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1、CRIMINAL LAW AND PROCEDURE A - 072DEFENCE OF PERSONS AND PROPERTYDEFENSIVE FORCE: GENERAL PRINCIPLESDEFENSIVE FORCE: GENERAL PRINCIPLESn nThe force should be The force should be necessarynecessaryn nThe force should be The force should be reasonablereasonable (morally necessary) (morally necessary)n
2、 nShould there be specific limitations on using force Should there be specific limitations on using force n nin in defencedefence of strangers? of strangers?n nin in defencedefence of property? of property? n nto defend against provoked assaults?to defend against provoked assaults?n nForce should be
3、 Force should be justifiedjustified rather than just excused rather than just excusedn n It is lawful to rather than A person is not It is lawful to rather than A person is not criminally responsible forcriminally responsible forn nBut perhaps not for But perhaps not for defencedefence against provo
4、ked against provoked assaultsassaultsBURDENSn nEvidentiary burden on accusedEvidentiary burden on accusedn nAccused must adduce Accused must adduce somesome evidence if not already evidence if not already present in evidence of prosecutionpresent in evidence of prosecutionn nJudge can withdraw Judge
5、 can withdraw defencedefence from jury if no evidence from jury if no evidence of all elements of the of all elements of the defencedefencen nJudge can even withdraw Judge can even withdraw defencedefence on ground on ground that no jury could ever consider a belief in the that no jury could ever co
6、nsider a belief in the necessity of using some measure of force to be necessity of using some measure of force to be necessary or reasonablenecessary or reasonablen nPersuasive burden on prosecutionPersuasive burden on prosecutionn nProsecution must disprove Prosecution must disprove defencedefence
7、beyond beyond reasonable doubtreasonable doubtn nBut only if evidentiary burden has been dischargedBut only if evidentiary burden has been dischargedDEFENCE OF PROPERTY: CODE PROVISIONSDEFENCE OF PROPERTY: CODE PROVISIONSn nLawful for Lawful for person in peaceable possessionperson in peaceable poss
8、ession to use to use forceforcen nS 267 to defend dwelling S 267 to defend dwelling n nS 274 to defend moveable property against S 274 to defend moveable property against trespassers trespassers n nS 275 to defend moveable property under claim of S 275 to defend moveable property under claim of righ
9、trightn nS 276 to S 276 to taketake moveable property from person moveable property from person possessing it without claim of right and resistingpossessing it without claim of right and resistingn nS 277 to defend real property against trespassersS 277 to defend real property against trespassersn n
10、S 278 to defend real property under claim of rightS 278 to defend real property under claim of rightDEFENCE OF PROPERTY: CONDITIONS n nDwellings , s 267Dwellings , s 267n nJustification for using force (unlimited) where it is Justification for using force (unlimited) where it is believed on reasonab
11、le grounds believed on reasonable grounds n nto be necessaryto be necessaryn nto prevent or repel person unlawfully entering or to prevent or repel person unlawfully entering or remaining with intent to commit indictable offenceremaining with intent to commit indictable offencen nOther property, Oth
12、er property, ssss 274-8 274-8n nJustification for using as much force as is reasonably Justification for using as much force as is reasonably necessarynecessaryn nProvided Provided gbhgbh is not inflicted is not inflictedn nDefending property of othersDefending property of othersn nSs 274-5, 277-8:
13、justification extends to person Ss 274-5, 277-8: justification extends to person lawfully assisting or acting byauthority of lawfully assisting or acting byauthority of possessorpossessorSection 271Section 271n nPer McPherson J in Per McPherson J in GrayGray CLM 14.28C: “ CLM 14.28C: “As has been sa
14、id As has been said on more than one occasion in the past, the provisions of on more than one occasion in the past, the provisions of s 271 are by no means a model of clarity or simplicitys 271 are by no means a model of clarity or simplicity” ”n n“(1) When a person is unlawfully assaulted, and has
15、“(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably use such force to the assailant as is reasonably necessary to make effectual defence
16、against the necessary to make effectual defence against the assault, if the force used is not intended, and is not assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily such as is likely, to cause death or grievous bodily harm. harm. n n(2) If th
17、e nature of the assault is such as to cause (2) If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence harm, and the person using force by way of defen
18、ce believes, on reasonable grounds, that the person believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the death or grievous bodily harm, it is lawful f
19、or the person to use any such force to the assailant as is person to use any such force to the assailant as is necessary for defence, even though such force may necessary for defence, even though such force may cause death or grievous bodily harmcause death or grievous bodily harm.” .”DEFENCE OF PER
20、SONS: CODE PROVISIONSDEFENCE OF PERSONS: CODE PROVISIONSn ns 271: self-s 271: self-defencedefence against unprovoked assault against unprovoked assaultn n(1) (1) justifiesjustifies use of non-lethal force (not intended or use of non-lethal force (not intended or likely to cause death or likely to ca
21、use death or gbhgbh) where reasonably ) where reasonably necessarynecessaryn n(2) (2) justifiesjustifies use of lethal force where restrictive (and use of lethal force where restrictive (and complicated) conditions are metcomplicated) conditions are metn ns 272: self-s 272: self-defencedefence again
