Defences - Age Flashcards
Justified
The person is not guilty of an offence and is not liable civilly.
Protected from criminal responsibility
The person is not guilty of an offence but civil liability may still arise.
Infancy
S21 - 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.
S22 - 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
Commencement of the relevant anniversary of the date of his birth
Burden of Age
Under 10 years has an absolute defence to any charge, even though the child cannot be convicted, you still have to establish whether or not they are guilty.
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.
R v Brooks - 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.
Proof of Age
The prosecution is required to produce evidence of age and provide evidence that identifies the defendant as the person named in the certificate.
R v Forrest and Forrest
“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”
Prosecution - General Rule
As a general rule, all child offenders will be referred to the Care and Protection Co-ordinator until they reach the age of 14 years.
Children aged 10-13 years old charged with murder or manslaughter
Where a child aged 10 to 13-years old is alleged to have committed murder or manslaughter (category 4 offences) they are usually dealt with under the youth justice provisions of the Oranga Tamariki Act 1989. Charges are 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.
Children can be sentenced to imprisonment for murder or manslaughter and be detained in a Child, Youth and Family Youth Justice Residence under the custody of the Chief Executive of the Ministry of Social Development.
Young Persons 14-16 years charged with murder or manslaughter
Usually dealt with under the youth justice provisions of the Oranga Tamariki Act 1989, as with children aged 10-13 years.
Young persons can be imprisoned for murder, manslaughter, category 4 offences and category 3 offences for which the maximum penalty available is or includes imprisonment for life or for at least 14 years. They can also be detained in a Child, Youth and Family Youth Justice’ residence under the custody of the Chief Executive of the Ministry of Social Development.
Option to prosecute for certain serious offences
Under s272(1) of the Oranga Tamariki Act 1989, there is the option of prosecuting children aged 12 and 13 years for certain serious offences. These are in circumstances where the offence 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.
