Revision/Exam Practice

Criminal Laws, S2 2014, Class 11

Revision (Last Class)

1.) What two things must the Crown establish to disprove selfdefence?
2.) What if the accused believed his/her actions in self-defence
were necessary, but the force used was disproportionate?
3.) Can a person acting in self-defence cause the death of
another person to protect their property?
4.) Can self-induced intoxication be taken into account when
determining whether an argument of self-defence is made out?
5.) How would you describe the requirement that there be a
sufficient nexus between the threat to the accused and the
accuseds response?
6.) How did Kirby P in CES v Superclinics expand the test of
necessity previously set out in Wald regarding abortions?

Problem Question
1.) What criminal offences may have been committed by Dr Ache?
Are there any defences which he might raise?
2.) What defences may be available to Chris for shooting his
daughter?
Set out the relevant legislation/case law on each issue and reach a
conclusion as to whether you think the offence/defence would be
made out.

Dr Ache
Offences:
Unlawfully Procuring a Miscarriage (s 83); Supplying Drugs to do
the same (s 84)
Murder of Zara
Manslaughter of Zara
By Unlawful Act
By Criminal Negligence
Dangerous Driving Occasioning Death (s 52A)
Causation
Defences:
Intoxication

Chris
Murder of Eva (daughter)
Not clear if death caused could be attempted murder or GBH
with intent to inflict GBH (s 33)
Self-Defence
Intoxication

Policy Question/Essay

The defences in the criminal law are artificial, unwieldy and

confusing. Arguments and evidence about defences should only
be relevant as mitigating factors in the sentencing process.

1. Artificial/Unwieldy/Confusing
Artificial distinction between positive fault elements/negativing
factors/formal defences
Ordinary/reasonable person tests
E.g. manslaughter vs provocation
Overlap
Insanity/substantial impairment/sane automatism
Strained Distinctions
Probability vs possibility

2. Consider in Sentencing Instead?

For:
Flexibility avoid sticking to strained distinctions
Greater focus on social/political factors, which will be
easier to understand
Can remedy unfairness/inequality
Against:
More opaque/inconsistent
Less open to appellate review less likely to be clarified
Broader reasons:
Would be against psychological individualism of law
Less of a role for jury
Defences play important exculpatory role otherwise guilt
determined solely by positive fault requirements