48. Defences (excluding Mental Impairment) — Exam Cheat Sheet (Vic)

Scope and currency

Part IC Crimes Act 1958 (Vic) · Australian English · current to 2 July 2026

Onus (all Part IC defences). Except mental impairment, the accused never bears a legal onus to prove a defence. The accused carries only an evidential onus — to point to evidence of a reasonable possibility of the facts that would establish the defence (s 322I(1)). Once raised, the prosecution must disprove the defence beyond reasonable doubt on the totality of the evidence (s 322I(2)). Work Gates A–E, then the per-defence cards.

1 · Universal framework — how to run any Part IC defence

A Is the charge murder?

Murder triggers the strict Part IC limitations. → Yes: self-defence, duress and sudden/extraordinary emergency apply only if the accused believed the relevant harm was death or really serious injury (ss 322K(3), 322O(4), 322R(3)). s 322H — "really serious injury" includes serious sexual assault. → No: run the ordinary two-limb / three-element tests below without the death-or-RSI gloss.

B Evidential onus — s 322I(1)

Has the accused pointed to a reasonable possibility of the defence? Threshold is low: evidence that fairly supports the defence but is not fanciful (R v Tikos (No 1)); it may be weak or tenuous (Zecevic; Kear; Muratovic); a reasonable possibility is enough (R v Yousef). But a mere possibility or speculative assertion will not do — the defence must be realistically grounded in the evidence (Edmunds v The King [2025] VSCA 31).

C Which Part IC defence(s) arise on the facts?

→ Threat/force from another compelling the crime: Duress (s 322O). → Defensive force against a person or threat: Self-defence (s 322K). → Emergency / necessity (circumstances, not a human demand): Sudden or extraordinary emergency (s 322R). → Property taken under a claimed legal right: Claim of right — negates dishonesty (s 73(2)(a)). → Involuntary act / no willed act: Automatism / voluntariness (Falconer; Ryan).

D Apply the overlays before concluding

→ Intoxication: s 322T strips self-induced intoxication out of every reasonable belief / reasonable response assessment — judged against a sober reasonable person with the accused's other characteristics. Not self-induced — s 322T(4): use a reasonable person intoxicated to the same extent as the accused. → Family violence: ss 322M (self-defence) / 322P (duress) + the s 322J definition let the accused rely on FV to explain a delayed or disproportionate response, or a perceived ongoing threat.

E Legal onus — s 322I(2)

The prosecution must exclude the defence beyond reasonable doubt. Paste-ready: "Once the accused points to evidence raising a reasonable possibility of [defence], the accused bears no onus of proof. The prosecution must satisfy the jury beyond reasonable doubt that the accused did not act [in self-defence / under duress / in a sudden or extraordinary emergency]. If the jury is left in reasonable doubt on that question, the accused must be acquitted."

2 · Self-defence — s 322K (complete defence to any offence)

SD Two-limb test — s 322K(2)

NG if the conduct constituting the offence was carried out in self-defence. → Limb 1 — subjective: the accused believed the conduct was necessary in self-defence (s 322K(2)(a)). Genuine belief suffices; no reasonable grounds required; it may be mistaken (Zecevic v DPP (1987) 162 CLR 645; R v McKay [1957] VR 560). → Limb 2 — objective: the conduct was a reasonable response in the circumstances as the accused perceived them (s 322K(2)(b); R v Katarzynski [2002] NSWCCA 613). → Murder — s 322K(3): only if the accused believed the conduct necessary to defend from death or really serious injury (incl. serious sexual assault — s 322H).

• Source: Crimes Act 1958 (Vic) Pt IC; common-law self-defence abolished for offences on/after 1 Nov 2014 (s 322N).

• Evidential burden: accused points to a reasonable possibility of self-defence (s 322I(1)).

• Legal burden: prosecution disproves BRD (s 322I(2)) — either no genuine belief, OR the response was not reasonable.

• Subjective limb: belief in necessity; proportionality is only one factor (Zecevic; R v Portelli (2004) 148 A Crim R 282); no duty to retreat, though failure to retreat is relevant (Zecevic); instant reactions are not weighed to a nicety (R v Palmer); intoxication is considered on this limb.

• Objective limb: reasonableness judged on the circumstances as perceived, with the accused's age, gender and health (Katarzynski; Ward v R); assessed against a sober reasonable person (s 322T(3)).

