R. v. Makpah,
2015 NUCJ 12:
Defence of Person
[158] The law respecting the
‘defence of person’ defence, whether it be self-defence and/or defence of other
persons, is clear.
[159] The Crown has the onus of
disproving the ‘defence of person’ defence beyond a reasonable doubt. If the
Court is left with a reasonable doubt about whether self-defence or defence of
others is present then the accused is entitled to an acquittal. The burden of
proof in relation to this defence is on the Crown, who must prove beyond a
reasonable doubt that the defence does not apply.
[160] To be clear, in this case the
Crown must disprove, at the criminal standard required, both aspects of the
‘defence of person’ defence. The Crown must disprove the defence of self-defence
and also the defence of defence of another person (or persons).
[161] As a matter of law, if the
Crown fails to disprove either aspect of the ‘defence of person’ then the
accused is entitled to an acquittal.
[162] To put it another way, and in
a more positive way from the Defence perspective, the accused does not need to
establish both aspects of the ‘defence of person’. If the accused establishes
either aspect of the ‘defence of person’, either self-defence, or defence of
another person (or persons), then he is entitled to an acquittal.
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