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criminal law – academic > General defences > Flashcards

General defences Flashcards

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1
Q

What happens to liability if a valid and complete defence exists?

A

D will not be criminally liable

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2
Q

What is a general defence?

A

A defence available to almost any crime

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3
Q

What happens if D does not form the necessary MR due to intoxication?

A

D entitled to a full acquittal under certain circumstances

I.e. was so intoxicated they did not know what they were doing

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4
Q

What if D forms the MR even though intoxicated?

A

Drunken intent is still intent, so D will be liable - if prosecution establishes this intoxication cannot assist D

Same for Dutch courage

Kingston - if D had still formed MR in intoxicated state, it is no defence to plead he would not have committed offence when sober

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5
Q

When can intoxication operate to negate MR?

And what is the role of D and prosecution here?

A
  1. Where intoxication caused involuntarily (spiking, lacing)
  2. Where intoxication caused voluntarily in bona fide pursuit of medical treatment
  3. Where intoxication caused by non-dangerous drugs taken voluntarily (dangerous = illegal or alcohol)
  4. Where specific intent is required (generally where offence cannot be committed recklessly)

Evidential burden on D to raise intoxication, then P’s job to prove BRD that D formed necessary MR

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6
Q

What 3 questions should be asked when addressing whether intoxication will negate MR of alleged offence?

A
  1. Is D voluntarily or involuntarily intoxicated?
  2. Is intoxicant a dangerous or non-dangerous alcohol/drug?
  3. Is it a crime of basic or specific intent?
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7
Q

What type of crimes will the defence of intoxication be available for involuntary intoxication?

A

Both specific and basic intent crimes

Still must ask if D formed necessary MR despite intoxication

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8
Q

Will mistaking the strength of alcohol a D is aware they are drinking count as involuntary intoxication?

A

No

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9
Q

What is the distinction for basic intent and specific intent offences?

A
  • Basic intent = no foresight of consequences required/could be convicted on basis of recklessness e.g. battery as D must intend or be reckless
  • Specific intent = intention only form of MR available e.g. murder as D must intend to kill or cause GBH

  • Specific = murder, s18 (wounding or GBH with intent), theft, robbery, all burglary, attemps
  • Basic = involuntary manslaughter, s20 and s40, battery and assault, basic criminal damage and aggravated criminal damage
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10
Q

In a case of voluntary intoxication, what is the test for intoxication as a defence for 1. specific and 2. basic intent crimes?

A
  1. Specific = defence may be available if the D did/was not able to form MR due to intoxication
  2. Basic = would D have seen the risk/formed MR had they not been intoxicated? (Most likely will and) if so, will be deemed reckless and criminally liable (so MR will not negate MR)

Less likely to be able to rely on it for basic intent

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11
Q

What is the difference between dangerous and non-dangerous drugs ?

A
  • Dangerous (alcohol and illegal drugs) = known that a drug can cause taker to become aggressive or unpredictable
  • Non-dangerous (sedatives) = no such common knowledge

Hardie - D took valium and started a fire and denied having MR

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12
Q

What is the difference between dangerous and non-dangerous drugs in terms of availability of intoxication defence?

A
  • Dangerous drugs = look at rules on basic and specifc intent
  • Non-dangerous drugs = defence might be available - did D still form necessary MR?
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13
Q

Summary of intoxication as a way to negate MR

A
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14
Q

Is it a defence to have only formed the MR because they were intoxicated?

A

No - question is whether they actually formed the MR
* If a basic intent offence, very likely intoxication cannot be used as offence (as would have formed the MR if sober)
* For specific intent offence, question is as above

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15
Q

Will intoxication enable a D to rely on another legal defence?

A

Generally, no

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16
Q

What is the effect of intoxication on using self-defence?

A

If D makes a drunken mistake as to the need to use self-defence, they cannot rely on that mistake

I.e. can basically be drunk and make the same mistake you would sober but because you are drunk it negates the defence

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17
Q

What is the effect on intoxication of LOC and DR?

