General Defences

DURESS

Duress is available to the person who commits the actus reus of an offence with the appropriate
mens rea but only because of threats made by some other person. The key elements of the
defence are:
1. That the accused was suffering coercion through threats - somewhat subjective - largely a
question of fact
2. The accused was acted as any sober person - objective - pits the accused against the
reasonable man.
AG V Leyland, R v Coles

In order to establish the defence there must be evidence that the defendant acted based on a
threat to kill or to do serious bodily harm, any threat falling below this threshold will not suffice.
R v Singh, where the threat was exposed adultery. It was must also be establish that the threat
was directed at the commission of a particular offence. If A owes B a sum of money and B
threatens to kill A if he is not repaid as a result of which A commits robbery in order to repay B,
is the defence available? No. The threat was not aimed at the commission of any particular
offence (R v Coles, R v Valderrama). He chose to commit robbery to repay his debt, he was not
directed to do that.

Test for Duress

according to R v Graham

Subjective

- asks the question whether the defendant was compelled to act as he did because he thought
his life was in immediate danger based on circumstances as he honestly believe them to be?

Objective

- would a sober person of reasonable fortitude sharing the defendant's characteristics have
responded the same way?

In terms of the characteristics however, note that not every characteristic of the defendant is
material. In R v Hegerty, the fact that the defendant was emotionally unstable was irrelevant, In
R v horn, the defendant was pliable, vulnerable to pressure was also not sufficient or material,
where the defendant was sexually abused as a child, R v Bowen, where the defendant was an
individual of low IQ.
A defendant who is mentally ill however, would find that that particular characteristic is material
to the case R v Flatt, R v Gotts. The threat must also be immediate of imminent if therefore
there is opportunity for the mill to reassert itself, there is no duress, R v lynch, R v Hassan .

The law treats especially with members of gangs. A person who voluntarily becomes a member
of a violent gang is usually not afforded the defence of duress if his actions were compelled by
him being a member of the gang R v Shark?

There is however, an exception to this general rule. Where the courts looks at the nature of the
gang and the defendant knowledge of its activities. If the defendant was unaware of the
propensity for violence, the defence may be available R v Shepard.

NECESSITY

The defence of necessity arises where the defendant is compelled by circumstances to transgress
the criminal law. Recognition of this particular defence has been piece-meal, occurring mainly in
medical cases, R v Borne. Necessity is not a defence to murder R v Howe, Dudley and
Stephens v R.

In Bermuda the defence Is available as it is spelt out in the criminal code but it requires the
defendant to prove that the circumstances were extraordinary and he acted in an emergency.
Given the decision in Dudley and Stephens v R, how do we justify Re A (children)? The
difference in Re A is that the state is the supreme guardian of all children, the doctor would have
been acting in the interests to both, if he was acting in detriment to one and the survival of the
other. The court would sanction it.

INTOXICATION

As a general rule, intoxication is not a defence in Shenan v Moore it was stated that a drunken
intent is nevertheless an intent. An intoxicated defendant must have been incapable of forming
the mens rea for the crime for the possibility of the defence to arise.

In the case of involuntary intoxication, the defence will be available if the intoxication negatize
mens rea R v Kingston. If however intoxication was voluntary the court has to consider different
circumstances, if it arose by virtue of taking prescription drugs as prescribed or taking drugs on
medical advice, the defence will be available.

If the offence is one of specific intent and the effect of the drink or drugs is to render the
defendant incapable of forming the intent, the defence will be available. Shenan v Moore.

If the offence is one of basic intent, the defence will not be available, R v Lipman, DPP v
Majewiski
Underestimating the strength or amount of alcohol consumed or its effect is not involuntary
intoxication R v Allen.

In terms of Dutch courage which is where the defendant knowingly becomes intoxicated to
build courage.

CONSENT

The defence of consent is sometimes available to non-fatal offences against the person. Consent
is not a defence to murder or manslaughter. But it may apply to certain sexual offences, non-fatal
offences against the person, against property. Most of the issues surrounding offences in non-
fatal offences against the person.

