Making a case burden of Proof



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MAKING A CASE

1. Burden of Proof: Crown must prove BRD elements of offence (AR.MR), and absence of any lawful defence or justification that arises fr evidence. BRD is short of proof to absolute certainty, but stronger than probably guilty (Lifchus). Golden Thread is presumption of innocence (s. 11(d)). Whether C meets burden is Q of Fact (judge’s charge to jury on it Q of Law). Both C & D have evidential burden when they rely on legal rule/defence, must intro sufficient evidence to support it, but on lower standard: enough evidence to put the matter at issue. Whether evidential burden is met is Q of Law// persuasive burden (BRD) usually just on C but in some cases of reverse onus, may be on D. BUT attracts charter scrutiny (s.11(d)) (ex. Holmes house breaking tools); Re Boyle v The Queen offence infringed s11(d) b/c reverse onus (vehicle obtained unlawful means) prescribed conviction; see s1

2. Actus Reus: AR = the prohibited conduct: Act /omission of a legal duty that is voluntary and causes prescribed harm or occurs in prohibited circumstances.

(A) Was it an Act or failure to act?



If omission: Did the accused breach a legal duty outlined in statute or the CL ? (Thornton)

Thorton: Donated blood when knew he had HIV; omission was no disclosure; had MR. Ct said legal duty = CC duty OR CL duty, breach of which creates CC offence// Ssenyonga: didn’t disclose status, gave 3 women HIV; not guilty b/c specific rships, women didn’t rep. “public” (reqt for common nuisance). No SA b/c consent. s. 215: duty to provide necessaries (parent/guardian/spouse/CL partner/charge of incapacitated person) BUT rebuttable with lawful excuse//CASES: see Naglik in MR/Instan: Niece legal/moral duty to aunt b/c rcv’g gain by living w her//Beardsley: No legal duty to lover who dies from morphine overdose b/c she was experienced, voluntary participant and level of rship not sufficient to impose duty (no moral duty like H/W)//Urbanovich: Baby dies/father abused; mother didn’t know; Ought to have knowledge (obj), so criminally negligent b/c of omission—willful & reckless disregard for child withholding info from Dr. Dissent: parents were kids, mom not crim negligent b/c no ev. she knew and no omission b/c took to dr.

Family Services Act s 72(2) duty on persons who believe on reasonable grounds that child is in need of protection (higher burden on professionals (s 72(3) who suspect child is/may be/has suffered/s 43 correction if the force does not exceed what is reasonable in the circumstance.

(B) Was the accused acting voluntarily (automatism – sane  acquittal OR insane  s16) (Rabey)?

(C) Was there factual and legal causation b/w accused’s act and the result/consequence?

Causation = q of fact; has both factual & legal components. Factual causation: did action of accused contribute to harm in technical & physical sense? Legal causation: should we attribute moral resp. for harm? If factual causation has been est’d, legal causation usually follows.



Impaired driving: impairment proven/assume contributed to accident unless innocent explanation (Whyte)

Was there an Intervening cause: Will negate legal causation for original act IF intervening cause is ind. of original act AND not acting in concert (Whyte). BUT not if a direct result of original act (Blaue).

Is Thin skull relevant?: take victim as you find them – not intervening cause (Smithers, Blaue)

3. Mens Rea: “guilty mind”, moral blameworthiness; every crim offence w penal consequences needs MR (SI/ GI), though not stated in CCC. Policy: can’t punish morally innocent (Sault St. Marie), and s.7, level of moral fault must be proportionate to the seriousness / consequences of offence.

Specific Intent offence?(will say in CCC section): MR as focused on a particular consequence. (Aiding/ abetting, Arson, Attempt, Fraud, Murder, Possession stolen property, rcv’g stolen property, Robbery, Theft, Sexual exploit) General Intent Offence? (everything else) MR to commit the immediate act, not to produce specific consequence (Assault, causing BH, of PO, aggravated, indecent, harassment, incest, Mansl, Mischief)  Judge det. Standard (q of law): Subj (knowingly)/ Obj (recklessly, negligently)?