A

Does not bar a plea to either

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18
Q

Where in murder is intoxication considered?

A

MR - even though intoxicated, did D form MR of intention to kill/cause GBH? Drunken intent still intent

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19
Q

Where is intoxication considered in LOC?

A
  • Addiction can be taken into account in assessing magnitude of qualifying anger trigger if taunted about addiction
  • Characteristic of intoxication can be given to normal person but normal person will still have normal levels of tolerance and self-restraint
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20
Q

Where is intoxication considered in DR?

A
  • If AMF arises from ADS = extent and severity considered, AMF must arise from it, and substantially impaired ability to do thing
  • Other AMF = Alcohol can be an additional reason to explanation of D’s conduct than AMF
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21
Q

What is the rule on intoxication and consent?

E.g. how the intoxicated perceive consent

Richardson and Irwin - drunken uni students drop V over balcony and claim they had consented

A

D can have a defence if jury satisfied that V consented to accidental infliction of injury or D (wrongly) believed that V consented (due to intoxication)

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22
Q

What is the effect on intoxication and a statutory defence that allows for honest belief?

E.g. owner would consent to damage or appropriation of property

A

D can use this defence even if their belief is due to voluntary intoxication

23
Q

What are the 2 requirements for the defence of consent?

A
  1. V consented
  2. D honestly believed V was consenting
24
Q

What must the prosecution prove regarding consent?

A
  1. Victim did not consent; and
  2. D did not believe in victim’s consent

BOTH

25
Q

Can the defence of consent be available if D wrongly believed the V consented or if they did but D did not know this?

A

Can be available for both - availability depending on level of harm inflicted/circumstances

26
Q

When is consent available as a defence to an offence against the person?

A

Only when it is assault or battery

27
Q

When will consent be available even where ABH or worse is caused?

2 conditions

A
  1. If D intended only to commit battery with consent of V; and
  2. D did not see the risk of inflicting ABH

If intended = consent is not a defence

28
Q

What are the exceptions in which V can consent to offences against the person of ABH?

A
  • Medical treatment (even if high risk of death)
  • Sport (participants consent to risk)
  • Horseplay (pranks/playfulness e.g. setting fire to fire-resistant’s suit as joke and they get severe burns)
  • Tattooing, body piercing or personal adornment (branding with hot knife fine, body modification not e.g. removal of ear/nipple)
  • Sexual gratification/accidental infliction of harm
29
Q

When will the exception of sport not stand?

A

If conduct is so sufficiently grave to be categorised as criminal; beyond what a player could reasonably be regarded as taking part in sport

Depends on sport and circumstances

30
Q

Can you consent to the risk of an STI?

A

Yes, but not to HIV as it is considered GBH

31
Q

How violent must the sexual gratification be for defence of consent to not apply?

A

Not okay: Fist into vagina, plastic bag over head, lighter fluid on breasts, burning genitals, beatings

32
Q

Can an adult apply force to a child for purposes of chastisement?

A

If reasonable under case law, but subject to challenge from Art 3 and cannot cause ABH or above

Should consider context and behaviour of child and consequences for it

33
Q

Can the courts extend the exception categories?

A

No - unless there is a close analogy

34
Q

What will a successful defence of self-defence result in? What does it mean that self-defence is an ‘all or nothing’ defence?

A

Aquittal - D will either be acquitted by self-defence or it will fail (in entirety if it fails in any way e.g. slightly excessive force)

Is for prosecution to disprove D acted in self-defence

35
Q

In what 3 circumstances will self-defence operate?

A

Where a person acts to
1. Protect themselves, someone else or property;
2. Prevent a crime; or
3. Assist in arrest of offender

36
Q

What is the only type of force self-defence can be used to protect yourself, another or property from?

A

Imminent attack; physical force

Not a threat to peace of mind

37
Q

What are the two requirements of self-defence?

A
  1. Trigger: D honestly believed use of force was necessary (subjective)
  2. Response: level of force D used is objectively reasonable in the circumstances as D believed them to be (objective)

Subjective > Objective
Self > Defence

38
Q

Must D’s belief in the necessary use of force be reasonable?

