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| Crown has the legal onus to prove AR and MR beyond reasonable doubt. MR can be difficult to prove in cases of recklessness |
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| 1. The defence has an evidential onus to raise a defence. 2. Evidential onus is not the shifting of the legal onus. 3. The legal onus is on the prosecution to prove beyond reasonable doubt the defence is not plausible, and AR and MR. 4. A judge believes a defence is open to the jury the judge should put a defence to the jury even if the defence does not raise the defence as it could raise reasonable doubt |
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| Once put forward, a defence claiming no MR becomes part of the whole factual matrix making up the crime and it is the legal onus of the prosecution to prove AR and MR beyond reasonable doubt |
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| It is the effect on outcome that is the critical distinction between an onus which is legal and one which is purely evidentiary. Who carries the legal burden of proof is determined by substantive law. Who carries the evidential burden is determined by the adjectival (procedural) law of evidence. What is sometimes referred to as the evidential burden is the burden of raising an issue in answer to the case by showing its relevance on the evidence. 2. Issue was the reverse onus of proof for the supply of drugs. After a certain quantity then there is a presumption that the drugs were held for supply. 3. There can be no doubt that a presumption rebuttable on the basis of a persuasive burden represents a substantial limit on the right to be presumed innocent. Any kind of presumption in favour of the Crown limits that right. But the extent of the limit is distinctly greater when the presumption carries a persuasive burden of rebuttal, as opposed to an evidential burden. The presumption is of course designed to assist the Crown in successfully prosecuting those who might be wrongly acquitted or not even prosecuted without it. |
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| 1. Where there is a reverse onus (rare)(as opposed to evidentiary onus) the standard of proof that must be shown is on the balance of probabilities, not beyond reasonable doubt. 2. This case is referred to a lot in Hansen as it predates it and ahs the same facts. 3. In this case they wanted to read down the reverse onus to an evidential onus so to be in line with s6 of BORA but they couldn't as the statute bound them. |
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| Compulsion/durress is not available to murder as you are not justified for taking the life of an innocent even though you are an innocent yourself |
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| 1. Per Gault J - When s 24 provides a defence or compulsion (or duress) where the criminal act is done under threat of death or grievous bodily harm from a person who is present when the offence is committed, we do not consider s20 can be said to preserve a common law defence of duress by threat or fear of death or grievous bodily harm from a person not present. 2. This would be using the common law to undermine the statute. 3. It is a very narrow defence, cannot be generally used to get out of things. |
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| Once compulsion is a live issue, the burden is on the prosecution to negative the defence beyond reasonable doubt� |
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| 1. Usually when you think you have a case of compulsion, ask yourself if they would have still done the act subject to the pressure. If you answer yes it is probably not compulsion. 2. In this case they played down this question. 3. Court said it isn't of great utility to ask that question because it is hypothetical. 4. Useful to look to what the person did as affirmation of compulsion. Did they do only what was required to get away from the threat. |
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| 1. This is the principle case on compulsion. 2. Supply of drugs to undercover cop and then claim compulsion as the person who connected you had previously spoke of his family suggestively and threatened to kill him if he didn�t hook him up. 3. Establish the critical features of the defence. 4. This is a very narrow defence. 5. Failed in this case as couldn�t prove the threat and wasn�t present. THE TEST 1. There must be a threat to kill or cause grievous bodily harm; 2. It must be to kill or inflict that serious harm immediately following a refusal to commit the offence; 3. The person making the threat must be present during the commission of the offence; 4. The accused must commit the offence in the belief that otherwise immediate and violent retribution for failure on his part to comply with the threatening demand which provides the justification for exculpation from criminal responsibility. |
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| 1. There needs to be a threat but it doesn't need to be a verbal threat. 2. Disposing of the bodies believing there was a threat to injure him or his family if he did not, when no such threat was made. 3. It is true, as the Judge held, that a threat need not be in words for the purposes of s24 but it must be a particular kind of threat associated with a particular demand. There was no evidence that either Williams or Pope had made a demand of the accused to assist with the disposal of the bodies coupled with a threat that if he did not do so his immediate death or grievous bodily harm would result. 4. There is a little difference between an implied threat and belief of threat. 5. There was no identified clear threat, but a belief on his behalf because he assumed the threat would be the same for not cooperating as it could be for narking |
