criminal DEFENCES

Defence

Denial of OR justification for criminal behaviour

most common defence is “denial”

result can be: acquitted or found less guilty

Mental Disorder

“disease of the mind” - formally referred to as the insanity defence

accused cant be blamed for “guilty mind”

Mental Unfitness

IF the accused is “not criminally responsible”, the judge will make 3 choices available

1) An absolute discharge

2) A conditional discharge

3) Term in a psychiatric hospital

Non-Insane Automatism

• A person acts without being aware of what they r doing

• No actus reus since the person acts involuntarily

• form causes by EXTERNAL FACTOR (sleepwalking, medication, brain tumor, etc)

Insane Automatism

• A person acts without being aware of what they r doing

• No actus reus since the person acts involuntarily

• a form caused by mental disorder

Intoxication

• being overpowered by drugs or alcohol to the point of losing self-control

• CANNOT be used as a defence for general intent offences (manslaughter)

• CAN be used as a defence for specific intent

• can never be used for drink and drive

Self-defence

• the force used need to be no more than necessary - “reasonable”

• killing can be justfied only if they were reasonably feared to death

Battered Woman Syndrome

• type of self-defence: a woman was abused for a long-term which led to killing of the abusive spouse

• jury should be instructed on 3 cases:

1. why she had to stay in the relationship

2. nature/extent of violence that may exist in the relationship

3. the defendents ability to perceive danger

Defence of a Dwelling

• a person being allowed to defend their property (dwelling) from unlawful entry

• force must be reasonable

Necessity

• was to avoid a greater harm

• was no reasonable opporunity for a different choice

• the harm inflicted must be less than the harm avoided

Compulsion or Duress

• committing the crime was due to threats or forcing

• CANNOR be used as a defence in violent crimes

Provocation

• an act/insult that would cause a reasonable person to lose self-control

• ONLY APPLIES TO MURDER

Need to prove all 4 elements:

1. An insult or wrongful act occured

2. The act was bad enough to cause a person to lose self-control

3. The person responded suddenly

4. The person responded before letting themselves cool down

Mistake of Law

• simple ignorance of law

• generally CANNOT be used as a defence

• EXCEPTION: accused relied on incorrect legal advice from an official responsible for enforcing the law

Mistakes of Fact

• An honest mistake that led to breaking the law

—> the accused will NOT have Mens Rea

Double Jeapardy

• accused person CANNOT be tried twice for the same offence (whether they were convicted or acquitted previously)

• EXCEPTION: The crown appeals based on mistake of law

Alibi

• when accused claims they were somewhere else when the offence was committed (witnesses, images, CCTV)

• Burden is on the Crown (Accused is acquitted if the Crown can’t prove the accused was there)

Entrapment

• defence against police conduct - illegally increasing the chance of defendant committing crime (유도하는)

• Usually result of police undercover work

• police CAN present opportunity to commit a crime but cannot induce a person to do so.