Defences

Question 1

What does it mean when a person may offer justification or excuse arms their defence?

Answer 1

When people appear to have committed an offence but are not able to be held civilly or criminally liable

Question 2

Define justified

Answer 2

The person is not guilty of an offence and is not liable civilly

Question 3

What does protected from criminal responsibility mean?

Answer 3

When the person is not guilty of an offence but civil liability may arise.

Question 4

Can a child under 10 be convicted?

Answer 4

No, they have an absolute defence to any charge.

But prosecution still never to establish whether they were guilty or not.

Question 5

When can a child aged 10-13 be convicted of a category 3 or 4 offence

Answer 5

When they either knew the act or omission was wrong or contrary to law. Onus is on prosecution.

Rv Rapira: the child must know it was wrong but need not understand it was seriously wrong

Question 6

What is required by prosecution for proof of age?

Answer 6

They required to produce evidence of age, eg birth certificate and provide evidence the defendant is the person named in the certificate

Question 7

What was found in R v Forrest and Forrest

Answer 7

The best evidence possible in the circumstances should be used by prosecution to prove age

Question 8

How are Children and YP dealt with for murder and manslaughter charges

Answer 8

Usually dealt with under the youth justice provisions of the OT act.

Filed in district court -> 1st app in youth court -> automatic transfer to high court

Question 9

What was held in the matter of R v Clancy in relation to the best evidence concerning proof of age?

Answer 9

It will normally be provided by a person attending the birth or the child’s mother. Producing the birth certificate if available may have added to the evidence but was not essential

Question 10

Who should you seek advice from in relation to questioning of children and YP?

Answer 10

District youth prosecutor

Question 11

How is insanity defined?

Answer 11

S23
Everyone is presumed sane unless contrary is proved.
No person can be convicted when labouring under natural imbecility or disease of the mind to such an extent to render them incapable of understanding the nature and quality of the act/omission or of knowing that it was morally wrong.

Question 12

Who raises the issue of insanity?

Answer 12

The right of prosecution to raise the issue of insanity was seen as necessary to protect the public. However, legislation now addresses this issue.

Insanity is a matter for defence and prosecution are prohibited from adducing evidence of insanity, even if the accused has sought acquittal.

Question 13

What are the M’naghten’s rules and what is the test used for?

Answer 13

The test is used to establish whether the defendant is insane or not.

It depends on whether the person was:
- suffering from a disease of the kind that they did not know.
- aware of the nature and quality of their actions
- aware that there actions were wrong.

Question 14

Who holds the burden of proof for insanity?

Answer 14

Defence must prove that it is more likely that the defendant is insane.

R v Rottle: sufficient if jury are satisfied on a balance of probabilities.

Question 15

What offence can a defendant plead insanity to?

Answer 15

Any imprisonable offence

Question 16

Who decides on insanity when trial is at DC or HC?

Answer 16

R v Clark: the decision is always for the jury and a verdict inconsistent with medical evidence is not necessarily unreasonable.

If not in support of the medical experts, a Verdict of insanity must be found on evidence that shows the accused did not know the act was morally wrong.

Question 17

What is automatism

Answer 17

A state of total blackout when a person is not conscious of their movements

Question 18

What does a defence of automatism depend on

Answer 18

Whether the state of automatism is involuntary or self-induced and whether intent was present.

Question 19

When can intoxication be used as an defence

Answer 19

An offence that requires intent

Question 20

Define nature and quality using case law

Answer 20

R v Codere: Nature and quality means the physical character of the act. A person cutting another throat but thinking it’s a loaf of bread would not know the nature and quality of the act

Question 21

If someone is found unfit to stand trial or they are acquitted, what may the judge do?

Answer 21

May be detained as a special patient or special care recipient. The court decided whether to release, Detain or apply orders.

*when a serious homicide and in the public interest, the attorney general may direct defendant to be held as a special patient or special care recipient.

Question 22

Discuss case law in relation to automatism definition

Answer 22

R v Cottle: doing something without knowledge of it and without memory afterwards of having done it.

Question 23

What are the causes of automatism?

Answer 23

Brain tumour, epilepsy, arteriosclerosis(temporary unconsciousness by interference with the supple of blood to the brain) or consumption of alcohol or drugs (this is rare).

Question 24

What are the two types of automatism

Answer 24

Sane - sleepwalking, blow to the head, drug affected

Insane - result of a mental disease

Both involve action without conscious volition

Question 25

When can automatism be treated as insanity?

Answer 25

Depends on presence or absence of a disease of the mind.
Is mental disease present
The finding of insanity to be put to the jury

Question 26

Where is the onus on proving automatism induced by drink or drugs

Answer 26

Defence on balance of probabilities. Defence must raise the issue.

