GENERAL CRIMINAL AN OVERVIEW

DEFENCES
INTRODUCTION
General defences are available in relation to a range of offences rather than those
which are available only in relation to a particular crime.
Some offences have particular defences attached to them, for example, those
defences which exist only in relation to murder.
This subtopic deals solely with the general defences.
General defences are those which arise from specific characteristics of the
defendant or the circumstances of the offence which mean that the prosecution
cannot prove all the elements of the offence.
They may result in an acquittal or they may reduce the defendant’s culpability to
render them guilty of a lesser offence.
INTRO CONT.
When investigating a suspected crime, there is a duty to consider evidence supporting
any defence and general defences should be considered in every case.
The main general defences are:
automatism
intoxication
mistake
insanity
duress and necessity, and
self defence, the defence of others and of property
AUTOMATISM
An act is done in a state of automatism if it is done by the body without
control by the mind (eg it is a spasm or a reflex) or if it is done by a person
who is not conscious of what they are doing. To claim a defence of
automatism the defendant has to have a total loss of control over their
actions, meaning they cannot be held liable for those actions because their
conduct lacks the basic requirement of being voluntary.
There must be a total destruction of voluntary control on the defendant’s
part.
If the defendant retains impaired, reduced or partial control, the defence is
not available. 
AUTOMATISM CONT.
The defence of automatism is limited in the following circumstances:
where automatism is caused by a disease of the mind
where automatism is caused by self-induced intoxication
where automatism is caused by a self-induced incapacity, other than intoxication
due to drink or drugs, (eg a failure to eat while taking insulin), or
where there is only a partial destruction of voluntary control on the defendant’s part
Where it is raised, there is an evidential burden on the prosecution to negate it to
the criminal standard.
INTOXICATION
Intoxication may be voluntary or involuntary and may be brought about by drink or
drugs.
Intoxication has the potential to remove the necessary mental element required for
a defendant to commit an offence. It is not a defence as such.
Intoxication can be divided into two categories:
voluntary intoxication—the defendant got themselves intoxicated
involuntary intoxication (eg where a defendant's drink has been spiked)—the
defendant was not responsible for becoming intoxicated
INTOXICATION CONT.
The distinction between the two types of intoxication is important when
considering whether the offence the defendant is alleged to have committed is one of
specific or basic intent. Involuntarily intoxication can be raised in answer to a charge
of both specific and basic intent. Voluntary intoxication can only be raised to answer
a charge to an offence of specific intent, eg murder or theft—voluntary intoxication
may be sufficient to show that the accused could not have formed the requisite intent
to commit the offence.
Voluntary intoxication in order to commit a crime provides no defence.
In assessing intoxication through drug taking, the courts will take into account the
known effects of the drug ingested by the defendant to decide whether the necessary
criminal intention had been formed.
MISTAKE
To raise the defence of mistake is to deny the mens rea of the particular crime charged. The
defence of mistake requires the accused to have made a mistake about the circumstances or
consequences of an act which nullifies a suggestion of criminal intention.
A mistake about the law will generally be no defence, save where knowledge of the legal
state was relevant to the requisite intent.
Mistake of fact is more commonly relied on as a defence.
The test is whether the accused's belief was an honest and genuine one (subjective). It is not
relevant whether the accused's mistaken belief was reasonable. This is different where the
required state of mind is negligence, in which case, reasonableness will be a factor because an
unreasonable mistake would be proof of the negligence which is the basis of liability.
Mistake provides no defence to strict liability offences. In cases where the criminal intention
is subjective recklessness, then the mistake will also be considered subjectively.
INSANITY
Insanity is a complete defence even to strict liability offences.
To establish a defence of insanity it must be clearly proved that, at the time of
commission of the act in question, the accused was labouring under a such a defect
of reason, from a disease of the mind as not to know the nature and the quality of the
act they were doing, or, if they did know it, they did not know it was wrong.
Where a person wishes to raise insanity as a defence the burden of proof (on the
balance of probabilities) rests with the defendant.
DURESS AND NECESSITY
Duress by threats provides a complete defence to a charge of any offence other than
murder, attempted murder or (potentially) treason. The defence arises where the defendant
commits the offence with the relevant intention but is induced to act by a threat made by
another person, or where the defendant reasonably believes such a threat has been made, to
the effect that, unless the defendant commits the offence with which they are charged, they
or a third person will be harmed. The evidence for a defence of duress must be raised by
the defendant. The burden is then on the prosecution to disprove the assertion.
The court will consider the reasonableness of the defendant’s reaction in the context of
the prevailing circumstances. It will consider whether the response was proportionate.
Necessity differs from duress in that it is not an excuse, but as a choice between two evils
which provides justification for the offence. The defence of necessity is available only in
very narrow circumstances.
SELF-DEFENCE AND DEFENCE
OF OTHERS OR PROPERTY
Self-defence is an absolute defence which can apply to offences committed by force. Self-defence as a
defence can take the form of defence of a person or property, the prevention of crime and the lawful
arrest and apprehension of offenders.
The defence will be available to a person if they honestly believed it was necessary to use force and if
the degree of force used was not disproportionate in the circumstances as the person viewed them. In
determining what force is reasonable, the physical characteristics of the defendant might be relevant.
When raised by the defence, it is for the prosecution to rebut a defence of self-defence to the criminal
standard of proof. The factors which it may rely on include:
use of excessive force
the consequences of the action taken, particularly where the result was death or serious injury
the use of a weapon in applying force, and
premeditated violence eg going armed to exact revenge
SUPERIOR ORDERS
The superior orders defense is a criminal law defense which allows a
subordinate soldier to avoid a finding of culpability if she committed the illegal
act under orders.
Despite the core significance of this issue for international criminal law as
well as for domestic military law, the law on the subject is unclear. Jurists fail
to agree under what conditions, if any, a soldier should be allowed to enjoy
such a defense.
Jurists are only able to agree that the issue should be regulated by a ‘one-rule-
fits-all policy,’ i.e. that the same legal rule should regulate the issue without
regard to the subordinate’s rank or the activity in which the order is given. Yet
the specifics of such a policy are still disputed, and it is this disagreement that
leads the relevant law to be unclear and unjust in application.
DISCIPLINARY
CHASTISEMENT
Freedom of Religion SA v Justice and Constitutional Development (CCT320/17)
[2019] ZACC 34; 2019 (11) BCLR 1321 (CC); 2020 (1) SA 1 (CC); 2020 (1) SACR
113 (CC) (18 September 2019)
Chastisement defence considered by constitutional court and decision of high court
upheld and confirmed that the common law defence regarded as constitutionally
invalid and the declaration is prospective in its operation.
“It suffices to say that any form of violence, including reasonable and moderate
chastisement, has always constituted a criminal act known as assault. The effect of
relying on this common law defence was to exempt parents from prosecution or
conviction. Identical conduct by a person other than a parent on the same child
would otherwise constitute indefensible assault.” [para 72]
ENTRAPEMENT
Entrapment defense is a way to avoid criminal charges by showing that a
government agent or official induced the defendant to commit a crime that they
would not have done otherwise.
It is an affirmative defense that requires the defendant to prove by a preponderance
of the evidence that they were not predisposed to commit the crime and that they
were coerced or harassed by law enforcement.
Entrapment defense is a check on the power of government agents and officials and
a protection for the individual's rights