A

No - D can mistakenly believe they are being attacked with deadly weapon and use such force as reasonable to repel such an attack = will have a defence

Immaterial that they are mistaken

39
Q

What is the effect of voluntary intoxication on the trigger?

A

A mistake induced by D’s intoxication cannot be relied upon

Hatton - H drunk over 20 pints of beer and killed V with sledgehammer thinking he was being attacked by a samurai sword - could not rely on belief because of intoxication

40
Q

Is there a duty to retreat?

I.e. are they bound to run away if they can?

A

No despite reasonableness of force requirement - but should demonstrate that he does not want to fight

41
Q

Is anticipatory self-defence possible?

Where D makes first blow

A

Yes, do not have to wait for opponent for a pre-emptive strike but the anticipated attack must be imminent

42
Q

Can self-defence be used by an antagonist?

E.g. trespasser attacks property owner and argues self-defence

A

Yes - antagonist can rely on self-defence if the other party used excessive force (e.g. owner used excessive force on trespasser; trespasser can use self-defence successfully)

Down to circumstances of case

Only where actions of victim was so out of proportion from initial aggressor

43
Q

Can force ever be used against an innocent third party in self-defence?

A

Rarely but possible, such as…

  • Police pushing someone out of the way to get to someone who was about to shoot
  • Knocking the keys out of a person’s hand who is about to drunk drive
44
Q

What two types of cases are differentiated between to decide whether force used is objectively reasonable?

A
  • Non-householder cases
  • Householder cases
45
Q

On what does the jury decide if the force was reasonable?

Obj/subj

A

If the force was objectively reasonable given the facts as the D subjectively believed them to be

46
Q

When will force used be unreasonable?

A

When it was disproportionate

47
Q

What should the jury consider when deciding whether force was disproportionate?

A
  • Person acting for legitimate purpose may not be able to weigh to a nicety the exact measure of any action (heat of the moment); and
  • The evidence of a person having only done what person honestly and instictively thought was necessary for legitimate purpose constitutes strong evidence that only reasonable action was taken
48
Q

If D is mistaken, must it be reasonable?

A

No - can esp rely on psychiatric evidence (e.g. PTSD) to substantiate mistaken beliefs

As long as it is honest

BELIEF CAN BE UNREASONABLE AND MISTAKEN AS LONG AS IT IS HONEST

49
Q

What is a householder case?

A

One where D:
1. Acts to protect themselves or another
2. Uses force while (partly) in a (part) of a building that is a dwelling (inc vehicles, vessels, buildings and places of work if connected by internal access route)
3. Is not a trespasser at time the force is being used
4. Believed the victim to be in or entering the building or part as a trespasser

If not = non-householder case

50
Q

How is trigger and response different from non-householder cases to householder cases?

A

Trigger is unchanged but response is more lenient towards householders:

  • Non-householder - force will not be reasonable if it was disproportionate
  • Householder - force will not be reasonable if it was grossly disproportionate

I.e. can be disproprotionate in householder cases

51
Q

What two questions must the jury be asked for householder cases?

A
  1. Was the force grossly disproportionate in the circumstances as D believed them to be? (yes = no defence)
  2. If not, was the level of force reasonable?

I.e. 2nd Q: use of disproportionate force which is not grossly disproportionate can still not be reasonable

52
Q

What should the jury consider when deciding whether force was disproportionate for householder cases?

A
  • Heat of moment (as before; nicety)
  • If D believed in moment of unexpected anguish that they were using reasonable force, that was very good evidence the force was reasonable
53
Q

What circumstances should be considered by a jury when considering whether degree of force used by householder was reasonable?

A
  • Shock of coming upon intruder
  • Time of day
  • Vulnerability of occupants (esp children)
  • Conduct of the intruder

Idea being that unreasonable degree of forced when confronting an aggressive individual in a club can be very different to confronting a home intruder

criminal law – academic (7 decks)

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