Defences Flashcards
Justification and Excuse Including Infancy
In certain circumstances people who appear to have committed an offence
are not able to be held civilly or criminally liable. In these cases, a person
may offer justification or excuse as their defence.
In some cases there is a defence founded on common law principles which
were supported by precedent before codification: for example, absence of
mens rea
The following chapters in this module look at the specific legal defences that
bring them within the boundary of justification.
Legislation
Matters of justification and excuse are contained in Part 3 of the Crimes Act
1961.
General rule as to justification: s20
Under s20 of Crimes Act 1961 all the common law defences are retained, so
long as they are not inconsistent with the Crimes Act 1961 or any other
enactment.
Justified
In relation to any person, “justified” means that the person is not guilty of an
offence and is not liable civilly.
Protected from criminal responsibility
“Protected from criminal responsibility” means the person is not guilty of an
offence but civil liability may still arise.
Infancy
Defences for children are set out in s21 and s22 of the Crimes Act 1961.
21 Children under 10
(1) No person shall be convicted of an offence by reason of any act done or omitted by
him when under the age of 10 years.
22 Children between 10 and 14
(1) No person shall be convicted of an offence by reason of any act done or omitted by
him when of the age of 10 but under the age of 14 years, unless he knew either that
the act or omission was wrong or that it was contrary to law.
Determining age
In deciding the correct age of a child or young person, refer to s5 of the Age
of Majority Act 1970.
5 Attainment of particular age
For all the purposes of the law of New Zealand the time at which a person attains a
particular age expressed in years shall be the commencement of the relevant anniversary of the date of his birth
Burden of proof
A child aged under 10 years 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.
Children aged 10-13 years
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. This test of
knowledge is in addition to the mens rea and actus reus requirements. If this
knowledge cannot be shown, the child cannot be criminally liable for the
offence.
The Court in R v Brooks19 said the onus is on the prosecution to establish
that the accused knew that the act or omission was wrong or that it was
contrary to law.
In R v Rapira20 the Court discussed that the child must know that their act
was wrong but need not understand that it was seriously wrong:
Consider this real world case study where a young person was interviewed
for burglary. The interviewing officer asked what he understood he had
done. The young person responded, “I robbed the house”.
Further questioning about whether the young person knew “robbing the house” was
unlawful or wrong was not pursued. The Court ruled that any admissions
made by the young person were inadmissible.
Proof of age
The prosecution is required to produce evidence of age (for example, a birth
certificate) and provide evidence that identifies the defendant as the person
named in the certificate. The relevant age is that of the child at the time they
committed the offence, not their age when they appear in court.
In R v Forrest & Forrest21 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 convictions on the grounds that the Crown had
not adequately proved the girl’s age.
The Court of Appeal suggested that in that case it might have been sufficient if,
along with producing her birth certificate, the girl had given additional
testimony, for instance as to the day on which she habitually celebrated her
birthday, the age at which she first went to school, and in what year, and so on.
In a similar case, R v Clancy22, the complainant’s birth certificate was not
produced, however it was held that in that case evidence of the
complainant’s date of birth given by her mother was sufficient to prove the
girl’s age.
The Court in this matter said “the best evidence as to the date and place of a
child’s birth will normally be provided by a person attending at the birth or
the child’s mother … Production of the birth certificate, if available, may
have added to the evidence but was not essential.”
There is no hard and fast rule. Every case must be dealt with on its own facts,
but generally the best evidence available as to proof of age should be adduced.
R v Forrest and Forrest [1970] NZLR 545 (CA)
“The best evidence possible in the circumstances should be adduced by the
prosecution in proof of [the victim’s] age.”