If offence is silent, then classify as true crime, stigma offence or reg. offence: (Sault Ste Marie)

1) If true crime, presumption MR subj (Buzzanga) 2) If stigma offence (subset of true crime, ex. murder/ theft), MR = subj. foreseeability of death, obiter Vaillancourt (affirmed for stigma, Martineau) 3) If NOT true crime (reg. offence, “public interest”), presume SL and obj MR, unless statute requires MR (“willfully, knowingly”) or it clearly est’s AR as only reqt (so AL) (Sault Ste Marie), then no due diligence defense avail (Ref re BC MVA) (Constitutionally valid to have AL for fine offence, even when prov offences say imprisonment possible for default on payment, Pontes). Abs. Liability  Strict Liability  Full MR (true crime) Absolute Liability: C proves AR only, “no relevant mental element”/MR (Sault St Marie)//Strict Liability: defence of due diligence/reasonable mistake of fact (neg. as MR constitutional, as per Wholesale Travel) Is it a predicate offence? If so, the MR relates to the AR elements of the predicate offence (unlawful act manslMR/AR for unlawful act, obj. foresight of consequence; assault causing bodily harmMR/AR for assault, Godin) Included Offence?: RobberyMR/AR theft +MR/AR assault, Sorrell)// CASES: Ping Yuen: store owner guilty under AL for having “near beer” higher % than bottle said// Sault Ste. Marie (Pre-Charter): city charged w civil offence, disposing garbage polluted water. “Public welfare offence” not intended to punish for intentions, but to prevent bad social consequences; presumption = public welfare offences fall under SL// BC MVA: Statute creates AL for driving w/ suspended license, w or w/out knowledge (defence due diligence not avail)via s7, cannot imprison w/out full MR//Wholesale Travel: sold vacation, lied in ad saying wholesale price; charge w/ misleading ads; hybrid could lead to prison. Legis created SL but allow D of due diligence in Leg. Reverse onus upheld 5-4//Martineau: robbed trailer w bb gun, friend had rifle, shot 2 ppl during robbery; DeSousa: threw bottle; obj test for foreseeable harm (act objectively dangerous, RP realize created risk of bodily harm)

SUBJ. FORMS OF MENS REA: includes #2 above, stigma offence MR (Vaillancourt; Martineau)

Wilful Ignorance: Accused suspects certain facts exist or certain consequences may ensue, but deliberately refuses to consider or acknowledge risksubj. (Sansregret)//CASES: Blondin: Drugs in his scuba tank coming from Japan/ w drugs draw inference that he was wilfully blind.

Recklessness: Accused recognizes existing circumstance or aware that conduct creates risk but proceeds with this knowledge (ex. s.229(a)(ii) murder when he knows conduct likely to cause death/s 433 arson) / test subj (Naldzil). Proof of recklessness can be sufficient for conviction of offence w intention or knowledge as it’s MR (Sault Ste Marie) BUT some offences cannot extend MR like this Buzzanga

Intention or knowledge: Desired/sought proscribed harm (direct intent) or desired/sought some other end, but was certain/virtually certain that the proscribed harm would result (indirect intent) (Hibbert)

(229 (a)(i) murder requires proof that the accused meant to cause death to another)= Subj. Test Vaillancourt: Accused commits robbery w knife/friend has gun, thought was unloaded, kills someone; Lamer says AL unconstitutional when crim liability, cannot sub. intent to rob + intent to use gun for foreseeability of death. Need subj. foreseeability of death./s.230 struck down by Martineau MR murder must be “subj. foresight of death”



OBJ. FORMS OF MENS REA:

Criminal Negligence s 219 Marked & substantial departure fr conduct of RP which shows wanton & reckless disregard for the lives/safety of others (Tutton; Waite)

Penal Negligence: marked departure fr conduct of RP (regardless of whether there was risk to safety of others) (Hundal). Obj standard, not considering personal characteristics of the accused but applying context of the surrounding incident (Hundal, Crieghton). SCC affirmed the modified obj. test culpabilities measured against knowledge and conduct of a reasonably prudent person in those circumstances for penal negligence offences like driving offences (Beatty). UNLESS incapable of appreciating the nature of the risk (Beatty, Naglik) //CASES: Beatty: truck crossed over line when there was curve in road not enough evidence to show marked departure from what a normal driver would do//Browne: 2 drug dealers, one swallows drugs to evade police, gets sick, friend says he’ll call 911 but calls cab: acquitted because no legal duty to care, no proof 911 would save her (doesn’t fall under s217)//Naglik: 216(2)(a)(ii) failure to provide necessities of life- C must prove that the circumstances gave rise to a duty were obj. foreseeable to the reasonable prudent parent AND unless they lacked the capacity to appreciate the risk -- other personal characteristics like education, youth, and inexperience are not relevant//Hundal: Dangerous Driving s249(1),(4) objectively looking at the circumstance facing accused and whether they acted in marked departure from the standard of care of a reasonable driver but a person would be acquitted by a modified obj. test if perhaps they had a sudden onset of illness, or a reaction to medication //Gosset, Durham, Finlay: Careless storage of a firearm under s 86(2) carelessness is tested objectively but to amount to crim. offence need to be a marked departure from the standard of care of the RP

