Conclusion to Defences

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This article is a topic within the subject Criminal Laws.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 643-45.

Defences and Criminal Liability

“To offer a criminal defence is to offer an exculpatory answer for the commission of a criminal wrong...” (RA Duff)[1]

  • Defences function as a further set of rules governing the attribution of criminal responsibility (beyond the defining actus reus and mens rea).
  • The absence of a defence must be proved beyond reasonable doubt by the prosecution, with the exceptions of insanity, substantial impairment and some statutory defences.

Andrew Norrie describes the broad doctrine of defences in the following way:

  • They are reflective of the idea of individual choice, and that penal actions should only follow a freely chosen act.
  • They are ‘negative fault requirements’ which operate to supplement and qualify judgements of responsibility based on the ‘positive fault requirements’ which have to be established in order to prove an offence.
  • Primacy is given to actus reus and mens rea categories such as voluntariness and intention rather than examining possible justifications or excuses (such as poverty).
    • “Questions of motive and the moral, social and political context of human behaviour are suppressed and denied.”[2]
  • The defences of necessity and duress address “those situations in which it is hardest to separate intention and agency from context... because these defences operate against the logical grain of the law’s abstract individualism, they sit uncomfortably with the standard legal categories.”[3]
    • “They play along the fault line generated by the law’s decontextualised individualism and this accounts for their continually ‘provisional’ character within legal discourse.”[4]

Sentencing and prosecutorial and executive discretion

Despite severe criticisms of various defences, some opinion favours sentencing discretion as an alternative to the abolition of defences such as provocation.

  • Criticism has been leveled particularly at the “inability of many defences to appropriately recognise the moral, social and political context of criminal behaviour.”[5]
  • Deficiencies have been identified as the failure of the defences to:
    • “account adequately for the experiences of women who kill in the context of long-term domestic violence perpetrated by the victim,
    • to recognise the moral and political dimensions of homophobic violence,
    • to avoid stereotyping of indigenous offenders,
    • to recognise and punish appropriately killings by men in a state of anger or loss of control,
    • and to respond appropriately to the needs of offenders with various mental health problems.”[6]
  • However, a sentencing solution would involve attaching a criminal conviction to the offender, which Ashworth notes is “rightly regarded as condemnatory, an indication of fair labelling.”[7]
    • No liability should attach to those cases where blame is unwarranted by virtue of a complete defence.
  • The role of the jury would also be downplayed by a sentencing solution.
  • “Sentencing decisions may be based on discriminatory and biased grounds and are less open to review by appellate courts than are the substantive rules of the criminal law.”[8]
    • There are also associated procedural problems such as the tendering of evidence by way of report, where witnesses are rarely called for cross-examination.
  • Rather than using sentencing as a mechanism to replace defences, prosecutorial discretion could be used to filter meritorious cases, however the problems with this approach include that:
    • The discretion is not open to review.
    • It does not occur in an open court.
    • It may allow decisions to be made on irrelevant or discriminatory criteria.
    • It avoids an enforceable court order in appropriate cases.
  • If such decisions were made by the executive they would be even less transparent and open to legal challenge.


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Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Answering for Crime: Resposnibility and Liability in the Criminal Law (2007) at 297.
  2. Law and the Beautiful Soul (2005) at 53.
  3. Crime, Reason and History: A Critical Introduction to Criminal Law (2001) at 230.
  4. ibid.
  5. textbook, pp 644.
  6. textbook, pp 644.
  7. Principles of Criminal Law (1991) at 216.
  8. textbook, pp 644.
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