Criminal Defences in Tasmania

When a person is Tasmania is charged with a criminal offence, there are a number of legal defences that they may rely on. These are set out in the Criminal Code Act 1924. Many criminal defences are broadly consistent across all Australian jurisdictions as they are all derived from the common law, but differences exist in the way they have been codified in the legislation of different states and territories. This article summarises the main criminal legal defences that are available in Tasmania.

What are legal defences?

Legal defences are criminal law principles that hold that, if certain matters can be established by evidence, the accused is absolved of liability for an offence. In order to secure an acquittal based on a legal defence, it is not always necessary to prove that the accused did not commit the physical elements of the offence. A factual defence, by contrast, is a defence that establishes that the accused did not carry out the conduct alleged. Examples of factual defences are alibis and mistaken ID.

Self-defence

A person has a legal defence if they commit an act involving the use of force to defend themselves or another person provided the amount of force used is reasonable in the circumstances. This defence is contained in section 46.

The defence of self-defence is based on the principle that people are allowed to protect themselves from threats, provided this is not done disproportionately to the threat faced.

Mistake of fact

The defence of mistake of fact in Tasmania is contained in section 14 of the Tasmanian Criminal Code. If a person charged with an offence to which this provision applies can establish that they were acting under an honest and reasonable but mistaken belief is a set of facts that, if true, would have rendered their conduct innocent, they are not guilty.

Mistake of fact is the only legal defence that applies to strict liability offences. Strict liability offences are offences that do not require the accused to have had a specific mental state, such as intention or recklessness. Examples of strict liability offences are dangerous driving and culpable driving.

Mistake of fact can be relied on in relation to child sex offences where the child was aged over 13 and there was an honest and reasonable but mistaken belief that they were over 17 provided the accused took reasonable steps to ascertain their age.

Mistake of fact can be relied on in relation to sexual offences involving consent under some circumstances. However, it does not apply if the accused was reckless as to consent, did not take reasonable steps to ascertain whether there was consent or was voluntarily intoxicated.

Insanity

Under section 17, a person is not criminally responsible for an act done when they were afflicted by a mental disease that rendered them incapable of:

• Understanding the physical nature of the act or omission;
• Understanding that they should not do the act or make the omission

Or when the act or omission occurred under an impulse that the accused was unable to resist because of a mental disease.

When this defence is relied on, evidence that the accused was unable to control their conduct generally at the time of the offence is relevant to determining whether they were responsible for the offence.

Intoxication

The defence of insanity can be applied to someone suffering a disease of the mind caused by intoxication.

Where a person is charged with an offence that requires a specific intent, evidence of their intoxication can be taken into account in assessing whether they had the requisite intent.

Intoxication that does not amount to a disease of the mind is not a defence.

Compulsion

Compulsion, also known as duress, is a defence under section 20. If a person is subjected to threats of death or grievous bodily harm by a person who is actually present at the scene of the offence and the accused believed the threats will be carried out, they have a legal defence.

The defence of compulsion is not available in relation to charges of treason, murder, piracy, offences deemed to be piracy, attempting to murder, rape, forcible abduction, aggravated armed robbery, armed robbery, aggravated robbery, robbery, causing grievous bodily harm, and arson.

The defence is not available if the accused was part of an association or conspiracy which made them subject to the compulsion.

Immature age

The age of criminal liability in Tasmania is 10. This means that a child under 10 cannot be charged with an offence.

A child who is over 10 but under 14 can rely on the defence of doli incapax (immature age). This defence will succeed if the prosecution cannot prove that the child was capable of understanding that they should not have carried out the conduct that made up the offence. This defence is contained in section 18.  

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.