Criminal Defences

This article considers the role of the excuse of mistake of fact in Queensland rape and sexual assault law. We argue that the excuse has undesirable and socially regressive consequences by allowing reference to factors such as the complainant's social behaviour, relationship to the defendant or lack of overt resistance that are at odds with the definition of free and voluntary consent. The excuse has also led to problematic results in cases involving impaired capacity (such as intoxication, mental incapacity or linguistic incapacity) by the defendant or the complainant. We canvass two potential reforms aimed at addressing these issues. The first would render the excuse inapplicable to the issue of consent in rape and sexual assault cases, while the second would limit the excuse to address its most troubling outcomes.

We discuss how the law and scholars have approached three questions. First, what acts count as acts of entrapment? Secondly, is entrapment a permissible method of law-enforcement and, if so, in what circumstances? Thirdly, what must criminal courts do, in response to the finding that an offence was brought about by an act of entrapment, in order to deliver justice? While noting the contrary tendency, we suggest that the first question should be addressed in a manner that is neutral about the answers to the other two. On the second question, we summarize various arguments about the permissibility of entrapment, while remaining largely neutral about their merits. With regard to the third question, we summarize the approaches to entrapment in various jurisdictions, and we note some patterns, across the jurisdictions here surveyed, concerning shifts from one sort of entrapment remedy to another.

The concept of ‘prior fault’ presents a number of significant challenges for the criminal law. The focus of criminal law (offences and defences) is necessarily event specific; we target and assess liability in relation to a snap-shot moment in time or a short series of acts, not as a judgement of prior or more general culpability or character. Therefore, prior fault should be largely an irrelevance at the liability stage. However, remaining faithful to this narrow focus in all circumstances would lead to considerable unfairness, creating an opportunity for defendants to manipulate legal rules to their own advantage. Some of the clearest examples of this arise in so-called contrived defence cases. Let’s take the example of self-defence, a general and complete defence where the defendant’s (D’s) use of force against the victim (V) is both necessary and reasonably proportionate. The standard operation of this defence is largely uncontroversial; people should be empowered to defend themselves from unlawful attack. However, what if D manufactures the circumstances of that ‘attack’ in order to use the law of self-defence to ‘justify’ her pre-planned use of force against V. For example, D wants to kill V. D hands V a knife and then goads V continuously until V (as anticipated) lashes out at D. D shoots and kills V in self-defence.

In order to understand and analyse examples such as the one above, we must distinguish two points in time within each potential criminal event. First, and standardly, we must look at the time where the potential criminal offence is committed (T2), asking whether the elements of the potential offence are completed, and if so, whether the elements of a potential defence can be found. In our example above, it is likely that the offence of murder was committed by D, but D would also be able to raise self-defence because of the attack from V. Secondly, we must look at D’s conduct prior to the potential crime (T1), to ask if D has done anything to undermine her future use of a defence at T2. In our example, this could be D’s prior fault in planning, and in manipulating V, in order to create the circumstances of her own defence. It is at this second stage, looking back to T1, that legal rules relating to prior fault must be identified and applied.

Issues of prior fault are (potentially) relevant across every criminal defence, and this has given rise to a variety of legal rules designed to prevent the application of contrived defences. However, the legal rules relating to prior fault are often unclear and inconsistent between different defences. Basic questions about what D must have done at T1, what she must have intended, and how this can impact liability at T2, all require investigation. In this article, we provide such an investigation. In Part 1 we explore the application of legal rules relating to prior fault within the current law, exposing areas of inconsistency and incoherence. Part 2 discusses the academic response to this inconsistency, including different models of prior fault that have been recommended in an effort to bring coherence to this area of law. Finally, in Part 3, building upon the academic analysis, we set out our own model of legal rules relating to prior fault; a model that we believe can (and should) be applied across all criminal defences. It is contended that the issue of prior fault can be addressed consistently, and that such rules should form part of any codification project.

Is it possible to recover lost moral ground? In the closing episodes of Breaking Bad it becomes clear that Walter White believes that the correct answer to this question is an affi rmative one. Walt believes that he can, and that he has, recovered lost moral ground. Breaking Bad may be said to explore two distinct and incompatible ways of attempting to recover lost moral ground. The fi rst way is revisionist. This is to rewrite the script of what, morally speaking, has occurred, so that it appears that nothing wrong was done. The second way is restorative. This is to admit to morally wrongful behavior, but to attempt to make amends for it. While we concede that it is possible to recover lost moral ground in both of these ways, we deny that Walt is able to do so in both of these ways. At best, Walt can only hope to recover lost moral ground by attempting to make amends for his past misdeeds.