Chapter 4 Defences to Homicide

Chapter 4 Defences to Homicide CONTENTS 137 Unwilled Conduct and Accident 158 Self-Defence 177 Excessive Self-Defence 184 Duress and Extraordinary Emergency 202 The Partial Defence of Provocation 135 Chapter4 4 Contents Unwilled Conduct and Accident Duress and Extraordinary Emergency Introduction 137 Introduction 184 The scope of the defences under s 23 of Underlying rationale 184 the Code 137 Duress in Western Australia 186 Unwilled conduct 138 The problems with duress under the Code 186 Conscious unwilled acts 139 A new defence of duress 188 Automatism 140 Offences excluded from the defence 189 Conclusion 151 Emergency in Western Australia 190 Accident 151 Nature of the threat 190 The defence of accident and deliberate Proportionality 191 violence 152 Ordinary person test 191 Conclusion 156 A new defence of emergency 191 The proviso under s 25 of the Code 192 Self-Defence The defences in practice 192 The law in Western Australia 158 Self-defence against unprovoked assaults 159 Duress and murder 193 Self-defence against provoked assault 160 Arguments against extending duress to murder 193 Arguments in support of extending duress to The different tests for self-defence in murder 195 Australia 161 Duress as a partial defence 197 Common law 161 The Commission’s view 197 Model Criminal Code 162 Emergency and murder 199 The need for reform 162 The distinction between duress and emergency 199 The law of self-defence is complicated 162 The Commission’s view 200 The law of self-defence is gender-biased 164 The Partial Defence of Provocation Reformulated test for self-defence 169 Subjective test 169 History 202 Objective test 170 The law of murder 202 A mixed test – both subjective and objective 170 The social context 203 Reasonableness of belief or reasonableness of The changing rationale for the defence 203 response or both 170 Provocation in Western Australia 204 Lawfulness 171 Fundamental elements of provocation 205 The Commission’s Recommendation for Provocation 205 self-defence 172 Loss of self-control: the subjective element 206 Other provisions in Western Australia The ordinary person test: the objective dealing with defensive force 172 element 206 Section 31(3) of the Code 172 Criticisms of provocation 210 Defence against home invasion 173 The lack of a consistent rationale 210 Conclusion 175 Provocation excuses intentional killings 211 Excessive Self-Defence Provocation condones violence 212 Gender-bias 212 History 177 Provocation is unnecessary in the absence Excessive self-defence in practice 178 of mandatory life imprisonment 216 Is excessive self-defence too complicated? 178 Should provocation be retained in Western Is excessive self-defence unnecessary? 178 Australia? 218 Might excessive self-defence disadvantage Intentional killings should be distinguished from women? 179 unintentional killings 218 Excessive self-defence and moral culpability 180 The Commission’s approach to partial defences 218 Should excessive self-defence be introduced Provocation can be dealt with during in Western Australia? 181 sentencing 220 The appropriate test for excessive The Commission’s recommendation 221 self-defence 182 The complete defence of provocation 222 136 Law Reform Commission of Western Australia – Review of the Law of Homicide: Final Report Unwilled Conduct and Accident INTRODUCTION of a motive. Motive is, of course, relevant to sentencing because the motive of the accused may demonstrate Section 23 of the Criminal Code (WA) (the Code) deals increased or reduced culpability. with two fundamental rules in relation to criminal responsibility – the defences of unwilled conduct and The scope of the defences under s 23 of accident.1 The first paragraph of s 23 of the Code provides the Code that: Generally, the defences of unwilled conduct and accident Subject to the express provisions of this Code relating to are applicable to any criminal offence.5 However, s 23 is negligent acts and omissions, a person is not criminally subject to the express provisions of the Code relating to responsible for an act or omission which occurs independently negligent acts and omissions. This means that if the of the exercise of his will, or for an event which occurs by prosecution’s case is based upon criminal negligence, s 23 accident. will not operate to excuse the accused from criminal The first rule under s 23 of the Code is that a person is responsibility.6 For instance, an accused may be charged not criminally responsible for an unwilled act or omission with manslaughter on the basis that he was in control of a and the second rule is that a person is not criminally dangerous object under s 266 of the Code. responsible for an event that occurs by accident. Example The relevance