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Criminal Defences

Criminal Defences. Three Arguments:. Deny they committed the act, dispute actus reus Lacked the necessary criminal intent or guilty mind, dispute mens rea Had valid excuse for what happened while committing the act. Alibi.

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Criminal Defences

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  1. Criminal Defences

  2. Three Arguments: • Deny they committed the act, dispute actus reus • Lacked the necessary criminal intent or guilty mind, dispute mens rea • Had valid excuse for what happened while committing the act.

  3. Alibi • Alibi places the accused somewhere else at the time the offence occurred: • Statement indicating that accused was not present at the location of the crime when it was committed • Explanation of the accused’s whereabouts at that time • Names of any witnesses to the alibi

  4. Automatism • This defence is based on common law case precedent: and is functioning without conscious effort or control • Non-Insane: “temporary insanity” state that may follow physical blow, physical ailment, hypoglycaemia (low blood sugar), sleep walking or sever psychological trauma. • Burden of proof on the accused. • Use of experts to support.

  5. Insane Automatism • As more people with mental health end up in the criminal court system, trying to figure out how to best deal with them has led to this defence. A person is not criminally responsible (NCR)if: • At the time of the act they were suffering from a mental disorder • Mental disorder made the individual incapable of appreciating the nature of the act or knowing that the act was wrong.

  6. Prior to a NCR case moving forward a fitness hearing is done: • Does the accused understand the nature of the proceedings? (aware in court being tried for what they did) • Do they understand the possible consequences of the proceedings? (aware they could go to Jail or psychiatric facility?) • Can the accused communicate with his lawyer

  7. INTOXICATION • To use intoxication as a defence, the accused must show that they did not have the required intent (mens rea) at the time of the offence: • A successful intoxicated defence means that a person can not be guilty of a specific intent crime however can be found guilty of the lesser general intent crime. • Murder (specific) Manslaughter (general) • Aggravated Assault (specific) Assault (general)

  8. JUSTIFICATIONReason why an offence was committed , why it was necessary or no other option but to act the way they did.

  9. Self-DefenceCan defend self and property. Every one who is assaulted without having provoked the assault is justified in repelling force by force if it is necessary and reasonable. If death results it must be due to: a. he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made; and b. he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

  10. Battered Woman Syndrome

  11. The Canadian courts have recognized the psychiatric explanation of an abused woman’s / child’s state of mind that can be used to help advance the justification of self-defence. This is normally a prolonged abuse and may cause the accused to act when violence is not directly present.

  12. Defence of Dwelling • Person is allowed to defend their dwelling from any unlawful entry and to remove a trespasser they have entered. • Force used must be reasonable.

  13. Necessity • The accused must have no reasonable alternative to committing the illegal act. • The accused must show that the act was done to avoid a greater harm • No reasonable opportunity for an alternative action. • The harm inflicted must be less than the harm avoided.

  14. Duress/Compulsion • Duress is when the accused commits a crime in response to some sort of external pressure. • Basically forced or threatened with death or bodily harm to commit a crime.

  15. Provocation • Any act that causes a reasonable person to lose self control • A wrongful act or insult occurred • The act or insult would cause ordinary person to loose control • The person responded suddenly • There was no time for passion to cool.

  16. Aboriginal Treaty Rights • Aboriginals have rights that allow them to act in ways that may be illegal for anyone else. • Normally hunting and fishing

  17. Other Defences • Mistake of fact • Genuine (honest) mistake no reasonable ability to know that your were committing a crime • Mistake of Law • Officially induced error where an official gave erroneous legal advice, causing the person to commit a crime.

  18. Double Jeopardy • One cannot be tried for the same crime twice. Autrefois acquit, Autrefois convict:

  19. Entrapment • Used when police coerce, or forcefully encourage an individual to commit a crime

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