• Key authorities: Zecevic v DPP (1987) 162 CLR 645; R v Katarzynski [2002] NSWCCA 613; R v Portelli (2004) 148 A Crim R 282; Osland v R (1998) 197 CLR 316 (pre-emptive strike / battered-woman syndrome); Edmunds v The King [2025] VSCA 31.

Self-defence — branches to check

• Defence of another / property: s 322K extends to defending another person, preventing or terminating unlawful deprivation of liberty, and protecting property (R v Portelli; R v McKay).

• Lawful conduct — s 322L: self-defence is excluded only if (a) the accused was responding to lawful conduct and (b) knew at the time it was lawful — the conditions are cumulative (Edmunds v The King [2025] VSCA 31). A reasonable possibility the victim's conduct was unlawful, or that the accused did not know it was lawful, keeps s 322K alive.

• Initial aggressor: originating the attack is not an automatic bar; ask whether the original aggression had ceased, or whether the accused created a continuing emergency that provoked a lawful counter-attack (Zecevic, applied in Edmunds).

• Family violence — s 322M: the accused may believe force necessary and reasonable even where the harm is not immediate or the force exceeds the threat; s 322J defines FV broadly, including psychological abuse.

Advice (self-defence): "The prosecution must exclude self-defence beyond reasonable doubt. Your strongest point is the genuine belief in necessity, given [X]; the vulnerability is the objective limb — whether [returning armed with the block / the degree of force] was a reasonable response to the threat as you perceived it. Arming yourself and returning to the scene invites a finding that the emergency had passed and the response was disproportionate (Zecevic; Edmunds), though proportionality is only one factor."

Intoxication + self-defence

Under s 322T(3) self-induced intoxication is stripped out of the reasonable-response limb (judge against a sober reasonable person), but s 322T does not displace intoxication when assessing the subjective belief in necessity.

Self-defence — key authorities

Authority	Principle and application
Zecevic v Director of Public Prosecutions (1987) 162 CLR 645	Following an ongoing dispute over unit block property rules, the appellant fetched a gun and fatally shot his neighbour, subsequently claiming he acted in self-defence after the deceased had allegedly attacked him with a knife and threatened to kill him. • Core principle: This case is the foundational authority on the formulation of self-defence in Australia. It simplified the common law test to a single question: whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what they did. • Abolition of excessive self-defence: The High Court formally abolished the common law doctrine of excessive self-defence. • Proportionality — a consideration, not a rule: Proportionality of the response is not an independent legal test or strict rule of law; it is one factual consideration for the jury when assessing whether the belief was based on reasonable grounds. • Agony of the moment: Juries must approach the assessment practically, giving proper weight to the predicament of the accused — emergencies afford little, if any, opportunity for calm deliberation or detached reflection. • Initial aggressor: An initial aggressor is not legally barred from self-defence. The jury must consider whether the original aggression had ceased, enabling the accused to form a belief on reasonable grounds that the defensive action was necessary.
R v Katarzynski NSWSC 613	The provided sources do not detail the specific factual background of this matter, but instead frequently cite the case as the leading authority establishing the subjective and objective elements of the statutory test for self-defence in New South Wales. • Statutory two-limb test: Two questions for the jury: (1) is there a reasonable possibility the accused believed the conduct was necessary to defend themselves (subjective limb); and (2) is there a reasonable possibility that what the accused did was a reasonable response to the circumstances as they perceived them (objective assessment of the subjective perception)? • Mistaken beliefs: For the first limb the belief need only be genuinely held; it does not matter that it was mistaken. • Departure from the common law: Believe does not have to be reasonable. A critical divergence from Zecevic: under the statute the accused is not required to have reasonable grounds for the belief. The belief must simply be genuinely held, and the response to it objectively reasonable in the circumstances as the accused perceived them. • Personal attributes: In assessing the objective reasonableness of the response, the jury must take into account the accused's personal attributes — age, gender and state of health, mental health (PTSD, schizophrenia).
R v Portelli (2004) 10 VR 259	The applicant was convicted of recklessly causing serious injury after he savagely beat an acquaintance around the head with a baseball bat over an unreturned $50 drug debt, which the applicant unsuccessfully claimed was done in defence of his co-accused. • Defence of another: Confirmed that the Zecevic principles apply equally where the accused acts in the defence of another person. • Immediacy of the threat: What is believed to be necessary, and the reasonableness of the grounds for that belief, may be significantly affected by a lack of immediacy of the threat. • Proportionality reaffirmed: Robustly reaffirmed that proportionality is not a separate or independent test — it forms part of the overall factual matrix in determining what the accused subjectively believed was necessary, and whether that perception was reasonable.
Osland v R (1998) 197 CLR 316 — pre-emptive strike / battered-woman syndrome	After enduring a long history of severe domestic violence, the appellant laced her husband's dinner with sedatives and stood by while her son bludgeoned the unconscious victim to death with an iron pipe, before the two buried his body in a pre-dug grave. • Expert evidence: Expert evidence on “battered woman syndrome” (and the dynamics of family violence) is relevant and admissible, assisting the jury on both the accused's subjective belief in the necessity of force and the objective reasonableness of the response. • Explaining the accused's conduct: Such evidence provides forensic context: why an abused partner might remain in the relationship, her heightened arousal and awareness of danger, and why she might not retreat. • Pre-emptive strikes: An accused need not wait until an attack is in progress. A pre-emptive strike can be justified where there is a genuinely apprehended threat of imminent danger — displacing traditional assumptions about immediacy of harm and a duty to retreat.
Edmunds v The King VSCA 31	The applicant was convicted of murder on a complicity basis after engaging her current partner to kill her ex-partner over an acrimonious parenting dispute, which culminated in the ex-partner stabbing the current partner before the current partner fatally shot him. • Evidential onus (s 322I): Clarifies the evidentiary threshold to leave statutory self-defence to the jury: the accused must point to evidence suggesting a “realistic” or “reasonable possibility” of self-defence; a merely fanciful, weak or speculative possibility is insufficient. • Lawful force (s 322L): Statutory self-defence is unavailable if the accused was responding to lawful conduct and knew the conduct was lawful — the two requirements are cumulative. • Pretext for crime: Self-defence cannot be used as a pretext to carry out a criminal purpose. An accused who planned and fully intended to harm the victim, and did precisely that irrespective of the victim's actions, cannot rely on the victim's defensive conduct. • Initial aggressor context: Affirming Zecevic and Portelli: where the accused is the initial aggressor the jury assesses all circumstances as perceived by the accused — including whether the accused declined further conflict, attempted to retreat, or whether one incident had ended and a new incident commenced.

