Transcript Standard Defences - Exploits Valley High

Standard Defences
Criminal Trials
Mental Disorder
• not be held criminally responsible for
breaking the law, as he or she was mentally
ill at the time of their allegedly "criminal"
actions.
• the defence MUST show that:
• the person who committed the act was
suffering from a "disease of the mind”
• they were either 1) unable to appreciate the
"nature and quality" of the act, or 2) did not
know it was "wrong".
Mental Disorder
• Does this apply to the ACTUS REUS or
MENS REA??
• the MENS REA!
• Admitting actus reus, but ….refuting the
mens rea…the defendant lacked the
MENS REA !
• Pages 251-252
Mental Disorder
• HOW do you show it?
• (experts – doctors, psychiatrists, psychologists,
behaviourist etc..)
• What happens if the judge accepts this as a defence,
now what happens to the defendant? JUDGE decides:
• a. absolute discharge – free to go…???? Why??
• (not a threat to society)
• b. Conditional discharged – released with certain
conditions
• c. Psychiatric hospital – 90 day assessment, then
reviewed
• d. Provincial Criminal Review Board – same options
as a judge. BUT can order a psychiatric hospital can
be ordered for an indefinite period of time with
periodic reviews.
Mental Disorder
• must show on a balance of probabilities
• This standard is met if the proposition is
more likely to be true than not true.
• Effectively, the standard is satisfied if
there is greater than 50% chance that
the proposition is true.
• Pages 251 - 252
Automatism
• The term " describes an unconscious,
involuntary behaviour.
• Unaware!!
• accused should be excused from liability
because these consequences resulted from
movements that were not within the
defendant's control
• Ie. Sleepwalker, epileptic seizures,
concussion, wrong-side effects of medications.
• For example, some incidents of hypoglycaemia
may cause erratic and uncontrolled
movements for which the person would not be
responsible.
• Pages 255 - 256
Automatism
• Does this apply to the ACTUS REUS or
MENS REA??
• Negates the Actus Reus ! WHY?
• ACTUS REUS is supposed to be
VOLUNTARY !
• Again the defence has the burden of
proof!
Necessity
• committing a crime in an emergency
situation to save yourself or someone
else.
• the defendant must provide evidence
that :
– the act was done to avoid a greater harm;
– had no reasonable legal alternative to the
course of action he or she undertook
– the harm inflicted by the accused must be
proportional to the harm avoided by the
accused.
Pages 259 - 260
Necessity
• Does this apply to the ACTUS REUS or
MENS REA??
• challenges the MENS REA required for a
specific offence !
Battered woman defence
• Used by a person accused of an assault
or murder.
• constant and severe domestic violence
usually involving physical abuse by a
partner
• becomes depressed and unable to
escape the abuse.
• More of a justification for “self-defence.”
• Pages 258-259
Battered woman defence
• Does this apply to the ACTUS REUS or
MENS REA??
• the MENS REA!
• The defendant lacked the MENS REA !
Self Defence
• Defend against an unprovoked assault
• Using reasonable force!
• the degree of violence used is
comparable or proportionate to the
threat faced.
• Page 258.
Self Defence - Section 34:
• “Everyone who is unlawfully assaulted
without having provoked the assault is
justified in repelling force by force if the
force he uses is not intended to cause
death or grievous bodily harm and is no
more than is necessary to enable him to
defend himself.”
Duress
• Also referred to as compulsion.
• the actions that broke the law were only
performed out of an immediate fear of
injury.
– Threat must be of serious bodily harm or
death
– Threatener MUST be present when the
offence is committed.
– Threat must be immediate and inescapable
• Pages 261-262
Duress
• Does this apply to the ACTUS REUS or
MENS REA??
• Negates the Actus Reus ! WHY?
• ACTUS REUS is supposed to be
VOLUNTARY !
Provocation
• a sudden or temporary loss of control as
a response to another's provocative
conduct.
• generally the result of some conduct
witnessed or experienced by the
defendant.
• Page 262
Mistake of law and fact
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Mistake of LAW
"ignorance of the law is no excuse".!
is not a recognized defense…
However in rare instances it may be…
Called officially induced error…
READ page 266 para. 2 (example)
Mistake of law and fact
• Mistake of FACT
• sometimes allowed as valid defence.
• the defendant may honestly believe in a
set of facts that lead him or her into
breaking the law.
• READ page 266 para. 3 (example)
Mistake of law and fact – Another Example
• If a defendant goes into a supermarket and places eight
items in a basket which is presented to the cashier for
payment in the usual way.
• Both honestly believe that all eight items have been
scanned, and the defendant pays the sum shown on the
bill.
• A store detective, however, notices that a mistake was
made by the cashier so that only seven items were
actually priced.
• This detective arrests the defendant after leaving the
store. Since the defendant honestly believes that he has
become the owner of goods in a sale transaction, he
cannot form the mens rea for theft (which is usually
dishonesty) when he physically removes them from the
store.
Defence of a dwelling
• Dwelling is any building or structure in
which is occupied by a person.
• A person can use as much force as is
necessary to prevent any person from
forcibly breaking into or forcibly
entering the dwelling-house.
• Page 259