*do not confuse with intoxication

Question 27

Discuss criminal intent

Answer 27

Certain offences require intent and other require little of no.

When no intent is required (eg driving with excess blood) for defence to succeed, they must prove a total absence of fault. They drive without a conscious appreciation of driving or being intoxicated.

When intent is required is for any offence that has an element of intent in the offence. Eg assault

Question 28

When might intoxication be a defence

Answer 28

• where it causes disease of the mind
• when intent is required and the drunkenness is such that the defendant can plead lack of intent to commit the offence
• where intoxication causes a state of automatism

Question 29

What does protected from criminal responsibility mean?

Answer 29

Not guilty of an offence but civil liability may apply.

Question 30

What type of defence does a child under 10 have

Answer 30

Absolute defence

Question 31

What is the standard of proof required to prove defence of insanity?

Answer 31

Balance of probabilities

Question 32

Is the term disease of the mind a question of fact for the jury or a question of law for the judge to decide?

Answer 32

Question of law

Question 33

What is the likely result of a trial where the defendant is found to have been in a state of automatism from intoxication?

Answer 33

Complete acquittal

Question 34

Guidelines to consent regarding assault

Answer 34

1. Everyone has a right to consent to a surgical operation
2. Everyone has a right to consent to the infliction of force not involving bodily harm
3. No one has a right to consent to their death or injury likely to cause death
4. No one has a right to consent to bodily harm in such a manner as to amount to a breach of the peace or prize fight or similar to collect together disorderly persons
5. It is uncertain to what extent any person has a right to consent to their being put in danger of death or bodily harm by the act of another

Question 35

Who carries the burden of prof for consent

Answer 35

It is always up to the prosecution to prove that someone did not consent. The onus only arises if there is evidence from which consent can reasonably be inferred.

Question 36

Define consent using case law

Answer 36

Consent - a persons conscious and voluntary agreement to do something desired or proposed by another

R v Cox: full voluntary free and informed…freely and voluntarily given by a person in a position to form a rational judgement

Question 37

What must defence provide to prosecution when calling an expert witness

Answer 37

At least 10 days before trial date, they must provide a brief of evidence/report or summary of the evidence

Question 38

Define compulsion

Answer 38

The act of compelling a person to do something against their will. The law offers protection from prosecution in some cases.

Question 39

In relation to compulsion, discuss threats

Answer 39

The threats must operate on the persons mind at the time of the offence and he or she must genuinely believe them

Question 40

In relation to compulsion, what does immediate mean

Answer 40

It means at the scene from a person present at the time

Question 41

Using case law, define ‘presence’ in relation to compulsion or duress

Answer 41

R v Joyce: must be present when essence is committed

Question 42

Discuss the defence of entrapment in NZ

Answer 42

Entrapment is rejected as a defence. The courts rely on unfairly obtained evidence.

Police v Lavelle: undercover officers can provide an opportunity for a person who is ready and willing to offend, as long as they don’t initiate the interest

Question 43

What is the test of self defence?

Answer 43

Subjective

What was the initial need to use force
Was the degree and manner reasonable
What degree of force was used
What were the circumstances
Is the force reasonable

Question 44

Define alibi

Answer 44

The plea in a criminal charge of having been elsewhere at the material time. The fact of being elsewhere.

Question 45

Who decides whether there is evidence of self defence?

Answer 45

The judge

Question 46

What must defence provide prosecution with when claiming alibi

Answer 46

Written notice within 10 working days of the defendant being given notice under section 20

Question 47

What sections of the crimes act specifically exclude consent as a defence

Answer 47

Acts of indecent
Death or injury likely to cause death

Question 48

What people are considered unable to give consent

Answer 48

Child
Unable to relationally understand the implication of their defence
Nicer to force, threats of force or fraud

Question 49

What actions do not allow for a defence of consent

Answer 49

Aiding suicide
Criminal actions
Injury likely to cause death
Bodily harm likely to cause a breach of the peace
Indecent offences
Placing someone in a situation where they are at risk of death or bodily harm

Question 50

What does a defence of consent require

Answer 50

That the act is consented to is understood and that consent is given voluntarily

Question 51

What are the responsibilities of the O/C when a defence puts forward an alibi

Answer 51

Provide QHA and active charges of the alibi to prosecution
Make inquiries to confirm or rebut the evidence
Do not interview unless prosecutor requests it

Question 52

Credibility of alibi witness can be withheld under what section

Answer 52

A 16(1)(o)

Question 53

What steps must you take when interviewing an alibi witness

Answer 53

Advice council of proposed interview
If witness does not a counsel, arrange independent support person
Give a copy of the interview to defence counsel