Defences, Offences, Conveyances- Lecture 4 Flashcards
1
Q
defences are ways the accused can do what
A
- raise doubt on whether they did the act and/or had the mens rea
- raise doubt on whether they are the right accused
- supply a justification for what they did
- provide an excuse for what they did
2
Q
how many elements of the offence must the defence raise a reasonable doubt on
A
one or more
3
Q
where are statutory defences found
A
in CC
4
Q
when can abandonment be used as a defence
A
when charged with aiding or abetting
5
Q
what is abandonment used to show
A
that D tried to pull out/ abandon the activity
6
Q
to use the defence of abandonment, what must be shown
A
- intent to withdraw from unlawful activity
- D communicated intent to withdraw, in a timely way, to other involved
- D’d communication was unequivocal
- D took steps to cancel out the effects of D’s participation
7
Q
Is abandonment a common law defence or statutory defence?
A
common law
8
Q
Is abuse of process a common law defence or statutory defence?
A
common law
9
Q
Is accident a common law defence or statutory defence?
A
common law
10
Q
Is alibi a common law defence or statutory defence?
A
common law
11
Q
Is due diligencea common law defence or statutory defence?
A
common law
- R V SSM
12
Q
Is duress a common law defence or statutory defence?
A
common law
13
Q
Is entrapment a common law defence or statutory defence?
A
common law
14
Q
Is honest belief a common law defence or statutory defence?
A
common law
15
Q
Is mistake of fact a common law defence or statutory defence?
A
common law
16
Q
Is necessity a common law defence or statutory defence?
A
common law
17
Q
Is non-insane automatism a common law defence or statutory defence?
A
common law
18
Q
Is defence of mental disorder a common law defence or statutory defence?
A
statutory
19
Q
Is compulsion by threats a common law defence or statutory defence?
A
statutory
20
Q
Is protection of persons acting under authority a common law defence or statutory defence?
A
statutory
21
Q
Is self defence/ defence of a person a common law defence or statutory defence?
A
statutory
22
Q
Is defence of property a common law defence or statutory defence?
A
statutory
23
Q
Is correction of a child by force a common law defence or statutory defence?
A
statutory
24
Q
Is self-induced intoxication a common law defence or statutory defence?
A
statutory
25
where can abuse of process be used
where existence of ulterior purpose or motive underlying the use of process or some act in the use of the legal process is not proper in regular prosecution
26
who has the onus to prove abuse of process
- defence
- balance of probabilities
- to show that to allow the case to continue would violate fair play and decency
27
what is the remedy for abuse of process
stay of proceedings
28
what conditions must be met for stay of proceedings to be used for abuse of process
- the prejudice caused by the abuse will be manifested, perpetuated or aggravated through the conduct or outcome of the trial
- The prejudice is not something that occurred in the past
- No other remedy is reasonably capable of removing the prejudice
29
who has the onus to prove accident
- D must establish air of reality
- then onus shifts to P to disprove
30
why can accidents be used as a defence
because criminal activity requires voluntary conduct, which an accident is not
31
what element of a crime does alibi go to
proving identity (everyone, a person)
32
what is the concept behind alibit
D alleges to be someplace elsewhere at the time of the crime, where there is no window of opportunity to commit offence
33
for which defence does notice must be given to P for
alibi
34
for which defence is there most likely to be an adverse inference drawn by court if disproven
alibi
35
to which cases can due diligence be used as a defence
- strict liability offences
- not for CC offences
36
what is required to prove due dilligence
- honest but mistaken belief in facts that if true would render act innocent
- exercised all reasonable care to avoid committing offence
37
what are true criminal offences
those found in the CC
38
strict liability offence
one where due diligence is a defence
39
absolutely liability offence
absolutely no defence for it
40
what are the three categories of offences
- true criminal offences
- strict liability offences
- absolutely liability offences
41
one where due diligence is a defence
strict liability offence
42
absolutely no defence for it
absolutely liability offence
43
describe the concept of Duress
D commits actus reus but didn't have mens rea because they were forced to commit act
44
what is required to prove duress
- Close temporal connection between threat and harm threatened
- Application of the objective/subjective safe avenue to escape
- D must show reasonable fortitude in resisting threat
- Objective assessment as to whether threat will be carried out
- Proportionality between harm avoided and harm causes
- May include threat of future harm to 3rd party but must be temporal
45
who has onus to prove duress
- D must raise evidence to support defence
- onus shifts to P to disprove based on BOP
46
does duress supersede compulsion by threat
- no
- they apply in different circumstances
47
describe the general idea behind entrapment
