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east african online law library

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by temba peter, Apr 7, 2012.

  1. t

    temba peter Member

    Apr 7, 2012
    Joined: Apr 3, 2012
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    A complete defence to murder &the elements of murder[/h]

    The elements for murder are:

    • The victim died;
    • The act or omission of the accused
      caused the death of the victim;
    • The act of the accused was
      without lawful cause or excuse; and
    • The act or omission causing
      death was done by the accused:
    • with the intention to kill or
      do grievous bodily harm to some person;
    • foreseeing that it was
      probable that the death of a person would result from the act or omission;
    • in an attempt by the accused
      or some accomplice with him/her to commit, or during or immediately after
      the commission of by the accused or some accomplice with him/her, a serious
      indictable offence punishable by imprisonment for life or 25 years

    If we can prevent the police proving one of the elements to murder, you must
    be acquitted (found not guilty) of the offence of murder.

    [h=3]If you have an alibi[/h]

    An alibi, if established, is a complete defence to murder, as the crown
    would not be able to prove the second element that it was the act or omission
    of the accused that caused the death.

    Alibi principles

    An alibi is evidence tendered by the accused that is intended to show that
    the accused was somewhere else at the time the offence was committed and
    therefore could not have committed the offence. If the Crown fails to disprove
    the alibi evidence beyond reasonable doubt, the accused will be acquitted.

    If the Crown satisfies the jury beyond reasonable doubt that the alibi
    evidence should be rejected, it does not necessarily mean that the accused must
    be convicted. In order to convict the accused, the jury must be satisfied
    beyond reasonable doubt, upon all of the evidence, that the Crown has made out
    its case against the accused. A jury may find the accused not guilty for an
    unrelated reason.

    Alibi procedure

    The accused must give notice of an alibi. If notice is not given within the
    prescribed period, the accused may only introduce alibi evidence with the
    permission (leave) of the court.


    A key element that the prosecution must prove is that the accused performed
    the acts constituting the offence “voluntarily”, that the acts in question were
    willed bodily movements. Therefore, the accused is not criminally responsible
    for acts committed while in a state of automatism. Examples of states of
    automatism include: sleepwalking, suffering concussion, under anaesthetic,
    suffering from some forms of epilepsy, an uncontrolled act such as sneezing. It
    does not include self-induced intoxication.

    Automatism principles

    It is presumed that the accused’s acts were voluntary. The accused has an
    ‘evidentiary burden’ to show that there is a reasonable possibility that his or
    her acts were not voluntary. The Crown must then prove beyond reasonable doubt
    that the relevant acts were voluntary. If the Crown cannot prove this beyond
    reasonable doubt, the accused will be acquitted.

    This defence does not include the situation where an underlying mental
    illness which is prone to reoccur deprives the accused of the capacity to
    control his or her actions. Such cases may fall within the defence of
    substantial impairment or the defence of mental illness, depending on the cause
    of the accused’s condition at the time of the acts.

    [h=3]Murder under duress[/h]

    The accused will be acquitted where he or she acted because of threats
    (express or implied) of death or really serious injury to himself, herself or
    dependants, and a person of ordinary firmness and strength of will in the accused’s
    position would have yielded to those threats.

    In New South Wales,
    the defence is not available to a principal in the first degree of murder
    (where the accused did the killing). It is available where the accused did not
    do the killing, such as where the accused is charged with being an accessory to
    a murder.


    Necessity may be available where circumstances bear upon the accused, inducing
    him or her to break the law to avoid even more dire consequences.

    The courts have not clearly decided whether the defence of necessity is
    available to the principal in the first degree for murder.

    The leading New South Wales case on the
    defence is R v Rogers,
    which requires the following elements to be shown in order to establish the

    1. Irreparable evil.

    The accused must have acted only in order to avoid certain consequences
    (that is, they were bound to happen and could not otherwise be avoided) which
    would have inflicted death or serious injury (“irreparable evil”) upon
    the accused or others whom he or she was bound to protect.

    2. Imminent peril.

    The accused must honestly believe on reasonable grounds that he or she was
    placed in a situation of imminent peril. Proportion.

