23B. Accident
Summary: The defence of accident applies when a person is not criminally responsible for an event that occurs unintentionally and without negligence.
(1) This section is subject to the rules in Chapter XXVII and section 444A about negligent acts and omissions.
(2) A person is not legally responsible for an event that happens by accident.
(3) If death or serious injury:
(a) is directly caused by another person’s deliberate use of force, but
(b) would not have happened except for an abnormality, defect, or weakness in the victim,
the person is not excused from responsibility just because of the victim’s condition.
(4) Subsection (3) applies:
(a) even if the person did not intend or expect the death or serious injury, and
(b) even if the death or serious injury was not reasonably predictable.
32. Duress
Summary: The defence of duress applies when a person commits an act or omission due to a belief in a serious threat, where their actions are a reasonable response to prevent that threat.
(1) A person is not legally responsible for an act they do, or something they fail to do, if it is done under duress, as explained in subsection (2).
(2) A person acts under duress if:
(a) they believe that:
(i) a threat has been made;
(ii) the threat will be carried out unless they commit an offence; and
(iii) committing the act or omission is necessary to stop the threat; and
(b) their action or omission is a reasonable response to the threat, based on what they believe the situation to be; and
(c) there are reasonable grounds for those beliefs.
(3) Subsections (1) and (2) do not apply if:
(a) the person is voluntarily involved with the person making the threat for the purpose of doing something like what they did under duress; or
(b) they are involved in an unlawful activity where such a threat was reasonably predictable.
25. Emergency
Summary: The defence of emergency applies when a person takes action or fails to act in response to a sudden or extraordinary emergency, believing it is necessary and reasonable to prevent harm.
(1) This section does not apply if section 32 (Duress), 246 (Offences Against Property), 247 (Aggravated Burglary), or 248 (Self-Defence) applies.
(2) A person is not legally responsible for an act they do, or something they fail to do, in an emergency as described in subsection (3).
(3) A person acts or makes an omission in an emergency if:
(a) they believe that:
(i) a sudden or extraordinary emergency exists; and
(ii) their action or omission is necessary to respond to the emergency; and
(b) their action or omission is a reasonable response to the emergency, based on what they believe the situation to be; and
(c) there are reasonable grounds for those beliefs.
22(2). Honest Claim of Right
A person is not legally responsible for an offence related to property if they act with an honest belief that they have the right to the property and without the intent to defraud.
27. Insanity
Summary: A person is not legally responsible for their actions if, due to mental impairment, they cannot understand, control, or recognize that their actions are wrong at the time of the act
(1) A person is not legally responsible for an act or omission if, at the time, they are so mentally impaired that they cannot understand what they are doing, cannot control their actions, or cannot understand that they should not do the act or make the omission.
(2) A person whose mind is affected by specific delusions at the time of the act or omission, but who does not meet the criteria in subsection (1), is still legally responsible as if the situation were as they believed due to the delusions.
28. Intoxication
Summary: The defence of intoxication applies when a person is unintentionally intoxicated and unable to control their actions, but does not apply if they became intoxicated on purpose, and intoxication can be considered when determining intent for an offence.
(1) Section 27 applies to a person whose mind is affected by intoxication or stupefaction caused unintentionally by drugs, alcohol, or other means.
(2) Section 27 does not apply to someone who has intentionally made themselves intoxicated or stupefied, whether or not they did so to excuse committing an offence.
(3) If an offence requires intent to cause a specific outcome, intoxication, whether intentional or unintentional, can be considered when determining if that intent existed.
24. Mistake of fact
A person who acts or fails to act based on an honest and reasonable, but mistaken, belief about a situation is not legally responsible for their actions any more than if the situation had been as they believed.
This rule may not apply if the law specifically says otherwise.
246. Defence of Provocation
Summary: The defence of provocation applies when a person loses self-control due to provocation and acts immediately, as long as the force used is not excessive or likely to cause serious harm.
A person is not legally responsible for an assault on someone who provokes them, if the provocation causes them to lose self-control and they act immediately, without time to cool down. However, the force used must not be excessive compared to the provocation, and must not be intended or likely to cause death or serious injury.
Whether an act or insult would make an ordinary person lose self-control and assault the person who provoked them, and whether the force used is excessive, are questions of fact.
248. Self-defence
Summary: Self-defence allows a person to lawfully use force to protect themselves or others from harm, as long as their actions are reasonable and based on genuine belief of danger.
(1) In this section:
- Harmful act means an action that is part of a crime under this law, except for Chapter XXXV.
(2) A harmful act done by someone is lawful if it is done in self-defence, as explained in subsection (4).
(3) If:
(a) a person unlawfully kills someone in a situation that would usually be considered murder, and
(b) the action that caused the death would count as self-defence under subsection (4), except that it was not a reasonable response based on what the person believed at the time,
then the person is guilty of manslaughter, not murder.
(4) A harmful act counts as self-defence if:
(a) the person believes the action is necessary to protect themselves or someone else from harm (even if the harm isn’t immediate);
(b) the action is a reasonable response based on what the person thinks is happening; and
(c) there are good reasons for these beliefs.
(5) A harmful act is not self-defence if it is used to protect against an action that is legal.
(6) For subsection (5), an action is not considered legal just because the person doing it cannot be held criminally responsible.
Please note, that self-defence is only applicable in certain circumstances.
[Further information: A Guide to Self-Defence Laws in Western Australia]
**Please Note**
The material provided here is for informational use only and does not constitute binding legal advice. You should not use this information as a replacement for an individual consultation with a trained legal professional.
