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The Defence of Duress Under The Penal Code

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The Defence of Duress Under The Penal Code

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Self-defences and defence of others or property

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Self-defences and defence of others or property

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Our right to self-defense stems from Section 96 of the Penal Code, which specifies that anything done in self-defense is not considered a crime, which is how we came to believe we might lawfully injure a robber. But we can't just term everything we do "self-defense" to get around the restriction.

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Nothing constitutes an offence done by a person who, at the time of committing it, is incapable of grasping the nature of the act, or that he is doing something that is either unlawful or against the law, because of insanity, according to section 84 of the Penal Code: 84.

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In non-Code offences, the defence of duress is possible. The phrase "offence" in Chapter IV of the Penal Code (the General Exceptions) means a thing punished by the Code or any other legislation now in effect, according to Section 40. a legal offence

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According to section 76 of the Penal Code, the accused must have wrongly thought that he or she was obligated by law to commit the illegal act in order to succeed in the defence of error of law. Having a legal responsibility or obligation to undertake the action complained of is referred to as being "bound by law."

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Automatism, which is classed under Section 84's insanity defence, leads a person to behave out in an involuntary and/or unconscious manner. This is particularly evident when persons claim to have "blacked out" while committing the act.

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Self-defence and defence of others or property

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Self-defence and defence of others or property

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Self-defense is an absolute defence that can be used to defend against violent crimes. The defence of a person or property, the prevention of crime, and the authorised arrest and detention of offenders are all examples of self-defence as a defence.

If a person honestly believes it was necessary to use force and the degree of force used was not excessive under the circumstances as the person saw them, the defence will be applicable. The physical attributes of the defendant may be helpful in assessing what force is acceptable.

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Defenses are a set of circumstances in the realm of criminal law that tend to negate components of a crime (especially the element of intent). In jurisdictions where the accused may be allocated some burden before a tribunal, the designation may be appropriate. In many jurisdictions, however, the prosecution has the whole burden of proof, including proving the absence of certain defences when they are involved. In other words, the lack of these so-called defences is recognised as an element of the offence in many countries. So-called defences may offer partial or complete protection from punishment.

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Even for strict liability offences, insanity is a complete defence. To establish an insanity defence, it must be clearly demonstrated that, at the time of the alleged act, the accused was suffering from such a defect of reason, from a mental disease, that they did not know the nature and quality of the act they were performing, or if they did, they did not know it was wrong. When a defendant claims insanity as a defence, the defendant bears the burden of evidence (on the balance of probability).

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Threats of duress give a full defence to any allegation save murder, attempted murder, or (possibly) treason. The defence arises when the defendant commits the relevant offence with the relevant intent but is induced to act by a threat made by another person, or where the defendant reasonably believes such a threat has been made, to the effect that they or a third person will be harmed unless the defendant commits the offence with which they are charged. The defendant must present evidence to support a duress defence. The prosecution then has the burden of proof to refute the claim.

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To assert the mistake defence is to dispute the mens rea of the specific offence accused. The defence of mistake requires the accused to have made an error regarding the circumstances or implications of an act, so negating any claim of criminal intent. A misunderstanding of the law is usually not a defence, unless the legal state was crucial to the required purpose. The defence of factual error is more generally used.

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An act is done in a state of automatism if it is performed by the body without the involvement of the mind (for example, a spasm or a reflex) or by someone who is unaware of what they are doing. To invoke automatism as a defence, the defendant must have lost all control over their activities, which means they cannot be held accountable for them since their actions do not meet the basic criteria of being voluntary.

The defendant's ability to exercise voluntary control must be completely destroyed. The defence is unavailable if the defendant retains impaired, limited, or partial control.

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Mohamed Yusof Bin Haji Ahmad v. Public Prosecutor

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Mohamed Yusof Bin Haji Ahmad v. Public Prosecutor

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Section 94 of the code to succeed.

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- Appellant is guilty of trafficking 2700grammes of cannabis
- Deemed to be in possession and knowledge of the said drugs
-He admitted that he carried 2 bags containing cannabis to Padang besar.
- He did it under threat from a male, who is Thai national in a hotel in Sadau, Thailand

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- S94: there must be reasonable fear at the very lime, of instant death
-Person who do criminal act from fear of anything other than instant death, do them at their perii, not protected by section 94
-it an offence is completed when all danger of instant death has been removed, the person committing the offence is not protected under section 94
-if the accused on his own accord places himself in a situation by which he becomes a subject to the threats, even if it is a death threat section 94 does not apply
-Appellant had complied with the request to carry the 2 bags to the railway and reached the station, placed the bags on the platform and gone to purchase ticket to leave Padang Besar. He had been carrying the drug for 1 and half hour without making any attempt to seek for help.
-Although the Thai was 20 feet away on the platform when he last saw him, there are people at the public place, and there are officers from whom he can seek for help (there is no reasonable apprehension of death)
-The duress was no longer instant imminent, extreme and persistent.
-The moment he placed the bag and purchase ticket, mission completed under no such duress present or continue.

Conviction confirmed.

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MOHAMED YUSOF BIN HAJI AHMAD v PUBLIC PROSECUTOR

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Major disagreements in the contemporary discussion of general principles of law are over the "two-category" approach to this source and its connection to other sources. In order to disentangle these controversies, this paper argues that the need for international law to be a coherent legal system drives the formation and identification of general principles; as a result, general principles of both categories embody the "implied consent" of States in light of the requirements and conditions of international law. This article argues that the risk of general principles functioning as an easier way for States to create obligations is based on the characteristics of general principles resulting from this "implied assent," which separates them from treaties and custom.