temba peter
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- Apr 3, 2012
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[h=3]www.eastafriclaw.com
A complete defence to murder &the elements of murder[/h]
The elements for murder are:
If we can prevent the police proving one of the elements to murder, you must
be acquitted (found not guilty) of the offence of murder.
[h=3]If you have an alibi[/h]
An alibi, if established, is a complete defence to murder, as the crown
would not be able to prove the second element that it was the act or omission
of the accused that caused the death.
Alibi principles
An alibi is evidence tendered by the accused that is intended to show that
the accused was somewhere else at the time the offence was committed and
therefore could not have committed the offence. If the Crown fails to disprove
the alibi evidence beyond reasonable doubt, the accused will be acquitted.
If the Crown satisfies the jury beyond reasonable doubt that the alibi
evidence should be rejected, it does not necessarily mean that the accused must
be convicted. In order to convict the accused, the jury must be satisfied
beyond reasonable doubt, upon all of the evidence, that the Crown has made out
its case against the accused. A jury may find the accused not guilty for an
unrelated reason.
Alibi procedure
The accused must give notice of an alibi. If notice is not given within the
prescribed period, the accused may only introduce alibi evidence with the
permission (leave) of the court.
[h=3]Automatism[/h]
A key element that the prosecution must prove is that the accused performed
the acts constituting the offence voluntarily, that the acts in question were
willed bodily movements. Therefore, the accused is not criminally responsible
for acts committed while in a state of automatism. Examples of states of
automatism include: sleepwalking, suffering concussion, under anaesthetic,
suffering from some forms of epilepsy, an uncontrolled act such as sneezing. It
does not include self-induced intoxication.
Automatism principles
It is presumed that the accuseds acts were voluntary. The accused has an
evidentiary burden to show that there is a reasonable possibility that his or
her acts were not voluntary. The Crown must then prove beyond reasonable doubt
that the relevant acts were voluntary. If the Crown cannot prove this beyond
reasonable doubt, the accused will be acquitted.
This defence does not include the situation where an underlying mental
illness which is prone to reoccur deprives the accused of the capacity to
control his or her actions. Such cases may fall within the defence of
substantial impairment or the defence of mental illness, depending on the cause
of the accuseds condition at the time of the acts.
[h=3]Murder under duress[/h]
The accused will be acquitted where he or she acted because of threats
(express or implied) of death or really serious injury to himself, herself or
dependants, and a person of ordinary firmness and strength of will in the accuseds
position would have yielded to those threats.
In New South Wales,
the defence is not available to a principal in the first degree of murder
(where the accused did the killing). It is available where the accused did not
do the killing, such as where the accused is charged with being an accessory to
a murder.
[h=3]Necessity[/h]
Necessity may be available where circumstances bear upon the accused, inducing
him or her to break the law to avoid even more dire consequences.
The courts have not clearly decided whether the defence of necessity is
available to the principal in the first degree for murder.
The leading New South Wales case on the
defence is R v Rogers,
which requires the following elements to be shown in order to establish the
defence:
1. Irreparable evil.
The accused must have acted only in order to avoid certain consequences
(that is, they were bound to happen and could not otherwise be avoided) which
would have inflicted death or serious injury (irreparable evil) upon
the accused or others whom he or she was bound to protect.
2. Imminent peril.
The accused must honestly believe on reasonable grounds that he or she was
placed in a situation of imminent peril. Proportion.
The accuseds acts to avoid the imminent peril must not be out of proportion
to the peril being avoided. An instructive question to ask is whether a
reasonable person in the accuseds position would have considered what he did
necessary to avoid the peril? Were there reasonable alternatives open to the
accused that did not involve breaking the law, such as bringing the threat to
the attention of an authority or seeking protection?
[h=3]Self-defence
law[/h]
Self-defence may be a complete defence, leading to an acquittal, or a
partial defence, leading to a verdict of manslaughter. If the accused carried
out the conduct constituting the offence in self-defence, then the accused is
not criminally responsible for the offence.
Principles
Section 418 of the Crimes Act(UK) outlines where the defence is available and
the requisite elements were discussed in the case of R v Katarzynski
[2002].