3 · Duress — s 322O (common-law duress abolished, s 322N)

DUR Elements — s 322O(2)

NG if the offence was committed under duress. → (a) Threat: the accused reasonably believed a threat of harm had been made that would be carried out unless the offence was committed (s 322O(2)(a)). Consider the threatener's words and actions (Emery; Harding). → (b) Only reasonable way: the accused reasonably believed committing the offence was the only reasonable way to avoid the threatened harm (s 322O(2)(b)). → © Reasonable response: the conduct was a reasonable response to the threat — purely objective (s 322O(2)©). → Murder — s 322O(4): available only if the threat believed to be of death or really serious injury. → Voluntary association — s 322O(3): excluded if the threat came from a person the accused voluntarily associated with to carry out violent conduct.

• Source: Crimes Act 1958 (Vic) s 322O (replaces s 9AG); all offences on/after 1 Nov 2014. NB: a Commonwealth charge (e.g. drug importation) is governed by the Commonwealth Criminal Code (Div 10), not Part IC.

• Evidential burden: accused points to a reasonable possibility of duress (s 322I(1)); met by identifying some evidence of each element (The King v Anna Rowan (a pseudonym) [2024] HCA 9).

• Legal burden: prosecution disproves BRD (s 322I(2)).

• Belief elements (a),(b): judged from the standpoint of a reasonable person possessing the accused's personal characteristics — age, gender, maturity, history of FV (DPP v Parker [2016] VSCA 101).

• Response element ©: assessed purely objectively — the accused's characteristics do not soften it (Parker); s 322T(3) strips self-induced intoxication.

• Threat need not be a demand: no explicit "do this or else" is required; an ongoing / ever-present threat (esp. in FV) can carry an implied demand to commit whatever offences are required (Anna Rowan). No discrete imminence requirement, but a threat known to have expired will not support the belief.

• Key authorities: The King v Anna Rowan (a pseudonym) [2024] HCA 9; DPP v Parker [2016] VSCA 101.

