffice) Meneral rule: If D is a party to an agreement to commit a Cfoundation/ crime$ he "ill e lia le for any other crime committed (in the e%ecution of the common purpose) y any party to the agreement "hich D foresa" as a possi ility& Mc%uli e: A common purpose arises "here a person reaches an understanding or arrangement "ith others$ that they "ill commit a crime& Mc%uli e: .he understanding or arrangement may e inferred from the circumstances& 3ohns: .he approach ta+en is su 0ecti!e$ not o 0ecti!e& ( v Heaney: .he common purpose must e continuing during the commission of the crime& ( v Gillard & Preston =D dro!e ,A to scene of crime$ "aited "hile ,A +illed ' people$ and then dro!e ,A a"ay& =D had planned "ith ,A to commit a ro ery$ not murder& .here "as no common purpose$ ecause of ,A/s deceit not accessorily lia le& 3ohns =D participated in a ro ery of ; as a dri!er& =D +ne" that one of the ro ers$ ,A$ had a gun$ and "as !iolent > Fuic+1tempered& =,A +illed ; in the struggle& :illing "as foreseen y D as a $ossi"le incident of the common purpose D guilty of murder& Mc%uli e v ( G eyond scope of common purposeH

( v (oo+: Bor a secondary party to "ithdra"$ he must communicate his change of mind to the others in!ol!ed$ y gi!ing uneFui!ocal notice that if the others proceed$ they do so "ithout his aid and assistance& =D agreed "ith ' others to +ill& =D did not appear on the day of the +illing& Did not communicate his "ithdra"al to the others guilty& Becerra: .he communication of "ithdra"al must e timely& =D > ,A ro+e into house& =D ga!e ,A a +nife to use if they "ere interrupted y anyone& =D heard ; coming$ told ,A to lea!e$ and left& =,A sta ed > +illed ;& D/s communication "as ineffecti!e did not amount to "ithdra"al& *hite v (idley: .o "ithdra"$ D must gi!e a timely countermand and do something reasona ly possi le to counteract the effect of the pre!ious conduct& =D employed ,A to un"ittingly import canni is& =6efore plane left$ D tried to get the airline to cancel deli!ery of the o%& Eot timely communication guilty& ,ietie: 6oth a timely countermand and action to counteract the effect of the pre!ious conduct$ are reFuired for "ithdra"al& =D launched first attac+ on ;& =Athers 0oined in the attac+$ ut then D "ithdre" from the fight& D guilty ecause Eo timely "ithdra"al# and D did not ta+e reasona le steps to pre!ent further harm to ;& )C!usin3 & Per i//in3* offen$es $re!/ed 0. s/!/u/e 4pecific Ccause or permit/ type offences are consistently held y courts to e strict lia ility offences& Giorgianni "on/t apply to statutes$ as it deals "ith accessorial lia ility at common la"& '$$essori!l li!0ili/. e4$luded i pliedl. 0. le3isl!/ure

SELF-DEFENCE, DURESS, NECESSITY & COMPLICITY If D foresa" the $ossi"ility of ,A committing a crime during the e%ecution of the common purpose$ D is lia le for the commission of that crime Ge!en if it "as not planned or agreed toH& =D participated in an agreement to assault people& =,A +illed ;& =D did not intend to inflict g h& :illing "as foreseen y D as a possi ility$ e!en though it "asn/t part of the common purpose D guilty of murder&