Procedure
The defendant will have an evidentiary burden such that once the defence
is raised, the Crown must prove beyond reasonable doubt that the accused did
not act in self-defence. To do so, the Crown must show that either:
[h=3]Mental
illness[/h]
The defence of mental illness is provided for under the Mental Health
(Forensic Provisions) Act 1990(uk) If the accused or prosecution shows that at the
time of the offence he or she was mentally ill, the law will not hold them
criminally liable. The jury will return a special verdict of not guilty by
reason of mental illness.
Principles
It is presumed that the accused was of sound mind when he or she committed
the offence in question. The accused must prove on the balance of probabilities
(more probable than not) that:
If there is a verdict of not guilty by reason of mental illness,
the court may order that the person be detained in such place and in such
manner as the court thinks fit until released by due process of law. The person
may not be released until the court is satisfied on the balance of
probabilities that the safety of the person or public will not be seriously
endangered by the persons release.
A complete defence to murder &the elements of murder[/h]
The elements for murder are:
- The victim died;
- The act or omission of the accused
caused the death of the victim; - The act of the accused was
without lawful cause or excuse; and - The act or omission causing
death was done by the accused: - with the intention to kill or
do grievous bodily harm to some person; - foreseeing that it was
probable that the death of a person would result from the act or omission;
or - in an attempt by the accused
or some accomplice with him/her to commit, or during or immediately after
the commission of by the accused or some accomplice with him/her, a serious
indictable offence punishable by imprisonment for life or 25 years
If we can prevent the police proving one of the elements to murder, you must
be acquitted (found not guilty) of the offence of murder.
[h=3]If you have an alibi[/h]
An alibi, if established, is a complete defence to murder, as the crown
would not be able to prove the second element that it was the act or omission
of the accused that caused the death.
Alibi principles
An alibi is evidence tendered by the accused that is intended to show that
the accused was somewhere else at the time the offence was committed and
therefore could not have committed the offence. If the Crown fails to disprove
the alibi evidence beyond reasonable doubt, the accused will be acquitted.
If the Crown satisfies the jury beyond reasonable doubt that the alibi
evidence should be rejected, it does not necessarily mean that the accused must
be convicted. In order to convict the accused, the jury must be satisfied
beyond reasonable doubt, upon all of the evidence, that the Crown has made out
its case against the accused. A jury may find the accused not guilty for an
unrelated reason.
Alibi procedure
The accused must give notice of an alibi. If notice is not given within the
prescribed period, the accused may only introduce alibi evidence with the
permission (leave) of the court.
[h=3]Automatism[/h]
A key element that the prosecution must prove is that the accused performed
the acts constituting the offence voluntarily, that the acts in question were
willed bodily movements. Therefore, the accused is not criminally responsible
for acts committed while in a state of automatism. Examples of states of
automatism include: sleepwalking, suffering concussion, under anaesthetic,
suffering from some forms of epilepsy, an uncontrolled act such as sneezing. It
does not include self-induced intoxication.
Automatism principles
It is presumed that the accuseds acts were voluntary. The accused has an
evidentiary burden to show that there is a reasonable possibility that his or
her acts were not voluntary. The Crown must then prove beyond reasonable doubt
that the relevant acts were voluntary. If the Crown cannot prove this beyond
reasonable doubt, the accused will be acquitted.
This defence does not include the situation where an underlying mental
illness which is prone to reoccur deprives the accused of the capacity to
control his or her actions. Such cases may fall within the defence of
substantial impairment or the defence of mental illness, depending on the cause
of the accuseds condition at the time of the acts.
[h=3]Murder under duress[/h]
The accused will be acquitted where he or she acted because of threats
(express or implied) of death or really serious injury to himself, herself or
dependants, and a person of ordinary firmness and strength of will in the accuseds
position would have yielded to those threats.
In New South Wales,
the defence is not available to a principal in the first degree of murder
(where the accused did the killing). It is available where the accused did not
do the killing, such as where the accused is charged with being an accessory to
a murder.
[h=3]Necessity[/h]
Necessity may be available where circumstances bear upon the accused, inducing
him or her to break the law to avoid even more dire consequences.
The courts have not clearly decided whether the defence of necessity is
available to the principal in the first degree for murder.