DEFENCES

Defenses established thru CL or CC//Argue only if C proves AR + MR of offence BRD/Diff. categories of defenses: 1) Negative Defenses (negates MR and/or AR) ie Mistake of Fact, Intoxication, Automatism


2) Positive/Affirmative Defenses (doesn’t negate MR/AR)  excuses or justifies

Positive Defenses: Excuses: never renders conduct lawful, provide some reason in law and policy not to punish, or not to punish as severely = Concessions to human frailty (Duress, Provocation, Mistake of Law (if officially induced), Intoxication, Automatism, Mental Disorder)  Can still be party to excused action

Justifications: conduct lawful (Self-D, D of prop, necessity, enforcing law)  Cannot be party to justified act

How to raise a defense; Accused must est to judge that air of reality to defence (Osolin, def’d in s 273.2) Accused must show “there some evidence (evidentiary burden) on the basis of which a properly instructed jury acting reasonably could acquit” (Cinous). Once AoR est’d, burden on C to disprove D BRD. Exceptions where onus reversed (Osolin): Mental Dis., Automatism Daviault Intoxication, Mistake of law

CONSENT: may be framed as defence: Jobidon// Non-consent may be element of offence, such as assault, or may be CL element of crime (Lemieux, B&E)// Cuerrier fraud vitiates consent if 3 things proven by C p572

CONSENT AND ASSAULT:Assault= s 265(1) directly/indirectly, intentionally applies force, or threatens or attempts to apply force, to another w/out consent. A person also commits assault when accosts someone while openly wearing a weapon (or an imitation weapon)/s265(2) applies to all forms of assault, s 265(3) consent can be a D to assault if not given b/c of force (or threat of) to complainant or other person, fraud, or exercise of authority. Jobidon A person cannot consent to death (s 14), or to violent force that is unreasonable conduct in circumstances//Even if consent to a fight, cannot consent to other person using excessive force to kill you// s 265 vitiates consent b/w adults intentionally to apply force causing serious hurt or non-trivial bodily harm// CAN consent to intentional applications of force which cause only minor hurt or trivial bodily harm// s 265(4) if consent has been raised, and would be effective, the judge must ask the jury to consider whether the accused had reasonable grounds for an honest belief in consent. D only needs to raise reasonable doubt w consent by discharging evidentiary burden, ok w Charter (Osolin). SPORTING EVENTS: You CAN freely give consent to participate in rough sporting activities, so long as the intentional applications of force are w/in customary norms and rules of the game//sporting events have social value some intentionally applied force will fall within the rules of the game and will be a part of “implied consent”//Look at whether express/implied consent to the type of contact; whether contact was of nature that in any event no true consent could be given Cey, Leclerc//s. 267(2) bodily harm= any hurt or injury to complainant that interferes with the health/comfort of complainant and is more than merely transient or trifling in nature.

Jobidon: Manslaughter fist fight in parking lot, intended to cause harm but thought fair fight.

Cey: Hockey game injury, charged with s 245.1(1)(b).

Leclerc: aggravated assault in hockey game, no body contact allowed.

McSorely: NHL goon sent onto ice to start fight at end of game, hit opponent in head caused seizure/concussion / Court heard evidence about ‘unwritten rules’ of NHL and got conditional 18

CORRECTION: S. 43 teachers, parents, standing in for parent can correct pupil/child under their care by force, if purpose of force is correcting child//If child cannot be corrected, force is invalid (Ogg-Moss)/ Dependency alone does not make person a child/“standing in place of parent” look for assumed parental duties (financial) that go with authority and were the rights delegated by natural parent. Pupil is narrower than student (b/c implies youth), and school teach narrower than teacher b/c implies academic direction. “Force by way of correction” cannot be in anger/punishment must serve corrective function/must be reasonable amount of force under the circumstances Ogg-Moss. Assessing reasonable force court looks at (obj’y and subj’y) nature of what is being corrected, age/character of child, gravity of punishment, circumstances, emotions, seriousness of injuries; cannot apply force with intent to injure child / Violent past of parent only plays role in sentencing.

