Defences are “reasons or excuses as to why a defendant should not be held liable for a criminal offence or in a civil offence claim” (Dosen et.al 2013).
When an offender is being accused of murder, there are several defences that can be used to change the outcome of the trial, such as:
• Provocation (partial defence) – section 304 of the Criminal Code Act 1899 states that if the accused “does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.” However, this section also states that this defence “does not apply if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character.”
• Diminished Responsibility (partial defence) – section 304A of the Criminal Code Act 1899 states that if the accused “is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind… the person is guilty of manslaughter only.”
• Self-defence (complete defence) – section 271 of the Criminal Code Act 1899 states that:
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...
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... that the person is guilty of the crime they are accused of. The prosecution must prove this guilt ‘beyond reasonable doubt’ and this has become the cornerstone of our justice system. This right enables the legal system to strike a balance between the rights of individuals to freedom and society’s need for order, as it allows for the accused to be proven innocent if there is insufficient evidence, as well as allowing for the court to find them guilty if there is enough evidence. The presumption of innocence is also supported by other elements that are enforced during the trial, one of these elements being that the previous criminal history of the accused is not to be made known until after the accused has been found guilty. This assists in the application of the presumption of innocence as the jury and judge will have no preconceived judgement towards the accused.
Under MPC/State Statutes, Murder must have the element of willful, deliberate, and premeditated killing (Criminal Law Outline – Homicide, 2009). The MPC provides that a person is guilty of criminal homicide if they take the life of another person being purposely, knowingly, recklessly, or negligently. MPC divides criminal homicide into three rather than two offenses: murder, manslaughter, and negligent homicide. Under MPC there must be extreme mental or emotional disturbance.
The use of reasonable force to protect oneself or members of the family from bodily harm from the attack of an aggressor, if defender has reason to believe He/She/is/are in danger. Self-defense is a common defense by a person accused of assault battery
The purpose is to explain the necessity and the alternatives to deadly force. Necessity of deadly force will include laws that have been passed by the United States Supreme Court, training methods and policies of Federal, State and Local agencies Alternatives to deadly force are less-lethal weapons that are used by law enforcement today, TASERS, pepper spray, bean bag guns and batons. Does deadly force need to be used against violent suspects?
To convict one of murder, there must be subjective intent for the accused to be considered guilty. Due to the fact that murder is the most hateful crime of the law, all defendants should have the right to be innocent until proven guilty. There must be verifiable evidence to prove the mens rea.
Assault is when the principal in the first degree, in this case Mr Emami, has caused a physical attack on or threatening to cause a physical attack towards the plaintiff, in this case Ms Ishmal. There are various types of assault in general, mainly consisting on: aggravated, common, incident and physical. But types of assault mentioned in this civil case are:
v. Singh case was one of the most prominent cases of provocation as a defence in Australia which manifested the urgency for an immediate law reform. This court case involved a man pleading not guilty of murder but guilty to manslaughter, on the grounds of provocation for the homicide of his wife. The man claimed that his wife provoked him, and as a result, she was the reason for her own death and not him. This may seem absurd and blatant to the common individual, but this was a legitimate form of argument before the law was reformed. This individual was successful in abusing a loophole in the provocation defence to reduce his murder sentence to a manslaughter sentence based on the decision of a jury. The provocation defence was based on the questioning of whether an “ordinary” person would have committed the same misdeed when put under a similar circumstance. This questioning is evidently subjective as an “ordinary” person can be interpreted differently by different individuals. Furthermore, provocation defence was commonly used in domestic violence cases, usually consisting of two people. If one person, in this case, was a victim of a homicide, he or she is unable to give his or her perspective on the case. Therefore, the case is immediately subjected to biased views as you are only able to rely on one person’s version of the scenario if there were no other witnesses. This blatant flaw is further reinforced by the fact that there are often no witnesses in domestic violence
Defences of Assault and Battery In most crimes there are always defences to the offence that has been
Use of force is an accepted part of police work, and is often a routine part of police work. The use of force is allowed by law until the force becomes excessive, at which point the action becomes criminal...
Was the intrusion based on a lawful objective, such as a valid arrest, detention, search, frisk, community warden guardian of mentally ill, defense of an officer or a citizen, or to prevent escape? If these answer yes then an officer may have legal ability to use the levels of force listed below to apprehend the suspect. Another list of things to consider when determining if it was a lawful use of force is; was the use of force relative to the person’s confrontation? Was there a crucial need to terminate the condition? Even though there is no duty to retreat, could the officer have used lesser force and still safely accomplish the lawful objective? These are the questions that the jury need to answer to determine if they should side with or against the officer in any court case brought to them that deals with such a controversial topic as this.
Assault is an intentional or reckless act that causes someone to put in fear of immediate physical harm, e.g. pointing a gun at the claimant by the defendant, the claimant need not know if the gun is real one. Assault must be intentional, direct and immediate. Battery is the intentional or reckless application of physical force to another person. While, false imprisonment is an unlawful restriction of the claimant’s freedom of movement by the defendant.
suddenly jumps in front of her and drags her into an alley. The attacker strikes (A) and rips her clothes. Fortunately, (A) hits the attacker with a rock and runs to safety. The man’s actions do not amount to assault, they amount to a battery as he dragged the woman to an alley, stroke her, and ripped her clothes off with the intent of causing her harm. The acts of the woman are a measure of self-defense, and she cannot be held accountable for the infliction she may have induced to the man. If the man just followed her without having any physical contact with her, his actions would have constituted to assault, as he would inflict fear into the
In the case of R v Maloney (1985), the defendant and the Victim (stepfather of the defendant), were drunk when they decided to have a contest of who can load and fire a gun more quickly. The defendant shot the victim without aiming as the victim taunted the defendant to fire the gun. Lord Bridge held ‘Foresight of consequences as an element bearing on the issue of intention in murder... belongs, not to the substantive law but the law of evidence’ (Molan, 2001: 95), oblique intent here is held ...
A defence in criminal law arises when conditions exist to negate specific elements of the crime: the actus reus when actions are involuntary, the mens rea when the defendant is unaware of the significance of their conduct, or both. These defences will mitigate or eliminate liability for a criminal offence. Insanity, automatism and diminished responsibility are examples of such defenses. They each share characteristics but can be distinguished in their scope and application. Insanity, automatism and diminished responsibility all play a significant role in cases where the defendant’s mind is abnormal while committing a crime.
Section 12 subsection 1(c) “states that everyone has the right to freedom and security of the person, which includes the right- to be free from all forms of violence from either public or private sources”. The defendant’s constitutional rights was breached due to the plaintiff acting in a violent matter to punch in a public area.
There are two types of automatism: sane and insane. Sane automatism is caused by an external factor and insane automatism by an internal factor. Automatism occurs when the defendant's conscious mind is not connected with the part of mind that controls actions. Insanity can be used where a disease of mind prevented the defendant from reasoning. Automatism and insanity excuse the defendant because his state of mind was such that he cannot be regarded as responsible for his actions. Both of these defences apply to all offences. Unlike automatism and insanity, diminished responsibility may be caused by external or internal factors ...