Criminal defences in Queensland are governed largely by the Criminal Code 1899 (Qld). Defences in criminal cases work in a very particular way. In criminal cases the prosecution has to prove all of the elements of a particular offence at the standard known as ‘beyond reasonable doubt.’ If the prosecution fails to prove one of the elements to the offence beyond reasonable doubt, the accused will be relieved of the charge.
The first role of a criminal defence lawyer is to argue that the prosecution has failed to prove one of the elements beyond reasonable doubt. If this does not work, criminal defences in Queensland allow the accused to claim a particular circumstance which can either partly or wholly excuse them from the charge. Below we discuss some of the most common defences and how they apply in criminal cases in Queensland.
Chapter 5 of the Criminal Code 1899 includes a number of general defences which apply to most offences. Some offences are specifically excluded from these Chapter 5 general defences.
The Code also includes a number of defences which apply only to certain offences. These are generally contained with the offence provision itself, in the same chapter or in the same division. These types of defences will specifically state which offences or what circumstances the defence will apply.
General criminal defences in Queensland – complete defences
Criminal lawyers usually refer to defences which result in the complete exoneration of an accused as a ‘complete defence.’ This is to compare to ‘partial defences’ which apply to reduce the liability of an accused for committing a crime (this is discussed further below).
Self-defence is a defence which can be used when an accused has been unlawfully assaulted and did not provoke the assault. It legally permits an accused to use all the force which is necessary for them to defend themselves against the assault.
The degree of force used must be proportionate to the perceived danger. This means that the use of force must be equivalent to the force of the assault. Unless there is a reasonable threat of serious harm or death of the accused, the amount of force used to defend themselves must not be likely to result in death or causing serious harm.
An accused who does provoke an unlawful assault can also lawfully use enough force to defend themselves. Though, they cannot use self-defence if the act which provoked the unlawful assault was intended to cause serious harm or death. Under section 272 of the Code, self-defence will also not apply if the other person tried to end the altercation with the accused.
The defence of involuntariness recognises that there will be some situations where an accused might not have acted or had failed to act as they lacked free will. This means that under section 23(1)(a) of the Code, an accused will not be criminally responsible for their actions or omissions if those acts or omissions were done involuntarily or against their free will.
For example, there is a hostage situation and the hostage-taker orders the accused who is one of the captives to tie up another person. The accused can use the defence of involuntariness to be found not guilty of an offence, as the action was not of their own free will.
The unforeseeable consequence defence acts to exonerate an accused if both the accused actions (or omissions) were not foreseen by them and could not be reasonably foreseen. This section 23(1)(b) defence was often used in the ‘one-punch’ cases. Those cases usually involved the victim not dying from a result of a punch but from hitting their head as they fell to the ground.
The law has since changed and the unforeseeable consequence defence can no longer be claimed in one-punch or ‘unlawful striking’ cases (see section 314A of the Code).
Mistake of fact
The mistake of fact defence allows an accused to be found not guilty when they acted under an honest and reasonable belief that a particular set of circumstances existed.
For example, an accused had been fishing in an area where it is illegal but they believed on the basis of their GPS readings that they were in a legal fishing area. In this example, the accused may be successful in claiming the defence of mistake of fact.
If a claim of mistake of fact is successful, the facts of the case will be treated as if things were as the accused (mistakenly) believed them to be. This might then mean complete exoneration for the accused but it also may not. It all depends on the actions of the accused in the particular case.
The defence does not apply to a mistake as to how the law applies. The Code clearly provides that ignorance of the law will not excuse a person from an offence unless the offence clearly states otherwise (under section 22(1)).
Honest claim of right
Under section 22(2) of the Code, the honest claim of right defence applies to an accused who:
- Acts or fails to act;
- In relation to property;
- Because they believed that they had a right to the property; and
- The belief was honest which mean they had no intent to defraud
Due to how specific the defence is, it will only apply to cases where the accused has been charged of a property offence. In these cases, the accused can use the honest claim of right if they can prove the above steps.
In some cases, an offence could be committed because of an extraordinary emergency. The defence under section 25 of the Code, allows an accused to not be found guilty if they had no choice but to commit the offence in a sudden or extraordinary emergency situation. To successfully claim the extraordinary emergency defence, an accused must prove that it could not be reasonably expected that an ordinary person would acted differently in that situation.
In Queensland there is a legal presumption in section 26 of the Code which states that every person is of sound mind. This means the court will take the legal presumption to be true until there is evidence to suggest otherwise.
To establish the insanity defence under section 27(1) of the code, it must be proved that at the time of committing the offence the accused was suffering from some kind of mental disease or infirmity. It must be then proved that the accused was unable to understand, control their actions, or unable to determine that they should not act as they did as a direct result of their mental disease or infirmity.
