DEFENCES AND

EXCUSES

By

ANUSHA RAWOAH

State Counsel

Office of the DPP

16th September 2015

PROVING A CASEWHO PROVES A CASE?

BURDEN OF PROOF

HOW IS A CASE PROVED?

STANDARD OF PROOF

Prosecution has the burden of proving a case

Beyond

reasonable

doubt

BURDEN OF PROOF

PROSECUTION DEFENCE/ACCUSED

To prove:

Actus Reus – the act of committing the offence

Mens Rea – the intention to commit the offence

To negate his guilt

Use of ‘defences’ or ‘excuses’

Defence vs Excuse

DEFENCE EXCUSE

Nullifies guilt of accused.

Affects guilt of accused.

NOT GUILTY verdict

Only diminishes the responsibility of accused.

Affects sentence.

GUILTY but reduced sentence

Why should YOU know about Defences and Excuses?

Raised by suspect at the level of enquiry itself.

Need to identify whether it is a defence or an excuse.

Need to cross check if defence or excuse raised is supported.

Include in police file evidence of defence or excuse.

Help us make better decisions as to whether to proceed with the case or not!

I. DEFENCES

DEFENCES

OBJECTIVE DEFENCES SUBJECTIVE DEFENCES

Faits justificatifs

Nullifies the OFFENCE.

The accused did commit the offenceand had the intention but in law, butthe offence becomes null.

The defence justifies the commissionof offence.

E.G Accused acted in self-defence

Causes de non-culpabilite

Nullifies the accused’s GUILT, not the offence.

Affects the mens rea of the person.

The accused has committed the offence but did not have the intention.

E.G Accused was insane or he was drunk.

A. OBJECTIVE DEFENCES

1) Command of the law

2) Lawful Command

3) Self-Defence

4) Necessity (?)

1. Command of the law

A person has committed an act which is a criminal offence, but his act is accepted by law.

Only homicide and wounds and blows cases.

E.G: while arresting a thief, X harms the thief (private arrest)

2. Lawful Command

Accused commits an offence, but this act has been ordered by a lawful authority.

Applies only in cases of homicide and assault.

Section 245 of the Criminal Code:

“245. Homicide and wounds and blows under lawful authority

There is neither crime nor misdemeanour, where homicide, wounds or blows are ordered by law, and commanded by lawful authority

E.g: Aggressing somebody during a lawful arrest

Condition – Lawful Command

Accused committed the offence by order of a lawful authority, not by an order from a private source.

Eg:

He cannot say that he committed the act by order of his friends, parents, employer.

QUESTIONA Police officer pursues an offender in vehicle –knocks down – offender dies as a result of accident.

Liability of police officer???

• Voluntary Homicide? No (unless he wanted to knock victim)

• Involuntary Homicide? Depends

• What was the lawful Command?

• Could he have avoided knocking accused?

• But if reckless – involuntary homicide by imprudence

3. Self-Defence

Section 246 of the Criminal Code:

“There is neither crime nor misdemeanour, where homicide, wounds or blows are commanded by an actual necessity of the lawful defence of oneself or of another person.”

Applicable only for cases of homicide or assault.

To protect oneself OR another person.

Conditions - Self-Defence

1. The accused or someone else was being aggressed or about to be aggressed;

2. It constituted an imminent danger;

3. There was actual necessity for him to defend ; AND

4. He retaliated in a manner that was proportionate to the aggression used against him.

ALL OF THEM MUST BE SATISFIED!

1st CONDITIONAccused or someone else was being aggressed or about

to be aggressed

Accused harmed the victim because:

he was being aggressed OR

someone else present was being aggressed.

The aggression by victim was unlawful –not authorised by law.

EG:

Not apply when a police officer uses force to arrest the accused and the accused retaliates.

2nd CONDITIONAggression by victim constituted an imminent

danger

An imminent danger - about to happen;

Accused could foresee;

No long time gap between the aggression and retaliation;

The danger must be real and present.

(Teeluckdharry v R [1957] MR 277)

Scenarios Scenario 1

Victim hits accused and runs away . Accused pursues victim and assaults latter

Imminent danger?? NO

Scenario 2

Accused is aggressed - goes home and comes with weapon -attacks victim

Imminent danger?? NO!

The danger has passed - no self-defence, rather an act of revenge/ Premeditation.

Scenario 3

The danger is eventual (future) and accused retaliates

Self-defence?? NO, because accused had time to inform the authorities or to escape

3rd CONDITIONActual necessity to defend himself or someone else

Necessary for him to use the force.

If he had not used force, he would have been harmed.

How to assess necessity?

Look at the circumstances :

- Physical appearance of accused vs victim

- Could accused have avoided the retaliation

Example: R vs Arnachellum

Victim was drunk and tried to attack accused;

Accused used a bottle and hit victim;

Could the fight have been avoided?

Held:

No self-defence because no necessity to retaliate;

Police station was nearby.

