TOPIC1: Unwilled Act, including sane automatism.

Statute: s23A

23A Unwilled acts and omissions [Can be used as a defence to offences contained in all statute law within WA.]

         (1)   This section is subject to the provisions in Chapter   XXVII and section   444A relating to negligent acts and omissions. [Thus, if the charge is grounded in negligence, this defence will not be available. R v Young[1969] : not necessary for the words “negligent”, “negligence” or “negligently” to occur in order to exclude the defences.]

         (2)   A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person’s will.[R v Fitzgerald (1999) proof of the requisite intention for an intentional form of murder would, in the context of a shooting, be inconsistent with a defence of unwilled act applying.]

Hence any section which seems to cover negligent acts or omissions as well as willed acts or omissions will exclude a 23A defence.

Onus of Proof: The evidentiary onus is nominally on the accused … but the trial judge must ensure that all relevant defences are considered by the jury.The persuasive onus is then on the prosecution to disprove the defence beyond reasonable doubt.

ELEMENT 1: Unwilled• Identify the act• Was this act willed or not?There are two “usual” situations:(1)For a short period of time, the person has no control over their body (e.g. they have tripped).(2)Everything the person is doing for a significant period of time is unwilled (e.g. “sleepwalking”). This is called “sane automatism” when it leads to this defence.

Duffy v R: accused unaware of the glass in his hand therefore wounding could be viewed as an unwilled act.

Cooper v McKenna: Dangerous driving, unwilled as concussed earlier in the day. If true can be a defence. Court also said “it is common knowledge that ‘blackout’ … is one of the first refuges of a guilty mind and a popular excuse”.

Jiminez v The Queen: HCA said in obiter that while it might be a defence that the driver was asleep, there might have been a breach of duty to drive whilst so tired.

Sane Automatism

The definition of “mental illness” is the dividing line between the two defences of insanity and sane automatism.

“Mental illness” is defined as “an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli”. (s1 Criminal Code and s8 CL(MIA) Act).

If the situation is “the reaction of a healthy mind to extraordinary stimuli”, then the automatism will be sane rather than insane automatism.The “extraordinary stimulus” need not be a physical blow and need not be external … so be careful of what is written in Falconer(1990) 171 CLR 30.

Onus of proof: Where sane automatism (s23A) has been raised by the accused, they must generally do so by leading medical evidence of the automatism (Falconer 1990).Once that has occurred, the onus of proof for that defence means that the prosecution must negate the defence beyond reasonable doubt.Prosecution can either prove beyond reasonable doubt that the act was willed, or prove beyond reasonable doubt that the automatism was insane (i.e. that the defence of insanity applies).

Falconer(1990): Accused shot husband, killed him. Brought evidence from 2 psychiatrists stating she acted in a dissociative state when shooting, therefore was not in control of her actions.Held: This met the evidentiary onus for “sane automatism” under [s23A]. If the prosecution could not negate this beyond reasonable doubt, the accused was entitled to an acquittal under [s23A].

The Consequences of s23A: “Unwilled acts of omissions"If the defence is successfully raised, the person is “not criminally responsible”.This means that it will act as a complete criminal defence to the charge.

TOPIC 2: Accident, including “eggshell skull”.

23B         Accident

         (1)   This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.

         (2)   A person is not criminally responsible for an event which occurs by accident.

         (3)   If death or grievous bodily harm:

                (a)    is directly caused to a victim by another person’s act that involves a deliberate use of force; but

               (b)    would not have occurred but for an abnormality, defect or weakness in the victim; [eggshell skull]

the other person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.

         (4)   Subsection (3) applies:

                (a)    even if the other person did not intend or foresee the death or grievous bodily harm; and

               (b)    even if the death or grievous bodily harm was not reasonably foreseeable.

1) Availability of the defence: As with unwilled act, 23B cannot be used as a defence for offences grounded in negligence or offences with an intent element (R v Fitzgerald).

2) Onus of Proof• The evidentiary onus is nominally on the accused … but the trial judge must

ensure that all relevant defences are considered by the jury.• The persuasive onus is then on the prosecution to disprove the defence

beyond reasonable doubt.3) “The event”

ALL of the consequences of the physical act are going to be viewed as part of the event.The relevant consequences to be considered are going to be those that relate to an element of the offence charged.

4) “… occurs by accident”

So, an event occurs by accident where it is:     (a)Not intended by the accused;     (b)Not foreseen by the accused; and     (c)Not reasonably foreseeable.

