Defences Flashcards
Discuss the case Forrest &Forrest and outline the case law
In R v Forrest & Forrest two men were charged with having sexual intercourse with a 14 year old girl who had run away from Child Welfare custody. At trial the girl produced her birth certificate and gave evidence herself that she was the person named in the certificate. The men successfully appealed their conviction on the grounds that the Crown had not adequately proved the girl’s age.
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
Define the term ‘justified’ and provide two examples
In relation to any person, ‘justified’ means that the person is not guilty of an offence and is not liable civilly.
Examples include:
Homicide committed in self-defence (s48)
Homicide committed to prevent suicide or commission of an offence which would be likely to cause immediate and serious injury to the person or property of anyone (s41)
Outline the culpability for children under 10 and children 10-13 years old
Under 10 - a child aged under 10 yrs has an absolute defence to any charge brought against them. Nevertheless, even though the child cannot be convicted, you still have to establish whether or not they are guilty
10-13yrs - For children aged between 10 and 13 years inclusive, it must be shown that the child knew their act was wrong or contrary to law. If this knowledge cannot be shown, the child cannot be criminally liable for the offence
Outline “M’Naghten’s rules”
The M’Naghten’s rules is frequently used to establish whether or not a defendant is insane. It is based on the 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 of the mind that they did not know:
The nature and quality of their actions, or
That what they were doing was wrong
How do NZ courts deal with a defence of automatism arising out of taking alcohol and/or drugs
In NZ the courts are likely to steer 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 the defence where the state of mind is obviously self-induced, the person is blameworthy, and the consequences could have been expected.
Insanity - s23
Define insanity by completing the sentence
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 to render him incapable of -
Understanding the nature and quality of the act or omission; or
Knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong
R v Lipman
Where automatism is brought about by a voluntary intake of alcohol or drugs the court may be reluctant to accept that the actions were involuntary pr that the offender lacked intention
Strict liability offence
Any offence that does not require an intent is called a strict liability offence and the only way a defendant can escape liability for such an offence is to prove a total absence of fault.
Example - driving with excess breath alcohol
What is the required state of mind for s167(b) of the Crimes Act 1961
To show that the accused’s state of mind meets the provisions of s167(b), you must establish that the accused:
Intended to cause bodily injury to the deceased
Knew the injury was likely to cause death
Was reckless as to whether death ensued or not
Define automatism
Automatism can be best described as a state of total blackout, during which a person is not conscious of their actions and not in control of them
Sane and insane automatism
Automatism may be quite different and distinct from insanity, although it may be due to a disease of the mind. Hence it is necessary to distinguish between:
Sane automatism - The result of somnambulism (sleepwalking), a blow to the head or the effects of drugs
Insane automatism - The result of a mental disease
General rules regarding intoxication
In the past intoxication was considered to be no defence to a criminal charge and, indeed, an aggravating rather than mitigating factor. The general rules has been that intoxication may be a defence to the commission of an offence:
Where the intoxication causes a disease of the mind so as to bring s23 (insanity) into effect
If 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)
Define alibi
An alibi is the plea in a criminal charge of having been elsewhere at the material time; the fact of being elsewhere
The defendant must include in a notice of alibi
The name and address of the witness or, if the name and address is not known to the defendant when the notice is given, any matter known by the defendant that might be of material assistance in finding that witness
State the procedure for alibi witnesses that are interviewed
The O/C case should not interview an alibi witness unless the prosecutor requests them to do so. If an interview is requested, follow this procedure:
Advise the defence counsel of the proposed interview and give them a reasonable opportunity to be present
If the accused is not represented, endeavor to ensure the witness is interviewed in the presence of some independent person not being a member of the police
Make a copy of a witness’s signed statement taken at any such interview available to defence counsel through the prosecutor. Any information that reflects on the credibility of the alibi witness can be withheld under s16(1)(o)