4th CONDITIONRetaliation was proportionate to the aggression

Accused’s retaliation must be proportionate to the aggression.

E.G: If victim used a ruler and was about to harm you, you cannot use a knife to stab him.

Assessing proportionality:

Age of victim and accused,

Whether well-built,

Weapon used to attack and defend,

Injuries to victim and accused.

Proportionality - AULUM v THE STATE (2011) SCJ 318

FACTS

Accused parked motorcycle - was walking in Plaine Verte at 3am to buy cigarettes.

Victim started swearing at him and threatening him.

Victim removed a knife and was about to assault the accused.

Accused used his helmet and dealt victim with a blow. Victim fell down and accused ran away.

HELD

SELF-DEFENCE: Although victim was much shorter than accused and elder, the fact that he was about to assault accused with a knife, accused had no choice than to defend himself with his helmet.

4. Necessity ???

SEEGOBIN A. v THE STATE (2002) SCJ 163:

“In our law there is no such defence as the defence of “necessity”.”

B. SUBJECTIVE DEFENCES(Causes de non-culpabilite)

Nullifies the mens rea of accused.

1. Insanity

2. Automatism

3. Drunkenness

4. Duress

5. Minority

1. Insanity

Presumption of sanity:

Everyone is presumed sane – responsible for his acts.

If someone invokes insanity, he must prove it.

What is insanity?

Disease of the mind

Defect in the reason

Effect of insanity:

The person does NOT understand the consequence of his acts No mens rea

Insanity – The M’Naghten Rule

Conditions to be satisfied to prove insanity:

Occurs at the time of the act, not before not after

Accused was under such a defect of reason that he could not understand the nature of the act he was doing.

Note:

When accused pleads insanity :

- Examined by a Psychiatrist;

- Historical background.

2. Automatism

An involuntary movement of a person’s body or limbs.

Conditions :

Prompted by external factors.

Not self-induced.

Resulted from a state of mind which was not prone to recur (temporary).

Something new and accidental – could not have been foreseen.

AutomatismBhojah v State 1993 MR 256

FACTS

Accused driving a lorry – a wasp entered.

He tried to move away the wasp – lost control –involuntary homicide.

He pleaded automatism – involuntary movement of his body and limbs temporarily .

HELD

Despite the wasp entered inside the lorry, the driver CONTINUED to drive and waved at the same time .

He ought to have stopped his vehicle – NO AUTOMATISM

He could have foreseen it.

3. Drunkenness

A state of mind where accused was unable to form the intent of committing the offence.

Condition (R vs L’Etendry (1953):

The drunkenness must be COMPLETE ;

So extensive so as to incapacitate him from forming the intention.

Drunkenness not apply IF:

Someone is under influence of alcohol but he is not sointoxicated, or

Someone is dead drunk so as he is incapable of committing the offence.

THEREFORE,

Look at the extent to which accused was drunk when he committed the offence.

4. Duress

Section 42 of Criminal Code:

“42. InsanityThere is neither crime nor misdemeanour, where an accused person was in a state of insanity at the time of the act, or where he has been compelled to commit such act by a force which he could not resist, and in consequence he shall be acquitted.”

What is duress? ‘Contrainte’ Pressure

Types of duress: Physical duress Mental/psychological duress – threats

Effect of duress: No mens rea

A person who has been forced to commit an offence CANNOT be said to have the intention to do it.

Conditions - Duress

State vs Dilmamode & ors (1995)

CONDITIONS:

Accused could not resist the duress –impossible for him to conform with the law;

The duress came from an external factor;

Independent of his fault.

E.g:

Someone puts a gun at his head and forces him steal

Someone threatens him to harm someone

Assessing DuressLook at the effect of the duress on the mind of the accused

SEEGOBIN A. v THE STATE 2002 SCJ 163

FACTS

Accused driving lorry – hit against somebody – dead – pursued by hostile crowd – escaping -hits against someone else – dead.

Did he acted under ‘contrainte’ for the second homicide?

HELD

He had ample time to regain his self-control.

He managed to drive quite far before second accident happened.

NO DURESS

5. Minority

Arises where accused is under 14 years old.

Issue

Whether he acted with OR without discernment.

Why?

No discernment = No mens rea to commit offence

Still Apply in present society ???

Discernment or No Discernment???Sect 44 of Criminal Code:

“44. Minor under 14 acting without discernment

Where an accused person is under the age of 14 and it is determined that he acted without discernment, he shall be acquitted, but shall, according to the circumstances of his case, be handed over to his relations or placed in a reformatory to be brought up and detained during such number of years as the sentence may determine, which period shall in no case exceed the period at which the accused will have reached the age of 18.”

No discernment = No Mens rea

“45. Minor under 14 acting with discernment

Where it is decided an accused person under the age of 14 acted with discernment, he shall be condemned to imprisonment in a reformatory for such time as shall be determined by the judgment.”

