Burden of Proof and Defences in Criminal Law

Q1. Prosecution bears the persuasive burden to disprove common law defences and the defence has the burden to adduce sufficient evidence to raise the issue of existence of the defences. The defence has to prove, based on probabilities, a fact that is essential to determine the accused’s guilt or his innocence. This is a reverse burden of proof where the burden is removed from the prosecution and is placed onto the accused or the defence.

Q2. Self defence is lawfully available to a person threatened or attacked with violence. The person can use a reasonable force necessary to resist or defend himself and/or another person against the attack. The attack must be sufficiently serious so as to put them in immediate peril, and as such an immediate defensive action may be necessary. The defence of duress is available only when the person is threatened with death or grievous bodily harm if he does not undertake a criminal act. In the current case, Tobias can raise the defence of self defence.

Q3. Duress will not be available to a defendant if he voluntarily exposes himself to a risk of threats. In that case, D was convicted for manslaughter and the conviction was upheld when the jury rejected his please for duress based on the rationale given. Threat cannot, thus, be relied on by the accused if that arises from him having exposed himself voluntarily to that threat or violence.

Q4. The age of criminal responsibility is 10 years old. For children between 10 and 17, if they are charged with a crime, their identity cannot be disclosed outside the court. The Youth Court will deal with crimes committed by them If they are 16 or under, parents, guardians or carers will attend the court. Children aged between 10 – 17 years old may be given a youth conditional caution in case they admit the crime. In case of prosecution, all the circumstances must be considered otherwise there will be judicial review. Consideration of age and/or lack of maturity may justify a reduction in the sentence.

Q5. The defence of automatism must be proved beyond doubt. The defence is based on the failure of the accused’s mind and the act is involuntary. This defence is not available in case the defendant himself is responsible for falling into such a condition. Fred’s failure to take food after a dose of insulin casue hypoglaecemia, which is self induced and he is responsible for it. He cannot raise the defence of automatism.

Q6. In A-G’s Ref (No 2 of 1992) [1994], the Court of Appeal stated that a proper foundation should have been laid for the defence of automatism before it is left to the jury. There should have been evidence of “an external factor” causing a malfunctioning of the mind, which should have been founded before it goes to the jury.

Q7. The trial judge stated that the state of the defendant was suffering from insanity and mental illnes due to his past drinking problem. The judge therefore held that the defendant was not suffering from automatism.

Q8. Stanley committed the crime at a hyper-glycaemic state which was due to his failure to take insulin. In such condition, his diabetic condition is an internal factor. Hence, Stanley could raise the defence of non-insane automatism.

Q9. Section 74 of the Sexual Offences Act 2003 provides that a person consents to a sexual activity if she agrees by choice and has the freedom to make that the choice. A consent is available if the defendant has a reasonable belief that the victim was consenting. However, fraud can vitiate consent. In this case D represented himself as a healer, which he is not and does not have the skills or qualification. Thus, his defence will not hold.

Q10. In Burns, the court of appeal stated that when a defendant raises the issues of insanity and automatism, the issues should be kept distinct, particularly with regard to the burden of proof.

Q11. The defence of mistaken consent has been abolished by the Sexual Offences Act 1956 and will not apply in the current case. The defendant has the responsibility to ensure that the victim consents to the sexual activity at the time in question. D should have a reasonable belief that the victim consented.

Q12. Self defence requires a reasonable force necessary to resist or defend himself and/or another person against the attack. The attack must be sufficiently serious so as to put them in immediate peril. In the current case, the attack cannot be considered to have put Bianca into immediate peril. She could have retreated too, which she did not and the harm that she caused was cannot be considered a reasonable degree of force. Bianca cannot rely on self-defence.

Q13. A disproportionate use of force may still be considered lawful (so long as it was reasonably believed to be necessary). The more extreme the circumstances and the fear felt by the defendant, the more force could be used in self-defence. If the act was in the heat of the moment, and the defendant did not have time to contemplate properly the amount of force necessary, he has the benefit of the doubt. The test is whether force was necessary and also reasonable in the existing circumstances.

Q14. The Court of Appeal while dismissing the appeal gave the reason that a defendant cannot rely on self defence if he makes the mistake of causing himself to belief that his use of force is justified to defend himself and the mistake is due to his voluntary intoxication.

Q15. The defence of intoxication whether voluntary or involuntary, does not constitute a defence. Voluntary intoxication is never a defence to a crime of specific intent. This is supported by the ‘Dutch courage rule’. Carmen’s defence, thus, cannot hold.

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