Defences

Question 1

Defences for children

Answer 1

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

Question 2

Process for a child charged with murder or manslaughter

Answer 2

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

Question 3

Definition insanity

s23 .CA 1961

Answer 3

(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

Question 4

Who raises the issue of insanity

Answer 4

Insanity is a matter for the defence to raise

Question 5

Early conclusion to trial regarding insanity

Answer 5

Under section 20( 2) there is the possibility of entering the verdict of “not guilty on account of insanity” by consent

Question 6

Burden of Proof for insanity

Answer 6

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

Question 7

M’Naghten’s rules

Answer 7

If a person is insane they did not know:

• the nature and quality of their actions or
• that what they were doing was wrong

Question 8

Disease of the Mind does not include

Answer 8

A temporary mental disorder caused by an external factor such as; a blow to the head, drugs, alcohol, hypnotism or an anaesthetic

Question 9

Disease of the Mind is a question for who

Answer 9

The Judge. It is not a medical question but a legal one

Question 10

Definition automatism

Answer 10

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

Question 11

Causes of automatism

Answer 11

Concussion, sleepwalking, brain tumour, epilepsy, arteriosclerosis or consumption of alcohol or drugs

• convincing evidence is required to support cause by alcohol or drugs

Question 12

Two types of automatism

Answer 12

Sane automatism - the result of sleepwalking a blow to the Head or the effects of drugs

Insane automatism - the result of a mental disease

Question 13

When intoxication may be a defence

Answer 13

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

Question 14

Ignorance of law

section 25

Answer 14

The fact that an offender is ignorant of the law is not an excuse for any offence committed by him

Question 15

Defence of compulsion

Answer 15

The person who commits an offence under compulsion by threats of immediate death or GBH from a person who is present at the time the offence is commited, is protected from criminal responsibility if they believe the threats will be carried out.

The belief must be genuine.

Question 16

Defence of mistake

Answer 16

Except in cases 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

Question 17

Defence of entrapment

Answer 17

In NZ entrapment is not a defence. If the entrapment is unfair it may result in the court excluding the evidence

Question 18

Self defence

s48

Answer 18

everyone is justified in the defence of himself or another using such force they believe to be reasonable in the circumstances

Question 19

Notice of alibi

s22 Criminal Disclosure Act 2008

Answer 19

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

Question 20

Procedure when alibi Witnesses are interviewed

Answer 20

1. Advise defence counsel and give them reasonable opportunity to be present
2. If the defendant is not represented endeavour to ensure the witness is interviewed in the presence of an independent person
3. Make a copy of the Witnesses sign statements available to defence counsel

Question 21

What is entrapment

Answer 21

When an agent of an enforcement body deliberately causes a person to commit an offence so they can be prosecuted

Question 22

Self defence subjective test

Answer 22

• 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?