Crim law imported pdf

• Defence in criminal law


  A condition which will result in negating or reducing the criminal liability of a defendant even if the actus reus and/or mens rea are proved by the Prosecution during a criminal trial
• Complete defence


  • If established, will result in negating the criminal liability of a defendant
• Partial defence


  • If established, will result in reducing the criminal liability of a defendant, e.g. from murder to manslaughter
• General defence


  A defence which is available to all defendants
• Specific defence


  A defence which is available only to a particular offence or some particular offences
• Specific defence


  • Provocation is a specific defence which is only available for the offence of murder
• Statutory defence


  A defence provided for in a statute (legislation and subsidiary legislation)
• Common law defence


  A defence provided for under the common law
• Three different types of general defences


  • Defences arising from capacity of a defendant
  • Defences arising from justification
  • Defences arising from excuse
• Some general defences in criminal law


  • Incapacity
  • Insanity
  • Automatism
  • Intoxication
  • Necessity
  • Duress
  • Honest Mistaken Belief
  • Self Defence
  • Alibi
• Capacity


  The ability to be guilty of an offence
• s3 of the Juvenile Offenders Ordinance (Cap 226) provides that it shall be conclusively presumed that no child under the age of 7 years can be guilty of an offence
• Children under 7 are thus said to be dolix incapax (not capable of crime)
• The common law irrebuttably presumes that males under 14 years of age to be incapable of sexual intercourse or buggery
• Rebuttable presumption of incapacity (7-14 years)


  The prosecution must prove that the child knew that his/her acts were seriously wrong and not merely "naughty" or "mischievous", in addition to proving actus reus and mens rea
• Insanity


  If at the time of committing the actus reus, the Defendant's mind did not know the nature and/or the quality of the actus reus as a result of a disease of the mind; or if the Defendant knows them, he does not know that it was wrong
• Insanity is a complete defence even to strict liability offences
• The burden of proof for insanity rests with the Defendant but the standard of proof is of the civil standard (on the balance of probabilities or more probable than not) and not of the criminal standard (beyond reasonable doubt)
• Automatism


  A state where a person does an act by his body without control by his mind, or the act is done by a person who is not conscious of what they are doing, e.g. it is a spasm or a reflex
• To establish a defence of automatism, there must be a total loss or destruction of voluntary control on the defendant's part</b>
• Automatism prevents a person from being held criminally liable because their bodily conduct lacks voluntariness
• Limited availability of automatism


  • Where automatism is caused by a disease of the mind
  • Where automatism is caused by self-induced intoxication by alcohol or drug
  • Where automatism is caused by a self-induced incapacity, other than intoxication due to drink or drugs
  • Where there is only a partial destruction of voluntary control on the defendant's part
• Burden of proof for automatism


  The Defendant has an evidential burden, then the Prosecution has the burden of disproving automatism beyond reasonable doubt
• Intoxication


  The state of a person under which his mood, perception, and/or judgment is/are changed as a result of taking alcohol, drugs, or other intoxicants
• The rationale that intoxication may amount to a defence to a crime is that an intoxicated defendant might not have the mental capacity to commit a crime or understand the implications of it
• Voluntary intoxication


  Intoxication brought about the voluntary consumption of alcohol, drug or some other intoxicants
• For a vast number of offences, voluntary intoxication is not a defence because the mere fact that the defendant's mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there
• Where the prosecution seeks to prove an element of 'specific intent, D may rely on a defence of voluntary intoxication that he lacked that intent and was acting involuntarily under the influence of intoxication
• DPP v Majewski [1976] UKHL 2: 'The HL confirmed that the rule in Beard that evidence of self-induced intoxication negating mens rea excuses D on a charge of a crime requiring a specific intent but not a charge of any other crime'
• Crimes held to include an element of specific intent include murder, theft, wounding, AOABH, all attempted crimes, burglary with intent and robbery
• Considerations where intoxication is raised as a defence


  • Is D's intoxication voluntary or involuntary?
  • If voluntary, is the crime charged one of specific intent or basic intent?
  • If basic intent, is the drug involved one of a dangerous nature (is it one known to create states of unpredictability or aggression?)
• Necessity


  The defense of necessity is available when a Defendant commits a criminal act during an emergency situation in order to prevent a greater harm from happening
• Necessity


  • The key basis is the "criterion" of "moral involuntariness of the wrongful action" which is measured against "society's expectation of appropriate and normal resistance to pressure
  • The act must be "inevitable" and "unavoidable"
  • Negligence or involvement in a criminal or immoral activity is not a bar to the defence
  • The defence will not be available where "actions or circumstances which indicate that the wrongful deed was not truly involuntary" or where there exists a reasonable legal alternative
• Requirements to invoke necessity defence


  • A specific threat of significant, imminent danger existed
  • The situation required an immediate necessity to act
  • No effective legal alternatives were available
  • The defendant didn't cause or contribute to the threat
  • The defendant acted out of necessity at all times
  • The harm caused wasn't greater than the harm prevented
• Burden of proof for necessity


  The Defendant has an evidentiary burden, then the Prosecution has the burden of proving beyond reasonable doubt that the Defendant had not acted under necessity
• Duress


  A complete defence to all criminal offences, based on threats, violence
• Necessity defence


  To invoke, a defendant must establish: a specific threat of significant, imminent danger existed; the situation required an immediate necessity to act; no effective legal alternatives were available; the defendant didn't cause or contribute to the threat; the defendant acted out of necessity at all times; and the harm caused wasn't greater than the harm prevented
• Necessity defence


  1. Defendant has an evidentiary burden

  2. Prosecution has the burden of proof in proving beyond reasonable doubt that the Defendant had not acted under necessity

  3. Prosecution may seek to disprove any of the conditions in establishing necessity
• Duress


  A complete defence to all criminal offences; threats, violence, constraint, or other action used to coerce someone into doing something against their will or better judgement; an act is committed under duress if it is committed due to an immediate threat of physical harm if the act is not done; the threat must be present and continuing, imminent and impending
• Duress


  The accused's will was really and absolutely controlled, that they became a mere innocent instrument of the crime; the Defendant is facing with the choice of two evils, that of committing the crime charged or suffering the harm threatened; the threat may be made against the Defendant, people having closed relationship with them, or their property