“…an event occurs by accident ...if it was a consequence which was not intended or foreseen by the accused and would not reasonably have been foreseen by an

ordinary person.” Kaparanovski(1973) (Gibbs J).Or, alternatively …“The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.” R v Taiters[1997].

The “reasonably foreseeable” element does not exclude possibilities that are “remote or speculative”  (R v Taiters[1997] 1 Qd R 333).

Wording in the new s281offence (unlawful assault causing death: 10 yrs) excludes accident as a defence:s281(2) states “a person is criminally responsible under (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable”.

“Eggshell skull” and the accident defence in WA

Historically in WA, authority has favoured the defence of accident not being available in “eggshell skull" situations – see R v Hubert (1993).s23B(3) and s23B(4) expressly exclude “eggshell skull” scenarios from the defence in any case where it is likely to be useful.

The Consequences of s23B (Accident)If the defence is successfully raised, the person is “not criminally responsible”.This means that it will act as a complete criminal defence to the charge.

TOPIC 3: Insanity, including Fitness to Stand Trial

27            Insanity [criminal code WA]

         (1)   A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.

         (2)   A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

CRIMINAL LAW (MENTALLY IMPAIRED ACCUSED) ACT 1996 - SECT 88 .         Terms used

                In this Part, unless the contrary intention appears —

        mental illness means an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli;

        mental impairment means intellectual disability, mental illness, brain damage or senility;

INSANITY DEFENCE

1) Availability of the DefenceThe defence of insanity is contained in s27 of the Criminal Code. Being in Chapter V of the Code, s36 states that the defence is available to any statute offence in WA.

Hawkins (1994): Held:It is not permissible to lead evidence of insanity in order to establish that the act was unwilled. However, the evidence is admissible to negate a specific intention element.

2) Onus of proof generally: S26 creates the presumption of sanity until the contrary is proved.

Whichever party asserts insanity retains the burden/onus of proof because they need to negate the presumption of sanity in s26 of the code.

     Onus of proof for the insanity defence:     1)The accused raises the insanity defense. The accused has to prove this defense on the balance of probabilities to negate the presumption in s26.     2)The accused raises sane automatism: prosecution negates sane automatism by proving insanity BRD.     3)The prosecution raises insanity alone and the defense does not raise insanity or sane automatism. No clear statement from any authority to indicate what the relevant standard of proof is (either byd or bop)

In most cases the defense raises the issue however “it is in the public’s interest to raise the insanity defense and the prosecution are obliged to raise the issue.”

The defence can certainly be raised by the accused. It can also be raised by the prosecution in response to a claim of sane automatism. There is some debate as

to whether it can be raised by the prosecution where no defence of sane automatism is argued.

3) The Time of Assessment: The relevant time to assess the person’s mental state is at the time (s)he commits the criminal act.

The Criminal Law (Mentally Impaired Accused) Act 1996 (WA) outlines the appropriate test to apply …In order for the accused to avail themselves of the s27 defense the accused must have been suffering from a mental illness or impairment at the time of the offence.

4) Relevant Mental Impairment: This is a question of law to be decided by the judge (Falconer(1990). While expert testimony is permitted (and necessary) it is up to the judge whether or not the accused is in a state of mental impairment under law.

mental impairment means intellectual disability, mental illness, brain damage or senility; (s8 CLMIAA definition)mental illness means an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli;[sane automatism]

5) Failure of the capacities listed in s27

     (1)Capacity to know what (s)he’s doing[This relates to the ability understand the effect of physical acts.]

     (2) Capacity to control his/her actions[This relates to conduct that is independent of the exercise of the will. Wray (1930) 33 WALR 67 suggests that “irresistible impulse” could fall into this category.]

     (3) Capacity to know (s)he ought not do the act[The third capacity relates to a person who does not know that the conduct is morally wrong.     "Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to                ordinary people make that act right or wrong?” R v Porter (1933).]• Impairment of capacity is not sufficient to discharge the burden of proof, there

must be deprivation.• Impairment if the capacity may still be relevant to negate a specific intention

element thereby lessening the charge.6) Consequences of the Defence

s27 says that the person is not criminally responsible for the act that the person has committed …

However, s146 of the Criminal Procedure Act 2004 (WA) requires that a verdict of “not guilty by reason of unsoundness of mind” be returned.

s149(1) then requires the person to be dealt with under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).

7) CL(MIA) ActConsequencess20 empowers a summary court to make an order under s22.s21 requires that a superior court make a custody order if it is a Schedule 1 offence. For other offences, any order under s22 may be made.

s22 permits the court to:     (a)Release the accused person;     (b)Impose a CRO, CBO or ISO; or     (c)Impose a custody order.