    The accused’s acts to avoid the imminent peril must not be out of proportion
    to the peril being avoided. An instructive question to ask is whether a
    reasonable person in the accused’s position would have considered what he did
    necessary to avoid the peril? Were there reasonable alternatives open to the
    accused that did not involve breaking the law, such as bringing the threat to
    the attention of an authority or seeking protection?


    Self-defence may be a complete defence, leading to an acquittal, or a
    partial defence, leading to a verdict of manslaughter. If the accused carried
    out the conduct constituting the offence in self-defence, then the accused is
    not criminally responsible for the offence.


    Section 418 of the Crimes Act(UK) outlines where the defence is available and
    the requisite elements were discussed in the case of R v Katarzynski

    • 1. Subjective element
    • The accused acts in
      self-defence if and only if there is a reasonable possibility that the
      accused genuinely believed that his or her conduct was necessary:
    • (a) to defend him/herself or
      another person, or
    • (b) to prevent or terminate
      the unlawful deprivation of his/her/another’s liberty, or
    • (c) to protect property from
      unlawful taking, destruction, damage or interference, or
    • (d) to prevent criminal
      trespass to any land or premises or to remove a person committing any such
      criminal trespass.
    • In considering whether the
      accused held a genuine belief, all of the accused’s personal
      characteristics at the time of the conduct in question will be considered.
    • Importantly, s 420 of the
      Crimes Act states that (c) and (d) above cannot be used to establish the
      defence where the accused uses force that involves the intentional or
      reckless infliction of death.
    • 2. Objective element
    • It must be determined whether
      the accused’s response was reasonable in the circumstances as he or she
      perceived them. In this aspect, the jury decides what matters it should
      take into account, but it may at least have regard to the accused’s age,
      gender and health.
    • Where the accused’s conduct
      involved the infliction of death and was not a reasonable response in the
      circumstances but the accused believed the conduct necessary to defend
      himself, herself or another person and/or to prevent the unlawful
      deprivation of his, her or another’s liberty, the accused may be found
      guilty of manslaughter.


    The defendant will have an ‘evidentiary burden’ such that once the defence
    is raised, the Crown must prove beyond reasonable doubt that the accused did
    not act in self-defence. To do so, the Crown must show that either:

    • The accused did not genuinely
      believe that it was necessary to act as he or she did in his or her own
      defence; or
    • What the accused did was not
      a reasonable response to the danger, as he or she perceived it to be.


    The defence of mental illness is provided for under the Mental Health
    (Forensic Provisions) Act 1990(uk) If the accused or prosecution shows that at the
    time of the offence he or she was mentally ill, the law will not hold them
    criminally liable. The jury will return a special verdict of “not guilty by
    reason of mental illness”.


    It is presumed that the accused was of sound mind when he or she committed
    the offence in question. The accused must prove on the balance of probabilities
    (more probable than not) that:

    • 1. At the time of the act,
      the accused was laboring under such a defect of reason that he or she
      could not reason with a moderate degree of sense and composure.
    • 2. The defect of reason was
      caused by a “disease of the mind”. There is no legal definition
      of “disease of the mind” but in the case of R v Porter (1936),
      the Court specified that the accused’s mind must have been one of “disease,
      disorder and disturbance
      ” and cannot be caused by mere transitory
      passions, a personality disorder or impulsiveness. The major mental
      illnesses falling within this defence are the psychoses, such as
      schizophrenia and bipolar disease.
    • 3. By reason of a disease of
      the mind, the accused did not know the physical nature and quality of his
      or her act; he or she did not know that what he or she was doing was wrong
      with regard to everyday standards of reasonable people.

    If there is a verdict of “not guilty by reason of mental illness”,
    the court may order that the person be detained in such place and in such
    manner as the court thinks fit until released by due process of law. The person
    may not be released until the court is satisfied on the balance of
    probabilities that the safety of the person or public will not be seriously
    endangered by the person’s release.
  2. Anheuser

    Anheuser JF-Expert Member

    Apr 7, 2012
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    sheria ya wapi hii mjomba?
  3. t

    temba peter Member

    Apr 7, 2012
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    thats the general principle of the law.it is cited in the UK but still is applicable anywhere among the common law jurisdictions
  4. Anheuser

    Anheuser JF-Expert Member

    Apr 8, 2012
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    general principle of what law? There is no such thing! Common Law jurisdictions are not the same