the defences available to an accused person under the Criminal Code Act 1899 (Qld), including self-defence, provocation, mistake of fact and insanity

What this dot point is asking

QCAA wants you to know the main defences an accused person can raise in Queensland, where they come from in the Criminal Code Act 1899 (Qld), and the difference between a complete defence (acquittal) and a partial defence (reduces murder to manslaughter). Expect a 3-5 mark short response in IA1.

The answer

Complete versus partial defences

A criminal defence answers the prosecution case even where the physical and mental elements appear to be made out.

• A complete defence, if successful, results in an acquittal. The accused is not criminally responsible.
• A partial defence does not result in an acquittal. It reduces liability, most commonly reducing murder to manslaughter.

Queensland is a code jurisdiction, so most defences are set out in the Criminal Code Act 1899 (Qld) rather than left to the common law.

Self-defence (complete defence)

Self-defence is governed by the Criminal Code Act 1899 (Qld). Section 271 deals with self-defence against an unprovoked assault, and s 272 deals with self-defence against a provoked assault. In essence, a person may use such force as is reasonably necessary to defend themselves against an assault. The force used must be proportionate to the threat. If the assault causes a reasonable apprehension of death or grievous bodily harm, a higher degree of defensive force may be justified.

Once the accused properly raises self-defence on the evidence, the prosecution bears the onus of disproving it beyond reasonable doubt.

Mistake of fact (complete defence)

Section 24 of the Criminal Code Act 1899 (Qld) provides that a person who acts under an honest and reasonable, but mistaken, belief in a state of things is not criminally responsible to any greater extent than if the real state of things had been as believed. The belief must be both honest (genuinely held) and reasonable (one a reasonable person could hold).

Insanity (complete defence)

Section 27 of the Criminal Code Act 1899 (Qld) provides that a person is not criminally responsible if, at the time of the act, they were in such a state of mental disease or natural mental infirmity as to deprive them of the capacity to understand what they were doing, the capacity to control their actions, or the capacity to know that they ought not to do the act. Unusually, the accused bears the burden of proving insanity on the balance of probabilities, because s 26 presumes every person to be of sound mind. The Mental Health Act 2016 (Qld) governs how the issue is dealt with, including references to the Mental Health Court.

Provocation (partial defence to murder; complete defence to assault)

Provocation operates in two ways in Queensland.

• As a partial defence to murder, s 304 of the Criminal Code Act 1899 (Qld) reduces murder to manslaughter where the accused killed in the heat of passion caused by sudden provocation and before there was time for the passion to cool. The provision was amended in 2011 to restrict its availability, including for killings arising out of the breakdown of a relationship.
• As a complete defence to assault, s 269 of the Criminal Code Act 1899 (Qld) can excuse an assault committed under provocation, provided the response was proportionate.

Diminished responsibility (partial defence to murder)

Section 304A of the Criminal Code Act 1899 (Qld) reduces murder to manslaughter where the accused was, at the time of the killing, in a state of abnormality of mind that substantially impaired their capacity to understand, to control their actions, or to know they ought not to act. The accused bears the onus on the balance of probabilities.

Other defences

• Compulsion / duress (s 31): acting under threats of serious harm.
• Extraordinary emergency (s 25): acting reasonably in a sudden emergency.
• Intoxication (s 28): only relevant in limited circumstances, and self-induced intoxication is generally not a defence.

Examples in context

Example 1. Self-defence at a Brisbane nightclub. A patron is punched without warning and pushes the attacker away, who falls and is injured. Charged with assault, the accused raises self-defence under the Criminal Code Act 1899 (Qld) s 271. Because the response was proportionate to an unprovoked assault, and the prosecution cannot disprove it beyond reasonable doubt, the accused is acquitted. Self-defence is a complete defence.

Example 2. Diminished responsibility reducing murder to manslaughter. An accused with a documented severe psychiatric condition kills a family member. The jury accepts that the abnormality of mind substantially impaired the accused's capacity to control their actions. The accused proves diminished responsibility on the balance of probabilities under s 304A. The verdict is manslaughter, not murder, so the mandatory life sentence under s 305 does not apply and the judge has a sentencing discretion.

Try this

Q1. Distinguish between a complete defence and a partial defence, giving one example of each. [3 marks]

• Cue. Complete defence leads to acquittal (e.g. self-defence, s 271). Partial defence reduces murder to manslaughter (e.g. provocation, s 304; diminished responsibility, s 304A).

Q2. Explain the defence of insanity under the Criminal Code Act 1899 (Qld) and state who bears the burden of proof. [4 marks]

• Cue. Section 27: mental disease or natural mental infirmity depriving capacity to understand, control actions, or know the act was wrong. Section 26 presumes sanity, so the accused bears the onus on the balance of probabilities.

Q3. Explain how the burden of proof operates when an accused raises self-defence. [3 marks]

• Cue. Once raised on the evidence, the prosecution must disprove self-defence beyond reasonable doubt. The accused does not have to prove it.