Custody Orderss24 outlines that where a custody order is imposed, the accused will be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Board, until released by an order of the Governor.Note that these are also the possible consequences where a person is ultimately found to be not fit to stand trial where the maximum penalty for the alleged offence is a term of imprisonment.

Fitness to Stand Trial1) There is a presumption that a person is fit to stand trial (s10). This presumption can be overcome if the magistrate/judge decides on the balance of probabilities that the person is not fit to stand trial (s12).

2) If there are questions about a person’s state of mind during the criminal proceedings, it is dealt with as the person’s fitness to stand trial.

3) A person is not fit to stand trial if, because of mental impairment, they are (s9):

(a) unable to understand the nature of the charge;(b) unable to understand the requirement to plead to the charge or the effect of a plea;(c) unable to understand the purpose of a trial;(d) unable to understand or exercise the right to challenge jurors;(e) unable to follow the course of the trial;(f) unable to understand the substantial effect of evidence presented by the

prosecution in the trial; or(g) unable to properly defend the charge.

If unfit to stand trial s15-19 of the miaa“Unable” in this context means unable, after having the matter explained to them by counsel (R v Dunne[2001]).

4) ConsequencesIf a person is not fit to stand trial, then they are dealt with under s16 (offences tried summarily) or s19 (offences dealt with on indictment) of the CLMIAA

TOPIC 4: Intoxication

There are two defences in the Code: the true defence contained in s28(1) and s28(2); and the separate “defence” in s28(3).

28            Intoxication

         (1)   Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means.

         (2)   Section 27 does not apply to the case of a person who has intentionally caused himself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.

         (3)   When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.

1) Definition of Intoxication• Drugs or alcohol must have been consumed in order for a person to fall within

the scope of s28.• The drugs or alcohol must have also had some effect on the person’s mind.     “[T]he words ‘intoxicate’ and ‘stupefy’ should not be construed narrowly. It is significant that the dictionary definition of the word ‘intoxicate’ is wide enough to include stupefaction and it is also significant that the definition of ‘stupefaction’ includes ‘to grow dull or insensible’. The issue therefore becomes whether the consumption of drugs by the respondent caused him to become intoxicated or stupefied in the manner just referred to.” Haggiev Meredith (1993)

2) The “defence” in s28(3)This is not a defence in the true sense of the word; it relates to an evidentiary point relating to specific intention offences. Hence, there is no “onus of proof” attached to s28(3).You should consider it whenever there is evidence of intoxication and the accused is charged with a specific intention offence.

3) Accused carries evidentiary burden to bring intoxication as an issue and medical evidence can also be given about the general effects of different amounts of the intoxicating substance but a psychiatrist cannot give opinion evidence of the actual mental state of the accused at the time of the alleged offence.

4) Decisions about actual mental states are for juries to make without any direct assistance from expert witnesses. (Cameron v R)• It is for the jury to be satisfied brd to whether the specific state of mind existed

and not whether the accused had the capacity to form that state of mind.5) Element 1: The Intoxication• The way in which the intoxication came about is not relevant for s28(3).• The section also expressly declares that the intoxication can be can be

complete or partial.          “If the intoxication is complete, of course, the intent cannot be formed. If the intoxication is partial only, then it is for the jury to decide as a question of fact whether the necessary intent                existed.” Crozier[1965]• If they were either voluntarily or involuntarily intoxicated does this mean that

the accused lacked the relevant intent.• After accused has discharged the evidentiary onus, Onus of proof remains on

the prosecution to prove that the relevant intention was present.• The jury is instructed to ascertain whether all the elements of the offence have

been satisfied beyond reasonable doubt• However 28(3) is only put to the jury if the accused has discharged the

evidential onus of it in the first place.• After application of s28(3) you can go to the alternative offence which does not

have an intention element.6) Consequences of s28(3)

Essentially, the defence is saying that the extent of the person’s intoxication is to be considered by the jury in deciding whether the prosecution have in fact proved the required intention beyond reasonable doubt.

“In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intention. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for ascertaining whether the special intention in fact

existed.” Viro v R (1978) (Gibbs J).See Battle v R (1992) 8 WAR 449 for a Code statement that is of similar effect.

Eg  successful intoxication defence for murder may remove the intention element and therefore downgrade the charge to manslaughter.

Cutter v R (1997): The accused was arrested and forced into the back of a police van (with him resisting). Upon arrival at the police station, when police tried to remove the accused from the van, he stabbed a police officer in the neck with a knife. At trial, the judge found that despite his intoxication, he did so with intention to kill and convicted him of attempted murder.Held (majority): While there was evidence that the accused struck out in anger, because of his intoxication the evidence did not prove beyond reasonable doubt that he intended death as the consequence. Consequently, he should have instead been convicted for unlawful wounding.

