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Oral practice (Scenario: (Ross appeals against conviction on both counts…
Oral practice
Scenario:
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The trial judge erred in ruling that the defence of loss of control was not available to Ross, maintaining that his belief of sexual infidelity was not the trigger but merely part of the circumstances.
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Defence:
first appeal
Sexual infidelity can not be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there exist other qualifying triggers.
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Where other factors count as a qualifying trigger, sexual infidelity may be taken into account in assessing whether things done or said amounted to circumstance of an extremely grave character and gave D a justifiable sense of being wronged under s.55(4)
Sexual infidelity may be taken into account in the third component of the defence in examining the defendant’s circumstances under s.54(1)(c).
On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
Ross answers the door and David brushes past to check Rebekah, who runs to him, crying. David puts his arms around her. Ross is infuriated. He accuses Rebekah and David of having an affair. Rebekah screams ‘He’s more of a man than you’ll ever be and he doesn’t have an awful drinking problem!’ while David soothes her. Ross sees red and lunges at David, pushing him towards the wall. David’s head strikes against the marble fire place and he dies instantly. Rebekah screams.
The trigger was seeing david soothe her along with rebekah screaming a remark,
(c)a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
According to the basic principle of criminal law, an act does not make a man guilty unless his mind is guilty, too. In order to be convicted of murder, the act which caused death must have been done with the intention to cause death or grievous bodily harm (G.B.H). There must be a coincidence of the actus reus and the mens rea. This was highlighted in the case of The Crown v Le Brun, where the defendant was found not guilty of murder due to there being a lack a coincidence.
Ross did not have a guilty mind and did not intend to murder David when he pushed david towards the wall
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