Dupperon Badly behaved kid gets 10 whippings from step-dad

CFCYL challenged s.43 violates security of the person s.7 (security), s.15 (equality), s.12 (cruel). Violates s.7 but does not violate PFJ: 1) Adequate procedural safeguards - child’s best interest are protected by courts; 2) Not PFJ that laws affecting child must be in best interest; 3) s.43 not too vague b/c creates acceptable risk zone; 4) Not discrimination against child b/c each has different needs and treatment needs to tailor to each (keeps family sane)/does not infringe on child’s dignity / Not cruel/unusual bc requires reasonable force.

Binne (partial dissent): Would rather say it does violate equality (s.15) because it is an assault, but justify it under s.1as “reasonable in the circumstances” for parents/Arbour (dissent): Strike down unconstitutionally vague, offends s.7 and s.15, and rather use necessity or de minimis to protect parents who spank their children (dissent): Strike down b/c discriminate equality (s.15) and s.1 cannot justify it because not minimally impairing:

DE MINIMIS: Law not concerned w trivial. Value judgment; Complaint should have been resolved w/out taking up court time/minor irritant should have brushed off. Don’t use de min in domestic assault Stewart. de minimis when no other defenses/no harm/consequence of conviction severe. (Matsouba)

LePage: xmas tree seller pushes past fire chief - chrg assault (doesn’t require harm) the real problem was a ticket for the trees: Court says there is AR, MR for assault, but law does not deal with trifles—de minimis.

Matsouba: Teacher touched student, girl lacked cred. Judge: not sexualized, no harm and de minimis.

MISTAKE OF FACT: mistake to essential component of AR; negates MR/Mistake about the existence of certain facts/For subjective MR crime must be honest (not intentional, reckless, wilfully blind), but does NOT have to be reasonable. For Objective MR crime, must be honest and reasonable s.265(4) (assault context) Judge decides whether there is enough evidence for mistaken belief, and if there is, he must instruct the jury to consider the reasonableness of the claim.

Mistake of Fact & SA: changed s.273.2: mistaken belief in consent: a) cannot arise fr intoxication, b) recklessness/wilful blindness, c) accused must take reasonable steps, in circ, to ascertain complainant consenting

Pappajohn: Can only put mistaken belief in consent defence to the jury if the claim is grounded in air of reality/ Need more than testimony of accused/ If stories are diametrically opposite cannot be a mistaken belief so cannot put to jury; either is or isn’t consent. MR for rape = intention or recklessness for all elements of the crime, including absence of consent (rape gets same MR as other crimes) / subj standard (as long as honestly held, need not be based on reasonable grounds – *overruled by new s 273.2(b): b/c already requires air of reality, crim law req’s moral culpability so should be concerned with accused’s’ state of mind, unfair to convict if woman really did lead him on/ Juries will still decide based on reasonableness anyways b/c they assess credibility of claim// Sansregret: ex-bf ties her up and threatens to kill her, so she has sex w/ him and says they will get back together; Ct: wilfully blind b/c this happened once before, so he did have knowledge she wasn’t sincere// Seaboyer: Strikes down 1982 rape shield provisions saying s.276 infringes s.11(d) & s.7 (denies right to fair defence and could be imprisoned)/ Not saved by s.1 b/c excludes probative evidence and right to fair trial to protect reputation of complainant/ Applicable principles: not admissible solely to infer she was (1) more likely to have consented or (2) more likely to have lied (“twin myths”), must weigh probative value vs. unfair prejudice, judge must decide in voir dire, and then warn jury not to infer twin myths