Deliberate disconnect (Parker): FV and the accused's characteristics bear on perception — whether the threat was believed real and the offence the only way out (elements (a),(b)) — but not on whether the crime was a reasonable response (element ©), which is purely objective. Learned helplessness or trauma cannot justify an objectively unreasonable criminal response.

Advice (duress — e.g. Cth importation, "Camille"): "Duress on a Commonwealth importation charge is governed by the Commonwealth Criminal Code, not Part IC. Illustrating the Victorian test: a threat to 'kill your son slowly' is plainly a threat of death (element (a)), and an ongoing familial threat can supply an implied demand (Anna Rowan). The battleground is element © — whether boarding the flight with the drugs was a reasonable response, judged objectively; the availability of a safe alternative (going to police rather than boarding) is the prosecution's strongest line."

Duress — key authorities

Authority	Principle and application
The King v Anna Rowan (a pseudonym) HCA 9; (2024) 278 CLR 470	Anna Rowan" (a pseudonym), was charged with multiple joint counts of sexual offences, including incest and indecency, committed against two of her daughters. These acts were committed in the presence of her highly abusive partner, "JR", who exerted extreme physical, psychological, and sexual violence over the family. • Significance: The most critical recent High Court authority interpreting duress, specifically within the context of family violence under s 322O and s 322P of the Crimes Act 1958 (Vic). • Threat need not be explicit: A threat under s 322O does not need to be explicit, nor accompanied by an express direction to commit the specific offence. • Unstated or implied demand: Evidence of pervasive violence, intimidation, control and sexual abuse over a sustained period raises a reasonable possibility of an “unstated” or implied demand, carrying an implied threat that serious violence will be inflicted if the accused refuses to comply. • Ever-present threat: Rowan demonstrates how an ever-present threat can satisfy the requirement of an operative threat at the time the offence was committed.
Director of Public Prosecutions v Parker (a pseudonym) VSCA 101; (2016) 258 A Crim R 527	The accused was charged with murder and relied upon the defence of duress, alleging that her abusive partner commanded her to kill the victim and explicitly threatened to kill her and members of her family if she failed to carry out the act • Significance: Parker provides the definitive guidance on assessing “reasonable belief” in the statutory formulation of duress. • Reasonable person with the accused's characteristics: The accused's belief must be assessed by reference to a reasonable person possessing the personal characteristics of the accused — such as their sex, maturity, and any history of family violence — that might have affected their appreciation of the circumstances. • Nature of the excuse: Confirms that duress operates to excuse a person who acts voluntarily and deliberately, but under compulsion.

4 · Sudden or extraordinary emergency — s 322R (replaces common-law necessity)

SEE Elements — s 322R(2)

NG for conduct carried out in circumstances of sudden or extraordinary emergency. → (a)(i): the accused reasonably believes circumstances of sudden or extraordinary emergency exist. → (a)(ii): the accused reasonably believes the conduct is the only reasonable way to deal with the emergency. → (b): the conduct is a reasonable response to the emergency (objective). → Murder — s 322R(3): only if the accused believes the emergency involves a risk of death or really serious injury.

• Source: Crimes Act 1958 (Vic) s 322R; homicide on/after 23 Nov 2005, all offences on/after 1 Nov 2014.

• Burdens: evidential onus on the accused (s 322I(1)); prosecution disproves BRD (s 322I(2)).

• Belief vs response: the (a) beliefs take the accused's characteristics; the (b) response is objective; s 322T removes self-induced intoxication from both.

• Contrast duress: the emergency arises from circumstances, not a human threat demanding the offence.

5 · Intoxication overlay — s 322T

• Not a defence: intoxication is not a stand-alone defence; it bears on voluntariness and intention, and modifies the reasonableness assessments in other defences (s 322T(1) — "defence" includes self-defence, duress, sudden/extraordinary emergency).

• Reasonable belief — s 322T(2): judged against a reasonable person who is not intoxicated (relevant to duress and emergency beliefs).

• Reasonable response — s 322T(3): judged against a reasonable person who is not intoxicated (relevant to the self-defence objective limb).

• Not self-induced — s 322T(4): use a reasonable person intoxicated to the same extent as the accused.

• Self-induced defined — s 322T(5)-(6): self-induced unless it came about involuntarily, or from fraud/emergency/accident/reasonable mistake/duress/force, or from prescription/OTC drugs taken as directed — but still self-induced if the accused knew, or had reason to believe, the drug would significantly impair judgement or control.

