Week7-DefensiveForce.ppt

Click to edit Master title style,Click to edit Master text styles,Second level,Third level,Fourth level,Fifth level,*,CRIMINAL LAW AND PROCEDURE A -072,DEFENCE OF PERSONS AND PROPERTY,DEFENSIVE FORCE:GENERAL PRINCIPLES,The force should be,necessary,The force should be,reasonable,(morally necessary),Should there be specific limitations on using force,in,defence,of strangers?,in,defence,of property?,to defend against provoked assaults?,Force should be,justified,rather than just excused,It is lawful to rather than A person is not criminally responsible for,But perhaps not for,defence,against provoked assaults,BURDENS,Evidentiary burden on accused,Accused must adduce,some,evidence if not already present in evidence of prosecution,Judge can withdraw,defence,from jury if no evidence of all elements of the,defence,Judge can even withdraw,defence,on ground that no jury could ever consider a belief in the necessity of using some measure of force to be necessary or reasonable,Persuasive burden on prosecution,Prosecution must disprove,defence,beyond reasonable doubt,But only if evidentiary burden has been discharged,DEFENCE OF PROPERTY:CODE PROVISIONS,Lawful for,person in peaceable possession,to use force,S 267 to defend dwelling,S 274 to defend moveable property against trespassers,S 275 to defend moveable property under claim of right,S 276 to,take,moveable property from person possessing it without claim of right and resisting,S 277 to defend real property against trespassers,S 278 to defend real property under claim of right,DEFENCE OF PROPERTY:CONDITIONS,Dwellings,s 267,Justification for using force(unlimited)where it is believed on reasonable grounds,to be necessary,to prevent or repel person unlawfully entering or remaining with intent to commit indictable offence,Other property,ss,274-8,Justification for using as much force as is reasonably necessary,Provided,gbh,is not inflicted,Defending property of others,Ss 274-5,277-8:justification extends to person lawfully assisting or acting byauthority of possessor,Section 271,Per McPherson J in,Gray,CLM 14.28C:“,As has been said on more than one occasion in the past,the provisions of s 271 are by no means a model of clarity or simplicity,”,“(1)When a person is unlawfully assaulted,and has not provoked the assault,it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault,if the force used is not intended,and is not such as is likely,to cause death or grievous bodily harm.,(2)If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm,and the person using force by way of defence believes,on reasonable grounds,that the person cannot otherwise preserve the person defended from death or grievous bodily harm,it is lawful for the person to use any such force to the assailant as is necessary for defence,even though such force may cause death or grievous bodily harm,.”,DEFENCE OF PERSONS:CODE PROVISIONS,s 271:self-,defence,against unprovoked assault,(1),justifies,use of non-lethal force(not intended or likely to cause death or,gbh,)where reasonably necessary,(2),justifies,use of lethal force where restrictive(and complicated)conditions are met,s 272:self-,defence,against provoked assault,(1),excuses,non-lethal or lethal force where same restrictive conditions as in s 271(2)are met,(2)additional restrictions for assault provoked with intent to cause death,or,gbh,s 273:force can also be used for,defence,in good faith of other persons,s 283:excessive force is unlawful,OBJECTIVE TESTS IN s 271(2),Issue is what it was reasonable for accused to apprehend/believe in the circumstances,Does that mean the same thing as an apprehension/belief that a reasonable person would have held in the circumstances?,Per,Julian,(1998)100,ACrimR,430(QCA):Error to direct in terms of reasonable person,Per,Vidler,(2000)110,ACrimR,77(QCA):No practical difference between“a belief of a reasonable person in the position of the accused and a belief of an accused person based on reasonable grounds”,Per,Mrzljak,2004 QCA 420:“It is clear that a requirement that a belief be on reasonable grounds does not equate to a requirement that a reasonable person would have held it”ref to,Julian,MISTAKES,Mistake about fact or nature of assault;identity of attacker,S 271(1):Mistake of fact,s 24 works in conjunction with,defence,of self-,defence,S 271(2):Reasonable apprehension can encompass reasonable mistakes,Mistake about what response is necessary,Reasonable belief in s 271(2):,allows for reasonable mistakes,Reasonable necessity(s 271(1)or necessity(s 271(2):,Mistakes:s 24 may not apply because mistake of judgment rather than fact,BATTERED WOMAN SYNDROME(BWS),Expert evidence may be admissible on the mental state of women who have suffered long-term abuse,with respect to,Reasonable apprehension of violence,:,BWS-Woman may use knowledge of partner to apprehend violence even though no obvious signs,Objective test is,c,ontextualised,Reasonable belief in necessity of responding with violence,:,BWS-Woman may suffer impaired capacity to perceive alternative courses of action and choose between them,Reasonable from whose standpoint?-a belief that would be reasonable for a person suffering from BWS?,Can objective test be,individualised,?,USA,Canada yes,Lavallee,CLM 14.30C,Australia possibly,Osland,CLM 14.31C,Section 272:provoked assaults,s 272:Applies where person claiming self-,defence,first assaulted attacker or otherwise provoked attack,Cases hold that there must be provocation within meaning of,ss,268-9,s 272(1):no criminal responsibility;but same restrictive conditions as for s 271(2),reasonable apprehension of death or,gbh,belief on reasonable grounds that there is no other way of defending person,s 272(2):,no,defence,against an assault for a person who previously used violence with intent to cause death or,gbh,unless attempt to quit conflict or retreat as far as practicable,before,necessity to use defensive force arose,