LHD (Dissent): s.276 and s.277 do not infringe s.7 & 11(d) b/c this only considers the narrow constitutional definition of trial fairness, but allowing the evidence would systematically exclude considerations of the harm done by the evidence to the fairness of the victim/ SA law v prone to stereotyping and myths (sexual reputation, knowing the D, reporting rape, emotions, spiteful, false claims, stereotype of the rapist) so letting judge det relevance will only perpetuate the myths because of their subj experiences (& bias)/ Broader context shows that the trial is just the final stage of the myth (reporting, police work, etc)/ Harm done to victim outweighs trial fairness///Code before Seaboyer: blanket exclusion on sex history unless: rebuts an inference of the complainant’s sexual history; establishes an actual identity of assailant; evidence of sexual activity that occurs at the same occasion and relates to consent//Code after Seaboyer: s.276(1): Not admissible for purposes of merely showing the complainant is more likely to have consented or is less worthy of belief s.276(2): Evidence admissible if significant probative value that is not substantially outweighed by danger of prejudice, and it must be relevant to the issue at trial and a specific instance (no general character)

s.276(3): Factors judge must weigh to determine balance: fair trial, encourage reporting, will evidence help justice, discrimination and bias in fact-finding and jury, personal dignity and privacy, benefit of law, etc

Osolin: Can they use self-blaming statements to her therapist? Cory: Whether the evidence put forward is such that, if believed, jury properly instructed could acquit/ mistake fact not available when both stories are diametrically opposite/Cross-ex must not be focused on rape myths; only delve into woman’s lifestyle in rare cases where woman is fraudulent/ LHD: No air of reality b/c of victim’s trauma/terror/ripped underwear/ bruises/ McL: Cannot argue consent & also mistaken belief in consent/ Can satisfy air of reality test with diametrically opposite statements, but not here/ Sop: Agree w Cory’s general test, but only require “some evidence” for jury to acquit/ Only need credible narrative/ Can use mistake fact w diametrically opposed stories

s.273.l: Consent = voluntary agreement of complainant to engage in sexual activity / No consent when: consent is expressed by another person; incapable of consenting; consent induced by abuse of trust, power, authority; lack of consent expressed by words or conduct; consent revoked// Esau: sex w cousin; Majority: Even though accused did not argue mistaken belief in consent, there was an “air of reality” so TJ should put this defence to the jury, but should not put s.273.2 (must take reasonable steps to ascertain consent) because Crown didn’t argue it/ Dissent: TJ should not bring up defence of mistake because accused didn’t argue it, and if he did it would have been defeated by s.273.2// Ewanchuk: rape 17 yr old in trailer at job interview; AR means in her mind she consented / MR means accused thought he had obtained consent, not just that he thought she had consented in her mind / Check s.273.2 (reasonable steps) only after air of reality test been met and defence of mistaken belief has been put to jury/ LHD: Check if accused complied with s.273.2 (reasonable steps) before he can try ‘air of reality’ test for mistaken belief in consent// Darroch: sex w ex-gf; Post-Seaboyer amendments constitutional/ Don’t require accused to testify/ C must still prove all elements of offence/ Exclusion of sex history also protects accused

MISTKE OF LAW: NOT DEFENCE Sec. 19 Code. BUT may be some EXCEPTIONS:

MOL: Goes to MR: where MR requires “knowingly” “without colour of right” BUT not for offences with phrase “without reasonable justification or excused”. CASE Ex. R. v. Howson -- accused tow truck operator acquitted of theft for towing and retaining car on bases he had an affirmative belief that he had a positive right to retain the car until the towing charges had been paid. R. v. Docherty “wilfully refusing or failing to conform” with a probation order, acquitted of breach charge because did know know it was DUI charge for sitting in care and breach requires willful breach.

MOL: Officially induced error: CL exception where accused relied on legal interpretation given by someone in authority charge with administration of the law (but not a lawyer). In Levis City v Tetreault SCC accepted the defence established in Jorgensen: That an error of law or mixed law and fact was made, That the person who committed the act considered the legal consequence of the action, That the advice obtained came from an appropriate official, That the advice was reasonable, That the advice was erroneous and That the person relied on the advice in committing the act. In R. v. Jorgenson porn store, charged for selling obscene material -- section says knowingly without lawful justification or excuse, the term knowingly applied to all element of the actus reus and the accused must know the materials were obscene, this was a mixed law and fact b/c he relied on Ontario approved ratings would not necessarily negate the mens rea but provided an excuse on the basis of “officially induced error” thus no evidence he know so no mens rea.

MOL: Impossibility: physically impossible to ascertain the state of the law. Invoked were law has been unpublished in any form, and the crown has been unable to prove that the accused had actual notice of the law. R. v. Catholique (a new liquor law posted in two placed but was otherwise unpublished in Canada Gazette). Re Unger tried the defence but was published in gazette the month before so impossibility was rejected.