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| Couple had been drinking. She went to the car to get money for the taxi. He came out and said she was driving and back handed her across the face. She said she was a bit frightened by him here. He continued to hit her as she drove and said "drive this fucking bloody car or I'll smash you and the car up". Trial judge said there was no immediate threat as she could avoid this and level of harm was insufficient. This was not enough for the sections requirements of GBH. One definition of GBH is really serious harm. Things which would seriously interfere with your health. The threat here didn't meet the threshold. Looking at the 4th element as the biggest, it is about the effect upon the individual and what she believed would happen would be satisfied here. There evidence on a previous assault he had hit her with a child's bike, dragger her out and around the car with her hair, thrown her down a bank and kicked her in the head. Courts have tried to draw some lines but they may be arbitrary. Needs to be GBH. |
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| Neho was threatened by Mongrel Mob to pay debt. The court said there was no immediate threat as she was in a store in public place and the carpark was not enough. There was no one in the store to carry out the threat then and there is she did not do as was required. If there is evidence that if they would have taken her immediately to another place where the assault would have occurred then the imminence criteria would be satisfied. No one was threatening Neho when the offences were actually committed. There was not enough immediacy of the threats to the offences. Her children were not at the scene and she was not going to be assaulted in public. The CA confirmed that a threat need not be in words for the purpose of s24 but it must still be a particular kind of threat associated with a particular demand. Mere apprehension, leading an offender to feel �threatened� in some general sense will be insufficient to satisfy the statutory test in the absence of a clear demand |
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| demonstrates that it is clearly open for those employing self-defence sometimes to use pre-emptive force and even to benefit from the defence in cases where it has not been expressly pleaded. Man and woman had a fight and she stabbed him because she thought he was reaching for the gun under the bed. There was a threat to kill her and her son. The judge decides whether the jury should consider the question of self-defence. In this case the court held the defence should be put to the jury even though defence never pleaded it. |
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| Clearly establishes the elements of self defence which are required in the logical order. 1. What were the circumstances as the accused honestly believed them to be?�(subjective) 2. In those circumstances, was the accused acting in the defence of himself or another?;(fact) and 3. Was the force used reasonable against the circumstances as the accused believed them to be? (objective) |
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| Questions to be asked, follows Bridger. 1. What were the circumstances the accused believed 2. Was he or she was acting in self-defence 3. Was force used was actually reasonable |
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| Under the section persons may act where they believe that either they or another need defending from imminent danger. It does not explicitly require fear of bodily harm. The defence is available in a wide variety of situations and is not limited to situations where there is a danger of death or serious bodily harm however there must be some perceived danger to their safety from which they need to protect themselves. |
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| Self-defence should be put to the jury where there is a credible or plausible narrative put forward which might lead the jury to entertain the reasonable possibility of self-defence |
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| The accused had intervened to assist the �victim� of what she believed to be an unlawful police beating In fact the police were conducting a lawful arrest; because the accused had an honest, albeit mistaken, belief that the police were using excessive force, the CA held that the defence in s48 was available. |
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| Where the defendant makes a mistake it must be one of fact not one of law. The D while being arrested after testing positive for excess breath alcohol had punched the two arresting officers and was charged with assault with intent to resist lawful apprehension for failing a roadside breathalyser. He appealed upon the grounds that the Judge had erred in failing to direct the jury that it was a defence genuinely, albeit mistakenly, to believe that the purported arrest was unlawful. Rejecting the appeal the Eng CA observed that neither public order nor the clarity of the criminal law would be improved if juries were required to also consider the impact of the defendant�s belief as to the lawfulness of their arrest in cases where a lawful arrest was being properly attempted on reasonable grounds |
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| The law does not protect a person from the consequences of acting out of revenge, or retribution, or spite, or anger. If the defendant was acting in retaliation or something of that nature, that is not self-defence. This can however be part of their motivation. It cannot solely take the form of retaliation for past grievances. But it may well be the case that someone who is angry or spiteful may also fear a future assault. Any such additional mindset would not prevent the accused from availing herself of the defence. |
