Defences

Question 1

When is intoxication a defence?

Answer 1

Only if (i) it negates the mens rea and (ii) the crime is one of specific and not basic intent

Question 2

When is voluntary intoxication a defence (note twist)?

Answer 2

1. ONLY If the crime is one of specific intent (i.e. requires intention to achieve certain consequences and not recklessness as to those consequences)
   and
2. The defendant was not able to form the necessary MR because of his intoxication (e.g. could not form a direct aim or purpose)
   OR
   If the voluntary intoxication was by non-dangerous drugs (not common knowledge that it causes the taker to become unpredictable), then can negate MR for any offence, even basic intent.

Question 3

When is involuntary intoxication a defence?

Answer 3

If it negates the mens rea for any offence, whether specific or basic intent.

Question 4

What is the impact of D’s intoxication on an attempt to plead duress, self-defence or consent in sexual offences?

Answer 4

If D mistakenly believes (i) there is a threat of serious harm; (ii) there is a need to use force in self-defence; or (iii) that V consents, the intoxication renders the mistake unreasonable and the mistake cannot be relied upon. I

Question 5

What is the impact of D’s intoxication on an attempt to plead consent in OAPA?

Answer 5

Mistaken belief in consent is OK - see R v Richardson and Irvin

Question 6

What is the impact of D’s intoxication on an attempt to plead a statutory defence involving honest belief?

Answer 6

Honest belief is a purely subjective test - so even drunken mistaken beliefs can be relied upon.

Question 7

3 requirements before consent is a defence.

Answer 7

1. Either V consents, or D honestly believes that V consents and
2. In offences against the person, the level of harm is one to which V is capable, in law, of consenting to (i.e. ABH if harm was accidental - see R v Slingsby; assault or battery only, if harm was intended). Essentially cannot consent to endangerment to life or a realistic chance of harm exceeding transient or trivial injury.

Question 8

When is consent a defence to causing GBH by transmitting HIV?

Answer 8

Where HIV is deliberately inflicted, because consent to sex is consent to the risk of HIV but not the deliberate infliction of HIV

Question 9

When is consent negated as a defence?

Answer 9

Deception as to (i) D’s identity; or (ii) the nature and quality of the act (as in Konzani)

Question 10

3 elements of self-defence?

Answer 10

1. D honestly believed that the use of force was necessary
2. To defend one’s person or property or that of others, or to prevent crime
3. And the force used was reasonable in the circumstances (non-householder cases) or was not grossly disproportionate (householder cases, i.e., all lawful occupiers of the building)

Question 11

What is the effect of an honest mistaken belief that force in self-defence is necessary, on that defence?

Answer 11

An honest but mistaken belief in the need to use force is sufficient, provided it is NOT a drunken mistake.

Question 12

What is the test of reasonable force? Objective or subjective?

Answer 12

It is an objective test but judged according to the facts as D subjectively believed them to be, bearing in mind that (i) D may not be able to weigh to a nicety the exact measure of what is necessary; and (ii) evidence that D has only done what he honestly and instinctively thought necessary is strong evidence only reasonable action was taken

Question 13

Which 2 offences can duress not act as a defence to?

Answer 13

1. Murder; and

2. Attempted murder

Question 14

6 elements of the defence of duress, following R v Hasan?

Answer 14

1. Threat of death or serious injury
2. Made to D, D’s immediate family or someone for whom D would reasonably regard himself as being responsible
3. D’s belief in the veracity of the threat and decision to commit the crime is reasonable (objective test);
4. The threats are immediate and directly caused D’s conduct
5. There is no evasive action D could reasonably have taken; and
6. D did not voluntarily lay himself open to those threat, i.e., cannot be said that D ought to have foreseen the risk of being subject to any compulsion by acts of violence

Question 15

Difference between duress by threat and duress of circumstances?

Answer 15

Threat need not be accompanied by a command to commit a specific crime.

Question 16

Who bears the burden of proving the insanity defence, and what are its four elements?

Answer 16

1. D suffered from a disease of the mind (impairing mental faculties of reasoning, understanding or memory)
2. The disease resulted from an internal cause
3. D was completely deprived of reasoning ability and
4. As a result, D did not understand (i) the nature and quality of the act or (ii) that the act was legally wrong

Question 17

Define automatism. What is the key distinction for automatism?

Answer 17

An act done by the muscles (i) without any control by the mind or (ii) by a person who is entirely unconscious of what he is doing.

Key distinction is between insane automatism (caused by internal factor - therefore needs to satisfy M’Naghten rules and will result in special verdict) and sane automatism, which results in a complete acquittal

Question 18

When will automatism NOT be a defence?

Answer 18

1. Where the offence is one of basic intent and

2a. the automatism was (i) due to intoxication which was (ii) self induced by consumption of a (iii) dangerous drug OR a non-dangerous drug, the consumption of which D was aware might make him aggressive, unpredictable or uncontrolled
OR
2b. the automatism was (i) self induced and (ii) D was reckless as to whethe rthe thing which he did or omitted to do would make him aggressive, unpredictable or uncontrolled

BASIC INTENT ONLY RELEVANT IF AUTOMATISM DUE TO INTOXICATION (then real defence is intoxication negating MR and not automatism negating AR)