Criminal Defences (NT)
The criminal defences that can be relied on in Northern Territory courts are set out in the Criminal Code Act 1983. Most of these are based on common law defences that have been developed through successive court decisions in the UK and Australia. This article briefly outlines each of the criminal defences that can be relied on in the NT.
Section 27 of the Criminal Code Act establishes that the use of force is justified in some situations.
The circumstances where justification can be argued in relation to a use of force that does not result in serious harm or death include where a person is being arrested or prevented from escaping from lawful custody, where a person is being prevented from committing suicide and where a person is preventing the commission of an offence.
The use of force can also be found to have been justified where it does result in serious harm or death, but only in very limited circumstances – for example, where a police officer is attempting to arrest a person who may commit an offence punishable by life imprisonment if not arrested.
The law recognises a person’s right to act in self-defence or in defence of another person or of property. This right is codified in section 29 of the Criminal Code.
Under that provision, a person’s conduct is defensive only if the person believes that their actions are necessary to:
- defend themself or another person;
- prevent a person from being unlawfully deprived of their liberty;
- to protect property;
- to prevent trespass or remove a trespasser;
AND the conduct is a reasonable response in the circumstances as the person perceives them.
It is not permissible under this section to use force that is intended to cause death or serious harm in defence of property.
A person is not guilty of an offence if the offence was committed under circumstances where there is an excuse under section 30.
Ignorance of the law
A person cannot rely on ignorance of the law as a defence except where knowledge of the law is an element of the offence.
Honest claim of right
A person is not guilty of an offence in relation to an act done in relation to property where there is an honest claim or right and no intention to defraud.
A person is not guilty of an offence in relation to an act, omission, or event if they did not intend or foresee it as a consequence of their conduct. This is the defence of unwilled acts and it is contained in section 31.
Honest and reasonable mistake
A person who does an act or makes an omission under an honest and reasonable but mistaken believe in a state of affairs is not criminally responsible for the act or omission except to the extent that they would have been if the state of affairs had existed. This defence is contained in section 32.
The defence of honest and reasonable mistake of fact is the only defence that can be relied on in relation to strict liability offences.
Sudden and extraordinary emergency
A person can rely on the defence of sudden and extraordinary emergency in relation to conduct that was done in the context of an emergency where an ordinary person in similar circumstances would have acted similarly (section 33).
A person below the age of 12 cannot be found guilty of an offence in the NT.
A person between the ages of 12 and 14 can be found guilty of an offence only if it can be proven that at the time of doing the act, the child was capable of knowing that they should not do the act.
When a child under 14 is charged with an offence, the defence can rely on the defence of doli incapax (immature age). The prosecution then has the burden of proving that the child had the capacity to know right from wrong (section 38).
A person is not guilty of an offence if they were acting under duress (section 40).
A person is acting under duress if:
- a person is making a threat that they believe the person is able to execute;
- they believe there is no other way they could escape the execution of the threat;
- an ordinary person would have acted similarly under similar circumstances;
- they reported the threat to the police as soon as reasonably practicable.
The defence of duress cannot be relied on in relation to offences involving causing serious harm such as murder or manslaughter. It cannot be relied on where the accused has voluntarily associated with criminals and thereby made themselves liable to such threats.
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