• Subjective belief preserved: intoxication is taken into account on the purely subjective question (e.g. whether the accused believed force necessary in self-defence).

Common law (negating an element): For matters the s 322T framework does not reach, the common law still allows intoxication to negate intention or (very rarely) voluntariness; intoxication itself gives rise to no independent excuse (R v O'Connor; R v Connor (1979) 146 CLR 64).

6 · Consent & reasonable belief in consent — ss 36, 36AA, 36A, 36B

CON Consent = free and voluntary agreement — s 36(1)

For conduct on/after 30 July 2023 the Crown proves absence of consent AND absence of reasonable belief. → No consent — s 36AA: a non-exhaustive list of circumstances in which a person does not consent (below). → Reasonable belief — s 36A: whether A reasonably believed B was consenting depends on the circumstances, including any steps A took to ascertain consent. → Intoxication — s 36B: self-induced → sober reasonable person (s 36B(1)(a)); not self-induced → reasonable person intoxicated to the same extent (s 36B(1)(b)).

• Source: Crimes Act 1958 (Vic) ss 36, 36AA, 36A, 36B; affirmative-consent model introduced by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, commenced 30 July 2023.

• Definition — s 36(1): consent means "free and voluntary agreement"; s 36(2) — no consent merely because a person does not resist verbally or physically, or consented to a different act (or the same act at a different time, place or with a different person).

• Crown's burden: the Crown proves absence of consent and absence of reasonable belief beyond reasonable doubt; no onus on the accused.

• Reasonable belief — s 36A: affirmative — a belief formed without saying or doing anything to ascertain consent is unlikely to be reasonable; intoxication handled under s 36B.

• Jury directions: consent and reasonable-belief directions under the Jury Directions Act 2015 ss 46 and 47 (per your standing correction — not s 47AAA).

No consent — key circumstances (s 36AA(1))

• (b) Force/harm: submits because of force, or the fear of force or harm of any type (to them, another person or an animal), regardless of when it occurs or whether part of an ongoing pattern.

• © Coercion: submits because of coercion or intimidation.

• (d) Unlawful detention: submits because unlawfully detained.

• (e) Authority/trust: overborne by the abuse of a relationship of authority or trust.

• (f) Asleep/unconscious: the person is asleep or unconscious.

• (g)-(h) Alcohol/drugs: so affected by alcohol or another drug as to be incapable of consenting, or of withdrawing consent.

• (i) Understanding: incapable of understanding the sexual nature of the act.

Consent — authorities [confirm years on AustLII]

• Former position: Worsnop v The Queen [yr?] VSCA 188 — a genuine belief in consent was a complete answer to the fault element even if unreasonable; overturned.

• HCA correction: R v Getachew [yr?] HCA 10 rejected Worsnop — belief in consent and awareness of the possibility of an absence of consent are "not mutually exclusive"; a belief the complainant "may have been or was probably consenting" is no answer, because it entails awareness the complainant might not be consenting; the statute is the "start and end point".

• Strength of belief: NT v R [yr?] VSCA 213 endorsed the distinction between a belief that "leaves no possibility for error" and one held while "aware that I might be mistaken" (the source material corrected the citation from "NT v The Queen" to NT v R).

Advice (consent — intoxication / "pretending to object"): "Since 30 July 2023 the question is whether you said or did anything to ascertain consent (s 36A). A belief the complainant was 'pretending to object but really consenting' is dangerous: on Getachew, awareness that she might not be consenting defeats reasonable belief. Where GHB or extreme intoxication is alleged, s 36AA(1)(g)-(h) may negate capacity to consent altogether, and your self-induced intoxication is judged against a sober person (s 36B)."

Currency — affirmative consent (30 July 2023)

Confirm whether the conduct pre- or post-dates 30 July 2023; pre-reform fact patterns use the prior regime. Reforms: Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022.

7 · Honest & reasonable mistake of fact; belief as to age

Honest & reasonable mistake of fact (general)

• Function: negatives mens rea where recklessness or intention is an element; also a defence to strict (not absolute) liability offences, where the mistake must be reasonable (Proudman v Dayman).

• Elements (Freckleton & Andrewartha): (i) a mistake, not mere ignorance; (ii) of fact, not law; (iii) relating to the elements of the offence; (iv) honest and reasonable on an objective view.

