Defences Flashcards
What section of the Crimes Act 1961 pertains to all the common law defenses?
Answer:
Section 20 CA 1961
What is the definition of justified in relation to any person?
Answer:
Means a person is not guilty of an offence and is not liable civilly.
What is meant by the term protected from criminal responsibility?
Answer:
Protected from criminal responsibility means the person is not guilty of an offence but civil liability may still arise.
Under sections 21 and 22 of the Crimes Act 1961 What relates to infancy?
Answer:
Under s21
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.
Under s22
no person shall be convicted of an offense 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 that the act or omission was wrong or that it was contrary to law.
In relation to children age between 10 and 13 years inclusive, What must be shown that the child knew when committing an offence?
What if knowledge cannot be shown?
Answer:
It must be shown that the child knew that it was wrong or contrary to law. This test of knowledge is in addition to the mens rea and actus reus requirements.
Answer:
If knowledge cannot be shown the child cannot be criminally liable for the offence
Even though a child under 10 has an absolute defense to any charge brought against them and the child cannot be convicted, What still needs to be established?
Answer:
Whether or not they are guilty still has to be established.
What was held in R v Rapira is in relation to a child knowing that they act was wrong?
Answer:
They need not understand that the act was seriously wrong.
How is proof of age determined?
Answer:
Prosecution is required to produce evidence of age e.g. birth certificate and provide evidence that identifies the defendant as the person named in the certificate.
What is meant by the relevant age?
Answer:
The relevant age is that of the child at the time they committed the offence and not the age when they appear in court.
When offences are being committed by children under the age of 10 years and some actions are desirable or necessary, What action can be considered?
Answer:
You may consider having the child and family dealt with as a Care and Protection matter
Where this action is taken the circumstances are reported to Oranga Tamariki for the attention of the Care and Protection Coordinator
As a general rule what happens to all child offenders until they reach the age of 14 years?
Answer:
All Child offenders will be referred to the Care and Protection Coordinator at Oranga Tamariki
Where a child aged 10 to 13 years old is alleged to have committed murder or manslaughter (category 4 offenses) how are they usually dealt with under the Youth Justice provisions of OT Act 1989?
In relation to children aged 14-16 years, What happens in this instance?
Answer:
Charges a filed in the District Court, the first appearance takes place before the Youth Court and the case then automatically transfers to the High Court for trial and sentencing.
Answer:
The process for this group of aged offenders is the same.
Where a child is convicted of murder or manslaughter What may happen to the child in terms of detainment?
Answer:
Children can be sentenced to imprisonment and can be detained in a child youth and family youth justice residence under the custody of the chief executive of the Ministry of Social Development.
Children offenders who are declared in need of care and protection can be detained in a Care and Protection Residence under the custody of the Chief Executive of the MSD
Where the young person is alleged to have committed murder or manslaughter and aged 14 to 16 years, Can the young person be imprisoned for murder, manslaughter, category 4 offences and category 3 offences?
Where else may they be detained?
Answer:
Yes. Young person’s can be imprisoned for murder, manslaughter, Cat 4, Cat 3 offences for which the maximum penalty available is or includes imprisonment for life or for at least 14 years.
Answer:
They can also be detained in a Child, Youth and Family Youth Justice residence under the custody of the Chief Executive of the MSD.
What does a section 272(1) of the Oranga Tamariki Act 1989 define in regards to processing children 12-13 years for serious offences?
Answer:
There is an option of prosecuting children age 12-13 years for certain serious offenses. These are in circumstances where the offense is punishable by 14 years to life imprisonment (other than murder or manslaughter).
or where the child is 12 or 13 years, is a previous offender (for a serious offence), and the offence is punishable by 10 years to 14 years imprisonment.
What is defined under s 23(1) of the Crimes Act 1961 in relation to insanity?
Answer:
Everyone shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.
Under s23(2) CA61 What are the conditions whereby a person shall not be convicted of an offence?
Answer:
By reason of an act done or omitted when laboring under natural imbecility or disease of the mind to such an extent to render him incapable of-
(a) Understanding the nature and quality of the act or omission or,
(b) Knowing that the act or omission was morally wrong, having regard to the commonly excepted standards of right and wrong.
Under s23(3) CA61 If a person displays insanity or has insane delusions, though only partial, What may this mean in terms of the offending?
Answer:
Such a condition of the mind may be evidence that the offender is rendered irresponsible for the act or omission before or after the time when he did or omitted the act.
Where a defendant poses a risk to the community there is a procedure which they can become the subject of a restricted patient order under section 54(1) Mental Health Act 1992, Who raises the issue of insanity?
Answer:
In R v Green held that insanity is a matter for the defense to raise and the prosecution is prohibited from adducing evidence of insanity even if the accused has sought acquittal because of some state of mind not amounting to insanity.
Under what Act must a judge put the issue of insanity before jury?
Answer:
Under section 20(4) of Criminal Procedure (mentally impaired persons) Act 2003.
It is not proper for the Crown to call evidence of insanity. If they do have any relevant evidence what must they do with it?
Answer:
Evidence in the hands of the Crown should be offered to the defence. Leaving it to the defendant to put up a plea of insanity if they wish to do so.
If the defense chooses not to plead insanity it would be only an exceptional case that the trial judge would put the issue to the jury.
When convicted of an imprisonable offence,
What does s34 of the Criminal Procedure (mentally impaired person) Act 2003 state?
Answer:
Judge my still commit a person to hospital or secure facility or, instead of passing sentence, order that offender be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or be cared for as care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
What two reasons concerning the offenders mental impairment must satisfy the court before a compulsory treatment or compulsory care order is made?
Answer:
Whether it is in the offenders interest or for reasons of public safety.
When there is strong evidence to indicate that the defendant did commit the alleged offence but was insane at the time, Can the person be acquitted of the charge even if they or their council have not put up a defense of insanity?
Answer:
Yes. If there is strongly evidence to indicate this.
Where such evidence exists the judge must direct the jury’s attention to the defense of insanity as set out in s23 of the Crimes Act 1961.
The judge must do this even if the defence has not put forth the issue of insanity.
In such a situation the judge in summing up, before the jury delivers it’s verdict, must notify the jury that if it’s decides to acquit the defendant it must be specific as to whether it’s on the grounds of the defendant’s innocence or their insanity.
What does s20(2) mean in regards to entering a verdict?
Answer:
There is now the possibility of entering the verdict of “not guilty on account of insanity” by consent.
In regards to burden of proof who is responsible for proving the defendant is insane?
What happens if the jury thinks that the defendant is insane but the defence cannot prove it?
Answer:
The defense. The burden of proof is on the defendant the standard of proof required is not as high as that demanded of the prosecution.
Answer:
If the defence cannot prove the offender is insane but the jury thinks it is more likely that the defendant is insane then the defendant is entitled to acquittal on the grounds of insanity.