The leading New South Wales case on the
defence is R v Rogers,
which requires the following elements to be shown in order to establish the
defence:
1. Irreparable evil.
The accused must have acted only in order to avoid certain consequences
(that is, they were bound to happen and could not otherwise be avoided) which
would have inflicted death or serious injury (irreparable evil) upon
the accused or others whom he or she was bound to protect.
2. Imminent peril.
The accused must honestly believe on reasonable grounds that he or she was
placed in a situation of imminent peril. Proportion.
The accuseds acts to avoid the imminent peril must not be out of proportion
to the peril being avoided. An instructive question to ask is whether a
reasonable person in the accuseds position would have considered what he did
necessary to avoid the peril? Were there reasonable alternatives open to the
accused that did not involve breaking the law, such as bringing the threat to
the attention of an authority or seeking protection?
[h=3]Self-defence
law[/h]
Self-defence may be a complete defence, leading to an acquittal, or a
partial defence, leading to a verdict of manslaughter. If the accused carried
out the conduct constituting the offence in self-defence, then the accused is
not criminally responsible for the offence.
Principles
Section 418 of the Crimes Act(UK) outlines where the defence is available and
the requisite elements were discussed in the case of R v Katarzynski
[2002].
- 1. Subjective element
- The accused acts in
self-defence if and only if there is a reasonable possibility that the
accused genuinely believed that his or her conduct was necessary: - (a) to defend him/herself or
another person, or - (b) to prevent or terminate
the unlawful deprivation of his/her/anothers liberty, or - (c) to protect property from
unlawful taking, destruction, damage or interference, or - (d) to prevent criminal
trespass to any land or premises or to remove a person committing any such
criminal trespass. - In considering whether the
accused held a genuine belief, all of the accuseds personal
characteristics at the time of the conduct in question will be considered. - Importantly, s 420 of the
Crimes Act states that (c) and (d) above cannot be used to establish the
defence where the accused uses force that involves the intentional or
reckless infliction of death. - 2. Objective element
- It must be determined whether
the accuseds response was reasonable in the circumstances as he or she
perceived them. In this aspect, the jury decides what matters it should
take into account, but it may at least have regard to the accuseds age,
gender and health. - Where the accuseds conduct
involved the infliction of death and was not a reasonable response in the
circumstances but the accused believed the conduct necessary to defend
himself, herself or another person and/or to prevent the unlawful
deprivation of his, her or anothers liberty, the accused may be found
guilty of manslaughter.
Procedure
The defendant will have an evidentiary burden such that once the defence
is raised, the Crown must prove beyond reasonable doubt that the accused did
not act in self-defence. To do so, the Crown must show that either:
- The accused did not genuinely
believe that it was necessary to act as he or she did in his or her own
defence; or - What the accused did was not
a reasonable response to the danger, as he or she perceived it to be.
[h=3]Mental
illness[/h]
The defence of mental illness is provided for under the Mental Health
(Forensic Provisions) Act 1990(uk) If the accused or prosecution shows that at the
time of the offence he or she was mentally ill, the law will not hold them
criminally liable. The jury will return a special verdict of not guilty by
reason of mental illness.
Principles
It is presumed that the accused was of sound mind when he or she committed
the offence in question. The accused must prove on the balance of probabilities
(more probable than not) that:
- 1. At the time of the act,
the accused was laboring under such a defect of reason that he or she
could not reason with a moderate degree of sense and composure. - 2. The defect of reason was
caused by a disease of the mind. There is no legal definition
of disease of the mind but in the case of R v Porter (1936),
the Court specified that the accuseds mind must have been one of disease,
disorder and disturbance and cannot be caused by mere transitory
passions, a personality disorder or impulsiveness. The major mental
illnesses falling within this defence are the psychoses, such as
schizophrenia and bipolar disease. - 3. By reason of a disease of
the mind, the accused did not know the physical nature and quality of his
or her act; he or she did not know that what he or she was doing was wrong
with regard to everyday standards of reasonable people.
If there is a verdict of not guilty by reason of mental illness,
the court may order that the person be detained in such place and in such
manner as the court thinks fit until released by due process of law. The person
may not be released until the court is satisfied on the balance of
probabilities that the safety of the person or public will not be seriously
endangered by the persons release.
