9. Criminal Capacity and Defences

Question 1

Under what age are children not criminally culpable?

Answer 1

Under ten

Question 2

What is the test for whether a defendant is fit to plead?

Answer 2

Of sufficient intellect to comprehend the course of proceedings in the trial as to:

1. Make a proper defence
2. Challenge a juror to whom they may wish to object, and
3. Comprehend details of evidence

Question 3

Where a defendant is not fit to plead, what will the court do?

Answer 3

Decide whether they committed the crime on the actus reus alone

Question 4

What are the options for the court regarding a convicted deemed to have committed the actus reus but who is otherwise unfit to plead?

Answer 4

1. Send to hospital for a set period
2. Supervision order
3. Absolute discharge

Question 5

When a defendant charged with murder is unfit to plead, what is the court obliged to do?

Answer 5

Send the defendant to hospital for an indefinite period

Question 6

What is the standard for involuntary intoxication?

Answer 6

Did D form the mens rea despite their intoxicated state?

Question 7

What is the standard for voluntary intoxication with non-dangerous drugs?

Answer 7

Did D form the mens rea despite their intoxicated state?

Question 8

What is the standard for voluntary intoxication with dangerous drugs?

Answer 8

Did D form the mens rea despite their intoxicated state? SPECIFIC INTENT CRIMES ONLY

Question 9

When will involuntary intoxication not be available, and what facts will be a tip off to this?

Answer 9

Not available where the intent was not formed by the intoxicated state, but rather their desires and tendencies toward the behaviour

Question 10

Is involuntary intoxication available where the defendant underestimates the strength of their own drink?

Answer 10

No

Question 11

However, what occurs where the intoxication is part voluntary and part involuntary, i.e. defendant was drinking but was also spiked?

Answer 11

The court will consider the effect of each aspect on the conduct

Question 12

Will voluntary intoxication by a dangerous substance negate mens rea?

Answer 12

Only if the offence is one of specific intent

Question 13

In what specific intent situation will a voluntarily intoxicated person still be guilty?

Answer 13

Where they become intoxicated only to gain the courage to commit the offence

Question 14

Why is intoxication not a defence to strict liability offences?

Answer 14

Because strict liability offences have no mens rea requirement

Question 15

For self-defence to be available, what three things must the defendant be acting to protect, or what other two things must they be trying to do?

Answer 15

Protect:
1. Self
2. Another, or
3. Property

or

1. Prevent crime, or
2. Effect lawful arrest

Question 16

To rely on self-defence, what must the defendant subjectively believe?

Answer 16

That force is immediately required

Question 17

To rely on self-defence, what must be true of the force used?

Answer 17

Defendant must believe the force is immediately required, and it must be objectively proportionate based on the facts that the defendant subjectively believes them to be

Question 18

Regarding the amount of force used, what is the standard where the defendant is a householder acting against an intruder who has entered their home?

Answer 18

The householder may use any force as long as it is not grossly or unreasonably disproportionate

Question 19

In determining what is grossly or unreasonably disproportionate, what will the court consider?

Answer 19

Decisions that were made in the heat of the moment

Question 20

In addition to being in their dwelling, what are the two other criteria the defendant must satisfy to rely on the householder exception?

Answer 20

Defendant must:
1. Not be a trespasser, and
2. Believe that the victim is a trespasser

Question 21

What are the three requirements for the defence of necessity?

Answer 21

1. Act was required to avoid an inevitable evil
2. Defendant only did what was reasonably necessary
3. What they inflicted was not disproportionate to what was avoided

Question 22

What offence is necessity not available for, and what is the effect of this?

Answer 22

Murder, therefore if someone is faced with the choice of killing another or dying/being killed themselves, the law will not excuse them if they do not sacrifice themselves.

Law technically silent on whether necessity is available for attempted murder.

Question 23

In what limited circumstances is duress available?

Answer 23

When defendant was subjected to threats and committed an offence to avoid the threats being realised

Question 24

What offences is duress not available for, and how is this different to necessity?

Answer 24

Murder and attempted murder. In theory attempted murder is not precluded from necessity.

Question 25

What are the five requirements for duress?

Answer 25

1. Threat must be of death or serious injury 2. Threat must be against defendant, their close friend/relative, or someone from whom they feel responsible 3. Defendant must have good cause to feel fear 4. Person of reasonable firmness would have reacted the same 5. Threat must be sufficiently immediate with no opportunity to take evasive action

Question 26

Even when the conditions are met, when is duress not available?

Answer 26

When the defendant voluntarily associates with the maker of the threat, knowing of their tendencies