Legitimate Excusatory Duress

Bulsey & Anor v State of Queensland [2015] QCA 187 signified the requirements of legal justifications when conducting unwarranted arrests, and further expresses the importance of the right to personal liberty as it is ‘the most fundamental of the human rights recognised under the common law.’ It was evident to the Judges that at least one officer held reasonable suspicion that “the suspect” had committed an indictable offence, but the lawfulness of the arrest was inevitably questioned as to whether an officer with reasonable suspicion was the arresting officer. The judgements in favour of the appellants heightens the need for officers to use their powers within the ‘confines of the law’ when ‘forcibly arrest[ing] and detaining’ a person as to preserve the right to personal liberty, for once this right is left in the power of any authority, to imprison arbitrarily whomever they suspect, ‘there would soon be an end of all other rights and immunities.’

Words alone, even aggressive ones, can not constitute an assault and must be accompanied by some bodily act or gesture that indicate a present ability to effect a purpose. In R v Secretary it was held that the reference to ‘present ability’ meant an ability, based on known facts as present at the time of the making of the threat, to effect a purpose, and that the threat may be one of future violence, and not an apprehension of immediate violence. In this case, it was Livingstone’s aggressive nature in addition to the knife in his hand that instilled in Blyton an apprehension of a future threat of personal violence which constitutes assault pursuant to s 245 and satisfies the first condition of s

Reasonable people will generally go a long distance to protect their loved-ones. However, most reasonable people would believe that killing someone else in order to protect their loved ones would be immoral and harmful. In the case of R v. Buzizi [2013], a man killed another in a supposed effort to protect his cousin. On an early morning in Montréal, the accused’s cousin and the victim ensued in a brawl. The initial fight was broken up by a third party. A few moments later, the accused, Mr. Buzizi, who saw the initial assault from afar, intervened and pushed the victim. Then, Mr. Buzizi noticed that the victim had an exacto knife, and that his cousin had a serious wound on his neck. For fear that the victim was going to pull out the

After the attack, “the authorities concluded that there was some basis for Linda’s fears” (Riss qtd. in Jung 140), but it was too late. If the proper protection was given to Riss, who’s life was being threatened, she would not have faced the gruesome consequences of her attacker. The result of the crime, as a result of negligence, became the basis for its prevention. Only time could establish Riss ' credibility as a victim, but in said time, the crime had unfolded. A detective stated to Riss that “…she would have to be hurt before the police could do anything for her” (Riss qtd. in Jung 142). This completely contradicts the basic principle of crime prevention, which is a primary fundamental right of the government. If the police had taken Riss’ threats as evidence rather than her attack itself, she would not have been victim to a malicious attack.

False imprisonment is a tort of strict liability due to the fact that there is no requirement as to that the imprisonment be carried in bad faith., Kirby J stated, this is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence of absence of moral wrongdoing on part of the defendant. The defendant might have believed that their actions were of interest, but this is not a defence. False imprisonment is a significant tort that is taken at the highest level of court as it provides a remedy for victims who have been unlawfully detained because it had deprived their personal liberty. Gray J stated that, the torts of false imprisonment is committed when one person directly subjects another to total deprivation of freedom of movement without lawful justification. The onus of proof is that the defendant must prove that the defendant personally, or through the conduct of the persons for whom the defendant is responsible directly participated in the plaintiff’s false imprisonment. It provides a remedy for an individual whose personal liberty has been unlawfully restrained, especially in respects to the government and their power. Providing a remedy for breaches of civil liberties is the most important element as it prevents government and law enforcement agencies to abuse their power. False imprisonment provides many boundaries as it arises social, ethical and doctrine issues. There may be circumstances in

This is seen in R v Holt, R v Bird where even though the defendants withdrew their statements because of fear, the Court upheld their conviction of contempt . Even with section 116 2E of the Criminal Justice Act 2003 (provision for hearsay on fear which allows a person to use a statement as their evidence) , women were still prosecuted. This is seen in R v A where A was charged and convicted of perverting the course of justice by withdrawing her statement against her husband . What this shows is that the rules of evidence did not protect the victims of domestic violence as one can argue that the Criminal Justice Act does not address the shame, emotional abuse and the fear of reputation damage the victims of domestic violence face. However, it can be argued that section 116 2E has its advantages as it makes the defendant who instils violence to plead guilty. Yet, can this be said to be advantageous? If the defendant pleads guilty he/she gets a sentencing discount. One can question the message this sends out to defendants. Also, it can be argued that the provision for hearsay contradicts the rights of the defendant under article 6 (3)(d) of the European Convention on Human Rights which states that there should be examination of witnesses . The introduction of statements being used as evidence makes this requirement difficult. Nevertheless, it can be said that the court must balance

Although there are not victims in this type of crime, there is nevertheless a threat to the public interest in some cases of these crimes. There is therefore a formal legal framework to prevent or prohibit such crimes.

For this reason I agree with the Law Commission’s proposal that a D can plead the defence of duress if they had no realistic opportunity to seek police protection and showed the courage of an ordinary person.

In S.M, the defendant was charged with two counts of voluntary man slaughter, and two counts of aggravated battery. Id. The defendant, a fourteen-year-old boy was outnumbered four to one. Id. The defendant attempted to flee and even attempted shooting a warning shot into the air, but the other boys continued to advance on him. The defendant continued to be pursued even after he began shooting. Id. The court ultimately held that the defendant should not be found guilty of the two counts of voluntary man slaughter nor the two counts of aggravated battery, due to the fact that it could not be said that the juvenile’s belief that he was in immediate danger of death or

Defences for Murder There are only three partial defences for murder; suicide pact, provocation-the loss of self control and reaction must be instantaneous and diminished responsibility. Amongst the three mentioned two are most frequently used, these are provocation and diminished responsibility, and only one full defence, self defence. These defences are used to reduce the sentence charge by the defendant to manslaughter from murder. In the following text I will be examining how men use provocation and diminished responsibility to walk free from murder.

Judges should consider the consequence of the danger and the probability that the threat may actually take place in regards to the speech itself. Other judges disagree with this view and complained that the test made the decision about when speech may be limited a matter of degree and that each case could result in a contradictory decision (Cornell, 2006).

Also “Von Hentig criticised the traditional offender-oriented nature of criminology proposing a new dynamic approach to the study of crime that incorporated clear recognition of the victim’s role in the crime” Victim precipitation has its advantages, as today it can be used as a case of defence where by the defendant can plead man slaughter/self-defence due to the victim provoking the defendant which led to the murder/attack being committed. (Brookman, F2005)

as are persons subjected to coercion or duress to such a degree as to render the

This persuasive precedent was followed in the case of R v Gotts (1992) where a defendant charged with attempted murder tried to use the defence of duress in the Court of Appeal. The ratio decidendi of R v Gotts (1992) then formed its own binding precedent.

Lord Bingham did not agree that the policy arguments established in Hill and subsequently followed in Brooks to be appropriate in the context of Smith. In Smith he attempted to introduce a ‘liability principle’. The principle proposed that where evidence is credible and the threat is specific and imminent, reasonable steps must be taken to assess such a threat and act where necessary. He did not agree that adopting the principle would induce defensive practices, neither did he agree that accepting the principle would detract from the police’s primary functions. The ‘liability principle’ reflected the content of Article 2 European Convention on Human Rights (ECHR), Right to life.