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| Trial Judge directed the jury must act purely out of defence and not for other motives. Appeal judge stated there can be other motives, but it is an elastic notion and the jury will decide on fact. Also need to note that concurrence is required. Could be self defence until he was winning and then he was acting in attack. This can be quite difficult for juries to decide as they need to decide how the fight occurred. |
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| the defence of self defence will be negated where the accused acts independently of the claimed belief and in a manner which suggests that it was not the belief, but rather revenge or retaliation, that was the true motivation for an act of aggression. The law is that a threat which does not involve a present danger can normally be answered by retreating or adopting some other method of avoiding the present danger. However there is no obligation to retreat but depending on the nature of the threat the use of force may not be the first thing to be turned to. Whether a person was justified in fighting or should have retreated depends on the jury�s view of what was reasonable in the circumstances. (objective) |
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| The question of balance is not to be assessed in the abstract and divorced from the perceived facts |
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| It was held that striking the victim in the arm with a knife in response to an attack with a heavy electric flex was consistent with a genuine belief that the defendant was in danger. The Court appeared uninfluenced by the fat that the defendant had a ready means of excape and could have avoided the confrontation |
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| Held the accused was justified when he smashed a beer handle in the face of his assailant inflicting severe injuries. The assailant had grabbed the accused, who had a broken arm, by the throat while he was seated |
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| If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. However a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken |
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| Doesn�t just have to be force to plead self defence, can also use this defence when you threatened to use force. The right of pre-emptive strike is of limited application and should not be used as a mask for retaliation or as a means of resolving D�s misplaced anxiety concerning a future, possible, or even imaginary attack. Because it is a representative form of self-defence, it must also be subject to the same essential elements: necessity and proportionality. Very narrow scope |
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| A demonstration by D at the time that he did not want to fight is, no doubt, the best evidence that he was acting reasonably and in good faith in self-defence, but it is no more than that. |
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| the English CA expressed its preference for the view that failure to retreat is only an element on the consideration upon which the reasonableness of an accused�s conduct is to be judged. |
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| Pre-emptive force is allowed by the law in some circumstances the idea being that the person who intends to launch an unjust attack and has armed himself for that purpose, is an aggressor even before they strike |
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| Lord Griffiths: A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot: circumstances may jsutifiy a pre-emptive strike. |
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| The CA held that excessive force in repelling an assault was not protected by self defence and itself constituted an assault. Thus applying s62 to a case where excessive force has been used in self-defence resulting in the death of the original aggressor, the offender will be liable for murder (unless she can avail herself of some other defence |
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| Such force as it is reasonable to use� may include force which is not in reasonable balance with the believed threat, if for instance the accused has no real choice of means, other than a means which might be seen in the normal course as way out of balance with the threat. The imminence of the believed threat may leave no moment for deliberation over the choice of means |
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| Officers in Northern Ireland were looking for trouble makers. There was a vehicle coming towards them, Clegg shot at a passenger and the 4th shot was the killer shot which was fired after the vehicle had driven past the Officers. The threat was therefore over and the killing was not in self-defence. |
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| Per Wylie J�- It is well known that assault does not require such powerful action. A mere touching can amount to an assault � a pat on the bottom or a kiss can be an assault, the mere brushing of some part of a person�s body can be an assault. |
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| Per Viscount Kilmuir LC: I can find no warrant for giving the words �grievous bodily harm� a meaning other than that which the words convey in their ordinary and natural meaning. �Bodily harm� needs no explanation and �grievous� means no more and no less than �really serious�. |
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| Wounding requires some sort of breaking of the skin. Per cMullin J: A breaking of the skin would be commonly regarded as characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound will more often than not be external. But there are cases where the bleeding which evidences the separation of tissues may be internal. |
