Defences

Question 1

What is a self defence?

Answer 1

When a person acts to:
- protect themselves
- protect someone else
- prevent commission of crime

Question 2

What are the 2 stages of determining whether D may rely upon the defence of intoxication?

Answer 2

• Whether the accused’s intoxication was voluntary or not, as the rules vary based on how the D got intoxicated.
• The type of offence which D has been charged must be identified - Basic or Specific intent

Question 3

what is the difference between specific intent and basic intent crimes?

Answer 3

Specific intent - Offences where the mens rea is intention (and nothing less)

Basic intent - Offences where mens rea includes recklessness

Question 4

What is the conduct of getting voluntarily intoxicated?

Answer 4

Recklessness

Question 5

Fill in the blank

Fill in the blank

Answer 5

Question 6

Would taking a non-dangerous drug be considered as involuntary or voluntary intoxication, and why?

Answer 6

Involuntary intoxication, because if someone unknowingly takes a drug not known to lead to aggressive behaviour such as sedatives may provide defence

Question 7

Fill in the blank

Answer 7

Question 8

What is the ‘Dutch courage’?

Answer 8

A D who voluntary intoxicates themselves to gain courage to commit a offence → this does not negate the mens rea for the offence

Question 9

Sarah consumes a lot of drugs voluntarily, and on the way out of the club she believes someone is about to sexually assault her, so she hits him. Can Sarah rely on her self-defence?

Answer 9

No, any MISTAKES that she does are a consequence of her intoxication. She can only rely on self-defence if her reaction did not exceed that of a sober person in that situation

Question 10

What is the difference of the effect of intoxication on self-defence and lawful excuse?

Answer 10

• D CANNOT rely on a mistake caused by intoxication. Whereas, D Can rely on defence of lawful excuse i.e. D commits criminal damage mistakenly believing V would consent

Question 11

How can D rely on the defence for self-defence?

Answer 11

If D believed the use of force was necessary

If Ds response was reasonable

Question 12

How much force can D use for self defence?

Answer 12

The greater the danger to D the more force they may use. But it is a question to be decided by the jury or magistrates (objective)

Question 13

Which of the Ds characteristics may be taken into account when determining if they acted reasonably?

Answer 13

The physical characteristics of the D ARE admissible. But a Ds psychiatric condition is not relevant

Question 14

How much force can D use in their household for self defence?

Answer 14

A householder may use force that is both reasonable/proportionate and (may be) disproportionate provided the force was NOT grossly disproportionate

Question 15

What is a householder?

Answer 15

• Building or part of a building that is a dwelling
• Forces accommodation or
• A vehicle or vessel that is a dwelling
  All that is required is that D is not a trespasser

Question 16

When is force grossly disproportionate?

Answer 16

When its over the top - a reasonable person would not do

Question 17

Fill in the blank

Answer 17

Question 18

Does D have any duty before restoring to action?

Answer 18

No, there is no rule of law that states a D must retreat before resorting to action

Question 19

What does the court take into account when D acted in the heat of the moment?

Answer 19

A person acting for a legitimate purpose may not always be capable of assessing the exact degree or extent of action required with absolute precision.

Recognising that when a person acts based on their genuine and instinctive belief in what is necessary… strong indication that their actions were justified for that purpose.

Question 20

When can D use self defence?

Answer 20

D does not need to wait to be assaulted to claim self defence provided they honestly believed the use of force was necessary t ward off an attack

Question 21

There is a presumption of recklessness when voluntarily intoxicated.

What does that mean?

Answer 21

If there is an obvious risk, the jury are bound to conclude that D foresaw that risk and so was reckless

Question 22

Can an involuntarily intoxicated D have presumption of recklessness?

Answer 22

No, as he could not have foreseen the risk