Tuesday, April 28, 2015

Self Defence in Homicide

 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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