COLOUR OF RIGHT: assert legal justification or excuse and “colour of right” under s 429 of the Code depends on the accused’s subjective honest belief in a state of facts or civil law, which if it existed would negate the MR of an offence First, is there is evidence indicating that the accused believed that he was authorized to do what he did and that that belief was honestly held does not matter whether the belief was reasonable so long as it is honest but can consider reasonableness when deciding whether the accused honestly believed that he had a legal justification or excuse (Watson). Moral conviction alone though honestly held cannot transform illegal actions into legal ones, only the rule of law must prevail (R. v. Drainville). The claim of colour of right is available for accused arguing D of property under s 41 of the code R. v. Born with a Tooth. Generally prop issue.

R. v. Stevenson: burnt down reserve bridge, said colour of right. But court rejected, not honestly held.

Ashini: went on to runway, saying their prop, not trespassing under honest colour of right.

Watson: Environ activist, argued under COR he didn’t think Canadian law applied thought he had right. Court said this is mistake of law, no defence.

INCAPACITY: Incapacity involves an argument that the accused did not have the capacity to form the MR of the offence. Capacity is also relevant to the question of whether the accused is fit to stand trial or instruct counsel.

INCAPACITY /AGE: S13 the age of criminal responsibility is 12 years old. Youth Criminal Justice Act deals with criminal responsibility of young ppl 12 -18 yrs at time of offence (federal offences, including the criminal code but NOT for provincial offences). Desginates Youth Court. Crown has onus of persuading the judge that a youth requires an adult sentence (R. v. DB)

INCAPACITY/MENTAL DISORDER: can come into play for Fitness to Stand Trial OR an NCR defence.

(A) FITNESS: The standard for fitness to stand trial is a limited cognitive capacity test, not necessary that the accused be able to act in his own best interest in communicating with counsel (Taylor). Counsel has duty to raise the issue of fitness with the court failure to do so amounts to basis of incompetence and allow appeal (Brigham). s, 672.11/672.12 = court may order assessment of accused mental condition where reasonable grounds to believe such evidence is necessary to determine whether they are unfit to stand trial. The issue may arise at any point in proceedings including prior to determination with respect to interim release. S. 672.22-.33 framework for unfitness determination. BUT s. 675.25(2) at the preliminary inquiry court has a discretion to postpone trial on the issue of fitness until the close of the case for the prosecution. Do not decide if some is fit unless there is reason to put them on trial (Taylor, Brown) at min trial judge should require the C to show that it is in a position to establish that the accused committed the acts alleged.

An accused found unfit to stand trial may or may not be detained ss 672.45-.63 and may be tried on the charges once fit ss 672.33. R. v. Demers SCC declared unconstitutional provisions that governed situations where there was no reasonable prospect of the accused ever becoming fit to stand trial. The new provision s 672.852 permits a court to stay the prosecution where the evidence is clear that the accused is unlikely to become fit, the accused does not present a significant risk to public safety, and a stay is in the interest of the proper admin of justice



R. v. Bain CA held that evidence that the accused did not act in his best interest or failed to act with good judgment was not sufficient to warrant a finding of unfitness

B) NCR: s.16 Defence of mental disorder, requires proof on balance of probs of two elements (1) must have suffered from a mental disorder, and (2) the disorder must have prevented them from appreciating the nature and quality of the act or of knowing that it was wrong. OOmmen s 16(1) embraces not only the intellectual ability to know right from wrong in an abstract sense but also the ability to apply that knowledge in a rational way to the alleged act. A mental disorder is defined in s 2 of the Code as a “disease of the mind” a Q of mixed Fact and Law, whether the accused in fact experienced the condition and whether he or she was prevented from appreciating that the act was wrong is Q of Fact. Psychiatrists may offer opinion, their views do NOT control their legal and factual resolution (Granbois). SCC in Chaulk that the reverse onus is justified under s. 1. The issue can also be raised by C against the wishes of the accused, BUT only where the accused raises evidence of mental impairment that the judge finds puts the accused’s mental capacity at issue and capacity is only considered once elements of crime are proven (Swain). BUT court in David clarified it is preferable for jury to be told to consider the s 16 D only if they are satisfied that the accused committed the AR, they should consider mental disorder defence before attempting to determine whether the accused possessed the MR since logically the accused mental capacity will be a condition precedent to resolving the MR issue. ONCE NCR New legislative regime:
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