PO provides a person w an opportunity (or more than creates an opportunity) to commit a crime without acting on reasonable suspicion that person is already engaging in criminal behaviour
48
what is the remedy to entrapment
stay of proceedings
49
what is the burden of proof and onus for entrapment
- D must bring defence and prove on BOP
50
what is the other term for mistake of fact
honest belief
51
what is required for mistake of fact
- existence of facts or circumstances that, if true, would make act innocent
- need reasonable ground for belief
52
describe the basic situation needed for necessity
- D alleges they have no choice but to do the act
- requires compliance with the law be demonstrably impossible
53
what 3 elements must be established for necessity
- imminent peril or danger
- no reasonable legal alternative to course of action D undertook
- proportional between harm inflicted and harm avoided
54
is lack of memory of relevant event enough to prove non-insane automatism
no
55
must there be existence of some condition or physical state that is capable of causing involuntary automatic behaviour to prove non-insane automatism
yes
56
what does mild drunkenness mean at the law level
nothing
57
what does advanced intoxication mean at the law level
- D lacks specific intent to commit offence
58
why does advanced intoxication mean D lacks specific intent
- impairs D's foresight of consequences of actions
- therefore excuse ONLY for specific intent
59
what does extreme intoxication akin to automatism mean at the law level
negates voluntariness and may be a complete defence
60
what does NCR stand for
not criminally responsible
61
what is the not criminally responsible defence
defence of mental disorder
62
when is the defence of mental disorder available
- if at time of act or omission
- while suffering from mental disorder that renders incapable of (appreciating the nature and quality of the act OR)(knowing that it was wrong)
63
what is a relevant legal presumption for defence of mental disorder
everyone is not mentally disables
64
who has the onus for defence of mental disorder
D to show NCR on a balance of proabilities
65
does defence of mental disorder mean they are unfit to stand trial
no
66
what is the duress of statutory law
compulsion by threats
67
what must be proven for compulsion of threat
- D must be in immediate threat of death or bodily harm
- Threat must come from person who is present when offence is committed
- D must believe threat will be carried out
68
what are the restrictions of using compulsion by threats as a defence
- restricts the use of this defence for some offences (sexual assault, high treason etc)
- cannot be used when D is a party
69
what are the elements of protection of persons acting under authority
- if he acts on reasonable grounds,
- justified in doing what he is required or authorized to do and
- in using as much force as is necessary for that purpose
70
does duress supersede compulsion by threats? explain
- not completely
- duress is available to parties to an offence
71
what are the elements of self defence
- not guilty to offence
- if they believe on reasonable grounds
- that force is being used or threatened against them or another person AND
- what they do is being done to defend or protect from that force or threat AND
- what they do is do is reasonable in the circumstances
72
describe the elements of defence of property
- A person is not guilty (legal defence)
- If they believe on reasonable grounds
- They are in peaceable possession, or acting under the authority of, or are lawfully assisting some who has peaceable possession and
- Believe that: another is about to, is or has entered property With out lawful entitlement, or Is about to take property, is doing or about to, or Is about to damage property, and
- Their act is for the purpose of preventing entry or taking adv of, or damaging property, and
- Their act is reasonable in the circumstances
73
describe the elements of correction of child by force
- Every school teacher, parent or person standing in the place of a parent
- Is justified
- In using force
- By way of correction
- Toward a pupil or child and
- The force does not exceed what is reasonable
74
keywords like "with intent" and "knowingly" point to what kind of mens rea
specific intent
75
what is a conveyance
a motor vehicle, vessel, aircraft, or railway equipment
76
does vessel include hovercraft
yes
77
what does operate mean in terms of a motor vehicle
to drive it or to have care or control of it
78
what does operate mean in respect of a vessel or aircraft
- to navigate it
- to assist in its navigation
or
- to have care or control of it
79
what does operate mean in respect to railway equipment
- to participate in the direct control of its motion
- or to have care or control of it as a member of the equipment’s crew, as a person who acts in lieu of a member of the equipment’s crew by remote control, or otherwise.
80
what does care and control mean
- need not have intent to set vehicle in motion
- just need risk to put vehicle in motion by virtue of D's position or action
- doesn't matter if D establishes they did not have intention to operate
81
what does a sequential offence mean
different punishments if its your 1st attempt, 2nd, 3rd ...
82