Availability of Other DefencesWhere the intoxication has led to a recognised mental illness, insanity rather than intoxication is the appropriate defence (Dearnley[1947] St R Qd 51; Re Bromage[1991] 1 Qd R 1).

If a state of automatism is produced through intoxication, it is not possible to use the defence of unwilled act in s23A.“In my opinion there is much to be said for the view expressed by MacCrossan J (the dissenting judge in R v Kusu[1981] Qd R 136), although I accept that the weight of authority clearly supports the majority view that there is no room for the question of s23 in an intoxication case.” Cameron v The Queen (1990) (Malcolm CJ).

Intoxication: The true defence [contained in s28(1) and s28(2)]

1) This is the “true defence” of intoxication, as if successful it ends up negating criminal responsibility.• As it is contained in Chapter V of the Code, s36 means that it applies to all

criminal offences in WA.• DEFINE intoxication as per the above definition.2) Onus of Proof• The evidentiary onus is (nominally) with the accused.• Part of the defence of intoxication requires proving that the accused person

lacks one or more of the capacities that are in s27.• Therefore, the presumption of sanity in s26 means that the defence will bear

the persuasive onus for that element (Dearnley[1947]).• The status of the persuasive onus for the other elements is unclear.3) Element 1: Intoxication Without Intention• In order to rely on the defence, the intoxication must not be intentional.“But if he intentionally caused himself to become intoxicated, that defence is not

open to him. It is, however, a defence if his mind was so disordered as to be unsound within the meaning of s27 of the Criminal Code, and if this condition was caused by intoxication which arose without any intention on his part.” R v Corbett[1903] (Griffith CJ).• The circumstances much be such that it is not fair to hold the accused person

responsible for his/her own intoxication.• In Parker v R (1915) it was suggested that there should be a presumption that

a person who drinks to excess intended to become intoxicated.Re Bromage[1991]: The accused had involuntarily inhaled organo-phosphates, but he had also voluntarily consumed alcohol. The result was a state of intoxication. The question was whether this intoxication was involuntary or not.Held: Where at least part of the intoxicant is involuntarily consumed, the defence contained in s28(1) is open to be considered by the jury.In response to this case, Queensland amended their Code to exclude the operation of this defence when any aspect of the intoxication was intentional. In WA, the position is undecided.

4) Element 2: Deprivation of Capacitys28(1) states that “Section 27 applies to the case of a person whose mind is disordered by intoxication or stupefaction”.Smith v R [1949] St R Qd 126 interprets this as meaning that the intoxication or stupefaction must lead to the deprivation of capacities outlined in s27.

     (1)Capacity to know what (s)he’s doing[This relates to the ability understand the effect of physical acts.]

     (2) Capacity to control his/her actions[This relates to conduct that is independent of the exercise of the will. Wray (1930) 33 WALR 67 suggests that “irresistible impulse” could fall into this category.]

     (3) Capacity to know (s)he ought not do the act[The third capacity relates to a person who does not know that the conduct is morally wrong.     "Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to                ordinary people make that act right or wrong?” R v Porter (1933).]• Impairment of capacity is not sufficient to discharge the burden of proof, there

must be deprivation.5)The Consequences of s28(1)If the defence is established, it amounts to the defence proving insane automatism.Hence, the consequences are exactly the same as if the insanity defence in s27 had been made out: not guilty by reason of unsoundness of mind, with the person then being dealt with under the Criminal Law (Mentally Impaired

Accused’) Act1996(WA).• i.e. see intoxication defence as outlined above.

TOPIC 5: Mistake of Fact

s22 sets out the general prohibition against raising a defence of “mistake of law”:• Ignorance of the law does not afford any excuse for an act or omission which

would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

22            Ignorance of law, honest claim of right

                Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

                But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

Mistake of fact: s24s24 creates the general defence of “mistake of fact”.• Thus it is important to distinguish mistakes of fact from mistakes of law.24            Mistake of fact

                A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

                The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

1) In order to have any kind of defence under the criminal law, the mistake that the person makes has to be “operative”.• A mistake is “operative” if it is relevant to one of the elements of the offence.2) Mistake of Fact – Applicability: The defence is in Chapter V of the Code, so s36 would indicate that it should be applicable to all statutory offences in WA.

