There are a variety of full and partial defences to murder. Some of these include the following.

Self defence or defence of others

Under section 418 of the Crimes Act (NSW) 1900, self defence or defence of others – can be a complete defence to murder if a person’s conduct resulted in the death of another, but the conduct was necessary to defend him or herself or another person, and the conduct was a reasonable response in the circumstances as the accused perceived them.

However, where the self defence or defence of others is excessive in the circumstances, that will not provide a defence to murder, but will mitigate the murder to self defence (s 421).

Necessity

Necessity can also be a complete defence to murder. It is basically a common law defence and operates only when other defences are not applicable.

There are two distinct rationales for the defence of necessity or emergency

The first regards the conduct of the accused as justifiable in so far as it caused less harm than that which it thereby avoided. The second rationale regards the conduct of the accused as excusable due to the grave predicament confronting him or her. The law would be unduly harsh if it demanded more from the accused than could be expected of ordinary people when confronted with similar threats or dangers.

Another form which the common law defence of necessity might take is a plea of impossibility of compliance with the law through no fault of the accused.

Duress

Duress is a defence to murder and is available where an accused is compelled by threats made by another person to commit an act which causes the death of another person. The defence is a particular form of the defence of necessity and is governed by the common law in New South Wales. Its rationale is based on the law’s compassion towards an accused who is faced with the choice of two evils, that of committing the crime charged or suffering the harm threatened.

Automatism & Insanity

Where an accused person lacks the mental element required to constitute murder due to his or her incapacity to control his or her actions, then a complete acquittal may result under the doctrine of automatism. Automatism must show that the death was the result of an involuntary action. There must be a total rather than partial absence of control and direction by the will of the accused. Automatism does not apply in cases of uncontrollable impulse.

Where an accused person’s incapacity to control his or her actions arises out of a mental disease or delusion then he or she may be exculpated from criminal responsibility by operation of the defence of insanity.

Intervening Events

Death of a person caused by an event which was totally separate from the act of the accused, breaking the chain of causation between the act of the accused and the death of the deceased.

Provocation

This is a partial defence to murder if proved and therefore may reduce the charge of murder to manslaughter.

Author Bio: Emmanuel Apokis has many years experience in Criminal Law working with the experienced Criminal Lawyers at Prime Lawyers Wollongong.

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