general defences

Question 1

if a D proves intoxication - what is the effect (is it a full or partial defence)?

Answer 1

it is a full defence and therefore, a full acquittal

Question 2

what situations can a person use intoxication to negate MR?

Answer 2

• Involuntary intoxication (eg, drugged without consent)
• Voluntary intoxication by non-dangerous drugs
• Voluntary intoxication and D has committed a specific intent crime

Question 3

who has the evidential burden to raise issue of intoxication?

Answer 3

on the D to raise the issue and then prosecution need to prove beyond reasonable doubt that D formed the necessary MR

Question 4

if D is aware they are drinking alcohol but mistaken on the strength of alcohol - do they have a defence?

Answer 4

no this does not count as involuntary intoxication

Question 5

if a person is involuntary intoxicated can they use the defence of intoxication for basic intent crimes as well as specific?

Answer 5

yes, can use intoxication as defence for both

Question 6

what is a basic intent offence?

Answer 6

one where D could be convicted on basis of recklessness as to the consequences or no foresight to consequences is required

Question 7

what is a specific intent offence?

Answer 7

intention was only form of MR (eg, no recklessness)

Question 8

what is a dangerous drug?

Answer 8

where it is common knowledge that a drug is liable to case the taker to become aggressive, or do dangerous or unpredictable things (eg, illegal drug)

Question 9

what is the general rule - can a D use intoxication to rely on another defence for either specific or basic intent crime?

Answer 9

generally no

Question 10

if a D relies on drunken mistake to use self-defence = is it successful?

Answer 10

no - drunken intent is still intention

Question 11

if a person is intoxicated and wants to plead loss of control or diminished responsibility - can they?

Answer 11

they can still plead intoxication but it does impact the legal analysis eg,
loss of control = drug taken into account when assessing magnitude of qualifying anger trigger

Question 12

can a D use voluntary intoxication on its own to rely on defence of diminished responsibility?

Answer 12

no they cannot BUT if the D has an abnormality of mental functioning AND is voluntary intoxicated then they can as abnormality of mental functioning is FROM the alcohol dependency syndrome

Question 13

if there is a statutory defence that allows for honest belief and D states their belief is due to their voluntary intoxication - can they use this?

Answer 13

yes D will be able to use this defence even if their belief is due to their voluntary intoxication

Question 14

if D wrongly believes V consented or V consented to accidental infliction of injury whilst intoxicated = can D use this as a defence?

Answer 14

yes, D may be able to have a defence

Question 15

involuntary intoxication may be raised successfully as a defence to which crimes?

Answer 15

Crimes of both specific and basic intent involving dangerous or non-dangerous substances

(key Q: is did D still form necessary MR?)

Question 16

What is the question a court will ask regarding a defendant’s mens rea if they are voluntarily intoxicated by dangerous drugs/ alcohol and commit a basic intent offence?

Answer 16

would the D have formed the MR sober?

Question 17

what are the two elements for consent?

Answer 17

• either V consented, or D believed V consented
• offence is one which V can consent to

Question 18

if D wrongly believes V consented - is a defence of consent available?

Answer 18

yes it may be available

Question 19

who needs to prove consent?

Answer 19

for prosecution to prove that both V didn’t consent and D didn’t believe in V’s consent

Question 20

if V consents but D doesnt know this - can there be a defence of consent?

Answer 20

yes, there could potentially be a defence of consent available

Question 21

when is consent available as a efence to OAPA?

Answer 21

battery and assault

Question 22

what are the exceptions when a person can consent to offences against the person of ABH and above?

Answer 22

• medical treatment
• sport
• horseplay
• tattooing, body piercing and personal adornment; and
• sexual gratification / accidental infliction of harm

Question 23

can a person consent to accidental injuries sustained during consensual sex?

Answer 23

person cannot consent to inflicting of harm that results in ABH or more for purposes of obtaining sexual gratification
(only exception is person may consent to risk of acquiring a sexually transmitted infection)

Question 24

what are the 2 requirements that must be shown for self-defence (trigger and response)?

Answer 24

D honestly believed use of force was necessary; and
level of force D used in response was objectively reasonable in circumstances as D believed them to be

Question 25

where does the burden of proof lie for self-defence?

Answer 25

for prosecution to disprove D acted in self-defence

Question 26

is there a duty to retreat for self-defence?

Answer 26

no, there is no duty to retreat but the fact D had an opportunity to retreat may be regarded as a relevant factor

Question 27

can a D make the first blow and still rely on a defence of self-defence?

Answer 27

Yes, they can = man that is about to be attacked doesnt have to wait to be hit first before they can hit

Question 28

can D use self-defence if use force against an innocent third party to prevent a crime being committed by someone else?

Answer 28

yes, you can