Mr review 6 ignorance of law 6

Self-Defence and Defence of Others

• 
  New Self-Defence law in March 2013
  

Evidentiary Burden and Self-Defence

• 
  Self defence has both subjective and objective components
  
• 
  Before SD will be left to the jury, must be air of reality that elements of defence were present
  
• 
  This means that some evidence that accused perceived threat AND that threat was reasonable
  
• 
  Example: Cinous
  
  • 
    Accused involved in crimes with A&B, Rumours A&B planned to kill him, Accused thought A&B were about to kill him. Stopped to get gas, accused shot both of them. Claims self-defence
    
  • 
    Issue: Is self-defence available?
    
  • 
    Decision: No
    
    • 
      There was an air of reality that the threat was coming (objectively + subjectively)
      
    • 
      Air of reality that he was facing death (thus response proportionate)
      
    • 
      No air of reality that this was reasonable option in circumstances – he had opportunity to get away.
      

Evidentiary burden: Is there an air of reality to the defence before the jury gets it?

TH: In which case would evidentiary burden be LACKING?

Not Sufficient Given A’s version of events, force used was clearly disproportionate to what he needed to defend himself (just like in Cinou)

Sufficient Case where A admits on stand that he now sees he was mistaken about the fact that he was being threatened A was intoxicated and mistakenly believed he was under attack A gives version of events that is implausible given competing evidence

The New Self-Defence: Three components

1. 
   Belief that force being used or threat of force being used against them (Modified Objective Test)
   
2. 
   Response is to Defend (Subjective: s (34(1)(b)) “for the purpose”)
   
3. 
   Response is REASONABLE (taking into account accused perceptions)
   
4. 
   Last Component: consider a list of 8 factors; balancing of these factors are left to the jury biggest change btw new law and old law
   
5. 
   S 34 does NOT require that victim be the person that attacked the Accused
   
   1. 
      Ie. If A is coming at you, and you hit B = can use defence if it is reasonable for you to hit B
      

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; CONCEDED

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and Difficult to know if it was the purpose of defending without asking him. (you can enjoy it at the same time, + be defending yourself, you retain the right to hold your ground)

(c) the act committed is reasonable in the circumstances. PASS

• 
  FALSE
  
• 
  Person who starts fight can still pass 34(1) a and b. C is harder to prove that it was reasonable  as per 34(2)(c): the person’s role in the incident.
  
  • 
    Used in fights where there is an escalation of force ie. punch punch knife gun
    
  • 
    Can you shoot someone who brings a knife at you.. yes. Depends on circumstances.
    

TH: The defence of self-defence is unavailable in any case where the force:

• 
  Was a blow delivered against a person whom the accused knew was unconscious
  
  • 
    Can never pass (34(1)(a): because they are never a threat to you where they are unconscious
    
• 
  It is available if you:
  
  • 
    Imposed harm that was grossly disproportionate that the defender was responding to.
    
    • 
      The ultimate harm DOES NOT MATTER – what matters is whether your RESPONSE was reasonable
      
  • 
    Intentionally designed to cause death = hard to get off, they better be trying to kill you
    
  • 
    Could have avoided altercation: not necessary
    
  • 
    Designed to protect someone that accused had no duty to protect: NO duty, you act to protect anyone, you are okay