Part 9 - Defences Flashcards
(13 cards)
Owens v HM Advocate
Thought he had knife.
Error must be genuine and reasonable and effect mens rea.
Murderer said he killed the victim yes, but only because he thought he was threatening him with a knife. Realised afterwards that he did not have a knife. Judge said the jury needed to determine whether he really thought that. An appeal said the jury had been misled by the judge and Owens’ conviction was quashed. Have to put yourself in the position of the accused at the time and determine whether he genuinely thought there was a knife and that was a reasonable assumption.
Stewart v Nisbet
Tape.
Error as to consent.
Man and woman had banter relationship. The man put tape around the woman’s mouth, thinking she would find it funny. She did not and reported the assault. He genuinely thought she’d find it funny but he still didn’t have consent so was still assault.
Brennan v HM Advocate
Pink Floyd.
Voluntary intoxication is no defence.
Argument about aesthetic merits of Pink Floyd album. Brennan had drank 20-25 pints, sherry and taken LSD. He killed his father and was charged with murder by stabbing him repeatedly. Argued ‘amount of alcohol made me insane’ and he lacked the mens rea. The amount of alcohol consumed should have put him in a coma or killed him. Court said he had no defence as he was wickedly reckless in continuing to drink.
Ross v HM Advocate
Spiked at party.
Automatism is recognised defence.
Charged with attempted murder and aggravated assault of 9 people at party. Alleged his drink was spiked with LSD and temazepam by 3rd party. He had no knowledge of this. This changed the law to say you could have complete defence of automatism, subject to certain conditions. Mr Ross’ drink was spiked by someone else without consent so did not overrule Brennan.
Thomson v HM Advocate
Armed robbery.
Leading case on coercion.
Accused guilty of armed robbery. He drove the getaway van. Admitted to driving van but argued that he should not be found guilty as he was coerced by the rest of gang as they threatened him with a gun and injured his hand. Judge left determination to jury who convicted him and found him guilty of armed robbery.
R v Dudley and Stephens
Adrift on boat. Turnips and cannibalism
Not a defence to murder?
Yacht sank at sea so were adrift on an open boat. Lasted 20 days on a tin of turnips. Dudley and Stephens were so hungry that they decided to kill the cabin boy Richard Parker (Life of Pi). They were then rescued by another boat. Not a defence.
Moss v Howdle
Friend heart attack.
Danger of death or great bodily harm.
Was speeding on the motorway at over 100 mph after his friend told him he was having a heart attack. Turns out he wasn’t so was an error. This conduct wasn’t a necessity either as there had to be a danger of death or great bodily injury. Must be the lesser of 2 evils and if a 3rd alternative is available you are expected to use it.
HM Advocate v Anderson
Group of youths.
Necessity in a murder case.
Was attacked by a group of youths and was trying to escape. They were banging on the car and the only way he could drive was where another who wasn’t attacking the car was standing. He ran them over, killing them. He was acquitted.
HM Advocate v Doherty
Retaliation in eye.
Terms of self-defence.
Mat hit another with hammer. He retaliated by stabbing him in the eye. This was culpable homicide. However, there was a flight of stairs behind him - should he have run down them?
Fenning v HM Advocate
Reaction to affair.
No cruel excess of violence.
Murdered man by hitting him over the head repeatedly with air rifle and stone. Peterson said he knew Fenning was having an affair with his wife and had threatened to ‘do him’ and his wife. Did Fenning use a cruel excess of violence in response to this threat? Jury said yes and chose to convict.
Thomson v HM Advocate
Bankruptcy caused by business partner.
Immediate retaliation.
Evidence of bankruptcy caused by business partner. He confronted him and he responded by putting his hand on his shoulder and asked where he was going. He was taunting and laughing at him. This was all verbal though so was not adequate for provocation in murder.
Gillon v HM Advocate
Struck victim with spade.
Different test if not sexual infidelity.
Accused of murder after striking victim with spade. Was obvious that he did it but was it murder or culpable homicide? Provocation by violence. Where provocation is not sexual infidelity, the test of reasonable proximity still applies.
Donnelly v HM Advocate
Accused’s friend was assaulted.
Where the accused responded to an attack on a third party.
Accused said seeing friend being assaulted made him so angry. Provocation did not apply as there wasn’t evidence of him being provoked and that causing his actions.