• Strict vs absolute: absolute liability bars HRMF; strict liability allows it. The general statutory defences (self-defence s 322K, duress s 322O, emergency s 322R) remain available even against absolute-liability offences unless expressly excluded.

AGE Belief as to age — sexual penetration of a child under 16 (s 49B)

Belief-as-to-age defence is in s 49W; similar-age defence is in s 49V. → Belief-as-to-age — s 49W: a defence if the child was in fact 12 or older and the accused reasonably believed the child was 16 or more (s 49W(1)). → Onus — s 49W(4): the accused bears the legal burden (balance of probabilities) to prove the reasonable belief; only an evidential burden that the child was actually 12+. → Similar age — s 49V: a defence if the accused was not more than 2 years older, the child was 12+, and the child consented (s 49V©).

• Reasonable belief: must rest on facts sufficient to induce the belief in a reasonable person (Curtis v The Queen [yr?] VSCA 102, applying George v Rockett; LAL v The Queen [yr?] VSCA 111). Where the complainant said nothing about age, identify what in appearance, demeanour or behaviour induced the belief. The Note to s 49W — reasonableness includes any steps taken to find out the child's age.

• Consent generally irrelevant: consent is not relevant to the s 49B offence itself (Parliament excluded it to protect under-16s); it re-enters only as an element of the s 49V similar-age defence.

• Former law: old s 45 — belief the child was 16+ on reasonable grounds (s 45(4)(a); legal burden BOP for offences on/after 1 Dec 2006); similar-age s 45(4)(b); the 2-year gap is strict, measured in months not whole years (Stannard v DPP [yr?]).

Forged birth certificate / photo ID — not in the source material

The source material contains no proposition on how a forged birth certificate or ID bears on reasonableness. Argue it on the general principle: reasonable grounds require facts capable of inducing the belief in a reasonable person (Curtis; George v Rockett; LAL) — a convincing forged document is a strong supporting fact, but the accused still bears the legal burden under s 49W(4). Verify before relying.

8 · Claim of right — negates dishonesty (s 73(2)(a))

• Nature: not a true defence — it negates the dishonesty element of theft (s 72). s 73(2)(a): appropriation is not dishonest if the accused appropriates in the belief that they have in law the right to deprive the other of the property (for themselves or a third person).

• Belief need not be reasonable: an honest belief suffices; reasonableness bears only on whether the belief was truly held (R v Salvo [1980] VR 401).

• Scope (Freckleton): belief in (i) a legal right to deprive; or (ii) that the owner cannot be found by reasonable steps and would have consented; or (iii) that the owner cannot be found by reasonable steps (except where the property is held as trustee or personal representative).

• Advice: "A claim of right can cover only the property you believed you were legally entitled to. Taking the exact debt owed may negate dishonesty; the extra $100 taken out of anger is not covered by any claim of right and remains theft."

9 · Automatism & voluntariness

• Principle: a voluntary, willed act is an element of every offence; a person not conscious or aware of their acts acts as an automaton — the key is the absence of a willed act (Ryan v R (1967) 121 CLR 205).

• Sane automatism: caused by something other than a disease of the mind (reflex, epileptic fit, sleep, concussion, hypoglycaemia) → acquittal; the prosecution must prove voluntariness BRD (R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).

• Insane automatism: caused by a disease of the mind → not guilty because of mental impairment (not a simple acquittal).

• Leaving it to the jury: where the evidence raises sane automatism, the judge must direct on it even if defence counsel does not seek it (Falconer).

10 · Suicide pact — s 6B (partial defence to murder)

• Effect: reduces murder to manslaughter by suicide pact; maximum 10 years (level 5) (s 6B(1), (1A)).

• Onus — reversed: the accused must prove on the balance of probabilities that they killed pursuant to the pact; failing which the verdict is murder (s 6B(1); R v Sciretta [1977] VR 139).

• Elements (BOP) — s 6B(4): (i) an agreement to seek the death of all parties (a suicide pact); (ii) the killing was in pursuance of it; (iii) at the time, the accused had the settled intention of dying pursuant to the agreement.

• Limits: an actual pact must be proved — an honest and reasonable belief in a pact is not enough (R v Iannazzone [1983] 1 VR 649); passively allowing another to die is not a pact (H Ltd v J [2010] SASC 176); third parties to the killing but not the pact are unaffected (s 6B(3)).

