Klarinet Archive - Posting 000125.txt from 2009/02

From: "Matthew Lloyd" <matthew@-----.uk>
Subj: [kl] "Affirmative Defence"
Date: Fri, 06 Feb 2009 16:29:56 -0500

What a strange way of behaving.

Over here, we do this rather differently.

The Crown is required to prove beyond reasonable doubt that the violence was
unlawful. As violence in the furtherance of self defence is (normally)
lawful, then the Crown is required to prove that the violence was NOT self
defence. And it must prove this to the criminal standard - namely beyond
reasonable doubt.

All the defendant has to do is to raise the issue.

Seems a lot fairer to me.

Incidentally, and before someone asks, the only time when self defence is
not lawful is when it goes far beyond the level of violence required in the
circumstances. Such as shooting someone who attacks you with a banana.

Matthew

-----Original Message-----
From: Michael Nichols [mailto:mrn.clarinet@-----.com]
Sent: 06 February 2009 16:51
To: klarinet@-----.org
Subject: Re: [kl] Derivative Works

An example of this in the criminal sphere would be self-defense--that's an
affirmative defense..
Let's say the charge is assault. The prosecution, to make its case, would
have to prove that the defendant intentionally inflicted (or
attempted to inflict) bodily harm on another. If the act of bodily harm was
performed in self-defense, though, the defendant has to raise
this as an affirmative defense, and it is the defendant's burden to prove
that it *was* self-defense. If the prosecution proves
intentional bodily harm, but the defendant doesn't successfully prove that
the act was in self-defense or doesn't assert this defense at
all, the court will have to conclude that it was not in self-defense.
Another way of saying this is that the presumption (that must be
overcome by the defendant) is that the act was not made in self-defense.

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