Defenses

Mental defect defenses

no capacity to be held responsible as responsible agent

Excusatory defenses (duress, provocation, sudden fight, exceeding private defense)

It is a crime, but ordinary person would have done the same thing Society approves of As decision

Justificatory defenses (private defense, consent)

Problem of proof defenses (mistake, intoxication) Are these categorizations water-tight?

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Re-cap

Mental defect defenses

Insanity Diminished responsibility (not complete) Automatism

Insane Sane

Re-cap

Why do we require the mental defect (unsoundness, diminished responsibility) to be internal?

Evidentiary purpose Treatment purpose for unsoundness; what about for diminished responsibility?

Nature of mental defect: arguing that the A is not like us, cannot be considered a responsible agent subject to the demands of the criminal law (e.g. different from us due to internal mental defect)

DURESS
A general exception under s 94 of the Penal Code

Duress

Excusatory defenses

concession to ordinary human frailty A faced pressure from coercive circumstances affected As choice (As choice not seen as completely free, not as morally culpable)
coercion from 3rd party individual threat from victim threat from external circumstances

Duress

Private defense

Necessity

Duress

S. 94 Act to which a person is compelled by threats Except murder and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person or any other person will otherwise be the consequence: Provided that the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.
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Exceptions to duress

Murder
Even if faced with threat of instant death, you cannot kill What kind of social responsibility is expected of the individual? Is this realistic? Cf. MPC, Australian code, ICC, English position

Exceptions to duress

Offences against the State punishable with death Penal Code Chapter VI offenses against the State

Waging war against State, attempting/abetting waging war, imagining death of President

Offenses punishable by death under Part III of ISA (s.70 of ISA)

Carrying weapons/consorting with those/attempts to carry weapons in security area

What kind of State-individual relationship is expected of individual

Colin Chan: paramount values of Singapores Constitution State security

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Excuses

Rationale: ordinary person would have broken the law Circumstances circumscribing choice: coercion (duress); interest preservation (private defense); loss of control (provocation) Objectives of criminal punishment Deterrence: ordinary person wont be deterred Retribution: should punish in line with moral culpability criminal law seeks to recognize individual as choosing agent - moral culpability is diminished if opportunity for choice diminished
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Excuses: concern

Easily resorted to Closely circumscribed to ensure that really loss of choice

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Type of harm

Type of threat must be of death

1971 Indian Law Commission proposed include grievous bodily harm permanent privation or impairment of the sight of either eye or the hearing of either ear, or privation or impairment of any organ, member or joint of the body YMC: what about rape, unlawful imprisonment

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Type of harm

Threat of instant death Courts have interpreted this to mean imminent

Imported from common law: expands defense YMC: this is inappropriate departure from the text Ensure that As choice is significantly undermined could this be achieved in any other way? If not instant, could have sought the help of authorities sometimes threat may be not instant but still no chance to seek help
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Why require instant harm?

Object of threat

the threat may be directed at D or any other person

Expanded in 2008 why? Need for a close relationship between D and the person threatened? Hasan (UK case law): any person for whose safety the defendant would reasonably regard himself as responsible

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Reasonably cause apprehension

Reasonably apprehend threat will be carried out what personal characteristics of A are relevant to the concept of reasonableness? Role of reasonableness

evidentiary we want to be sure you are really stressed before we allow you this defence excuse - a concession given to ordinary human weaknesses - at least reach the standards of an ordinary person sober person of reasonable firmness, sharing the same characteristics of the A Age, sex, characteristics affecting gravity of threats YMC : yes, already adopted common law approach in provocation

English common law has adopted subjectivized approach

Should s.94 be interpreted in line with English common law?

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Reasonably cause apprehension

Note that reasonableness in s. 94 is related to the threat being carried out

How do you understand YMC para. 22.25 ? People may generally be expected to commit nonmurder crimes in response to threat of death But question still remains if A reasonably apprehended that threat of instant death will be carried out

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Derrick Gregory

YMC holds: On appeal, D contended that the trial judge was in error in concluding that D did not suffer from a serious personality disorder which caused him to believe that he was compelled by threats to commit the offence charged. As such the defense of duress under s 94 should have succeeded. What is your reading of the case?
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Induced by threat

D must be induced by the threat to commit the offence charged

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Duty to escape

S. 94 doesnt expressly require - duty to escape YMC suggests can read from s. 94 provisos objective or subjective appreciation of opportunity to escape?

YMC: submits should be a reasonable belief Resort to police

Public policy dont allow evaluation YMC: suggests middle position presume police protection effective unless shown otherwise cf. YMC position in private defence arguing for a purely objective evaluation

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Duty to escape

Should have tried to escape

Teo Hee Heng blackmailer not there at time of offence defense rejected cause could have sought help ct didnt expressly refer to wording of s. 94 Chu Tak Fai shared hotel room for 10 days with coercer - could have sought police help YMC: this case relied on common law authorities

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s. 94 provisos

Explanation 1.A person who, of his own accord, or by reason of a threat of being beaten, joins gang-robbers knowing their character, is not entitled to the benefit of this exception on the ground of his having been compelled by his associates to do anything that is an offence by law. Explanation 2.A person seized by gang-robbers, and forced by threat of instant death to do a thing which is an offence by law for example, a smith compelled to take his tools and to force the door of a house for the gang-robbers to enter and plunder it is entitled to the benefit of this exception.

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Physical presence requirement

Courts appear to place a lot of importance on this

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Voluntary association

voluntary association with criminal group

foresight
deter from joining defence will be abused by criminal group leaders by forcing people to comply supported by English cl Caldwell: voluntarily exposes himself to risk but should take into a/c fact when a is forced to join group

Rationale

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Chu Tak Fai

A charged with drug trafficking and pleaded the defense of duress - claimed Ah Meng threatened him and his family with instant death - At the time of the offence, Ah Meng was in Hong Kong - A claimed Ah Meng had assigned the death threat to be carried out by a Caucasian who travelled with A to Malaysia. Held: The Malaysian Court of Appeal ruled that the defense requires:
the threat to have been imminent, extreme and persistent; the threatener to have been physically present at the scene of the crime; and A to have availed himself or herself of a reasonable opportunity to escape.

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Ng Pen Tine [2009] SGHC 230

A indebted to Ah Xiong for getting him out of trouble with another gangster A knew Ah Xiong to be a powerful and influential Malaysian gangster - Ah Xiong threatened would kill accused and family if A refuse to drive his car from Malaysia into Singapore to meet the co-accused threat made one day before crime 3 of Ah Xiongs men had followed him closely in motor vehicles Prosecution argument

Not imminent: threat not made to kill A on the day before or the day he committed crime Not imminent because threat-maker not physically present Should have escaped (e.g. get help from petrol station when refuel, ICA, phone calls) Voluntarily put himself in situation

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Ng Pen Tine [2009] SGHC 230

High Court

Imminence requirement:

imminence allows time lapse between refusal to commit crime and execution of threat

Threat-makers physical presence

not required in fact men were trailing A - threat was still working on As mind

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Ng Pen Tine [2009] SGHC 230

Duty to escape

subjective test As reasonable belief that mattered Believed was powerful gangster Even if escape ineffective to address threat to As life or his familys life in Msia As a general rule, there could be situations where no amount of police protection would be effective to counter the threats levied at the A and As family members. Viewing the facts in their totality, I am of the opinion that the present case was one such instance
forced by circumstances, indebted to Ah Xiong, had tried to avoid threat-maker
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Facts show that it was not voluntary