Further, there are special rules if the accused was suffering from mental delusions at the time of the offence (section 27(2)). In these cases, the accused will only be held responsible for their conduct had the circumstances actually been as the person believed them to be.
A successful insanity defence results only in a ‘qualified acquittal’ which means that that the accused will be held for treatment indefinitely in a facility.
The intoxication defence acts as a ‘temporary insanity’ defence but only in very specific cases. An accused whose mind was ‘disordered’ due to intoxication by drugs or alcohol will be treated as insane at the time of the offence. This only applies if they did not, in ‘to any extent’ intentionally intoxicate themselves.
The intoxication defence is only relevant to offences which require the accused to have intent. As unintended intoxication has the result of being legally treated as insane at the time of the offence, this defence is relevant to determining whether the accused had the capacity to intend to commit the offence.
Under section 29(1) of the Code, children under the age of 10 cannot be held responsible for any criminal offences in Queensland.
For children who are 10 years or over but are under 14 years, there is a legal assumption that they cannot be responsible. This legal presumption can be overturned if the prosecution can provide proof that the child was capable of understanding that they should not have acted as they did at the time of the offence.
Duress or compulsion
The defence of duress (also known as ‘compulsion’ in Queensland) can be claimed if the accused:
- was carrying out the law or they were obeying some authority (unless the conduct was clearly unlawful);
- can show there was a threat of serious violence to the accused or someone else in their presence if the accused refused to commit the offence; and
- acted to save any person or property from serious harm.
This defence will apply as long as the accused reasonably believed there was no way to avoid the violence. The accused’s conduct must also be proportionate to the threat.
Under section 31 of the Code, this defence does not apply to the following:
- offences which involve causing or intending to cause, serious harm, or
- Anyone who has voluntarily become involved in some kind of unlawful association or conspiracy.
General criminal defences in Queensland – partial defences
As stated above, there are a number of criminal defences in Queensland which will not completely absolve the accused of responsibility, but to reduce their liability. This means that the accused will still be held criminally liable for their actions but that liability will be at a lower extent than the original offence. These kinds of defences are known as partial defences.
Diminished responsibility is only a partial defence. It applies to downgrade a murder conviction to manslaughter.
The diminished responsibility defence applies in circumstances where a n accused unlawfully kills another person and has an abnormality of mind to the extent that their capacity to control their actions is substantially impaired. The defence acts as a partial defence to downgrade the charge of murder to manslaughter.
One of the most controversial criminal defences in Queensland is provocation. Above, it was noted that self-defence involves provocation. In cases where there was not an unlawful assault but there was provocation, the defence acts as a partial defence to a crime.
The provocation defence states that an accused will not be criminally responsible for an assault if they were provoked to the extent that the accused lost their self-control. The assault must be proportionate to the provocation. Similarly, the force used by the accused must not be intended to cause grievous bodily harm or cause death.
Specific criminal defences in Queensland
There are many specific criminal defences in Queensland law. Specific defences are defences which apply to specific offences and are used by criminal defence lawyers strategically. The most common ones are discussed below.
While not really a ‘defence’ consent can be used in such a way to provide a defence for an accused. Instead of wholly exonerating an accused for a crime or decreasing an accused’s liability, consent is used to tear down a prosecution’s case of a crime.
The use of consent is therefore restricted to offences which require non-consent as an element that the prosecution must prove beyond reasonable doubt.
The types of offences where consent can be used are sexual assault or rape cases. It can also be raised in cases of assault under section 245 and 246 of the Code. Importantly, consent cannot be used as a defence against crimes where grievous bodily harm or murder has been inflicted (per section 284).
The double jeopardy defence is famous, mainly because of the film of the same name. It is a defence which can be used if an accused has been previously been acquitted or convicted for that same or a similar offence which arose out of the same conduct.
Double jeopardy acts differently in cases of murder (sections 678B and 678D of the Code). If there is fresh and compelling evidence which was not available in the first instance, double jeopardy may not apply.
Similarly, under sections 678C and 678E, the defence may not apply if an acquittal arose because of perjury or a similar reason.
Honest and reasonable belief of age
For largely sexual offences involving under-age children, there is a defence of honest and reasonable belief of age in Queensland.
The age of consent in Queensland is 16. This means that in accordance with Queensland law, people can consent to sexual acts from this age. There is therefore a legal presumption that children under the age of consent are unable to provide consent for sex acts.
The honest and reasonable belief in age defence acts to absolve responsibility for an offence where the element involves the age of the victim. The accused must have reasonable grounds and honestly believed the victim was 16.
This defence applies to the following offences:
- Indecent treatment of a child under the age of 16 years (section 210);
- Permitting the abuse of children on your premises (section 213);
- Carnal knowledge of or with a child under the age of 16 (section 215); and
- Procuring children through the internet (s 218A).
A similar defence often applies for cases of abuse of people with an impairment of the mind (for example, section 216).