The general position is that a person cannot consent to ABH. If consent is given, it is generally
ineffective unless it falls within the recognized exceptions. In the case R v Barnes, the court was
very liberal, and will excuse any act done in a regulated game. In R v Chapman, without
discrediting Barnes, the court decided to focus on the fact that there was a old grudge between
the players, and it was seen as revenge R v Johnson. In R v Lloyd, killing another while the
person was on the ground.

Reasonable surgical or medical inference in an exception. Tattooing, piercing, circumcision Re

J, R v Williams, consent to the risk of unintentional ABH ( in the case of practical jokes), R v
Aiken, R v Slingby.

However, the defence does not arise in cases of fighting, or in cases BDSM activities R v
Donovan, a man paid a prostitute to cane her, resulting in ABH, R v Leech, a man asked his
friends to crucify him, R v Brown.

In rape cases the issue of consent is also material, the consent must be real and the onus is on the
defendant to prove the reality of consent. In terms of being real, it must be informed and not
induced by fraud, R v Williams, where the school teacher convince the 16 year old to have sex,
on the basis that it would improve her voice. R v Collins, the consent was induced by mistake,
the defendant was determined to have sex with the victim and climbed through the window, she
thought she was consenting to her boyfriend to have sex; R v Tobassum, convinced a number of
women that he was testing for breast cancer.

Submission is not consent, so silence is not consent. If there is consent to sex for a reward and
after the act the reward is not given, the consent is genuine. Did you consent to sexual
intercourse? Yes.

Where the defendant is suffering from a venereal disease the issue of informed consent is more
material. It's not sufficient to establish consent to sex.
INFANCY

Anyone below the age of majority is an infant. A person under the age of 7 is presumed to be
doli incapax at common law. This cannot be rebutted. If the child is over 7 but under 14 there is
a rebuttable presumption that the child is doli incapx for the child to be liable there must be
evidence that the child knew what he was doing is wrong. And knowledge is presumed form the
circumstances, the manner in which the act was done and the disposition of the child. Over 14,
the child is presumed to criminally responsible, we treat them as juveniles.

C V DPP

SELF-DEFENCE

In terms of self-defence individuals may use such force as is reasonable in the circumstances as
he honestly believes that is needed to defend himself or to defend another or to defend property.
See Seeanand v state 44 WIR 383, Beharry v State 44 WIR. The force used must be
reasonable having regarded all the facts & the circumstances. The courts will focus on the nature
& the degree of the force as well as the seriousness of the evil to be prevented & the possibility
of doing so by other means. The test is therefore objective that if D does what he honestly &
instinctively believes was necessary then he would have acted reasonably. See Palmer 16 WIR
499. There is no duty to retreat anymore before acting in self-defence. See State v Julien, State
v McInnes. There is also a rule that D's action must be proportional. See Palmer & McInnnes.
The Q is reasonable or whether the force was reasonable.

The defence of self-defence is however an all or nothing defence. If the force used is found to be
reasonable then the defence is complete. If the force is excessive then D would be guilty of a
charge. See Williams

NB
If defence fails & the charge in Q is murder then D may rely on provocation. There is no defence
that the act done by D was done in obedience of an order of a civil or military superior. See Yip
Chin Cheng. Force may also be used to resist unlawful arrest or unlawful search warrant. Or to
defend property. See R v Douglas 1980. With respect to the defence of another, the court
generally recognises that acting in the aid or someone or spouse. It extends to dealing with close
family members & any person for whom D is responsible. So the issue for force for self Defence
would turn on whether the force is reasonable.

INSANITY

This defence is covered by the McNaughten rules which relates to D's sanity at the time or
omission of the offence inn Q. The rule is "every man is presumed to be sane & to possess a
sufficient degree of reason until the contrary is proved. To establish the defence of insanity it
must be clearly established that at the time of the act or omission that D was one labouring under
defect of reason; from a disease of the mine; not know the nature & quality of the act he was
doing or if he did know he did not know what he was doing was wrong. Based on this defence
D's state of mind before or after the offence in Q is largely irrelevant. The focus is on the state of
mine at the time.

