Session 4 ADPP Exam
What are the 2 broad categories of criminal defences? - Answer-1. Common law defences
2. Statutory defences
What are the 9 common law defences? - Answer-1. Insanity
2. Automatism
3. Duress
4. Necessity
5. Honest and reasonable mistake of fact
6. Claim of right
7. Provocation
8. Substantial impairment by abnormality of the mind
9. Doli-incapax
What is the defence of Automatism? - Answer-automatism means an act done by the muscles without
any control of the mind, such as a spasm, a reflex action, or a convulsion, or an act done by someone
who is not conscious of what he is doing.
What are some examples of automatism? - Answer-- An act done while suffering concussion
,- An act done while sleepwalking
-An assault while spasming
What is the defence of Duress? - Answer-Threats of immediate death or serious personal violence so
great as to overbear the ordinary power of human resistance should be accepted as justification for acts
that would otherwise be criminal.
To whom does the burden of proof lie, when proving the accused actions were involuntary by virtue of
threat? - Answer-It is the responsibility of the crown to eliminate the possibility that the accused actions
were involuntary by virtue of threat.
What test is applied to the defence of Duress? - Answer-- The two fold test
Is the Two Fold test Obective or Subjective - Answer-Both.
First - Subjective, did the accused commit the act complained of because of a threat of death or really
serious harm would be occasioned to him or a person known to him.
Second - Objective, would a reasonable person laboring under that threat yield to that threat as the
accused did.
Is the defence of duress available in relation to the charge of murder? - Answer-No.
What is the first element to the defence of Necessity? - Answer-1. AVOID IRREPARABLE EVIL - The
criminal act or acts must have been done only in order to avoid certain consequences which would have
inflicted irreparable evil upon the accused or upon others whom he was bound to protect
, What is the second element to the defence of Necessity - Answer-2. IMMINENT PERIL - The accused
must honestly believe on reasonable grounds that he was placed in a situation of imminent peril
(subjective and objective test applies)
What is the third element to the defence of Necessity? - Answer-3. PROPORTION - The acts done to
avoid the imminent peril must not be out of proportion to the peril to be avoided (objective test applies)
What is the key difference between Necessity and Duress? - Answer-With necessity if there is a break in
time from the threat to the execution of the offence the defence can not succeed, however with duress
the threat can be of a continuing nature and a time interval is allowable.
explain the defence of Honest and Reasonable mistake o fact. - Answer-In a state of facts, if they existed
would make the defendants actions innocent, affords an excuse for doing what would otherwise be an
offence.
in other words: the defendant accepts the charge, however he relies upon a set of facts, that if true,
would exculpate the defendant from the actus reus of the defence.
Can the defence of Honest and Reasonable mistake of fact be used, in relation to a mistake of law? -
Answer-No.
Explain the defence of Claim of Right. - Answer-A person is not criminally responsible, as for an offence
relating to property, for an act done or omitted to be done by him with respect to any property in the
exercise of an honest claim of right and without intention to defraud.
what are the three broad categories for statutory defences? - Answer-1. Concept defences
2. Offence specific offences
3. Proof by exception
What are the 2 broad categories of criminal defences? - Answer-1. Common law defences
2. Statutory defences
What are the 9 common law defences? - Answer-1. Insanity
2. Automatism
3. Duress
4. Necessity
5. Honest and reasonable mistake of fact
6. Claim of right
7. Provocation
8. Substantial impairment by abnormality of the mind
9. Doli-incapax
What is the defence of Automatism? - Answer-automatism means an act done by the muscles without
any control of the mind, such as a spasm, a reflex action, or a convulsion, or an act done by someone
who is not conscious of what he is doing.
What are some examples of automatism? - Answer-- An act done while suffering concussion
,- An act done while sleepwalking
-An assault while spasming
What is the defence of Duress? - Answer-Threats of immediate death or serious personal violence so
great as to overbear the ordinary power of human resistance should be accepted as justification for acts
that would otherwise be criminal.
To whom does the burden of proof lie, when proving the accused actions were involuntary by virtue of
threat? - Answer-It is the responsibility of the crown to eliminate the possibility that the accused actions
were involuntary by virtue of threat.
What test is applied to the defence of Duress? - Answer-- The two fold test
Is the Two Fold test Obective or Subjective - Answer-Both.
First - Subjective, did the accused commit the act complained of because of a threat of death or really
serious harm would be occasioned to him or a person known to him.
Second - Objective, would a reasonable person laboring under that threat yield to that threat as the
accused did.
Is the defence of duress available in relation to the charge of murder? - Answer-No.
What is the first element to the defence of Necessity? - Answer-1. AVOID IRREPARABLE EVIL - The
criminal act or acts must have been done only in order to avoid certain consequences which would have
inflicted irreparable evil upon the accused or upon others whom he was bound to protect
, What is the second element to the defence of Necessity - Answer-2. IMMINENT PERIL - The accused
must honestly believe on reasonable grounds that he was placed in a situation of imminent peril
(subjective and objective test applies)
What is the third element to the defence of Necessity? - Answer-3. PROPORTION - The acts done to
avoid the imminent peril must not be out of proportion to the peril to be avoided (objective test applies)
What is the key difference between Necessity and Duress? - Answer-With necessity if there is a break in
time from the threat to the execution of the offence the defence can not succeed, however with duress
the threat can be of a continuing nature and a time interval is allowable.
explain the defence of Honest and Reasonable mistake o fact. - Answer-In a state of facts, if they existed
would make the defendants actions innocent, affords an excuse for doing what would otherwise be an
offence.
in other words: the defendant accepts the charge, however he relies upon a set of facts, that if true,
would exculpate the defendant from the actus reus of the defence.
Can the defence of Honest and Reasonable mistake of fact be used, in relation to a mistake of law? -
Answer-No.
Explain the defence of Claim of Right. - Answer-A person is not criminally responsible, as for an offence
relating to property, for an act done or omitted to be done by him with respect to any property in the
exercise of an honest claim of right and without intention to defraud.
what are the three broad categories for statutory defences? - Answer-1. Concept defences
2. Offence specific offences
3. Proof by exception
