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Assess the use of defences to criminal charges in achieving justice (1 Viewer)

Squar3root

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someone asked me this question so i thought i would give the essay plan i wrote available to everyone:

Question: "Assess the use of defences to criminal charges in achieving justice"

chosen defences:
  • mental illness
  • self-defence
  • provocation
criteria for assessment:
- efficiency
- enforceable
- achieve justice for
  • offender
  • victims
  • society

Mental Illness key points
  • not used as often as one might think (only 1.4% of cases actually result in a not guilty verdict "Going crazy in the courtroom" [SMH, 2013])
  • very rigorous in proving it (Outlines in the Mental Health (Forensic Provisions) Act)
  • They "don't get away with it" but rather are found not-guilty and placed in a mental hospital (or whatever they're called)
Self Defence key points
  • Very controversial
  • defined by judge in R v Katarzynski (2002) as "the defendant did what s/he thought was needed to defend himself or someone else from a threat" but this defence is very subjective ("What could defending yourself mean?", (SMH, 2012) )
  • Case of Bracken v R (2007) made the point that the force used was "beyond required" and he went to jail. this is bad because he thought that he needed to use x amount of force when in fact he only needed 0.5x [http://www.theage.com.au/victoria/selfdefence-a-complicated-issue-judge-tells-jury-in-bracken-murder-trial-20140226-33ht7.html, The Age (2014)]
  • Before 2013 was not allowed to be used pre-emptively but the Crimes (Amendment) [Defences to Murder] Act 2013 changed after R v Conlon (2012)
Provocation key points
  • even more controversial
  • provoking is subjective so people have different lines. R v Camplin (1978) [Context: Uncle raped him so the kid killed him] shows us that his situation was unique and that a reasonable person in the same situation would have behaved similarly in the same situation.
  • However this is being used excessively and inappropriately in cases of domestic violence and homosexual advances. Example in R v Singh (2012) [Context: Mr singh got 6yrs for killing is wife after she asked for a divorce] made the point that "an average man would have also done the same" but SMH, 2012 argued the converse.
  • People are also using this for homosexual advances. In The Queen v Green (can't remember year) the guy killed him because another gay guy started hitting on him - not justice
  • talk about the Ramage case and the media outbreak
Misc.
  • prior to 2013 defendants who fought their case to court had their defence as a "surprise" which usually would wack the prosecution. but since the Criminal Procedure Amendment (Mandatory Pre-*‐trial Defence Disclosure) Act 2013 it is now compulsory for the defence to be disclosed to the prosecution before the trial and discuss how this is good for R/Victims and bad for defendants
 
Last edited:

Winds

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Thanks! I had the exact same question, this really helped me out :)
 

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