6. Defences Involving State of Mind

Question 1

Insanity - what section covers this?

Answer 1

Section 23

Question 2

What does section 23(1) say about insanity?

Answer 2

It says every person shall be presumed as sane at the time of doing or omitting any act until the contrary.

Question 3

What does Section 23 subsection 2 say?

Answer 3

No person shall be convicted of an offence BY reason of an act done or omitted by him when LABOURING under natural IMBECILITY or DISEASE of the mind to such an extent as render him incapable:

a) of understanding the nature of QUALITY of the act or omission OR
b) of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

Question 4

What does it say in Section 23 subsection 3?

Answer 4

It says insanity before and after the offence and insane delusions though PARTIAL may be evidence of the offender at the time which may render him irresponsible for the act or omission.

Question 5

Which party raises the issue of insanity?

Answer 5

It is the defence’s role to do so. However if they do not raise the issue and the defendant is convicted the Judge may still commit the defendant under the Mental Health Act as a sentence.

Question 6

Where the evidence is strong for insanity, what does the Judge have to do under section 20(4)?

Answer 6

The judge has to direct the jury to section 23 of CA16 which is a defence of insanity. Judge must do this even if the defence does not put forward the issue of insanity.

Question 7

What happens if the Defence counsel cannot prove the defendant is insane?

Answer 7

If defence cannot however the jury think the defendant is more likely then he is entitled to be acquitted.

Question 8

What was found in R v Cottle?

Answer 8

As to the degree of proof, it is SUFFICIENT if the plea is established to the satisfaction of the jury on a PREPONDERANCE(importance or quality) of probabilities without necessarily excluding all reasonable DOUBT.

Question 9

Does the Defendant have to prove insanity beyond reasonable doubt?

Answer 9

No, just on the balance of probability.

Question 10

Is insanity a question of?

Answer 10

It is a question of law, not of a medical one. Medical evidence may be used by Crown or Defence.

Question 11

What was found in R v Clark?

Answer 11

The decision as to an accused insanity is a decision done by the jury and a verdict inconsistent with medical evidence is not necessarily unreasonable. But where unchallenged medical evidence is supported by the surrounding facts a jury’s verdict must be founded on that evidence which in this case shows that the accused did not and had been unable to know that his act was morally wrong.

Question 12

What is the Mc Naghten’s Test?

Answer 12

It is used to establish if a defendant is insane or not. It is based on a person’s ability to think rationally so that if a person is insane they were acting under such a defect of reason from a disease mind that they did not know:

• the nature and quality of their actions OR
• that what they were doing was WRONG.

Question 13

Physical Damage not necessary what is an example of this?

Answer 13

Not necessary to have physical damage to the brain or other physical organ, the law concerns the mind. memory, understanding- whether short term, temporary, curable or incurable.

In R v Cottle the Court accepted epilepsy, although physical could amount to a DISEASE of the mind.

Question 14

Temporary mental disorder NOT INCLUDED give an example of this?

Answer 14

Disease of mind does NOT INCLUDE a temporary mental disorder caused by some external factor such as a blow to the head, the absorption of drugs, alcohol or an anaesthetic or hypnotism

Question 15

In relation to the disease of the mind, who is it a question for?

Answer 15

It is a question of law for the judge to decide on. It is not a medical question.

Question 16

What defined in R v Codere?

Answer 16

The nature and quality of the act MEANS the physical character of the act. The phrase does not involve any consideration of the accused’s moral perception nor his knowledge of the moral quality of the ACT. Thus a person who is so deluded that he cuts a woman’s throat believing that he is cutting a loaf of bread would not know the nature and quality of his act.

Question 17

Define Automatism?

Answer 17

A state of total blackout during which a person is not conscious of their actions and not in control of them.

Question 18

Action without conscious volition, explain what R v Cottle finds about this?

Answer 18

Doing something without knowledge of it and without memory afterwards of having done it
- a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements.

Question 19

An act which is done by the muscles without any control by the mind, what is an example of this?

Answer 19

In Bratty, the Court found this to be such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of that he is doing, such as an act done whilst suffering from CONCUSSION or whilst SLEEPWALKING.

