Defence

Defence

A. Consent

Generally, victim’s consent to the act in question is a defence to assault and battery. However, However, consent does not constitute a defence if the victim is seriously injured unless the activity falls within recognized exceptions, including sports or medical procedures.

Where the defendant properly raises consent as a defence, it is for the prosecution to prove the absence of consent.

If the defendant honestly—but mistakenly—believed that the victim had consented to the the act in question, then they cannot be guilty because the necessary mental element is missing. Courts assess whether this mistaken belief was truly held, even if it seems unreasonable from an objective standpoint. However, if the belief was highly unreasonable, it might indicate that the belief was not honestly held and should be rejected.

B. Self-defence and defence of persons or property

A person charged with common assault may claim a defence if the act was committed in self-defence, defence of another person, or defence of property, provided the force used was proportionate and necessary.

The proportionality and necessity of the force used are evaluated based on the defendant’s genuine belief about the factual circumstances. Even if a defendant holds a mistaken belief about the factual circumstances when viewed objectively, he is entitled to use force that is reasonable in the situation as he genuinely perceives it. In other words, a person cannot be guilty if they used no more force than what they genuinely believed was necessary, even if that force seems excessive when viewed objectively. The legal test is whether the force used matched the level of risk the defendant believed they were facing.

While the defendant is not required to show an explicit reluctance to engage in conflict, such reluctance strongly supports a claim of self-defence.

Retaliatory or vengeful acts do not constitute a valid defence. However, when under attack, the defendant is not limited to merely deflecting blows and may preemptively strike to protect themselves.

The defence ceases to apply once the threat has ended. 

If evidence raises the possibility of self-defence, the prosecution bears the burden of disproving it beyond a reasonable doubt.