1. Defences
Legal Studies 3C

2. Defences
A person who admits to a criminal offence may adopt a defence that justifies or excuses their actions.
Specific defences, if proven, operate to remove one of the elements of a crime, thus precluding the prosecution from proving their case beyond a reasonable doubt. For example, the defence of self defence removes the mens rea element as, if proven, clearly the accused’s intention was to defend themselves or a third party and not commit the crime.
 There is a range of defences open to a defendant, but they can be categorised into two main types:
Complete defence or absolute defence – a justification that excuses the defendant’s action and results in an acquittal, and
Partial defence or qualified defence – an excuse for the defendant’s action that might result in a reduction in the charge and /or punishment
Provide handout.

3. Newspaper articles relating to defences

4. Simon Overland attacker found not guilty by reason of insanity
A MAN who assaulted Tasmanian Justice Department secretary Simon Overland in central Hobart has been found not guilty on the grounds of insanity.
Ryan Kinsellar, 30, of Hobart, pleaded not guilty in the Magistrates Court in Hobart today to a charge of assault.
The court heard he was drunk when he attacked Mr Overland near the intersection of Elizabeth and Liverpool Streets on January 21. Magistrate Glenn Hay heard Mr Overland and his wife had left a wine tasting around 7.45pm and were heading towards the mall.
Kinsellar bellowed as he ran up behind Mr Overland and punched him to the ground. Mr Overland, a former Victoria Police chief commissioner, regained his feet and restrained Kinsellar while his wife called police.
Mr Hay said the expert evidence presented to the court showed Kinsellar was insane at the time of the offence. The case has been adjourned to December 12 for consideration of what further orders might be made.

5. Tasmanian court orders indefinite detention for Nicolau Soares after WA man found not guilty of double murder on grounds of insanity.
A MAN found not guilty of murdering his mother and stepfather will be detained indefinitely in a secure mental institution.
In the Supreme Court in Hobart yesterday, Justice David Porter said Perth man Nicolau Francisco Soares had little insight into his mental illness and posed a risk of violence in the future.
Soares, 29, was found not guilty last month of murdering his parents, retired academics Delys Weston, 62, and Gavin Mooney, 69, at Mountain River in December 2012, on the grounds of insanity

7. Man charged with murder says stabbing in Chinatown carpark was self-defence

8. Activity
Defence activity worksheet

9. Reversal of burden of proof
The use of a defence reverses the burden of proof. The burden of proof is on the accused to prove their defence.
Homework:
Terry Martin case (Tasmania 2011):
What was Terry charged with? (Facts of the case)
Summary or Indictable Offence? (Why do you think this?)
What were the defences Terry used?
What was the sentence?

10. Terry Martin case
Found guilty of having sex with an underage person (being a 12 year old girl).
Supreme Court jury found him guilty of unlawful sexual intercourse with a person under 17 and of producing child exploitation material.
Martin’s offending was directly related to medication for Parkinson’s Disease which caused hypersexual desire. The desire cause Martin to seek 162 sex workers, one of which was the 12 year old.
Sentences to 10 months jail, wholly suspended.

11. Defences used by Terry Martin
Believed she was 18 years of age
Medication for Parkinson caused him ‘substantial impairment of responsibility’.

12. Criminal Code Act 1924 (Section 124)
The age of consent for sexual interactions is 17 years.
If a person is charged with engaging in sexual activities with a person under the legal age, a legal defence is outlined in section 124(2). It states:
It is a defence to a charge under this section to prove that the accused person believed on reasonable grounds that the other person was of or above the age of 17 years.
The consent of a person against whom a crime is alleged to have been committed under this section is a defence to such a charge only where, at the time the crime was alleged to have been committed -
(a) that person was of or above the age of 15 years and the accused person was not more than 5 years older than that person; or
(b) that person was of or above the age of 12 years and the accused person was not more than 3 years older than that person.