Introduction to Defences

Week One lecture one

Two Categories of Defences

Rational (Internal) and Justification (External)

Rational Capacity Defence

Internal Cause

Justification or Excuse Defence

External Cause

Example of Rational Capacity defence

An example is insanity

Example of Justification or Excuse defence

An example is Self - defence

Sources of Defences

Codified in the Crimes Act or Common Law

Section 20 General Rule to Justifications

means if the defence raised isn’t codified in legislation, then common law will apply

Both Prosecution and Defence have these burdens

Evidential and Persuasive

R v Fontaine [2004] 1 SCR 702

whether there is evidence which “raises the issue” or “puts the defence in play”

R v Tavete [1988] 1 NZLR 428

credible or plausible narrative defence must be put to the jury

Discharging the burden

If not discharged, the judge rules defence is not an issue (not enough for the threshold)

Section 48 of Crimes Act

Self Defence Statutory Definition

Section 62 of Crimes Act

if someone used excessive force than necessary then they may be liable

Elements of Self - Defence

used force in defence of themselves or another in the circumstances as they believed them to be which was reasonable.

Bayer v Police [1994] 2 NZLR 48 (CA)

no self - defence by passively sitting in front of entrance

No force (self - defence) means

no defence

R v Terewi

Force includes a threat to use physical power

R v Kneale [1998] 2 NZLR 169

Self defence is not restricted to cases where D anticipates a mental harm

Self Defence will not be available if the offence charged doesn’t have…

the use of force included in the charge

R v Riddell [2017] EWCA Crim 413:

applies on the facts of the given case implying use of force even if the charge doesn’t necessarily involve force

Jenkins v Police (1986) 2 CRNZ 196)

self defence of another includes partner

R v Thomas [1991] 3 NZLR 141

self defence of another includes unknown stranger

self defence to protect “another” include persons for whom there is a

social obligation to protect

self defence to protect “another” DOES NOT include

living creatures (Dion)