Domestic Violence Abuse against Linda by Winston - Essay Example

as established in the case of R v Abdul Hussain, Aboud, Hasan, Naji, Muhssin, Hoshan [1999] CLR 57 it was held that to establish duress as a defense it had to be established that there was imminent peril of death or serious injury. However, as established in the Hoshan case it was held that whilst the period elapsing between the peril and the Defendant act was relevant, it wasn’t determinative. In the case of Linda must further demonstrate that she was forced to act and give a false alibi due to a reasonable fear of injury. Secondly, she must satisfy the objective test that a reasonable person would have responded to the threat in the same or similar manner as she did [R v Graham [1982] 1 WLR 294].

Alternatively, as established in the case of R v Hasan [2005] UKHL voluntary association with criminals known to be violent will prohibit the defence of duress. As such, this may prejudice Linda’s ability to rely on the defense.

b) Richard will not be able to rely on the defense of duress as there is no immediate risk of harm or death. However, he may be able to rely on the defense of necessity, which is again limited in scope (R v Martin [1989] 1 ALL ER 652. If Richard can establish that the alternative of waiting for an ambulance would have resulted in serious harm to his wife then he may be able to rely on the defence of necessity. Again, he would have to satisfy the objective test that a reasonable person would have acted in the same or similar manner [R v Graham [1982] 1 WLR 294].

c) Whilst necessity is not a defense per se, if Sandra can demonstrate that there was a real risk of injury or death (which there was in this case) she will have strong grounds for relying on the defense of necessity ((Re A Minors) Conjoined Twins: Medical Treatment) 4 All ER 961. Sandra will also have to satisfy the objective test. However, if her defense of necessity fails, she will be potentially liable for involuntary manslaughter due to the lack of mens rea for the offense of murder as there must be a fear of death or serious personal injury [Buckoke v GLC [1971]).

d) Edwina is prima facie liable for theft. She appropriated property belonging to Saferburys, was dishonest, and had the intention to permanently deprive ( Section 1(1) Theft Act 1968). Whilst Edwina and her daughter haven’t eaten and the moral justification of the necessity of circumstances is sound, it is highly unlikely that Edwina will be able to rely on necessity as a defense against theft on policy grounds. The courts have rejected arguments of hunger by stating that it would open up floodgate justification defenses in theft prosecutions (Southwark LB v Williams [1971] 2 All ER 175).

e) Because there was an imminent threat of death to Boris’s wife, there are strong grounds for him being able to rely on the defense of duress and necessity (R v Hurley & Murray [1967] VR 526). Boris would also have to satisfy the objective criteria that a reasonable person would have acted in the same or similar manner. However, based on the decision in R v Hasan [2005]UKHL 22 which determined that voluntary association with criminals known to be violent will prohibit the defense of duress, this may negate Boris’s ability to rely on the defense of duress and necessity.

6. The money taken from Amrit is theft as the sum is more than what is owed to him. About the gift from William, the general rule is that a valid gift inter vivos is not theft. However, if deception and honesty were involved in convincing William to make the bequest then it will constitute theft (R v Hinks [2000] 3 WLR 162. The overpayment of salary constitutes theft under section 15A of the Theft Act for dishonestly holding onto money belonging to another. It further constitutes fraud in obtaining a pecuniary advantage by deceit (Fraud Act 2006).

7. Bruce has obtained his job fraudulently. In leaving the restaurant without paying the full bill Bruce is guilty of theft (Theft Act 1968). In failing to pay the taxi fare, Bruce has committed fraud or theft unless he can establish that Alex consented to non-payment (R v Gomez [1992] 3 WLR 1061). In receiving funds and increasing funds under pretenses, Bruce will be liable for fraud and obtaining a pecuniary advantage by deception (Theft Act and Fraud Act).

8. Rape and sexual assault by penetration is penetration without consent (Sexual Offences Act 2003). In this case, D would have the burden of proving that V consented to sexual intercourse. Moreover, under section 73 of the Sexual Offences Act 2003, there is a presumption that a victim does not consent to sexual intercourse if they are deceived into committing the act or the defendant impersonates someone known to the defendant. On this basis, D would potentially be liable for rape or sexual assault by penetration. Read More