Defences

Question 1

How does intoxication work as a defence?

Answer 1

Intoxication is not a defence in and of itself. Intoxication is only relevant if it causes D to lack MR (intention or recklessness).

Drunken intent is still intent, drunken recklessness is still recklessness.

If D has the necessary MR, intoxication is irrelevant. This is the case for voluntary/involuntary intoxication.

If D proves they were intoxicated, the prosecution needs to prove beyond reasonable doubt that D formed the necessary MR despite intoxication.

Question 2

How should you apply intoxication for recklessness?

Answer 2

Voluntarily intoxicated: presumption D foresaw the risk i.e. presumption of recklessness;
Involuntarily intoxicated: check whether D did in fact foresee the risk when drunk.

Question 3

What is the test for self-defence or defence of another?

Answer 3

1. Did D honestly believe that the use of force was necessary to defend themselves or to defend another? Subj. test - trigger
2. Was the degree of force reasonable in the circumstances as D believed them to be? Objective Q with subjective element. Response

Question 4

Self-defence: how does the test for the level of force used differ between householder and non-householder cases?

Answer 4

Non-householder cases: use of force cannot be disproportionate
Householder cases: use of force cannot be grossly disproportionate

Question 5

Nature of criminal defences:

Answer 5

General defences - apply to all offences
Specific - apply only to some offences - specific-intent offences
Complete - rid D of liability - not guilty verdict
Partial - reduce D’s liability - D will be liable for any lesser offences

Question 6

For which defence does the defence bear a reversed legal burden to prove that a particular defence has been made out?

Answer 6

Diminished responsibility.

Question 7

Application of voluntary intoxication to specific/basic intent crimes?

Answer 7

Specific intent crimes - intoxication is available as a defence (exception: Dutch courage).
Basic intent crimes - intoxication is not available.

Voluntary intoxication + specific-intent offence = defence (so long as D lacks MR)
Voluntary intoxication + basic-intent offence = no defence

Question 8

Application of involuntary intoxication to specific/basic intent crimes?

Answer 8

The defence can be used for both specific/basic intent crimes (exception for strict liability offences).

D must be unable to form the MR for the offence charged.

Question 9

Can D rely on an intoxicated mistake?

Answer 9

No.

Question 10

Scope of self-defence/defence of another?

Answer 10

D may seek to argue that he was justified in acting as he did to:
-protect himself or another
-protect his property
-prevent a crime/make a lawful arrest

Question 11

What are the elements of householder self-defence?

Answer 11

-D must be a householder
-self-defence must be used while in/partly in a dwelling
-D believed V to be a trespasser
-D’s use of force was necessary in the circumstances as D believed them to be
-D’s use of force was not grossly disproportionate in the circumstances as D believed them to be.

Question 12

Test for level of force used in household cases?

Answer 12

1. Was the force grossly disproportionate in the circumstances as D believed them to be? If yes - defence fails
2. If not, was the level of force reasonable?