Defences Flashcards
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Defences for children
No person shall be convicted of an offence when under the age of 10 years
No person shall be convicted of an offence when they are between the age of 10 and 14 years unless they knew the act or omission was wrong or that it was contrary to law
Process for a child charged with murder or manslaughter
Charges filed in the district court
First appearance takes place before the youth Court
The case automatically transfers to the High Court for trial and sentencing
Definition insanity
s23 .CA 1961
(1) Everyone shall be presumed sane at the time of doing or omitting any act until the contrary is proved
(2) no person shall be convicted of an offence when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable
(a) of understanding the nature and quality of the act or omission
(b) of knowing the act or omission was morally wrong having regard to the commonly accepted standards of right and wrong
Who raises the issue of insanity
Insanity is a matter for the defence to raise
Early conclusion to trial regarding insanity
Under section 20( 2) there is the possibility of entering the verdict of “not guilty on account of insanity” by consent
Burden of Proof for insanity
The defendant is not required to prove the defence of insanity beyond Reasonable Doubt but to the satisfaction of the jury on the balance of probabilities
M’Naghten’s rules
If a person is insane they did not know:
- the nature and quality of their actions or
- that what they were doing was wrong
Disease of the Mind does not include
A temporary mental disorder caused by an external factor such as; a blow to the head, drugs, alcohol, hypnotism or an anaesthetic
Disease of the Mind is a question for who
The Judge. It is not a medical question but a legal one
Definition automatism
A state of total blackout, during which a person is not conscious of their actions and not in control of them
Causes of automatism
Concussion, sleepwalking, brain tumour, epilepsy, arteriosclerosis or consumption of alcohol or drugs
- convincing evidence is required to support cause by alcohol or drugs
Two types of automatism
Sane automatism - the result of sleepwalking a blow to the Head or the effects of drugs
Insane automatism - the result of a mental disease
When intoxication may be a defence
Where it causes a disease of the mind
If intent is an essential element and drunkenness is such that the defence can plead a lack of intent
Where the intoxication causes a state of automatism
Ignorance of law
section 25
The fact that an offender is ignorant of the law is not an excuse for any offence committed by him
Defence of compulsion
The person who commits an offence under compulsion by threats of immediate death or GBH is protected from criminal responsibility if they believe the threats will be carried out.
The belief must be genuine.
Defence of mistake
Except where proof of men’s rea is unnecessary bonafide mistake or ignorance as to matters of fact is available as a defence
Eg: seeds given to a person as tomato seeds and are actually cannabis
Defence of entrapment
In NZ entrapment is not a defence. If the entrapment is unfair it may result in the court excluding the evidence
Self defence
s48
everyone is justified in the defence of himself or another using such force they believe to be reasonable in the circumstances
Notice of alibi
s22 Criminal Disclosure Act 2008
The defendant must give written notice to the prosecutor of the particulars of the alibi within 10 working days after been given notice under section 20
the notice must include the name and address of the witness and anything known by the defendant that might be of material assistance in finding that Witness
Procedure when alibi Witnesses are interviewed
- Advise defence counsel and give them reasonable opportunity to be present
- If the defendant is not represented endeavour to ensure the witness is interviewed in the presence of an independent person
- Make a copy of the Witnesses sign statements available to defence counsel
What is entrapment
When an agent of an enforcement body deliberately causes a person to commit an offence so they can be prosecuted
Self defence subjective test
- What are the circumstances that the defendant genuinely believes exists?
- Do you accept that the defendant genuinely believes those facts?
- Is the force used reasonable in the circumstances believed to exist?