Under the Code, however, a clear intention to exclude s24 must be shown before it would be excluded. (Geraldton Fishermen’s Co-op Ltd v Munro)

3) Onus of ProofOrdinary onus of proof for defences: the evidentiary onus is on the defence and then the persuasive onus is on the prosecution to disprove the defence beyond reasonable doubt.

“[Mistake] is not a matter which the defendant must prove on the BOP … [T]he onus then is on the prosecutor to satisfy the court BRD of the non-existence of the operative mistake. Of course, the section does not operate unless there be some evidence, looking at the case as a whole, of operative mistake.” Loveday v Ayre

4) Element 1: “A state of things” Is the mistake one of law(22) or fact (24)?• If the mistake relates to an observable fact, then it is a mistake of fact; if it

relates to a legal conclusion drawn from observable facts, then it is an error of law. Sancoff v Holford: (mistake of law, s24 defence cannot apply)

• “... in the distinction between mistakes of fact and of law, a mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law.” Thomas v King

• There is some seemingly conflicting authority on whether it has to be a “present” state of things. (Gould and Barnes)

• Positively Held Belief: The accused person must have a positively held belief; a person who is ignorant of “the state of things” can not claim the benefits of the defence. (Larsen v G J Coles and Co Ltd)

5) Element 2: Honest BeliefThis is a subjective assessment. This means no more than the belief has to be actually held by the accused person (G J Coles & Coy Ltd v Goldsworthy).The intoxication of the person can be taken into account in deciding whether or not the person honestly held the belief (Daniels).

6) Element 3: Reasonable BeliefThis is the objective element. It must be reasonable for the person to have made the mistake.Larsen v G J Coles and Co Ltd: mistake was not reasonable because they had not based their belief on any solid information.Ostrowski v Zaza: reasonable for a fishing boat captain to believe that lobsters were over legal size as employee was supposed to check the fact, employee did not do their job.

The reasonable man is always sober, so intoxication by the accused will not be considered in this element (Daniels).

7) Consequences of s24s24 states that the person will not be criminally responsible to any greater extent than if their mistake was actually the case.Pretend that whatever the accused person thought was actually the case, and then base their criminal responsibility on that.

TOPIC 6: Bona Fide Claim of Right (s22)

22            Ignorance of law, honest claim of right

                Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

                But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

1) This is the only exception to the rule that mistake of law will not operate as a defence.If a person bona fide believes that they are exercising rights that they have over property, they will have a defence under s22.

2) Applicability: The defence only applies to offences that relate to property.

Pearce v Paskov: narrow interpretation was taken by the WA CCA, which would limit the scope of the defence to property offences under the Criminal Code (that is, offences that are in Part VI of the Code).However, Walden v Hensler: the majority of the High Court felt that the defence could apply to any property offence under a statute.

3) Onus of Proof: The evidentiary onus is on the defence and then the persuasive onus is on the prosecution to disprove the defence beyond reasonable doubt (Pollard).

4) Element 1: Claim of Right• The person needs to be exercising some kind of right over the property, and

that property must be the subject of the charge.• The right does not have to exist at law, providing they honestly believe that

they are exercising a right that exists (Walden v Hensler).R v Walsh: Walsh owned an avocado tree. His neighbour’s ox was eating his avocados, so he shot the ox. He was charged with criminal damage of property.Held:Walsh was not trying to exercise any property rights that he thought he might have over the ox; he was simply protecting his avocados. Therefore, he could not raise the defence of bona fide claim of right.

Pollard: Pollard borrowed his housemate’s car without permission. Never previously asked to borrow the car. Claimed that he thought that if he had asked,

he would have been permitted to borrow the car. He got into an accident and was charged with stealing the car.Held: The claim of right has to be an existing right. Pollard did not believe that he had an existing right when he took the car and so he could not raise the defence.

5) Element 2: HonestSubjective element, requiring the accused person honestly believes that (s)he is entitled to the property and entitled to act in the manner that (s)he does to obtain the property (Pollard).

There must be evidence that the claim of right was pursued honestly before the onus for the defence would be satisfied (Lenard).

6) Element 3: Without Intention To Defraud• This element doesn’t really add much to the previous element.• It does not necessarily exclude a person from acquiring the property over

which the claim applies by dishonest means … but it does leave room for a jury to decide that the property was obtained with an intention to defraud.

• “Because he might have done a certain thing honestly it does not follow that he cannot be convicted if he uses false documents; the jury may well find an intent to defraud … That is not to say they must, but there is evidence on which they can do so.” Hopley.

7) Consequences of s22If a person successfully raises bona fide claim of right, they are not criminally responsible for the property offence for which they have been charged.

ProvocationDefensive ForceEmergency, Medical Necessity and DuressDrug Offences