Question 20

How does Automatism affect culpability?

Answer 20

Actions performed in a state of automatism are involuntary and the common law rule is that there is no criminal liability for such conduct.

Question 21

Other examples of Auotmatism other than Sleepwalking or Concussion are?

Answer 21

Medical conditions such as:

• brain tumor
• epilepsy
• arteriosclerosis (temporary unconsciousness by interfering with the supply of blood to the brain)
  OR by consumption of alcohol or drugs.
• consumption of alcohol OR drugs

Question 22

Automatism as a result of alcohol or drug intake?

Answer 22

Court is reluctant to accept voluntary intake as involuntary actions or the offender lacked intention.

Question 23

What does the Court say about alcohol that results as automatism?

Answer 23

It must have cogent evidence to support it and it is on rare cases that it will be accepted.

Question 24

What are the two types of Automatism?

Answer 24

• Sane Automatism - action: the result of somnambulism (sleepwalking) a blow to the head or the effects of drugs.
• Insane Automatism - action: the result of a mental disease.

BOTH forms of automatism involve action without conscious volition.

Question 25

How can automatism be treated as insanity?

Answer 25

Certain types of Automatism are treated by law as cases of insanity, as formulated in section 23 applies.

Whether or not the cases of automatism are treated as such depends on the presence or absence of disease of mind.

Question 26

Can automatism lead to insanity, if so what happens?

Answer 26

If a Automatism has been raised alone then the question should be asked if it is permissible for insanity to be found as a result of raising Auotmatism.

The Judge may act when it appears in evidence that the defendant was insane. (section 20 CP Act)

Question 27

Defence on the balance of probabilities, can a person claim automatism if they are intoxicated?

Answer 27

If the defence can prove that the excess alcohol is the fault of automatism on the balance of probabilities.

Question 28

Criminal intent, what are the two followings steps;

• No intent required?
• Intent required?

Answer 28

• Driving with excess breath alcohol content. Therefore for a defence to succeed on this charge a person must prove a total absence of fault. in other words, the person drove without conscious appreciation of the fact of driving OR of the fact of intoxication.
• Any offence that has intent as an element of the offence. An example is assault which requires intent to apply force to another another person.

Question 29

Application of automatism in NZ Courts, in summary what is it?

Answer 29

NZ has adopted the principle of self intoxication can lead to a defence of automatism. If the evidence is sufficiently strong to support the defence.

NZ takes a middle course allowing a defence of automatism arising out of taking alcohol and drugs to offences of basic intent only. They are likely to disallow defence where the state of mind is obviously self-induced the person is blameworthy and the consequences could have been expected.

Question 30

INTOXICATION

What is the general rule around INTOXICATION being a defence?

Answer 30

• Where intoxication causes a disease of mind so as to bring section 23 (insanity) CA 61 into effect.
• If the intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence.
• where the intoxication causes a state of automatism (complete acquittal)

Question 31

R v Kamipeli found?

Answer 31

For intoxication to succeed as a defence, a reasonable doubt just needs to be raised about the defendant’s required state of mind at the time of the offence.

Question 32

Is intoxication available as a defence to any crime requiring intent?

Answer 32

Yes in NZ it does. For an offence that does not require intent, it is called a strict liability then the defendant can escape liability to prove a total absence of fault.

Question 33

What is dutch courage and can it be accepted under the defence of intoxication?

Answer 33

Ductch courage is when a person has formed the intent prior to being intoxicated then commits it while being intoxicated as a method. This wont be accepted as a defence of intoxication or automatism

Question 34

Defence to establish lack of intent, what does counsel have to prove?

Answer 34

Need to prove that while intoxicated there was no intent for requisite intent to carry out the offence.

Question 35

Ignorance of Law, will intoxication establish ignorance?

Answer 35

No it will not.

Question 36

When will a defence of intoxication not succeed?

Answer 36

When an offence of strict liability has been committed. These offences are basic and it does not require an intent.

Question 37

IGNORANCE OF LAW

What does the law say about ignorance?

Answer 37

Under section 24 it says that a claim of ignorance is not an excuse to an offence.