22、st provoked assault against provoked assaultn n(1) (1) excusesexcuses non-lethal or lethal force where same non-lethal or lethal force where same restrictive conditions as in s 271(2) are metrestrictive conditions as in s 271(2) are metn n(2) additional restrictions for assault provoked with (2) add
23、itional restrictions for assault provoked with intent to cause deathintent to cause death or or gbhgbhn ns 273: force can also be used for s 273: force can also be used for defencedefence in good faith in good faith of other persons of other persons n ns 283: excessive force is unlawful s 283: exces
24、sive force is unlawful OBJECTIVE TESTS IN s 271(2)OBJECTIVE TESTS IN s 271(2)n nIssue is what it was reasonable for accused to Issue is what it was reasonable for accused to apprehend/believe in the circumstancesapprehend/believe in the circumstancesn nDoes that mean the same thing as an Does that m
25、ean the same thing as an apprehension/belief that a reasonable person would apprehension/belief that a reasonable person would have held in the circumstances?have held in the circumstances?n nPer Per JulianJulian (1998) 100 (1998) 100 ACrimRACrimR 430 (QCA): Error to 430 (QCA): Error to direct in te
26、rms of reasonable person direct in terms of reasonable person n nPer Per VidlerVidler (2000) 110 (2000) 110 ACrimRACrimR 77 (QCA): No practical 77 (QCA): No practical difference between “a belief of a reasonable person in difference between “a belief of a reasonable person in the position of the acc
27、used and a belief of an accused the position of the accused and a belief of an accused person based on reasonable grounds”person based on reasonable grounds”n nPer Per MrzljakMrzljak 2004 QCA 420: “It is clear that a 2004 QCA 420: “It is clear that a requirement that a belief be on reasonable ground
28、s requirement that a belief be on reasonable grounds does not equate to a requirement that a reasonable does not equate to a requirement that a reasonable person would have held it” ref to person would have held it” ref to JulianJulianMISTAKESn nMistake about fact or nature of assault; identity of M
29、istake about fact or nature of assault; identity of attackerattackern nS 271(1): Mistake of fact, s 24 works in conjunction S 271(1): Mistake of fact, s 24 works in conjunction with with defencedefence of self- of self-defencedefencen nS 271(2): Reasonable apprehension can encompass S 271(2): Reason
30、able apprehension can encompass reasonable mistakesreasonable mistakesn nMistake about what response is necessaryMistake about what response is necessaryn nReasonable belief in s 271(2):Reasonable belief in s 271(2):n nallows for reasonable mistakesallows for reasonable mistakesn nReasonable necessi
31、ty (s 271(1) or necessity (s Reasonable necessity (s 271(1) or necessity (s 271(2):271(2):n nMistakes: s 24 may not apply because mistake of Mistakes: s 24 may not apply because mistake of judgment rather than factjudgment rather than factBATTERED WOMAN SYNDROME (BWS)BATTERED WOMAN SYNDROME (BWS)n n
32、Expert evidence may be admissible on the mental state Expert evidence may be admissible on the mental state of women who have suffered long-term abuse, with of women who have suffered long-term abuse, with respect to respect to n nReasonable apprehension of violenceReasonable apprehension of violenc
33、e: :n nBWS - Woman may use knowledge of partner to BWS - Woman may use knowledge of partner to apprehend violence even though no obvious signsapprehend violence even though no obvious signsn nObjective test is Objective test is c contextualisedontextualisedn nReasonable belief in necessity of respon
34、ding with Reasonable belief in necessity of responding with violenceviolence: :n nBWS - Woman may suffer impaired capacity to BWS - Woman may suffer impaired capacity to perceive alternative courses of action and choose perceive alternative courses of action and choose between thembetween themn nRea
35、sonable from whose standpoint? - a belief that Reasonable from whose standpoint? - a belief that would be reasonable for a person suffering from would be reasonable for a person suffering from BWS? BWS? n nCan objective test be Can objective test be individualisedindividualised? ?n nUSA, Canada yes,
36、 USA, Canada yes, LavalleeLavallee CLM 14.30CCLM 14.30Cn nAustralia possibly, Australia possibly, OslandOsland CLM 14.31CCLM 14.31CSection 272: provoked assaultsn ns 272: Applies where person claiming self-s 272: Applies where person claiming self-defencedefence first first assaulted attacker or oth
37、erwise provoked attackassaulted attacker or otherwise provoked attackn nCases hold that there must be provocation within meaning of Cases hold that there must be provocation within meaning of ssss 268-9268-9n ns 272(1): no criminal responsibility; but same restrictive s 272(1): no criminal responsib
38、ility; but same restrictive conditions as for s 271(2)conditions as for s 271(2)n nreasonable apprehension of death or reasonable apprehension of death or gbhgbh n nbelief on reasonable grounds that there is no other way of belief on reasonable grounds that there is no other way of defending persond
39、efending personn ns 272(2): s 272(2): no no defencedefence against an assault for a person against an assault for a person who previously used violence with intent to cause death who previously used violence with intent to cause death or or gbhgbhn nunless attempt to quit conflict or retreat as far as practicable unless attempt to quit conflict or retreat as far as practicable beforebefore necessity to use defensive force arose necessity to use defensive force arose