of ‘intention’ and ‘motive’ when determining criminal responsibility is also set out in s 23. It is stated A is waving a knife around while standing in close that: proximity to a number of people. B trips over and Unless the intention to cause a particular result is expressly falls into A pushing A’s arm against C. As a result, declared to be an element of the offence constituted, in the knife being held by A penetrate C’s chest. whole or part, by an act or omission, the result intended to C dies and A is charged with manslaughter. be caused by an act or omission is immaterial. Unless otherwise expressly declared, the motive by which a Because A was in charge of a dangerous object he is person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.2 required under the law to exercise care and take reasonable precautions. If it is determined that A failed to exercise Therefore, unless a specific intention is an element of the reasonable care to the standard required under the criminal offence, the intention of the accused is not relevant when law (gross negligence) A will be convicted of manslaughter. determining criminal responsibility.3 Section 23 also makes Thus, it is the failure to exercise reasonable care and take explicit that the motive of the accused is generally not an reasonable precautions that gives rise to criminal liability. element of the offence. However, evidence of motive may In this case it would be irrelevant that the physical act be presented during a trial in order to assist the prosecution causing death was unwilled by A. case.4 For example, if an accused claimed that she had no reason to kill her elderly mother, the prosecution could The meaning of an ‘act’ and an ‘event’ present evidence that the accused stood to gain a significant amount of money when her mother died. The application of s 23 of the Code has been subject to Similarly, an accused may rely on evidence of the absence significant judicial and academic debate. As Justice Miller 1. Although unwilled conduct and accident are commonly referred to as ‘defences’, the accused does not have the burden of proving the defence. The accused has the evidential burden (that is, to ensure that there is sufficient evidence to support the defence). Once this burden is satisfied the prosecution must negate the defence beyond reasonable doubt. In the case of unwilled conduct the prosecution must prove beyond reasonable doubt that the act or omission occurred independently from the exercise of the accused’s will and, in the case of accident, that the event did not occur by accident: see further discussion in Chapter 1, ‘How Criminal Responsibility is Determined: Burden and standard of proof’. 2. Section 23 of the Queensland Criminal Code was originally identical to s 23 of the Western Australian Code. Although the Queensland Code was amended in 1997 to separate accident and unwilled conduct, the wording of each defence is identical to the Western Australian provision. The Tasmanian Code has a similar provision which states that ‘no person shall be criminally responsible for an act unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance’: Criminal Code (Tas) s 13(1). 3. Wilful murder, for example, requires proof of an intention to kill. In contrast, manslaughter does not require proof of any specific intention. 4. See Plomp (1963) 110 CLR 234. 5. Criminal Code 1913 (WA) s 36. 6. See Chapter 3, ‘Manslaughter: Manslaughter by criminal negligence’. Chapter 4: Defences to Homicide 137 4 said in his submission, s 23 has ‘caused a great deal of legal at common law and under the Code an accused cannot difficulty over the years’.7 In particular, there has been be held criminally responsible for an act unless that act conflicting views about the meaning of the words ‘act’ was voluntary. At common law, the physical or conduct and ‘event’.8 The meaning of these words is important element is known as the actus reus and the question of because unwilled conduct is only relevant in relation to an voluntariness is dealt with as part of this element.13 Under act (or omission) and accident is only relevant to an event. the Code the requirement of voluntariness is not part of In general terms the difference between an act and an the requirement to prove the physical element of the event is the difference between the physical or bodily offence. Instead, s 23 of the Code provides that a person movements of the accused and the consequences of those is not criminally responsible for an act (or omission) that physical movements.9 For homicide offences the event occurred independently of the exercise of his or her will.14 for the purposes of s 23 of the Code is the death of the Thus, the concept

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