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| The accused beat a 17 year old with a cane for sexual gratification. She consented and was paid for this. The court had to consider whether a person could consent to bodily injury of that kind. The court said that she could not as there was no public interest. �If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can licence another to commit a crime.� |
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| A fight was organised in public. In 1882 a serious wound could lead to death. Two men were fighting and some of the bystanders were charged with aiding and abetting. The court said fighting was something that was not in the public interest whether in public or private. It was likely to breach the peace and the very purpose of the fight was that people were intent on inflicting blows on each other; there could be no public interest in that. |
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| A-G�s Reference (No 6 of 1980) |
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| Agreement to fight which resulted in injuries. The court said if it was a lower level assault, usually a person could consent but not where the public interest was not satisfied and in this case fighting was not in the public interest. �Nothing which we have said is intended to cast doubt on the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.� Public policy not to allow this. |
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| The majority said the infliction of injuries to satisfy perverted sexual interests was not in the public interest and not something that a person could consent to. Said level you could agree to was up to wounding which is quite a low level. For public policy reasons, there will be certain circumstances where consent cannot be used as a defence. Where there is consent that will be a defence, you can also you a reasonable mistaken belief in consent. In opening his minority judgment Lord Mustill stated: �My Lords, this is a case about the criminal law of violence. In my opinion it should be a case about the criminal law of private sexual relations�. He took the view that it was not appropriate that legislation aimed at protecting people from violence be used in such a case as this. He said it is difficult to have a spectrum; there are objections to every single argument. |
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| If there was consent then a person should be abale to plead it even if the person is unable to consent. Jury�s won�t honestly believe a person with the mental age of 12 is able to consent to sex with their grandad. It may be easier to not allow them to claim it but it is not right. |
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| Man scars 15 and 17 year old girls with their consent. Judge said couldn�t plead consent as there was no social utility in having your body scarred. The majority Court of Appeal followed Lee and said that consent should have at least been considered as a defence. In Lee there seemed to be a categorisation and distinction between mere bodily harm and GBH. As this was only bodily harm the courts should not withdraw the defence. The value placed on personal autonomy forms the basis of the idea that the courts should not second guess what people think is best for their welfare unless it was in the category of GBH. It was a completely separate question whether the parties could consent due to age/vulnerability, the defence should be able to be pleaded. |
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| You consent to the rules and that which is reasonable incidental |
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| Trial judge said that there was no good policy reason for people to consent to exorcism. The court followed the rule in Brown and based the decision on public policy. In the Court of Appeal the prosecution tried to argue shoud not be able to consent based on the public policy in Brown, this would mean the courts would have to pass moral judgement which they especially try to avoid doing in religious cases. - The CA thought that consent should have been available but did not say whether it would succeed.- Said you can consent to bodily injury and anything up to serious disabling injury. (GBH)- Court in Lee specifically counselled against judges deciding on the basis on their own moral standards of what was right or wrong.- The CA said they preferred the minority view in Brown and that meant that the law should lean to favouring personal autonomy and where individuals give consent it should be a defence unless there are good policy reasons and those policy reasons outweigh the social utility of the activity and the value that the social system places on personal autonomy. - As this is now the leading case in New Zealand, it puts the level of harm you can consent to quite high. The court will have to consider the social utility of the conduct and the likelihood of risk etc.- Made it clear you cannot consent to fighting or your own death. - So consent should be left to the jury where only bodily injury is intended. Consider the right to personal autonomy and social utility associated with an act. |
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| The accused caused another to have HIV without telling them he was infected. It was said that these cases were not of rape, there was consent to the sexual intercourse but there was no consent to the injury. The issue is not consent to the sexual activity but to the risk of contracting diseases where they are not disclosed. - It would be placing an unrealistically restrictive meaning on s188 to hold that a person who brings about such consequences in another has not caused grievous bodily harm. This disease, so simply communicated, and so deadly in its outcome, is pre-eminently appropriate for a charge under the section. |
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