Book Review: Criminal Defences
| DOI | 10.1177/000486588501800210 |
| Author | Ivan Potas |
| Published date | 01 June 1985 |
| Date | 01 June 1985 |
| Subject Matter | Book Reviews |
122
BOOK
REVIEWS
(1985) 18
ANZl
Crim
The above comments should not be taken to mean that the book has nothing to
offer. On the contrary, it is a thoroughly researched work, it weaves theories and
their strengths and weaknesses with data in a most effective manner. It is
refreshingly well written and does much to present a clear and accurate situation of
the phenomenon under investigation.
Canberra SATYANSHU K
MUKHERJEE
Criminal Defences, DO'Connor and P A Fairall, Butterworths, Sydney (1984) xxi,
250 pp, $35 (hardback).
This work consists of a succession of chapters devoted to the legal analysis of
defences to criminal charges. By defences the authors refer to both general and
particular defences. General defences, or defences of general application, are those
which can apply to any criminal charge, such as incapacity through infancy or
insanity, necessity, duress, compulsion, coercion, mistake of fact or law and, in
some cases, consent. Particular defences are those which apply to particular
offences only, such as provocation or diminished responsibility in the case of
murder.
The first chapter is concerned with an exposition of the concept of criminal
responsibility. This is as it should be for unless there is an appreciation of the nature
of crime and criminal responsibility, the application of defences to criminal charges
makes little sense. However, instead of providing a precise definition of criminal
responsibility - a task that philosophers have been trying to do for many years
without general consensus - the authors prefer to lay down what they regard as the
preconditions for criminal responsibility. The reader is introduced to the
constituent elements of a crime the actus reus and mens rea, and the kinds of mental
state (intention, recklessness, negligence) necessary for criminal responsibility. This
introductory material is vital, as the greater part of the book is concerned with
showing how the defences are linked to one or other of these constituent elements.
I say the greater part because in some cases, for example in relation to the defence
of duress, the authors point out that not every morally exculpatory circumstance has
a necessary bearing on the actus reus or mens rea. With this preliminary matter dealt
with, they are then able to get on with the job of elucidating the legal, and
sometimes moral, principles underlying the various defences.
The second chapter concerns the burden of proof. The authors say that whether
the accused has an evidential burden or a persuasive burden, and whether the
persuasive burden is on the "balance of probability" or "beyond reasonable doubt"
is revealed only when reference is made to the particular kind of defence under
consideration. The authors do point out, however, that aside from "insanity" and
"mistake", it is generally only in the case of statutory defences that apersuasive
burden is placed on the defendant. It is clear that each kind of defence will have to
be dealt with in turn if the principles applicable to them can be understood. This is
precisely the course taken. Chapter 2, then, is not the beginning and the end of the
discussion on onus of proof, and this topic is raised again at strategic points
throughout the work.
The section on mistake of fact and status offences makes interesting, sometimes
entertaining, reading such as the quatrain relating to Chinese astronomers, or the
unfortunate case of Larsonneur a French citizen who was deported to England from
the Irish Free State by the Irish police. In that case the accused.ihaving previously
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