Discernment = Mens Rea

II. EXCUSES

Effect of Excuse

Does not nullify the offence or the accused’s guilt

Only affects the PENALTY

Excuse = Reduces Penalty

Defence = No Guilt

Types of Excuses

‘EXCUSES ABSOLUTOIRES’ ‘EXCUSES ATTENUANTES‘

EXTINGUISH

the

penalty

REDUCE

the

penalty

‘Excuses Absolutoires’

Exempt the accused from any penalty.

Examples in Criminal Code:

Sect. 74:

Failure to inform authorities about a plot against the State – liable.

Sect. 75:

If the person is the close relative of the person who has made the plot –exempted from punishment.

Sect 172 – Harbour criminals

But if the criminal has been harboured by close relatives, the relatives will be exempted from punishments.

‘Excuses Attenuantes’

REDUCES the penalty

PROVOCATION

Section 240 of Criminal Code:

“240. Manslaughter and wounds and blows under provocation

Manslaughter and wounds and blows, are excusable, as far as it is provided for hereinafter, if they have been provoked by severe blows or violence towards individuals.”

Conditions - PROVOCATION

Sadien vs R (1982) MR 201

1. An aggression by severe blows and violence;

2. Aggression must be directed to an individual;

3. Aggression is unjust; AND

4. Aggression must be made simultaneously to the retaliation.

1st CONDITION:An aggression by severe blows and violence

No verbal aggression. Only physical aggression.

Gravity of aggression = severe

Assessing the aggression:

Look at nature of injuries on accused

What impression the attack made to his mind.

QUESTION:

DOES VERBAL AGGRESSION CONSTITUTE PROVOCATION?

NO!

2nd CONDITION: Aggression must be directed to an individual

Aggression must be directed from the victim to the accused.

Physical contact between the two.

3rd CONDITION: Aggression is unjust

Unlawful aggression.

If police trying to use force to arrest accused and accused retaliates – NO PROVOCATION.

4th CONDITION: Aggression must be made simultaneously to the

retaliation

Retaliation be simultaneous to the provocation;

Accused must have been provoked and reacted instantly;

If time gap between aggression and retaliation – No Provocation - Premeditation.

QUESTIONS

• Difference between self-defence and provocation.

• Instances under which an accused party may claim self-defence or provocation.

SELF-DEFENCE vs PROVOCATION

SELF-DEFENCE PROVOCATION

Accused retaliates to prevent the aggression.

CONDITIONS

Aggressed or about to be aggressed

An imminent danger,

Actual necessity to defend himself or another person, AND

Proportionate retaliation.

Accused retaliates just after being aggressed.

CONDITIONS

An aggression by severe blows and violence

The aggression must be directed to accused himself,

The aggression is unjust, AND

The aggression must be made simultaneously to the retaliation.

QUESTION

PREMEDITATION

How to assess the state of mind of accused to establish

‘Premeditation’?

What is Premeditation? The act of thinking calmly before committing the offence.

Sufficient time to think and plan.

Predetermined resolution to kill or assault.

Not get carried away by any anger.

Sufficient time to ponder and meditate beforehand in a cold and calm manner.

THE STATE v RATSEEZAMUT J. Y. B 2009 SCJ 197

PREMEDIATION IS NOT A DEFENCE

IT IS AN AGGRAVATING FACTOR.

PREMEDITATION vs SELF DEFENCE & PROVOCATION

PREMEDITATIONSELF-DEFENCE & PROVOCATION

No need to have aggression by victim;

No simultaneous retaliation –retaliate much after the aggression;

Meditated calmly before retaliating.

Retaliation is simultaneous to the aggression;

React instantly.

Factors to establish premeditation

Whether accused had time to think calmly before committing the offence;

How he committed the offence?

E.g: went to buy knife, poison

Planning?

Did he react instantly?

Was he able to foresee the consequence of his act?

QUESTION

Reducing a charge of murder to wounds and blows causing death without intention to kill?

MURDER(w&b causing death + Intention to kill + Premeditation)

MANSLAUGHTER(w&b causing death + Intention to kill)

W&B CAUSING DEATH WITHOUT INTENTION TO KILL(w&b causing death + No intention to kill)

ASSAULT(simple w&b)

Reducing charge

• No intention

• No premeditation

• Look at the circumstances in which death occur

• Causal link

• Participation of accused

• Nature of injuries - MLR

~ SUMMARY ~

DEFENCES & EXCUSESDEFENCES EXCUSES

Objective Defence Subjective Defence(Faits Justificatifs) (Causes de

non-culpabilite)

NULLIFIES NULLIFIESOFFENCE MENS REA

Command of the law Insanity

Lawful Command Automatism

Self-Defence Drunkenness

Necessity (?) Duress

Minority

NOT GUILTY VERDICT

Excuses ExcusesAbsolutoires Attenuantes

Extinguish Reduce the penalty the Penalty

Sections 74,75, PROVOCATION172 ofCriminal Code

ONLY AFFECTS SENTENCE