Elements
There must be a defect of reason. Defence is not available to a person who retains the power of
reasoning even if that person in absentmindedness or confusion fails to use his mind to the full.
See R v Clarke. The phrase means that the power of reasoning must have been impaired; it
means being deprived of the power of reason & not simply to use the power. The defect of reason
which is self-induced cannot be relied on if at the time of act or omission it can be establish that
the offender was responsible & had the power of reasoning...

Dutch courage, the defect of reasoning cannot be relied on because the individual would have
taken the drink or drug to give him the courage to kill if it can be establish that when the
intention was formed there was no defect of reasoning. See Galleger

There must also be a disease of the mind & the law is not concerned with the origin of the
disease it is concerned with the effect. It does not matter whether the disease I'd curable or not,
temp or permanent. Whether a particular condition of the mind within the McNaughten rules is
not a medical Q but a legal one. See R v Kempt where it was held that a disease which produces
a malfunctioning of the mind is a disease of the mind.

Any mental disorder which has manifested itself In violence & is prone to recur is a disease of
the mind. Bratty V Northern Ireland.

NB
The malfunctioning of the mind must be through an inherent cause meaning a disease. If the
mind simply malfunction because of an external factor that is not a disease of the mind &
defence will not be available. R v Quick, R v Thompson.

-D must not know the nature & quality of his act or if he knew, he must not know what he was
doing was wrong. Refers to the physical not the moral quality. A man who takes an axe & chops
an individual believing it to be a tree? Yes.
-in terms of knowledge of wrongfulness the Q is whether D knew the act was wrong at the time
of the offence. The Q is not whether D has a sense of right or wrong generally. R v Windel 1952
2 QB 826

The law also treats with insane delusions & the same principles arise as they arise for insanity.
Illusions which do not prevent D from having the mens rea for the offence in Q, afford no
defence.

In terms of irresistible impulse, the position is that the defence of insanity is not establish by
merely showing that D acted uncontrollably & impulsively. You have to establish there was a
disease of the mind & because of the disease of the mind D did not know the nature & quality of
his act & even if he knew he did not know it was wrong.

It is also not a defence if a person is mentally or morally defected & cannot and his actions. If D
knew what he was doing was wrong but was unable to prevent himself from doing it because of
his disease. The defence does not arise. (Guyana has no diminished responsibly defence)

In terms of the function of judge & jury, the judge decides whether D appropriately raise the
defence & D to raise the defence. The judge may how raise it & leave it for the jury to decide.
The burden rests with D to prove he is insane.

AUTOMATISM

A person is said to be in an automatic state if that person is capable of an action but is not
conscious of what they are doing. It is a complete defence. It is regarded as being incompatible
with the requirement of mens rea though some argue that it has the effect of negating the actus
reus. R v Smith, R v Bell

For D's act must be regarded as involuntary D, must be deprived of what to do & be .. Of control
of what he does.

Insanity the condition is arises from an internal factor, automatism arises from an external factor.
If D suffers from a defect or reasoning due to insanity or automatism? Insanity. If the defect of
reasoning is caused by the use of the insulin is it insanity or automatism? Automatism. R v
Quick, State v Thompson.

Automatism may arise from a self-induced capacity & some limits are placed on reliance on the
defence when incapacity is self-induced. If D is in an automatic state because there was
something he reasonable could have foreseen as a result of act or omission & his automatic state
could reasonably be foreseen as a result, the issue of the viably of the defence will arise. Taking
alcohol against medical advice, etc. These will all be regarded as self-induced. In a crime of
specific intent the defence will be available since it can be establish that the intent could not have
been formed. In terms of basic intent, the defence may be available providing that the automatic
state does not arise from drink or drugs. Reckless to take food after medication, R v Baley, R v
Hennessy, Burgess, Bratty, Ramroop 20 WIR, Lauren 19 WIR.