11 · Autrefois acquit / convict (plea in bar)

Plea in bar: Applies where the accused has already been tried for the same, or substantially the same, offence and was acquitted or convicted. The charges must be the same or similar and arise from the same facts. It is a plea in bar to the prosecution, not a defence on the merits.

12 · Commonwealth defences — Criminal Code Act 1995 (Cth), Ch 2 Pt 2.3

• Div 7 — capacity: child under 10 not responsible (s 7.1); child 10 to under 14 only if they knew the conduct was wrong, prosecution to prove (s 7.2); mental impairment (s 7.3).

• Div 8 — intoxication: self-induced defined (s 8.1); disregarded for basic-intent fault (s 8.2); negligence judged against a sober person (s 8.3); relevance to defences — actual belief may use intoxication, reasonable belief judged sober (s 8.4); involuntary intoxication excuses (s 8.5).

• Div 9 — mistake / ignorance: mistake or ignorance of fact negating fault (s 9.1); mistake of fact in strict liability — reasonable belief on considered facts (s 9.2; s 6.2 bars it for absolute liability); ignorance of statute / subordinate law generally no excuse (ss 9.3, 9.4); claim of right to property (s 9.5).

• Div 10 — external factors: intervening conduct or event for strict/absolute-liability physical elements outside the accused's control (s 10.1); lawful authority — conduct justified or excused by or under a law (s 10.5). Commonwealth duress, sudden/extraordinary emergency and self-defence also sit in Division 10.

At a glance — Part IC complete defences (ss 322K–322R)

Defence	Provision	Belief / subjective limb	Objective limb	Murder limitation
Self-defence	s 322K	believed conduct necessary in self-defence (genuine, may be mistaken; Zecevic)	reasonable response in circumstances as perceived (Katarzynski)	death or really serious injury (s 322K(3))
Duress	s 322O	reasonably believed threat + only reasonable way out (characteristics count; Parker)	reasonable response to the threat (purely objective)	death or really serious injury (s 322O(4))
Sudden / extraordinary emergency	s 322R	reasonably believed emergency exists + only reasonable way to deal with it	reasonable response to the emergency	risk of death or really serious injury (s 322R(3))

Overlays — shape the analysis, not which defence applies

• Intoxication — s 322T: strip self-induced intoxication out of every reasonable belief and reasonable response; keep it for purely subjective beliefs; non-self-induced → same-extent reasonable person (s 322T(4)).

• Family violence — ss 322M / 322P / 322J: explains delayed or excessive responses (self-defence) and the perception of ongoing threats (duress); FV bears on perception, not on the objective response in duress (Parker).

• Murder limitations: for murder, self-defence, duress and emergency each require a belief in death or really serious injury (ss 322K(3), 322O(4), 322R(3)).

Currency watch

• 1 Nov 2014 — Part IC (ss 322K–322T) commenced; common-law self-defence, duress and necessity abolished (s 322N) for offences on/after this date.

• 23 Nov 2005 — statutory self-defence / emergency first applied to homicide (defensive homicide since abolished).

• 30 July 2023 — affirmative-consent reforms (ss 36, 36AA, 36A, 36B) commenced; always check the conduct date.

• 1 July 2017 — current child sexual offence scheme (s 49B offence; s 49W belief-as-to-age; s 49V similar-age) replaced former s 45.

• Verify on the day — confirm every [yr?] citation and any amendment after May 2026 before relying.

Verification note. The Part IC framework and authorities are drawn from your defences notes (citations reproduced as given, incl. Edmunds v The King [2025] VSCA 31; DPP v Parker [2016] VSCA 101; The King v Anna Rowan (a pseudonym) [2024] HCA 9). Consent and belief-as-to-age are drawn from the source material. Confirm the following medium-neutral years on AustLII before the exam:

• Year not shown: Worsnop v The Queen VSCA 188 — supply the year from AustLII.

• Confirm year: R v Getachew HCA 10.

• Citation corrected: NT v R VSCA 213 — corrected from "NT v The Queen"; confirm year.

• Confirm years: Curtis v The Queen VSCA 102; LAL v The Queen VSCA 111; Stannard v DPP.

• JDA directions: Jury Directions Act 2015 ss 46 & 47 — consent directions, per your standing correction (not s 47AAA).